Is My Agreement Enforceable - Useful

[vint1954]

Thanks for the warning no never counting chickens - was just a light hearted comment in the middle of an otherwise bleak but recovering position for me !The agreement they have already provided is so defective a court could probably not enforce it even if they wanted to - I am probably going to write to the ombudsman anyway re MBNA but just waiting now as they are in breach of a request to produce the agreement. Thanks.

You will need to be specific with the ombudsman. He will not find in your favour for witholding payments. You need to also complain to OFT, Trading Standards, ICO and your MP.

[captain2]

Thanks for your help however I must point out it is not correct to say the Ombudsman will be prejudiced by none payment this is definitely not the case. I am complaining to the FSA and the other bodies such as the Board of Banking Code and Information Commissioners. I appreciate your comments thank you.

[vint1954]

Thanks for your help however I must point out it is not correct to say the Ombudsman will be prejudiced by none payment this is definitely not the case. I am complaining to the FSA and the other bodies such as the Board of Banking Code and Information Commissioners. I appreciate your comments thank you.

No, I was not saying that if you withold payments, the Ombudsman would be prejudiced regarding your case. My point was that they will not give you an excuse to withold payments. Their findings seem to favour the creditor.

[captain2]

Hi again thanks for message a bit alarming if the ombudsman is biased towards creditor have you had some bad experiences there ? Thought it was the other way round ?

[vint1954]

Only what I have picked up reading through many threads. Worth complaining though.

 

If you look out some of pinky69's threads, you should get the picture.

[DOZY]

Hi

 

Back again with the same old storey, I have received two purported CCA,s one from capital one, which is clearly an application ,nothing else sent , and the other was Natwest, again clearly an application , and a host of other papers, the main letter satsblah ,blah ,thanks for your letter on blah, received blah with fee blah, then in terms of CCA copy documentregulations, the "true" copyrequirement can be satisfied by providing a copyof the currant termsof the copyagreement at the date the card agreementwas madeand providing that plus a copy of the current terms of the card agreement.

 

this is not legal is it, there are no t&c,s on the application form.

[DOZY]

Hi

 

Sorry ,my finger appears to be suffering from dementia.

[diddydicky]

Hi

 

Sorry ,my finger appears to be suffering from dementia.

 

so long as there are no PRESCRIBED TERMS on it then it is no good

 

(also it will probably not have the creditors signature on it either if it is an application form)

[captain2]

Hi an application becomes an agreement if the prescribed terms are included which for running agreements i.e. credit cards that really means TCC - total charge for credit and APR and payment terms. Credit limit is usually stated as we will determine this etc. There has to be a signature from both but seal or rubber stamp ok for card co. it has to be legible. So if as on my Capital One application/agreement form the interest is stated as 11.9% 'long term' 'one of the lowest rates in the UK' etc but has no terms showing how or if it can be altered then you could argue for a refund between this rate and the new rate (IF it is held to be an agreement ) if the current rate is far higher as all of them are now.

[DOZY]

Hi

 

You can see the natwest application debt action group -natwest

posted " 30th sep @13-10 pm from "dozy", the capital one application i will try to get posted , but the application form has a printed creditors signiture on it and mine , but no T&C,s anywhere, will try to send later.

 

Also I notice that the natwest one has me as self-employed and repayment protector ticked and a single year card protection for £15-00.

 

The capital one application has me ticked as self employed and employed That i think is because i worked for an agency ,as self employed , but my taxes were deducted via a inland revenue cscs card, also on form i can see above these box,s a "see attached notes" written in by me.

 

the application closing date 11th august 2003, it was also headed application certificate 7813, i made my application july 2003

[diddydicky]

the single premium is for protection against theft and fraud i think and NOT ppi but check

[diddydicky]

Hi an application becomes an agreement if the prescribed terms are included which for running agreements i.e. credit cards that really means TCC - total charge for credit and APR and payment terms. Credit limit is usually stated as we will determine this etc. There has to be a signature from both but seal or rubber stamp ok for card co. it has to be legible. So if as on my Capital One application/agreement form the interest is stated as 11.9% 'long term' 'one of the lowest rates in the UK' etc but has no terms showing how or if it can be altered then you could argue for a refund between this rate and the new rate (IF it is held to be an agreement ) if the current rate is far higher as all of them are now.

 

if it is the application form that is relied upon as the agreement then you MUST have sent it to them with your signature and they must then have signed and returned it to you- so you then have the original!

 

so how can they claim to have the original application form?

 

 

 

also did they send with it the terms and conditions? if so when? and did they allow the cancellation period- SAR will reveal this to be lies me thinks

 

 

i am not an expert but i think that all companies attempting to use the application form as an agreement are lying

[DOZY]

Hi

 

The capital one application creditors signiture was pre-printed on the application form, i have seen the same signiture on another posters form, it is in a broad ink , as if you used a flat highlighter to write it if you get me ,not a thin line signiture.

[diddydicky]

Hi

 

The capital one application creditors signiture was pre-printed on the application form, i have seen the same signiture on another posters form, it is in a broad ink , as if you used a flat highlighter to write it if you get me ,not a thin line signiture.

 

opens up a whole new debate then

 

IMO since the creditor has to make a decision once the application has been completed and sent in by the customer- i would venture to suggest that it is impossible for them to pre sign the application form and allege it is an agreement since once the customer signed it it would become legally binding- even if the customer was not creditworthy (which would then open up yet another argument as to whether they were lending responsibly)

 

one for the legal bods but IMO that proposition is a total non starter

[suzannef]

does anyone know the bank details for moorcroft so i am able to set up a standing order with them. I have phoned but they want all sorts of information which i dont want to give them.

[diddydicky]

does anyone know the bank details for moorcroft so i am able to set up a standing order with them. I have phoned but they want all sorts of information which i dont want to give them.

 

i would write and ask for the information- tell them that until such time as they supply the information necessary for you to set up a standing order- you will make the payments into a separate account and pay them over to them as soon as the standing order is set up

 

alternatively they may send you a paying in book (which will have their bank details on it!)

 

they would find it difficult to suggest you are not paying if they wont give you the means to do so

[DOZY]

Hi Dicky

 

Just got letter ,natwest are not chasing the balance anymore.

[diddydicky]

Hi Dicky

 

Just got letter ,natwest are not chasing the balance anymore.

 

result!

[Damaged ratingz]

Im not too sure how to use this whole forum thing so please be gentle with me. Im not sure if I have posted it in the right place either:confused:

 

I may have dropped a clanger before I found you guys. I have various creditors that I have ignored pretty much for years but today decided to do something about it

 

1. I have a default from Equidebt on my credit file for £1751 opened in 2001 and last payment was £70 in jan 2007 - I spoke to them today and found out it was MBNA and now Equidebt

Will the fact I mentioned wanting to see a copy of the agreement today before I accept this is anything to do with me tip them off and start the ball rolling? shall I send the request asap? What else do you advise?

 

2. I have a letter from Link saying I have been served a notice again for MBNA I have found out from them today that it was for an Alliance & Leicester card taken out in 1998 I think it was Goldfish it then went to MBNA and now Link I was told on the phone that the last payment was made on the 22/12/03 - this is the first time I have had any contact with them - Im kicking myself now after reading about after 6 years they cant chase it. £2722.54

 

Will this count as contact? and null and void the 6 years rule or have I just tipped them off to start a judgement on it?

 

What shall I do about it?

 

3 Marks and Spencer financial sevices

I had a storecard and loan the loan has had a CCJ against it in 13/2/09 and so did the card back in june 2006

I thought I was making 50 per month payments by standing order to the card but found out today it was going to the loan

 

When I called M & S and quoted my reference number the person on the phone said I do not owe anything the balances were at zero and she would send out a letter confirming this for me.

 

Rockwell are dealing with this debt on the card they took the debt over in Dec 2005 and didnt have a single payment or contact from me until today. so I have sent the CCA letter today with a postal order. Have I done the right thing.

 

Still not heard a thing about the loan though

 

Any advice will help me at this moment in time.

[vint1954]

Im not too sure how to use this whole forum thing so please be gentle with me. Im not sure if I have posted it in the right place either:confused:

 

I may have dropped a clanger before I found you guys. I have various creditors that I have ignored pretty much for years but today decided to do something about it

 

1. I have a default from Equidebt on my credit file for £1751 opened in 2001 and last payment was £70 in jan 2007 - I spoke to them today and found out it was MBNA and now Equidebt

Will the fact I mentioned wanting to see a copy of the agreement today before I accept this is anything to do with me tip them off and start the ball rolling? shall I send the request asap? What else do you advise?

 

Send off the letter below, suitably addressed to Equidebt. They have 14 working days from posting to comply.

 

2. I have a letter from Link saying I have been served a notice again for MBNA I have found out from them today that it was for an Alliance & Leicester card taken out in 1998 I think it was Goldfish it then went to MBNA and now Link I was told on the phone that the last payment was made on the 22/12/03 - this is the first time I have had any contact with them - Im kicking myself now after reading about after 6 years they cant chase it. £2722.54

 

Obviously do not make payments on this one. It is only a few months to wait. Your contacting them will have no effect, so long as you have not made payments in that time, and they have not got enforcement (CCJ)

 

Will this count as contact? and null and void the 6 years rule or have I just tipped them off to start a judgement on it?

 

What shall I do about it?

 

Wait for ther next contact.

 

3 Marks and Spencer financial sevices

I had a storecard and loan the loan has had a CCJ against it in 13/2/09 and so did the card back in june 2006

I thought I was making 50 per month payments by standing order to the card but found out today it was going to the loan

 

This will be the agreed paymnent from the court hearing?

 

When I called M & S and quoted my reference number the person on the phone said I do not owe anything the balances were at zero and she would send out a letter confirming this for me.

 

Rockwell are dealing with this debt on the card they took the debt over in Dec 2005 and didnt have a single payment or contact from me until today. so I have sent the CCA letter today with a postal order. Have I done the right thing.

 

Yes

 

Still not heard a thing about the loan though

 

This is the subject of a CCJ, so you need to keep paying this.

 

Any advice will help me at this moment in time.

Hi DR and welcome to CAG. You will get plenty of advice here. I would add that it is best to get a couple of views from others before acting. Just wait a day or sop and you will get confirmation of your next actions. It would be best to start a new thread for each debt. That way it is clearer to follow and advise. On the main page where you forund this thread, is a new thread button.

 

I have put some notes under your posts above. Below is the template letter to send requesting your CCA.

 

Also put a link back to your new threads on here

 

Vint.

 

 

xxxxxxxxx 2009.

 

Dear Sir/Madam

 

Re account no xxxxxxxxxxxxxxxxxxx

 

With reference to the alleged debt to your company, this letter is a formal request of true copy of a signed and dated credit agreement for the above account number, under the terms and conditions of section 78(1) of the CCA act 1974. I enclose the statutory maximum fee of £1.00

 

I expect you to comply fully and properly with this request, within the statutory time limit.

 

I enclose a postal order no xxxxxxxxxxxxx in the sum of £1.00, which is the statutory fee. Note that these funds are not to be used for any other purpose.

 

If you are unable to comply fully and properly with this request, you should confirm this in writing at the earliest opportunity, and certainly within the statutory time limit for compliance, and return the fee.

 

I look forward to hearing from you.

 

Yours faithfully

[car2403]

New threads, please.

 

It's getting confusing with all these posts, so some new threads on each of the issues here would be good.

 

[vint1954]

Hi, it was paid to other companies such as mortgage arears, some on a loan and some to me of which i wasted and spent rather than [pay things off ( stupidly )

 

I dont know yet if there was any comissions but i paid nothing to loan makers and they had to have had something for doing it i should think??

 

So, what would you suggest now?

Morgan, when you start your new thread, move this accross.

 

The £25k limit was removed from the act under CCA 2006. Not sure when this actually came into force? Was this a securred loan?

 

AGREEMENTS REGULATED UNDER THE 1974 ACT

Section 1: Definition of "individual"

 

• 15. Section 1 amends section 189(1) of the 1974 Act to provide a new definition of "individual". This restricts the partnerships that are to be regarded as "individuals" to those consisting of two or three partners, not all of whom are bodies corporate. This means that in future borrowing or hire by partnerships of more than three members will not be covered by the 1974 Act, i.e. these partnerships will be treated in the same way as bodies corporate.
  

Section 2: Removal of financial limits etc.

 

16. Section 2 removes the financial limit for the regulation of consumer credit and consumer hire agreements under the 1974 Act. The 1974 Act currently applies only to agreements where credit provided or the hire payments to be made do not exceed £25,000. In future, all consumer credit and consumer hire agreements will be regulated by the 1974 Act unless specifically exempted, regardless of the amount of the credit or the amount of the hire payments. Section 2(3) extends the application of the provisions regulating credit advertisements to advertisements offering credit regardless of the sum involved, and regardless of whether the creditor requires security.

 

http://www.opsi.gov.uk/acts/acts2006/en/ukpgaen_20060014_en_1

[vint1954]

Looks like 2008

 

Latest updates

 

April 2007

 

Update on Consumer Credit Act 2006

 

 

 

Key provisions of the Consumer Credit Act 2006 were brought into force on 6 April 2007. The following changes amend the Consumer Credit Act 1974 (the “Act”) and represent a significant reform to this regime.

• New definition of “individual”. New lending to partnerships of more than 3 persons is excluded from regulation.
  
• Abolition of automatic unenforceability. Courts will now have discretion to enforce all invalidly executed agreements; the restrictions on this discretion, which applied in respect of certain infringements have now been lifted.
  
• Financial Ombudsman Service (“FOS”). A new consumer credit jurisdiction is added to FOS’ existing mandate. Customers will be entitled to refer complaints (relating to an event after 6 April 2007) to FOS after they have raised the matter with the licencee. Businesses must ensure they have an complaints handling policy and that it meets the minimum standards set out by the DISP Sourcebook, part of the Financial Service Authority’s Handbook. Businesses should also ensure that relevant changes are made to agreements/other documents to include a reference to FOS.
  
• Unfair relationships. This test replaces the extortionate credit bargain provisions. These (significantly wider) provisions will apply to all new consumer lending (not just regulated agreements) except FSA regulated mortgage contracts. However, there will be a transitional period, until 6 April 2008, before application is extended to existing agreements.
  

The next key implementation date is due to be 6 April 2008, when the following provisions are likely to come into effect:

• Removal of £25,000 limit. The Act will apply to lending (consumer credit and hire) up to any amount. However, this limit will still be retained for business lending and there will be an exemption for high net worth individuals (see below). The Department of Trade and Industry (“DTI”) is currently addressing the fact that not all lending over £25,000 for the purposes of buy-to-let will fall outside the scope of the Act, which was the original intention.
  

Edited October 7, 2009 by vint1954

[vint1954]

From Francis Benyon.

 

Addendum: National Westminster Bank PLC v Anthony John Story and Mary Pallister

 

Since the above article was published in Release 49 the Court of Appeal has given judgment in the case of National Westminster Bank PLC v Anthony John Story and Mary Pallister, which is reported at [1999] CCLR 70. This is the first case on section 18 of the Consumer Credit Act 1974 to reach the Court of Appeal. The above article should be read subject to the following comments on the case, which is referred to as Story.

 

Story concerned an agreement between the bank and the appellants made in November 1986 by which the bank agreed to advance a total of £35,000 by three separate credit facilities: an overdraft of £15,000 to Mr Story and two separate loans, of £5,000 and £15,000, to the appellants jointly. By subsequent agreements the permitted overdraft rose to £61,572.78 and the loans to a total between them of £456,012.16. The appeal concerned the latter sum only, and the question was whether or not, under section 18 of the 1974 Act, the November 1986 agreement, so far as it related to the two loans, should be treated for the purposes of the Act as two separate agreements, one for each loan. If the answer was in the affirmative they would on the facts be regulated agreements which were improperly executed, and therefore subject to section 65(1) of the Act (consequences of improper execution).

 

The only ground on which it was alleged by the appellants that the two loans should be so treated was that the loan for £5,000 was a restricted-use credit agreement as defined by section 11(1) while the other loan was an unrestricted-use credit agreement as defined by section 11(2). It was held by His Honour Judge Jack in the Bristol Mercantile Court that in fact both loans were for unrestricted-use credit and that the November 1986 agreement was a single agreement that therefore did not fall within section 18. Both these findings were upheld on appeal. They involved a finding that the only reason the appellants had for treating the loans as two credit facilities rather than one was to provide what Auld LJ at 4E described as ‘simple accounting for what was believed to be their entitlement to mortgage [tax] relief of £5,000’. This would not be a relevant factor for the purposes of section 18.

 

The decision in Story has some bearing on the legal meaning of section 11 of the 1974 Act, but that is not our present concern. So far as concerns section 18 the only interest of the decision lies in certain obiter dicta which reveal an uncertain judicial grasp of the intended working of the section. The purpose of the following notes is to resolve any doubts thus created. References are to the transcript of the Court of Appeal judgment.

 

1. Judge Jack, as quoted by Auld LJ at 3B and 8G, said ‘it would be artificial to break [the transaction] down into three separate agreements and contrary to the way it was made’. This is an inadmissible argument. Section 18(2) clearly and peremptorily says that, where a part of an agreement falls within section 18(1), that part shall be treated for the purposes of the Act as a separate agreement. Section 18(2) is necessarily artificial because ex hypothesi the parties themselves made only one agreement.

 

2. Auld LJ at 6E repeats, without refuting it, a suggestion by counsel that section 18 could have been got round if the parties had negatived its application by an express stipulation in their agreement. This overlooks the fact that section 173(1) of the Act forbids contracting out.

 

3. Auld LJ at 14A-D appears to give support to the suggestion in paragraph 4.5 of the Office of Fair Trading’s discussion paper of June 1995 ‘Multiple Agreements and section 18 of the Consumer Credit Act 1974’ that an agreement is not in parts if the categories are so interwoven that they cannot be separated without affecting the nature of the agreement as a whole. This suggestion runs contrary to the plain wording of section 18 and is without any foundation.

 

4. Auld LJ at 14F supports Professor Goode’s suggestion mentioned above in this article (page 3) that the phrase ‘category of agreement mentioned in this Act’ should be construed as if it said ‘category of agreement mentioned in Part II of this Act’. For the reason I give there, this view is untenable. Auld LJ goes on to say: ‘On that approach . . . restricted-use and unrestricted-use credit agreements . . . are separate ‘categories’’. They are undoubtedly separate categories on either approach.

 

5. Judge Jack and Auld LJ overlooked the effect of section 18(1)(a) in rendering the overall agreement a multiple agreement by reason of two distinct facts. The first (Case A) is that one part of it (the £15,000 overdraft) is a running-account agreement while the other part (the £20,000 loan) is a fixed-sum credit agreement. The second (Case B) is that one part of it (covering £12,000 of the credit advanced) is, as argued in the Comment appended to the CCLR report of the case, a restricted-use credit agreement (being a refinancing agreement falling within section 11(1)©), whereas the remainder is an unrestricted-use credit agreement. Section 18(2) then requires each part to be treated as a separate agreement.

 

In Case A this means that the £15,000 overdraft is a separate running-account agreement while the remainder is a separate fixed-sum credit agreement for £20,000. This is of no significance since overdraft facilities are excepted from having to comply with the documentation requirements of the Act.

 

In Case B section 18(2) means that one deemed agreement is a £12,000 restricted-use credit agreement while the other is an unrestricted-use credit agreement for £23,000. This is significant, because the first agreement is within the Act’s £15,000 limit. However it is not clear on the facts whether the refinancing was intended to be effected by way of the first or the second agreement in Case A (or through a mixture of the two). Section 18(4) is then brought into play in relation Case B. It runs as follows-

‘Where under subsection (2) a part of a multiple agreement is to be treated as a separate agreement, the multiple agreement shall (with any necessary modifications) be construed accordingly; and any sum payable under the multiple agreement, if not apportioned by the parties, shall for the purposes of proceedings in any court relating to the multiple agreement be apportioned by the court as may be requisite.’

This means that the overall agreement must be treated with any necessary modifications as if it were two agreements, one a £12,000 refinancing agreement and the other an agreement for £23,000 which is not refinancing. Any sum payable under the overall agreement (by the debtors or the creditor) was required to be apportioned by the court as may be requisite.

 

By the time the case came to court it would have been clear (though it is not clear from the judgment of Auld LJ) exactly how the £12,000 had in fact been handled by the bank. It would certainly have been held back from the £35,000 borrowing. It would have been held back from drawings under the overdraft, or from drawings on the loan, or partly as to one and partly as to the other. It is submitted that the court’s apportionment under section 18(4) should have been made accordingly. If the entire holdback was from the overdraft then the documentation requirements of the Act would not bite because the £12,000 refinancing agreement would have been entirely by an overdraft excepted from those requirements. If the entire holdback was from the £20,000 loan then the loan agreement would fall to be treated as two regulated agreements, one a restricted-use credit agreement for £12,000 and one an unrestricted use credit agreement for £8,000. If it was partly the one and partly the other the result would depend on how it was divided.

[vint1954]

Ill have a good through that , thanks so much.

And another post on your thread.