Agreement Enforceability

[Peterbard]

HI

 

I just thought I would try and clarify the what is required on the agreement and the what are terms and conditions question.

 

Terms and conditions and what should be on your agreement

 

The Consumer credit Act requires that certain information be on the executed agreement, that is if it is not to put itself in jeopardy of being enforceable only by the order of a court or indeed wholly unenforceable.

The Statutory Instrument 1983/1553 lists what should be on an agreement this is amended for post 2004 contracts by the agreement regulations 2004/1482.

There are only a small number of amendments in the area of content, the main difference is in form in that the Key structure that is used to contain various clumps of information (Key Financial Information, Key Information) etc.

The 1983 regulations say that all information included in Schedule 1 (This is where the prescribed terms are) should be included in a solid block together with the protections and remedies of schedule 2 unless they are mentioned elsewhere and referred to in the text.

There should also be a signature box and if the agreement is cancellable or subject to section 58(secured loan) details of this next to it.

This is all that is required and form the basic requirements of the agreement.

 

The creditor may wish to include other information i.e. other than as specified above, this must be included following all of the required information and the signature box and would include terms and conditions other than as required by the Regulations. It would also include details of the parties other than a name and address or logo

 

This” other” information plus the information on the agreement is what makes up the Terms and conditions.

 

This combined information should be what makes up your copy documents under section 62etc.

 

Best regards

Peter

[Peterbard]

Could you point to where it says this, please?

 

Hi HOpe you don't mind Dave

 

It is in section 2 para 7 of the regulations

 

(7) Documents embodying regulated consumer credit agreements shall

contain a signature box in the Form numbered in Column 1 of Part I of

Schedule 5 to these Regulations and set out in Column 3 in so far as it relates to the type of agreement referred to in Column 2 and shall, if the agreement is one to which section 58(1) of the Act applies, is a cancellable agreement or is an agreement under which a person takes any article in pawn and under which the pawn-receipt is not separate from the document embodying the agreement, contain a separate box immediately above, below or adjacent to the signature box in which shall be included the appropriate statements specified in Forms 1 to 4 of Part I, and in Part Il, of Schedule 2.

See previous post regarding lacement of prescribed terms.

 

Best regards

Peter

[adarling2006]

i never signed in the loan agreement in their office so there should have been cancellation rights, shouldn't there been?

[Peterbard]

Ahhh maybe if I try to dig my old one out I will discover the same???

 

i never signed in the loan agreement in their office so there should have been cancellation rights, shouldn't there been?

HI

It depends on the type of agreement and weather you discussed the contract face to face before signing see post 26 this thread.

Regards

Peter

[Peterbard]

i never signed in the loan agreement in their office so there should have been cancellation rights, shouldn't there been?

ho sorry just realised which agreement we were talking about I din't recieve a response as to whether the PPI was mandatory or did you chose to take it on it is quite important and the difference beween the agreement being enforceable or not.

 

Regards

Peter

[adarling2006]

i never chose the ppi either

[Peterbard]

HI

Yhe question is did you have to get the ppi in order to get the loan.

If you did the PPI should be included in thetotal charge for credit not as total credit.

Since the latter is a prescribed term then the agreement would be unenforceable.

 

Regards

Peter

[adarling2006]

i never knew anything about the ppi until i CCA requested the agreement from them so my understand of it is it's a part of the loan agreement which i didn't agree to and was mis sold. i was guilty of not reading over the agreement when i took out the loan but i'm certainly much wiser now, the PPI was part of the loan so if i didn't want it, i probably wouldn't have got the loan in the first place. hindsight is a wonderful thing lol.

[Peterbard]

Hi

On your agreement it says see clause 6 of the Tand Cs do you have this document would it be possible to see it

 

Peter

[adarling2006]

clause 6 of the terms and conditions state PPI this clause applies only if an amount has been entered in the second schedule in respect of the cash price of the payment protection plan.

6.1 we will account to the insurers for the cost of the payment protection plan shown in the second schedule.

 

6.2 You must ensure that you recieve the details and limitations of each type of payment protection plan specified overleaf under the heading PAYMENT PROTECTION PLAN before signing this agreement.

 

6.3 If any monies become payable by the insurers such monies shall be payable by the insurers to us and shall be applied by us in reduction of the balance outstanding on the account.

 

 

Now i never recieved any details of the insurance plan from them at all, not even when i CCA requested them for the agreement did they send any details of the insurance.

There is no cancellation rights and it's not even mentioned in the T&C's about my right to cancel the agreement, the only rights it mentions under the CCA 1974 is my right to settle early and my right to sue if i recieve unsatisfactory good etc.

 

what do u think of that???

[Peterbard]

HI

As regards to your cancellation rights if this agreement was discussed face to face before you signed it at home then yes you should have had cancellation rights. So if you collected the aplication from the bank and discused it with one on the staff yes you should have been sent cancellation details both with the orriginal document and also within seven days of the execution.

 

As regards the ppi i think you have deffinately got a case for misselling here.

Have a look on the PPI thread there is lots of advice on how to go about claiming your money back.

If you can get the creditor to confirm that this policy was compulsarry in order for them to issue the loan then you could make the agreement unenforceable due to the fact that the amount paid for the policy should have been included in the total charge for credit so it would make the credit amount incorrect which is a prescribed term.

 

Regards

Peter

[nicklea]

 

It is in section 2 para 7 of the regulations

 

(7) Documents embodying regulated consumer credit agreements shall

contain a signature box

 

Best regards

Peter

 

Hi Peter,

 

I take it that these are the 1983 regulations you're talking about? Do you know of a link to these regulations in full so that I can have a look myself?

 

I'm currently being pursued by Morgan Stanley but, thanks to your excellent posts earlier on in this thread, I'm pretty certain that it's unenforceable. But I just wanted to have a look at the 1983 regulations just to see if there is anything else that is appropriate.

 

Regards

 

Nick

[davefirewalker]

There are no links that I know of to the 1983 regs...pm me your email and I'll send you a copy.

 

btw I'm having a go at morgan stanley too check out my thread

 

http://www.consumeractiongroup.co.uk/forum/general-debt/84285-ccas-dave-against-world.html

 

rgds

 

dave

[adarling2006]

thanks for the help, nice to know where one stands and how to take control of things again. i'll do my best to get them to confirm if the PPI was mandatory for me to take ou the loan but i doubt that they will just roll over and confirm it, would be like shooting themselves in the foot lol.

[Monty2007]

Peter, not sure if you are on-line tonight?

 

I sent a CCA request to Morgan Stanley (now Goldfish) they have sent me a blank agreement, with all the prescribed terms but no signature. They claim this is a copy of my executed agreement. Many believe that this fulfills the requirements. My card is 2003.

 

What is your view?

[davefirewalker]

Peter, not sure if you are on-line tonight?

 

I sent a CCA request to Morgan Stanley (now Goldfish) they have sent me a blank agreement, with all the prescribed terms but no signature. They claim this is a copy of my executed agreement. Many believe that this fulfills the requirements. My card is 2003.

 

What is your view?

 

Hi Monty

 

I'm in the same position

 

see my thread http://www.consumeractiongroup.co.uk/forum/general-debt/84285-ccas-dave-against-world.html

 

i believe that it may be their interpretation of an executed agreement. They are allowed to do this though, but to enforce the agreement they must have the original.

 

I sent them a put up or shut up letter..........it seems like they have shut up (for now). I fully intend to exploit this in the near future. it is my intention to force the issue and let them take me to court.........we'll see if they have the agreement then

 

They have already sent me my "application", and a credit card mailer....which WILL NOT SUFFICE. they are soooooooo in trouble

 

i would write back and say " you have not complied ...etc. please send me my credit agreement" and listen for the stamping of feet

 

 

rgds

dave

[Monty2007]

Thanks Dave, when was your card issued? mine was early 2003.

 

They are playing a cat and mouse game though I am not sure who the mouse is?

[davefirewalker]

Thanks Dave, when was your card issued? mine was early 2003.

 

They are playing a cat and mouse game though I am not sure who the mouse is?

 

mine was issued about 2000.......

 

they seem to bluster but have no real effect........take heart

 

if they havent supplied you with the reqd docs and you have cca'd them and sent an sar .....then they probably dont have a legit agreement. make sure you hassle them to produce it

 

Dave

[Monty2007]

Thanks Dave, I have been watching your thread, mine is:

 

http://www.consumeractiongroup.co.uk/forum/general-debt/104839-morgan-stanley-have-eaten.html

[Peterbard]

Peter, not sure if you are on-line tonight?

 

I sent a CCA request to Morgan Stanley (now Goldfish) they have sent me a blank agreement, with all the prescribed terms but no signature. They claim this is a copy of my executed agreement. Many believe that this fulfills the requirements. My card is 2003.

 

What is your view?

HI

They have to send the details of your accont agreement ie interest rates when opening the credit on your accont as well as the other documentaion mentioned in section 78 of the act and don't forget the have to send all information mentioned within the agreement also so, if it says cancellation docs to follow the they must also be included.

 

Best regards

Peter

[Peterbard]

Hi Peter,

 

I take it that these are the 1983 regulations you're talking about? Do you know of a link to these regulations in full so that I can have a look myself?

 

I'm currently being pursued by Morgan Stanley but, thanks to your excellent posts earlier on in this thread, I'm pretty certain that it's unenforceable. But I just wanted to have a look at the 1983 regulations just to see if there is anything else that is appropriate.

 

Regards

 

Nick

Hi

Just a point but in he 1482 regulations which are on ine the regualtions regarding signature boxes where changed and they have to be in the body of he regulations for agreements after sept 2005.

 

Regards

Peter

[angry cat]

Hi Peter!

 

Just thought that I would advise you of a conversation that I have had with TS recently regarding my alleged Egg 2001 agreement.

 

One of the issues that I raised was, that there was no mention of the default charges on the agreement, as I had thought that default charges was a required term on agreements. However, TS informed me that agreements prior to 2004 did not have to show the default charge. I presume that this TS advice is correct but just thought that I would run it by you anyhow, for clarification.

 

Lastly, I have been waiting to hear from you:) when you are able please pm me.

 

Thanks

 

AC

[ian1969uk]

Hi Peter!

 

TS informed me that agreements prior to 2004 did not have to show the default charge.

 

Not sure about that, but the fact remains that Egg apply default charges to accounts governed by these agreements. Where is their right to do so if it's not mentioned in the agreement itself?

[davefirewalker]

Hi Peter!

 

Just thought that I would advise you of a conversation that I have had with TS recently regarding my alleged Egg 2001 agreement.

 

One of the issues that I raised was, that there was no mention of the default charges on the agreement, as I had thought that default charges was a required term on agreements. However, TS informed me that agreements prior to 2004 did not have to show the default charge. I presume that this TS advice is correct but just thought that I would run it by you anyhow, for clarification.

 

Lastly, I have been waiting to hear from you:) when you are able please pm me.

 

Thanks

 

AC

 

 

1983 regs schedule 1 part 22

 

Charges on default

rgds

dave

 

 

[Josie8]

Peter, not sure if you are on-line tonight?

 

I sent a CCA request to Morgan Stanley (now Goldfish) they have sent me a blank agreement, with all the prescribed terms but no signature. They claim this is a copy of my executed agreement. Many believe that this fulfills the requirements. My card is 2003.

 

What is your view?

They have to supply a true copy of your executed agreement & it must mirror your original agreement . If you look at the agreement they have sent you I'll bet the default charges are 12.00 which is the post 2006 price.

 

You can use this as I have to demand an actual copy of your 2003 agreement as they have already tried to pass a different one off on you......after all if they have it what's the problem.

 

Also on the statement of account they have sent you it probably refers to having supplied you with a credit mailer. Again that's not acceptable under s.78