Credit AGREEMENT -or- APPLICATION? RBS Advantage Card

[diskmandave]

Can't wait for RBoS to moan about non payment!

[joneshousehold]

Pam are you interpreting S127(3) as saying

 

...whether or not in the prescribed form....and

...whether or not complying with the regulations under S60(1)

I read it to say the first of the above but the second to say it must still comply with S60(1). As it is not wholly clear and the Act is basically set up to protect the consumer, then the more generous interpretation is appropriate as it is in line with the intention of the Act (this is a reflection of Mrs Wilson's cases I think)

 

So to comply with the regulations of S60(1) that document signed by the debtor would need

a) the rights and duties conferred or imposed - I read this to mean all the terms & conditions (plus the rights under the Act?)

b) the amount and rate of the total charge for credit - which would be your points 1, 2 & 3 in post number 117

c) the protections and remedies available under the Act - this includes all the boxes that state YOUR RIGHTS etc (perhaps not necessarily in boxes or in places stipulated)

d) any other matters the Sec of State thinks desirable - so anything in the later regs

 

I would also try and argue that the phrase '...itself containing all the prescribed terms of the agreement...' means there must be all the terms where they are prescribed by regulations.

 

I believe this may mean that the document signed by the debtor must have more than your list. I am interested in your thoughts on this.

[joneshousehold]

Mind you when I look at it again I see the phrase is 'whether or not in the prescribed form and complying with regulations under S60(1)..' whereas if it meant what I thought it did it would say 'but' or 'whilst' instead of 'and' between prescribed form and complying.

 

However it does go on to say 'itself containing all the prescribed terms' which per the definitions prescribed terms means those in the regulations.

[InKogneeToh]

Mind you when I look at it again I see the phrase is 'whether or not in the prescribed form and complying with regulations under S60(1)..' whereas if it meant what I thought it did it would say 'but' or 'whilst' instead of 'and' between prescribed form and complying.

 

However it does go on to say 'itself containing all the prescribed terms' which per the definitions prescribed terms means those in the regulations.

 

Hi

 

Yes, if you exclude all the text in brackets it reads:

 

....unless a document itself containing all the prescribed terms of the agreement was signed by the debtor or hirer.

 

Of course the more serious the omissions the more likely it is that the court would either refuse an enforcement order or vary or discharge some/all of the debtor's obligations.

 

If anyone gets to court with an improperly executed agreement that would fall into this 'discretion' category it is essential that they remind the judge that the CCA must be read and applied in favour of the debtor (a lot of county court judges have little/no experience of the CCA's complexities or the statutory intent).

 

Regards, Pam

[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****

[joneshousehold]

Peter, I can't seem to get the link to work. It just redirects me to the forum home page. Can you tell me the post number in the thread so I can look it up

 

Thanks

[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

[InKogneeToh]

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

 

Hi Peter

 

If this heading or any other required terms (other than prescribed terms) are omitted from the document it is improperly executed and enforceable only on a court order, NOT unenforceable!

 

This is then where the judge's discretion comes in - to allow enforcement or not, or to vary the agreement, depending on what has been omitted.

 

Regards, Pam

[joneshousehold]

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.

[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

[joneshousehold]

I think the whole of the CCA suggests some header of some sort and these regulations change the wording but still require the header.

From an application form point, most I have seen do include the header. Many errors are in the other parts such as cancellation rights, credit limits, timing of repayments etc.

I am not sure however that I am clear as to whether a judge can or would consider an application is an agreement or acts as a signed document just because it has a header on it.

Sorry if I am missing something, are you referring to a particular agreement that doesn't have the header?

[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

[joneshousehold]

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.

[InKogneeToh]

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.

 

Hi

 

This application v agreement phenomena is, I think, exclusively confined to credit token agreements.

 

So - if you signed any 'document' that would not become an executed agreement until the lender had credit scored you and signed the 'document', you would be under no risk whatsoever IMO - because you would never receive the credit token if you were refused credit and so could not make any purchases or withdraw cash. If the lender tried to invent transactions these would be traceable (or rather NOT). I can't see any lender trying this on!! :o

 

Regards, Pam

[InKogneeToh]

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

 

Firstly, my name is not 'Typo'!

 

I assume the question you are referring to is:

 

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.

 

I have not said that an agreement need not have this heading! Of course it 'should' have this heading, along with numerous other required contents.

 

What I am saying is that s127(3) gives the court discretion to enforce any document, in any form and with any omissions PROVIDED THAT it contains all of the prescribed terms and the debtors signature, as a minimum.

 

Whether or not the court would allow enforcement, in part or in full, will depend on the particular errors/omissions and the degree to which they prejudice the borrower.

 

This is what the Act provides, but you can challenge it if you feel lucky!

 

 

Regards, Pam

[progenic7]

BTW is there anybody currently in the process of challenging the CCA in court ?

 

would be really interested to see how that turns out, it could well set the precident

[diskmandave]

Just going back to the original reason for this post , RBoS have still not sent me the standard, "we're missing your payment letter"!

 

Of course, i'll scan & post if they do, BUT... It's all gone quiet!!!

[ncf355]

BTW is there anybody currently in the process of challenging the CCA in court ?

 

would be really interested to see how that turns out, it could well set the precident

 

Hi,

 

I'm giving it a go this week (wont say who for now, MIB) but as pointed out before, no precedent can be set in small claims, needs to go higher

 

TBH, I don't think it will get to court, if the CCP have got any sense they'll settle before that happens because the response to my S78 would look like a very bad joke (gone badly wrong, in a bad way) to the court

 

I'm taking an approach to the whole thing that I believe is very fair, should it work out I'll broadcast it

[redsue]

just subscribing - reading with great interest

[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