SLC Cannot Supply The Original Agreement

[zubo]

In the case of a bank loan where the money was debited into your account , then the monthly payments were made , would this not be considered evidence that the loan was in place in the absence of a agreemant and used in the loan providers defence. If you coninue with the repayments is this not acknowledgement that there is an awareness of a contract being in place.

 

Nope Tumble,

 

We have many people who have written saying they cannot affor repayments etc etc. It does not matter.

 

What does matter is if the creditor can enforce the debt. That is where the Consumer Credit Act 1974 is so powerful and provides us with some protection. See my earlier posts which attempt to explain what it is and how I intend to use it.

[Peterbard]

However, credit card agreements entered into by post/phone before the regs., although non-cancellable by definition, were given cancellable status by the lenders. I'm not sure when this practice started though so it is possible that some very old credit card agreements may not have been cancellable

 

Sorry to be picky but consumer credit cannot be entered into by phone.

 

And since the cancellation period only lasts 14days what relavance does what happend 3 years ago have unless you list time travell amongst your black arts.

 

Peter

[joneshousehold]

In the case of a bank loan where the money was debited into your account , then the monthly payments were made , would this not be considered evidence that the loan was in place in the absence of a agreemant and used in the loan providers defence. If you coninue with the repayments is this not acknowledgement that there is an awareness of a contract being in place.

 

Tumble, ordinarily the courts would take the sort of evidence that you have outlined to show that a contract is in place because that's how case law have defined it. However CCA specifically says that irrespective of any other evidence if there are any of the specified requirements of the Act not fully complied with, the agreement whether it exists or not cannot be enforced so any attempt to take you to court would fail.

[InKogneeToh]

Sorry to be picky but consumer credit cannot be entered into by phone.

 

And since the cancellation period only lasts 14days what relavance does what happend 3 years ago have unless you list time travell amongst your black arts.

 

Peter

 

Hi

 

Consumer credit can be applied for by phone e.g. overdrafts, orders from catalogues, loans etc.

 

The relevance of whether or not an agreement is cancellable is whether the agreement contained all the required notices of cancellation etc. and whether you had been sent the 2nd copy of agreement/separate cancellation notice etc. and was therefore properly executed and enforceable.

 

E.g. my agreement with the loan company that was declared wholly unenforceable was a cancellable one. Yes, I had 14 days to cancel BUT the creditor did not send me the separate cancellation notice and form so technically my cancellation period was indefinite! So the relevance of what happened 11 years before I discovered the omission was extremely important!

 

Regards, Pam

[Peterbard]

I said consumer credit canot be entered into by phone not applied for.Which it cannot.

 

The relevance of whether or not an agreement is cancellable is whether the agreement contained all the required notices of cancellation etc. and whether you had been sent the 2nd copy of agreement/separate cancellation notice etc. and was therefore properly executed and enforceable

 

Sorry no i am confused i thought we were saying card greement agreement prior to 2004 being non cancelabele.

 

Peter

[paulwlton]

I have had conflicting advice regarding the validity of a CCA 77 Request after a loan as been subjected to a court order. On one hand the agreement under the CCA Act 1974 as been broken therefore the Request as no merit, on the other hand when a debt is subjected to a court order it is just enforcing the contractal rights Legally, this being the case, then i assume i still have rights under the contract and one of my rights being a Legally binding CCA Request.

 

Any thoughts

 

Paul.

[Peterbard]

Hi Pam just to clarify for other readers

1. 17.23 Can the contract be concluded by telephone?

In principle, Reg 8(1)(b) permits contracting by telephone because it provides that the information specified in Sch 1, together with the contract terms, may be provided immediately after the conclusion of the contract where this was concluded at the consumer’s request using a means of distance communication which does not enable provision in accordance with Reg 8(1)(a).

However, in the case of consumer credit agreements the CCA requires that the unexecuted agreement as presented or sent to the debtor for signature must be on paper or another durable medium. A CCA-regulated agreement may not therefore be entered into orally.

 

Peter

[Peterbard]

HI Paul

 

Most certinly you do.

I have been downo this path myself From a slightly deifferent angle in that i had the CCJ set aside on the grounds that the orriginal agreeement was not made available. and needed time to issue a 77 in order to prepare a defense.

Peter

 

Peter

[InKogneeToh]

 

Sorry no i am confused i thought we were saying card greement agreement prior to 2004 being non cancelabele.

 

 

Hi Peter

 

No, what I said, which started all this off, is that a credit card agreement is by definition a non-cancellable agreement, i.e. signed away from trade premises and with no face-to-face contact between creditor and borrower.

 

I then said that although strictly speaking non-cancellable, these agreements were (prior to 2004) given cancellable status by the lenders - an optional choice by them before the distance regs. came into force.

 

Regards, Pam

[Peterbard]

No, what I said, which started all this off, is that a credit card agreement is by definition a non-cancellable agreement, i.e. signed away from trade premises and with no face-to-face contact between creditor and borrower.

 

I do not think that that section was meant to apply to credit cards anyway.

Peter

[InKogneeToh]

 

I do not think that that section was meant to apply to credit cards anyway.

Peter

 

Hi

 

It must have applied (prior to 2004!) because there is no other, or different definition for a credit card agreement.

 

Regards, Pam

[Peterbard]

MMM

None that i can fin but i am still looking. The example shown in Butterworths doesnt mention credit cards and i think that this was the sections intention.

I wonder if there was a regulation.

 

Peter

[InKogneeToh]

I wonder if there was a regulation.

 

 

If you can find you I'll eat my pointy hat!

 

Regards, Pam

[Peterbard]

Now theres a challenge

 

What if i was to say just for the sake of argument that the distance signature on a crdit agreement fell outside the remit of the cca 1974. Don't forget Credtt cards i believe (Iwas far to young to reember) only really took off in this country in the early 70s.

 

Haven't researched this yet but i will so get your salt and pepper ready.

Peter

[JonCris]

Hi Pam just to clarify for other readers

1. 
   
2. 17.23 Can the contract be concluded by telephone?

In principle, Reg 8(1)(b) permits contracting by telephone because it provides that the information specified in Sch 1, together with the contract terms, may be provided immediately after the conclusion of the contract where this was concluded at the consumer’s request using a means of distance communication which does not enable provision in accordance with Reg 8(1)(a).

However, in the case of consumer credit agreements the CCA requires that the unexecuted agreement as presented or sent to the debtor for signature must be on paper or another durable medium. A CCA-regulated agreement may not therefore be entered into orally.

 

Peter

 

True but the 2006 act will allow for electronic signatures. How scary is that

[un1boy]

True but the 2006 act will allow for electronic signatures. How scary is that

 

Very - especially as it will just involve ticking a box - it wouldn't be too bad if it was like the microsoft passport system where you have one username and password which you can use to access loads of sites and services - but, just having a tick box covered, it's insane!!

[JonCris]

It is & it will lead to fraud by the lenders. As we have seen here even some of the staff working for household names attempt to falsify docs. Imagine what the non-prime lenders will be capable of

[InKogneeToh]

Now theres a challenge

 

What if i was to say just for the sake of argument that the distance signature on a crdit agreement fell outside the remit of the cca 1974. Don't forget Credtt cards i believe (Iwas far to young to reember) only really took off in this country in the early 70s.

 

Haven't researched this yet but i will so get your salt and pepper ready.

Peter

 

Hi

 

No, that won't get my hat on a plate!

 

Credit card (token) agreements from 1974 have always been subject to the CCA - hence the sections dealing with credit tokens and s85.

 

Below is the definition of a consumer credit agreement taken from the original 1974 Act (i.e. before modified by any S.I.s):

 

8.—(1) A personal credit agreement is an agreement between an individual (" the debtor ") and any other person (" the creditor") by which the creditor provides the debtor with credit of any amount. (2) A consumer credit agreement is a personal credit agreement by which the creditor provides the debtor with credit not exceeding £5,000.

(3) A consumer credit agreement is a regulated agreement within the meaning of this Act if it is not an agreement (an " exempt agreement ") specified in or under section

16.

 

 

14.—( 1) A credit-token is a card, check, voucher, coupon, stamp, form, booklet or other document or thing given to an individual by a person carrying on a consumer credit business, who undertakes—

(a) that on the production of it (whether or not. some other action is also required) he will supply cash, goods and services (or any of them) on credit, or

(b) that where, on the production of it to a third party (whether or not any other action is also required), the third party supplies cash, goods and services (or any

of them), he will pay the third party for them (whether or not deducting any discount or commission), in return for payment to him by the individual.

 

(2) A credit-token agreement is a regulated agreement for the provision of credit in connection with the use of a credit-token.

 

There have always been consumer credit agreements that have been signed away from trade premises (at a distance) - and they are generally non-cancellable.

 

Put the salt and pepper back!

 

Regards, Pam

[JonCris]

When you say away from trade premises being non-cancellable do you mean those agreements where the benefit starts or obtained by the consumer at the time of signing or very shortly thereafter?

[InKogneeToh]

When you say away from trade premises being non-cancellable do you mean those agreements where the benefit starts or obtained by the consumer at the time of signing or very shortly thereafter?

 

Hi

 

Quote:

 

A cancellable credit agreement is one where:

during the negotiations before the agreement is made, a trader (who, in this case, may be the creditor, the credit broker or the supplier) – in the presence of the

customer – discusses the prospective agreement or a transaction to be financed by credit provided under it, and

the unexecuted agreement (that is the document embodying the prospective agreement which has not yet been signed by both trader and customer) is signed by

the customer off trade premises.

 

In all other circumstances (except for credit card agreements) any agreement entered into is non-cancellable.

 

Regards, Pam

[gpwizz]

Hi, with relation to this can I ask if this applies to credit cards as well as loans?

 

Thanks

George

 

It is important that you follow the procedure set out in the Consumer Credit Act and make a statutory request under sections 77(1) and 78(1). A draft letter is shown elsewhere on the forum - and as stated, you need to send the £1 fee.

 

It is only when they have defaulted under this that the debt becomes unenforceable after 12 working days (you can legally suspend payments at this point until they provide the agreement) - and after one month they have committed an offence.

 

Should they then seek to enforce the debt they will have to explain to the court why they defaulted, and seek permission to continue - and you can also report them to Trading Standards and the FSA.

 

However, remember that all this only applies after sending the letter under the terms of the Consumer Credit Act 1974.

[zubo]

Hi, with relation to this can I ask if this applies to credit cards as well as loans?

 

Thanks

George

 

Yes - the CCA discusses these as credit tokens.

 

There are essentially two critical sections - look at Section 78 - this covers the creditors obligations to provide you with a copy of your executed agreement including all the prescribed terms

 

and Section 85, which places a further requirement on the creditor to ALWAYS provide you with a copy of your executed agreement whenever they replace the credit token - eg, at replacement re loss, at replacement re expiry date, at replacement to introduce chip n pin etc

 

you would be well advised to read a very long thread here - there are 164 pages and it will take time but worth the investment

 

http://www.consumeractiongroup.co.uk/forum/general/33174-consumer-credit-act-agreements-164.html#post596879

[InKogneeToh]

Hi, with relation to this can I ask if this applies to credit cards as well as loans?

 

Thanks

George

 

Hi and welcome to CAG

 

It most certainly does apply to credit card agreements as well. Send your request via recorded delivery with either a £1 PO or cheque. The letter you need is letter N from the following link:

 

http://www.consumeractiongroup.co.uk/forum/general-debt/20758-creditors-dcas-letter-templates.html

 

Post back with any update.

 

Regards, Pam

[JonCris]

Hi, with relation to this can I ask if this applies to credit cards as well as loans?

 

Thanks

George

 

Yes

 

Please read the FQA's CC are 'rolling credit' & loans are 'fixed credit'

[Peterbard]

hi

Just to repeat

yes use section 78 as mentioned .Minor point in that should the agreement be produced after the timescale the creditor a perfectly within their rights to enforce they do not need permission from amy one.

They are liabel to criminal prossecution but that is a differentr matter and they may wish to let sleeping dogs lie rather that risk a heafty fine and possible imprisonment if you can get the CPS to persue it.

 

Peter

 

Peter

 

Peter