Credit AGREEMENT -or- APPLICATION? RBS Advantage Card

[InKogneeToh]

Hi Pam

Just l;ooking at your post again

 

No One is saying that 127(3) makes any document with the prescribed terms and signature unenforceable. If it is not in the prescribed form it simply puts it back to being enforceable only by the order of the court.

And what the DTI OFTand most of all me are saying is that a court would not enforce under the circumstances you outline.

 

Peter Your Pal

 

Hi Peter (my Pal)

 

Sorry for shouting but I don't do 'ladylike'!

 

You will be please to hear I am giving up on this now! I will wait and see the outcome of any court proceedings detailed on here in the future which involve application forms containing all prescribed terms and the signature of the debtor!

 

Regards, Pam

[Peterbard]

Hi Peter (my Pal)

 

Sorry for shouting but I don't do 'ladylike'!

 

You will be please to hear I am giving up on this now! I will wait and see the outcome of any court proceedings detailed on here in the future which involve application forms containing all prescribed terms and the signature of the debtor!

 

Regards, Pam

 

Shame

 

Still i can't really loose because the judge would have to say this documment that you thought was an aplication form is in fact an agreement as no one could enforce an application form.

 

Typical man got to have the last word, i know but that is because we are so wise.

 

And you do do lady like i have seen it with term.

[InKogneeToh]

 

And you do do lady like i have seen it with term.

 

You're not jealous, are you Peter? :D

[Peterbard]

You're not jealous, are you Peter? :D

HI

 

Guilty as charged

 

Must warn you terminator is a robot and all the bits might not have been included in the kit

 

 

Peter

[Peterbard]

Jay

 

I think you are wrong regarding applications and concur with the way Peter describes it.

IF the document is headed Application then regardless of later references to an agreement regulated by CCA it is a precontractual document. The first stage towards the agreement between the debtor and creditor. In exactly the same way that you see a nice suit in a shop window priced at £50 - it is an offer to enter into an agreement. At any time both parties can decline.

DTI

RT Hon Ian McCartney MP

Minister for Trade Investment and Foreign Affairs

says: If Mr Bardsley feels the rules are being flouted he should report the companies concerned to Trading Standards and the Office of fair trading. It is also a breach of the Act and the Regulations to send the application form rather than a true copy of the agreement.”

 

The Act and SI regs are also very clear on how infornfmation should be presented in an Agreement:

 

 

 

from OFT Notice Failure to provide CCA

 

 

Z

 

 

Hi Z

 

Yes i think quite a simple issue is being confused.

Take the inferrence about the word document in section 127, it has been said that this could refer to any piece of paper with the sigs and prescribed terms on it but the section says as refered to in 61(1) as being a adocument in the form presribed in the regulations in other words a correctly formated agreement.

It is of course true that the unenforceability of the agreement can only be applied when the sigs and prescribed terms are missing irrespective of any other factors but it just puts the ability to enforce or not, back on the court, we must not forget that since April 6th this is the situation even if the sigs and terms are missing.

What we are saying is that it is the courts decision and that does not mean they will enforce hence the question to the DTI where they say that the court would not enforce an application form. We can only hope that the same situation will apply with an agreement with no signatures and prescribed terms since the unenforceablility clause has been removed. Perhaps another letter is called for asking them to clarify, that an agreement without sigs and prescribed terms will not be enforced.

At least we would have it from the horses mouth and settle the issue (well so you would think.)

 

Regards

Peter

[InKogneeToh]

At least we would have it from the horses mouth and settle the issue (well so you would think.)

 

Regards

Peter

 

But is it a horse, or a goat? :D

[InKogneeToh]

HI

 

Guilty as charged

 

Must warn you terminator is a robot and all the bits might not have been included in the kit

 

 

Peter

 

Ah yes, but he is able to repair himself, and he is rechargeable!!

[Peterbard]

But is it a horse, or a goat? :D

 

 

Told you the judge would have to lookin the CCA(Clasificaton of criters act under prescribed terms for horses)Before he could decide.

Just because it looked like a goat wouldn't be good enough if he had,had a bad day he could say it was an agreeement oops i mean horse.

 

Peter

[Peterbard]

Hello,

 

I am sorry, but I have a headache, because I have been banging my head of the wall in total frustration regarding a credit agreement re a application form this afternoon.

 

I have tried to keep up with all the information on this thread and the credit agreement thread, but I am getting more and more confused by the post.

 

Can some one please advise me as to what I now do,

I sent the NatWest a cca template request(plus £1) for a cc on the 6th March, I received a letter from some rude condiscending employee:mad: (Senior CRA Officer) on the 29th April.

 

Quote

 

Your request for documents contains some misconceptions about your entitlement to information in a specified form and our obligations to supply that information. So that there are no misunderstanding here we will set the record straight on the format of the information we are obliged to provide you.

 

Your written request for information made under s78(1) of the CCA must be accompanied by payment of a fee of £1. We are obliged to provide you with a 'true' copy of the credit agreement and a statement of financial information relating to the account, namely the state of the account, amount currently due, with amounts and due dates of future paryments that still require to be made. In terms of CCA copy document regulations, the true copy requirements can be satisified by providing a copy agreement at the date the card agreement was made and providing that plus a copy of the current terms of the card agreement. We are not insisting on payment of the £1 and enclose the s78(1) information.

 

The have enclosed a copy of a ilegible application form, It is a very bad photocopy so I cannot see if it contains the prescribed terms. The have also sent a typed A4 sheet of the terms and conditions, with my name and address and account no typed on the top. It is not dated,

 

I have today wasted my time ringing the OFT who stated it was nothing to do with them and told me to ring the fsa, who stated it had nothing to do with them and to ring the oft, who I rang again, who stated it had nothing to do with them. and to ring the fsa.

 

I did eventually snap and told the oft that supposedly that were there to help and protect consumers, and if they could not advise me, who could, well I never the fsa. so on and on it goes.

 

At the end of the conversation they did mention I could aproach the FOS, they might be able to help me.

 

Talk about passing the book.

 

Sorry to rant:cry:

 

Any advise please:confused:

hi

I realise your letter may have already been addressed but here is aletter you my wish to look at

 

 

Dear

 

Thank you for your letter dated ******** in response to the queries I had about the response to my earlier request made under section 77 of the consumer credit act.

 

I am afraid that you still have not supplied the information requested in said act and there fore are still in default.

 

The request is for post contractual information as regulated by section 180 of the act the regulation you speak of is contained within Statutory Instruments 1983/1557 which reads:

General requirements as to form and content of copy documents

3.-(1) Subject to the following provisions of these Regulations, every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall be a true copy thereof.

(2) There may be omitted from any such copy-

(a) any information included in an executed agreement, security instru­ment or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations there under as to the form and content of the document of which it is a copy;

 

(b) any signature box, signature or date of signature (other than, in the case of a copy of a cancelable executed agreement delivered to the debtor under section 63(1) of the Act, the date of signature by the debtor of an agreement to which section 68(b) of the Act applies);

 

As you can see the only omission allowed by this regulation is the signature box of the Debtor/ Hirer, all other aspects of form and content including cancellation terms are require in order to fill the requirements’ of a true copy.

I also find it hard to understand why you are unwilling to sign the document if it is as you say a true copy. However this is also a requirement.

 

Regarding the enforceability issue due to incorrect pre-contractual form and content:

 

As per section 127(3) of the act the minimum requirement for a court to consider enforcing a agreement of this type is that it should have the Debtor/ Hirer’s signature and all the prescribed terms contained in Statutory instruments 1983/1553 Schedule 6; As directed by section 60 of the Act

• Amount of credit • Credit limit• Rate of interest • Repayments If any of these items are missing then a court cannot enforce any agreement made and regulated by the Act prior to April 6th 2007.The absence of all other aspects of the agreement relating to form and content as defined in the remaining Agreement Regulations render the contract enforceable only by leave of the court.Optional (I remind you that you are in now in default and any interest that has been charged to this account during this period will be void .If it has as been more that 42 days since my initial request you are guilty of an offence which shall be reported to the police for possible criminal litigation)

[Peterbard]

Hi Z

 

Yes i think quite a simple issue is being confused.

Take the inferrence about the word document in section 127, it has been said that this could refer to any piece of paper with the sigs and prescribed terms on it but the section says as refered to in 61(1) as being a adocument in the form presribed in the regulations in other words a correctly formated agreement.

It is of course true that the unenforceability of the agreement can only be applied when the sigs and prescribed terms are missing irrespective of any other factors but it just puts the ability to enforce or not, back on the court, we must not forget that since April 6th this is the situation even if the sigs and terms are missing.

What we are saying is that it is the courts decision and that does not mean they will enforce hence the question to the DTI where they say that the court would not enforce an application form. We can only hope that the same situation will apply with an agreement with no signatures and prescribed terms since the unenforceablility clause has been removed. Perhaps another letter is called for asking them to clarify, that an agreement without sigs and prescribed terms will not be enforced.

At least we would have it from the horses mouth and settle the issue (well so you would think.)

 

Regards

Peter

 

HI It must be my age but i already queried this point and got the response below it is posted onthe loan thed but i always get the link thingy wrong so here it is.

dti

 

James Purnell MP

Hyde

Cheshire

 

Re: consumer credit Act

 

Thank you for your of 9January, enclosing further correspondence from your constituent, Peter Bardsley of ************* about the Credit Consumer act.

 

In essence Mr Bardsley believes that a signed copy of an original loan agreement should be produced on demand to the borrower as Mr Bardsley thinks this is the only way the borrower can be absolutely sure that terms and conditions have not been altered since s/he signed the agreement.

 

I am not convinced by Mr. Bardsley’s argument, for if a company wished to act dishonestly and send the borrower different terms and conditions then even faking a signature would not be a barrier to their practice.

(Bit of a difference between "accidentally"issuing a current doc and forgery!!Sorry won't comment again)

Mr Bardsley also suggests that repealing Section 127 of the Consumer Credit Act 1974 will cause problems and reduce consumer protection; I am not convinced this is the case. The changes will mean that rather than being automatically unenforceable because of a breach of the Act, the agreement may only be enforced provided that a court is prepared to mad an enforcement order.

 

Of course the Government is concerned to ensure that all agreements are in the required form, contain the required information and are executed in the proper way. However there are circumstances where an agreement may not have been executed strictly in accordance wit the Act’s requirements but there may be no consumer detriment.

 

To render such agreements unenforceable in all circumstances would be an arbitrary sanction, which may (taken together with the abolition of the financial limit) contravene the European contravention of Human rights.

 

If a lender does not obtain a signature or does nor provide the consumer with all the prescribed information in the prescrived form the agreement will not be enforceable and the lender would need to justify his conduct when seeming and enforcement order. The court neither is nor required to make an enforcement order and there is no presumption that one should be made. Until and unless such an order is made the consumer’s position will remain the same as it is now.

 

If a lender were to persistently indulge in such conduct, not only would he be unlikely to get an enforcement order, but it would expose him to possible licensing action buy the OFT on the grounds that the lender has failed to adhere to the requirements of the Consumer Credit Act. This could render the lender potentially liable to sanctions such as requirements on licences and, if necessary, civil penalties.

 

So we do not believe that the effect of the proposed changes to s127 will reduce the emphasis on ensuring that the agreement is properly executed and should, in combination with the improved rights of consumers to seek redress through the new unfair relationship’s provisions and the ADR scheme and the strengthened enforcement posers of the OFT, serve to impress upon lenders the requirement to ensure proper execution in all cases, in order to demonstrate compliance in each case

 

IAN McCartney

[ss_collins]

anyone want to comment on this one?

 

http://www.consumeractiongroup.co.uk/forum/mbna/84431-ssc-mbna-agreements.html

[jalex_uk]

Subscribing

[Peterbard]

Don't want to mislead or upset anybody but:

 

a non-cancellable loan application which doubles as an agreement, with prescribed terms and debtors signature, is enforceable, if it is dated before May 2005.

 

I will say no more on this subject.

HI

I appologise i had no idea of the depth of your ignorrance

 

Peter

[bgqs]

Peter,

 

I am having the same argument with Welcome...They have sent a signed application form but it has no specific reference to the prescribed t & c's.

 

Can I use your letter:

 

Dear

 

Thank you for your letter dated ******** in response to the queries I had about the response to my earlier request made under section 77 of the consumer credit act.

 

I am afraid that you still have not supplied the information requested in said act and there fore are still in default.

 

The request is for post contractual information as regulated by section 180 of the act the regulation you speak of is contained within Statutory Instruments 1983/1557 which reads:

General requirements as to form and content of copy documents

3.-(1) Subject to the following provisions of these Regulations, every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall be a true copy thereof.

(2) There may be omitted from any such copy-

(a) any information included in an executed agreement, security instru­ment or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations there under as to the form and content of the document of which it is a copy;

 

(b) any signature box, signature or date of signature (other than, in the case of a copy of a cancelable executed agreement delivered to the debtor under section 63(1) of the Act, the date of signature by the debtor of an agreement to which section 68(b) of the Act applies);

 

As you can see the only omission allowed by this regulation is the signature box of the Debtor/ Hirer, all other aspects of form and content including cancellation terms are require in order to fill the requirements’ of a true copy.

I also find it hard to understand why you are unwilling to sign the document if it is as you say a true copy. However this is also a requirement.

 

Regarding the enforceability issue due to incorrect pre-contractual form and content:

 

As per section 127(3) of the act the minimum requirement for a court to consider enforcing a agreement of this type is that it should have the Debtor/ Hirer’s signature and all the prescribed terms contained in Statutory instruments 1983/1553 Schedule 6; As directed by section 60 of the Act

• Amount of credit • Credit limit• Rate of interest • Repayments If any of these items are missing then a court cannot enforce any agreement made and regulated by the Act prior to April 6th 2007.The absence of all other aspects of the agreement relating to form and content as defined in the remaining Agreement Regulations render the contract enforceable only by leave of the court.Optional (I remind you that you are in now in default and any interest that has been charged to this account during this period will be void .If it has as been more that 42 days since my initial request you are guilty of an offence which shall be reported to the police for possible criminal litigation)

[bgqs]

There appears to be multiple interpretations about the enforcibility of the signed application form. In Diskman Dave's thread, Trading Standards confirmed that Lowells had complied with their obligation to provide a copy of the executed agreement.

 

However, many others think that a signed application form is a precontractual document and has not been formally executed until received and approved by the creditor.

 

Which one is correct ? I am too scared to send mine to Trading Standards on the basis that I am wrong and will then be obliged to commence payment of the alleged debt ?

[ladybird17]

An application form can never be an agreement.

 

An agreement, however, can embody application details.

 

Unfortunaely, TS seem to work independently of each other, and what one TS advises, another may contradict.

[bgqs]

Thanks...If I submit a complaint to TS...will the creditor be advised of this complain even if it doesnt go in my favour !

[Laiste]

Hi everyone,

 

I would like to gauge the views of people regarding a document, which may be either an application or an agreement....I am interested to know what contributors think. I will describe it, as there isn't a possibility of scanning it unfortunately, due to computer probs!

 

Okay, the first page has application details, the majority of which are pre-printed by B/card, except for additional c/holder details, which have been filled in by debtor's partner. It has been signed and dated by the debtor and balance transfer details have also been filled in by said debtor.

 

It does not state in bold letters at the top of the document, that it is a consumer credit agreement, nor does it state it's an application. Under "Home Details" it requires a tel number, under which it is stated, "may be required to process your application".

 

In a box towards the bottom left hand side of the page in very small writing it is stated Credit Agreement regulated by the CCA 1974. Underneath, it says, This is a credit agreement between us.....and you etc... One of the interesting parts of the info in this little box, is that it is stating you are applying for a B/card, however, it goes on to say that it will be one of five cards, depending upon which you are eligible for. It details each of them. Now bear in mind that each card has different rates of interest, re purchase & bal transfer rates and no doubt other differences, can it be said that this amounts to an agreement, when what you are agreeing to at this point has not been determined?

 

Just above the debtor's signature, it is again re-iterated that it is a credit agreement. Under that is Your Right to Cancel. This document was not signed by the creditor also, so it is improperly executed.

 

Interestingly, the prescribed terms are not on the signature side of the document as is expected of credit agreements. The T&C's are on the other side of the document, which includes interest rates for 3 types of card, (not five), pmt frequency is detailed, as are stmts of protection & remedies. Re the credit limit, it is stated that it will be disclosed when the card is sent.

 

Call me cynical, but how easy would it be to print some T&C's on the back of a so called agreement or an application form for that matter and say, look Mrs Smith agreed to pay an APR of 125%, it says so on the reverse of the document she signed! Given the unscrupulous nature of creditors, it is hardly surprising that there is a requirement for the prescribed terms to be stipulated on the signature side of the document!

 

I am very interested to hear views on what I've described and I'm sorry it's so long!

 

Regards to all!

 

Laiste.

[surprise]

Hi Laiste - I've spent all evening on the computer looking for info re agreements because I've got a similar situation, I've been sent what states is a Credit Card Agreement, etc, on one page, the other page was sent to me as a pre-accepted application, reply by. The interesting part about my document is that I don't remember signing it, and it was only last August, I think the signature has been cut and pasted from a recent letter I wrote to them. The date is definitely not my writing. How can I prove it though, other than force them to go to court and produce the original document. My document sounds the same as yours. Its not actually signed by the company nor dated, nor does it show my name and address. Its also got varying amounts of APR's.

 

I don't trust these credit card companies one iota.

[bgqs]

Check out my thread: http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/89688-lowell-financial-capital-one.html

[hellhasnofury]

Well blow me down with a feather:shock:

 

Guess what I received this morning in the post. The so-call credit agreement for the loan. Beggars belief doesn't it. That, after defaulting and commiting a criminal offence, they have produce it.

 

I have done a lot of reading around the different threads on the forums and have gained lots of advice and knowledge.

 

I do believe that they still cannot produce the original credit agreement and are trying to pull the wool over my eyes, but I am not 100% sure.

 

I really looks like they have just printed it off, all new and crisp.

 

There looks to be all the prescribed terms, etc, but there is nowhere for me or them to sign and no date. I am sure with the technology they have they can put in the details and just press a button and hey presto my original credit agreement. Sorry but I don't think so. Even they can't stoop that low:evil: or could they.

 

Any comments please

[/url]

 

 

Hello, I posted this on my thread yesterday, I do think they will do anything rather admit defeat

[ladybird17]

any chance of you posting up here so we can examine?

[Cristal]

hi

I realise your letter may have already been addressed but here is aletter you my wish to look at

 

 

Dear

 

Thank you for your letter dated ******** in response to the queries I had about the response to my earlier request made under section 77 of the consumer credit act.

 

I am afraid that you still have not supplied the information requested in said act and there fore are still in default.

 

The request is for post contractual information as regulated by section 180 of the act the regulation you speak of is contained within Statutory Instruments 1983/1557 which reads:

General requirements as to form and content of copy documents

3.-(1) Subject to the following provisions of these Regulations, every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall be a true copy thereof.

(2) There may be omitted from any such copy-

(a) any information included in an executed agreement, security instru­ment or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations there under as to the form and content of the document of which it is a copy;

 

(b) any signature box, signature or date of signature (other than, in the case of a copy of a cancelable executed agreement delivered to the debtor under section 63(1) of the Act, the date of signature by the debtor of an agreement to which section 68(b) of the Act applies);

 

As you can see the only omission allowed by this regulation is the signature box of the Debtor/ Hirer, all other aspects of form and content including cancellation terms are require in order to fill the requirements’ of a true copy.

I also find it hard to understand why you are unwilling to sign the document if it is as you say a true copy. However this is also a requirement.

 

Regarding the enforceability issue due to incorrect pre-contractual form and content:

 

As per section 127(3) of the act the minimum requirement for a court to consider enforcing a agreement of this type is that it should have the Debtor/ Hirer’s signature and all the prescribed terms contained in Statutory instruments 1983/1553 Schedule 6; As directed by section 60 of the Act

• Amount of credit • Credit limit• Rate of interest • Repayments If any of these items are missing then a court cannot enforce any agreement made and regulated by the Act prior to April 6th 2007.The absence of all other aspects of the agreement relating to form and content as defined in the remaining Agreement Regulations render the contract enforceable only by leave of the court.Optional (I remind you that you are in now in default and any interest that has been charged to this account during this period will be void .If it has as been more that 42 days since my initial request you are guilty of an offence which shall be reported to the police for possible criminal litigation)

 

I am addicted to this and the CCA thread and a huge admirer of your posts. I do, however, find that I can grasp a concept that then mutates into something I can't.....I have an enormous collection of faux agreements, sent in response to my CCA letters. Am I correct in thinking that the agreement may not be signed by me but must be signed by the creditor? If so, why don't they just sign them (sorry if that's an irritatinglhy obvious question)?

 

In reply to the CCA, MorganStanley sent me a copy of a letter announcing my new card was enclosed - no credit limit, no date and the only signature box is one to cancel the agreement. When I challenged this document, MS wrote back 'The copy provided by us to you is a 'true' copy even if the signature box and/or signatures are not included. As the terms of your Agreement have varied since you originally applied for a credit card, Regulation 7 of the Regulations allows us to provide you with a 'true copy' which sets out the T&C current at the time of the provision of the copy. As the copy of the agreement sent to you on XXXXXX represents the present terms of your agreement, we have provided you with a copy of the executed agreement as prescribed by section 78 of the Act'. They then state that the debt is 'legitimate'. The letter waffles on for 2 pages.

 

Any advice from anyone on how to repsond? Many thanks.

[zubo]

I am addicted to this and the CCA thread and a huge admirer of your posts. I do, however, find that I can grasp a concept that then mutates into something I can't.....I have an enormous collection of faux agreements, sent in response to my CCA letters. Am I correct in thinking that the agreement may not be signed by me but must be signed by the creditor? If so, why don't they just sign them (sorry if that's an irritatinglhy obvious question)?

 

In reply to the CCA, MorganStanley sent me a copy of a letter announcing my new card was enclosed - no credit limit, no date and the only signature box is one to cancel the agreement. When I challenged this document, MS wrote back 'The copy provided by us to you is a 'true' copy even if the signature box and/or signatures are not included. As the terms of your Agreement have varied since you originally applied for a credit card, Regulation 7 of the Regulations allows us to provide you with a 'true copy' which sets out the T&C current at the time of the provision of the copy. As the copy of the agreement sent to you on XXXXXX represents the present terms of your agreement, we have provided you with a copy of the executed agreement as prescribed by section 78 of the Act'. They then state that the debt is 'legitimate'. The letter waffles on for 2 pages.

 

Any advice from anyone on how to repsond? Many thanks.

 

Cristal,

 

Apologies ... I have blown several fuses, I am working on about 6 projects and I have not had time to even apologise. They are talking rubbish as usual, T&C MUST be from the agreement. We have seen many of them state that they do not have to supply signed copies, that is fine then I don't have to supply them with a payment. Use cpr 4.6, threaten them with court and issue them with a default under section 78 and while you are there section 85... oh remind them of penalties, report to OFT, you will push for OFT to prosecute them and when they do you will request withdrawal of their licence within FS.

 

 

Sorry, got to go,

 

Zx

[miss muppet]

Oh Goody, Cristal , I have cca'd Goldfish (same family?) on hubby's behalf now await reply and we had exactly the same waffle from Citi, we have dealt with it severely pointing out all their transgressions and not acknowledging the debt -Round 2 ding ding, methinks they're on the ropes - hope so anyhow!