Agreement Enforceability

[gemspan]

Hi there

 

After spending most of the afternoon ploughing through this thread and trying to digest the contents(!), I wonder if somebody could help me with my query. I have posted this on HSBC and the General Debt Forums but nobody has answered and I just wondered what the position is with this Agreement. It is quite extraordinary in that the computer has generated this fault but the long and the short of it is that the key information says I have an APR of 15.75% and the loan is being charged at 16.9%. Have a look and see what you think. If you need any additional information please dont hesitate to ask.

 

Thanks in anticipation!!!!

 

http://www.consumeractiongroup.co.uk/forum/hsbc-bank/110911-managed-loan-differing-interest.html

 

Gemspan

[birdkeith]

hi peterbard,i had better start at the beginning,i took out two student loans

one in 95 the other in 96,after i graduated i got deferments,the last one being

from april 2000 to april 01,however in sept 2000 i moved house and informed

them of this,from then on i didnt hear from them again for three years when i

started to get demands for money,i did write to them but all i got was more

demands and then i got a letter from them stating they would go back to

court for an attachment of earnings,i found out that this meant they must

have got a ccj,in feb 2005 i wroteto them asking for the court details and all

paperwork but got no reply so i went to my MPshe did get a reply,it seems

theysent letters to an address that i hadnt lived for well above a year after

being informed by an external trace agents that i lived there,not just once

but three times i got that ccj set aside,but they are applying for another one

and i still havnt seen a default notice or 28 days to pay notice,and this time

they are asking the court to strike my defence,what do you reckon i should

do? yours birdkeith

[maybelline]

http://www.consumeractiongroup.co.uk/forum/students/100018-student-loan-deferment-conspiracy.html

 

just had a quick look at this thread, the three month deferrment thing seems to be the biggest issue for people, sorry to hear of your problems with slc it sounds horrendous, very good luck with it.

Statutory Instrument 1997 No. 211

[maybelline]

PRACTICE DIRECTION –type="start" timestamp="1167928462736"CONSUMER CREDIT ACT 2006 – UNFAIR RELATIONSHIPStype="end" timestamp="1167928462736" - This Practice Direction Supplements CPR Rule 7.9

 

found this, am i right it states what you need to have in a POC for challenging unenforceable agreement?

[1970]

My wifes credit card was upgraded half way through from a normal card to a gold card. As a result she was given a new card with a new account number.

 

When issuing a CCA request to the bank recently, we were sent the orignal credit card application form as completed by my wife in 2000. The old account number has been crossed out and the new number written at the top of the page.

 

Aside from all other areas where this CCA request fails, is this legal?

 

Cheers,

 

1970

[hellhasnofury]

My wifes credit card was upgraded half way through from a normal card to a gold card. As a result she was given a new card with a new account number.

 

When issuing a CCA request to the bank recently, we were sent the orignal credit card application form as completed by my wife in 2000. The old account number has been crossed out and the new number written at the top of the page.

 

Aside from all other areas where this CCA request fails, is this legal?

 

Cheers,

 

1970

 

Hello,

 

I would say absolutely not:o but see what others think.

[Jeff2000]

My wifes credit card was upgraded half way through from a normal card to a gold card. As a result she was given a new card with a new account number.

 

When issuing a CCA request to the bank recently, we were sent the orignal credit card application form as completed by my wife in 2000. The old account number has been crossed out and the new number written at the top of the page.

 

Aside from all other areas where this CCA request fails, is this legal?

 

Cheers,

 

1970

 

 

Hi,

 

 

Don't know if it's legal or not, but it seems to me that they are now implying that your wife actually applied for the gold card! When in truth, she was given something that she never asked for!

 

 

Regards, Jeff.

[maybelline]

I think you need to also look at the distance selling regs, which are on this thread thanks to helpful Peterbard, (hello) http://www.consumeractiongroup.co.uk/forum/general/33174-consumer-credit-act-agreements-437.html#post1088972

[birdkeith]

hi 1970,sorry but i wouldnt dare give or even attempt to give advice on this but it certainly doesnt seem right,im ploughing through problems with student loans myself,and to be honest,this is a brilliant site,i feel sure you will find someone who can help you,

good luck birdkeith

[Fred_Funk]

Hi guys

 

Sorry for butting in here but, trust me, it is relevant to the Consumer Credit Act! ;-)

 

If anyone, especially peterbard, would care to take a look at the following thread...

 

http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/79616-fred_funk-hillesden-sec-ltd.html

 

... and leave their thoughts on there, I'd be most incredibly grateful.

 

Thanks in anticipation

Fred_Funk

[Duffers Mum]

Barclaycard have sent me a copy of what they say is the CCA, but its the application form, more importantly I've signed it, but Barclaycard have omitted to sign it, I presume this means its not enforceable as they appear to have made a slight error, ....ooops please tell me i'm correct here and that I can go back and tell them so as it would give me a great deal of pleasure to do so

[tomterm8]

Barclaycard have sent me a copy of what they say is the CCA, but its the application form, more importantly I've signed it, but Barclaycard have omitted to sign it, I presume this means its not enforceable as they appear to have made a slight error, ....ooops please tell me i'm correct here and that I can go back and tell them so as it would give me a great deal of pleasure to do so

 

They can enforce it, with a court order, as long as the application form contains the prescribed terms. if it's like other barclaycard apps I've seen, close but no cigar - they don't include interest rate, repayment terms, or anything etc.

[noomill060]

tomterm8 is quite right. Barclaycard application forms do not contain any of the Prescribed Terms.

 

This is because they just that- application forms!

 

The Prescribed Terms are in the Terms and Conditions, which dont have anywhere for anyone to sign!

[Duffers Mum]

So I am within my rights to be back to them and tell them, um, well, where to stick it then? As stated in my other threads, I don't mind paying them what I can afford to pay them, but it seems pointless if they are going to continue adding interest and charges (Sainsburys are doing exactly the same, and they too only sent me a copy of my application form, no APR, no repayment terms etc), I really want to make sure I've got my facts correct before I go back to them, asking them very nicely to stop the charges and interest, else I won't pay, and they can't enforce it because all they've got are copies of the application forms! Am I right in that?

[birdkeith]

hi duffers mum,i dont know about that yet but try asking them for a copy of

the original agreement signed by both parties,if they cant or wont do this they probably cant enforce the agreement,but im afraid thats up to a court to

decide,i know you wont want that,but the trouble is so do they and thats

what they count on,your fear of going to court,best of luck birdkeith

[the main man]

My wifes credit card was upgraded half way through from a normal card to a gold card. As a result she was given a new card with a new account number.

 

When issuing a CCA request to the bank recently, we were sent the orignal credit card application form as completed by my wife in 2000. The old account number has been crossed out and the new number written at the top of the page.

 

Aside from all other areas where this CCA request fails, is this legal?

 

Cheers,

 

1970

 

I would also like to know if this practice is OK as GE Money did this to a lot of their store cards last year and converted them to credit cards.

 

After a CCA request they produced the original application (account number which is now classed as settled on the CRA's) and transferred the balance on it to the new account number (which they re-listed with the CRA)

 

GE are insisting this practice is OK, but they would do wouldn't they!! Any thoughts?

[paulwlton]

This is a statement from Chief Executive Mark Fisher of the RBS. Does any one agree with his comment.

 

The unsigned agreement form provided by the Bank to MR ----- is a "true copy" of the loan agreement. Regrettably, with the passage of time the Bank has not been able to locate the original signed loan agreement. In such circumstances, Section 77 of the Consumer Credir Act 1974 provides that the bank can produce to the debtor a "true copy" of the form, completed by using the loan details held in our records.

[Monty2007]

Any competent Judge would take them to pieces. They would have to produce the original executed agreement in court to enforce, irrespective of his interpretation of s.77. He is wrong as many cases here show.

 

He has been badly advised..........

[paulwlton]

Any competent Judge would take them to pieces. They would have to produce the original executed agreement in court to enforce, irrespective of his interpretation of s.77. He is wrong as many cases here show.

 

He has been badly advised..........

 

I agree they would have to produce a signed agreement for a court to enforce it, this is not in dispute. Mr Fisher is saying for the bank to comply with sec77 they are able to constitute the agreement from banking records.

 

If an agreement has been lost and was taken out pre 1985 this may be the case, otherwise i think you're right he has been badly advised.

 

Paul

[the main man]

Well I'm very sorry Sir we seem to have mis-placed your agreement, please accept this one we made earlier!!

 

More like fraud to me.

[maybelline]

but would it be enforceable...

[dpick]

My opinion others will also post, not in a court they have to produce the signed executed agreement not a made up copy how otherwise could they prove you signed that particular agreement. Just think if it was a loan they could make it out as £10000 when it may have been £1000.

 

all the best dpick:)

[gamequeen88]

very good topic and thanks for your details.

 

this is really useful for me ... ...

[pjdavies2000]

Hi,

 

anyone care to comment on this:

Interest rate we charge will depend on our assessment of your application and your conduct of the account.

 

Interest is standard apr plus standard balance monthly interest rate, ie 14.9% APR + 1.167% = 18.7%

 

This was part of a CCA sent by BCard. The CCA part was the usual application form, and the T&Cs had the above. This seems strange as it doesn't actually give any indication of what the interest rate is under the CCA.

 

I am right in thinking that this means one of the prescribed terms is actually missing, and therefore can be the basis for the arguement, not ignoring the fact that the T&Cs are not signed, that the application form is only signed by the consumer and not the card issuer.

 

This is pre 2004 (2000 to be exact).

 

What is the next move?

 

(this is on behalf of a friend, so would welcome advice for her)

 

Peter

[Peterbard]

Hi

I believe this is called risk pricing and is frowned on by the OFT they say this about regular agreements

What about rate-for-risk pricing?

A product may have more than one possible APR according to the amount or duration of credit or for other reasons. For example, different interest rates and/or charges may apply to debtors in different circumstances on the basis of rate-for-risk pricing.

However, each individual agreement may have only one APR – see Q3.65. In the OFT’s view, the document which the debtor signs must contain the APR applicable to that particular agreement. If it does not, the agreement is not properly executed and can be enforced against the debtor only with a court order – see Q1.19.

and they are even more adamant in there dissaproval about distance marketed contracts:

17.35 What about rate-for-risk pricing?

In the OFT’s view, compliance with the Distance Marketing Regulations requires that the actual interest rate and APR, or as close as possible, must be provided pre-contract based on the best information available to the creditor at that time.

Any less stringent obligation undermines the directive’s stated purpose of ensuring that the information disclosed must be sufficient to allow the consumer ‘to properly appraise the financial service offered to him and hence make a well-informed choice’. In the OFT’s view, it would also fail to give due regard to the principles of good faith in commercial transactions if relevant information about a debtor which affects the price of the products available to him is held by or available to the

creditor but the pre-contract information given to the debtor is based on other, inapplicable assumptions.

In the OFT’s view, this means that where credit checks can be carried out in time to include in the pre-contract disclosure, they must be. Absence of credit scoring for a risk related product means that the information provided to the consumer will not reflect the likely cost to them, and will not enable them to make a well-informed choice about the product or its suitability or affordability. In the OFT’s view this does not produce minimum compliance with the Regulations.

 

Best regards

Peter