CCA Agreements (Mark II) PLUS any other topic

[janequeenie]

hi everyone,

 

i have just recieved this mbna cca via lowell financial.only one page recieved and this was scanned so it is a good copy.as can be seen it is mostly illegible with the exception of my name and credit limit which is crystal clear !.strange the credit limit is 2k yet i believe the apr rates refer to 1k 3k etc.

could you give me some idea on a professional response to lowell.it has also arrived beyond the 12 + 2 days but within the 12+2+30.

 

thanks

 

http://i181.photobucket.com/albums/x175/janequeenie/lowell.jpg

[conradsfate]

removed

[shirei12]

Hillesden/DLC help needed Hi,Trying to get some feedback on cca i received. Any help much appreciated. Thanks

[conar686]

*Subscribing*

[belovedm8]

All

 

i have been reading the thread with much interest and admitt there is much sabre rattling and posturing by consumers. What I would like to know is there anybody out there who has had a successful outcome either out of court/in court as a result of the lender not supplying an executed agreement and/or presenting all of the precribed terms to the debtor for signing?

 

Yours in anticipation!!

[birchave0]

All

 

i have been reading the thread with much interest and admitt there is much sabre rattling and posturing by consumers. What I would like to know is there anybody out there who has had a successful outcome either out of court/in court as a result of the lender not supplying an executed agreement and/or presenting all of the precribed terms to the debtor for signing?

 

Yours in anticipation!!

 

ME!!!!!!

I took on Goldfish credit card and won, they repaid me in cash £2k for the PPI I had paid which I never asked for and wrote off the £8k balance on the card.

All they had was an application form which they claimed was the agreement, sadly that's all it was, an application form which they had not signed......

My argument was if it was an agreement as they claimed it was "unexecuted".......

Although I threatened them with court for the return of my PPI payments, they backed down and we settled out of court!

[belovedm8]

thanks birchave0!! Good for you. 10/10!!

 

I have just received an application form from marbles/HFC which is signed following my section 78 request. Not only is it illegable it does not contain any prescribed terms! So it is looking good!!

 

Can you share with me your letters threatening court action as this would be very helpful!!

 

Did you stop paying them after you highlighted the application form was not an executed agreement? I am reluctant to do this as I will be remortgaging in a couple of months and I do not want to risk any entries on my credit file. Not paying obviously brings things to a head.

 

Please help/advise!!

[belovedm8]

thanks birchave0!! Good for you. 10/10!!

 

I have just received an application form from marbles/HFC which is signed following my section 78 request. Not only is it illegable it does not contain any prescribed terms! So it is looking good!!

 

Can you share with me your letters threatening court action as this would be very helpful!!

 

Did you stop paying them after you highlighted the application form was not an executed agreement? I am reluctant to do this as I will be remortgaging in a couple of months and I do not want to risk any entries on my credit file. Not paying obviously brings things to a head.

 

Please help/advise!![Does anyone else have any more success stories regarding credit cards clearing balances following their failure to provide executed agreements??]

[ladybird17]

yes.

[belovedm8]

ladybird....please share the secrets of your success.

[ladybird17]

I certainly know of someone who has had their MBNA debt wiped, and other people who have had out of court settlements.

 

I have 2 issues going on with unexecuted agreements, and for one of those I have just received legal aid funding to pursue through the courts, and counsel has now been instructed.

[belovedm8]

Ladybird

 

I trust that is as a result of the CC company not having/providing executed agreements?

 

thats good to hear you have been granted legal aid! I may persue legal aid as well!

 

I have 4 CC's who have missed the 12+2 days and one which has provided an illegible copy of an application form!

 

Let me know how you get on. How much are you looking to have written off? How much did the person you know get written off?

[birchave0]

thanks birchave0!! Good for you. 10/10!!

 

I have just received an application form from marbles/HFC which is signed following my section 78 request. Not only is it illegable it does not contain any prescribed terms! So it is looking good!!

 

Can you share with me your letters threatening court action as this would be very helpful!!

 

Did you stop paying them after you highlighted the application form was not an executed agreement? I am reluctant to do this as I will be remortgaging in a couple of months and I do not want to risk any entries on my credit file. Not paying obviously brings things to a head.

 

Please help/advise!!

 

my full story is over the road I will pm you as can't show link here!

go and have a look, I also have a battle going on with HFC which might be of interest too!

[Marlowe52]

This is an awesome thread and I must admit I feel quite apprehensive trying to join it.... So if I'm off track please tell me to naff off....

 

I have a question relatingto CCA's - I tried posting a new thread - and got some helpful contributions but no real answer. The original question was about the status of the agreement if the credit card company cancels the card - but the responses I got back caused me to focus on one particular situation which is Egg...

 

As everyone knows, Egg wrote to literally thousands of customers early this year cancelling their Egg Card Agreement - yes, the letter (assuming mine was the standard letter!) actualy says "We are ending your Egg Card Agreement" it goes on to say "we are giving you formal notice that your agreement will end 35 days after the date of this letter"...

 

That seems fairly unequivocal to me. But further down the letter says "The Egg Card agreement continues to apply until the balance is repaid in full"...

 

Now that doesn't make sense to me... Surely, if you cancel the agreement then you can't then say the terms of the agreement still apply. Clearly, the agreement (assuming it has been properly executed - on which subject I have read this thread with interest and wonder!) means that the outstanding balance becomes a debt for which the card holder in liable... And I'm not disputing Egg's right under the agreement to cancel it....

 

The issue I would like some experienced guidance on is - what interest can then be added to the debt. Egg just carries on as if nothing has happened and adds interest at (in my case) 2.008% per month...

 

What is even more upsetting is that Egg increased the interest from 1.527% per month on purchases and 1.941% per month on cash to this flat 2.008% - guess when!! Exactly one month before they cancelled the agreement.

 

I don't actually owe that much on the card - but it seems very underhand and unfair if Egg did this to all those thousands of customers.

 

Thanks in advance for any views - and sorry to but in if this is off thread...

[ladybird17]

I think you will find that the agreement gives them the right to cancel your credit facility at any time giving the appropriate notice, but that the outstanding balance is still liable to the charges and interest as before. I'm very sorry to say that IMHO they are quite within their rights - as unfair as it may seem!

[Marlowe52]

Thanks Ladybird for the response...

 

I was never in any doubt they had the right to cancel - nor to change the interest rates whilst the agreement was in force - but if they have cancelled the agreement isn't it dead? It's just a debt at that stage no CCA??

 

What they did was hike everyone's interest rate and then immediately cancel the agreement. Must be something to go at them with - at least under the Unfair Terms and Conditions legislation??

[belovedm8]

This is an awesome thread and I must admit I feel quite apprehensive trying to join it.... So if I'm off track please tell me to naff off....

 

I have a question relatingto CCA's - I tried posting a new thread - and got some helpful contributions but no real answer. The original question was about the status of the agreement if the credit card company cancels the card - but the responses I got back caused me to focus on one particular situation which is Egg...

 

As everyone knows, Egg wrote to literally thousands of customers early this year cancelling their Egg Card Agreement - yes, the letter (assuming mine was the standard letter!) actualy says "We are ending your Egg Card Agreement" it goes on to say "we are giving you formal notice that your agreement will end 35 days after the date of this letter"...

 

That seems fairly unequivocal to me. But further down the letter says "The Egg Card agreement continues to apply until the balance is repaid in full"...

 

Now that doesn't make sense to me... Surely, if you cancel the agreement then you can't then say the terms of the agreement still apply. Clearly, the agreement (assuming it has been properly executed - on which subject I have read this thread with interest and wonder!) means that the outstanding balance becomes a debt for which the card holder in liable... And I'm not disputing Egg's right under the agreement to cancel it....

 

The issue I would like some experienced guidance on is - what interest can then be added to the debt. Egg just carries on as if nothing has happened and adds interest at (in my case) 2.008% per month...

 

What is even more upsetting is that Egg increased the interest from 1.527% per month on purchases and 1.941% per month on cash to this flat 2.008% - guess when!! Exactly one month before they cancelled the agreement.

 

I don't actually owe that much on the card - but it seems very underhand and unfair if Egg did this to all those thousands of customers.

 

Thanks in advance for any views - and sorry to but in if this is off thread...

 

[unfortunately they can terminate the agreement and continue to charge interest.

 

There are some good discussions accross in the credit card/MBNA/ great interest rate scandal and is worth a read. I am currently challenging marbles and MBNA regarding the increase in APR of 100% over the course of a year.

 

I have asked them to demonstrate where in the terms & conditions it states that they will increase the APR if your payments are late/you go over the credit limit. The consumer credit agreement regs are quite clear in this regard i.e. they need to state the circumstances in which the APR will increase. Merely stating they will review your account periodically and may change the APR will not suffice and ultimately prejudices the debtors position when the contract is formed.

 

It is also a penalty and marbles admitted this in their response to my letter on the subject!! i.e. we have increased the APR as a result of your late payments/going over credit limit over a period of time. Well excuse me, not so long ago you charged me £25 and £25 respectively for doing this, dropping it to £12 and £12 respectively more recently.

 

I have now pointed out that the OFT have stated that terms which allow for variation of the APR are not core terms therefore assessable under the Unfair Terms in Consumer Credit Terms Regulations 1999. They disagreed with this.

 

In addition, paragraph 10 of Schedule 1 of the Consumer Credit (Agreement) Regulations 19 provides inter alia:

‘ where more than one rate applies, all the rates in all cases quoted on a per annum basis with details of when each rate applies’.

 

This means if they are being completely transparent they should state the APR/monthly payments should you continually pay late/go over credit limit. But, they would not do this as they have terms covering this under charges.

 

They have misrepresented the form, nature, purpose and long term implications of not paying on time. You think the terms covering charges take care of that but thats how they want you to read it. Its a penalty by stealth and in my view much bigger issue than the recent publicity regarding unfair charges.

 

I appreciate the need to rate for risk by creditors but surely the CCA was drafted with the interests of consumers in mind. Surely someone who pays late/go's over limit is struggling and they compound the finacial hardship faced by vulnerable customers.

 

I have also asked them to explain/provide evidence to verify what appropriate checks they have undertaken to verify if i can afford the increased payments. OFT have stated irresponsible lending whilst not illegal is an improper business practice which can contribute towards whether an unfair relationship exists.

 

Examples of improper business practices are:

 

 

using false or misleading statements in order to induce consumers to enter into a contract

• hiding important details about credit deals in the small print

• requiring consumers to sign credit agreements that are not easily legible and are difficult to understand

• failing to comply with the requirements of the Act or the regulations on advertising and agreements

• failing to perform contractual obligations to consumers, or to give any or adequate redress when in breach of duty to consumers

• marketing or targeting loans explicitly at consumers in debt

• using unacceptably high-pressure selling techniques or engaging in other aggressive commercial practices

• misrepresenting the form, nature, purpose or long-term implications of loan agreements.

This can lead to enforcement action under part 8 of the Enterprise Act 2002.

 

Before I sign off I would like to point out marbles were particularly comical when I was discussing (on phone) the carrying out of appropriate checks about my ability to pay following the increases in APR. They said they would have phoned me to ask permission to search credit reference agencies. I said ' fine, i dont seem to remember that call but if you did I would be pleased to see evidence of your assessment at that time'. This will be interesting as I was going through a particularly bad time financially at that time and the increase in payment would have reduced by disposable income considerably!!

 

No response yet but when i get one I will share it with you!!]

[belovedm8]

got response back from marbles.....re credit worthiness they said they have checked it as they are a responsible lender....despite my asking them to produce evidence to verify have carried out appropriate checks....thats like me saying your cheque is in the post and them asking me to corroberate this and me saying i sent it....them saying prove it..me saying i am telling you i sent it so it must be true!

[basa48]

The quotation regulations have as you would imagine had quite a few amendments since 1983 most of which it seems to me are to keep them in line with the agreement regulations and the seem to integrate with the agreement regulations in 1983 in the consumer credit (Advertising and Quotations)(Amendments)Regulations 1983/110.

 

The SI for these amendments are;

SI 1999/2725

SI 2000/1797 and 2004/1484 which are entitled the Consumer Credit Advisements regulations.

I have not gone through all of these yet but I can see no problem thus far.

 

Best Regards

 

Peter

 

Weren't the 1980 Quotation Regs revoked and replaced by the 1989/1126 Regs??

 

The Consumer Credit (Quotations) Regulations 1989

 

OK just checked out the 1989 version and it appears to be consistent with peterbards interpretation that the requirements of schedule 2 are much of what should appear in an enforceable agreement.

 

In other words: To avoid being void under s.59 an application should contain all the prescribed terms.

Edited June 28, 2009 by basa48

[basa48]

Been doing more research on s.59 and apart from the fact that the Quotation Regs were repealed in 1997 (which leaves us only with agreements for business goods use as exempting agreements), there is the argument from somewhere here on CAG (but can't locate it again!) that once the creditor has completed his checks and approved the application it then becomes an agreement.

 

So it could be a non starter for applications which also contain prescribed terms.

[Marlowe52]

I'm glad to see people are still challenging the Credit Card companies right to arbitrarily change interest rates without real explanation. It really is a scandal.

I changed tack, however, on my own credit card disputes with some degree of success.

If a Credit Card company admits that the higher interest rate they are charging are as a result of a poor payment record AND they are still charging the £12 penalty fees then they have a problem. Although the OFT in their review of charges stated they would not take any action in cases where complaints were against charges of £12 or less thay also stated in their guidelines (April 2006):

 

“3.17 In considering costs arising from default, a credit card company should also be careful to avoid double recovery. In particular, it would need to take into account the fact that it may derive certain benefits from the actual or anticipated default of a consumer.

“3.18 These benefits may also include those arising out of operating a risk-based pricing policy, that is, offering a higher APR (or a separate product with a higher interest rate) to a particular class of consumers based on an evaluation of their poorer credit risk. Moreover, consumers who default are generally required to pay the full amount of interest due on the outstanding balance. A credit card company should ensure that there is no duplication between such benefits and the money recovered by way of a default charge. “

 

Of course, most, if not all, CC companies operate a "risk-based" pricing policy - so they shouldn't be charging the £12 as well!! The argument is very simple. If I owe £5000 on a card and they increase the interest rate say by 12% APR (to make the maths easy) they are charging an extra 1% per month (£50) in anticipation of me possibly defaulting. If I pay late and they charge £12 then they are, in fact charging £62 plus the interest on the extra £12.... In this case the OFT guidelines have been breasched and action can be taken.

 

Worked for me!!

Edited July 15, 2009 by Marlowe52
Removing font commands

[basa48]

Got a letter from the ICO today.

 

I would like to make a few quotes from it.

 

In view of the enactment of s.15 CCA2006, we have given fresh consideration to the circumstances in which the CRAs should be permitted to record details of unenforceable agreements. In doing so we have had particular regard not only to the clear legislative intent that the absence of a signature on an agreement should no longer be an absolute bar to enforcement, but also the following factors:

 

• The question of whether a legal liability exists in relation to an agreement is quite separate from the question of whether such a liability may be enforced by the creditor.
   
  
• Where a liability does exist, creditors have a legitimate interest in sharing relevant information about that liability, incl. information about whether the amount due has been repaid. Such info. may properly inform responsible lending decisions, regardless of whether the liability is enforceable.
   
  
• Responsible lending decisions are dependant upon lenders receiving accurate information about individuals ability (&/or inclination) to repay thier debts.
  

To conclude, it is our view that failure of a creditor to produce a copy of the signed agreement is not, on its own, evidence that a debt does not exist or that it is not enforceable and should not therefore appear on your credit file. If the creditor can supply some other evidence of the provision of the agreement and you have no evidence to contradict this then it is likely to be proper for the debt to continue to be recorded on your credit reference file

 

I'll leave others to rip this apart.

 

Unbelievable!!!!

 

Oh and this classic:

 

Where a credit agreement clearly existed and credit has been provided, but the debtor is not obliged to repay due to the provisions of the CCA, this does not mean there was no agreement in the first place (what!!??). It simply means there was no enforceable regulated agreement. (Huh!!)

 

(My comments in italics)

 

 

PS: Under the ICO logo is the words "Protecting your personal information".

 

Yeh riiiiiight.

Edited July 17, 2009 by basa48

[conar686]

Got a letter from the ICO today.

 

I would like to make a few quotes from it.

 

 

 

 

I'll leave others to rip this apart.

 

Unbelievable!!!!

 

Oh and this classic:

 

 

 

(My comments in italics)

 

 

PS: Under the ICO logo is the words "Protecting your personal information".

 

Yeh riiiiiight.

 

The unfortunate bit is that you can't move them from this point and the CRAs now quote this advice when refusing to remove entries in your credit file

[basa48]

The unfortunate bit is that you can't move them from this point and the CRAs now quote this advice when refusing to remove entries in your credit file

That's why my arguments revolve around:

 

No agreement = no contract to repay = no late payments or default of payment.

 

QED

[basa48]

I am writing to ask opinions regarding the Act where the debtor is applying for a declaration of unenforceability.

 

Having re-read the Rankine case it occurred to me that where the creditor is NOT making a claim to enforce the agreement, s.127(3) under 65(1) cannot apply, since they relate only to enforcement by the creditor against the debtor.

 

To my reckoning the only remedy is to cite 61(1)(a) and 142(1)(b) ‘Where under any provision of this Act a thing can be done by a creditor or owner on an enforcement order only, and —

where no such application has been made, an interested party applies to the court for a declaration under this subsection, the court may if it thinks just make a declaration that the creditor or owner is not entitled to do that thing, and thereafter no application for an enforcement order in respect of it shall be entertained.’

 

Unless anyone knows of other provisions in the Act where a debtor can apply for unenforceability?

 

The danger in this is the phrase 'the court may if it thinks just'. If the court doesn't think it just, where does that leave the debtor? Unlike 127(3) where the court is bound to declare unenforceable.

 

Does this mean that in all cases we have to wait for the creditor to take legal action to enforce?

 

Thinking on I would suppose reference to 127(3) would have to be that "Improper execution pursuant to 61(1)(a) would have the effect that the agreement is unenforceable against the debtor, and I ask for a declaration under 142(1)(b) to that effect."

 

Any thoughts ?