Credit AGREEMENT -or- APPLICATION? RBS Advantage Card

[sequenci]

I think one of the arguements i'm going to use when I get the inevitable where's our money letter from RBoS is that the "agreement" is "executed" nearly 3 full months after they sent the card out........

 

Any more thoughts...?

 

just investigating this

 

edit: who's signature was on the agreement first?

[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

[rinkydinkydoo]

Is it an application or an agreement?

[Guest willowb]

When the company sends you an application form, this isn't an 'offer' made by them to you it is merely and invitation for you to 'offer'. If the prescribed terms and conditions, rates etc etc are not included in that application form (which they have 'set out, instigated') then when it is 'accepted' (approved) by the company then how does that make an agreement?

 

Do you see what I am getting at? it's like handing someone on the street a piece of paper with with the heading 'CCA etc etc' on the the top, getting them to sign it, stamping it, giving them X amount of money and then saying "right! you owe me £XXX at XXXapr for whatever amount of years!" and walking away.....it just doesn't add up!

 

sorry, 2 glasses of wine and I'm either brilliant or benal:confused:

 

imo Wxxx

well actually, never brilliant just benal *hiccup*

[diskmandave]

Welcome willow

 

We're at the reply with arguements stage with this now!

 

Bullet points please!

[progenic7]

On the point of applications, sorry for being a bit slow here, but we only ever actually sign the application form (which im told is not the agreement). We do not actually sign anything else, so in that case how can anything other then the application form be a executed agreement, if to be so would need signatures from both parties on it ?

 

I dont get it, i have the original application, which is signed by myself and the other side, and everyone says thats not the agreement. Then i have the agreement, but that has no signatures on it.

 

So whats the score here ?

[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

[joneshousehold]

I think the difficulty here is that we are a bit split on whether an application is an agreement. I don't think it's clear cut and I hoped we could try to examine the arguments on this thread.

 

I have mentioned a few times about Section 59 which I think suggests an application cannot be an agreement. I appreciate I may be wrong but I would like to see some debate on it so that the reasons why can be explored. Equally I may be right and it really would be useful to get the whole subject opened up to examination just to see where it takes us. Anyone?

[pmhcfc]

 

I have enlarged mine from Capital One it is the same as posted. I posted my original agreement on this thread and it is identical.

 

Can I point out the forth line here please, it says; "In the event that my aplication is accepted" ...This is an application form...what's to say that your application ever got accepted....and if it did , what were the terms etc of that agreement? Besides of which, have you seen the thickness of the pen that the Cap1 person has used!! If that's not a photo copy of a signature (in the very first instance) then I dont know what is....I'm not digging at anyone here (least of all you battleaxe) just pointing out something to anyone who's not sure

[diskmandave]

Can I point out the forth line here please, it says; "In the event that my aplication is accepted" ...This is an application form...what's to say that your application ever got accepted....and if it did , what were the terms etc of that agreement? Besides of which, have you seen the thickness of the pen that the Cap1 person has used!! If that's not a photo copy of a signature (in the very first instance) then I dont know what is.

 

This is geting good!

[joneshousehold]

Here's an interesting observation on the agreement vs application form argument. I have found this in the OFT guidelines for cancellable agreements (page 34)

The court cannot order enforcement where an agreement – even one in the proper form – was not signed by the customer. However, provided that the customer has signed some sort of document containing details of the amount of credit (or the credit limit), the rate of interest (if appropriate) and of the repayments, it can be enforced in some circumstances. If the court makes an order regarding such an agreement, it can direct that any term not

included in that document shall have no effect. In short, a faulty document can in some circumstances be enforceable, but an unwritten agreement can never be enforceable under the Act.

This is to do with enforcement of an agreement. I wonder if the industry have taken this to mean that if the debtor signs the application and it contains the details stated then it can enforce an agreement produced later when the application is processed. The guidelines do say the agreement can be enforced in some circumstances but do not say what those circumstances are other than to say any terms (and that will be most of them!) not in the document can have no effect. That will include in most cases the term allowing the creditor to vary the agreement.

 

The standard terms and conditions alone will still not be adequate as an agreement as they do not show the name and address of both the creditor and the debtor.

[payingonlyencouragesthem]

It's illuminating that nobody has actually tested this in court yet. It looks as though the DCA's aren't too keen on relying on the application form to obtain a CCJ.

[InKogneeToh]

Here's an interesting observation on the agreement vs application form argument. I have found this in the OFT guidelines for cancellable agreements (page 34)

 

This is to do with enforcement of an agreement. I wonder if the industry have taken this to mean that if the debtor signs the agreement and it contains the details stated then it can enforce an agreement produced later when the application is processed. The guidelines do say the agreement can be enforced in some circumstances but do not say what those circumstances are other than to say any terms (and that will be most of them!) not in the document can have no effect. That will include in most cases the term allowing the creditor to vary the agreement.

 

The standard terms and conditions alone will still not be adequate as an agreement as they do not show the name and address of both the creditor and the debtor.

 

Hi

 

I don't see how a creditor would ever be entitled to enforce any subsequent agreement made after the application (pseudo agreement) is signed unless he gets your signature on this also plus why would one be needed anyway if the application contained all of the requirements?

 

If the application form is correctly signed and contains all of the prescribed terms then I think a judge will be likely to grant an enforcement order, subject of course to his discretion to exclude any terms not included, and/or reduce or discharge any of the sum payable. This will depend on the degree of prejudice caused to the borrower by the specific errors/omissions.

 

Regards, Pam

[zubo]

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

 

No, we keep disagreeing on this, an application even with everything on it is still an Application and requires the Agreement. A great recent example has just come to light: I have not posted onto my Amex thread, but all I had from Amex was my original Amex application. I rejected it and complained about many of their one sided processes. Anyway, they finally gave me a response to my complaints and how they assessed me etc etc and anyway, its all there in the attached T&C which you agreed to.

Guess what they sent me?

A 13 page document headed CREDIT CARD AGREEMENT REGULATED BY THE CONSUMER CREDIT ACT 1974.

Brilliant... This IS a CCA Agreement it has everything in it except....

I havent seen this, its not got my signature dates nor their signature dated.

This is priceless to me, it proves what I have said. The application is just that (certainly now I know for Amex) - it is pre-contractual - the executed document follows after - mine is unsigned by me, it is completely unenforceable.

 

Z

[Guest Battleaxe]

Can I point out the forth line here please, it says; "In the event that my aplication is accepted" ...This is an application form...what's to say that your application ever got accepted....and if it did , what were the terms etc of that agreement? Besides of which, have you seen the thickness of the pen that the Cap1 person has used!! If that's not a photo copy of a signature (in the very first instance) then I dont know what is....I'm not digging at anyone here (least of all you battleaxe) just pointing out something to anyone who's not sure

 

I had noticed that ages ago and this is why Crap One are going down big time and the fools sent me T & C's stating £12 for all charges, so they are not the original T & C's. they have slipped up BIG time and this is why they are going to be hit hard next week for unlawful charges with CI and then an N1 for Section85 and I amclaiming CI on that also.

[InKogneeToh]

No, we keep disagreeing on this, an application even with everything on it is still an Application and requires the Agreement. A great recent example has just come to light: I have not posted onto my Amex thread, but all I had from Amex was my original Amex application. I rejected it and complained about many of their one sided processes. Anyway, they finally gave me a response to my complaints and how they assessed me etc etc and anyway, its all there in the attached T&C which you agreed to.

Guess what they sent me?

A 13 page document headed CREDIT CARD AGREEMENT REGULATED BY THE CONSUMER CREDIT ACT 1974.

Brilliant... This IS a CCA Agreement it has everything in it except....

I havent seen this, its not got my signature dates nor their signature dated.

This is priceless to me, it proves what I have said. The application is just that (certainly now I know for Amex) - it is pre-contractual - the executed document follows after - mine is unsigned by me, it is completely unenforceable.

 

Z

 

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!!

 

 

 

Regards, Pam

[zubo]

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!!

 

 

 

Regards, Pam

 

I know Pam, it really depends on the judge. I think I now am safe with Amex because I can demonstrate that the application precedes the agreement.

This section when I read it seemed to have simply been put together and does not fit the preciseness of the rest of the Act. IF I ever had to contest that then I would argue that this was not the intention of the Act to be interpreted that way because of other precise requirements which it contradicts.

 

Z

[progenic7]

I have noticed that on alot of application forms as i have been paying attention just lately it often does say that once, upon signing of this form it then becomes an agreement between the parties, and upon final checking of the other party and ultimatly stamping it with their seal of approval, that is then the official agreement.

 

To be honest guys i think you are barking up the wrong tree here, at the end of the day i really cant see a judge reasoning things any differently, the terms are there, its dated, signed, it has a limit on it.

Of course the proof of the pudding will be in the eating so i suggest that someone stops procrastinating and takes one of them to court over this, and see where the land lays.

 

my odds are 4/1 against

[InKogneeToh]

I have noticed that on alot of application forms as i have been paying attention just lately it often does say that once, upon signing of this form it then becomes an agreement between the parties, and upon final checking of the other party and ultimatly stamping it with their seal of approval, that is then the official agreement.

 

To be honest guys i think you are barking up the wrong tree here, at the end of the day i really cant see a judge reasoning things any differently, the terms are there, its dated, signed, it has a limit on it.

Of course the proof of the pudding will be in the eating so i suggest that someone stops procrastinating and takes one of them to court over this, and see where the land lays.

 

my odds are 4/1 against

 

Hi

 

I wouldn't bother taking them to court. I would just write and tell them to 'put up or shut up' and then wait for them to start proceedings - if they dare (so they will incur the court costs not you) - unless, of course, they are driving you mad , in which case it would be worth getting it sorted, one way or the other!

 

Regards, Pam

[progenic7]

Pam,

 

is this something you have already done yourself ?

[progenic7]

ok heres the pics of what i have from MBNA an application and an agreement, what are your thoughts ? http://www.consumeractiongroup.co.uk/forum/general/75615-cca-application-agreement-copy.html#post659209

 

 

Johnny

[InKogneeToh]

Pam,

 

is this something you have already done yourself ?

 

Hi

 

I took a creditor to court in 2004 to have an agreement declared totally unenforceable under CCA s127(4).

 

The reason why I started proceedings against them was because of constant harassment, including phoning my neighbours with messages to pass to us!

 

If you are not being harassed to this extent and can put up with/ignore what they are doing in your own case then depending on what the actual situation is with respect to the agreement I would let them make the first move.

 

Regards, Pam

[progenic7]

pam,

 

yeah well to be honest im not getting any grief at all, infact i kind of wish i was, as my life is soooooooooooooooooooooooooooooooooooooooooooooo

very quiet at the moment it would be good to have a bit of grief

 

well not really but you know what i mean, but no im not getting any trouble from anyone, so i guess i'll just leave it then huh.

 

Johnny

[InKogneeToh]

pam,

 

yeah well to be honest im not getting any grief at all, infact i kind of wish i was, as my life is soooooooooooooooooooooooooooooooooooooooooooooo

very quiet at the moment it would be good to have a bit of grief

 

well not really but you know what i mean, but no im not getting any trouble from anyone, so i guess i'll just leave it then huh.

 

Johnny

 

Hi

 

Yes if it's the MBNA one you are refering to they haven't got a hope in hell's chance of enforcing it anyway IMO. The only document you signed does not contain any of the prescribed terms and conditions!

 

So silence really is golden sometimes!

 

Regards, Pam