Agreement Enforceability

[snlc]

moved to Consumer credit agreements thread. Sorry.

Edited August 26, 2008 by snlc

[Chalkitup]

Thanks Chalki

 

 

 

Can you explain how you determine whether or how the Terms and Conditions are linked to the signed page?

 

jax

 

Whoops ... sorry jax I should have deleted number 2 ...... that was a different case where the prescribed terms were within another document.

 

Onwards and Upwards

 

Chalkitup

[loramos]

Morning all I'm new to this site so hope I'm on the correct thread.I will try and be brief Sent cca's request to Triton (acting for RBS) on 5th Aug follow up on 19th Aug.recieved letter dated 22 aug from RBS Enclosed cc application headed "must be returned before june 2001" Signed and dated by me on 4th June 2002. A cca with no mention of RBS anywhere.No signaturesat all. If I want statements they will tell me how much they will cost.They confirm that Triton are managing my account( i.e sending demand letters) and confirm that the debt has not been sold. Do I reply to them or Triton or just wait for the 30 days before I send last letter.Paying RBS £1 per month ,do I stop?Is there any relevance in the fact that the appliction had to be in before june 2001 and was not received until june 2002? many thanks

[snlc]

Morning all I'm new to this site so hope I'm on the correct thread.I will try and be brief Sent cca's request to Triton (acting for RBS) on 5th Aug follow up on 19th Aug.recieved letter dated 22 aug from RBS Enclosed cc application headed "must be returned before june 2001" Signed and dated by me on 4th June 2002. A cca with no mention of RBS anywhere.No signaturesat all. If I want statements they will tell me how much they will cost.They confirm that Triton are managing my account( i.e sending demand letters) and confirm that the debt has not been sold. Do I reply to them or Triton or just wait for the 30 days before I send last letter.Paying RBS £1 per month ,do I stop?Is there any relevance in the fact that the appliction had to be in before june 2001 and was not received until june 2002? many thanks

 

 

Triton are an RBS company, it's all in-house, wont matter who you pay because Triton are listed in Companies House as a dormant company, they have no staff, no costs, no nothing and RBS pay everything for Triton - they are listed Dormant because effectively they do not 'trade' and require no accounts to be filed - crazy, but I took this up with Companies House and apparently it's kosha.

[europa16]

I've been having another look at my Mint docs (see thread http://www.consumeractiongroup.co.uk/forum/general-debt-issues/118865-mint-application-form-theyre.html) and I'm not totally sure I've got myself totally covered.

 

In the application form, there is a statement under "declaration", which says

 

'I accept to be bound by the general conditions applying to the card as set out separately and the details about the card as set out overleaf'.

 

and, in the box marked "Your right to cancel", it says,

 

'...Exact details of how and when you can do this will be sent to you by post by RBS Advanta.'

 

The first statement refers to the T&Cs that were sent with my CCA request (which make reference to promo APRs in July '99 and have the other prescribed terms in it) in 2007. I know these docs were not with the application form when I applied for the card in '98, but to me, could this be interpreted as being part of the same docs, and therefore, enforceable to a judge?

 

Also, details on the reverse of the application form which it mentions are not present (it's a one-sided copy).

 

The second statement, in my opinion, contradicts the first -the T&Cs show details of how to cancel the agreement, which would imply that these docs were sent separately and some time after the application form.

 

However, there is a further statement which throws confusion on this...

 

'General conditions applying to the card. (These general conditions form part of and should be read with the credit agreement signed by us and with your copy of the credit agreement.)'

 

How could I have read these conditions with the application form (credit agreement?) when they were sent separately, and how do I prove I never received my copy of a completed, executed credit agreement?

 

Every time I think I'm getting on top of these things, I spot something that could throw a spanner in the works

 

Comments welcomed.

 

[europa16]

shameless bump :D

 

Seriously, though, I do need opinions on the above post please

[Number6]

Anyway to put an end to the controversy a letter was sent to the DTI to settle the matter the reply said unequivocally that an application could never be enforced as an agreement. (The letter is posted on here if you click me then my threads you will find it under letters from the dti).

 

I can't find a copy of this letter, can someone link me to it please?

 

Pete

[rhsymonds]

http://www.consumeractiongroup.co.uk/forum/general/93663-letters-dti-oft-regarding.html

 

[Number6]

Thanks, but I found the thread, it was the specific letter from the DTI relating to the inaplicability of Application Forms that I was after, I can't see it in the thread referred to.

 

Pete

[rhsymonds]

http://www.consumeractiongroup.co.uk/forum/show-post/post-860965.html

 

It is also a breach of the Act and the Regulations to send the application form rather that a “true copy” of the Agreement.

?

Edited November 11, 2008 by rhsymonds

[charliebubs]

subbing

[castella]

Hi everyone--

I have recently received a witness statement from hbos which states--

'The request for information under the act referred to by the defendant does therefore not have the effect which he alleges. In support of this point I enclose the the judgement in Rankine v Various 2008 & marked ---. I would refer to paragraph 16 in that case which refers to a request for information under the act. It will be noted in that case it was held that the prohibition on enforcement which the defendant was referring to is only aganst a creditor "under an agreement". The agreement was however, at an end due to the default notice being served and not complied with. It was also held that the word "enforce" is not descriptive of the comencement of proceedings and even if the claimant had not complied with the defendants request for information this would not prevent the proceedings being brought.'

In any event all documents have now been provided to the defendant---section 78 (6) of the act provides:"if the creditor under an agreement fails to comply with subsection (1) : (a) he is not entitled whilst the default continues to enforce the agreement." The prohibition would therefore only continue "whilst the default continues" which is not the case here.

THe CCA request was done in jan 2008-- They did not send any paperwork until august 2008--but issue a claim in may 2008--

anyone any thoughts on this please especially re the rankines & what they have stated ref paragraph 16

regards castella (I have a thread under bank loans)

[car2403]

The Rankines judgment is very unsafe, IMHO, as it seems (if you read it all) that the Judge was very angry with the Rankines by claiming that they had written off all of their remaining debt by challenging them under the CCA - this is something that should have never entered the Courtroom, (even if it were true) and clearly prejudiced the Judge's decision against them.

 

To my knowledge, this Judgment has never been relied on successfully in the way it has been laid out above. It was also made by a fairly inferior Court, from memory, so reliance on much more established caselaw (Wilson v FCT, etc) should be used here.

[Viscount Stair]

It was a decision in the High Court by a Deputy Judge (ie a Circuit Judge on temporary promotion).

[toymaker1]

Hi everyone--

I have recently received a witness statement from hbos which states--

.........all documents have now been provided to the defendant---section 78 (6) of the act provides:"if the creditor under an agreement fails to comply with subsection (1) : (a) he is not entitled whilst the default continues to enforce the agreement." The prohibition would therefore only continue "whilst the default continues"

 

Unfortunately, if what what HBOS have said is correct - that they have now provided you with the relevant copies of the executed agreement, as requested by you under S76 of CCA 1974, then it seems that you cant stop the court proceedings against you going ahead. In that case I dont know why HBOS is making those convoluted arguments re Rankines case. By providing you with the required copies, it makes the Rankines case irrelevant.

The thing to check is if HBOS has REALLY fully complied with CCA e.g. are the copies true copies, are they readable etc etc.

If documents are all correct and fully comply with CCA requirements, HBOS seems to have "cooked your goose" unfortunately.

 

Regards

[Peterbard]

HI

This is a copy of the OFT guidlides from a pamphlet produced in 2001 it may be of help allof thesse terms nust be included within the signature document.

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 enough 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 forms of protection and remedies provided for the customer

 

7 A signature box

 

Point to note

In the case of regulated agreements (principal agreements) which contain the option of credit protection insurance or other contracts relating to a guarantee of goods (subsidiary agreements) the heading, statement of protection and remedies available to debtors under the Act, and

signature box applicable to the principal agreement may be used where these are different from those which would be applicable to the subsidiary agreement.

 

 

Financial and related particulars

 

The following information must be shown together as a whole and not interspersed with any other nformation, apart from cross-references to terms of the agreement and subtotals of the total amounts.

 

1 In the case of agreements for fixed-sum credit where the money must be spent on specified goods, land or services, a list or description of the items, together with their cash price. Where there is more than one list or description of the items to be bought with the credit, the cash price of each must be shown, together with the total cash price. For instance: ‘mahogany dining room suite, six chairs and one table, £1,500; colour TV £298; total cash price £1,798’. Where there is more than one list or description, the cash prices and descriptions can be shown in a schedule to the agreement, provided that the agreement itself refers to the schedule and states the total cash price.

 

Points to note

The cash price is the price at which the seller would be prepared to sell to a buyer for cash.

It excludes any credit charges and is net of any discount offered to the customer.

‘Specified goods’ etc means goods agreed upon before the agreement is made. Thus these

are specified goods for a hire-purchase agreement but not, for example, for a trading check.

 

 

2 The amount and nature of any advance payment. This includes a deposit, any amount allowed in part exchange, and any other payment the customer has to make before being provided with credit or before entering into the agreement.

 

3 The amount of credit to be provided under a fixed-sum agreement (for example, a cash loan) or particulars of the credit limit under a running-account agreement (for example, a credit card).

 

The credit limit can be expressed as:

a a sum of money,

or

b a statement that the trader will, under the agreement, periodically determine

the credit limit and notify the customer,

or

c a sum of money together with a statement that the trader may, under the agreement, periodically vary the credit limit and notify the customer,

or

d if (a) (b) or © above are not appropriate eithera tatement indicating how the credit limit will be determined and notified to the customer

or a statement that there is no credit limit.

 

 

Point to note

Under a fixed-sum agreement where the credit must be spent on specified goods, land or services, the amount of credit will be the total cash price less any advance payments. If there are no advance payments, nor any charges for credit under such an agreement, the amount of credit (which will be the same as the total cash price) need not be shown.

 

4 The total charge for credit and the total amount payable by the customer in the case of most fixed-sum agreements. The exceptions are given in the ‘points to note’ below. Charges payable by the customer that form part of the total charge for credit are explained in the booklet Credit charges and APR

The total amount payable is the sum of the amount of credit provided under the agreement,the total charge for credit and any advance payments. If either the total charge for credit or the total amount payable cannot be precisely calculated, an estimate can be shown – provided that this and any assumptions made in the estimate are stated.

 

Points to note

Point 4 does not apply to fixed-sum agreements where:

The credit must be spent on specified goods or services, and the total amount payable is not more than the total cash price (that is, there are nocredit charges). Nor does it apply to fixed-sum agreements under which the timing and/or amounts of repayments of credit are not specified, or the total amount payable can vary according to any formula specified in the agreement (including the level of any index, for example the house price index), or the amount or rate of any credit charge can vary (whether in accordance with the level of an index, for example, bank base rate or otherwise). In these cases, the details of interest and other charges to be shown are the same as those required for running-account agreements, as explained below.

 

 

 

5 In the case of all running-account agreements and of any fixed-sum agreements of the sort mentioned immediately above, the rate of interest and the total amount of other credit charges (for example a commitment fee).

 

 

 

Point to note

 

 

If the amount of any credit charge other than interest cannot be stated, its rate or how it is to be calculated must be shown. If interest or any other credit charge is shown on an estimated basis, this and any assumptions made in the estimate must be stated.

 

 

6 The timing and amount of repayments of credit and credit charges. Timing can be shown by one or more of the following methods:

 

the dates on which each repayment is to be made,

 

 

or

 

 

the frequency and number of repayments together with the first repayment date, or how this is to be calculated,

 

 

or

 

 

a statement showing how the dates of repayment are to be determined.

 

 

 

The amount of each repayment can be shown as a sum of money, or as a proportion of an outstanding balance, or as a proportion of a specified amount (or by any combination of these factors). If it is not possible to use any of these methods, there must be a statement of how the repayments will be calculated.

 

 

7 The APR which must be denoted as ‘annual percentage rate of the total charge for credit’, ‘APR’ or ‘annual percentage rate’. The only case in which the APR need not be shown is in a fixed-sum agreement for credit to be spent on specified goods or services where the total amount payable is the same as the total cash price (that is, there are no credit charges). In that case there must be a statement indicating this.

 

Points to note

 

 

Under an agreement where any part of the total charge for credit will or can vary, there must be – linked with the disclosure of the APR – a statement that this has not been taken into account in calculating the APR and indicating how, and where possible when, any variation may occur.

 

 

If the APR takes account of life assurance premiums paid to an insurance company net of income tax, this must be stated.

 

 

Some tolerances are permitted in calculating the rate of APR and the disclosure of it. These are similar to those for the APR disclosed in credit advertisements and quotations (see the booklet Credit charges and APR).

 

 

The APR must also be as prominently displayed as any other piece of financial information (including any statement of a rate of interest).

 

Statements of customer’s protection and remedies

 

 

Statements about the main rights of customers provided by the Act must be included in the agreement in the form set out in Appendix 1.

 

The statements about termination and repossession of goods, in the case of hire-purchase or conditional sale agreements, must be shown together as a whole with the financial and related particulars described on pages 9–12 and not interspersed with any other information. (See tatement 4 in Appendix 1.) Alternatively these statements can be shown elsewhere (for example, on the reverse of the agreement) as long as a reference to them is included with the financial and related particulars. All statements in Appendix 1 must reproduce the specified wording. Where words are shown in capital letters they must be made more prominent (by using capital letters, underlining, large or bold print, or in any other way) than any other lettering in the form and no less prominent than any other information in the agreement, apart from the heading, the APR, trade names, names of parties to the agreement, or handwriting.

The statements draw the customer’s attention to the following:

 

1 His cancellation rights in all cases. The most common form will be statement 2 in Appendix 1. Statements 1 and 3 are designed for the special cases described in the Appendix. As indicated in the Appendix, the words must be inside a ‘box’. This box must be placed immediately above, below or beside the signature box.

 

2 His right to terminate a hire-purchase or conditional sale agreement before the agreement has expired, and his protection when a trader repossesses goods because the customer fails to keep up payments (statement 4 in Appendix 1). In these respects the position is the same as under the Hire-Purchase Acts.

 

3 The possibility of a rebate in some cases if a customer pays off his account early, and his protection under the Act generally. See statement 8. The right to a rebate will apply when a customer pays off his debt early on or after 19 May 1985. The agreement concerned can itself have been made before that date. Rebates on early settlement are explained in the booklet Matters arising during the lifetime of an agreement. Statement 6 is similar, but also points out that if a supplier of goods or services is in breach of contract, then – where they are different persons – both the supplier of the goods or services and the supplier of the credit can be sued in the case of agreements covered by section 75 of the Act (for example,credit provided for the supply of goods or services, or goods or services bought with a bank credit card). These agreements are explained in the booklet Equal liability 4 Under credit token agreements, for example, a bank credit card agreement, the customer can be made liable for any loss up to £50 arising from misuse of a credit token which has been lost or stolen. As well as complying with the form and content requirements such credit token agreements must show prominently the name, address and telephone number of the person or company to whom loss or theft should be reported. The agreement must reproduce statement 9 in Appendix 1.

 

 

Legibility

The agreement may be printed, typed, or handwritten, or a combination of these. There are no regulations governing the size of lettering as there were under the Hire-Purchase Acts.

In all cases, however, the main parts of the agreement – containing terms of the agreement or other required information – must be easily legible. The colour of the lettering (including figures and symbols) must be readily distinguishable from the colour of the paper. These requirements do not apply to signatures or to information not required by the Act or Regulations (for example, information for ‘office use only’).

 

Point to note

There is an additional requirement in the Act itself that when the agreement is presented or sent to the customer for signature, all its terms must be readily legible. This means that, for example, it must not be fastened together in such a way that the customer has difficulty reading the terms.

 

 

Signatures

All agreements are to be signed by both customer and trader, or their representatives, and the date of signature entered. The customer’s signature and its date must be inside a box. This box can be of any size and appear anywhere in the agreement, but the wording inside it must be easily legible and must follow that for the appropriate type of agreement as set out in Appendix 2. The signature of the trader and its date must be outside the customer’s signature box. Similarly the signature of any witness, and its date, must also be outside the customer’s signature box.

 

Point to note

In the case of regulated agreements (principal agreements) which contain the option of credit protection insurance or other contracts relating to a guarantee of goods (subsidiary agreements) the signature box which is applicable to the principal agreement only may be used where this is different from that which would be applicable to the subsidiary agreement.

 

 

Best regards

Peter

[Peterbard]

Unfortunately, if what what HBOS have said is correct - that they have now provided you with the relevant copies of the executed agreement, as requested by you under S76 of CCA 1974, then it seems that you cant stop the court proceedings against you going ahead. In that case I dont know why HBOS is making those convoluted arguments re Rankines case. By providing you with the required copies, it makes the Rankines case irrelevant.

The thing to check is if HBOS has REALLY fully complied with CCA e.g. are the copies true copies, are they readable etc etc.

If documents are all correct and fully comply with CCA requirements, HBOS seems to have "cooked your goose" unfortunately.

 

Regards

 

 

HI

Yes unfortunately it does seem to be a correct quotation of the judgement however PT found a letter,i think it is posted erlier in this thread where the good Proff Godde condemmed the "under the agreement" part of the csse as being wrong.

IN other words in his opinion which i think would probably bear as much if as not more weight as the curcuit judge in question a request under 76etc can be made at any time as long as there is money outstanding on the account. The part about enforcemant though was not challenged.

 

Peter

[maybelline]

Peter - good to see you back:) this thread has helped many!

[Desperate Daniella]

subbing

[Number6]

subbing

 

There's no need to post just to sub.

 

If you look at the top of any page of any thread there is a drop-down called 'Thread Tools'. Click this and select 'Subscribe to this Thread', choose the notification method and hey-presto - you've subscribed without cluttering the thread.

 

Pete

[angel_1]

Thanks Pete for the oft guidelines in the early post of yours today

 

will come back later

 

finally going to do dinner

 

laters all keep happy

 

angel x;)

[Desperate Daniella]

Thank you for that info, Number Six,

 

Peter B,

 

Thank you for posting the OFT guidelines. Forgive me if I am being dim here:

 

Under Statement of a Customer's Protection and Remedies, it states:

 

'1. His cancellation rights in all cases', and says these words must be in a box immediately above, or next to the signature box.

 

If the agreement states that there are no cancellation rights due to the fact that the agreement was signed on the creditor's premises, etc., does this statement that there are no cancellation rights also have to appear in a box, and above/next to the signature box?

 

This is a credit card application with somewhat obscure wording, so apart from anything else I'm interested in the box. The paragraph about not having cancellation rights isn't above the signature box - it's above a paragraph headed 'Principal Cardholder's application' then there is the signature box.

 

Thank you.

 

DD

[oxymoronish]

Hi guys

 

Can Anyone help here i sent my 1 st cca letter off and got a reply from hillsden securities regarding my egg account although the signature is OK , i don't know if its me or not but is a lot of the cc agreement missing and if it is are they trying to hide it? what should i be looking for , thanks for any help.

it only goes up to 5.1 then looks like the rest has been rubbed out.

[rich2568]

this is a super thread.

 

what I would like to know is if the Original Creditor can just send blank copies of T & C`s/ Application Form and state "They have fulfilled their legal obligations under S78"??

 

surely this is about enforcement- if they are blank how could they then enforce the debt. Also if the T & C`s are a seperate page, then how could they prove in Court that you signed the App form- which had these supposed T & C`s `attached` to them??

 

I`m just about to write back to BARCLAYS for their failure to provide valid docs with the correct details on- inc prescribed terms- the ones they have sent are a load of tosh!!

 

Nowhere in my docs/ T & C`s does it state for example how much they would charge for exceeding limits- yet they charged this several times on the account-in a letter they sent they stated :-

 

" this is a statment of the T & C`s with us and incorporates any variations to the T & C`s since you entered into the agreement. However the interest rates have been omitted and the fees and charges have been suspended and no longer applicable due to the current status of your account"

 

see my thread:-

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/120129-hfo-services-new-dca-2.html#post2110580

[Peterbard]

Thank you for that info, Number Six,

 

Peter B,

 

Thank you for posting the OFT guidelines. Forgive me if I am being dim here:

 

Under Statement of a Customer's Protection and Remedies, it states:

 

'1. His cancellation rights in all cases', and says these words must be in a box immediately above, or next to the signature box.

 

If the agreement states that there are no cancellation rights due to the fact that the agreement was signed on the creditor's premises, etc., does this statement that there are no cancellation rights also have to appear in a box, and above/next to the signature box?

 

This is a credit card application with somewhat obscure wording, so apart from anything else I'm interested in the box. The paragraph about not having cancellation rights isn't above the signature box - it's above a paragraph headed 'Principal Cardholder's application' then there is the signature box.

 

Thank you.

 

DD

 

Hi

 

If the agreement is dated before the 6th august 2005 it doesnt have to have a statement sayng it does not give cancelation rights unfortunately.

Is it possible for yu to post your agreement on here and we will have a look

 

Peter