Cap1 & CCA return

[Number6]

Why are we arguing about what constitutes a properly executed agreement?

 

The CCA is clear:

 

61 Signing of agreement

(1) A regulated agreement is not properly executed unless—

 

(a) a document in the prescribed form itself containing all the prescribed

terms and conforming to regulations under section 60(1) is signed in the

prescribed manner both by the debtor or hirer and by or on behalf of the

creditor or owner, and

 

(b) the document embodies all the terms of the agreement, other than

implied terms, and

 

© the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible.

 

Section 60(1) says:

 

60 Form and content of agreements

(1) The Secretary of State shall make regulations as to the form and content of documents

embodying regulated agreements, and the regulations shall contain such provisions as

appear to him appropriate with a view to ensuring that the debtor or hirer is made aware

of—

 

(a) the rights and duties conferred or imposed on him by the agreement,

 

(b) the amount and rate of the total charge for credit (in the case of a

consumer credit agreement),

 

© the protection and remedies available to him under this Act, and

 

(d) any other matters which, in the opinion of the Secretary of State, it is

desirable for him to know about in connection with the agreement.

 

So a properly Executed Agreement MUST be signed by the debtor and the creditor in the prescribed manner and the document MUST contain all of the terms and conditions that you are agreeing to. Otherwise it's not executed.

 

So S85 means that a copy of the original agreement (signed by both parties) MUST be provided with every new card issued.

 

I have so far received only one copy agreement that seems to comply with all of this, the two other copies I've received are application forms only signed by me and not containing all of the T&C's

 

Pete (yes, I am still alive!)

[Number6]

See zootscoot's post above.

 

I *think* we have crossed wires here.

 

Regulation 3(2) is a subset of 3(1); these only relate to copies of unexecuted agreements, i.e. any copy sent for approval or some other purpose and hence this is why the signature boxes etc can be left out.

 

3 (1) & (2) do not relate in any way to executed agreements.

 

Pete

[Number6]

I actually had to double-check both of those myself for a moment.

 

Just for clarity you are saying that the copy of the agreement that must be supplied as per S.85 has to be a true copy, i.e. complete with signatures of both parties?

 

And that Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 R3(1) and R3(2) only relate to pre-agreement unexecuted documents?

 

Pete

[Number6]

 

I have so far received only one copy agreement that seems to comply with all of this, the two other copies I've received are application forms only signed by me and not containing all of the T&C's

 

Then the one you have recieved that has complied with the act is enforcable (incidentally was that signed after 1st Jan 2004 or was it from the RBS or HBOS group?), the others aren't. As has been said elswhere many times.

 

Mike

 

The agreements that appear to be correct are from Egg. There are three agreements;

 

1) Egg Credit Card. I've just noticed that the agreement is signed and dated by me as 26/3/03 but signed and dated by Egg at 25/3/02. The form was sent to me originally in 2002 so it appears I dated it incorrectly

 

2) Egg Money Account. Signed and dated by me at 25/5/04

 

3) Egg loan. Signed and dated by me at 15/6/02

 

The two "incorrect" agreements are from Morgan Stanley and Sainsbury's, both CC's

 

Pete

[Number6]

heehee

 

1) Egg Credit Card. I've just noticed that the agreement is signed and dated by me as 26/3/03 but signed and dated by Egg at 25/3/02. The form was sent to me originally in 2002 so it appears I dated it incorrectly

 

ohhhh so you didnt agree to the terms and conditions for 12 months after they did. I'm sure their is scope for another discussion in that somewhere.

 

Yes, I only noticed that this morning and I've been vaguely thinking about it ever since. I'm sure they should have picked that up and queried it before issuing my card. Maybe the agreement is not enforceable until the date I signed it? So a years worth of interest should be knocked off.

 

I'll keep thinking for the time being.

 

Pete

[Number6]

I agree with you Dollies but I am trying to look at it from all angles.

 

Hi Tamadus

 

Looking at it from all angles have you actually received a copy of a properly executed agreement? Or an application form with only your signature on it?

 

If the latter I would be inclined to write back and say "thanks for the copy application form, now where's my copy agreement?"

 

I've done this to Morgan Stanley and Sainsbury's so far. They sent me the app form, I wrote back and asked for the agreement that complies with S61 of CCA. I haven't heard a peep back from them so far.

 

Pete

[Number6]

Hmm let me think I know. They could send they heavy brigade to knock at my door :o but somehow I think my 4 black belts will ruin that plan

 

I think I am going to hit them with a combination of what you have put above and a section 85 notice :o plus of course a claim for repayment of charges and interest:D

 

In theory the agreement is enforceable, but would a judge follow that logic or would he enforce their default offence ?

 

IMHO a judge can only enforce the agreement if the agreement itself is properly executed according to S61.

 

Pete

[Number6]

I have done the same with Barclaycard, hence their silence of late.

 

This is the application form but it is also headed (in much smaller font) credit Agreement regulated by the consumer credit act 1974 and also carries the cancellation notice, and its fully signed and dated, so yes it is the agreement. They have even attached a bad copy of their terms and conditions.

 

Then me being bloody minded me I would be inclined to tell them to either get a judge to enforce it or go swivel!

 

Pete

[Number6]

I have done the same with Barclaycard, hence their silence of late.

 

This is the application form but it is also headed (in much smaller font) credit Agreement regulated by the consumer credit act 1974 and also carries the cancellation notice, and its fully signed and dated, so yes it is the agreement. They have even attached a bad copy of their terms and conditions.

 

Hang on though.

 

In order to comply with S61 doesn't the agreement have to contain all of the terms and conditions?

 

(1) A regulated agreement is not properly executed unless—

 

(a) a document in the prescribed form itself containing all the prescribed

terms and conforming to regulations under section 60(1) is signed in the

prescribed manner both by the debtor or hirer and by or on behalf of the

creditor or owner

 

If there are T&C's on a seperate sheet does that not invalidate the agreement?

 

Pete

[Number6]

I really am tempted as they went into default on 5/9/06. At the very least I want a full reason for the delay and some form of compensation.

 

I'm going to have to draft this letter very carefully methinks. Discuss it with you later this evening if your free Number6. Going to run out shortly for some groceries and to get a new scanner so you can see the full letter.

 

I shall surely be around at some point, probably after 8.30.

 

You have my email if you want to send any scans through.

 

Pete

[Number6]

Halifax Card Services have put a new twist on responses to S78 requests.

 

I wrote on 13th September enclosing my £1 cheque.

 

Today I've received a letter dated 24th October containing my returned £1 cheque, the letter says:

 

Reference No. *******************

 

Thank you for your correspondence regarding the above numbered account. Please find enclosed your cheque as per telephone conversation

 

{I've never spoken to them!? }

 

Please note that the information you requested will be sent out under sperate cover.

 

Your letter has been sent to the appropriate department to enable them to deal and you should hear from the section in due course.

 

Should you require any further assistance, please do not hesitate to contact us.

 

Yours, etc

 

Talk about not understanding the definition of deadline!! Their 12 days were up on 3rd October and in six days they will be in "criminal" default.

 

And as for enclosing my cheque as per telephone coversation, well..... someone is hearing the voices!

 

I eagerly await my information.

 

Pete

[Number6]

They may have had more than one request

 

lol, lol, lol, lol, lol

 

Pete

[Number6]

Number6 did you get my email last night? talk when you can about it.

 

No I didn't.

 

I seem to have had a wadge of emails go astray yesterday evening. Could you please resend it?

 

Pete

[Number6]

It's now very awkward to deal with Trading Standards. I have spent a good part of today trying to get some information about the inter-relationship of the CCA with the 1983 Copies of Documents regulations; it relates to the work tamadus, peterbard and I are doing on another thread.

 

You now have to ring Consumer Direct rather than the local TS office; I did this, spent 10 minutes explaining the question and the issues only to be told by "Wendy" that "this is too complex for my level of training, you'll have to speak to your local TS office" and she gave me the phone number.

 

I rang TS and explained the question again - "oh you'll need to speak to an education officer; they're in a meeting. I'll get someone to call you back after lunch."

 

I've just now had a call back and spoken to someone from my local TS office. I explained the problem again, "oh, you have to speak to Consumer Direct"! "I just did" I replied, "they told me to phone you". "Hang on I'll call you back" said TS.

 

Five minutes later she calls back. "Consumer Direct should have logged your details and passed them on to us here. They haven't so you'll need to speak to them again, they'll take the details and pass it on to us"

 

.....

 

Not good.

 

I've now arranged to email the query directly to the local TS office.....

 

I mean, bloomin' 'eck!! :o What a pallaver!!! 10.30 a.m. to 1.30 p.m. and I've only just got an address to send the question to!!!!!

 

Pete

[Number6]

poltmcm

 

The CCA says:

 

60 Form and content of agreements

(1) The Secretary of State shall make regulations as to the form and content of documents

embodying regulated agreements, and the regulations shall contain such provisions as

appear to him appropriate with a view to ensuring that the debtor or hirer is made aware

of—

 

(a) the rights and duties conferred or imposed on him by the agreement,

 

(b) the amount and rate of the total charge for credit (in the case of a

consumer credit agreement),

 

© the protection and remedies available to him under this Act, and

 

(d) any other matters which, in the opinion of the Secretary of State, it is

desirable for him to know about in connection with the agreement.

 

So section 60 (1) (b) clearly says that the rate and total charge for credit must be shown.

 

Pete

[Number6]

On the actual agreement? Even if it says that you abide by the temrs and conditions, even though they are not supplied?

 

Ah, now there's a rub. It says:

 

"with a view to ensuring that the debtor or hirer is made aware

of—

 

(a) the rights and duties conferred or imposed on him by the agreement,

 

(b) the amount and rate of the total charge for credit (in the case of a

consumer credit agreement),"

 

Does the phrase "ensuring the debtor or hirer is made aware of" sit well with a term of the agreement that simply says (along the lines of) "the debtor agrees to abide by grabitall's terms and conditions" if the APR etc is stated within those T&C's. IMHO it doesn't and I would suggest that the APR and total charge for credit should be in the body of the agreement.

 

Pete

[Number6]

so in saying that then my application cannot be veiwed as a written agreement then, thanks number6

 

You might think that, I couldn't possibly comment!

 

Pete

[Number6]

So, what you're saying then (or the CCA is saying) is that even if I've been sent an agreement which is headed "CREDIT AGREEMENT REGULATED UNDER BYTHE CONSUMER CREDIT ACT1974"

 

then has my address and that of the bank's

 

then says, "I have read an agree to be bound by the terms and conditions attached."

 

then has a box with the right to cancel stuff in it

 

then has a box saying "This is a credit agreemtn regulated by the consumer credit act 1974. sign it only if you want to be legally bound byits terms. then has my sig and date on it.

 

Then has another box, "Signed on behalf of of the bank and date."

 

But nothing else (ie the APR)

 

then it is an unenforcable agreement?

 

No, I'm not saying that. What I am saying is that it is not clear cut and is subject to interpretation.

 

S60 says that the agreement must ensure that the debtor knows the total charge for credit and the rate of interest. I personally do not think that merely referring to obscure T&C's that are not embodied within the main agreement "ensures" such knowledge.

 

What I'm saying is it's arguable IMHO.

 

Pete

[Number6]

BUT as the interest rate can vary then so can the total charge for credit, hence it is sufficient within the act for that charge to form part of the terms and conditions, which in turn form a major part of the agreement.

 

So the original agreement should state the APR and total charge as it stands when the agrement is struck.

 

Any subsequent variations are then notified to the debtor which is what does happen.

 

Pete

[Number6]

Just checked my Egg agreements and they do clearly state, in the main agreement, the APR and monthly charges.

 

Pete

[Number6]

so, the CCA states that a credit agreement must include the rate, because the T&C's are deemed part of it, and the rate is in them, they are, in respect of the CCA, in the agreement?

 

Surely if that's the case though, the creditor should have to provide a copy of the original T&C's as they are part of the agreement? Otherwise they could allege that we agreed to anything?!

 

(sorry about the dis-jointed words and spelling, this keyboard is crap!!! grrr...)

 

This is where the "up for argument" bit comes into play. All the prescribed terms should be in the document we actually sign IMHO. For the signed agreement to refer to some other obscure document that we may or may not have seen is not secure.

 

Pete

[Number6]

When we sit down and really read the wording of the CCA and get through the legalese of it then it actually has a lot of flaws which appear very counter productive. I suspect that like most acts of parliament those who shouted loudest got their points included, those like the consumer who didnt have any idea it was being formulated never got heard.

 

I agree. The more I read it (and that's a little more each day) the more aghast I'm becoming. There's no real protection there at all IMHO.

 

And yes, those that shout loudest get included as I found out in nearly three years of dealing with DEFRA / government regarding what became the NERC Act 2006 as you know.

 

Pete

[Number6]

And we have hardly touched the 2 updates of 1984 and 2004 yet or the million SI's that apply LMAO

 

Tell me about it!!

 

Pete

[Number6]

sorry to be thick - what's an SI?!

 

Statutory Instrument - a modifying order if you like that allows the Government to modify an act without drafting a whole new one.

 

Pete

[Number6]

 

3) If a S.A.R - (Subject Access Request) request with £1 is sent for a copy of the original agreement - signed by both parties, and if they fail to produce this within 12 days including weekends, the card company is in default and the credit debt is not enforceable?

 

You would need to make a request under Section 78 (for running account credit) or 77 (for fixed sum credit) of the Consumer Credit Act 1974, it's not a subject access request which only applies under the Data Protection Act 1998.

 

The correct timescale here is 12 working days + 2 working days to allow your letter to reach the lender = more or less three weeks.

 

4) Still not produced after 30 days, a crime is committed?

 

Not quite. It's an additional calendar month after the original 12 + 2 working days. So the grand total is 14 working days + 28 to 31 days depending on the month.

 

Pete