Mint CCA, What do you think

[Under Siege]

Here is a copy of Mint's alleged credit agreement.

 

It came with separate terms & conditions.

 

I'm not to sure what to do, I know that there is a chance that it is unenforceable but I would like your opinions.

 

Thanks

 

http://i231.photobucket.com/albums/ee54/blondespium34/mint_ccacopy.jpg

[Edz11]

It isn't properly executed - there isn't box for the creditors signature - so it never could be properly executed. But can't read the top section where it gives the prescribed terms. Can you blow up that bit so it's reasonable? I think that is where the crucial info is - the area under the BOS stamp.

[Under Siege]

Hi Edz11,

Im having trouble blowing it up, but the part you are referring to is just about data protection.

There are no prescribed terms on the page, however the signature box does refer to the separate terms and conditions.

[seabro]

What date did you sign it?

 

Whats on the back?

[Under Siege]

Seabro,

 

Signed on 12/03/2004 - Nothing on the back I assume because they have just sent a photo copy

[Edz11]

Well, if that's it then it isn't enforceable. There's nothing on it about the credit limit (or how it will be set) rate of interest (or how calculated) or how you are going to repay. It hasn't got any of the prescribed terms on it at all. If this was a one armed bandit you'd be looking at 4 cherries.

 

I'd write back and say that they still haven't provided the credit agreement That it can't be the credit agreement as it doesn't have any of the prescribed terms on it. Could they provide the proper one...

 

No signature on the letter, mind!

[seabro]

hi under siege,

 

it's possible the prescribed terms are on the back. the last thing you want is to get to court and find out they have a valid agreement.

 

Because you signed pre 31.05.2005, they are aloud to put prescribed terms on rear.

 

If I was in your shoes I would write to them and ask them if the back of your agreement should be blank if not tell them they have not complied with their obligations under your s78 request as there are parts of the agreement missing.

 

if/when you get page 2 you will know if you got the cherries

 

 

good luck!

[Edz11]

We agree seabro - the "is that it?" request should force them out.

 

Bet he has got 4 cherries (and I never bet).

[Under Siege]

Thanks for your advice Seabro & Edz11

 

The prescribed terms are on the separate terms & conditions sheet referred to on the agreement.

Guess that means its enforceable.

 

I was not aware of the 31.05.2005 date thing.

[Edz11]

was that separate sheet attached to the bit you signed or sent after?

[Under Siege]

I can't remember tbh

[seabro]

Thanks for your advice Seabro & Edz11

 

The prescribed terms are on the separate terms & conditions sheet referred to on the agreement.

Guess that means its enforceable.

 

I was not aware of the 31.05.2005 date thing.

 

The 31.05.05 thing is a SI that stipulates amongst other things the order of the info in an agreement and that there can't be adverts and stuff intermingling with the information. Most importantly your Signature must be last so they cant have you sign on the front and then sneak stuff on the back (as they do / did).

[Edz11]

We are back to my other post. Tell them that it is not the executed agreement as it does not contain the prescribed terms. Could you have the agreement you signed that contains the prescribed terms.

 

Put it back on them to prove their case.

 

The agreements have always been enforceable, pre and post CCA 2006, (if the box was in the wrong place, missing phrase, etc etc etc) but they were then only improperly executed and it depended how the Judge thought as to if he agreed it was enforceable or not. The Judge's main consideration then was the degree of predjudice that would be suffered by the improperly executed agreement. A signature box missing - not much predjudice there.

 

But when it comes to an executed (both parties must sign) agreement without prescribed terms then it isn't enforceable full stop, no discretion, for pre CCA 2006 agreements.

[Under Siege]

Sorry for the delay, here it is

 

So is it definate that they could get away with putting the prescribed terms on the back?

CCF26112007_00001.pdf

[Curlyben]

Well as there are NO prescribed terms on this document it is unenforceable.

It is clearly a mailer application form.

 

 

S61(1)(a) CCA provides that, for a regulated agreement to be properly executed, it must contain all the prescribed terms of the agreement and conform to regulations under s60(1) – see Q1.14.

 

Reg 6(1) provides that the terms specified in Sch 6 to the Agreements Regulations are ‘prescribed terms’ for the purposes of s61(1)(a) and s127(3) – see Q8.2.

 

8.2 What if prescribed terms are missing or incorrect?

 

s127(3) provides that the court may not make an enforcement order unless a document containing all the prescribed terms of the agreement was signed by the debtor – see Q1.21.

 

If therefore any of the prescribed terms is missing, or incorrect, the agreement is not enforceable against the debtor, and the court is precluded from making an enforcement order.

 

 

8.3 What are the prescribed terms?

 

The prescribed terms specified in Sch 6 are as follows:

 

* amount of credit – see Q8.

 

* credit limit – see Q8.5

* repayments – see Q8.9.

* rate of interest – see Q8.6

 

Sch 6 was not amended by the 2004 Regulations.

 

 

Also check out Peter Bard's excellent thread on the subject: http://www.consumeractiongroup.co.uk/forum/general/103383-agreement-enforceability.html

 

Now to follow on what has already been started about the terms being on a separate sheet.

 

SI 1983/1553 clearly states that ALL terms must be included within the signature document and NOT be included as a separate T&C document.

[pt2537]

And, one you missed Mr Curly, the document states "Rights To Cancel" therefore there should be cancellation rights supplied with the CCA document.

[Under Siege]

Curlyben & Paul,

 

Thats cheered me up a lot, because I am trying to arrange my own DMP and Mint are been swines.

 

Can any of you point me to a good template letter

 

Regards

[Under Siege]

Oh and the date thing is not an issue then?

[Curlyben]

Oh and the date thing is not an issue then?

Nothing to worry about in this case.

[pt2537]

sure we can come up with something

[Curlyben]

You have nothing to say to them until they start demanding payments, then we'll inform them about the enforceability of their "agreement"

 

Until then sit back and relax.

[pt2537]

Okey Dokey, i suppose we can put a letter on the back burner;)

 

i have a few in mind so dont worry Under Siege between us we can sort this out

[Under Siege]

Thanks guys

[Under Siege]

Ive just sent them a letter as part of my DMP offering them a pro rata payment could that land me in trouble?

[Under Siege]

I'm in a pickle on how to approach this.

 

I made them an pro rata offer through my own DMP. they have wrote back and eventually accepted it provided I make the first payment straight away.

 

What should I do?

 

Can somebody point me in the right direction of a template letter informing them that they have not complied with my CCA request due to separate terms and conditions and no right to cancel doc