Credit AGREEMENT -or- APPLICATION? RBS Advantage Card

[Peterbard]

I am concerned about some of the early comments made on this thread. An agreement is a specific document. Just because the credit industry wants to speed up it's processes by turning a single document into an application and an agreement does not make the former an agreement as well. Just because it states this is an agreement does not make it one either. I think there is something in S59 about pre-contract documents not being valid as an agreement.

 

I don't know if there are any later regulations that over-rides (1), perhaps some more learned member can clarify for us.

 

Many of the creditors I have challenged on this have yet to produce any useful regulation so I suspect not.

 

If they were however to successfully challenge I still don't think from the cursory look I have given that the document, if it were to be accepted as an agreement, is within the strict rules of CCA and later regulations. The OFT documents that sets out the regulations is a useful place to start

http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/oft018.pdf

I think they may have failed on the form and content of the document as described in the guidance. It is difficult to read on the posting so I am not sure. If the copy held is as unclear as this I would also throw in a challenge on the grounds that every copy must be easily legible just for good measure.

 

The issue here is whether section 59 forms part of the infomation or other regulations that contradicts 59(1) via 59(2) . I do not see how section 59 could function on a Agreement /applicaton form distance sale.

 

Peter

[Peterbard]

63(4) In the case of a credit-token agreement, a copy under subsection (2) need not be

given within the seven days following the making of the agreement if it is given before

or at the time when the credit-token is given to the debtor.

 

Could you explain that in simple English for me please?

 

Regards, Dave.

Hi

It means they dont have to give you a copy if you recieved one between signing and getting the card or with the card

Peter

[Peterbard]

Does a printed signatuer on an agreement count as an executed agreement or does it have to be a hand signed signature. I have a Barclaycard agreement (without t& c's) with a printed one and just wondered if this was sufficient? Have read the thread and have not really got a conclusive answer.

Thanks

HI

 

IMO

The Creditor must sign or have someone sign in his place the lack of a signature would render the agreement unenforceable without the aapprovel ao a court order.But agin IMO they would have no problem in getting one in this instance.

 

Peter

[Peterbard]

Hi

 

I am not convinced that s59 helps in this 'application v agreement' issue any way.

 

Quote:

 

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.

 

My understanding of this section is that only the clause of such an agreement that states that you are bound to a further prospective regulated agreement is void - not the initial agreement itself!

 

Note it says that 'an agreement' is void - not 'a regulated agreement is void'.

 

A possible case might be if a customer signed a contract of purchase in a store, intending to finance the purchase by a seperate regulated credit agreement, and the contract agreement stated that, by signing that document, the customer would also be bound by any associated prospective regulated credit agreement for finance.

 

Regards, Pam

 

I dissagree the mention of agreement just means thathte current one isn't signed and therefore unexecuted and is the prospective agreement..

 

Regs

Peter

[Peterbard]

Peter

 

This (in red) would be after the event then and not a true copy of the agreement and anyway would be unlawful and probably illegal. There is some doubt as to whether a stamped signature truly complies.

 

Z

 

Like i said it would be for the judge to decide but in my opinion the judge would not see any benifit to the creditor for not signing an agreement and making it unenforcable after all it would cost him. Like i say my opinion up to the judge.

 

Regs

Peter

[Peterbard]

Hi Peter

 

Can you explain what you are saying here please?

 

Regards, Pam

I meant

 

I dissagree the mention of agreement just means that the current one isn't signed and therefore unexecuted and is the prospective agreement..

Better

 

Peter

[Peterbard]

Hi

 

I understand and agree (in principle) with your assertion that an application is pre-contractual and therefore cannot stand as an agreement.

 

However, I still don't see how we can argue our way out of this (if it gets to court):

 

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document it would seem any document will suffice(whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer(note it's not crucial that the creditor may not have signed it) (whether or not in the prescribed manner).

 

 

 

So the court will consider any old document, written in any form provided that it has all the prescribed terms and the debtor's signature. The minimum requirement is therefore:

 

 

 

1) a credit limit or statement as to how/when it will be determined

 

2) Interest rate

 

3) rate/frequency of repayments

 

4) Debtor's signature

 

 

So, if you have been sent any form of document that contains these requirements you are not on safe ground!!

 

Hi

I must admit i am a little confused about this application/agrement debate.

could you exlain why this doesn't apply by the way there is also a similar statement in the earlier regs.

 

Regards, Pam

 

10. - (1) Schedule 1 (information to be contained in documents embodying regulated consumer credit agreements other than modifying agreements) shall be amended as follows.

 

(2) For paragraph 1 substitute -

 

1.All types. " (1) Subject to paragraph (2) below, a heading in one of the following forms of words -

• (a) "Hire-Purchase Agreement regulated by the Consumer Credit Act 1974";
   
  (b) "Conditional Sale Agreement regulated by the Consumer Credit Act 1974";
   
  © "Fixed-Sum Loan Agreement regulated by the Consumer Credit Act 1974"; or
   
  (d) "Credit Card Agreement regulated by the Consumer Credit Act 1974",

as the case may require.

 

(2) If none of the headings in 1(a) to (d) above are applicable a heading in the following form of words - "Credit Agreement regulated by the Consumer Credit Act 1974".

 

If it doesn't it doesnt conform to whichever of the regs says correct form it is unenfrceable without.etc

 

Regards

Peter

[Peterbard]

HI again

I seem to have left off the intro

I am a little confused as to the reason for the applicatio/agrement debate.Am I missing something see above.

 

Regards

Peter

[Peterbard]

HI

I dont know if this will clarify it is an arlier posting of mine look at the underlined bits

 

 

post 1189 loan company cannot****

[Peterbard]

I am sorryJ

 

I could never work that link thig i have put on the post number instead it is a copy of al etter i recieved from the dti a little while ago when i was questioning the validity of responses to section 77 requests.

 

Peter

[Peterbard]

Hi Typo

 

Unusual tor me but i did put the word without after what should have beeen the word enforceable(is it me or is this a silly argument) would have hardley intentionally it after unenforceable .Anyway still hasn't answered my question.

 

Regs

 

Peter

[Peterbard]

Here try this link

http://www.consumeractiongroup.co.uk/forum/post-485937.html

Yes Peter, I remember this letter and (with my many thanks) I have in fact referred to it in my correspondence. It's the reason why I think the application is not an agreement. I had hoped we could try to get some statutory backing for the statement by the DTI. We seem to be skirting around the Act and Regulations but I think we still haven't identified why the DTI statement is correct. I expect if anyone goes to court they will have to show the statutory backing and produce a DTI letter to support our interpretation. It would just make our claims easier if the Act was clearer. But then that's just Utopia I suspect!

 

Thanks for reminding me of the DTI letter.

 

 

No probs

 

Regards

Peter

[Peterbard]

J

What is your opinion of post 130,

It seems the way to identify an agreement is if it has the words agreement on top. Of course this doesn't make the agreement unenforceable but i cannot see a juge enforcing without it especilly with the comments from the dti.

 

Peter

[Peterbard]

Hi

No i honestly don't mean to appear facetious but the whole debate over is it or isn't it a credit agreement cant it be answered by the reply.If it says Credit Agreement on the top it is. If it doesn't it is something else.

You see the - "Credit Agreement regulated by the Consumer Credit Act 1974". bit is part of the prescribed form of the agreement not just a header.

 

 

Regards

 

Peter

[Peterbard]

I don't think you are being facetious Peter. I am just trying to understand what we have. Are you saying that you think if the application does have the prescribed terms then it can also be the agreement? I know Pam thinks it does but I am not sure. The thing that concerns me about that is if the intended debtor signs that kind of application and gets turned down, the creditor could turn up at a later date and claim there is an enforceable agreement in place. If they then invent a string of transactions, it is mighty difficult to disprove that the debt exists. I know that means a creditor has to behave fraudulently but those are the kind of creditors the Act was designed to protect debtors from.

 

That's why I have some doubts about the argument that a single document serves as both application and agreement.

No I think what i am saying that the credit agreement is being used as an apliction.

At the risk of mentiong the d word in distance contracts the agreement has to be filled in by the applciant and sent or e-mailed or whatever before the account is opened. I don't think that just filling in the agreement commits them to give you an account. So yes i dont see why it couldn't act as an application and it obviosly does in alot of cases i have seen . But it would again IMO have to be clearly marked as an agreement as per the regs and as per the OFT.

 

Peter

[Peterbard]

HI Pam

 

Wsn,t trying to be funny it was just to indicate that my error was due to a typo although in actual fact there is nothing wrong with saying the agreement is unenforcble without an order from the court means the same thng as enforceable only with an order from the court.anyway sorry i called you typo.

The whole section 127 thing was debated disected and thoroughly investigated by Tam myself and Number 6 many moons ago i assure you that i am perfectly familiar with it.

Again can i ask you to stop picking we are all trying to learn here.

 

Peter

[Peterbard]

Hi Again

Interesting issue about credit scoring an agreement after you have appied on a distance contract, it is prohibited by the regs as they say that the correct apr must be shown in order to give the consumer acoorect picture of what they are buying and allow them to accurately comare products.

So in theory any agreement/application with the words rate subject to credit does not meet the standards of the regulations and is therefore unenforceable.

 

Peter

[Peterbard]

Hi

I have developed a habit of picking up leaflets for applications everytime i see one in the bank in the petrol station etc (sad man)in order to look at the Section 1 details on them.

The one i got from tesco,s has a banding thing where depending on your credit rating you got on your credit score your interest varies between 26 and 55% apr its a Vanquis card. I have seen similar things on other aplications.

Since i picked this up from the supermarket as opposed to the bank i presume it is a distance arrangement so this really should not happen IMO.

As well as the two criterea for calculating APR you mentioned there are individual payment amounts and frequency as well as upfront costs applied to your account and any other fees, of course you new that but someone else might not have.(See how careful i am being.)

 

 

Regards

Peter

[Peterbard]

Laughing at the Disclaimer Pam.

 

None of our so called CC Agreements show an APR and no credit limit.

 

This applies to A & L/MBNA and Capital One. Very naughty of the credit card companies and their lazy ways.

Very naughty and also unenforceable of course the credit limit being a prescribed term.

The apr is unenforceable without an order from the court.

although i believe you can also make a case for unenforceability on that also under 127(1) if you can show you were missled into making the purchase by the lack of it being on the agreement.

 

Regards

Peter

[Peterbard]

Hi

 

As far as I know, County Courts do not have jurisdiction to declare or change the law, they can only interpret and apply it, so cannot set precedent.

 

Regards, Pam

 

HI

Civil Law has developed in a similar way to the way criminal law has, through a mixture of Statutory Law made by governments, and 'precedent' which is created by earlier cases. I am not sure whether this extends dowm to county court hearings my instincts say no.Needs research

Petr

[Peterbard]

Hi

If this is all they sent you then under where it says this is a consumer credit agreement you should write.

"Oh no it isn't" and send it back.

 

Peter

[Peterbard]

HI Sorry my last posting was a bit inprecise.

The statement "I Have read the T and Cs etc" is not the correct form for a regulated agreement as all prescribed terms and conditions should be on the same page as the signature box and not interspersed with other material. So this document is not a correctly executed agreement even if the prescribed terms are elsewhere.

 

 

Regards

Peter

[Peterbard]

HI

 

Yes its on the agreement regulations S.I.1983/1553 i think or the 2004/1482 updated ones.

 

(e) under the heading “Key Information”—

(i) the information set out in paragraphs 20 to 24 of Schedule 1 to these

Regulations; and

(ii) the statements of protection and remedies set out in Schedule 2 to these

Regulations; and

(f) the signature box and, where applicable, the separate box required by paragraph

(7)(b) below;

and such information, statements of protection and remedies, signature and separate boxes shall be shown together as a whole and shall not be preceded by any information apart from trade names, logos or the reference number of the agreement or interspersed with any other information or wording apart from subtotals of total amounts and cross references to the

terms of the agreement.

This is the latter one although the 1983 one is simillar

 

Cheers

Peter

 

Peter

[Peterbard]

Hi Pam

 

Scanning the thread. Did m55 call you spotty?

 

Not having him insult you(my job)

 

Peter

[Peterbard]

Oww