Credit AGREEMENT -or- APPLICATION? RBS Advantage Card

[zubo]

Hi Zubo...

dont mind at all you crossposting

 

just one little point..........can I have the link so I can see what its about

 

dave

 

of course

 

apologies

 

http://www.consumeractiongroup.co.uk/forum/site-questions-suggestions/79147-consumer-credit-act-resources.html#post702982

 

Z

 

I'll add the bit above too in your reply to Pam

[InKogneeToh]

Hi Pam in post 317 you were unsure of signing etc. you didnt quote the whole section

 

(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and

 

(b) the document embodies all the terms of the agreement, other than implied terms, and

 

© the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible.

 

rgds

 

Dave

 

Hi

 

The section I was quoting was s127(3) which only mentions a signature by the debtor and so has caused confusion as to whether a document signed only by the debtor but containing all the prescribed terms can be enforced.

 

Regards, Pam

[InKogneeToh]

of course

 

apologies

 

http://www.consumeractiongroup.co.uk/forum/site-questions-suggestions/79147-consumer-credit-act-resources.html#post702982

 

Z

 

I'll add the bit above too in your reply to Pam

 

Hi

 

I think you should take it out again Zubo as I was quoting a different section of the CCA. The problem with putting all these posts in is that there's a danger that the thread just becomes another debate rather than a selection of templates and explanatory notes. PLUS, I'm not saying I'm right on this particular point - only that that's how I interpret it.

 

Regards, Pam

[davefirewalker]

Hi pam

 

just had a look at it again..s127 does indeed say as you quote...but it makes reference to s60 / 1 as well...........oh well

 

now I'm confused again, and I was doing so well... time to start taking the happy pills again

 

dave

[InKogneeToh]

Hi pam

 

just had a look at it again..s127 does indeed say as you quote...but it makes reference to s60 / 1 as well...........oh well

 

now I'm confused again, and I was doing so well... time to start taking the happy pills again

 

dave

 

Hi again

 

Yes it does refer to s60(1) which as you say states that an agreement is improperly executed unless containing all the requirements and signed by both parties, but the confusion arises because s127(3) doesn't specify that the 'document' has to be signed by both - it just says 'by the debtor or hirer' - implying that the court can consider any document, containing all the prescribed terms and signed by the debtor! Do you see what I mean?

 

But other sections of the Act confirm my understanding that an agreement signed only by the debtor (or only by the creditor) is unexecuted and therefore not yet made.

 

Regards, Pam

[davefirewalker]

Ive just read s127 (3) twelve times....and its just sinking in.

 

It is VERY contradictory. and as you rightly say it seems to be at the discretion of the judge as long as the relevant terms are present it may only need one sig......., however s60 is also clear..... have the 2006 amendments become law yet ? I'll have to have a look if they have made any changes.

 

just found this.....2006 act, royal assent 30 mar

 

http://www.opsi.gov.uk/acts/en2006/ukpgaen_20060014_en.pdf

 

Dave

[InKogneeToh]

Ive just read s127 (3) twelve times....and its just sinking in.

 

It is VERY contradictory. and as you rightly say it seems to be at the discretion of the judge as long as the relevant terms are present it may only need one sig......., however s60 is also clear..... have the 2006 amendments become law yet ? I'll have to have a look if they have made any changes.

 

just found this.....2006 act, royal assent 30 mar

 

http://www.opsi.gov.uk/acts/en2006/ukpgaen_20060014_en.pdf

 

Dave

 

Hi

 

Some parts of the amended Act are already in force but the changes to the agreement regulations come into force this month (not sure of date) but any changes will only apply to agreements made after this.

 

Regards, Pam

[davefirewalker]

whoops.......

 

38. Section 15 repeals sections 127(3) to (5) of the 1974 Act (subsection (5) is

consequential on subsection (3)), which means that a court will have the power to

determine in its discretion whether agreements are enforceable in accordance with

section 127(1) and (2) regardless of the breach in question.

 

Dave

[davefirewalker]

My head now officially hurts and I'm off to bed....zzzzzzzz

 

rgs to everyone still awake

 

Dave

[InKogneeToh]

whoops.......

 

38. Section 15 repeals sections 127(3) to (5) of the 1974 Act (subsection (5) is

consequential on subsection (3)), which means that a court will have the power to

determine in its discretion whether agreements are enforceable in accordance with

section 127(1) and (2) regardless of the breach in question.

 

Dave

 

Hi,

 

Yes it is repealed, but only in relation to post-April agreements. This was done as a result of Wilson v Secretary of State for Trade and Industry and the poor creditors complaining that the nasty CCA was too mean!! Aaagh! Diddums!

 

Regards and Nite, Pam

[The Lantana]

So Dave and Pam, IMHO with the repeal of 127 (3) we now have complete clarity under the act that an agreement signed by the borrower, but not signed by the lender, is unexecuted - and therefore not made.

 

This could be good news.

 

Regards

 

Lantana

[InKogneeToh]

Hi Lantana

 

I see your point - source of confusion removed!

 

Do you agree with my interpretation of executed/unexecuted? Have a read of s62 and 63 and see what you make of it.

 

Regards, Pam

[joneshousehold]

Pam and everyone

 

The way I have read the interaction with S127 is that if an agreement is signed by both parties it is executed and therefore both parties are tied to it (ignoring whether the agreement has all the prescribed terms). If either party has not signed it, the agreement is not binding and this is when we refer to it being unexecuted. However S127(3) then says that if it is the debtor that has not signed it but has signed some other document that contains all the prescribed terms then the court can order that the agreement be enforced. So the court has the power to override the legal position of the document. (Presumably this is because the court would otherwise have no power to order enforcement which I think supports what you are trying to say Pam, no signature(s) = no agreement)

 

S62 and S63 deal with the copies that have to be sent at the start of the contract.

 

So if the creditor has not signed it, there is no contract. However they can sign it at any time as it is in their possession EXCEPT that of course many of them have them stored on microfiche and so they cannot sign the original. If they are foolish enough to send an unsigned agreement to the debtor on receipt of a CCA request then I think they are in a very difficult position.

 

The only thing I am unclear on is what happens if they were to sign it at a later stage such as on receipt of a S77-79 request. Assuming they are honest and date it correctly when signing surely up to that date there is no agreement and they cannot charge interest up to the date of signing. The way to find out if they have signed it later is to make a second S77-79 request (you can do this after at least 1 month I think) because they would have to sign it again and it is unlikely the two will match unless they store a signed copy AND remember to retrieve the signed copy when dealing with the second request.

 

Does that make sense?

[m55dlc]

The fact is, if they haven't signed it, they cannot say that they have complied with s63.4 or s85, which is my current position with MBNA. They're squirming and keep on messing up with what they send me. In a couple of weeks I'll have them for fraud as well.

[rinkydinkydoo]

Hi

 

The document you have posted up is IMO 100% an application only and definitely not one of those 'grey area' application/credit agreements that are causing problems.

 

There are no prescribed terms whatsoever!!

 

Because I have a wicked streak, I would write and ask them to send a copy of your actual agreement and advise them that if they are unsure which document they should be looking for, that it is the one that has all the prescribed terms, other required terms and statutory statements and is signed by both lender and borrower! :D:D

 

It is tempting to accept this piece of cr@p as all that they possess but it's wise to give them another chance, just in case they do have a proper agreement and might produce it at a later date!

 

Regards, Pam

 

I am in dispute with Monument have ben in correspondence with them, they have sent me what they say is an excecuted cca, but it clearly seems not to be, i received this letter this morning and am not sure what to do next, could you possibly give some ideas,

 

We write further to your letter dated.......

 

We have already sent you a legible copy of the monument conditions reflecting the origional agreement that you entered into with monument.

This represents a true copy for the purposes of the consumer credit (cancellation notices and copies of documents) Regulations 1983. It omits, as is permitted by the Regulations, the signature box and any notice of cancellation rights.

 

There is no requirement under the consumer credit act 1974 for us to certify and or to sign this copy agreement and we have not done so.

 

We have also previously sent you a copy of your signed application for your convenience. This is in addition to our obligations under the consumer credit act and demonstrates your agreement to the Monument conditions.

 

I regret your decision to withhold payment to your account, as we disagree with your legal analysis and view the debt enforceable.

As we have complied with our obligation under the credit consumer act, we regard the debt as enforceable and shall continue to pursue the outstanding debt in accordance with our standard recovery process. In the event that our payment requirements are not met, this may involve referring your account to a third party debt collection agency to recover the full balance.

 

the company was Providian when I initially dealed with them, not Monument, yes they sent a part of the application form, definately not the agreement, i have not said I will withhold payment, so they are wrong there, please do you have any help,

 

Regards,

Rinkydinkydoo:-)

[joneshousehold]

I have told one of my creditors that I am no longer interested in S77/78 other than the fact that they haven't fully complied. What they have supplied has highlighted to me that they hold faulty documentation. I shall need to see the signed copy to confirm that they do hold an enforceable agreement and it is this I am now requesting. The whole 1983 Regulations is a smokescreen. This has now moved on.

I also quoted from the letter someone posted on the CCAA thread (Peterbard?) from Ian Macartney, the Consumer Minister who said

‘If there were a dispute about an agreement, the lender would need to prove to a court that there was an agreement and, it is highly likely that the lender would have to produce the original signed document to prove they had an agreement with the consumer to start with. The lender should need to prove to a court that there was an agreement and, if the lender can’t prove the existence of the agreement, winning any court case would prove difficult.’

 

No response as yet but you could do something along similar lines

[rinkydinkydoo]

I have told one of my creditors that I am no longer interested in S77/78 other than the fact that they haven't fully complied. What they have supplied has highlighted to me that they hold faulty documentation. I shall need to see the signed copy to confirm that they do hold an enforceable agreement and it is this I am now requesting. The whole 1983 Regulations is a smokescreen. This has now moved on.

I also quoted from the letter someone posted on the CCAA thread (Peterbard?) from Ian Macartney, the Consumer Minister who said

 

No response as yet but you could do something along similar lines

 

Hi joneshousehold,

do you have a letter that i could change to suit my postition to send to monument, regards,

rinkydinkydoo:)

[m55dlc]

I'd say something along the lines:

 

All you have provided to me is a copy of the application form I signed and a copy of your terms and conditions. I accept that you may well believe that this conforms with the 1983 regulations regarding copy agreements, but I am not interested in a copy agreement. I want you, plain and simply, to provide me with a copy of an agreement between myself and monument that is signed by both parties and is enforceable with or without an order of the court. From the documentation you have provided it is evident that you do not hold this, and therefore you have been in breach of section 63.4 of the Consumer Credit Act 1974 since the inception of this card, and subsequently are in breach of section 85 of the Consumer Credit Act 1974 on replacement of the credit token.

 

Be advised in your future correspondence to refer to your dealings with me, not to use what is effectively a template letter that has been incorrectly changed to suit my circumstances.

 

I look forward to hearing from you further, but be advised you still haven't complied with my section 78 request and as such any attempt to enforce the alleged agreement will incur a fine of £2500.00.

 

Any attempt to pass this account to an external debt collection agency is not allowed as the debt is, and will continue to be, in dispute.

 

Yours sincerely

 

 

 

Something along those lines, but maybe someone else can add a twopenneth to it?

[MCBIRNIE25]

Hi all,

I too am fighting welcome over their credit agreement.

What bothers me most is that the office address signed by their rep, is a c/o address, and not the premises on which I signed my agreement. Could this be used as an argument?

[Guest louis wu]

Good morning all.

 

If you could spare a few minutes to look at this I would be grateful.

 

I have requested a copy of my CCA under s77. regarding a loan taken out 3 years ago.

 

The 1 page copy I have received HAS the following

 

1 A fixed loan amount.

2 Interest rate

3 Rate/frequency of payments

4 Creditor and debtor signatures (with dates)

5 Document headed as ‘credit agreement regulated by CCA act 1974’ signature box has the same heading (I think its safe to assume that this is an agreement and not an application:( )

 

 

I was a bit disappointed with that, so I examined the document and found these (some is a bit picky)-

 

 

1 No T&C’s

2 2 references to ‘clauses overleaf’ – it’s a 1 sided copy, no clauses supplied.

3 2 illegible areas (small in size, but illegible nonetheless)

4 (very picky clutching at straws time) APR not expressed as a %, just stating this, ‘A.P.R 10.6’ (assume I am no financial expert, 10.6 what?)

5 A ‘right to cancel’ section explaining details will be sent later….No details ever received. Quote ‘Once you sign this agreement, you will have a short time to cancel it. Exact details of how and when you can do this will be sent to you by post by us’

6 Several references to ‘sharing info’ with other organisations including CRA’s (I am going to look back to earlier references to this in the HUGE CCA thread (somewhere about page 110 I think), as I remember reading something about this not being correct.

 

 

I know the important points are included, I am just wondering if anyone has any thought as to the merits of continuing the ‘discussion’ with the DCA regarding the rest. I am picking up speed on this, but could not put a reasoned argument in front of a judge (YET), but given a few more weeks I think I could give it a go, but obviously, it needs to be a genuine argument, and not just ‘having a go for the sake of it’. I do wonder though, if the DCA will have any idea what I am talking about if I buy some time and learn the act, will they simply let it go, or is that wishful thinking?

 

Any thoughts much appreciated.

 

 

Louis

[m55dlc]

Louis

 

If there isn't a signed statement from the DCA or loan company stating how much is outstanding, and there are no T&C's or a copy of the clauses overleaf, they haven't complied. We've obviously not seen it, but it sounds like you've been looking for the right things. If you find the reference to sharing data, please post it again as it isn't something I remember and its all ammunition. You should write to them saying they haven't complied, but it sounds like you're not going to gain much time by doing that. Box against the shadows for a week or two and read like a demon!

[Guest louis wu]

m55, I am trying to catch up FAST, but your all giong too quick for me:)

 

I will continue looking for the shared info post, but its *needle meets haystack* time and I may have imagined it:-? .

 

Thanks for the reply

 

Louis

[Guest louis wu]

This was posted by acerfan post 1601 on CCA agreements thread

 

QUOTE

 

Has anyone got any ideas on how the implications of Section 59 could be used?

 

59 Agreement to enter future agreement void

(1) An agreement is void if, and to the extent that, it purports to bind a person to enter as debtor or hirer into a prospective regulated agreement.

(2) Regulations may exclude from the operation of subsection (1) agreements such as are described in the regulations.

 

As credit checks are performed and credit limits set after an application has been received, surely a signed credit card application binds a person into a prospective regulated agreement.

 

I know this was mentioned earlier in the thread, but didn't seen any definite conclusions on this.

 

 

 

 

I believe this is what I read/remembered. It don't think this can be applied to my situation, but may help others, although I cannot recall it being discussed at length.(at least not up to page 145 anyway...reading continues)

[joneshousehold]

Rinky

My letter was a bit of a mammoth affair as I pointed out all the areas of difficulty.

 

I started off by detailing the earlier correspondence and setting out what had been sent and when plus I highlighted how the definitions and explanations by them had changed (basically they firstly said the application form was the agreement but I then went back and said it did not have all the prescribed terms so was unenforceable. They then sent a copy of T&C's and said that was the agreement but it is unsigned and still not correct) I then went through all the requirements in the OFT report to make an enforceable agreement and listed everywhere they had gone wrong in my particular case. That was where the letter got lengthy and you will need to have a look at your own documents to make your letter relevant. I think there is a link to the OFT report earlier in this thread but if you can't find it post again and I will find it for you

 

I then said

Although you have made a lot of reference to the requirements of the 1983 Statutory Instrument, this is not the whole story. In order to consider any action for recovery, you will need to supply the courts with a true copy of the original agreement complete with all requirements to be able to show the courts that you have an enforceable agreement. I would remind you of the contents of the letter from Ian Macartney, the Consumer Minister who said

 

‘If there were a dispute about an agreement, the lender would need to prove to a court that there was an agreement and, it is highly likely that the lender would have to produce the original signed document to prove they had an agreement with the consumer to start with. The lender should need to prove to a court that there was an agreement and, if the lender can’t prove the existence of the agreement, winning any court case would prove difficult.’

 

You need to supply me a copy of the original signed agreement, not to comply with the requirements of Section 78 but because your earlier replies have highlighted to me that the documents you hold are faulty and there is no agreement in existence. I did point this out to you in my letter of xxxx. I find it strange that you have chosen to ignore the main point of my letter and have chosen instead to refer to something that is no longer part of the correspondence.

 

Despite your penultimate paragraph in which you state that you regard the debt as enforceable, it is very clear that this is not a tenable statement. The law clearly shows that the documentation is so badly flawed that it can never become enforceable even under an order of the court. I therefore reiterate my earlier comment that I require from you a full refund of all moneys I have erroneously been required to pay to you.

 

Please also note that as the ‘agreement’ is unenforceable you are not able to pursue me for the debt and this includes telephone calls, correspondence requesting payment or formal notices about the unenforceable debt. You should be aware that I am withdrawing my agreement for you to telephone me and all my data must be removed from your records. Any attempt to contact me to pursue any ‘debt’ will be reported to the relevant authorities as unlawful and as harassment. Further you do not hold any enforceable authority to divulge any of my data to any third parties be this either a credit reference agency, a sub-contractor or any other person to whom you wish to transfer or assign rights. I would remind you that as there are no rights under this documentation, they cannot be assigned or divulged to any third party.

Hope that helps. Unfortunately as you get further down the line of correspondence there is less opportunity for a template or standard letter. Your letter will have to reflect what has happened to you. Good luck

[rinkydinkydoo]

Thankyou joneshousehold, I will get right onto it, I,ll keep you posted, it seems like a minefield though , doesnt it, arghhhhh