Is My Agreement Enforceable - Useful

[vint1954]

Hello there ive got exactly the same with my Egg card agreements the right to cancel is part of the 1974 CCA ACT but nowhere in the Eg agreement is it referred to not even in the separate supporting generic terms and conditions they have sent with the copy agreement. But the ACt also mentions they can be posted with the card and use of the card is deemed acceptance of this right.

But how do you know they wont just say they did that as without a signature there is no way of knowing I suspect the ACT means its got to be in the agreement too AND posted out withe card ?

 

If someone could clarify this it might help save me £20k at Egg.

If you start your own egg thered, you should get more advice and those that help will be able to keep track.

 

Strangely, the right to cancell is not a prescribed term, but needs to be on the signature document, or a note directing you to it.

 

Vint

[vint1954]

Hello I did start my own thread but someone hijacked it and put it back on here - i dont know how or why someone would want to interfere but he thought it should be in this thread. As i am not entirely sure as to how this site works I did not know any better at the time. Also thanks for the reply if its not a prescribed term the court may enforce ? but if its supposed to be part of the agreement I suppose its discretionary is it or is it mandatory ? and are they thus likely to enforce ? Also no credit limit in the agreement which IS a prescribed term but can that be stated as we will advise you of the credit limit instead and be valid ?

Thanks

Hi,

 

I don't think that it has been hijacked, just moved from the letter templates area. It is now in Debt Collection, Here:

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/215212-key-ingredients-enforceability-credit.html

[vint1954]

It is strange to have previous address under terme and conditions.

 

Have you put in a proper CCA request.

[vint1954]

Hi Sunilrai, and welcome to CAG.

 

If you click the link below, then 1/4 of the way down the page, on the left, is a button marked new thread.

 

Give your thread a title, then some detail in the message box. If you can scan your agreement and post it in your thread, others will be able to look and comment. Don't forget to edit your personal details out.

 

Debt Collection Industry - The Consumer Forums

[vint1954]

Hi Amy,

 

To start things off you need to send this letter for each of your creditors that you are struggling to pay. This is to see if the agreement that you signed is legally binding.

 

Spend some time reading through similar threads to understand just what you will be up against.

 

You will then need to start your own threads, one for each card.

 

Dear Sir/Madam

 

Re account no xxxxxxxxxxxxxx

 

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 xxxxxxxxxxxxxin 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

 

Print do not sign your name.

[vint1954]

No a legal eagle, but that is wrong. If they do not provide the agreement within the prescribed time frame, the account goes into dispute.

 

Having a non enforcable agreement, does not mean that the debt goes away. The full amount may not be the true debt level, but without the agreement, they cannot enforce through a court.

[vint1954]

Can someone please point me in the direction of a good letter to explain to cabot that they've sent nothing more than an illegible application form. I’ve got them ringing me and threatening me with court action and I’ve seen letters around that will put these idiots right in there place.

 

I shouldn’t send them anything really because I’ve already done this once, but they’re claiming they didn’t get my correspondence despite recorded delivery.

 

I’m not after a letter from the templates here, I’ve seen several that have been added to threads but I’m struggling to find one now.

 

Thanks in advance

xxxxxx 2009.

Dear xxxxxxxxx,

ACCOUNT IN DISPUTE

Re account no xxxxxxxxxxxxxxxxxxxxxxxxxxx

I write regarding recent communication regarding the above account.

Further to my request under the above act, your attention is drawn to the fact that this account remains subject to a lawful serious dispute. On xxxxxxxx, by recorded delivery, I requested that you supply me a copy of the executed credit agreement covering this account pursuant to the Consumer Credit Act 1974 section 78, a copy of this request is enclosed. To date you have failed to comply with my request, supplying only an illegible copy of the front page to an application form and generic terms & conditions, which cannot be linked to any agreement which you claim that I have signed and a further set of again unrelated terms and conditions. Without production of the said agreement I am unable to assess if I am indeed liable for any alleged debt to you, nor does it give me any chance to evaluate whether any original agreement was ‘properly executed’ as required by the Consumer Credit Act 1974.

Contrary to your assertion, xxxxxxxx have not complied with the terms of CCA 1974 s78. The documents that you have supplied, do not comply with your duties to supply a “True Copy” of any agreement you claim to have been signed by me, for pre 2007 agreements. As you will be further aware, an agreement is not executed, until signed by both parties, so the document that you have supplied, being an application and a reconstruction, cannot be a True Copy of an Executed Agreement.

While this account remains in serious dispute, the relevant main points of the Law and OFT regulations while the account is in this state and xxxxxx remain in default are:

• You may not ask for payment against this account.
  
• I am not obliged to offer any payment against this account.
  
• You cannot register any data with a third party.
  
• You cannot take any enforcement action, including registering Defaults.
  
• You cannot pass the account on to a third party for collection.
  
• You cannot sell the account.
  

What is a true copy:

In a recent letter from the enforcement department of the OFT, the text below was quoted, explaining what is required.

“The copy of the executed agreement need not be an exact copy but it must be a ‘true copy’ and not some reconstruction of what the original might have been and it must contain the same terms as the original. Where the terms have been varied as provided for within the agreement, the copy of the original agreement must be accompanied by a document setting out the current terms, as varied. Certain details may be omitted from the original agreement eg the signature but the debtor must be in no doubt as to the true nature of his obligations under the loan.

 

Should no original agreement be in existence it is very hard to say that the copy the creditor offers to the debtor is, in fact, a true copy as there would be no original with which to compare it. In our view the onus of proof would be on the creditor to show that the copy is a true one and where none existed he may have difficulty discharging this. Neither should creditors suggest that a consumer has signed a credit agreement where they are unable to provide evidence to support this — to do so is likely to be a misleading action under Regulation 5 of the Consumer Protection from Unfair Trading Regulations 2008 (the CPRs) and would also constitute an unfair or improper business practice.”

 

I also refer you to the information below.

1. A valid credit agreement must contain certain terms within the signature document (s.60(1)(2) CCA 1974). These core terms are the credit limit, repayment terms and the rate of interest (SI 1983/1553 (6 Signing of agreement) which states that the prescribed terms must be within the signature document. (Column 2 schedule 6). s.61(1)(a) states the agreement must contain all the prescribed terms and be signed by both the debtor and on behalf of the creditor.

 

 

2. Further, s.127(3) CCA 1974 makes the account unenforceable if it is not in the proper form and content or improperly executed.

 

In Wilson and another v Hurstanger Ltd (2007) it was stated “In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties … and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s.61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement”.

 

2. The need for prescribed terms to be contained in the credit agreement is confirmed by the Author of the CCA1974 act, I quote ““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.”

I am now granting to you a further 7 days to produce a copy of an executable agreement. After that I will consider that the above matter is closed and that you will no longer pursue the alleged debt. If you are insisting that the non enforceable document, that you have supplied, is the only alleged agreement in your possession, then I would suggest that the best course of action would be to immediately set the balance of the above account number to zero.

I look forward to your response.

 

 

 

If yuo post on your own thread, others can also advise.

[vint1954]

hope you guys can help, i wrote to barclaycard asking for them to send me my credit agreements on both my accounts. For one account all i got back was a letter saying they was not enough information for them to find it please provide more information although they didn't say what they needed.they also returned my fee. For the second one i recieved 2 very badly phototcopied pages which are bearly readable. On the front it reads 1996 Barclaycard T/C. on the page behind it reads Barclaycard conditions of use , a copy for your records. The second pages says barclaycard agreement, a copy for your records. There are no signatures of any kind on these documents, surely this is not what i requested from them. By the way the first account is with Calder and the other has just been given to RMA.

Helo Vanda,

 

You need to start your own thread, in order to keep your situation separate. You will get more assistance that way.

 

In the mean time send the DCA's this:

 

Ref Account xxxxxxxxxxxxxxxxxxxxxxx

 

Dear xxxxxxxxx,

 

I was somewhat bemused to receive your letter of xxxxxxxxx 2009, the content of which is noted. No debt to your client is acknowledged.

 

On xxxxxxxxxx 2009 I made a formal request to your client pursuant to s.78(1) of the Consumer Credit Act 1974. They have failed to comply within the statutory time limit, or at all. In addition, this alleged account was placed in dispute on the xxxxxxxxx 2009. It should not be necessary to have to remind you that the provisions of s.78(6) now apply. These letters are enclosed.

 

In the circumstances, your and your clients threat of legal action would appear to be a breach of the Consumer Protection from Unfair Trading Regulations 2008 and the Office of Fair Trading Guidance on Debt Collection and your attention is drawn to this guidance document.

 

Your attention is also drawn the ICO on Data protection, as passing details on to a third party while an account is in dispute is contrary to the Data Protection Act. I have previously issued letters to MBNA under s10 of this act. You may wish to advise your client of the implications of ignoring the Data Protection Act.

 

Should you feel encouraged to attempt litigation it will be vigorously defended and the failure to supply documentation under the CCA 1974 is a complete defence to any legal action and your actions will be considered vexatious and unlawful. The Court's attention will drawn to the above statutory breaches . Furthermore, I reserve the right to bring the conduct of your client to the Court when the issue of costs is being considered.

 

 

I would remind you that while this alleged account remains in dispute, that your client:

• May not ask for payment against this account.
  
• I am not obliged to offer any payment against this account.
  
• Cannot register any data with a third party.
  
• Cannot take any enforcement action, including registering Defaults.
  
• Cannot pass the account on to a third party for collection.
  
• Cannot sell the account.
  

I trust this out lines the situation and I require you to return this matter to your client to avoid any further breaches of the Law, being committed by you or your client.

 

 

Follow up with the letter above in post #871 to the original creditor.

[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.

[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.

[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.

[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

[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.

[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.

[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.

[vint1954]

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

 

its not even headed as a regulated agreement!!

And strangely, the person who signed it over the date stamp, worked for MBNA in 1996 and still does:D Must be a good job just signing agreements for Abbey and MBNA all day long, but would'nt yu get bored after 13 years.

 

I bet the wore out sveral pairs of cycle clips, between MBNA and abbey.

[vint1954]

simply

 

where a fully executable agreement exists and is not disputed- the reporting of information to CRA's is not considered enforcement

 

the judge made it clear that this was a very narrow case and the judgement could well be different in different circumstances

 

so UNLESS you have a valid agreement and are seeking to have your credit record expunged- it means diddly squat!

Diddly squat is as good a term as any:grin:

 

This case originated without an enforceable agreement but they found one! Not a good test case.

 

They still need your signed permission to report or hold your data. In this case, they did.

[vint1954]

Well, it's illegible for sure. No prescribed terms that I can see and finally but not fatally, it is improperly executed.

 

Is your copy as bad and have the obtained a CCJ?

[vint1954]

Is this in response to my M&S CCA ?

Yes DR,

 

Read through this, edit as required and send.

 

xxxxxx 2009.

Dear xxxxxxxxx,

ACCOUNT IN DISPUTE

Re account no xxxxxxxxxxxxxxxxxxxxxxxxxxx

I write regarding recent communication regarding the above account. I acknowledge no dept to your organisation.

Further to my request under the above act, your attention is drawn to the fact that this account remains subject to a lawful serious dispute. On xxxxxxxx, by recorded delivery, I requested that you supply me a copy of the executed credit agreement covering this account pursuant to the Consumer Credit Act 1974 section 78, a copy of this request is enclosed. To date you have failed to comply with my request, supplying only an illegible application form, devoid of all prescribed terms, and unconnected generic terms & conditions, which cannot be linked to any agreement which you claim that I have signed. Without production of the said agreement I am unable to assess if I am indeed liable for any alleged debt to you, nor does it give me any chance to evaluate whether any original agreement was ‘properly executed’ as required by the Consumer Credit Act 1974.

Contrary to your assertion, xxxxxxxx have not complied with the terms of CCA 1974 s78. The documents that you have supplied, do not comply with your duties to supply a “True Copy” of any agreement you claim to have been signed by me, for pre 2007 agreements. As you will be further aware, an agreement is not executed, until signed by both parties, so the document that you have supplied, being a reconstruction, cannot be a True Copy of an Executed Agreement.

While this account remains in serious dispute, the relevant main points of the Law and OFT regulations while the account is in this state and xxxxxx remain in default are:

• You may not ask for payment against this account.
  
• I am not obliged to offer any payment against this account.
  
• You cannot register any data with a third party.
  
• You cannot take any enforcement action, including registering Defaults.
  
• You cannot pass the account on to a third party for collection.
  
• You cannot sell the account.
  

Let me explain here, what a true copy is:

In a recent letter from the enforcement department of the OFT, the text below was quoted, explaining what is required.

“The copy of the executed agreement need not be an exact copy but it must be a ‘true copy’ and not some reconstruction of what the original might have been and it must contain the same terms as the original. Where the terms have been varied as provided for within the agreement, the copy of the original agreement must be accompanied by a document setting out the current terms, as varied. Certain details may be omitted from the original agreement eg the signature but the debtor must be in no doubt as to the true nature of his obligations under the loan.

 

Should no original agreement be in existence it is very hard to say that the copy the creditor offers to the debtor is, in fact, a true copy as there would be no original with which to compare it. In our view the onus of proof would be on the creditor to show that the copy is a true one and where none existed he may have difficulty discharging this. Neither should creditors suggest that a consumer has signed a credit agreement where they are unable to provide evidence to support this — to do so is likely to be a misleading action under Regulation 5 of the Consumer Protection from Unfair Trading Regulations 2008 (the CPRs) and would also constitute an unfair or improper business practice.”

 

I also refer you to the information below.

1. A valid credit agreement must contain certain terms within the signature document (s.60(1)(2) CCA 1974). These core terms are the credit limit, repayment terms and the rate of interest (SI 1983/1553 (6 Signing of agreement) which states that the prescribed terms must be within the signature document. (Column 2 schedule 6). s.61(1)(a) states the agreement must contain all the prescribed terms and be signed by both the debtor and on behalf of the creditor.

 

 

2. Further, s.127(3) CCA 1974 makes the account unenforceable if it is not in the proper form and content or improperly executed.

 

In Wilson and another v Hurstanger Ltd (2007) it was stated “In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties … and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s.61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement”.

 

2. The need for prescribed terms to be contained in the credit agreement is confirmed by the Author of the CCA1974 act, I quote ““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.”

I am now granting to you a further 7 days to produce a copy of an executable agreement. After that I will consider that the above matter is closed and that you will no longer pursue the alleged debt. If you are insisting that the non enforceable document, that you have supplied, is the only alleged agreement in your possession, then I would suggest that the best course of action would be to immediately set the balance of the above account number to zero.

I look forward to your response.

[vint1954]

Hi Suzannah,

 

You can respond with this letter.

 

You will need to start your own thread.

 

xxxxxx 2009.

 

Dear xxxxxxxxx,

 

ACCOUNT IN DISPUTE

 

Re account no xxxxxxxxxxxxxxxxxxxxxxxxx xx

 

I write regarding recent communication regarding the above account. I acknowledge no dept to your organisation.

 

Further to my request under the above act, your attention is drawn to the fact that this account remains subject to a lawful serious dispute. On xxxxxxxx, by recorded delivery, I requested that you supply me a copy of the executed credit agreement covering this account pursuant to the Consumer Credit Act 1974 section 78, a copy of this request is enclosed. To date you have failed to comply with my request, supplying only a copy of your generic terms & conditions, which cannot be linked to any agreement which you claim that I have signed and which breaches s78 of the CCA 1974. Without production of the said agreement I am unable to assess if I am indeed liable for any alleged debt to you, nor does it give me any chance to evaluate whether any original agreement was ‘properly executed’ as required by the Consumer Credit Act 1974.

 

Contrary to your assertion, xxxxxxxx have not complied with the terms of CCA 1974 s78. The documents that you have supplied, do not comply with your duties to supply a “True Copy” of any agreement you claim to have been signed by me, for pre 2007 agreements. As you will be further aware, an agreement is not executed, until signed by both parties, so the document that you have supplied, being a reconstruction, cannot be a True Copy of an Executed Agreement.

 

While this account remains in serious dispute, the relevant main points of the Law and OFT regulations while the account is in this state and xxxxxx remain in default are:

· You may not ask for payment against this account.

· I am not obliged to offer any payment against this account.

· You cannot register any data with a third party.

· You cannot take any enforcement action, including registering Defaults.

· You cannot pass the account on to a third party for collection.

· You cannot sell the account.

 

Let me explain here, what a true copy is:

 

In a recent letter from the enforcement department of the OFT, the text below was quoted, explaining what is required.

 

“The copy of the executed agreement need not be an exact copy but it must be a ‘true copy’ and not some reconstruction of what the original might have been and it must contain the same terms as the original. Where the terms have been varied as provided for within the agreement, the copy of the original agreement must be accompanied by a document setting out the current terms, as varied. Certain details may be omitted from the original agreement eg the signature but the debtor must be in no doubt as to the true nature of his obligations under the loan.

 

Should no original agreement be in existence it is very hard to say that the copy the creditor offers to the debtor is, in fact, a true copy as there would be no original with which to compare it. In our view the onus of proof would be on the creditor to show that the copy is a true one and where none existed he may have difficulty discharging this. Neither should creditors suggest that a consumer has signed a credit agreement where they are unable to provide evidence to support this — to do so is likely to be a misleading action under Regulation 5 of the Consumer Protection from Unfair Trading Regulations 2008 (the CPRs) and would also constitute an unfair or improper business practice.”

 

 

I also refer you to the information below.

 

1.A valid credit agreement must contain certain terms within the signature document (s.60(1)(2) CCA 1974). These core terms are the credit limit, repayment terms and the rate of interest (SI 1983/1553 (6 Signing of agreement) which states that the prescribed terms must be within the signature document. (Column 2 schedule 6). s.61(1)(a) states the agreement must contain all the prescribed terms and be signed by both the debtor and on behalf of the creditor.

 

 

 

2.Further, s.127(3) CCA 1974 makes the account unenforceable if it is not in the proper form and content or improperly executed.

 

In Wilson and another v Hurstanger Ltd (2007) it was stated “In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties … and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s.61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement”.

 

2. The need for prescribed terms to be contained in the credit agreement is confirmed by the Author of the CCA1974 act, I quote ““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.”

 

 

I am now granting to you a further 7 days to produce a copy of an executable agreement. After that I will consider that the above matter is closed and that you will no longer pursue the alleged debt. If you are insisting that the non enforceable document, that you have supplied, is the only alleged agreement in your possession, then I would suggest that the best course of action would be to immediately set the balance of the above account number to zero.

 

I look forward to your response.

[vint1954]

Hi cerberusalert

 

I have a true copy of the agreement, (I have seen the original). It's good.

 

The letter you refer to is to get a true copy of the agreement?

 

I do not have a copy of the PPI policy, which is part of the agreement.

 

I am not averse to returning to court to enforce this issue, but unless

the agreement is unenforceable, (without the policy), is their any point?

 

I guess without the policy the case of mis-selling the PPI becomes much easier.

 

Many Thanks

Have a look here, unless you already have done so.

 

Vint

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/171037-multiple-agreements-falling-within.html

[vint1954]

As it stands, totally unenforcable.

 

Write to them asking them to point out where the prescribed terms appear within the signature document.

 

Also ask them what legislation permits them to enforce an agreement devoid of prescribed terms.