Credit AGREEMENT -or- APPLICATION? RBS Advantage Card

[m55dlc]

I've only read the first page, but the difference in dates between the first date in the top left hand corner and the date on the timestamp where they have 'signed' the agreement, means they cannot have complied with s63.4, end of story, hasta la vista. This is an absolute and whatever they put up against this is conjecture, irrespective of what any SI states.

[m55dlc]

Oh, and on the legality issue, harrassment is illegal. I've had a CCP send me an illegal default notice, letters asking me to borrow monies from family members and calling me and leaving messages on the answerphone like "I know we're not allowed to call you, but could you call me on ###".

 

This is the same organisation that I missed a payment to and made the next seven months payments to on time, but as I had missed ONE, they felt they were allowed to charge me 7 late payment fees.

 

Certain CCP's are better than others, I just don't like the way some of them operate.

 

If I can prove they are in the wrong, they are the ones at fault. I (personally) have never stated I would not pay back what I owe or what I have spent. The balance on the particular CC in question has never been more than £4k (OK possibly 4.2k). So far they have refunded 2.8k in charges. I'm not being funny, that level is theft, their tactics are underhand and unlawful, it is time they went bankrupt.

[m55dlc]

M55,

 

I'd love you to find things wrong in this, but doesnt 63(4) say that they dont need to send a copy within x days if they send it with the card?

 

How can they send something they don't have?

 

If they executed the agreement after they sent you the card (months after) they cannot have sent you a copy of an executed agreement with the card as they didn't have an executed agreement at that time.

 

Do you see what I mean? If they claim to have done this using the card mailer, you can turn round and say 'how? the agreement wasn't allegedly executed until April and I applied in Feb'.

[m55dlc]

D'oh!

 

Now I see your point!

 

But doesnt this depend on when the card was actually issued?

 

So if they didnt sent the card out until April, theyd be covered?

 

No, as they have 7 days... erm, just thinking........

If you 'apply' for a card and the card isn't issued for two months, ....

 

you need to check when the card was first used. I give you a 99.8% guarantee that the card was sent before April.

[m55dlc]

Dave

 

They haven't complied with s63.4, put a claim in for interest they've charged and charges. They will not argue that one (IMO)

[m55dlc]

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.

They have to give you a copy of the EXECUTED agreement. If they didn't sign it (i.e. execute it) how can they have complied? They signed it 3 months later. Therefore they haven't complied with section 63.4

[m55dlc]

Do you have statements before 2003 that do not show it?

 

I think they're going to argue that it is ticked, you're going to argue that the mark is in fact a strike through of that entire section, done by the person who filled out the application. They'll say 'honest mistake', you'll say 'honest mistake' and they should refund it. The angle and length, along with a small tick-like tail appears on the other right handed ticks placed on the left hand side of the application.

 

If you have the statements showing you've not been paying it prior to 2003, you should be OK.

[m55dlc]

The application form, if it has the prescribed items, is the agreement. What they send you (i.e. the card carrier) is not the agreement, but allegedly is their way of complying with the law. You are supposed to have an agreement sent with the first card, and all subsequent cards, but as it would be foolish to send an agreement (with a signature) out with a card, the law was ammended to say they didn't have to give the sig out with the cards. The point here is the act says 'true copy' but how can a mailer be a true copy of the agreement you signed?

 

The bottom line is, the agreement is the application you signed. Barring a massive breakthrough in our knowledge and understanding, this isn't going to change. What is apparent, though, is the whole process itself (s85, s63 etc) and the modus operandi of the CCPs is, in itself, not within the spirit of the law, and it is up to us to prod and poke until we can beat them with their failings.

 

Hope that helps

[m55dlc]

Zubo, I like that line, I might try that with 1st Credit (who appear to be the next people to try and take us to court). Phew, that would be the third lot in 6 months.

[m55dlc]

It has been mentioned here a number of times that County Court judgements cannot set a precedent, so I believe that is the consensus.

 

But I'm not a begal leaver, a regal beaver or whatever.

[m55dlc]

As pudster says there are key things missing namely interest rate, credit limit and repayments. It's not a compliant agreement.

 

My concern here is that they may have simply made a poor copy, they may have the full thing. In this instance I'd personally be inclined to write back asking them to try again.

 

Regards

 

Lantana

It does say 'Detach Here' 'Reply Card' so it may be all they have....

[m55dlc]

First of all, write them a letter stating that you didn't ask to see a copy of the application form, you want to see a copy of the agreement, as stated in your original s77/8 request under the CCA. You do not accept this as an agreement and that they haven't complied with your request. Tell them that you will be suspending payments until such a time as they can provide you with a correctly executed agreement. State that until that time this account is in dispute and therefore cannot be sold.

 

Give them some harsh words back, but stay this side of the line. Just make sure you mention 'until they comply' a couple of times so that a judge will see you're being reasonable.

 

The default issue will require more work, but if they are not forthcoming with the agreement thing you can issue (erm, the quote escapes me) to stop them processing your data.

 

Go for it Santa!

[m55dlc]

Good luck Mrxxxmas. I think a stick in a hornets nest can be very productive and might even be financially rewarding

Not to mention thoroughly satisfying!

[m55dlc]

Santa

 

Do not ask again. The Act is quite specific in its timeline and you should to.

Issue them recorded mail with a formal Default notice.

 

Dear sirs,

 

You have now failed to comply with my lawful request for a true copy of my agreement in accordance with the Consumer Credit Act 1974.

 

You are now formally in default and cannot enforce the agreement.

 

This means that you cannot make any charges against the agreement, you cannot default the agreement nor share any data related to this agreement with any third pary. Any defaults which you may have raised must be immediately removed. Any attempt to enforce this agreement is unlawful.

 

Finally you have committed a criminal offence and it is my intention to report you to the appropriate law enforcement agency and to the OFT as an organization not fit to hold a license to trade in Financial Services and report you to ICO for breaches of the Data Protection Act.

 

YS

 

Z

You forgot to mention they cannot charge interest!

[m55dlc]

thats what i said diddle i....

 

being a bit lazy with typing this out so I just edited it in ... by charges I meant ANY charges including interest...

 

Z

That's why I didn't jump on you, I gave you the benefit of the doubt:)

[m55dlc]

Lets hang fire here until we see the application form shall we? How many applications have we seen that could fly as an agreement albeit with a court order for enforcement?

 

Dave, is there any chance you can post the application form on this site? Scan it and save it in photobucket (I'm not too sure how this works, maybe someone else can give us a hand?).

 

If the application form isn't a goer, stop paying them. Pam is resident SPI (Spotter of Prescribed Items)

[m55dlc]

A quote too far...

[m55dlc]

As far as I can see it doesn't mention interest rates, it doesn't have repayment frequency and it doesn't have a credit limit, so as far as I can see it is unenforceable, but the text is a little bit hazy.

 

What was on the back? If the other bits are there the consensus of opinion is that it still is unenforceable, but I have reservations about that. Wait for Pam to comment, we all bow to the SPI

[m55dlc]

its an application form...

 

also where exactly are the financial prescribed terms... their signature..

 

gotta go

 

Z

Look at it again Z then say 'Doh!'

[m55dlc]

i have received a few application forms like this which the DCA state is their compliance of the 'executed agreement'.

 

so, is it or not?

It isn't an enforceable agreement, that is for sure. It does contain the signatures of both parties, but a number of the prescribed terms are missing. A judge cannot enforce this 'agreement'. It is an application form, but an executed one (if that makes sense). It isn't an agreement (IMO)

[m55dlc]

Humbleman

 

If there are no terms and conditions, and there isn't a signed statement of account, they haven't complied with the s77/8 request. You can either tell them of this and wait for them to send the statement and/or the T&C's, or you could go the whole hog and state as Z is advocating, that you didn't ask for the application form but wanted the actual agreement.

[m55dlc]

What have WF said in their letter? Please tell me someone.... PM me for an email address to send the letter to, many thanks

[m55dlc]

Hi,

 

Yes, that's about right. Any agreement that does not contain all of the required information will be improperly executed and enforceable by an order of the court only, and as you say, the judge will consider the prejudice caused to the debtor by the particular omissions/errors.

 

But an agreement that does not contain all of the prescribed terms, or is not signed by both parties will be totally unenforceable - the court is barred from allowing enforcement.

 

The prescribed terms are:

 

• amount of credit (not applicable to credit token agreements)

• credit limit (or a statement of how it is to be determined)

• rate of interest

• repayments

 

Regards, Pam

 

Pam, are you sure on the bit in bold? I thought that could be enforced by a judge. If you signed it and they didn't, enforceable with a court order

[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.

[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?