Credit AGREEMENT -or- APPLICATION? RBS Advantage Card

[Peterbard]

Hi

This takes a bit of thinkiing about it is something that has come up before.

If you are claiming unfair penalty charges then you would have had an account,but you have just shown that one never existed. I would be interested to see hear if their defense picked up on this.

 

Regards

Peter

[Peterbard]

HI

 

I hope you are correct.

 

Best Wishes

 

Peter

[Peterbard]

Hi

any comments on this it is from the Cancellation guide provided by the OFT as directed to by M55 Last week

The general requirement for copy documents is that one copy of the agreement

(including, if applicable, a notice of cancellation rights) must be given or sent to the

customer when the original agreement is given or sent to him for signature. A first copy

is not required where the agreement is neither presented personally nor sent to the

customer for signature – for example, a document which is also an application form that

a prospective customer picks up from a shop counter or from a leaflet dispenser.

Would appear to say an application can be an agreement and vica versa

Best regards

Petr

Regards

Peter

.

[Peterbard]

Hi

 

I think it is pretty plain that an agreement can be an application even if only due to the fact that it is happening all the time.

 

We have to remember that the agreement is not executed until both signatures are on it, so the debtor signing does not execute it unless the creditor has already signed, either in the presence of the debtor when of course no copy is sent because you will already have one. Or else to be signed and returned in which case a copy will be sent.63(2)

In the case of the agreement that is picked up or sent where you keep a copy of your unsigned agreement and send it off for the creditors signature, secton63(3) requires the creditor to send back a copy of the executed (signed agreement so that the debtor can see that it has not been altered before the creditor executed it.

 

Also although these agreements are in the strictest sense said to be uncancellable according to the OFT if the agreement says You have a short time to cancel on the front or anywhere it has to conform to the agreement and copies of document regulations as if it was.

 

This if you think about it leaves a whole new avenue for pressing unenforceability under section 127(4), as a copy doc without the creditors sig supplied under 63(3) (The only copy that has to have both sigs)would have not to been executed if not signed by the creditor. If the copy they send you under say under a 77 request was not signed by the creditor then how could the 63(3) copy thus they have not complied with section 127.

 

Bes regards

 

Peter

[Peterbard]

I am still concerned about the use of the word ALSO in this part. Doesn't this mean an application can also be an agreement. I thought the DTI/MP letter you posted Peter said it could not be both.

#

Hi

 

No It said that in response to a section 77- request an application form would not do.

 

What this is saying that an agreement can be used as an application form.

That would be executed on the creditors signature.

 

Basically if the document says agreement regulated etc on the top the creditor believes it is an agreement and if it contains all the relevant pt's and conditions it is. The only difference is who signs it first.

Since it is only executed when both sigs are on it.

If it is a document picked up from a retailer or something it becomes executed when you send it in and the creditor signs it. He then must send you a copy back in 7 days so you can check against the copy that was with the orriginal that none of the conditions have been altered.

If you are not happy you have 5 days to cancell.

If it is a distance contract you have 7 days from the day the creditor signs providing you already have a full copy of the T and Cs .

This is basically the case although there are a few minor ellements i have left out.

 

Peter

 

Peter

[Peterbard]

Hi everyone,

 

I have been ruminating over prescribed terms, specifically the total charge for credit (I should get out more, I know:eek: ) and want to raise a point for discussion, that may also prove very useful for those individuals whose agreements sadly;) conform to the CCA 1974 and Regs 1983 etc...!

 

On an agreement, lets assume it's a credit card, where the interest rate is clearly displayed, as are the charges for late pmts and going over the agreed limit. Of the many agreements I have looked at, nowhere can I find a statement to the effect that interest will be levied on said charges. This will not come as a surprise to anyone I dare say. The point is, the CCA 1974 is very specific and whilst I may seem like I'm being pedantic, if it's not in the contract, it cannot be added, but it should form part of the TCC otherwise people are being deceived. It may also provide an argument as to the enforceability of the agreement as it should be stated clearly that interest will be levied.

 

It may seem like an obvious point that interest will accrue on said charges, but the banks and c/c's don't have to add interest but they do nevertheless! Being the cynic I am as far as the banks and c/c's are concerned, I believe it is policy not to disclose this fact in the T&C's, as maybe even the hierarchy within these Companies think including it is a p*** take too far, even for them!

 

All comments welcomed and appreciated...!

 

Regards,

 

Laiste.

HI

 

This is a very interesting and under researched aspect on this thread IMHO, I am sure that behind the scenes the brains are liooking at this, i am also very interested in any comments and shall research as best I can.

 

Regards

Peter

[Peterbard]

Hi m55 and all

 

After reading your comments about s63 compliance I took another look at the whole s62/63 issue.

 

Under s62 (2) it states:

 

2) If the unexecuted agreement is sent to the debtor or hirer for his signature, a copy of it, and of any other document referred to in it, must be sent to him at the same time.

 

So - if a mailshot CC application (supposed agreement) is sent to someone, who then signs and returns it, shouldn't there be a copy of this application/'agreement' for him to keep - as per s62(2)??

 

i'e' if we accept the assertion that this document IS also an agreement, then it must be subject to s62.

 

This is what the OFT doc. on cancellable agreements says on the subject:

 

The general requirement for copy documents is that one copy of the agreement (including, if applicable, a notice of cancellation rights) must be given or sent to the customer when the original agreement is given or sent to him for signature. A first copy is not required where the agreement is neither presented personally nor sent to the customer for signature – for example, a document which is also an application form that a prospective customer picks up from a shop counter or from a leaflet dispenser.

 

So it seems that even the OFT thinks an application form can also be an agreement , but this implies that a first copy is only not required if the document is picked up by the customer.

 

Any comments?

 

Regards, Pam

 

Hi Pam

Been through this before the document referred to in the OFT gudline is an unexecuted agreement not an application for . If an agreement is signed ny the debtor it does not become executed untill it has been recieved and signed by the creditor. This is why a copy of the executed agreement hax to be sent withn seven days so the debtor can check it against the one he signed and if it differs he has the stutory cancellation period.

An application cannot be used as an agreement.

 

To my mind and not wishing to offend, this whole thrread is missleading for this reason, if the creditor says this is a credit agreement then that is what it is, it may not be properly executed, not have the correct form and content and not stand a hope in hell of being accepted in a court of law but that is for you to show.

If it says application form it is just that and no court in the land would except it as otherwise.

So the question is it an agreement or is it a contract can be answered simply as What does it say on the top.

 

Peter

 

Best regards

Peter

[Peterbard]

It is an application.. deffo

Hi

I posted this on the other thread and i think it has a bearing here it is from the OFT guidlines but ther is a more imn depth explination on the eximption regulations.

OTHER EXEMPTIONS

Regulated credit agreements for which there is no charge for credit and which satisfy the

conditions set out in the section on ‘exemption from the requirement to send a separate

notice of cancellation rights’ in the booklet Cancellable agreements (specialised types of

business such as catalogue mail order) are exempt from the requirements relating to the

disclosure of the APR and the inclusion of prescribed signature boxes and statements of

protection and remedies.

Office of Fair Trading 25

Regards

Peter

[Peterbard]

If you botherd to look at the CCA thread Mark 1 you would find what the difference is between an application form and an agreement see Peter Bards post and he has it from a goverment minister.

 

HI and thanks DH

 

I must have posted that letter half a dozen times yet the argument keeps on going.

 

Oh Well

 

Petr

[Peterbard]

HI

 

No section 61 signing of agreements, not signing of aplication forms.

The forms you send in from the petrol station are unexecuted agreements if they were applications then the company would have to send you an agreement back for you to sign,as confirmed by the OFT DTI now and on many occassions on the loan company thread over the last six months an appliction form Cannot be used as an agreement.

 

 

The quataion you have from the uncancellable agreement OFT pamphlet is only in there becaase this type of none distance contract is unenforceable because their has been no anticedent negotiations, and has nothing to do with using aplications.

 

What you are sending off is an unexecuted agreement if the creditor does not aprove it he wil not execute it by signing it section 61.

An application is an entirely differnt animal and is a request for a contract to be sent.

 

Best regards

 

Peter

[Peterbard]

HI

 

 

 

Thanks Peter

 

Just to be absolutely clear:

 

A personal Loan is applied for over the phone in May 2001.

 

Partially complete papers are sent to you - your name, address, telephone number,employment details etc., which you gave the lender over the phone.

 

It is an application form, as it clearly states this, but it also has the heading "Credit Agreement....." and it also states "whether or not the loan is granted a record of the search will be made against your file ... we search the files of one or more credit reference agencies and use an automated decision making system (credit scoring) as part of the process when assessing this application for credit."

 

You complete and sign the form which already contains all the legible and correct prescribed terms and a box for the lender to sign as well as the terms and conditions.

 

You have no face to face negotiations with the lender, as it is all done by telephone and mail contact. When you return the application form (which also states credit agreement), by post, the lender signs it.

 

You do not receive a copy of anything until some 5+ years later when you request it via a CCA letter and £1 payment and it has been signed by the lender.

 

Is it a) just an application form?

b) an application form and an agreement combined?

c) none of these? (if not, what is it?)

 

Is it 1) improperly executed?

2) totally unenforceable?

3) enforceable with a court order?

 

I am still unsure to say the least. There is no cancellation notice or section on the document.

Jay-R

The bit that says agreement is an agreement it is correctly executed if it meets the criterea discussed on here a hundred times there is nothing wrong with them sending you a application and agreement now of course they wouldn't have to because of the distance marketing regs

As for the copy yes you would recieve a copy althuogh of course their would not nesseseraly be any cancellation details on it entirely up to the lender in this cas on a none distance agreement for credit card a copy must be sent with the card or before. 63 (Something)

 

 

Regards

 

Peter

[Peterbard]

Jay-R

 

Read what the Minister says about Application forms... also consider... an Application IS precontractual particularly in the description previous... got go big bus to catch... later

 

Z

HI

Yep it is so is am unexecuted agrement but that is where the similarity ends

From a correspondance with the oft this may help.

On the other hand, if the consumer has signed a consumer credit agreement, then as you rightly point out, the Act and its Regulation require the creditor to provide the consumer with certain pre-contract information and cancellation rights in certain circumstances once the agreement is signed. For example, the Consumer Credit (Disclosure of Information) Regulations 2004, which came into force on the 31 May 2005, requires the creditor to provide pre-contractual information about the key features of prospective agreements. In addition, the Financial Services (Distance Marketing) Regulations gives the consumer cancellations rights in respect of distance contract for consumer credit (a cancellation period of at least 14 days from the time the agreement is executed); whereas the Act only provides for cancellation of those credit agreements where antecedent negotiations include oral representation made in the presence of the debtor and where the agreement is subsequently signed off trade premises. The Act allows a five day cancellation period starting from the day the customer receives either a second copy of the agreement or a separate copy of the cancellation rights. The rules in relation to agreements cancellable in this way can be found in sections 66 to 68 of the Act

I hope you find this information useful. A copy of the aforementioned regulations is available on the HMSO website at www.hmso.gov.uk and our guidance booklet and more detailed Frequently Asked Questions on them can be obtained at www.oft.gov.uk. If you have any queries on the Act and its Regulations may wish to contact your local Trading Standards Service, who may be reached at: http://www.tradingstandards.gov.uk/

Regards

Bayo Sholotan

Consumer Credit Enforcement

Markets and Projects Division

 

Peter

[Peterbard]

HI

No the bit headed application form is an application form and the bit headed agreement is an agreement.

Regards

peter

[Peterbard]

i find all this so confusing. in part i understand certain aspects of the application/agreement thing, what with prescribed terms being there and so on, but i also think that if an application form can be deemed as an agreement, then someone is a bit barmy. what is then to stop companies digging out applications for things people didnt get and claiming they agreed to something? what stops my brother or neighbour or whoever putting my name on something and signing it and sending it off. its seems so un-fraud proof... i mean, even if you do something like forget your internet password on something, they email you to make sure it is you, are they saying that a company will just take a form and thats that? im an intelligent girl, but i just cant get my head around it. if they just send out the cards, or products without some intermediary form of some sort, how come everyone isnt defrauding everyone else?

 

Hi

An application form can not be confused as an agreement because it is an application form.

You can tell the difference it will say aplication form on the top ,if they have sent you a credit token they have commited an offence under section 51 and if at a latter date you decide to challenge any debt on the card it would be unenforceable so why would they do it.

 

Peter

 

Peter

[Peterbard]

But having loan agreement as a title and referring to it as an appliction as per the quotes in my posts means that it doubles as BOTH because it's all on one A4 paper and you only sign it once. They seem inseparable.

 

If It says agreement and has space for two signatures it is an agreement the sreditor does not have to sign the other box and execute it.

 

The issue here is if when you apply for you section78 you are sent a dockument that says application form onthe top will it be enforceable and the answwer is no it will not.Beause appart from the prescribed terms the signatures the cancellation noticesthe agerreement must have one more aspect to conform to section 127 it must be an agreement.

 

127 Enforcement orders in cases of infringement

(1) In the case of an application for an enforcement order under—

(a) section 65(1)(improperly executed agreements

Not application or letter from your aunt nelly even if it signed has all the terms and copies of itself right left and center.

NOw for gods sake change the subjest.

Peter

Peter

[Peterbard]

Hi Honey - I'm HOME!!!

 

Yes, I am here to haunt you again Peter!

 

So - what about applications forms that say 'Application' on them, but have a statement in the signature box saying ' this is a Credit Agreement regulated by.......etc.'?

 

 

Also, I HAVE seen the letter from 'The Minister' about it being unacceptable to send a copy of the application form in response to a CCA s77/78 request. But if this is all there is, and it DOES contain all of the prescribed terms and is signed by the debtor, is this not the type of 'document' referred to in s127(3)?

 

3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied withunless a document(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 (whether or not in the prescribed manner).

 

 

It doesn't say 'unless an agreement'

 

Regards, Pam

 

 

 

 

 

 

GOd Pam My Eyes

 

NO it doesen't say "unless a Banana" either why should it it is in the section signing of agreements the terem document is used because it is easier than writing executed or unexecuted properly or improperly executed agreement that is all.

 

The court possibly could rule to enforce as you say and the valid questio n when i put it to the dti was," would they enforce it" the answer was no not in a month of Sundays.

 

If you go into a bank and sign an agrement when you hand it over to the manager you are in effect using it as an application but it is an agreement neverthereless even if it is not executed untill he signs it .If you go to the same bank and fill in an application and hand it over to the manager he will have you thrown out for being a twit.

 

As i keep saying the section you keep quoting from is called signing of agreements,not signing of application forms.

A properly executed agreement has the words "This agrement" in virtually every box in the agreement all the sig boxes cancellation, and whataver start with the words this agreement or have them in the text.

Aplication forms do not because they are not agreements.

 

Do you really think that a court would enforce a document that was presented as an appplication form as an agreement wouldn't it be considered to be missrepresentation wouldn't it be absurd.

I am sure their are many cases where you could present a document as one thing when it was planely something else their would be no law saying this was unacceptable, it just would be to rediculous to legislate for.

Try writng "This is a season ticket for main road" and copying all the information required for that document on the back of a bus ticket. Rediculous? yep but there is no law that says it isn't acceptable would a court accept it because it had the correct information on it, No i don't think so.They would say sorry this is a bus ticket like they would say no sorry this is an application form.

 

Regards

 

and stop shouting it's very unladylike and it hurts my eyes

 

Peter

[Peterbard]

GOd Pam My Eyes

 

NO it doesen't say "unless a Banana" either why should it it is in the section signing of agreements the terem document is used because it is easier than writing executed or unexecuted properly or improperly executed agreement that is all.

 

The court possibly could rule to enforce as you say and the valid questio n when i put it to the dti was," would they enforce it" the answer was no not in a month of Sundays.

 

If you go into a bank and sign an agrement when you hand it over to the manager you are in effect using it as an application but it is an agreement neverthereless even if it is not executed untill he signs it .If you go to the same bank and fill in an application and hand it over to the manager he will have you thrown out for being a twit.

 

As i keep saying the section you keep quoting from is called signing of agreements,not signing of application forms.

A properly executed agreement has the words "This agrement" in virtually every box in the agreement all the sig boxes cancellation, and whataver start with the words this agreement or have them in the text.

Aplication forms do not because they are not agreements.

 

Do you really think that a court would enforce a document that was presented as an appplication form as an agreement wouldn't it be considered to be missrepresentation wouldn't it be absurd.

I am sure their are many cases where you could present a document as one thing when it was planely something else their would be no law saying this was unacceptable, it just would be to rediculous to legislate for.

Try writng "This is a season ticket for main road" and copying all the information required for that document on the back of a bus ticket. Rediculous? yep but there is no law that says it isn't acceptable would a court accept it because it had the correct information on it, No i don't think so.They would say sorry this is a bus ticket like they would say no sorry this is an application form.

 

Regards

 

and stop shouting it's very unladylike and it hurts my eyes

 

Peter

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

[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.

[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

[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

[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

[Peterbard]

Hi

Sorry i did not get back to you i have been a bit crook ok now though.

Firstly did you arder a new card and was the previous one cancelled or the account closed.

REg 7 states

7.--(1) The provisions of these Regulations shall apply to modifying

agreements which vary or supplement earlier credit agreements or earlier hire

agreements and which are, or are treated under section 82(3) of the Act as,

regulated agreements, subject as hereinafter mentioned.

(2) Subject to paragraphs (3) and (12) below, documents embodying

modifying agreements varying or supplementing earlier credit agreements shall

contain the information set out in Column 2 of Part I of Schedule 8 to these

Regulations in so far as it relates to the type of modifying agreement referred to in Column 1.

The information required therfor should include but not be a exhaustive list:

Title

 

Agreement modifying a Credit Agreement and

regulated by the Consumer Credit Act 1974

And all of the following.

(2) Where the document

The varied credit limit under the modified agreement

expressed as--

(a) a sum of money;

(b) a statement that the credit limit will be determined

by the creditor from time to time under

that agreement and that notice of it will be given

by him to the debtor;

© a sum of money together with a statement that

the creditor may vary the credit limit to such sum

as he may from time to time determine under that

agreement and that notice of it will be given by

him to the debtor; or

(d) in a case not falling within head (a), (b) or ©

above, either a statement indicating the manner

in which the credit limit will be determined and

that notice of it will be given by the creditor to

the debtor or a statement indicating that there is

no credit limit.

(1) The varied or supplemented rate of any interest

on the credit to be provided under the modified

agreement or a statement that the rate of interest under

the earlier agreement is unchanged.

(2) The total amount of other charges included in the

total charge for credit in relation to the credit to be

provided under the modified agreement, except that,

where any such charge cannot be stated as an amount,

wthheicrhateitomf athyebcehacraglceuloartetdhe afnodrmtuhlea tointaalcacmoroduanntceofwtihthe

other such charges shall be shown separately.

Total chargefor credit, rate of interest, etc

. (1) The varied or supplemented rate of any interest

on the credit to be provided under the modified

agreement or a statement that the rate of interest under

the earlier agreement is unchanged.

(2) The total amount of other charges included in the

total charge for credit in relation to the credit to be

provided under the modified agreement, except that,

where any such charge cannot be stated as an amount,

wthheicrhateitomf athyebcehacraglceuloartetdhe afnodrmtuhlea tointaalcacmoroduanntceofwtihthe

other such charges shall be shown separately.

The timing of repayments to be made under the

(i) the amount of the credit to be provided modified agreement expressed by reference to one or

suunmdercreadnit eisarvliaerriedagoreresmupepnltemfoenr tefdix;ed- mo(are) othfethdeatfeoslIoonwiwngh-ich each repayment is to be made;

(ii) the repayment provisions of an earlier (b) the frequency and number of the repayments and

agreement for fixed-sum or for running- the date of the first repayment or a statement

account credit are varied or supple- indicating the manner in which that date will be

mented; or determined;

(iii) any char~e included in the total charge © a statement indicating the manner in which the

for credit in relation to an earlier dates of the repayments will be determined.

The amount of each repayment to be made under the

paragraph 11 but not falling within paragraph modified agreement expressed as-

13. (a) a sum of money;

(b) a specified proportion of a specified amount

(including the amount outstanding from time to

time);

© a combination of heads (a) and (b) above; or

(d) in a case where the amount of any repayment

cannot be expressed in accordance with head (a),

(b) or © above, a statement indicating the

manner in which the amount will be determined.

 

Sorry about the length but i think they need reminding they can't just say sectio 7 without backing it up with the correct info.

 

More importantly if the card they sent was a replacement card under the same agreement then the above applies if the card they sent was unrequested and you had terminated the agreement or it was in default due to none compliance to your earlier request then you have cause for action under section 51 Prohibition of unsolicited credit-tokens.

 

Best regards

Peter