Help Needed-Application Form linked to Terms & Conditions

[pauli]

On disclosure Sols acting for claimant have produced a copy of the front of an Application Form together with a separate copy of Terms and Conditions they say "would have been on the back" in evidence of the agreement

 

The Application contains no reference to terms, prescribed or otherwise, except for - " I agree to be bound by the Terms and Conditions which form part of this agreement" and in the signature box " Sign Only if you want to be legally bound by its terms"

 

Is this sufficient for the court to consider the two be linked and accepted as proof of an enforceable (compliant) agreement?

[palomino]

If you dispute that the T&Cs supplied were originally attached to the application form then you can ask the solicitors to provide proof in court that they were.

 

A mere assertion is not proof. The words 'would have been' are in themselves evidence of uncertainty.

 

Incidently are the T&Cs compliant? Is there a signature by the credit provider?

[pauli]

Hi Palomino

 

The prescribed terms appear to be in the copy Terms and Conditions but whether the terms are the ones applicable at the time I signed are another matter. I understand they should be a contemporaneous copy. The copy I have is barely legible enough to read the small print and has no visible reference to a date. Neither document is signed by the creditor.

 

Despite this the sols argue that the specific wording on the Application Form is sufficient for a judge to "find it reasonable to assume" that the terms were in fact on the reverse of the signed document. I am sure the "in line with standard industry practice" argument will also emerge at some point in proceedings.

 

It worries me that the burden of proof is one of reasonableness in the County Court. Particulary given the willingness of judges to accept the moral argument. In my case the sols go to great lengths to prove that the debt exists and that it is based on a valid agreement. The real issue of whether or not it is an enforceable one is skirted around.(not surprisingly)

 

I do understand the legality /morality distinction but am still not looking forward to a judge looking me in the eye at trial and asking directly whether or not I admit a debt exists!

 

How exactly do you answer that question?

[questioning]

Hi,

This is a question I often think about. I haven't had to attend court luckily but if I had to this would be one of the hardest questions to answer.

IMO if you just argue that you are not paying the creditor because they didn't do one or the other things under the CCA 1974, then you are asking for trouble.

I think you need make the prime issue that you requested the CCA because you didn't recognise the amount of debt and thought they must have applied unfair charges/interest to the amount of the debt and you wanted conformation that this was allowed and you wanted proof that the debt was in fact the correct amount. What transpired was that the agreement was either non existent or it was unenforceable for some other reason and therefor you don't deny owing the money but the agreement should be found to be unenforceable through the courts.

Other than something like that I haven't got a clue.

It would be good to hear what other members thought and some more ideas on the subject.

[Having_A_Knightmare]

Well Ive got a Court case pending and they have an application form with the T&C with the perscribed terms.

 

There is no link to the application form and on the form it says" I have agreed to the T&C that accompany this application"

 

Well accompany is not part of. IF you no what I mean.

Have a good look at the application form

 

HAK

[pauli]

thanks for your comments..the problem it seems to me lies in the fact that the evidential weight of a copy documents is largely left for the judge to decide.

 

In my opinion it should not be a discretionary call..either there is a clear link between the documents or not. In the form of page numbers or a line like "continued overleaf "at the bottom of the page.

 

Alarmingly I did see one Application form that actually said "agree to be bound by the terms set out overleaf" on the front page. In such circumstances I imagine that even though the terms were contained on a separate sheet it would be hard to argue they were not linked. At least providing they were contemporary with the Applicatiion.

 

I would still like to hear some more opinions on the best and most legally sound answer to that question from the judge!

[palomino]

If it ever gets to court then you will be asking for the original agreement to be produced as evidence.

 

The agreement not only defines the debt; there are other things involved such as their right to enforce repayment, whether they can add charges, whether they can pass the account to a DCA, whether they can advise credit reference agencies. This is why the agreement is so important.

 

In particular you can advise the judge if you are pressed that you do admit that the creditor provided you with credit which you have moral obligation to repay but the agreement is essential because it should have the appropriate terms for enforcement and other things such as those listed above. Without it the creditor is unable to enforce repayment by, for instance, taking you to court.

 

If/when you a claim is lodged in the County Court then we address the specifics for your case.

[Having_A_Knightmare]

I would argue my socks off.

 

This is in contravention of The Consumer Credit (Agreements) Regulations 1983. I would also like to refer to Wilson & Anr v Hurstanger Ltd [2007] EWCA Civ 299

 

 

33. 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 (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under section 61 single 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. More detailed requirements, which are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the minimum terms) are to be found in Schedule 1.

[Having_A_Knightmare]

I would also like you to note Francis Bennion's (Author of the Consumer Credit Act 1974) comments below.

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

[tinkerbell20]

I would argue my socks off.

 

This is in contravention of The Consumer Credit (Agreements) Regulations 1983. I would also like to refer to Wilson & Anr v Hurstanger Ltd [2007] EWCA Civ 299

 

 

33. 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 (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under section 61 single 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. More detailed requirements, which are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the minimum terms) are to be found in Schedule 1.

 

 

Yes the prescribed terms have to be embodied in the agreement itself

[tinkerbell20]

I would argue that this is why the creditor should have kept the original agreement or at least copied both sides at the time. There is no reference to anything being on the back. It is for the Creditor to prove that they are there. Keep asking where it says that the prescribed terms are on the back of the form. They cannot be in a seperate document.

[questioning]

 

I would still like to hear some more opinions on the best and most legally sound answer to that question from the judge!

 

Yep, So would I.

Its a question that is asked on the forum quite often and one which is seldom answered. I can't see there is a legally sound answer unless there is a No show of the agreement which the claim is based on.

[palomino]

Yep, So would I.

Its a question that is asked on the forum quite often and one which is seldom answered. I can't see there is a legally sound answer unless there is a No show of the agreement which the claim is based on.

 

It is possible that the credit card issuer was offering different credit card deals at the same time. For example they could be offering special cards to members of the AA, or Saga or any other affinity group. These may or may not be the same as their standard credit cards so the T&Cs they have sent may not be applicable to your credit card.

 

How do you know whether the T&Cs they have sent were appropriate for you?

[questioning]

It is possible that the credit card issuer was offering different credit card deals at the same time. For example they could be offering special cards to members of the AA, or Saga or any other affinity group. These may or may not be the same as their standard credit cards so the T&Cs they have sent may not be applicable to your credit card.

 

How do you know whether the T&Cs they have sent were appropriate for you?

 

You don't.

 

This is why the act was bought in the first place wasn't it, for protection.

 

In the Court of Appeal, Sir Andrew Morritt delivered his judgment in Wilson v FCT,

Quote:

“where there was no document signed by the debtor , or where the document signed by the debtor did not contain all the prescribed terms of the agreement, neither the agreement, nor the delivery of the pawn, conferred any enforceable rights on the creditor. So, in the present case, the creditor had no relevant "possessions" to the peaceful enjoyment of which it was entitled, or of which it was deprived by section 127(3) of the 1974 Act. In effect, the creditor, by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms, must (in the light of the provisions in ss 65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift, of the loan moneys to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid;”

 

Sorry I must have misunderstood the post.

I was trying to answer this from Pauli, " I do understand the legality /morality distinction but am still not looking forward to a judge looking me in the eye at trial and asking directly whether or not I admit a debt exists!"

 

How exactly do you answer that question?

 

As I said IMO the only time you might be able to argue if the debt ever existed was if there was no agreement, No agreement, no debt, however this wouldn't be an option for me.

Some creditors do try to get enforcement through the courts without an agreement and obviously rely on all the transaction history along with perhaps a blank form and a DJ who doesn't know or want to know any better. The claimants will say things like" just the heavy usage of the card belonging to Mr. Bloggs shows that the debt exists"

 

Going back to Pauli's question of what to say if the DJ asks if you admit the debt exists this is one comment that Peterbard made about it,

 

HI

In my view if there is no agreement then it is game over.

 

It is rarely as simple as that in practice though as the creditor will invariably try to fudge the issue by producing statements or application forms.

 

I have found that the best course is not to deny the debt but to deny that you were given the statutory rights and protection that a properly formated agreement affords you and therefore unenforceable and void.

__________________

Edited September 8, 2008 by questioning

[pauli]

Quote Peter Bard: "I have found that the best course is not to deny the debt but to deny that you were given the statutory rights and protection that a properly formated agreement affords you and therefore unenforceable and void."

 

Hi Questioning....not altogether sure what this means?

 

Can you or Peter elaborate please