Is My Agreement Enforceable - Useful

[yogababe]

Hi Steven

 

would you be able to help me with a Northern Rock loan agreement, that i think has some errors. but not sure how to proceed now.

 

the link to the thread is:

 

http://www.consumeractiongroup.co.uk/forum/other-institutions/200562-northern-rock.html

 

thanks

 

T

[yogababe]

ok sorry, to harrass you like this, but i have just looked at my original agreement that i have here and the signature is different!!!

 

Wot can i do ??

[omoeko]

Hi All

 

Can someone please help me check the CCA on the link, I have been told by a mate that its unenforceable.

 

http://www.consumeractiongroup.co.uk/forum/hsbc-bank/179970-phil-hsbc-loan-see.html#post2184665

[steven4064]

Why does your mate thik it's unenforceable?

[omoeko]

Hi Everyone,

 

Would someone be kind enough to chek this agreement for me please, not sure whether its a good idea to have the figures on it.

Edited May 24, 2009 by omoeko

[omoeko]

Hello Everyone

 

Can someone please help me check this agreement, TSB sent me yesterday , 3 months ago, they sent me a bunch of terms and conditions, now they have come back with this one.

 

Attached with the package is a bunch of terms and conditions with my name on the first page, a signed latest copy of the statement.

 

See attached. thx guys

[steven4064]

Hi omoeko

 

If that has your signature on, then it is enforceable as it has all the prescribed terms and cancellation rights.

[shinobi101]

Hi. Any idea if this is enforcable?

 

I have a notice of cancellation, and a DCA is attempting to recover.

 

The agreement is shown on post number 8 in this thread.

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/201111-amex-help-needed.html

 

Many thanks

[Redfish]

Hi there,

 

I wanted the experts advice on the best way I go about finding out if my debts are enforceable?

 

I have been reading through many threads on this forum for the last few days and have read so many discoveries, but as people have discovered new things over time I wanted to clarify some things. We have debts with Abbey Credit Card, MBNA, Virgin, Barclaycard and Egg and we're really struggling.

 

Please let me know if this is the best procedure I should take:

 

1. Send off CCA letters quoting s78 to each of the creditors.

 

2. Wait for 14 days (12+2). If they don't reply with a true copy of our agreement they are in default and cannot enforce the agreement without going to court; they also cannot assign the debt to a DCA as the debt is in dispute. I can now stop my direct debit payments to them and issue them a notice explaining that.

 

3. If they still don't produce the agreement one month later they have committed a criminal offence. I can now ask my bank to repay me anything these creditors have taken from me through the Direct Debit Guarantee promise as they obtained these payments through deception (deception being that they claimed they had a legal right to take money from my account when they didn't).

 

Am I right in believing that also

 

a) A signed application form is not counted as a properly executed agreement as it refers to a potential future agreement rather than a present day agreement.

b) All T&Cs must be contained within one document and not refer beyond the document to further T&Cs?

c) Am I also right in believing that nowadays many of the lenders have been alerted to their faults in not following the correct procedures for loans and are now attempting to tamper with documents to fabricate a properly executed agreement? If so would it be wiser to start with a Subject Access Request first (so that they don't get wind of the fact they have no proper agreement as they are busy collecting all the information they have to send) - and only then follow up with a CCA s78 request if I notice they don't have a properly executed agreement?

 

Also, if I find my agreement is enforceable, how do things stand with s85? If lenders did not send a copy of the signed agreement when issuing new credit card replacements, do they forfeit profits over that time? Does that mean they have to pay back all the interest and any penalties they have been charging?

 

I know you may have been asked these questions before, but it seems that what was talked about in late 2006 is not quite the same as what is being talked about in early 2009 - so obviously there have been discoveries and legal cases clarifying things, as well as amendments to the law/fightback from the lenders.

[the_shadow]

Hi there,

 

Please let me know if this is the best procedure I should take:

 

1. Send off CCA letters quoting s78 to each of the creditors.

Yes

 

2. Wait for 14 days (12+2). If they don't reply with a true copy of our agreement they are in default and cannot enforce the agreement without going to court; they also cannot assign the debt to a DCA as the debt is in dispute. I can now stop my direct debit payments to them and issue them a notice explaining that.Also Yes, but they will chase you and pass to a DCA anyway and will also eventually default you

 

3. If they still don't produce the agreement one month later they have committed a criminal offence. I can now ask my bank to repay me anything these creditors have taken from me through the Direct Debit Guarantee promise as they obtained these payments through deception (deception being that they claimed they had a legal right to take money from my account when they didn't).No longer a criminal offense, you have no right to that money back, it would be unfair enrichment I believe. Consider it a gift to them

 

Am I right in believing that also

 

a) A signed application form is not counted as a properly executed agreement as it refers to a potential future agreement rather than a present day agreement.Not in my opinion, if the application has the required prescribed terms then its counted as an agreement in my opinion, Depends on the date of application though aswell as all agreements post a date in 2007 are considered kosher in court as to s127(3).

b) All T&Cs must be contained within one document and not refer beyond the document to further T&Cs?Correct, see above though

c) Am I also right in believing that nowadays many of the lenders have been alerted to their faults in not following the correct procedures for loans and are now attempting to tamper with documents to fabricate a properly executed agreement? If so would it be wiser to start with a Subject Access Request first (so that they don't get wind of the fact they have no proper agreement as they are busy collecting all the information they have to send) - and only then follow up with a CCA s78 request if I notice they don't have a properly executed agreement? Most of the lenders will not respond to a s77/78 request with an application/agreement now, you will either have to get it via a SAR or via the CPR method.

 

Also, if I find my agreement is enforceable, how do things stand with s85? If lenders did not send a copy of the signed agreement when issuing new credit card replacements, do they forfeit profits over that time? Does that mean they have to pay back all the interest and any penalties they have been charging?NO, for reasons above

 

S.

[Redfish]

Hey Shadow, thanks for your response to each of my points...very useful! In particular your opinion: "Most of the lenders will not respond to a s77/78 request with an application/agreement now, you will either have to get it via a Subject Access Request or via the CPR method." It's very valuable to learn how things have changed in terms of what we might expect, to what the ground realities are now. I really appreciate this insight.

 

I started learning about all this from a great thread which began in 2006, read the first 50 odd pages and got exhausted!! Couldn't read through all the 170 pages to find out how things unfolded, instead jumped to present day where posts and advice seemed so different...so I was wondering if it all was a pipe dream...though I did read a lot of success stories. Good to be brought into today's picture of what I might have in store for me, and how best to tackle it from the outset (psychologically as well as practically).

 

Cheers!

[cantona1]

hi have just recieved back a copy of my credit card agreement with american express but it has no signature on the agreement by me,so i guess its unenforceable.can anyone post me a template letter in which to reply to the lender that the agreement is unenforceable without a signature.thanks

[r&b]

hi have just recieved back a copy of my credit card agreement with american express but it has no signature on the agreement by me,so i guess its unenforceable.can anyone post me a template letter in which to reply to the lender that the agreement is unenforceable without a signature.thanks

 

id be a bit more careful myself... they may or may not have an enforceable agreement. an unsigned executable agreement may meet ur s78 rqst tho......before launching into unenforceable territory and the course that cud potentially take u, its best to have a few more back ups in place...i.e. SAR/ CPR rqsts. if after all that u get no enforceable agreement ur on a lot surer ground....in my view anyway

[omoeko]

Why does your mate thik it's unenforceable?

 

 

Hi MAte

 

I have just placed a comment on the post, my mate said that the way the amount payable has been calculated means that its not the exact figure about some few quids over, he said this constitutes a major breach

[omoeko]

I also have a Lloyds loan here, can someone also confirm if the agreements are right especially the calculation:

 

http://www.consumeractiongroup.co.uk/forum/lloyds-bank/181889-sent-lloyds-cca-request.html

[jayjay11]

Can someone in the "know" have a look at the better copy LTSB sent me in my thread

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/159815-cca-1974-credit-cards-6.html#post2193751

Thanks

Edited May 27, 2009 by jayjay11

[MarkieMark]

Heres some tips... Guys

 

The Regulated Credit Agreement was not properly executed under section 61(1) of the Consumer Credit Act 1974 (‘the Act) in that:-

a) Contrary to section 60(1)(b) the document did not embody all the terms of the agreement other then implied terms in that it excluded a term orally agreed between the parties whereby the creditor would effect insurance of the goods.

b) Contrary to section 61(1) © when the document was presented to the debtor for signature it was not in such state that all of its terms were legible.

c) Contrary to the Consumer (Credit Agreements) regulation 1983 (‘the Regulations) regulation 2 and schedule 1, Paragraph 1, the document did not contain any heading.

d) Contrary to regulation 2 and schedule 1, paragraph 2 of the regulations, the document did not state the name or any address of the creditor or the name and address of the debtor.

e) Contrary to regulation 2 and schedule 1, paragraph 3 of the regulations, the document did not contain any alternatives an adequate description of the goods.

f) Contrary to regulation 2 and schedule 1 paragraph 4 of the regulations, the document did not state the cash price in respect of the goods.

g) Contrary to regulation 2 and schedule 1 paragraph 5 of the regulations, the document did not state the amount of the advance payment to be made by the debtor.

h) Contrary to regulation 2 and schedule 1 paragraph 9 of the regulations, the document did not state the total charge for credit.

i) Contrary to regulation 2 and schedule 1 paragraph 11, of the regulations, the document did not show the total amount payable.

j) Contrary to regulation 2 and schedule 1 paragraph 15, of the regulations, the document failed to state the APR.

k) Contrary to regulation 2 and schedule 1 paragraph 18, of the regulations, the document did not contain a statement indicating that in which might occur under the agreement of the rate or amount of any item entering into that calculation.

l) Contrary to regulation 2 and schedule 1 paragraph 21, of the regulations, the document contained no description of the security provided by the debtor.

m) Contrary to regulation 2 and schedule 1 paragraph 22, of the regulations, the document contained no indication of any charges payable on default.

n) Contrary to regulation 2 and schedule 2, paragraph 3 of the regulations, the document did not contain a statement in the prescribed form setting out the debtors’ right to cancel the agreement.

o) Contrary to regulation 2 and schedule 2, paragraph 5, of the regulations, the document did not contain a paragraph in the prescribed form setting out the debtors rights of termination alternatively contained in the paragraph purporting to set out such rights which was not form the form prescribed by the regulations.

p) Contrary to regulation 2 and schedule 2, paragraph 9 of the regulations, the document did not contain a statement in the prescribed for setting out the debtor’s rights in relation to repossession alternatively contained a statement concerning those rights which did not conform to the said paragraph.

q) Contrary to regulation 2 and schedule 5, paragraph 1, of the regulations, the document did not contain any form of signature box which did not confirm to the requirements of that paragraph.

r) Contrary to regulation 2 and schedule 5, paragraph 1, of the regulations, the creditor’s signature did not appear in the form of a signature box prescribed by that paragraph.

s) Contrary to sections (58(1) and 61(2), the creditor failed to give the debtor a copy of the unexecuted agreement containing the prescribed notice and failed to give the debtor a copy of the document referred to in the unexecuted agreement, namely a blank bankers order.

t) Contrary to section 61(2), the creditor sent the unexecuted agreement to the debtor less then seven days after sending the copy thereof under section 58(1).

u) Contrary to section 61.(2), the agreement being one to which section 58(1) applied, during the consideration period, the creditor without receiving any request from the debtor, frequently communicated with the debtor both by telephoning him and by visiting his home.

4. By reason of sections 61 and 65 of the Act, therefore, the said purported agreement is not enforceable by the creditor against the debtor.

[jimjen]

I registered a new thread on "Martins Money Tips" site the other day broaching the subjext of "are my four credit card agreements unenforcable ? To which I also said that an online legal company ( of which there are many) offered to check the legality of these agreements for a fee of £400 per for each one. If their barrister found them to be unenforcable it would proceed to court and the credit card dept cancelled. If the barrister was of the opinion a case could not be won the £400 fee would be refunded.

* Someone from this consumer forum replied that if I joined this forum my agreements could be checked for free.

(1) How would I do this ?

(2) If found to be unenforcable what would I do then ?

[diddydicky]

scan them ( or get a photobucket account and transfer them onto this site and let us all see them!!

 

remove your personal details from them

 

one step at a time lets check them out first and then you can be advised on the next step

 

do you have the four agreements?

[jimjen]

No, I dont have the original agreements, I suppose I can request copies.

[r&b]

jimjen, why dont u start ur own thread u will get specific answers then and know where u are for future reference. put the link on here for others to follow

[diddydicky]

No, I dont have the original agreements, I suppose I can request copies.

 

you need to do a s ection 78 request and send a one pound postal order with it- if you do a search on here for template letters you will find the appropriate letter'

 

do not sign the requests

 

when you receive them post them up on a new thread

[jimjen]

thank you to everyone.

[Mightyacorn]

Your opinion on the below agreement would be appreciated please, as reply from MBNA to a SAR request:-

MBNA SAR pictures by mightyacorn2008 - Photobucket

 

Thanking you in anticipation

[Reader]

Bump - as I would also like to know as I received one of these yesterday too, I was told on my other thread that this was unenforceable due to missing prescribed terms but I am still a little dubious if this would stand up in court.

 

Reader