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Is My Agreement Enforceable - Useful

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Just thought i'd cut and paste this from Peterbard....it would seem to be very useful, and I hadn't seen it in the DCA section...

 

PLEASE NOTE DUE TO RECENT LEGAL CASES THIS BELOW IS BEING REVIEWED.. 7th January 2010

 

IS MY AGREEMENT ENFORCEABLE( Via section 127(3) CCA1974)

PRESCRIBED TERMS FOR THE PURPOSES OF SECTIONS 61(1)(0) AND 127(3) OF THE

CONSUMER CREDIT ACT 1974 Taken from sced.6(1983/1553) regulations

(If you just want to find out, skip the bits in between the stars it’s just some extra information)

 

**What do we mean by unenforceable?

In the Consumer Credit Act section 127 there is a provision for making an agreement unenforceable if it does not contain certain pieces of information.

Subsections 1,2,3,4 state which pieces of information these are, and everything mentioned there must be included within the body of the agreement, if one is missing the agreement is unenforceable.

 

How does unenforceable differ from enforceable with a court order only?

When an agreement is unenforceable it means that the court or the judge cannot make a ruling on it. The court cannot make it enforceable.

When an agreement is enforceable only by ruling of the court it means that the agreement can be stopped by the debtor but the court has the power to re-instate it and allow the credit to continue to enforce.**

 

The Pescribed Terms are these

 

A Amount of credit

A term stating the amount of credit

 

B Repayments

A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following-

(a) Number of repayments;

(b) Amount of repayments;

© Frequency and timing of repayments;

(d) Dates of repayments;

(e) The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable.

 

C Rate of interest

A term stating the rate of interest to be applied to the credit issued under the agreement

D Credit limit

This may be a term or the manner in which it will be determined or that there is no credit limit.

--------------------------

 

Which of these applies to you depends on the type of agreement you have?

 

For a Running Account (credit card) agreement

 

BC and D Apply

 

 

 

 

For a Restricted Use Debtor Creditor Supplier

  • Where the dealer is the supplier and the creditor is the one providing the finance.
  • The money can only be used for the purpose it is given.
  • There is no interest on the purchase (the cash price is the same as the total price)
  • And there is no advance payment

A is applicable

 

For a fixed Sum Credit Agreement

A conventional credit agreement with none of the above restrictions

 

A and B apply

 

For a Hire Agreement

 

B is Applicable

 

This paper only covers section 127(3) of the Act agreements can also be unenforceable by contravention of sections 1 and4 this will be the subject of the next paper.

Please note that these Prescribed terms where not changed in any way by the 2004/1482 Ammendments although the form in which they appear on the agreement was. Subsection127(3) was repealed on the 6th of April 2007 so that unenforceability due to 127(3) will only apply to agreemens executed before that date.

Edited by 42man
Edited with a note due to recent legal cases....

PLEASE NOTE - I am not a legal expert, what is stated is my own opinion and from what I have learnt from this forum and my own experiences.

 

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This should be stickied.

 

I was told this if this helps, for Credit Cards:

 

If therefore any of the prescribed terms is missing, or incorrect, the agreement is not enforceable against the debtor, and the court is precluded from making an enforcement order.

 

8.3 What are the prescribed terms?

 

The prescribed terms specified in Sch 6 are as follows:

 

* amount of credit – see Q8.

 

* credit limit – see Q8.5

 

* rate of interest – see Q8.6 repayments – see Q8.9.

Sch 6 was not amended by the 2004 Regulations.”


Egg/CapQuest 2 - CCA sent 12/04/07 ****RESULT****

Barclays Bank/Lowell 1 - CCA sent 12/04/07 ****RESULT****

 

Halifax/CapQuest 1 - CCA sent 12/04/07 SD issued ****WON with COSTS****

 

Barclaycard/Cabot - CCA Sent 12/04/07 Unenforcable Application Form

Smile/Lowell 2 - CCA sent 12/04/07 Unenforcable Application Form

NatWest/Fredrickson International - CCA sent 12/04/07 No Reply

 

Halifax/1st Credit - CCA sent 17/04/07 No CA but Threats from 1st Credit & Connaught! - Still Nothing but still chasing!

 

Student Loans Company/CapQuest 3 - CCA sent 11/06/08 - No Reply.

Lowell 3 - Ignored them went over their heads to Capital One

 

Halifax - S.A.R - sent 17/04/07 Completely incomplete!

Halifax 2 - S.A.R - sent 11/06/08 - Scant Info

Capital One - S.A.R - sent 11/06/08 - Scant Info

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I am just looking at what MBNA have sent me,i have been trying to get default removed but each time at the death theyve just scraped in with information.I can get them on not sending default to correct address but now im thinking is the form they sent me enforcible it just seems to be an application form rather than legal cca..any thoughts


MBNA £250 bank charges refunded.:lol:

MBNA claimed £2700 in PPI:lol:

MBNA default removed.

WESCOT balance written off no cca.

WESCOT default removed.

TIME RETAIL.default removed.

LLOYDS TSB.£150 charges refunded

MINT £220 charges refunded.

currently 4 in dispute unenforcible agreements.

HFOS ordered to remove default

YORKSHIRE paid token £200 PPI going now for full £600

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Willy please start your own threead about this, but if it IS an application form, then no it isn't a credit agreement.


Egg/CapQuest 2 - CCA sent 12/04/07 ****RESULT****

Barclays Bank/Lowell 1 - CCA sent 12/04/07 ****RESULT****

 

Halifax/CapQuest 1 - CCA sent 12/04/07 SD issued ****WON with COSTS****

 

Barclaycard/Cabot - CCA Sent 12/04/07 Unenforcable Application Form

Smile/Lowell 2 - CCA sent 12/04/07 Unenforcable Application Form

NatWest/Fredrickson International - CCA sent 12/04/07 No Reply

 

Halifax/1st Credit - CCA sent 17/04/07 No CA but Threats from 1st Credit & Connaught! - Still Nothing but still chasing!

 

Student Loans Company/CapQuest 3 - CCA sent 11/06/08 - No Reply.

Lowell 3 - Ignored them went over their heads to Capital One

 

Halifax - S.A.R - sent 17/04/07 Completely incomplete!

Halifax 2 - S.A.R - sent 11/06/08 - Scant Info

Capital One - S.A.R - sent 11/06/08 - Scant Info

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My wife is concerned about debts that she thinks maybe outstanding she has found agreement and it states that:

 

PERSONAL DATA

I agree you may hold and process, by computer or otherwise any information about me as a consequence of the application and/or agreement “Personal Data”. I agree that you may

(i) Include Personal data in Barclays Group customers systems which maybe accessed by other companies in the Barclay Group for banking and credit assessment, statistical analysis including behaviour and credit scoring and to identify products and services (including those supplied by third parties) which may be relevant to me, and

(ii) With my consent, permit other companies within the Barclays Group to use Personal Data and any other information you hold about me on Barclay Group systems to bring to my attention products and services which may be of interest to me.

You may disclose personal data outside the Barclay Group only:

(a) for fraud prevention purposes;

 

(b) to include reference agencies, if I am in breach of an agreement; or to the extent that I have give my consent,

© under a strict code of secrecy to sub-contractors or person acting as your agents;

(d) to any person who may assume your rights under this Agreement; and

(e) if you have a right or duty to disclose or are permitted to compelled to do so by law.

The above paragraphs (i) and (ii) do not apply to any information specific to business accounts of branches of the Channel Islands or of the Isle of Man unless such customers have informed their branch that they wish to be included in the Barclays Group customers systems.

Personal Data will be deleted from the Barclays Group customers systems as soon as reasonably possibly after you cease to be a Barclays Group customer.

I confirm that the information give in true and complete and authorise you to make any credit reference and other enquires in accordance with the normal procedures in connection with the application

I understand that I can request not to receive details of products or services, other that with my statement, by writing to Barclays.

The tick/cross in this box means that I agree that Personal Data and any other information you hold about me on the Barclay Group customer systems may be used within the Barclays Group to bring to my attention products and services my bay be of interest to me. o

Signed…................... Date…………………..

 

Could the bank sell this off without telling my wife and for her to give consent

 

Many thanks for your help

 

Allwood

 

 

 

 

 

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This should be stickied.

 

I was told this if this helps, for Credit Cards:

 

If therefore any of the prescribed terms is missing, or incorrect, the agreement is not enforceable against the debtor, and the court is precluded from making an enforcement order.

 

8.3 What are the prescribed terms?

 

The prescribed terms specified in Sch 6 are as follows:

 

* amount of credit – see Q8.

 

* credit limit – see Q8.5

 

* rate of interest – see Q8.6 repayments – see Q8.9.

Sch 6 was not amended by the 2004 Regulations.”

 

vamps where did you get this info from?


post office

WON 12/11/06

 

 

abbey

LBA sent 30/10/06

MCOL claim submitted 8/11/06

allocation questionnaire sent 16/12/06

schedule of charges sent 16/12/06

WON

 

2nd abbey claim SAR sent 3/1/07

WON

complaint letter sent 18/1/08

 

alliance and leicester

WON

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I have received a copy of my original application form.

 

It details my static details plus the good bought at the time.

 

Thats all.

 

Does this meet with the CCA or not?

 

Any advice?

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appliction forms are not Credit Agreements


post office

WON 12/11/06

 

 

abbey

LBA sent 30/10/06

MCOL claim submitted 8/11/06

allocation questionnaire sent 16/12/06

schedule of charges sent 16/12/06

WON

 

2nd abbey claim SAR sent 3/1/07

WON

complaint letter sent 18/1/08

 

alliance and leicester

WON

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So, having received an application form as a response to a CCA request (along with a demanding letter for good measure) what's my response?

 

I accept what people are saying but that's no use without some backup here guys.

 

I have no idea what I'm looking at here. What are they actually required to provide me with when I issue a CCA request?

 

 

D

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MMM, i've received an application form,but says credit agreement:

 

CRAP ONE CREDIT AGREEMENT

MY NAME

ADDRESS

 

 

CREDIT CARD ACCOUNT AGREEMENT

credit agreement regulated by the consumer credit act 1974

Please issue to me a crap1 credit card and pin.then basic ifnfo about searching cras.

i have read the terms and conditions setting out the agreement with crap1 and, IF MY APPLICATION IS ACCEPTED I agree to be bound by these terms and conditions,as amended, from time to time,I am over 18 years of age.

then about credit scoring.

Your information and marketing, important: please read " use of information" overleaf(section23 of the agreement), no,overleaf,another separate page with 'these clauses 8,10 and 23 of the terms and conditions that you sign with us. which sets out how your infomation will be used.by signing this application,you agree that information about you may be used like this, regardless of whether or not your application is accepted.

 

my signature(yep i defo signed it) dated then their signature.

 

--------------------------------------------------------------------

is this a proper credit agreement, or could i argue its an application form?

102_0140.jpg

 

102_0152.jpg

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Rate of interest to be applied.

 

Shame that the act did not say also 'and the method of application' which makes all the difference.

 

Note that the rate of interest is NOT the %APR which is a % expression of the total cost of borrowing. Even if there are no costs of borrowing other than interest the %APR it is an approximate figure to one decimal place. The %APR does NOT equal the rate of interest

 

The approximation of %APR does matter though not much. Nearly all lenders will quote a %APR of 10% when the annual rate of interest they apply is 10.0499....%. This means they will collect an extra £49.999 on a ten year loan of £10000.

 

Are therefore CCAs that only quote the %APR enforcible?

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Are therefore CCAs that only quote the %APR enforcible?

 

Bump, cos I would like an answer to that one too.


RMW

"If you want my parking space, please take my disability" Common car park sign in France.

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Well I forget the exact URL, it was posted somewhere but at the minute, I have just surfaced and cant be @r$ed to look but when I put my agreement in which had an APR only, it came back as potentially unenforceable as the stated APR did not match the actual APR in relation to the figures shown on the agreement.

Also, the total amount payable was not as it should have been with the stated APR.

 

This is my next line of defence should those nice people who are related to circus performers and are based in Leeds, decide to continue thier Court claim against me.

It is currently on hold as I have defended and they have not gone anywhere with it since.


Of course I will pay you everything you say I owe with no proof.

Oooh Look....Flying Pigs

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My agreement - any thoughts?

 

AppformShort.jpg


Joint acc - Halifax - S.A.R - (Subject Access Request) sent 06 Oct 06, some statements received 24 Oct 06 - £264 so far! Prelim sent 26 Oct 06. here

 

Bills acc - Halifax - S.A.R - (Subject Access Request) sent 06 Oct 06 - £957 so far. Prelim sent 31 Oct 06

 

Old Student Account - £1082.49 charges and contractual interest - Prelim sent 01 Nov 06

 

Capital One - S.A.R - (Subject Access Request) sent 26 Oct 06 here

 

Monument - S.A.R - (Subject Access Request) sent 26 Oct 06 here

 

Wifes old Lloyds TSB - Gonna nail 'em

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Can i share this news with you,dont know if im posting in correct place.

Asked for CCAs for all my creditors 1 out of 6 has replied but best of all Wescot replied and cos they dont have cca will not pursue £4795.Hoping the rest follow as they are out of time,also mbna have sent me a cheque for £82 of the £250 i was claiming i thought everything was put on hold.


MBNA £250 bank charges refunded.:lol:

MBNA claimed £2700 in PPI:lol:

MBNA default removed.

WESCOT balance written off no cca.

WESCOT default removed.

TIME RETAIL.default removed.

LLOYDS TSB.£150 charges refunded

MINT £220 charges refunded.

currently 4 in dispute unenforcible agreements.

HFOS ordered to remove default

YORKSHIRE paid token £200 PPI going now for full £600

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I applied to 1st credit With a CCA request for Lloyds loan. Had previously made arrangements and was making regular minimal payments.They even told hubby that they had bought the debt. However after sending CCA they wrote back saying they would apply to lloyds for the info then hoped we would make arrangements to repay this in full. That was over 45 days ago. Have heard nothing. Does this mean the end of the matter???

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??????????????

Edited by k1mmie
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However after sending CCA they wrote back saying they would apply to lloyds for the info then hoped we would make arrangements to repay this in full. That was over 45 days ago. Have heard nothing. Does this mean the end of the matter???

Knowing 1st Credit probably not. I would start a thread for each of these k1mmie, you'll get a lot more help that way rather than posting on a sticky.

HAVE YOU BEEN TREATED UNFAIRLY BY CREDITORS OR DCA's?

 

YOU CAN NOW COMPLAIN TO THE OFT ABOUT THEIR CONDUCT UNDER THE CONSUMER PROTECTION FROM UNFAIR TRADING REGULATIONS 2008.

 

 

 

Complaint to the OFT about DCA's threatening legally action on statute barred accounts

 

BEWARE OF CLAIMS MANAGEMENT COMPANIES OFFERING TO WRITE OFF YOUR DEBTS.

 

 

Please note opinions given by rory32 are offered informally as a lay-person in good faith based on personal experience. For legal advice, you must always consult a registered and insured lawyer.

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??????????????????

Edited by k1mmie
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ok post number 10 i cant read it very clearly but to me it looks like the prescribed terms are there so i think it is a credit agreement. post 15 has me stumped. It says short application form on it but it also has something to do with the consumer credit act on it i would say it might pass as part of a credit agreement but as i cannont see the credit agreement part properly i would not really know.


OFT debt collection guidance

 

Please remember the only stupid question is the one you dont ask so dont worry about asking the stupid questions.

 

Essex girl in pc world looking 4 curtains 4 her pc,the assistant says u dont need curtains 4 a computer!!Essex girl says,''HELLOOO!! i,ve got WINDOWS!!'.

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Where do you stand if you take out a holiday online and pay a deposit. Just in the nick of time we had to cancel, due to family ill health, but the company have passed a charge on to a DCA (Newman) for recovery. This is about £500.We obviously lost the deposit we had paid (which is what \i thought was all we would lose). Any help?

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I am unsure of where to start here but i have just had my debt sold on from HSBC to CL Finance for "continued" management! I have been paying towards my creditors via cccs and CL Finance have stated in the letter that i need to take no further action. I would like to know whether is its now possible to demand a copy of my cca agreement before commencing any further? CCCS dont seem to want to advise me on this issue and told me to just keep to my payment agreement is this right??

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Why are agreements unenforceable?

 

The man who wrote the Consumer Credit Act 1974 explains all;

 

As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson

for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust

Ltd [2003] UKHL 40, [2003] 4 All ER 97.

Dr Lawson may be interested to know that I included the provision in question (section

127(3)) entirely on my own initiative. It seemed right to me that if the creditor company

couldn’t be bothered to ensure that all the prescribed particulars were accurately included in

the credit agreement it deserved to find it unenforceable, and that the court should not have

power to relieve it from this penalty. Nobody queried this, and it went through Parliament

without debate. I’m glad the House of Lords has now vindicated my reasoning and confirmed

that nobody’s human rights were infringed.

167 Justice of the Peace (2003) 773.

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I am unsure of where to start here but i have just had my debt sold on from HSBC to CL Finance for "continued" management! I have been paying towards my creditors via cccs and CL Finance have stated in the letter that i need to take no further action. I would like to know whether is its now possible to demand a copy of my cca agreement before commencing any further? CCCS dont seem to want to advise me on this issue and told me to just keep to my payment agreement is this right??

Hi Simon and welcome to CAG.

 

You need to start your own thread on this, that way you will get lots of help and advice on your situation.

 

If you don't know how to do this have a read here http://www.consumeractiongroup.co.uk/forum/welcome-consumer-forums/107001-how-do-i-dummies.html


HAVE YOU BEEN TREATED UNFAIRLY BY CREDITORS OR DCA's?

 

YOU CAN NOW COMPLAIN TO THE OFT ABOUT THEIR CONDUCT UNDER THE CONSUMER PROTECTION FROM UNFAIR TRADING REGULATIONS 2008.

 

 

 

Complaint to the OFT about DCA's threatening legally action on statute barred accounts

 

BEWARE OF CLAIMS MANAGEMENT COMPANIES OFFERING TO WRITE OFF YOUR DEBTS.

 

 

Please note opinions given by rory32 are offered informally as a lay-person in good faith based on personal experience. For legal advice, you must always consult a registered and insured lawyer.

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style="text-align:center;"> Please note that this topic has not had any new posts for the last 3017 days.

If you are trying to post a different story then you should start your own new thread. Posting on this thread is likely to mean that you won't get the help and advice that you need.

If you are trying to post information which is relevant to the story in this thread then please flag it up to the site team and they will allow you to post.

Thank you
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