CCA Agreements (Mark II) PLUS any other topic

[davefirewalker]

Hi everyone....

 

Just got my CCA back from MBNA.......I'm screwed unless anyone can come up with anything ?

 

they are 18 days outside of the 12 working days allowed but they still have it

 

Ive been through it and can't see anything glaringly obvious

they've even sent t&c on reverse of photocopy

 

Dave

[ian1969uk]

Details of default charges?

[davefirewalker]

yup in T&C on reverse

 

Dave

[ian1969uk]

But the details of default charges are required to be in the signature document, not just in the terms and conditions.

[davefirewalker]

well it could be argued by them i suppose that the document is both sides of the agreement, (it could run to many pages as well). thanks for your thoughts though, is there any conclusive evidence that you (or anyone ) knows about where it says it must be on the front page.

 

(please say yes)

 

Dave

[ian1969uk]

No, it must be in the signature document, and the terms and conditions are not the signature document:

 

Some terms must always be contained in the signature document as described under the

heading ‘What the agreement must contain’. But any other term of the agreement can be

recorded either in the signature document itself or another document referred to in it.

 

What the agreement must contain

1 A heading in one of the following forms of words shown prominently on the first

page:

Hire-Purchase Agreement regulated by the Consumer Credit Act 1974

or

Conditional Sale Agreement regulated by the Consumer Credit Act 1974

or, in any other case,

Credit Agreement regulated by the Consumer Credit Act 1974.

Where the document embodies an agreement, of which at least one part is a credit

agreement not regulated by the Act, the word ‘partly’ must be inserted before

‘regulated’ in the heading – unless the regulated and unregulated parts of the

agreement can be clearly seen to be separate.

2 The name and a postal address of both trader and customer.

3 A description (in sufficient detail to identify it) of any security to be provided by the

customer and a description of its subject matter. The description must be in the

main agreement, but the full terms can be in a separate document referred to in

the main agreement.

4 Details of any default charges which the customer or a relative of his is required to

pay if he breaches the agreement.

5 Certain financial and related particulars (see below).

6 Statements of certain protection and remedies provided for the customer by the

Act (see page 12).

7 A signature box (see page 14).

 

From OFT Guidance

[davefirewalker]

Yes I agree, and I hope we're right but in trying to think like them wouldnt the fact that the t+c are on the back (as they are on my original) be seen as one document?

 

I hope not, but I've got a feeling.........

 

anyone ???

[smartmartian10]

Is your signature on the back with the T&C ?

[Jaranius]

xx

[davefirewalker]

srmjmm10

 

No its on the front as per image (sig not shown but box is)

 

Jaranius

I would have thought that rate of interest SHOULD be there, but cant seem to find it in the prescribed terms that must be there

 

I'll look again

 

thanks

 

Dave

[joneshousehold]

I have only just found this thread. I have no idea what was going on that prompted this thread to start (although I admit to being more than a little intrigued) however I have come along to join in if that's OK

[davefirewalker]

join in......

 

you missed all the fun stuff, which seems to be over

 

any ideas on my little problem ??

 

(please)

 

Dave

[InKogneeToh]

Hi all

 

As I am constantly seeing queries as to whether the signatures should be on a copy sent under CCA s77/78 and whether the lack of them on such a copy makes the agreement unenforceable, I am posting up here the relevant part from the regs:

 

The Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983

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 (i.e. name/address) 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 thereunder 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);

© in the case of any copy of an unexecuted agreement delivered or sent to the debtor or hirer under section 62 of the Act, the name and address of the debtor or hirer; and

(d) in the case of any copy given to the debtor under section 77(1) of the .

Act of an executed agreement for fixed-sum credit under which a person takes any article in pawn, any description of the article taken in pawn.

Regards, Pam

[davefirewalker]

Ink, I dont think the sigs are a problem, I signed, they signed! To be honest I dont think I have a chance.

 

The only hope is some obscure, interpretation of the act.

 

maybe the default notice is not on the sig page or the interest rate is not shown.... long shots maybe I should just give up

 

rgds Dave

[InKogneeToh]

But the details of default charges are required to be in the signature document, not just in the terms and conditions.

 

Hi

 

The signature document in this case is a sheet of paper that has text on both sides. If all of the required information is on one or other side of this sheet then it is contained in the 'signature' document.

 

Also, in relation the interest rate, although this is generally a 'prescribed term', for some fixed sum agreements it is not regarded as such:

 

8.6 What is meant by ‘rate of interest’?

 

Sch 6 para 4 applies to all running-account credit agreements, together with certain fixed-sum credit agreements, namely those:

• which do not specify the intervals between repayments or the amounts of repayments;

• under which the total amount payable may vary according to a specified formula by reference to an index or other factor; or

• which provide for variation of the amount or rate of any item included in the total charge for credit.

In such cases the agreement must include a term stating the rate of any interest on the credit to be provided. This is also required by Sch 1 para 10 in respect of such agreements – see Q3.32.

 

In all 'fixed sum' agreements falling into the above category the interest rate is a 'prescribed term'. For any other 'fixed sum' agreements the interest rate is still required but is not classed as a 'prescribed term'.

 

I recommend that anyone wanting to know what any particular type of agreement must contain should download from the OFT site the documents on cancellable and non-cancellable agreements and the FAQs document that explains the amended agreement requirements.

 

This way we can all cut down on the number of similar questions being asked in so many different threads and more people will have the information to hand.

 

Regards, Pam

[InKogneeToh]

Ink, I dont think the sigs are a problem, I signed, they signed! To be honest I dont think I have a chance.

 

The only hope is some obscure, interpretation of the act.

 

maybe the default notice is not on the sig page or the interest rate is not shown.... long shots maybe I should just give up

 

rgds Dave

 

Hi

 

It is ALWAYS worth checking every agreement thoroughly but there are some limited exceptions to the way information must be shown or what must be shown depending on the type of agreement so it is not strictly a case of 'one size fits all'.

 

The OFT docs referred to above are where I get most of my information from so the more people who read those, the less I have to re-read them!! :lol:

 

Regards, Pam

[Jaranius]

xx

[InKogneeToh]

1. 
   
2. 8.7 What about other fixed-sum agreements?

Sch 1 para 9 requires that fixed-sum credit agreements not falling within para 10 (other than those under which the total amount payable does not exceed the total cash price) must state the rate of interest on the credit to be provided – see Q3.32. However, Sch 6 para 4 has not been amended correspondingly, and so this is not a ‘prescribed term’ in such agreements.

If the term is missing or incorrect in such cases, the agreement is not properly executed (see Q1.20) and is enforceable against the debtor only with a court order. However, this does not make the agreement wholly unenforceable – see Q8.2.

 

Hi

 

Yes, this is from the OFT FAQs doc and relates to an amendment to the agreement regs. and is applicable to all agreements made post May 2004.

 

It is what I referred to in my previous post:

 

In the amended agreement regs. the interest rate is now required to be shown in all agreements but is still not a 'prescribed term' for 'fixed sum' agreements unless they fall into the category shown above.

 

Regards, Pam

[Jaranius]

xx

[robert_harper_2000]

I know I have already uploaded this and someone did kindly give their opinion. But I would like this double checked as although the prescribed terms seem to be there and the math adds up I thought there is nothing about cancellation or default charges etc etc

 

http://i176.photobucket.com/albums/w...Sainsburys.jpg

 

This is the agreement but nothing about T & C's infact!

 

The only bit that relates to cancellation is a completly separate piece of paper

[joneshousehold]

join in......

 

you missed all the fun stuff, which seems to be over

 

any ideas on my little problem ??

 

(please)

 

Dave

 

Thanks Dave -it's the story of my life - I always get to the party after the fun has finished!

 

So on a serious matter, have you looked through the OFT guidelines to see if your agreement has any flaws. I have done that on all of mine and they all have some so then you can deal with the paperwork according to how many and how serious those flaws are.

[joneshousehold]

Dave, I have been back and had another look at your agreement. I don't know too much about the numbers but there does seem to be a lot of them. There may be a flaw or two there. Have you considered the Wilson case and where these figures should be and how they should be described. Some of the venerable members of the CCAA committee may know more about this as they seem to have researched it more than I have.

 

The OFT guidleines you need are these

http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/oft018.pdf

 

Other thoughts I have had based on those guidelines are

- does the wording include a comment about a rebate if the loan is paid off early? I can't actually read the wording on the posting so I'm not too sure

- if your copy is not legible I would always argue that I cannot see if the original was any more legible (and they also could not show the court it was) so unless they can show me otherwise I can only conclude it was NOT and so the agreement is unenforceable (S61) also every copy must be legible too.

- your agreement has cancellation rights and they must have complied with the very strict rules on this. I would be inclined to say that I don't remember getting copies and a cancellation rights notice after execution so they need to prove they did. They will need to prove it to the court if they want to enforce the agreement so it is perfectly reasonable for you to ask to see the evidence now.

- equally copies need to be sent at specific times after the agreement becomes executed and it is just as reasonable to ask for evidence that such copies were sent and when.

- look at the t&c's they sent you. Are they the ones relevant at the time or a more up to date version as is often sent following a S77-79 request. There may be a printer's reference on the document which should include a print date or look at the default charges, if they are £12 you know that it is a very recent one.

You need to be imaginative really, twist those words to make them say what you want. That's what these creditors do so why shouldn't you. That way you may force them to reveal as much of their evidence as you can and that may give you something to work on. If they refuse just tell them you can only assume they do not have the evidence and if they do and the case goes to court the judge will be VERY unhappy to hear they have obstructed you in your reasonable and legitimate requests.

You are welcome to get in touch if you want any more help. If you want to keep it private send me a pm

Good luck. Don't throw the towel in just yet. Make them work really hard for this. After all they have yet to earn all the charges they put on your original loan at the start!!!!

[InKogneeToh]

I know I have already uploaded this and someone did kindly give their opinion. But I would like this double checked as although the prescribed terms seem to be there and the math adds up I thought there is nothing about cancellation or default charges etc etc

 

http://i176.photobucket.com/albums/w...Sainsburys.jpg

 

This is the agreement but nothing about T & C's infact!

 

The only bit that relates to cancellation is a completly separate piece of paper

 

Hi

 

Your link is just taking me to the 'Photobucket' site!

 

Is anyone else able to view this document?

 

Regards, Pam

[robert_harper_2000]

oops sorry

 

http://i176.photobucket.com/albums/w197/robert_harper_2000/Sainsburys.jpg

 

Does this help a little bit?

[ian1969uk]

The daft bit in the regs is that the creditors are allowed to omit our personal details and signatures from the copy they send us. However, it must be a 'true' copy ie an actual copy of our original executed agreement.

 

This just leaves us in the ridiculous position that creditors will send us any old rubbish in response to a S77/78 request and claim they have fulfilled their obligation.

 

The problem then is that there is absolutely no way for us to verify that it is indeed a true copy of our agreement. The only way to verify this is if it includes our details and signatures, the very things they are allowed to omit.

 

I really cannot fathom why the 1983 regs gave them this option.