BOS Preference Account

[reallymadwoman]

I've decided to start a new thread for this account as it seems to be getting a bit lost amongst all the others on my original thread.

 

This is the agreement I've been sent by BOS (right half of page 1 and left half of page 2)

 

http://i224.photobucket.com/albums/dd166/reallymadwoman/CCA1p1.jpg

 

http://i224.photobucket.com/albums/dd166/reallymadwoman/CCA1p2.jpg.

 

It's probably not very legible, because the original I've scanned isn't, so I've copied the main points as follows:-

 

Preference Account

 

This is clearly a separate agreement, but the 'regulated by the CCA' bit is only on the loan side. Names and addresses are repeated.

 

Account Details

 

If there is a debit balance on your Account you must repay to us each month at least 5% of the total debit balance outstanding or £5 whichever is the greater, or the full balance if it is less than £5. In addition you must repay interest which will be calculated on a day to day basis for the month ending with the statement date. We must receive your minimum repayment within 14 days of the statement date.

Your authorised overdraft limit will be determined by us from time to time and notified to you. Your initial overdraft limit will be £2000.

If there is a debit balance on your account, interest will be calculated at 21.62% per annum, APR23.9%. We may vary the rate of interest but will give at least 7 days notice of such variation.

 

The Data Protection Act notice stretches across both halves of the page, then there's 'notice to customer' in a box again.

 

'By signing this agreement you:

a) acknowledge that if you do not keep up the payments due under this agreement you will become liable to pay any additional costs incurred by us in accordance with Clause 8 of the Conditions of Use overleaf;

b) telephone calls may be recorded ...

c) confirm that the information contained in this Application is true and accurate

d) request us to issue you with a Keycard ....'

 

Signed and dated by me on the same date as the loan, but by the bank 4 days after they signed the other bit. Above the signature box it says

 

'To ensure you receive your preference account please sign and date the box below. This offer is only open for a limited period of one month only.'

 

I have some questions about this account.

 

1. I didn't ask for it, it was included when the loan application was sent for me to sign, and I probably didn't realise that it wasn't compulsory. Is this legal or moral?

 

2. I always thought of this as a credit card and used it as such, however on looking through the agreement/application (particularly no mention of CCA) it looks more like a bank account. So far as I can remember I was never given a paying in book or anything else that might imply that I was supposed to pay money in to the account, other than paying the 'minimum payment' on the monthly statements, which also looked exactly like a credit card statement. Does this help my case at all?

 

3. Clause 8 about 'additional costs' doesn't specify any amount, therefore I think that either the 'costs' have to be reasonable (I don't know what, if any charges have been applied as they haven't sent me any statements) or the term is unfair because I could have been charged anything. Do terms like this have to specify an amount or can they be open?

 

4. Is there anything at all 'dodgy' about this agreement/application?

 

I did do a CCA request for this 'account' as I believed it to be a credit card, but obviously that wouldn't have been appropriate if it is a bank account. I only got the copy of the agreement as it's on the same page as the loan taken out at the same time. I have done an SAR request since, but suspect it will be some time before I get anything back. In the meantime, believing my CCA request was in default, I've stopped payments. As this is obviously not a CCA request, should I start again or just play dumb and continue working on the basis that it is a credit card?

 

Any help would be very gratefully received.

[clutchingatstraws]

This is obviously a microfiche copy of something.

 

I will stand corrected but the original actual signed agreement would be required in court.

 

Tell them you are willing to start payments if they will allow you to inspect the original signed credit agreement at their nearest office to you provided that you are satisfied that it complies with the cca 1974.

[reallymadwoman]

Current update is that following the S.A.R - (Subject Access Request) Bank of Scotland have supplied some statements, but nothing else at all and they are now well over the 40 days.

 

They have not supplied copies of any correspondence, especially in relation to the original agreement, no indication that default notices were sent, at least 2 years worth of statements are missing, there are horrendous charges on the account and they don't seem to have received any of the payments made via Blair, Oliver and Scott Ltd.

 

I do not specifically remember signing this agreement - I probably thought it was part of the agreement for the loan - and I certainly didn't ask for any account or card. However, I did use it when it arrived. The agreement, or at least the bit I can read, mentions 'account', 'overdraft' and 'keycard'. It does not mention debit or credit card.

 

Given that I didn't read the small print - my own fault, but probably predictable in the circumstances - my view of the nature of this agreement was solely as a result of using the card and the monthly statements.

 

The card was accepted wherever credit cards were accepted. The statements look like credit card statements. They have a list of purchases, a minimum payment and date to pay by and an available to spend balance. On my credit reference file the account is recorded as 'store/credit card'.

 

At no time was I offered a paying in book or any means of making regular transfers of e.g. salary, nor any means of making payments such as direct debits, which I would consider to be the minimum basic requirement of a bank account. Even basic accounts allow you to have your salary paid in and standing orders paid out.

 

I am very firmly of the opinion that this account is in fact a credit card account and was 'sold' as a bank account for some reason as yet unfathomable to me.

 

However the missing payments have conveniently solved a dilemma for me. The account is now very much in dispute over the inaccurate balance, therefore I believe that I am justified in withholding payments until they sort it out. After all, where have all the payments gone? I wouldn't want any more to go missing, would I?

[reallymadwoman]

A few more statements have now turned up. The one on the top says 'we are pleased to inform you that your credit limit has been increased' - more evidence that this is a credit card.

 

Possible tactics

1. This is a credit card account, therefore the full requirements of the CCA should apply, therefore agreement is unenforceable

2. I was mistaken/misled as to the nature of this contract, therefore my consent to the contract is not valid, contract should be declared void and all parties placed in their original positions i.e. I repay everything spent on the card, they repay all my payments (way more than I spent!), no interest or charges as contract never valid.

3. I was induced to enter the contract by misrepresentation, same result as 2 above.

4. I entered the contract because of undue influence by the bank (putting agreement on same form as loan), probably same result as 2 and 3, but possibly would be declared unenforceable.

 

At some point I may need evidence of prevailing interest rates for credit cards and overdrafts around the summer of 2001. If you have any info, for any bank, and might be willing to let me have a copy at some point, could you tell me now the interest rate and if it's a CC or overdraft.

 

I have some case law etc which may be useful, but don't want to give too much away just yet. If you have a similar claim and need the information, I'm willing to send it by PM, with the usual waiver of course.

[reallymadwoman]

I've been trying to get my head around this account for a few days as I have reason to believe an N1 may drop through the door any day now.

 

I think my defence will be along the lines of this is clearly a credit card, not a bank account, therefore the full requirements of the CCA should apply. Can anyone confirm if 'regulated by the CCA' has to appear on the agreement and the effect if it does not. Also, although it's quite clearly not an agreement under the CCA, if it were all the prescribed terms are there. Would this make it enforceable by order of the court?

 

As a side issue, this card was effectively sent unsolicited as I signed the application thinking it was part of the loan agreement. If the court agreed it was unsolicited, what effect might that have?

 

And if I chucked all that lot in my defence, plus the non-compliance with S.A.R - (Subject Access Request), what do we think the chances are that the claim will be discontinued?

[Fred Bassett]

I've been trying to get my head around this account for a few days as I have reason to believe an N1 may drop through the door any day now.

 

I think my defence will be along the lines of this is clearly a credit card, not a bank account, therefore the full requirements of the CCA should apply. Can anyone confirm if 'regulated by the CCA' has to appear on the agreement and the effect if it does not. Also, although it's quite clearly not an agreement under the CCA, if it were all the prescribed terms are there. Would this make it enforceable by order of the court?

 

As a side issue, this card was effectively sent unsolicited as I signed the application thinking it was part of the loan agreement. If the court agreed it was unsolicited, what effect might that have?

 

And if I chucked all that lot in my defence, plus the non-compliance with S.A.R - (Subject Access Request), what do we think the chances are that the claim will be discontinued?

 

Reallymadwoman,

 

I'm really intrigued by this as I too have a dispute over 1 of these cards. In my case, I don't ever remember signing anything, I got given it at the same time as I got a loan for a car which is long since paid off. I am currently disputing this and it is now with the lovely Blair Oliver and Scott, but they can't provide a shred of paperwork, nothing whatsoever.

 

Good luck in your battle.

 

Regards.

 

Fred

[reallymadwoman]

I only got a copy of the agreement accidentally, when I asked for the one for the associated loan. I don't actually remember signing it, though I clearly did, probably assuming it was the loan application. However, I didn't send the card back when it arrived through the post so I'm not sure how much weight the 'unsolicited' thing will carry.

[reallymadwoman]

Fred,

Having thought about this I suspect that your agreement was also on the same page as your car loan, and as that's paid off I doubt they have kept the paperwork. You could be in a very strong position here.

[Dorabell]

Hi im having the same trouble i sent blaire,oliver+scott a request for a cca request that was way back on the 6th feb still no cca, yesterday i received a letter from the BOS complaints department

[reallymadwoman]

They have a complaints department? What on earth did you do to get a reply from them?All I ever get is more threats!

[Dorabell]

i dont now:lol: i have got to wait 4weeks thou for there reply, i will have to sit and wait to see what they come up

[Fred Bassett]

Fred,

Having thought about this I suspect that your agreement was also on the same page as your car loan, and as that's paid off I doubt they have kept the paperwork. You could be in a very strong position here.

 

Yes, that's no bad thing. They haven't got anything so quite how they're going to force the issue will be interesting to see. I'm actually going to enjoy this battle because they are evil as far as I'm concerned and made my life a misery a couple of years ago. Now it's my turn!

 

Regards.

 

Fred.

[reallymadwoman]

This morning I finally received a response to my complaint, as usual from Bank of Scotland although the complaint went to Blair et al.

 

They have supplied another copy of the agreement, but with an additional sheet headed 'Conditions of Use' which is not referred to on any of the other pages, and which suddenly includes the type of information you would expect if the account really was a current account rather than a credit card.

 

I think I would be fully justified in assuming the additional page has materialised for their own purposes and I have never seen it before.

Can anyone confirm where in the Regs it says, if it does, that 'Regulated by the CCA' has to be on the agreement, and what might be the effect where it does. Incidentally, BOS seem to be happy to assume it is covered by the CCA.

 

I've asked this question elsewhere, but BOS say the prohibition on enforcement whilst in default of a CCA request only applies to legal action, not 'normal collection activity'. Opinions?

[The GodMother]

it applies to any action. If the debt does not hold a valid CCA then they cant collect on the account in ANY way.

 

Maybe they need to learn to read.

[reallymadwoman]

My opinion also, but they've well and truly shot themselves in the foot anyway as all the threatograms refer to legal action, thereby implying that they are able to take action which they are not legally entitled to do, and in breach of the OFT guidance yet again. They do like building my case for me.

[reallymadwoman]

It's actually a bit of a shame that I'm not going to be able to tell them so, but I think the only response I need to make is 'this is not a valid CCA, get lost'.

[gh2008]

This morning I finally received a response to my complaint, as usual from Bank of Scotland although the complaint went to Blair et al.

 

They have supplied another copy of the agreement, but with an additional sheet headed 'Conditions of Use' which is not referred to on any of the other pages, and which suddenly includes the type of information you would expect if the account really was a current account rather than a credit card.

 

I think I would be fully justified in assuming the additional page has materialised for their own purposes and I have never seen it before.

Can anyone confirm where in the Regs it says, if it does, that 'Regulated by the CCA' has to be on the agreement, and what might be the effect where it does. Incidentally, BOS seem to be happy to assume it is covered by the CCA.

 

I've asked this question elsewhere, but BOS say the prohibition on enforcement whilst in default of a CCA request only applies to legal action, not 'normal collection activity'. Opinions?

 

Whilst an account is in dispute they should stop collection activity as per OFT guidelines.

Whilst in default then yes, then should not seek to enforce the alleged debt.

 

re. the agreement, assuming an agreement is improperly executed for any reason. The creditor can seek enforcement only if there is a document, signed by the creditor which contains all the prescribed terms. That document has to be a single document - that doesn't mean a single page - but it does mean a single linked document

That document doesn't need any of the stuff that SHOULD be there, only what MUST

[reallymadwoman]

I do not believe that this document can be a properly executed CCA.

 

I am sure BOS are going to argue that it isn't subject to the CCA being a bank account, but I've got plenty of arguments to counter that one, and if that fails we're back to being misled, possibly unsolicited etc. At some stage, I might have to enter a very long defence to counter all possibilities.

[reallymadwoman]

Letter now ready to go

 

I would wish to dispute the majority of the contents of your letter, however only one statement appears relevant. The agreement supplied is not a valid agreement under the Consumer Credit Act, 1974 and under s127 (3) of the Act is therefore irredeemably unenforceable.

To make matters absolutely clear, I will not be making any offer of payment in respect of this account and I will not enter into any further correspondence.

[The GodMother]

has that been posted yet RMW as i would love to be a fly when they do get it.

[reallymadwoman]

Not yet - I need more stamps (I'm probably keeping our local post office open single handed) - but it will be going tomorrow, along with the one on the loan account and yet another complaint to the FOS.

[The GodMother]

lol maybe you should buy in bulk u may get a discount.

[reallymadwoman]

I'm not worried, I'll get it all back eventually. Why would I go to all the trouble of getting them a discount?

[The GodMother]

you dont tell them u got a discount thats why.

 

What u tell them is u had to buy them one at a time and then they will pay u for that.

[kel123]

This is not a credit card nor is it a current account. It is a borrowing account.

 

Current accounts allow you to have salaries paid in and DD's/SO out this does not! i've tried

 

So it comes under the CCAct 1974, because of the borrowing facility and fits somewhere between a variable rate no fixed term loan and a creditcard.

 

They had my request for the cca on the 29th February 2008 and I put them in default on the 26th march 2008. After the 19th of April they will receive my final letter and they will have to take me to court to get any more money. I have had no reply from them what so ever!

 

Kel