SLC Cannot Supply The Original Agreement

[tamadus]

I agree Joncris not all applications are or will be agreements and this is something that worries me to the point I have already raised it with my MP who passed the question to the secretary of state. The possibility of a company suddenly coming up with an alleged agreement when an application was declined, is a frightening spectre.

 

The DTI claim there is no evidence to suggest that this has happened or is likely to happen:o My personal opinion is that if the possibility exists then it will happen.

 

Just so nobody is left thinking that I am defending this practice, I personally think the application should result in a totally seperate agreement being made and sent for signatures, after they have signed it. Along with everything else thats required to be part of the agreement.

 

This of course means that an application for a credit card will take 3-4 weeks to process, which is not a bad thing in my opinion but everyone wants the card in a few days. It's this urge to get a card that has resulted in them streamlining the application process to a point where the application forms part of the agreement.

 

The 2006 amendments to the CCA now allow for electronic signatures which frightens the life out of me, as that allows anybody to open an account in my name and no real signature is needed.

 

As usual common sense seems to be lacking in those who make these decisions.

 

As an afterthought I agree industry practice doesn't make it right and we should be challenging industry practice at every opportunity. But, and it's a big but, I would hate to see anybody taken to court and losing because they didn't temper their enthusiasm long enough to read what is in front of their eyes.

 

I think I may go through the statutory requirements for a regulated agreement and post them in list form so people can be sure their 'agreement' does or does not comply with them all.

[JonCris]

Don't expect to much from this government because apart from not being very bright they clearly have no intention of protecting our civil liberties. As for the Department of Timidity & Inaction the name says it all

 

I don't have one in front of me but am I correct in thinking most CC applications specifically state they are not an offer. If they do then I suggest they are not an agreement enforcable in law

 

As for losing in court I think we all have to consider that possibilty but that shouldn't stop us trying. After all it is a win win situation for the consumer as no court is going to award costs against a litigant in person. If the court thought their case had no merit it would be struck out long before reaching trial

[tamadus]

Don't expect to much from this government because apart from not being very bright they clearly have no intention of protecting our civil liberties. As for the Department of Timidity & Inaction the name says it all

 

I don't have one in front of me but am I correct in thinking most CC applications specifically state they are not an offer. If they do then I suggest they are not an agreement enforcable in law

 

As for losing in court I think we all have to consider that possibilty but that shouldn't stop us trying. After all it is a win win situation for the consumer as no court is going to award costs against a litigant in person. If the court thought their case had no merit it would be struck out long before reaching trial

 

I have to agree about this government and the DTI.

 

I am looking at a form for a card issued in the name of a major supermarket and can find no reference to it not being an offer of credit, although I do recall that this used to be part of the form.

 

This form carries everything needed by the act to become tha agreement, it carries total charge for credit (and example) statutory warnings, right to cancel etc etc and is clearly headed Credit Agreement blah blah.

 

It also does not say it is an application form. If you PM your email address to me I can send you the scan for it, along with several others if you want them, which all follow the same format.

[bill-k]

Do please post up any result here Tamadus & JonCris. I for one am very interested in your discussion here (what I can understand of it !!)

 

DTI - another CAUBOT, then JC ?

[JonCris]

bill Sort of

 

Tamadus I will PM you with my email address. Also I've thought of another observation you may wish to consider.

 

Most if not all of the sub-prime lenders (who can't rely on their reputations as the banks do so expect to be challenged more often) appear to have got their act together in that most do send an application followed by an agreement.

 

They don't rely on the application alone to act as an enforcable regulated agreement.

 

Also if the form does not declare itself as an offer then they can't then refuse you credit after signing as that amounts to a breach of contract. Comments please

[Peterbard]

Just a point if the application is considered a contract it is binding on both parties so if then the creditor decides not to honour the contract because ,for instance the credit score wasn't up to scratch wouldn't the debtor be able to take action for breach?

 

Peter

[JonCris]

My point exactly Peter.

 

If it's an agreement then it's enforcable by both parties. The principal bit of which is handing over the money.

 

They only reason when I think it would be acceptable for the lender to breach the agreement would be if they discovered the applicant had not been honest or had been misleading.

[Peterbard]

Sorry john chris

 

posted the agbove before i read your posting

 

Peter

[veryannoyed]

Just looked carefully at my MBNA application forms - they do say at the top "Request for credit" but they also say "credit agreement regulated by the consumer credit act 1974" ... it has my signature on obviously, and a 'rubber stamped' signature of the bank. The signature box says "this is a credit agreement regulated by the consumer credit act 1974 sign it only if you want to be legally bound by its terms"

 

It makes reference to the terms and conditions I have agreed to, and although they are not present on the photocopy, I suspect they were printed in small print on the other side of the form.

 

So it seems that MBNA have a reasonably water-tight agreement in place.

 

My agreements are from 1998 and 2000 by the way

[veryannoyed]

Whats the legal thing I've read somewhere about a contract being unfair if one party had no chance to negotiate the terms of contract because unless all the standard terms on a standard form are agreed to by the borrower, the lender would not sign?

[Peterbard]

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.

 

I Know i have mentioned this before but there is no getting round it if the application form says it is an agreement, and has all the prescribed terms it is binding on both the creditor and the debtor as soon as it is executed.

If the company has to do a credit or registry search before the agreement can be activated it is void .

In other words if you sign an application that says it is an agrement you have got yourself an agreementif they do not provide the goods they are in default.

 

Can't be right can it

 

Peter

.

[tamadus]

So many very valid points from everyone, that it's almost becoming difficult to keep focussed on it all.

 

IMHO we should go back to making an application which is then followed by a properly formulated and regulated agreement being sent out, along with all the necessary additional documents. This would allow us to make an informed decision as to whether to continue.

 

The current trend is to do everything online which is what has caused the signature to be negated in the new ammendments. Just like chip and pin this is going to become a major issue totally in favour of the lenders.

 

Maybe it's time to create a new pressure group to lobby for common sense in regard to such important documents. The entire application/ acceptance process is becoming a grey area as the edges become more and more transparent and fuzzy.

[mcvey123]

Originally Posted by lickthewallfatboy

don't want to sound naive or anything here,but what happens if after 12 days without an agreement being produced,you write to the creditor denying the debt,stop payments etc etc,and then they come up with it?Are you still entitled to tell them to go away?

 

I just want to be sure of this......

After the 12 working days, you DON'T write to them. You just wait. After the 30 days you complain to Trading Standards. THEN you write to them saying "This debt is unenforceable, get rid of my defaults, and by the way you owe me (x) pounds paid to you against this unenforceable debt".

 

 

Hi there

 

I have read this thread from start to finish and followed the advice recommended.

 

I personally have had a battle with aktiv kapital who bought 2 apparent debts from first national. both had been paid off and I wouldn't have been aware of them if it hadn't been for 2 default notices on my agreement. I managed to prove that one was paid but they refused to remove the defaults from my records. Since I never received a default notice for either from aktiv kapital, I was annoyed and requested a copy of the default notices, a copy of the original agreement, and the deed of assignment. They provided the deed of assignment but wrote to say that neither them or first national could provide copies of the dn or orig agreement. They offered a reduced settlement amount which i refused and wrote to deny knowledgement of any debt.

 

I wrote to experian and equifax and reported them to the information commissioner. They have continued to telephone me to harrassment about the debt and to tell me what the outcome of the info commissioner will be. (none as yet) Equifax wrote to say that they were unable to remove the debt despite the fact that Aktiv admitted that no paperwork could be found.

 

 

The default notices are still on my files and aktiv kapital have refused to remove them. they are really stubborn as they clearly have no grounds to enforce this debt. Those of you whose companies have written to acknowlege that the debt is unenforceable and have written of the debt are lucky. Aktiv are still pursuing me and so I am waiting for the info commissioner to sort it out.

 

I also wrote to trading standards with regards to them and their reaction was to "let us know how you get on" and "what is the usual procedure for a situation like this?" So in other words, in this office, we are badly trained in this area and don't know what you would do - come back later!!

 

I really have no confidence in what this information commissioner will do and in any case, aktiv kapital seems to be completely unfazed by any action i take.

 

Any advice?

[veryannoyed]

sue for defamation

[joneshousehold]

I have read and reread this thread so much I am now boggle eyed! The whole thread has moved around the whole issue such a lot that I had to back track several times just to keep up.

When I first read through it I went back to my papers to look at Argos and Homebase cards. A DPA request had produced a copy of a document I took to be an agreement. Both are in fact the same and they both are now run by Argos Retail Group. They have a box in the top left hand corner saying 'Your application for the XXX card'. Across the top of both forms they also say 'credit agreement regulated by the Consumer Credit Act 1974'. They both have a box for my signature which is present along with the date. There is a right to cancel note and a note that it should only be signed if I want to be legally bound by its terms. It does not make any further mention about what those terms and conditions are. A letter I received from them states the charges are in accordance with the terms and conditions I agreed to when I signed the forms. They say I confirmed I had read them when I signed but that is not what the forms say. There is something that may at a push be described as a signature on them although one looks more like a stamp than a true signature but without the original this will be difficult to establish.

I initially took the view these were valid agreements but now I am not so sure. The terms and conditions are not present at all so it doesn't meet the requirements of the CCA. I am still not convinced that a judge would accept my arguments as I understand them so far that this is unenforceable.

These latest comments are very interesting about whether an application can be agreement and I shall watch with interest. My own thoughts just seem to be rolling around normal contract law. If the agreement form is the offer, where is the acceptance. Is it when the credit is given (and say the goods taken) or the card issued. If however the card issuer reserves the right to refuse the application then is the application more akin to an invitation to treat (as all law students learn to love!) but in reverse to the usual scenario of the Boots case. If it is then there is no contract. I am still musing I think and I am probably way off the mark.

Keep up the good work however and I will keep watching. Thanks for giving me an interesting conundrum to think about and I hope I don't stay awake puzzling it!

[tamadus]

I have read and reread this thread so much I am now boggle eyed! The whole thread has moved around the whole issue such a lot that I had to back track several times just to keep up.

When I first read through it I went back to my papers to look at Argos and Homebase cards. A Data Protection Act request had produced a copy of a document I took to be an agreement. Both are in fact the same and they both are now run by Argos Retail Group. They have a box in the top left hand corner saying 'Your application for the XXX card'. Across the top of both forms they also say 'credit agreement regulated by the Consumer Credit Act 1974'. They both have a box for my signature which is present along with the date. There is a right to cancel note and a note that it should only be signed if I want to be legally bound by its terms. It does not make any further mention about what those terms and conditions are. A letter I received from them states the charges are in accordance with the terms and conditions I agreed to when I signed the forms. They say I confirmed I had read them when I signed but that is not what the forms say. There is something that may at a push be described as a signature on them although one looks more like a stamp than a true signature but without the original this will be difficult to establish.

I initially took the view these were valid agreements but now I am not so sure. The terms and conditions are not present at all so it doesn't meet the requirements of the CCA. I am still not convinced that a judge would accept my arguments as I understand them so far that this is unenforceable.

These latest comments are very interesting about whether an application can be agreement and I shall watch with interest. My own thoughts just seem to be rolling around normal contract law. If the agreement form is the offer, where is the acceptance. Is it when the credit is given (and say the goods taken) or the card issued. If however the card issuer reserves the right to refuse the application then is the application more akin to an invitation to treat (as all law students learn to love!) but in reverse to the usual scenario of the Boots case. If it is then there is no contract. I am still musing I think and I am probably way off the mark.

Keep up the good work however and I will keep watching. Thanks for giving me an interesting conundrum to think about and I hope I don't stay awake puzzling it!

 

Glad to have given you food for thought, but I do have one question regarding your post.

 

Why the heck should you sleep when the rest of us can't

[Acerfan]

Mornin' All

Just taken a look at my partner's 'agreement' with GE Money that he got in response to CCA request. Looks like application form stating 'Thank you for taking the time to apply for an Account Card' at the top under which he's not ticked any of the boxes ie I am aged 18 or over.

Below that is another heading 'Credit Agreement Regulated by the Consumer Credit Act 1974' under which he's entered his name, address, DOB & a password. At the bottom is a signature section, the bottom of which is missing and has been distorted by the photocopier & is unreadable. There are 2 signatures - his & their representative's.

 

However, there is mention of using credit searches to process application; 'if you are given the right to take credit when you sign this agreement...' and 'By signng this application form, you consent to us using and disclosing details about you as set out in Section 11 of the Agreement'

 

Firstly, has anyone yet looked into the S59 implications? and secondly, there's no Section 11 of the agreement on the copy they've sent through & no T&Cs

 

Can someone please tell me if this would stand up or whether this would be unenforceable?

 

Many thanks

[veryannoyed]

Acerfan - this is what the clever ones are trying to figure out at the moment... it seems the lenders have tried to be "economical" with their paperwork. As far as I can make out, there should really have been two things to sign:

1) an application form, by which you ask the company for credit and give them authority to do a credit check on you etc, in order to establish the level of borrorwing (if any) they are prepared to extend to you.

2) then they should have wrioten again with a contract (signed by them) offering you £X credit at Y% and all the terms and conditions that go with it. In order to enter into a lending contract of some kind, you should then have to sign this and return it, thereby making the "properly executed agreement" that is referred to in the CCA 1974... if they didn't sign the agreement before sending it to you, then they should have signed it when they got it back and sent you a copy with both signatures on.

 

It is my view that the lenders may have got themselves into something of a pickle by relying on the application form becoming a contract - I can't see how it can be, as all of the details cannot possibly have been determined at the time of signing the application form (such as extent of credit and %rate) as these are determined after doing credit checks etc. (or the extent of credit certainly is, even if the rate is fixed beforehand)

 

This seems to me to be absolutely crucial to the argument that an initial application form cannot be a regulated agreement - what are you agreeing to? - they haven't said how much they will lend you, and in some cases haven't said at what rate they will charge interest either.

 

I suppose they might try and argue that that amount borrowed is variable as it is a running credit agreement, but surely they still have to say what the maximum amount borrowed will be (otherwise how can they later say you are over-limit if no credit limit is set in the original agreement?) Similarly interest is usually at a higher rate when you go over-limit, so again the limit would have to be defined orginally.

 

Also there is something about the contract being unfair (under the UTCC) if the borrower has not freely signed or freely agreed to the terms - that is to say you had no choice but to agree to the standard terms, otherwise automatically the application would be rejected. I have read it a couple of times on here, but can't find it right now! - hopefully one of the experts will enlighten us.

[angry cat]

Hi Guy's....I am now extremely confused !!

 

Initially,2 July 2006 I sent off my Request under the Consumer Credit Act 1974 for a true copy of the signed credit agreement between Morgan Stanley and myself, I included the stat £1 postal order.

 

MS returned my £1.00 PO and sent me a copy of the T&C's, incidentally the issue date of the T&C's was issue TC20 03/00 However, the issue date of my initial T&C's was TC2 08/99 !!

 

Todate, I still have not been sent the requested copy of my signed agreement. MS have therefore committed a criminal offence.

I reported them to Trading Standards a while back and have just spoken again to Trading Standards pressing them fro advice on where I go from here.

 

MS have committed a criminal offence, what are you going to do about it?

the woman at TS although pleasant, did not appear to know!

She is going to ring me back with the correct advice, sometime today.

 

What a ridiculous situation. If any of us had committed a criminal offence, then the police would come around in a flash and probably cart us off to jail. Why would it be any different for a Bank???

 

What do I do now?

 

Love AC

[Number6]

Hi Guy's....I am now extremely confused !!

 

Initially,2 July 2006 I sent off my Request under the Consumer Credit Act 1974 for a true copy of the signed credit agreement between Morgan Stanley and myself, I included the stat £1 postal order.

 

MS returned my £1.00 PO and sent me a copy of the T&C's, incidentally the issue date of the T&C's was issue TC20 03/00 However, the issue date of my initial T&C's was TC2 08/99 !!

 

Todate, I still have not been sent the requested copy of my signed agreement. MS have therefore committed a criminal offence.

I reported them to Trading Standards a while back and have just spoken again to Trading Standards pressing them fro advice on where I go from here.

 

MS have committed a criminal offence, what are you going to do about it?

the woman at TS although pleasant, did not appear to know!

She is going to ring me back with the correct advice, sometime today.

 

What a ridiculous situation. If any of us had committed a criminal offence, then the police would come around in a flash and probably cart us off to jail. Why would it be any different for a Bank???

 

What do I do now?

 

Love AC

 

It must be stated again:

 

A lender does not have to supply a copy of the signed agreement. Under Section 77/78 of the CCA 1974 as amended by the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 a lender can send a "copy" that omits things like signatures, signature boxes or any of the borrowers personal details; in effect they can send out a copy of the T&C's which it appears they've done. In that case they have complied.

 

But in order to enforce any agreement they have to have and be able to produce the properly executed and signed agreement.

 

Don't push OFT or TS to prosecute because MS have complied.

 

You need to write to MS asking for a copy of the agreement that complies with Section 61 of the CCA.

 

Pete

[Peterbard]

A lender does not have to supply a copy of the signed agreement. Under Section 77/78 of the CCA 1974 as amended by the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 a lender can send a "copy" that omits things like signatures, signature boxes or any of the borrowers personal details; in effect they can send out a copy of the T&C's which it appears they've done. In that case they have complied.

 

But have they complied as i have said before how can you verify that what you have recieved is a true exact copy of the orriginal with all the terms and conitions you agreed to by memory. Iwould reject it as i have before and say that this is unacceptable. And suggest that a copy of the orriginal signed copy would be the best way to clear up the situation.After all the reg says that the creditor may leave out the signature bos if it is ligit why would he?

[Peterbard]

A point

 

Section 127 the one that insures that all the pre-contractual information is correct and the agreement has been properly executed.

This as we all know by now currently stops the court from executing an agreement that is not properly formatted.

 

Now section 77 is concerned with getting information that has already been executed in order to validate the terms and conditions on it and states that the contract is not enforceable whilst the agreement has not been produced.

 

The confusion lies with the fact that both sections have the same outcome but in fact they are completely different, section 127 is designed to stop the inauguration of a incorrectly formatted and document that does not contain all the prescribed terms and is Pre-Contractual there’s no mention of section 77 in it for that reason. In other words section 77etc does not rely on section 127 in any sense and is a different animal completely.

 

In the 2006 version there is to be added a section 77a which again stops the agreement from being enforced whilst the creditor is in default and again there e is no mention of any amendment to the section 127 nor should there be because it is post-contractual.

 

Also the reason given for the removal of section 127 3-5 is because the financial limit of £25000 of the 1974 act is being lifted it would be unfair for the creditor to be able to pursue large amounts of money simply because the agreement was not correctly formatted.

 

This again is Pre-contractual and has nothing whatever to do with wanting to check the terms and conditions on an existing agreement and should therefore have no effect on the 77 request or on the necessity of a signed agreement.

 

My argument continues to be that the SI 1557 regulation that excludes the signature box applies only to the pre-contractual situation. How could it apply to two completely aspects of the legislation?

 

I know about he replies we have had from various sources but I have yet to receive a truly authoritative answer to this question.

 

How is it possible to confirm an unsigned document sent to you as a true copy without seeing your signature on it unless you had another copy to compare it to, in which case you would not have applied for one in the first place?

 

My opinion for what it is worth

 

Cheers Peter

[angry cat]

Thank you Number 6 & peterbard,

 

Yes, MS have sent a copy of the T&C's but not the correct issue, the copy is does not have the same issue number as my original T&C's when I opened applied for the Credit Card. Together with the fact, that my credit card application form that I signed is the credit card agreement.

MS have not supplied this, I do not believe that MS have the original and they stated such in their Defence of my County Court Claim against them.

 

Together with the fact, that even when they sent the wrong date Terms & Conditions, MS had already committed a criminal offence by not supplying a true copy of the agreement after 12 days plus one calender month. It actually took them much longer than the stat. 12 plus 1 month to conjure up the wrong T&C's plus they sent back my £1....kind of stange goings on at MS.

 

My view is that they have indeed commited a criminal offence!!

 

AC

[Peterbard]

Me To

 

Peter

[angry cat]

Thank You Peterbard:)

 

All that I can do now, is to wait for the call back from the woman at TS.

 

I have to establish where I go from here...what to do?

 

Incidentally, MS registered a Default against me as well as failing to supply the required doc. the Default ran for more than one month! MS have now removed the Default at my insistance.

 

Post edited by AC

I have just received the response from TS, which reads as follows-

 

In reference to our telephone conversation earlier today, please find below details, which I hope will clarify the points you have raised.

 

Section 78 of the Consumer Credit Act 1974 refers to the duty of the creditor to give information to the debtor under a running account credit agreement.

 

The section states that if the default continues for more than one month then an offence is committed. The penalty for this offence can be a fine of up to £2500.00 and up to six months imprisonment.

 

If such an offence has occurred, this is something that will be considered by the most appropriate Trading Standards, as to what action to take. Any action which may or may not be taken regarding any offence would not affect your civil case against the trader.

 

If the creditor fails to comply with section 1, which relates to supplying a copy of the agreement to the debtor on request, he is not entitled, while the default continues to enforce the agreement. Therefore you could try and argue that the trader cannot continue to pursue you all the while they are unable to provide a copy of the agreement.

 

I would like to inform my colleagues at the London Borough of Tower Hamletts Trading Standards, about the details of your complaint as Morgan Stanley are based in their area. I would be grateful if you could let me know if you are happy for your details to be passed on.

 

I hope the above information will be of assistance to you.

 

Yours sincerely

 

Surely, I should take this further.

AC