A&L Cards and Tessera (Rockwell)

[tifo]

Hi,

 

I've received a copies of the application forms from Rockwell for two A&L accounts they have. These were sent after a CCA 1974 s.78 request, after the default and offence dates.

 

Each copy is almost unreadable and A&L have not signed either at the time in 2000.

 

Can someone please advice if this constitutes an executed agreement as it depends on what action i now take.

 

Scanned copies below.

 

DIAMOND CARD

 

 

MONEYBACK CARD

 

[ODC]

Im no expert but without their signatures these would appear to be worthless (to the DCA anyway) Worth a lot to you though epecially if they turn up later with a signature on them

[InKogneeToh]

Hi Tifo

 

Can you read anything at all in the 'customer declaration' sections of these documents? At least can you make out any reference to the credit limit, interest rate or repayment terms?

 

If these sections do not contain any of these prescribed terms then the docs are totally unenforceable. If there is reference to your agreement to their terms and conditions in this section then this does not absolve them from not showing the prescribed terms on the signature doc.

 

At the very least the docs. would only be enforceable with a court order as there are no lenders sigs.

 

Regards, Pam

[tifo]

Thanks ODC. Yes, it would be impossible for them to turn up later with a signature now ....

 

Pam, I can read as much as you can on these images. The text is unreadable. I doubt there would be any references to credit limit or repayments as it is only an application form. They have also stamped the date over the text in the customer declaration part so some of it becomes unreadable anyway.

 

However, i am concerned as to what A&L would be able to do and can they still enforce the agreement? This is only if Tessera send the accounts back (like many DCA's say they do) but i assume that once A&L sold these they would not take them back many years later as that makes no business sense?

 

As the accounts would become unenforceable with the DCA, would they have to write them off? The two accounts are over £5,000 in total.

 

If they decide to take me to court, they would have to answer the CCA 1974 s.78 non-compliance and try to show an unreadable application form with no signature from the creditor. But, taking into account these things, would they risk court action if i refuse to pay them anything now?

 

When does a document become totally uneforceable even with court action? I would have thought no signature makes it so.

 

However, what concerns me is that A&L may have the actual agreement they sent me when i was successful with these applications and that may have all the required terms and signatures. But, that is what the DCA is meant to send me as part of the CCA request. If they haven't, does this mean there is none?

[InKogneeToh]

Hi Tifo

 

I assume that these docs were sent in response to your CCA request. They appear to be actual copies of original docs rather than the 'copies' that creditors may send under that section where both signatures/borrower's name and address etc. may be omitted from the copy.

 

So assuming that these are true copies of the actual pieces of paper that you signed, and assuming that they DO NOT contain all of the prescribed terms (credit limit/interest rate/repayment details) then they are totally unenforceable under 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 with (unless 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).

 

The part in blue will not apply to these docs unless the prescribed terms are there (have you checked the small print carefully?)

 

Regards, Pam

[tifo]

Thanks Pam,

 

Again i say i cannot check the 'small print' because there is nothing i can read, as you can see on the scanned images. I did this so that other members would see what i got rather than try and explain it.

 

This is a true copy of the application form so would not normally contain a credit limit etc. as that is all sent afterwards. My concern is that i may receive that sometime in the future. But, i also think if they could get it they would have done so now.

 

By your thinking, these are totally unenforceable and i should give the good news (for me) to Rockwell? Then wait and see what they say.

 

The compliment slip said 'please find enclosed the agreements you requested and we are still awaiting the statements, which will be sent to you when we receive them'.

 

I don't need the statements from A&L as i have them all filed away, but i did ask for a statement of account from Rockwell so i know how much i've paid and the purchase and current balance. Also, no Deed of Assignment or anything to that effect.

[InKogneeToh]

Hi

 

I understand you can't actually read the whole section but it is possible to make out the shape of many of the words and/or individual letters - I can make some of them out from the scan. Each statement in the declaration sections is numbered so you need to look very closely and see if you can make out any words that might be 'credit limit', 'interest rate' or 'payment/repayment'.

 

The credit limit does not have to be expressed as a sum of money - it is acceptable to have a statement showing how the limit will be determined and when it will be notified to you.

 

The only way you can be 100% sure that the original docs. are totally unenforceable is if you cannot see any word/word shape that could possibly be construed as being any of those above.

 

P.S - try a magnifying glass!

 

Regards, Pam

[tifo]

Thanks.

 

I really think as it stands it is unreadable. I will try and see what i can read but i doubt i can make a complete sentence referring to a credit limit, repayment and interest rates.

 

I think we can safely assume that is is 95% unenforceable and the remaining 5% is the doubt that they may produce something better.

 

Anyway, i will write to them this week and say this is not an executed agreement as it is not signed by the creditor and as they have not provided any other proof, they should remove all defaults, return all money paid and provide compensation for unlawful data processing, or i may be forced to take them to court to comply.

 

Do you think a judge would use a magnifying glass and should i take one with me just in case?

[InKogneeToh]

 

 

Do you think a judge would use a magnifying glass and should i take one with me just in case?

 

:lol: Well, you never know, they're a strange bunch!!

 

Good luck with your letter anyway - I think your chances are pretty good, considering!

 

Regards, Pam

[tifo]

Thanks again.

 

I don't think they're too strange. Apart from one guy, i've found them to be very fair and understanding and actively help the 'layman' in terms of the right questions.

 

Lets wait and see what they say.

[ODC]

Ok so it might be unreadable on the fax/scan they sent you but if they brought the original document to court then it would be legible.

 

On that point can anyone tell me do the DCAs have to produce the original document in court to prove a contested case

[tifo]

Ok so it might be unreadable on the fax/scan they sent you but if they brought the original document to court then it would be legible.

 

Yes, exactly my point.

 

But, they are meant to send me a true copy of the document, so what i get should be what they have. Otherwise it is not a true to the original.

 

Anyway, it still won't have their signature on unless they now sign it but that means fraud. Therefore it has not been executed properly.

[ODC]

Yes, exactly my point.

 

But, they are meant to send me a true copy of the document, so what i get should be what they have. Otherwise it is not a true to the original.

 

Anyway, it still won't have their signature on unless they now sign it but that means fraud. Therefore it has not been executed properly.

Exactly. You now appear to have them by the nuts.

 

 

Now take a deep breath

 

 

 

 

 

 

 

 

 

 

 

 

and squeeze them hard:D

[tifo]

Exactly. You now appear to have them by the nuts.

 

Now take a deep breath ................ and squeeze them hard

 

Maybe ....

 

Just hope mine don't get squeezed if they magically conjure up a fully legible signed executed agreement with all terms and conditions nicely typed and formatted!

[ODC]

Maybe ....

 

Just hope mine don't get squeezed if they magically conjure up a fully legible signed executed agreement with all terms and conditions nicely typed and formatted!

Bit late for them now after what they have sent in response to you CCA request. Imagine trying to explain that to M'Learned friends in court. To say they would be in deep doo doo would be putting it mildly.

[tiglet]

Exactly - hmm, nice fine or potential imprisonment too. Do you really think they'll bother?

[ODC]

They will probably do FA but it gets them off your back. Its up to you TIFO how far you push it. By the way are we related we both seem to be dealing with the same professional highly trained Debt Collectors (their words not mine OBVIOUSLY.) Good job you cant type S****horpe into this

[tifo]

Exactly - hmm, nice fine or potential imprisonment too. Do you really think they'll bother?

 

Why a fine or potential imprisonment?

 

If they go away and leave me alone then they get nothing, either from me or potentially the court, so that would seem the best option for them (and for me).

 

However, seeing that the two accounts are over £5,000 then digesting this loss might give them indigestion so they may decide to go for enforcement.

 

I'm gonna send them a letter telling them in polite terms to go away and lets see what they say.

[tiglet]

The potential fine or imprisonment for them as they failed to comply with the consumer credit act 1974 i.e. sent it after the deadline, illegible etc.

 

That's what they would risk if they took it to court.

[tifo]

I think you would find that most courts ignore the CCA s.78 non-compliance as it has no bearing on whether to prove the debt exists because that can be shown by other means.

 

I think most DCAs would not risk the possibility of a fine in case the judge has had a bad day, but most of them know that nothing will really be done against them in court.

 

This is why it is a hard decision to take them to court for non-compliance and removal of defaults as that may open me to having the debt enforced and therefore I will have lost once and lost again.

[ODC]

I think you would find that most courts ignore the CCA s.78 non-compliance as it has no bearing on whether to prove the debt exists because that can be shown by other means.

 

I think most DCAs would not risk the possibility of a fine in case the judge has had a bad day, but most of them know that nothing will really be done against them in court.

 

This is why it is a hard decision to take them to court for non-compliance and removal of defaults as that may open me to having the debt enforced and therefore I will have lost once and lost again.

If you can get the leeches off your back by them not being able to prove the debt then to me anyway Thats A Victory

[tifo]

yes, i agree.

 

but, i want finality as i don't want the account being passed to someone else and then the whole process starts again.

[ODC]

yes, i agree.

 

but, i want finality as i don't want the account being passed to someone else and then the whole process starts again.

If they cant prove it then its unlikely whoever they sell the debt to will be able to prove it either. The more the debt is passed around the less economical it becomes for the DCAs to persue. Yes of course they will huff, bluster and threat but without the proof they cannot enforce it

[tifo]

yes, its a matter of 'i'll huff and i'll puff and i'll blow ....' but i won't be able to do anything!

[ODC]

A few years ago everyone would have quaked and collapsed and coughed up at these empty threats. Now thanks to places like this we know our rights and if they can comply with the law then they get paid. If they cant thats their problem, Sad for them isnt it. The law is their for everyones benefit. Sometime some of these greedy people will learn treat the debtor with respect and more often than not they will get whats due. Treat people like dirt and what do you expect.