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Unfair Credit Agreements?

Last post Thu, Jan 22 2009, 4:30 PM by Tartan Army. 36 replies.
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  •  Thu, Jan 22 2009, 4:30 PM

    Re: Unfair Credit Agreements?

    equinox747:

    hi, all i have had a similar response from aone Bank, after requesting a CAG they sent my cheque back saying they are unable to supply a copy of the original agreement: and quote the following: Regulation 3(2) of the consumer Credit (Cancellation Notices and copies of documents) Regulatrion 1983 allows that certain items may be ommited from such copies, including the signature box, and sugniture.

    this to me is a load of flannel??? it goes on to say about them being ablt to vary the agreement under regulation 7, and they enclosed a cpy of an up to date terms and conditions: forgive me as a novice but i think this is wrong can anybody help or adrvice?

    Graham

    There is no flannel and they have satisfied your CCA request. I would suggest you google Reg 3 and read it well. If they start court action then you can use CPR 31.4 to get sight of the original agreement but until that happens they haven't defaulted on your request.

    Note: This post has been moderated. Please post any helpful advice or assistance on the open forums. Please also ensure you read the Moneysupermarket.com User Community Standards and Terms of Service before posting. Thanks.

    • Post Points: 5
  •  Fri, Jan 16 2009, 10:42 AM

    Re: Unfair Credit Agreements?

    Hi there

    All the help i have had off cmk as been very helpful with his help i have requested my cca's and for the record so far got rid of one of my debts all the others are saying there is a delay in supplying me with my cca been going on since nov 2008 still waiting.

    Melanie

    • Post Points: 5
  •  Sat, Dec 20 2008, 2:06 PM

    Re: Unfair Credit Agreements?

    equinox747:

    hi, all i have had a similar response from aone Bank, after requesting a CCA they sent my cheque back saying they are unable to supply a copy of the original agreement: and quote the following: Regulation 3(2) of the consumer Credit (Cancellation Notices and copies of documents) Regulatrion 1983 allows that certain items may be ommited from such copies, including the signature box, and sugniture.

    this to me is a load of flannel??? it goes on to say about them being ablt to vary the agreement under regulation 7, and they enclosed a cpy of an up to date terms and conditions: forgive me as a novice but i think this is wrong can anybody help or adrvice?

    Graham

    Hi -- That relates to the newer online electronic agreements where electronic signatures by way of a "tick" box are acceptable, instead of a physical signature on paper.

    If this matter relates to an older paper style agreement, a court CANNOT enforce an agreement without there being a properly executed, 'signed' agreement & if the creditor chooses not to supply it at the outset, then the chances are they don't have it. !!

    It is flannel, the terms & conditions they sent mean absolutely nothing without the signed agreement they relate to (T&C's to what exactly ? )....... I suggest you now re-submit your CCA again with the payment and a simple cover note explaining this, if this agreement was taken out before April 2007, the chances are it will be a paper agreement that requires all the legally prescribed terms and in particular the "Signature" of the applicant in all cases.

    • Post Points: 20
  •  Sat, Dec 20 2008, 10:09 AM

    Re: Unfair Credit Agreements?

    hi, all i have had a similar response from aone Bank, after requesting a CAG they sent my cheque back saying they are unable to supply a copy of the original agreement: and quote the following: Regulation 3(2) of the consumer Credit (Cancellation Notices and copies of documents) Regulatrion 1983 allows that certain items may be ommited from such copies, including the signature box, and sugniture.

    this to me is a load of flannel??? it goes on to say about them being ablt to vary the agreement under regulation 7, and they enclosed a cpy of an up to date terms and conditions: forgive me as a novice but i think this is wrong can anybody help or adrvice?

    Graham

    • Post Points: 35
  •  Fri, Dec 12 2008, 3:56 PM

    Re: Unfair Credit Agreements?

    Hi -- Forward it to the FOS as a complaint, it's either signed or it isn't ......there is no halfway compromise, if as you say all you have been sent is an unsigned agreement the FOS will pursue it on your behalf now that you have taken all the necessary measures, you are entitled to ask for their involvement in this issue.

    There is no generic letter to the FOS every complaint is individual, just tell them the facts you have explained here and forward the proof for them to decide for themselves.

    Whilst this account is in dispute they are not entitled to take any action regarding enforcement or defaulting your account, if they do they will be in contravention of guidelines for which the FOS can take further appropriate action against them. I suggest you also inform them that the matter has been referred to the FOS as they have suggested.

    http://www.financial-ombudsman.org.uk/consumer/complaints.htm

    • Post Points: 5
  •  Fri, Dec 12 2008, 3:38 PM

    Re: Unfair Credit Agreements?

    Hi

    Thanks for your prompt reply to my query. I have since since them the letter recorded delivery as suggested and got a response a few days ago.

    It reads as follows:

    "With regards to the detail in your letter dated 12th Nov, I confirm that the information and detailed with my letter dated 30th Sept 08 covered all points you raised.

    I also confirm that the enclosure in my previous letter was a copy of the Credit Agreement which was signed by yourself and not an application as suggested in your letter

    Also, you suggest that we have not detailed the terms for this account. I would draw your attention to the second page, where it details the terms and conditions of the account, along with your signature accepting the credit agreement.

    I therefore decline your complaint with regards to disputing this account under section 78 and confirm that all the information is detailed within your signed Credit Agreement for your Sainsburys Credit Card (Card number)

    To comply with legislation, I would like to let you know that if you remain unhappy you can refer your concerns to the Financial Ombudsman Service. They can be contacted by telephone on 0845 080 1800 or by post."

    My concern with this response is that on the information (copy of Credit Agreement) they have sebt me there is no trace of my signature !! It is a photocopy of an agreement but they are falsly suggesting that I have signed it.

    Is there a generic letter I can forward on to the Financial Ombudsman Service ? That way I will get a response by post as evidence of the complaint.

    I am also still receiving letters from Sainsburys regarding missed payments and am concerned that this will have a negative impact on my credit rating.

    Thanks very much for your help so far with this matter

    • Post Points: 20
  •  Wed, Nov 12 2008, 3:36 PM

    Re: Unfair Credit Agreements?

    Hi -- Send them a copy of the letter below Recorded delivery in which they have failed to send you the correctly SIGNED & prescribed agreement that you have requested, if there is no signed CCA from yourself there is no further enforcement action that can be taken against you, the letter asks for their written response within 14 days. Do not pay anything, they are not entitled to any payment or to place any negative reports on your credit file.

    ............................................ ..........................................

    Name & address

    Date

    Account / ref No.............

    Re: my request under the Consumer Credit Act 1974



    Thank you for your letter dated .... XX XXX

    It would seem that you are of the belief that you have discharged your obligations under the Consumer Credit Act 1974 in particular section 78(1).

    You have provided me a copy of an application form and I feel it is my duty to draw your attention to some serious flaws in your comments.

    Firstly, to comply with section 61 of the consumer credit act 1974 which by the way refers to the signing of an agreement (Not an application), a document must conform to regulations made under the provisions of section 60(1) Consumer Credit Act 1974 otherwise it cannot be properly executed

    Now then, these regulations I refer to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553). These regulations set out the form and content of agreements. For an agreement to be compliant with the regulations it MUST embody within the agreement, the prescribed terms laid out in the SI1983/1553 without the prescribed terms the agreement does not conform to section 60(1) 1974 and therefore cannot be properly executed as described in section 61(1) CCA 1974.

    For your information in case you are unsure. The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following--

    Signature --followed by.
    (a)Number of repayments;
    (b)Amount of repayments;
    (c)Frequency and timing of repayments;
    (d)Dates of repayments;
    (e)The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable.

    Now nowhere on the application form that you supplied is there any reference to these terms. I wish to remind you that the absence of these terms will render a document unenforceable in court and I also wish to point out that these terms MUST be contained within the agreement and NOT in a separate document headed terms and conditions or words to that effect

    Since the document you have supplied is a clear mailer application form, I cannot believe for one moment that these very important terms would be contained on the opposite side of the form, unless they are there for the postman to read while he delivers the mail. Therefore they must have been contained in a separate document, which is prohibited by the SI1983/1553, as there is no clear link to them within the signature document.

    Therefore, you have failed to supply an enforceable document, which is correctly executed as to be so; it must conform to the Regs under s60 CCA1974

    I am of the opinion that a court is precluded from enforcing this agreement by s127 (3) CCA1974 as it is improperly executed under s61 CCA 74, the consequences of improper execution are set out in section 65 CCA 1974 and s65 sets out that only a court can enforce an improperly executed agreement subject to certain qualifications, one of those is that the document is signed and contains all the prescribed terms. Now since this document does not contain all the prescribed terms s127 (3) CCA 1974 strictly prevents the court from enforcing this agreement.

    If you cannot supply me with a document, which complies with the Consumer Credit Act 1974, and ALL of the Regulations made under the Act, I shall be forced to make a complaint to Trading Standards and I will also draw this to the attention of the Office of Fair Trading .

    I respectfully request you review this matter in light of my comments above and I request that you supply me the required information or alternatively confirm the account is closed and the debt written off with a zero balance.

    I respectfully request a reply within 14 days of the date of this letter.

    Yours Sincerely
    _______________

    print your name do not sign.

    • Post Points: 35
  •  Wed, Nov 12 2008, 3:15 PM

    Re: Unfair Credit Agreements?

    Hi Commonkiller

    I am new to this forum so forgive me if you have already answered my question somewhere else on here previously.

    I had been advised by a friend of mine that a friend of there's successfully challenged LloydsTSB on their outstanding credit card balance and advised me to challange mine too.

    I therefore have sent the above letter (which my friend forwarded to me) to Sainsburys Bank and have since received a reply. They have pretty much simply sent me a photocopy of their Credit Agreement \Regulated by the Consumer Credit Act 1974. I applied for this card about 4 years ago online and still have the original letter they sent me which they sent out with the agreement for me to sign. I must have signed and returned the agreement otherwise I wouldn't have received my card, would I ?

    Anyway, the copy they have sent me IS NOT SIGNED by myself. In the letter they enclosed with the credit agreement they say to respond if I am not happy with 8 weeks but I am unsure of what to do next. Is there a previously drafted letter I can send them to state that what they have sent me appears to be unenforcable ? If so can to send me a copy so I can reply to them please ?

    Also, I am concern witht the fact that my account is in dispute but I have received a letter from them stating that I have missed repayments. I was advised to stop making payments, is this correct ? I am thinking if I continue not to pay the monthly minimum then this in turn will have a negative impact on my overall credit score ?

    I am aware I have posed quite a few questions above but if you could offer any help and suggestions on what action I can take next it would be much appreciated.

    Thanks

    • Post Points: 20
  •  Wed, Nov 05 2008, 1:34 PM

    Re: Unfair Credit Agreements?

    Just to give you a bit more encouragement, at least 5 CAG members have successfully defeated debt collectors acting for EGG in court so it is possible. (google CAG egg forum and you can see what others are up to)
    • Post Points: 5
  •  Mon, Nov 03 2008, 4:40 PM

    Re: Unfair Credit Agreements?

    Adam - Which company would I write to, to retrieve a copy of this? Egg, or the DCA that are pursuing me?

    Adam - Send the CCA request to the DCA chasing this debt, if they don't have the CCA in their possession they have to get it from Egg. They have 12 days + 2 days postage to provide this proof to you.......in between they cannot take any action, post back here if the CCA has not arrived, or with any response they give after 14 days of sending it.

    At this stage you are only requesting what you are legally entitled to, there will be no action taken until this CCA is furnished for your inspection, it may or may not exist........but if it doesn't then it's been a worthwhile exercise.

    • Post Points: 50
  •  Mon, Nov 03 2008, 4:30 PM

    Re: Unfair Credit Agreements?

    I can tell you my firm has never won a case against Egg and we no longer take them as an unfair credit.

    The only chance would be if they have lost the original.

    If you keep up the repayments there will be no detrimental info registered against you, and if in the unlikely event they cant find the agreement they cannot enforce the debt or register it on your credit file as they will not have the " Fair Process Warning " to share your data

    I hope this helps

    Kind Regards

    Trevor

    • Post Points: 50
  •  Mon, Nov 03 2008, 3:57 PM

    Re: Unfair Credit Agreements?

    Hi conmankiller

    Your help is very much appreciated. I am not getting my hopes up as I would imagine Egg have a reasonably good administration system and, whilst I don't remember, I suspect I did sign a credit agreement. I would also have thought their compliance dept would have made sure it had the right info in it so I suppose my only hopes are pinned on it's absence…!

    Which company would I write to, to retrieve a copy of this? Egg, or the DCA that are pursuing me?

    Also, do you know if the DCA can pin anything onto my credit file when/if/as soon as I contact them? As I mentioned before my career is riding on this so I can’t afford to make any slip ups!

    Kind regards, Adam

    • Post Points: 35
  •  Mon, Nov 03 2008, 1:41 PM

    Re: Unfair Credit Agreements?

    Adam0013:

    Hi Tartan Army

    I have just posted a topic 'Old Debt Problems..!' and have just read this reply from you regarding credit card debt.

    Does this mean that if the debt recovery company do not have a copy of my original credit agreement, then they have no power to act?

    I would be very grateful for your input.

    Kind regards

    Adam

    Adam -- In Tartan Army's abscence, I confirm that if the creditor or acting DCA cannot produce a copy of the original CCA upon request, or if the agreement does not have the necessary prescribed legal terms then the creditor cannot take legal action to enforce the alleged debt.

    You can DIY by sending a simple letter requesting copies of your original CCA to see if they are legally valid, i.e. signed by youself and carry the necessary information prescribed by law, if not then they are unenforceable agreements. You need to enclose a £1 postal order and send by Recorded delivery to each creditor.

    Suggested simple letter to inspect your agreement.

    ........................................ ........................................

    Name & Address

    Date

    Dear Sir / Madam


    Re: Account No: .......... XXXX


    With reference to the above account, I would be grateful for a signed copy of my Consumer Credit Agreement.

    I understand that under the Consumer Credit Act 1974 (Sections 77-79), I am entitled to receive a copy of this agreement upon request. I therefore enclose a payment of £1.00 which represents the fee payable under the Consumer Credit Act.


    I understand that a copy of my credit agreement should be supplied within 12 working days.


    I also understand that under the Consumer Credit Act 1974, creditors are unable to enforce an agreement if they fail to comply with a request for a copy of the agreement under these sections of the Act.

    I look forward to hearing from you.


    Yours faithfully (Print name)

    ..................................... ...........................................

    ..................................... ...........................................

    When / if they send them back, check that they are a valid enforceable agreement by checking they carry the necessary information to legally validate them. If they don't then the creditor would not be able to enforce any further action against you.

    Under current consumer credit laws, when you enter into a contract with a bank or credit card company or creditor, the paperwork must contain certain prescribed details that you have clearly signed up to. If you haven't signed the agreement, or if the required legal elements aren't specifically stated, then the lender will find itself in trouble if it tries to take you to court for non-payment. In other words, the contract you have with the lender may be unenforceable and, therefore, worthless.

    It is a statutory requirement that CCA-regulated agreements should be in writing and signed by the borrower and that they contain the following information:

    The amount of credit (or credit limit)

    The credit charges

    The rate of interest and whether it will vary throughout the course of the agreement

    A notice of cancellation (if it is a cancellable agreement)

    Details of the repayment schedule

    If the agreement is not in accordance with the above requirements then it is unenforceable.

    --------------------------------------------- ---------------------------------------------

    A credit agreement should also include the following (although if it doesn't then permission from the court will be required to enforce it):

    A prominent heading describing the type of agreement

    Names and addresses of the lender and borrower along with a signature box

    Details of any security offered for the loan

    Description of goods supplied if any

    Cash price of goods or services

    Amount of deposit

    Annual Percentage Rate (APR)

    However, be warned that although the old laws will apply to current credit agreements, the consumer credit rules change from April 6th. From then on, with any new contract, it'll be up to the courts to decide whether your particular credit agreement is unenforceable. Even if the contract you've signed contains incorrect details, a judge may feel that you knew perfectly well what you were agreeing to!

    • Post Points: 65
  •  Mon, Nov 03 2008, 1:33 PM

    Re: Unfair Credit Agreements?

    If you get new t&c's off your credit card company dont sign them!! It will jeopardise them clearing any potential debt via unfair credit agreement.
    • Post Points: 5
  •  Mon, Nov 03 2008, 1:05 PM

    Re: Unfair Credit Agreements?

    Hi Tartan Army

    I have just posted a topic 'Old Debt Problems..!' and have just read this reply from you regarding credit card debt.

    Does this mean that if the debt recovery company do not have a copy of my original credit agreement, then they have no power to act?

    I would be very grateful for your input.

    Kind regards

    Adam

    • Post Points: 20
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