Unenforceable agreements under the Consumer Credit Act

[Kerrigp]

Sorry can't up load the documents - but the gist of it is that they have sent me a single sided "Barclay card Conditions' - which states at the top that 'these are the terms and conditions of an agreement between us (Barclay Card PLC.....) and you MY DETAILS) They have also sent me the same first sheet but with an additional 4 sides. This all had a covering letter where that have stated that the 'if the agreement has not be varied, we must send the original executed agreement; this would be the credit which is currently regulated. If the credit agreement has been varied, we must send you the current credit agreement as this will contain the terms of the regulated agreement. We have sent you this and the original executed agreement for reference.'

[newbloke]

where an agreement has been varied requiring a modifying agreement to be issued, i.e. when they increase limits or change apr or vary payment amounts, or default charges then the copy document regulations do not apply to a section 78 request, unfortunately for barclays it also means they have committed an offence under sec 85, as they have to supply the original agreement, unaltered, the proof is in si 1983/1557 sec 11(g). report them to the oft for this breach.i have, and also report them for this breach to the fos, send them a letter quoting 1983/1557 sec 11(g) and tell them they are in breach of contract for failing to issue modifying agreements which is their duty under sec 82, and check the two sets of terms they sent, if default charges on the earlier set are different to the £12 they are currently charging, then they are unlawful and must be removed from the account

[Bigdebtor]

hi

A point o have raised many times on her and has just been affirmed in the manchester judgement.

The prescribed terms must be contained within the agreement document as per 61(a)

The rest of the terms can be embodied elswhere and referred to in the agreement.61(b)

 

Peter

 

Peter

 

I have a Direct Line loan and RBS/Direct Line keep sending me the WRONG set of T&C's - but keep claiming they are the correct ones - but won't annotate them to confirm this. I KNOW they are the wrong ones as I have the CORRECT ones. Any advice on how to proceed?

 

BD

[davefirewalker]

Peter

 

I have a Direct Line loan and RBS/Direct Line keep sending me the WRONG set of T&C's - but keep claiming they are the correct ones - but won't annotate them to confirm this. I KNOW they are the wrong ones as I have the CORRECT ones. Any advice on how to proceed?

 

BD

 

you need to pose that question here..> Dissecting the Manchester Test Case.... - The Consumer Forums

 

they were waiting for something like that !!

 

Dave

[Peterbard]

Peter

 

I have a Direct Line loan and RBS/Direct Line keep sending me the WRONG set of T&C's - but keep claiming they are the correct ones - but won't annotate them to confirm this. I KNOW they are the wrong ones as I have the CORRECT ones. Any advice on how to proceed?

 

BD

 

Hi Depends a lot on wat yu mean by wrong.

 

If it is just the form or theway they look thatis different then they comply even though hey don;t loos but if the infotion they dontain is different then they do not.

YOu need to see the conditions that were in place at the time of your orriginal application

 

Peter

[Bigdebtor]

Dave

 

OK thanks = will do.

 

BD

[diddydicky]

Peter

 

I have a Direct Line loan and RBS/Direct Line keep sending me the WRONG set of T&C's - but keep claiming they are the correct ones - but won't annotate them to confirm this. I KNOW they are the wrong ones as I have the CORRECT ones. Any advice on how to proceed?

 

BD

 

well if you KNOW it for a fact

then i would challenge them outright (but without letting on why you are so confident)

 

the tone of your letter would speak greater than the words

 

for instance

 

" the terms and conditions which you purport to be included within the signature document are not those pertaining to the signature document

 

i require you now to provide me with a true copy of the executed agreement in it's entirety OR

 

confirm in writing to me so that there is no doubt- that you beleive that what you have sent me is a true copy and that no part of that document has been fabricated or merged from separate documents

 

The better for you to think very carefully as to the course you now take

 

 

yours etc

[Peterbard]

Peter

 

I have a Direct Line loan and RBS/Direct Line keep sending me the WRONG set of T&C's - but keep claiming they are the correct ones - but won't annotate them to confirm this. I KNOW they are the wrong ones as I have the CORRECT ones. Any advice on how to proceed?

 

BD

 

Hi

Sorry you warranted a more comprehensive reply.

The only way that the terms and conditions they sent would not conform to the current definition of “True Copy” is if the prescribed terms are incorrect, that is, they do not correspond with the terms that you where operating your account on just after the execution.

If they are a different colour ,in a different font or of a different size or shape but with the correct information on them they conform.

As far as unenforceability is concerned if they are incorrect then possibility in that it is an indication that they do not posses the original.

It is no use going for enforceability under section78 because all they will do is produce a compliant copy and the breach is cured.

So what you need to do is say this cannot be a copy because the original does not exist.

What you are going after is unenforceability under section65 127.

They will try and confuse the issue by bringing up the Manchester case and the balance of probability argument ,but personally I do not believe that an agreement can be enforced if it cannot be produced in some form.

They may be able to say on the balance of probabilities it was executed correctly if they have a signed doc, that’s debatable but when there is no document at all? I doubt it.

Peter

[prophetdealer]

Hi

Sorry you warranted a more comprehensive reply.

The only way that the terms and conditions they sent would not conform to the current definition of “True Copy” is if the prescribed terms are incorrect, that is, they do not correspond with the terms that you where operating your account on just after the execution.

If they are a different colour ,in a different font or of a different size or shape but with the correct information on them they conform.

As far as unenforceability is concerned if they are incorrect then possibility in that it is an indication that they do not posses the original.

It is no use going for enforceability under section78 because all they will do is produce a compliant copy and the breach is cured.

So what you need to do is say this cannot be a copy because the original does not exist.

What you are going after is unenforceability under section65 127.

They will try and confuse the issue by bringing up the Manchester case and the balance of probability argument ,but personally I do not believe that an agreement can be enforced if it cannot be produced in some form.

They may be able to say on the balance of probabilities it was executed correctly if they have a signed doc, that’s debatable but when there is no document at all? I doubt it.

Peter

 

I agree, I would keep the fact that you have the originals anyway on the down low. Additionally as one of the files is a loan the request should be made under s77 not s78 as the lender can argue that the request was incorrectly made and therefore the claim should never have been brought.

 

Additionally just thought that I would list the prescribed terms that are needed within a credit card agreement for your perusal (for all)

 

number of repayments

amount of repayments

frequency and timing of repayments

dates of payments

and the manner in which the above may be determined

 

all found within schedule 6(2) Consumer Credit (Agreements) Regulations 1983. And bear in mind that most credit cards wont contain the first point as it wont state the number of repayments as its a credit card.

 

And remember if PPI on your loan was made out to be compulsory then this can be used not only for missale but unenforceability ;-)

 

Regards

 

PD

[matsinlondon]

Interesting statement by the OFT today stating their interpretation of the legal rulings. This from Credit Today:

 

The Office of Fair Trading (OFT) today said lenders and collectors must not threaten legal action if they have failed to fulfill debtor requests for information.

 

The OFT took the controversial step of disagreeing with the courts on the issue in its draft guidance for the industry on sections 77-79 of the Consumer Credit Act 1974 (CCA), published today. They also said creditors and debt buyers must notify debtors that they are not allowed to enforce.

 

Sections 77-79, which allow consumers to request information about their credit agreements, have been reviewed by the OFT because of concerns that some debtors are being misled into thinking that these sections can be used as a loophole to get their debts written off and some creditors do not seem to understand their obligations.

 

The OFT said the sections do allow a consumer to request a 'true copy' of their agreement but it agrees with the High Court that this does not have to be a photocopy or an exact copy of the original. A copy of the debtor’s signature is also not required to fulfill the obligation. If the creditor fails to provide the information the debt is unenforceable, but the OFT emphasised that this does not mean it is written off.

 

As such, lenders can pass the account to third parties to collect and can notify credit reference agencies of the arrears. However, the OFT disagreed with elements of the Royal Bank of Scotland versus McGuffick court case, which said threatening legal action does not constitute enforcement. While acknowledging the case, it said: "A creditor should in no way mislead a debtor as to the enforceability of the agreement. To do so would be an unfair of improper business practice and would be highly relevant to the creditor’s or owner’s fitness to hold a licence."

 

It added: "No communications or requests for payment should in any way threaten court action or other enforcement of the debt where the creditor or owner is aware that it cannot or will not be entitled to enforce."

 

The OFT then went further, insisting that communications with the debtor should in fact make it clear that the debt is unenforceable.

 

The regulator also said creditors should supply information to third parties who are authorised to seek the details by the debtor. In response to revelations that some creditors have refused to deal with claims management companies which do not hold a licence under the Act – the OFT has said that where a request is received from a debtor or hirer through such an unlicensed business it should still be responded to. It suggested the owner of the debt writes to the debtor directly and informs them why the information is being sent to them instead of the unlicensed business. The creditor is then expected to notify the OFT and Ministry of Justice about the business.

 

Ray Watson, OFT director of consumer credit, said: "There has been a great deal of confusion over the meaning of these sections with many borrowers being misled into thinking that they can get their debt written off. This guidance is to clarify the legal position and the OFT view on standards expected of the industry, and to make consumers aware that they may be at risk if they seek to use these sections to avoid paying legitimately owed debts."

 

The deadline for responses to the consultation is 21 April 2010. To view the document visit http://www.oft.gov.uk/shared_oft/consultations/OFT1175con.pdf

[Bigdebtor]

Peter/Diddydicky

 

Thanks for you replies last week - sorry it's taken so long to reply myself.

 

Basically the T&C's sent by RBS/Direct Line's lawyers refer to ANOTHER RBS subsidiary by name - and are one page only whereas I have the original 10 page booklet referred to in the Credit Agreement (again I have the original 3 page Agreement). They don't know I have originals and have sent me pages 1 and 3 of 3 following my cca request. Page 3 has my signature and they both have the Agreement No on them - BUT they look very like microfiche copies. They have consistently failed to send me Page 2 (of 3) with any Agreement No shown (blanked out) - and they refuse to certify copies of what they have sent as being true copies of the originals. I want to wrong foot them by having them certify wrong copies as true - but they won't play ball by doing so.

 

I also suspect Direct Line have only scanned Pages 1 and 3 into microfiche (as 2 is actually just generic - what we do with your data etc.). Basically I think the original agreement has gone awol and only the microfiche copy of Pages 1 and 3 survives - no copies of the original T&C booklets available either.

 

My main gripe is that they have refused to accept lower monthly payments and their lawyers are now threatening court action for the full amount right now which I can't pay. I have offered to pay off monthly over next 7 yesars if they'll agree not to impose any more interest or charges but they want 100% now or court action.

 

I don't think I have anything to lose by going to court as the judge would probably just order me to pay the monthly amount already offered by me as suggested by CCCS. However I am worried about them racking up costs as the debt value is well over £5k. If they want a fight they'll get one but nothing more can be paid until agreement reached or enforced (by court) as I don't have RBS Bank Account details with which I could make token payments even without their approval but they refuse to give me them so I can't do anything to reduce the debt without their co-operation and they just keep saying "we want it all back - NOW.

 

It is all arrears so no unlawful rescission. I don't think I ever got any DN - and certainly no TN. I keep offering the same affordable monthly payment and getting knocked back on this too.

 

As you can see, I'm not a WONT PAY or a CANT PAY - Im a THEY WON'T LET ME PAY.

 

Any further advice (or feedback on other RBS/Direct Line experiences) welcome.

 

BD

Edited January 28, 2010 by Bigdebtor

[Peterbard]

Peter/Diddydicky

 

Thanks for you replies last week - sorry it's taken so long to reply myself.

 

Basically the T&C's sent by RBS/Direct Line's lawyers refer to ANOTHER RBS subsidiary by name - and are one page only whereas I have the original 10 page booklet referred to in the Credit Agreement (again I have the original 3 page Agreement). They don't know I have originals and have sent me pages 1 and 3 of 3 following my cca request. Page 3 has my signature and they both have the Agreement No on them - BUT they look very like microfiche copies. They have consistently failed to send me Page 2 (of 3) with any Agreement No shown (blanked out) - and they refuse to certify copies of what they have sent as being true copies of the originals. I want to wrong foot them by having them certify wrong copies as true - but they won't play ball by doing so.

 

 

Peter

 

I also suspect Direct Line have only scanned Pages 1 and 3 into microfiche (as 2 is actually just generic - what we do with your data etc.). Basically I think the original agreement has gone awol and only the microfiche copy of Pages 1 and 3 survives - no copies of the original T&C booklets available either.

 

My main gripe is that they have refused to accept lower monthly payments and their lawyers are now threatening court action for the full amount right now which I can't pay. I have offered to pay off monthly over next 7 yesars if they'll agree not to impose any more interest or charges but they want 100% now or court action.

 

I don't think I have anything to lose by going to court as the judge would probably just order me to pay the monthly amount already offered by me as suggested by CCCS. However I am worried about them racking up costs as the debt value is well over £5k. If they want a fight they'll get one but nothing more can be paid until agreement reached or enforced (by court) as I don't have RBS Bank Account details with which I could make token payments even without their approval but they refuse to give me them so I can't do anything to reduce the debt without their co-operation and they just keep saying "we want it all back - NOW.

 

It is all arrears so no unlawful rescission. I don't think I ever got any DN - and certainly no TN. I keep offering the same affordable monthly payment and getting knocked back on this too.

 

As you can see, I'm not a WONT PAY or a CANT PAY - Im a THEY WON'T LET ME PAY.

 

Any further advice (or feedback on other RBS/Direct Line experiences) welcome.

 

BD

 

Hi

what do the missing pages contain is there a chance that they contain something they dont want you to see.

I tsnt the APR or the total charge for credit if itis i would get it checked to make sure the fifgures add up.

 

Peter

[Jinnyredhead]

hello all,

does anyone know if the same rules apply to American Express? Are they still governed by the same legislation?

[the_shadow]

hello all,

does anyone know if the same rules apply to American Express? Are they still governed by the same legislation?

 

Much to their dismay yes they are...providing... this is talking about a Credit Card and not a Charge Card.

 

S.

[Smarterchick]

Conniff v Barclays (High Court) the prescribed terms must be there in order for it to be enforceable. They can produce a reconstituted version from what was in the original (strange I know) but this is the current psoition. In all honesty without seeing what they produced I can give my opinion.

 

The reconstituted version will take precedent, but would need to see it.

 

I had a strange situation last week in court in relation to this. At a previous hearing the judge ordered the finance company to produce a 'legible' copy of the HP agreement (Car) within 14 days. They couldn't supply it. Apparently this document had been microfiched and the copy of the 1st 2 pages were eventually supplied blown-up so that it could just about be rread, but the t &c's were a blodge of smudged ink.

 

We had to attend this week for directions as a stay had been put in place so the sides could negotiate settlement but the finance company's solicitors refused to engage in meaningful dialogue most normal people would understand in 'negotiating', anyway, solicitors turned up and the judge who was a little lacking in CCA knowledge asked them to supply 'the best copy they could supply', but the solcitors rep produced another document which was signed by the debtor, no doubt at the time of the execution of the HP agreement which stated that he had read all the 5 pages of agreement and the terms and conditions, so there was a document which actually confirmed he'd accepted the terms.

 

The Judge agreed to allow the firm to produce generic terms and conditions from the period this HP agreement was struck 'from another persons agreement so long as it came with a statement of truth they were a true copy . The Judge asked the debtor why he hadn't got his copy and seemed content to allow this 'reconstruction' - I couldn't believe it and as I was only a litigants/McKenzie friend couldn't get my point across in court without being thrown out (the judge already had me on a yellow card!). The Judge was a really pleasant man, but totally out of his depth with the CCA.

[richardteather]

Hi all

Just wondered if any could help me or point my in the right direction.

 

I got a judgment in the small claims track on a unenforceable agreement that ordered C L Finance to supply credit agreement which complies with the act, default notice,deed of assignment, notice of assignment with proof of service, copies of any other document relied on,

And it said

If the claimant fails to comply with this order the claim will be struck out without further order,

And C L Finance did not comply, no default notice and agreement does not comply,

This was in November 2009,

Now I have a now order from a different judge which says

In light of the decision in Carey v HSBC and others the parties should by the 3rd March file and serve their further submissions and proposed direction.

 

IF ANY ONE CAN HELP PLEASE don’t know what to send in

[the_shadow]

Hi all

Just wondered if any could help me or point my in the right direction.

 

I got a judgment in the small claims track on a unenforceable agreement that ordered C L Finance to supply credit agreement which complies with the act, default notice,deed of assignment, notice of assignment with proof of service, copies of any other document relied on,

And it said

If the claimant fails to comply with this order the claim will be struck out without further order,

And C L Finance did not comply, no default notice and agreement does not comply,

This was in November 2009,

Now I have a now order from a different judge which says

In light of the decision in Carey v HSBC and others the parties should by the 3rd March file and serve their further submissions and proposed direction.

 

IF ANY ONE CAN HELP PLEASE don’t know what to send in

 

Hmm thats not good.. Carey v HSBC is on assumed facts at present, wouldnt have thought the judge could read anything into it until the full case has gone ahead.. plus its the debtor acting as the claimant and hence the weight of evidence sits with the claimant to prove no enforceable contract was signed. I think you need to read up on Carey and differentiate your case from that one as much as possible. Suffice to say the other side will be picking the "best bits" out of that judgment at the same time

 

Further submissions will likely be an amended defence which could just include your request for more information and the reasons why Carey doesnt apply imvho.

 

S.

[captain2]

Hi I posted on here a few days back re my own revised position concerning agreements. I am entering a debt management plan and the aim will be as my business starts to recover in the next few years to pick off the enforceable agreements with much reduced sums in full and final settlements - this seems to be a route which does not involve the courts and if a creditor got a court order i'm quite sure the court would only order less or equivalent to what is in the DMP - ,my claims handling company is to use 'unenforceable' arguments to broker a better deal where the agreement is defective and arguably unenforceable - remember if you have an ACTUAL agreement which is defective a reconstituted one will NOT take precedent but then whether the courts start allowing more liberal interepretation on the part of the lenders is another matter e.g. the Egg agreements where 'approved' limit rather than 'credit' limit may lose ground here ............. against the borrower ....

[richyrichyrich]

Hi everyone, I have just joined this forum and have been reading posts. I previously began the process of getting copies of CCA's, and then doubt got the better of me and I have not done anything more. I am now more determined and am back to try again!! Before I ask my questions am I in the right place to post on this subject? I am still getting use to using forums like these. Thank you.

[cerberusalert]

Hi everyone, I have just joined this forum and have been reading posts. I previously began the process of getting copies of CCA's, and then doubt got the better of me and I have not done anything more. I am now more determined and am back to try again!! Before I ask my questions am I in the right place to post on this subject? I am still getting use to using forums like these. Thank you.

 

Yes you're in the right place, but it would be better to start your own thread and then you won't get missed like you nearly did just now.

 

If you go to General Debt Issues - The Consumer Forums and scroll to the bottom of the page and then click 'New Thread' you'll be able to start your own.

[julieann_n]

Just for anyone who is interestesd, Link were slaughtered today at court for an unenforceable agreement.

 

The issue was the execution date of the credit agreement, and the fact that no second notice of cancellation rights were sent, rendering the agreement unenforceable by virtue of s127 (4)(b) CCA 1974.

 

The firm that originally completed the credit agreement were [problem] artists, and because of this the validity of the agreement was questioned.

 

Link were completely unprepared for the case, and they did not even send the original documents as per the court directions.

[cerberusalert]

May there be many more.

[julieann_n]

And even more after that!

[The Lawyer]

I recently had C L Finance taking action against me to enforce debt that I had originally disputed. The original lender, GE Money (now Santander) failed to comply with the original s.78 request and this was my defence. Rather than go to court, they agreed to a consent order which included writing off the debt and reversing all negative entries on my credit file.

 

I also previously forced Santander to write off a credit card completely. Because of their conduct, the FOS is also investigating them for unfair business practices, and the Information Commissioner for breach of the Data Protection Act (by failing to send accurate information to credit reference agencies - i.e. that there was a dispute).

 

I have been practising this area of law for a while now, but the strategy of the banks generally appears to have been successfull. This is because a lot of claims management companies and law firms who had tens of thousands of viable claims, had no funding to take claims into litigation. This lack of funding has starved the market and let the banks off the hook. If any funding for claims does become available it will not be sufficient to cover everyone, so many will lose out.

 

However, if there is a PPI element, then these have been deemed in the indistry as stronger cases and some funding is available for those.

 

People need to stand their ground and wait for the lender to bring action within 6 years or write the debt off. If they bring action then defending an action does not require funding in the same way as bringing one, so is a stronger position to take them on from.

 

Everyone at CAG hang in there, and remind others that the truth is that most agreements can be challenged successfully, but patience is needed.

[exasperated]

The lawyer,

Great reply to an interesting thread, what would your advice be to the layman in taking these people on in litigation personally, further more have you any thoughts on particularly Egg agreements which is the hot topic right now