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

[InKogneeToh]

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

[progenic7]

almost didnt want to look at the posts on this thread again as i feared i may have started something.

so i'll just sit back and watch quietly as things unfold.

[zubo]

almost didnt want to look at the posts on this thread again as i feared i may have started something.

so i'll just sit back and watch quietly as things unfold.

 

pro7 - don't be silly - your contribution is always valued

 

Z

[diskmandave]

I think i've opened a can of worms here!

 

It's gone completely over my head now

 

I did ask in my letter to TS about the length of time between the 2 dates but for whatever reason they chose not to answer. Someone else raised the point that I wouldn't have been waiting that long for the card, and no, I don't think I did wait anywhere near that long for it. I was only ever issued the original card though, no replacements as I had an accident the year after which is where things started to go wrong for me.

 

Watching with interest Dave.

[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)

[diskmandave]

Thanks everyone, I was going to let this lie but when I stopped paying LTSB (no agreement), my building society accidently took off Mint's payment as well (same date, same £ amount). I only found this out today when I got monthly statement from YBS. I'll collate a letter out of all the replies here and post it up as soon as RBoS start moaning about non-payment.

 

Here's what Trading Standards said about the agreement they sent me...

 

 

Breif and to the point given the full page query I sent them!

 

 

Thanks again everybody

 

Regards, Dave.

 

[Seahorse]

From that reply, I don't think they really have a scooby WHAT constitutes a correctly executed agreement. And are hoping you don't either.

[diskmandave]

 

The person whos name is on the bottom is the team leader as well!

[ncf355]

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)

 

 

Hmmm

 

63(4) eh?

 

m55dlc....goooooooooooooood!

 

The ammo just keep growing, and apparently theyve all been on hyperdrive with phone calls today (I work away) so as McD say, "I'm loving it"

 

[diskmandave]

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)

 

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.

[jan2002]

I sent cca request to lowell, I recieved in reply the easy application form 6062

for capital one credit card, run of the mill application, but at the bottom

is this..

 

CREDIT CARD AGREEMENT REGULATED BY THE CONSUMER CREDIT ACT 1974

You wish to apply for a Capital One Credit Card and PIN. You confirm that all the information you have given is true and complete. You understand that this information will be checked with fraud prevention agencies and if you give us false or inaccurate information and we suspect fraud we will record this. You authorise Capital One to search the files of any credit reference agency for your application and to help us manage your account. The credit reference agencies will record details of Capital One's search and your application. Information held about you by the credit reference agencies may already be linked to records relating to one or more people with whom you have a financial association. For any searches Capital One makes you may be treated as linked to them and you will be assessed with reference to their records. We may also add to your record with credit reference agencies details of how you conduct your Capital One account (including defaults).

 

Capital One and other organisations may use and search these records about you and those to whom you are financially linked to:

- help make decisions about credit and credit related services such as insurance for you or members of your household,

- trace debtors, recover debt, prevent fraud and to manage your accounts,

- check your identity to prevent money laundering, unless we are satisfied about your identity.

 

Fraud prevention agency records will also be shared with other organisations to manage insurance policies and help make decisions on motor, household, credit, life and other insurance proposals and insurance claims for you and members of your household. The credit reference agencies and fraud prevention agencies will also use the records for statistical analysis about credit and fraud.

 

You have read the terms and conditions setting out the agreement with Capital One and, if your application is accepted, you agree to be bound by these terms and conditions, as amended from time to time. You are over 18 years of age.

 

CREDIT SCORING. Capital One uses a technique known as 'credit scoring' in deciding whether to open an account in your name and if so, what credit limit you will be given. Capital One will also use this technique throughout the life of your Agreement to assess your credit limit and the interest rate and other charges to be applied to your account, all of which may be varied.

 

YOUR INFORMATION: Important please read 'use of information' (section 1 of the Agreement) which sets out how your information will be used. Capital One will retain information provided by you on computer. By signing this application, you agree that information about you may be used like this, regardless of whether or not your application is accepted.

 

To my way of thinking this is just cap one telling us how they are going to use the info provided and how they will use the info to assess your application

so surely this isn't the credit agreement requested.is it ?

 

jjen

[MinnieMouser]

You have read the terms and conditions setting out the agreement with Capital One and, if your application is accepted, you agree to be bound by these terms and conditions, as amended from time to time. You are over 18 years of age.

 

 

jjen

 

Just to throw something into the mix here for the more legal minded - wouldn't contract law enable them to say that an application form becomes the agreement upon acceptance? Of course, providing that the rest of the form complies with the CCA.

 

MM

[Guest Battleaxe]

jjen, yours has more than mine but I got terms and conditions on seperate piece of paper, I have just looked at it and I am sure in 2000 their unlawful charges were not £12.00 each and the foreign currency conversion fee of 2.75%.

 

So the terms and conditions they sent me are not the original terms and conditions, here is the copy they sent me of my agreement

 

[InKogneeToh]

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

 

From the OFT doc:

 

In the case of credit-token agreements, the second copy agreement may be sent by post to the customer before or with the credit token, rather than within seven days of the

making of the agreement. Similarly, the separate notice of cancellation rights may be sent by post before or with the credit token, rather than within seven days of the

agreement being made.

 

I assume this is because until the customer receives the credit card and starts using it he will have no liability under the agreement anyway so it's not so crucial that he should be sent the 2nd copy and cancellation notice within 7 days of the agreement becoming executed.

 

Hope this helps.

 

Regards, Pam

[zubo]

Just to throw something into the mix here for the more legal minded - wouldn't contract law enable them to say that an application form becomes the agreement upon acceptance? Of course, providing that the rest of the form complies with the CCA.

 

MM

 

Minnie

 

No, the Act clearly states that the agreement must have particular form and content - the prescribed terms. The application is pre-contractual and demonstrates an interest in entering into the agreement. But the Act then specifies exactly how the resulting agreement should be presented and that it should be signed by both parties to the agreement. It is this step which so often is missed and this final step provides the true copy of the executed agreement along with any other documents referred to in the agreement.

 

And to answer the other question -

 

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.

means that providing the true copy of the executed agreement and documents as specified in the Act is sent either before you receive the credit card or is sent with the credit card then they do not need to supply these within seven days. The consequence of failing to supply the agreement is that they are in default from the receipt of the credit card and cannot enforce the agreement - meaning that they cannot make any interest or other charges - until such time as they supply the true copy of the agreement.

Then, there are some conditions where they either cannot enforce the debt at all under other conditions it can only be enforced by a court.

 

The Consumer Credit Act is very precise.

 

Z

[InKogneeToh]

The consequence of failing to supply the agreement is that they are in default from the receipt of the credit card and cannot enforce the agreement - meaning that they cannot make any interest or other charges

 

Hi Zubo

 

It has not been established that where a creditor cannot enforce an agreement he also cannot charge interest - this is only an assumption at the moment until tested in court.

 

All legal interpretations of the meaning of 'enforce' that I have seen so far in this context have indicated that it means to sue, repossess goods, or take the value of any security - i.e. to force repayment of the loan.

 

Regards, Pam

[MinnieMouser]

Thanks for clearing that up for me. So the majority of these so-called agreements (that is when it's just an application form) that people are receiving via a CCA request are not enforceable?

 

I'm just trying to know where I stand as I'm about to send off a bundle of CCA requests and fully expect to receive a bundle of application forms in return.

 

MM

[InKogneeToh]

Thanks for clearing that up for me. So the majority of these so-called agreements (that is when it's just an application form) that people are receiving via a CCA request are not enforceable?

 

I'm just trying to know where I stand as I'm about to send off a bundle of CCA requests and fully expect to receive a bundle of application forms in return.

 

MM

 

Hi

 

 

An agreement that does not contain all of the prescribed terms is totally unenforceable (this will not apply to any agreements made after April 2007 as the CCA has been amended).

 

An agreement that lacks other required terms and /or statutory statements of your rights will be improperly executed and unenforceable without an order of the court.

 

Regards, Pam

[MinnieMouser]

Thanks for all the help/info. I'm still a bit confuzzled but will grasp it all in time in regards to the items that make an agreement totally unenforceable versus one that is just improperly executed and therefore requires a court order to enforce.

 

MM

[zubo]

Hi Zubo

 

It has not been established that where a creditor cannot enforce an agreement he also cannot charge interest - this is only an assumption at the moment until tested in court.

 

All legal interpretations of the meaning of 'enforce' that I have seen so far in this context have indicated that it means to sue, repossess goods, or take the value of any security - i.e. to force repayment of the loan.

 

Regards, Pam

 

Thanks Pam, that is correct - we have not tested that yet.

I musnt give folk the wrong idea - it is uncharted territory which we need to frame more convincingly. There is some interesting case law which begins to provide us with a framework - spotted it in an obscure thread - too late now to look - I cannot hack the late nights as well as you especially as I've been up since 3:00 yesterday morning...

 

Z

[InKogneeToh]

Thanks Pam, that is correct - we have not tested that yet.

I musnt give folk the wrong idea - it is uncharted territory which we need to frame more convincingly. There is some interesting case law which begins to provide us with a framework - spotted it in an obscure thread - too late now to look - I cannot hack the late nights as well as you especially as I've been up since 3:00 yesterday morning...

 

Z

 

Hi

 

I would be interested in any case law you can find - after you're beauty sleep of course!

 

Regards, Pam

[InKogneeToh]

Thanks for all the help/info. I'm still a bit confuzzled but will grasp it all in time in regards to the items that make an agreement totally unenforceable versus one that is just improperly executed and therefore requires a court order to enforce.

 

MM

 

Hi Minnie

 

If you want to be REALLY confuzzled you should read the 200+ post thread entitled 'Consumer Credit Agreements'.

 

But in the short term just shout and we'll try to answer your questions.

 

Regards, Pam

[MinnieMouser]

Oh yes that thread... the one that proves the more you know the less you know paradox

[toddle2u]

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