Is My Agreement Enforceable - Useful

[k488]

My credit agreement has aall of the settlement key information missing. i.e 1/4 1/2 and 3/4 settlement figures. Is this unenforcable ?

[foolishgirl]

Hi k488

 

It is difficult, if not impossible, to give an accurate assessment of your agreement without seeing it.

 

I suggest you start a new thread in the appropriate forum for this & post your agreement minus the personal details, then post a link to the thread here. This thread is so big you are in danger of your questions getting lost.

[saffy09]

I have just been sent an agreement from santander formlely mbna, which belongs to someone else!! It had all her details on! Data protection springs to mind.

[foolishgirl]

I have just been sent an agreement from santander formlely mbna, which belongs to someone else!! It had all her details on! Data protection springs to mind.

 

Report it to ICO saffy. More importantly have they sent you your agreement?!

[saffy09]

Hi

no i have not received my agreement i imagine it will be in Newcastle!! That is where the other lady lives! How would i go about reporting them?

[foolishgirl]

The Information Commissioners contact details are here:

Information Commissioner's Office - ICO

 

You need to write in with your complaint.

 

I suggest you also contact Santander & point out that (a) they have breached DPA & (b) they are in default of your S77/78 request under CCA1974 & that you expect them to comply within 7 days.

[diddydicky]

The Information Commissioners contact details are here:

Information Commissioner's Office - ICO

 

You need to write in with your complaint.

 

I suggest you also contact Santander & point out that (a) they have breached DPA & (b) they are in default of your S77/78 request under CCA1974 & that you expect them to comply within 7 days.

 

No rush to make a complaint, why not keep quiet and let them terminate and then take you to court- then argue that the court proceedings were unlawful due to their failure to comply with s78

 

when they say that they have sent you the agreement and made a statement confirming that what they sent you is your agreement (so therefore must be the same agreement that they produce in support of their claim) , you can deny that the documents sent to you are sufficient to give rise to a claim as they bear no reference to you (in fact someone else) ask for the case to be struck out and apply for costs

[vint1954]

Just to clear up a matter on another thread, do we clearly understand what cannot be enforced by a Judge in relation to s127 (3) and what a Judge can enforce.

[Foo Fighter]

Hi,

Can anyone advise me regarding this response that I have received from 1st Credit in respect of a complaint after I received very aggressive telephone calls from them .......

 

I requested a copy of the telephone calls and 1st Credit state

"That we are not obliged to provide transcripts/recordings of telephone called as they are not held in a relevant filing system. This interpretation has been confirmed in writing by the Information Commissioners Office".

Furthermore it appears necessary to clarify the definition of a "true copy" of an agreement.

"Where a creditor reeives a request to supply a copy of the executed agreement, the Consumer Credit (Cancellation Notices and Copies of Docuements) Regualtion 1983 apply. Regulation 3(2) states that there may be various information omitted from this true copy. Details are not required to be in the agreement by law include the signature box, signature and date of signature. Thereforee the effect of Regulation 3(2) is that the creditor in only obliged to send out a generic copy of the agreement the debtor has signed up to. The creditor is not obliged to make an actual photocopy of the agreement".

 

"On this occasion 1st Credit have exeeded the required obligations of the law and have provided you with an actual photcopy of the agreement you signed".

 

My questions are:-

 

Is the above correct from 1st Credit insomuch that they are correct in all of the above ?.

 

They have forwarded me copy of the application form from MBNA which is LA-5-96-29-N which was signed in 1996.

 

I have heard that I also need to obtain a statement of account, hence does this mean from MBNA or from 1st Credit ? And, what is the statement of account ?.

 

How do I proceed from here ?.

 

I would really appreciate any help in knowing what to do next ?.

[captain2]

hi see if this of use - it has been copied from another thread and is allegedly from the OFT in May 08 -

 

Credit card agreement argument useful -

 

''Sections 77 and 78 of the CCA 1974 refer to supplying a copy of the ‘executed’ agreement within 12 working days of receiving a written request from the debtor. Failure to do so makes the agreement unenforceable against the debtor until a copy is provided.

 

Execution involves signing the agreement. If no agreement has been executed, it is impossible to supply a true copy of the agreement. Should a creditor supply a copy agreement, even though the debtor has never signed any agreement with that creditor, no indication should be given that it is a true copy or a copy of an executed agreement.

 

To do so may contravene Regulation 5 of the CPRs and be an unfair or improper business practice.

 

The consequence of the debtor not having signed a credit agreement with the creditor is that the agreement is unenforceable except where the court orders that enforcement may take place. Where the agreement was made before 6th April 2007 the court is not able to make such an order unless the agreement was signed by the debtor.

 

Therefore it is misleading to state, when complying with a section 77 or 78 request, that the debtor has signed or would have signed (or similar) the enclosed agreement where the debtor has not done so. From 26 May 2008 such a statement will be a breach of the Consumer Protection from Unfair Trading Regulations 2008 (CPRs). Regulation 5 of the CPRs states that a commercial practice is a misleading action if it contains false information in relation to the main characteristics of the product (amongst other matters) and is likely therefore to cause the average consumer to take a transactional decision he would not have taken otherwise. The product in question is the credit agreement and the main characteristics include the ‘execution of the product’ (Regulation 5(5)(d) of the CPRs).

 

Telling a consumer that he signed such an agreement is also a misleading statement about his rights and the risks he might face as covered by Regulation 5(4)(k) of the CPRs. It is our view that it is likely that a consumer will take a transactional decision to make a payment under the credit agreement or to refrain from exercising his rights under the agreement as a result of being misled about whether he signed it.

 

Breach of Regulation 5 of the CPRs is a criminal offence under Regulation 9 and can also be enforced under Part 8 of the Enterprise Act 2002. Under section 218A of the Enterprise Act, where an application for an Enforcement Order is made the court may require the Respondent ‘to provide evidence of the accuracy of any factual claim’ (such as a claim that a debtor has signed a credit agreement).

 

In addition, it should be noted that threats to take action that cannot be taken is listed as one of the factors that will be considered in assessing aggressive practices in Regulation 7(2) of the CPRs.

 

May 2008 ''

 

 

Hope it helps if you check it out it looks pretty stern stuff for these people who want to hide behind we are allowed to send an unsinged agreement out....

[vint1954]

This of course is their one sided interpretation of the act.

 

This part of the act is a carry over from days when there were no copiers, so copy documents had to be typed or written by hand. In that case, obviously a True Copy could omit the signatures ( no way to copy them) and the date.

 

This is the usual current smoke and mirrors.

 

They are required to provide a "true copy" of your agreement. If they have not taken the copy directly from your agreement, how can they claim it is a true copy. Sending a generic agreement is not providing a true copy.

 

They should provide a statement of account at the time they issued the CCA copy. This should come from whoever repplied to your CCA request.

 

I will post a letter in response on your thread.

[AverageMan]

I hope I have not infringed the rules by posting here.

I have posted my own thread;

http://www.consumeractiongroup.co.uk/forum/store-cards/226478-new-look-store-card.html#post2510975

 

In my case I do have the CCA for a New Look Store card taken out in Nov 2007 by my OH.

 

the carbon copy we have has not got any of her personal details on it. It is signed by her, there is no date on there and is not signed by the creditor.

 

Only received fishing letter from DCA. We have made no verbal/written contact as of yet.

 

My question is if we requested a copy of the CCA and say they did send an exact copy. I assume they would therefore add in her name and address and a date. Would that have any consequences on their part?

 

OH spent £28 and was duped into signing for store card which I imagine now would amount to many hundreds of pounds, because of interest and fees.

 

As I said I have already posted a thread but had not received any replies although it was only yesterday midday I posted. I do not want to appear impatient.

 

I will add most of this to my thread for further clarity.

 

If you could help in anyway at all it may be better to view my thread it has the full story.

 

I appreciate any help on this.

Edited October 18, 2009 by AverageMan
Typos and added additional info

[debs16]

Hi i am new new to this site ,so mite sound that i dont know what i am talking about so bear with me .

In feb 2005 i took out a loan for 26500 they then added ppi on it for 3578 so the total of the loan is 30078 over a period of 15 years .

since then we have paid the 3years payments only with a couple of problems ,since then this year we have claimed back the ppi which was sold to us by the broker loans.co.uk , but the loan people endeavour personal finance have not sent us a new loan agreement without the ppi and our loan payments havent changed is that rite .

I am so sosos confused ,the apr on the loan unregulated credit agreement is 10.9% but since then i have got an annual statement saying that the opening annual interst rate is 11.428 % ,can anyone help me to whether this loan is unenforceable or am i been silly

 

Many Thanks in advence

 

debs xxx

[captain2]

def wouldn't pay that - £28 ? ! cheeky ......rds ...if not signed its not enforceable but she will have defaults now .......ombudsman would deal with that -

[AverageMan]

Captain you say it is not enforceable because of the fact it is not signed.

 

I have seen conflicting information on that opinion so not sure.

 

We have yet to start the ball rolling on this as to make contact now would mean a barrage of contact from DCA since OH only uses this as postal address (C/O) it would be unwise;

 

a) to contact DCA/creditor until we have enough knowledge and info.

 

b) to contact ombudsman as we have not taken up complaint with creditor or DCA

 

c) contact credit agency to obtain copy of file as that would inadvertently alert the DCA/creditor to the fact that their fishing letter has reached the correct party.

 

In any case thanks for the input. Anything positive can only be encouraging.

[captain2]

got to be signed by both parties - but the creditor sign can be rubber stamp -

[AverageMan]

Is there anything concrete available you could point me towards on here.

 

I must admit I am reasonably PC and internet savvy but I am a bit overwhelmed on this site at the moment.

 

I see you are quite new to here too. So perhaps you are as lost as me LOL

 

Thanks for your time.

[car2403]

AverageMan, you (and the other posters asking questions about their individual cases) really need to have your own thread.

 

Go to the Forums Homepage (www.consumeractiongroup.co.uk/forum) and start a new thread in the relevant subforum - there's a beginner's guide to CAG in my signature if you don't know how.

 

This will mean all posts/replies to your thread will be in one place and incorrect/inaccurate information can be publicly corrected.

 

FYI - the Creditor's signature isn't a requirement to enforce the debt, as s.127(1) and s.127(3) CCA 1974 only requires a debtors signature as a minimum to allow enforcement. That's for agreements signed before 7 April 2007. Any agreements signed after that date don't even require a debtor's signature, as s.127(3) was repealed by the CCA 2006.

 

Once you have started your new thread, someone will be along to advise you on your next steps.

 

[Notty]

I have finally recieved a reply from the cca request to Link. I have sent the SAR to mbna but nothing yet. I sent the cca request to Link months ago. They have sent the cca it is for Abbey MBNA card from 2002. It is signed and dated and it does say on the front page about "a summary of the Financial & Related Conditions for each product is set out overleaf". I have uploaded the front and back of the cca. The writing is so small but I wonder if its enforceable?

 

http://i815.photobucket.com/albums/zz80/Daxknight/img181.jpg

 

http://i815.photobucket.com/albums/zz80/Daxknight/img180.jpg

Edited October 25, 2009 by Notty

[angry cat]

http://www.consumerforums.com/resources/templates-library/86-debt-collectors/609-mbna-agreementsapplication-forms

 

Recommend that you also post up the alleged agreement here:

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/105315-my-agreement-enforceable-useful-48.html

Edited October 25, 2009 by angry cat

[Notty]

It says on the link to contact a site team member to have any different MBNA posted on that thread. Do you know how you go about it Angry Cat? Thanks for the links.

[angry cat]

I have sent a message to the site team on your behalf.

 

AC

[MARTIN3030]

Posts moved here so its not a thread as such since its shared with other users so dates of posts will tale priority for first posters.

[Notty]

Hi Martin3030

Thanks for moving the post but not sure what you mean on your thread about first posts. Would someone be able to have a look at the agreemment for me to see if its enforceable. Thanks again.

[diddydicky]

I have finally recieved a reply from the cca request to Link. I have sent the SAR to mbna but nothing yet. I sent the cca request to Link months ago. They have sent the cca it is for Abbey MBNA card from 2002. It is signed and dated and it does say on the front page about "a summary of the Financial & Related Conditions for each product is set out overleaf". I have uploaded the front and back of the cca. The writing is so small but I wonder if its enforceable?

 

http://i815.photobucket.com/albums/zz80/Daxknight/img181.jpg

 

http://i815.photobucket.com/albums/zz80/Daxknight/img180.jpg

 

at a guess from what i can see i'd say "not in a million years"

 

its not even headed as a regulated agreement!!