The Fos Say That Capital One's Application Form Is An Enforceable Agreement

[surprise]

I have been dealing with charges on behalf of my daughter and the FOS have today responded with an amazing statement. I am attaching their response. I had problems scanning the Application Form, but I can tell you it is like so many others around the site, in particular the same one as Spiritgirl received.

 

I am obviously not accepting what the FOS are saying but I would like to quote the relevant acts to them and would be grateful if some one could put this up so that I can quote.

 

It is also my intention to state that I am disappointed that a consumer has to rely on them for advice for which they have had no apparent training to give such advice.

 

I look forward to receiving all relevant information for the FOS, it is also my intention to complain to the OFT regarding the drivel they have stated.

[nicsussex]

Just for housekeeping - line 3 of the conclusions paragraph still has the claimants name showing

[42man]

OK do I take it that the application form doesn't contain the prescribed terms ?? if so then this is what you might be after....

 

CONSUMER CREDIT ACT

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.

[surprise]

Thank you.

[42man]

There is also reference to High Court case law, but I can't remember if it was the Wilson vs First County Trust or another possibly Woodchester Finance/Leasing...

[surprise]

It is a short application form, which, as the FOS point out "This is a Credit Agreement.........". Nothing else. Spiritgirl has got the same one in her thread. It appears the FOS have just quoted what Capital One have told them, as Capital One have wrote this to me in earlier correspondence. What is amazing that the FOS clearly have no knowledge of the CCA74. They also appear to be accepting the terms and conditions which Cap One send separately which have not been signed.

[pt2537]

Does it have the prescribed terms as laid out in schedule 6 column 2 of the Consumer Credit Agreements Regulations 1983

 

if it doesn't i would politely point out that to the FoS

 

i have a copy of those regs if you'd like to send them a copy for their attention

[surprise]

Yes please, I would love a copy, perhaps GAG ought to offer their services as Trainers in the CCA74.

 

It is clearly an application form with all personal details, with just the signature box stating "This is a credit agreement ......". I will pm you my email address.

 

Many thanks Paul and 42Man.

 

Paul and

[surprise]

Paul, couldn't see how to send a pm, have you got a consumer action group email address I can use please

[Seahorse]

For some reason, when I try to open the doc, I get 3 blank pages.

 

But perhaps the FOS might like to take a look at Sir Francis Bennion's website (he did after all draft the CCA 1974, so he should know what he's on about), and have a look at what he has to say about improperly executed agreements...

 

Consumer Credit Act 1974 s 127(3)

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 TrustLtd [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.

[surprise]

Seahorse - it is there now

 

I shall gather as much info together as anyone would care to share with me that the FOS won't know where to start. OFT will also be getting a copy. I think this Adjudicator will wish he never heard from me.

 

So just keep feeding me with ammo

[surprise]

Well in response to my email and the additional information supplied the attached letter arrived today. To say I'm gobsmacked is an under statement.

[Newborn]

The FOS (Fencesitters Of Southquayplaza), just like all other such bodies know exactly what the position is and the sheer size of this whole can of worms. What they will not do is put anything in writing that could allow them to be used as a 'debtor's friend'.

 

They therefore completely ignore the underlying principle that to be fair both sides must adhere to the law. You have done your part with the CCA req, now let the other side do their bit.

 

How can these bodies achieve anything if they ignore a law they don't like? They cannot just pick and chose which laws they want to take heed of to suit their own ends. It seems that they have made a judgement about you, which the law hasn't.

 

If you go to their web-site you will read this:

 

"We’re completely independent and impartial – just as a judge would be if the consumer went to court instead."

 

They should therefore use exactly the same information as a judge would do, - the law.

 

(Finished orbiting the room at 6ft, now coming down to earth with a gentle bump!)

 

Newborn

[ScarletPimpernel]

So, if I understand FOS's second letter, creditors can do what they like because the FOS takes a different view (and one which is ultra vires in my view) than the law of the land.

[surprise]

Beggars belief.

[sosumi]

I had a feeling about the FOS...

Does anyone remember the CSA's reassurance to its' 'members' that the FOS would be giving them a 'heads up' about any complaints?

[Newborn]

Totally agree SP.

 

But IMHO it's a lot worse than that.

 

By not taking any action to ensure DCAs and creditors act within the law, the FOS etc are NOT merely letting creditors do what they want, they are giving them their tacit approval, if not the absolute clearance to act as they please.

 

The DCAs will always then say 'well you've always said it was OK for us to do this'.

 

This makes any action a creditor takes as officially sanctioned.

 

Newborn

[IIIUMINATI]

home » about us » video-welcome

 

Why not write to Wally and let him know where extra training is required.

 

I would also ask for a copy of there official complaints procedure

 

Who investigates a complaint made against this public body ?

 

Using the freedom act I am sure many people on here could come up with a number of questions.

 

How many times has the Fos found in favor of the individual ?

 

 

 

video-welcome

 

from Walter Merricks, chief ombudsman

 

Hello and welcome to the Financial Ombudsman Service. I’m Walter Merricks, the chief ombudsman. I’d like to tell you a little about what we do and how we can help you.

If you’ve fallen out with your bank, insurance company or financial firm – and you haven’t been able to solve the problem – then have a look at our website or give us a call. It’s our job to help resolve disputes between financial businesses and their customers. We were set up by parliament to do this, as independent experts. And our service to consumers is free.

Every year we help resolve tens of thousands of disputes, so we know a lot about what causes complaints and how best to resolve them. As with any kind of dispute, it’s always best to try and sort things out as early as possible. You should complain first to the business you think was responsible for the problem. Give them a chance to sort things out. By law, all the businesses we cover have to follow an official complaints procedure. That means they must take your complaint seriously.

If you’re having trouble getting in touch with the business you’re unhappy with, or you’re unsure about anything, then let us know. We’ll explain what you need to do next. And we can contact the business for you and ask them to look into your complaint.

If the business doesn’t sort things out, or you’re unhappy with what it’s done, that’s when we can get involved and look into things for you. If the business isn’t able to resolve the problem to your satisfaction, this is the leaflet they should give you. This tells you what happens next and how we do things. It explains that we’ll need some details from you at this stage to check that your problem is one we can look into. We’ll do this by asking you to fill in our complaint form. We can help you fill it in over the phone or you can download the form off our website.

There are always two sides to any dispute, so we give both sides a fair hearing. The ombudsman service isn’t as formal as a law court but we’re completely independent and impartial, just as a judge would be if you went to court.

When we look at a complaint, we don’t take sides. We’ll get the paperwork and look at the facts. We ask questions, listen carefully and weigh up all the arguments. Then we tell you what we think. We can’t please both sides every time, so we might not tell you what you want to hear. We might decide you are right, or we might decide that you haven’t been treated unfairly. Or we might suggest some kind of compromise to help you and the business sort things out. But if we decide that you’ve lost out, then we can ensure that things are put right for you.

[surprise]

I have been pondering what further action I should take, as I am not one for taking things lying down. I think a letter to Walter might be a way forward. I have complained to OFT as well so I will send them the FOS latest letter. I did actually say in my letter to the FOS that they weren't obviously conversant with the 1974CCA and if they were supposed to be mediating then they should be. I think this is why he has tried to explain the term "enforceable", obviously trying to make his point.

[citizenB]

I had much the same response from Trading Standards regarding a Barclaycard Pre contractural Application mailer form I sent to them. I am still waiting on FOS

[surprise]

Don't hold your breath for any help from the FOS. Following my last letter I decided to email them and ask for their Complaints procedure. This is their response. "As you remain dissatisfied with my assessment of Miss xx complaint I consider that the most appropriate course of action will be to refer the complaint to an ombudsman for a decision as the final stage of our process.

 

Please note that it will be at least 28 days before your hear from the FOS again.

 

a waiting game again!

[citizenB]

Just catching up on subscribed threads. Surprise, have you heard anything more

[surprise]

Nothing from FOS, they did say 28 days, so I am not expecting anything until beginning of June. Capital One have started to pursue the debt though but they can take a hike until this is all sorted.

[nicklea]

Surprise,

 

I was just reading the title of this thread:-

 

The Fos Say That Capital One's Application Form Is An Enforceable Agreement

 

Forgive me if I've missed something here but I don't quite understand why you are saying this.

 

In the first reply from the FOS they say that Cap1 aren't in breach of the CCA. Admittedly their reasons for saying this are wrong, but, if Cap1 have replied to you with an alleged agreement and t&cs then they actaully HAVE complied with s77/78 CCA. So the FOS is correct, allbeit for the wrong reason.

 

Whether or not the agreement is enforceable is an entirely different matter.

 

In their second reply, they say that when "enforceable" is used in connection with a contract what it actually means is "enforceable in a court of law" that is, when one party to a contract seeks to rely on the terms of a contract to obtain a judgement in court against the other party.

 

They then say that they feel that a court of law is the best body to decide if the agreement is, in fact, enforceable in a court of law.

 

Which, when you think about it, makes sense.

 

They say this in their reply:-

 

But in any event, the FOS is not a court of law, and is not, therefore, the most appropriate body to test the claim you are making in this regard.

 

The creditor is NOT trying to enforce the agreement (is that correct?) and they have NOT entered a default with the CRAs (is that correct?)

 

So, they are NOT trying to enforce the agreement.

 

Until such time as they do try to enforce the agreement then I would suggest that the comment by the FOS is correct where they say:-

 

THe question of enforceability would seem to be moot for the time being because it doe not appear that Cap1 has sought to enforce the agreement in court, at least not yet.

 

If you are trying to get the FOS to make a declaration that the agreement is unenforceable in court then I believe that this may well be beyond their authority as they are not a court of law.

 

If you are trying to claim back the payments you made then that is a lot more difficult as it could be argued that you made the payments voluntarily.

 

See this post by tomterm who really knows a lot:-

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/112860-will-you-get-payments.html#post1109554

 

You would have two possible bases on which you could make this claim, but it's always a lot more difficult to do this as a claim rather than using this as a defence when the creditor seeks to take you to court.

 

The two bases for doing this are firstly that payments were made under a mistake of law. This is a restitutionary claim based on the principle of mistake of law recognised in the House of Lords decisions in Kleinwort Benson Ltd v Lincoln City Council [1998] UKHL 38 and Deutsche Morgan Grenfell Group Plc v Inland Revenue & Anor [2006] UKHL 49.

 

You will need to do some research in this area.

 

The second basis may be on on the authority of the cases Wilson v Pawnbrokers [2005] EWCA Civ 147 and Wilson v Robertsons (London) Ltd [2006] EWCA Civ 1088

 

Again you will need to do some research into this.

 

While raising these as a defence of set-off against a creditor pursuing you would (I believe) not be risky. If you were to initiate court action based on these, I don't know what would happen.

 

Hope this has been helpful

[citizenB]

Ah, my apologies, I missed the '28' day response time.