Agreement Enforceability

[Monty2007]

I agree Josie, they are having a laugh!

[caledfwlch]

Can anyone help with that credit agreement checker? I have been inputting my partners in (we have the green customer copy of agreement, which is handwritten btw) It is saying that the agreement is unenforceable, but Im not sure im filling in the correct info in the right boxes, could someone have a look for me, in case I am misunderstanding the checker questions - the info is as below:

 

its our good friends, Welcome Finance

 

Fixed Sum Loan Agreement regulated by the consumer credit act 1974

 

Total amount of Credit £2270.73

Amount of credit to settle loan BLANK

Amount of credit for insurance £770.73

Amount of credit for cash advance £1500

Amount of credit (insurance & settle loan) £770.73

Amount of credit (cash advance & settle loan) £1500

 

Insurances

Payment protection £595.73

Lifecare 24 £175.00

Total Cash Price £770.73

 

Duration of agreement 36 Months

Amount of each monthly payment £115.61

Number of Monthly Payments 36

APR (Variable) 55.1%

 

Total Charge for credit 1891.23

(consisting of)

Acceptance fee £75

Interest Charge £1816.23

 

Rate of interest per annum (variable by giving you 14 days notice in accordance with clause 1(B) overleaf

51.1%

 

Thats all the financial info thats on the form.

 

THIS copy does not have a signature from Welcome finance on it, but as it was done through the post, I assume they would have signed the top copy when received. It wont scan in a readable form, its a green duplicate customer copy which welcome filled out in pen or pencil on the top sheet.

[joneshousehold]

APR 51.1%!

 

Doesn't this come under the extortionate interest regulations?

 

Have a look at the OFT about this

 

Also I posted something about this in Post 63 here

 

http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/80392-london-scottish-still-paying-4.html#post1001329

read on to see any further developments. You will need to research this a bit as I don't know too much about it. It has been mentioned a few times on the forums and you could try a search of the site for some relevant words

[out of cash]

hi joneshosehold and everyone else

 

can anyone tell me their thoughts on this reply to my cca request and how to respond next all ideas much apprciated.

 

regards

 

out of cash

[joneshousehold]

Both of these documents are the same in form. I assume you have blanked out all the bits you filled in and your signature.

 

They are both quite clearly an application form. The header required by CCA is not prominent whilst the words 'application form' or 'credit card application' are very prominent.

 

In addition neither of the documents have the prescribed terms as far as I can see, about interest rates, credit limit, repayments and default charges. These are detailed in post #1 of this thread.

 

Both make reference to terms and conditions (Mint says conditions set out separately and information overleaf, Nationwide just says conditions that you have read) and these should also have been produced to comply with the regulations on CCA requests - the ones at the time, not current ones.

 

Neither appear to be enforceable because they are an application form and not an agreement. Also unless you received the rest of the information required by CCA (eg T&Cs, statement of account), the creditor has not complied with the Act and if the deadlines have passed they are in default.

 

Have a look back at the start of this thread and at the OFT guidelines to fully understand your legal position, make a big list of all the shortcomings and then write to the creditor. I believe it is up to them to investigate this fully and act accordingly so I tend to just tell them enough without being fully informative but it really is up to you whether you hit them with both barrels. Whatever you decide, it is very important that you research your position and make sure you have a handle on your position. The more you can find, the stronger your position so research thoroughly. I personally find the OFT guidelines are the most comprehensive notes available although I didn't have the benefit of Peter's excellent notes above. Have a search for a link. I think you can use Wiki (although I have to admit I haven't got to grips with Wiki yet!)

 

If you want any help start a new thread for your own actions and I would suggest you also split up the two actions to avoid confusion. You can post a link in this thread to redirect us if you wish.

[out of cash]

hi joneshousehold,

 

like to thank you for your advice on the above really usefull comments

 

many many thanks

 

out of cash

[Peterbard]

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

Hi AC

 

Dave beat me to it the section he quoted is ammended in the 1482 agreeement regs but only to the extent that Sch 1 para 22(1) requires a ‘list’ of any default charges. This is in contrast to the 1983 Regulations which merely required an ‘indication’.

I will PM you

 

Peter

[Peterbard]

hi joneshosehold and everyone else

 

can anyone tell me their thoughts on this reply to my cca request and how to respond next all ideas much apprciated.

 

regards

 

out of cash

HI

 

I the J's have covered most of the bases here, as for how to respond.

You have two alternatives one tell them that this is not what you requested and keep them in default or say thank you for what you say is my credit agreement and then point out it is unenforceable.

Personally I would go for the latter.

Why not use their own reply against them in a way they have given you all the ammunition you need to declare the agreement unenforceable which is the point of the excercise, why not use it.

Best regards

Peter

[surprise]

Peter could you look at the figures on post #102. The high interest rate has been commented on but the total amount of credit says £2270.73 but the repayments are £115.61 x 36 = £4161.96. It probably does add up to this figure but should the total amount of credit be shown as £4161.96?

[Peterbard]

Can anyone help with that credit agreement checker? I have been inputting my partners in (we have the green customer copy of agreement, which is handwritten btw) It is saying that the agreement is unenforceable, but Im not sure im filling in the correct info in the right boxes, could someone have a look for me, in case I am misunderstanding the checker questions - the info is as below:

 

its our good friends, Welcome Finance

 

Fixed Sum Loan Agreement regulated by the consumer credit act 1974

 

Total amount of Credit £2270.73

Amount of credit to settle loan BLANK

Amount of credit for insurance £770.73

Amount of credit for cash advance £1500

Amount of credit (insurance & settle loan) £770.73

Amount of credit (cash advance & settle loan) £1500

 

Insurances

Payment protection £595.73

Lifecare 24 £175.00

Total Cash Price £770.73

 

Duration of agreement 36 Months

Amount of each monthly payment £115.61

Number of Monthly Payments 36

APR (Variable) 55.1%

 

Total Charge for credit 1891.23

(consisting of)

Acceptance fee £75

Interest Charge £1816.23

 

Rate of interest per annum (variable by giving you 14 days notice in accordance with clause 1(B) overleaf

51.1%

 

Thats all the financial info thats on the form.

 

THIS copy does not have a signature from Welcome finance on it, but as it was done through the post, I assume they would have signed the top copy when received. It wont scan in a readable form, its a green duplicate customer copy which welcome filled out in pen or pencil on the top sheet.

 

Hi

It would be helpful to see the agreement but the bootom two items on the tcc list arn't they for sttleing a previous loan try leaving them blank.

I have never used the checker i would recomend that you got the calculator out and check the maths yourself.

 

Regards

Peter

[Peterbard]

Peter could you look at the figures on post #102. The high interest rate has been commented on but the total amount of credit says £2270.73 but the repayments are £115.61 x 36 = £4161.96. It probably does add up to this figure but should the total amount of credit be shown as £4161.96?

Hi

Sorry crossed posts

The total amount payable should equal the total credit plus the total charge for credit.

 

there are a number of things that need looking at on this not least the various insurances really we need to see the agreement.

 

Regards

Peter

[joneshousehold]

Peter

 

If you have the time would you mind taking a look at post #12 onwards on the linked thread below. Post #12 has links to a couple of documents and I have an interest in your thoughts about enforceability

 

http://www.consumeractiongroup.co.uk/forum/capital-one/100564-wednesday-capital-one.html

 

Many thanks

[caledfwlch]

Right I have scanned the agreement, a bit of the bottom is missing (sheet to long for scanner) but all that is missing is the signature boxes, signed by partner but not signed by Welcome on this.

 

http://i107.photobucket.com/albums/m309/prw2005/welcome.jpg.jpg

 

[mfpa]

Hi. Sorry to barge in.

 

MBNA have sent me this document in response to one of my CCA requests.

If anybody has any observations/opinions, I would be grateful if you could post on my thread. Thanks.

[toddle2u]

I have just received a copyof my agreement from HFC. It is fairly illegible so no point postint it. However, I have noticed that it is undated by my signature. Does this have any bearing on its enforceability?

Thanks

[Peterbard]

HI Cal

The maths seem to check out

when did you sign this ,was the ppi compulsarry ,was there any cancellation details next to the signature box

 

Regs

Peter

[Peterbard]

I have just received a copyof my agreement from HFC. It is fairly illegible so no point postint it. However, I have noticed that it is undated by my signature. Does this have any bearing on its enforceability?

Thanks

HI

If the credtitor is last to sign then his signature usually dates the execution of the contract i would imagine the same would apply to the debtor if it was executed on his signature.

Lack of a date is not a prescribed term although i could see where lack of a date marking when the ageement was executed could be prejuditial to the debtor because of cancellation rights and may come under 127(2).

 

Regards

Peter

[caledfwlch]

HI Cal

The maths seem to check out

when did you sign this ,was the ppi compulsarry ,was there any cancellation details next to the signature box

 

Regs

Peter

 

The only mention of Cancellation is in some terms above the signature box, the wording is "You have no right to cancel the agreement under the Consumer Credit Act 1974, the TImeshare Act 1992 or the Financial Services (distant marketing) Regulations 2004."

 

She was told that the loan would not be accepted without taking payment protection, and was told that the Lifecare 24 was part of the loan so had to be in there, they suggested at the time it was "free" though obviously its charged for on the form.

 

[wednesday1867]

Peter

 

If you have the time would you mind taking a look at post #12 onwards on the linked thread below. Post #12 has links to a couple of documents and I have an interest in your thoughts about enforceability

 

http://www.consumeractiongroup.co.uk/forum/capital-one/100564-wednesday-capital-one.html

 

Many thanks

 

 

Id be interested in your views too please Peter

 

Much appreciated

[Peterbard]

Hi

If the insurance was conditional of you recieving the loan then the agreement is unenforceable IMO.

The ppi should be in the total charge for credit box this would make the credit amount incorrect which is a prescribed term. I see there is no ticks in the boxes which is a good sign that this has been missold and should have been optional.

 

TCC REGS

"f. Charges for payment protection insurance

Lenders sometimes require borrowers or their relatives to take out or

maintain an insurance contract which will make sure that the credit and other

charges in the TCC due under the agreement are paid if the borrower dies,

falls ill, or becomes invalided or unemployed. This is generally known as

payment protection insurance (PPI) or accident, sickness and unemployment (ASU) insurance. Where this is the only purpose of the insurance contract, the premiums payable under it are included in the TCC."

There is plenty of case law for this ala wilson as a few will know.

 

Also you say this was signed at home presumably after being discussed with the creditor if so you are entitled to cancellation rights.

THere is no date on the agreement is it post 2005?

 

I think in your position i would confront them with the insurance issue send them a letter saying that no insurance was requested and you were told that it was mandatory ,this being the case as per the total charge for credit regulations and Regulation 9(4) of the Consumer Credit Act the cost of the policy shoud have been entered into the total Charge for Crdit Calculation and not bee adde to the amount of credit.

This being the case the total credit figure expressed on the contract is incorrect.You may be aware that according to regulations under the consumer credit act this is a prescribed term and and if missing or incorrect wil make the agreement unenforceable via section 127(3).

or something like that.

They are bound to say you requested it but you can say why didn't i tick the box?

Worth a go i think

#

Regards

Peter

[caledfwlch]

Thanks Peter,

 

My next step is CCA and SAR them, to see what they hold, and to check that the PPI was not ticked etc. The agreement was taken out between december 2005 and january 2006.

 

With any luck they may well have lost their copy

 

Hi

If the insurance was conditional of you recieving the loan then the agreement is unenforceable IMO.

The ppi should be in the total charge for credit box this would make the credit amount incorrect which is a prescribed term. I see there is no ticks in the boxes which is a good sign that this has been missold and should have been optional.

 

TCC REGS

"f. Charges for payment protection insurance

Lenders sometimes require borrowers or their relatives to take out or

maintain an insurance contract which will make sure that the credit and other

charges in the TCC due under the agreement are paid if the borrower dies,

falls ill, or becomes invalided or unemployed. This is generally known as

payment protection insurance (PPI) or accident, sickness and unemployment (ASU) insurance. Where this is the only purpose of the insurance contract, the premiums payable under it are included in the TCC."

There is plenty of case law for this ala wilson as a few will know.

 

Also you say this was signed at home presumably after being discussed with the creditor if so you are entitled to cancellation rights.

THere is no date on the agreement is it post 2005?

 

I think in your position i would confront them with the insurance issue send them a letter saying that no insurance was requested and you were told that it was mandatory ,this being the case as per the total charge for credit regulations and Regulation 9(4) of the Consumer Credit Act the cost of the policy shoud have been entered into the total Charge for Crdit Calculation and not bee adde to the amount of credit.

This being the case the total credit figure expressed on the contract is incorrect.You may be aware that according to regulations under the consumer credit act this is a prescribed term and and if missing or incorrect wil make the agreement unenforceable via section 127(3).

or something like that.

They are bound to say you requested it but you can say why didn't i tick the box?

Worth a go i think

#

Regards

 

Peter

[Peterbard]

Id be interested in your views too please Peter

 

Much appreciated

HI

 

I have read through the thread and will post on the other thread but from what i have seen so far you have covered most of the salient points already,

However i wil be pleased to add my two peneth for what it is worth there are just a couple of bits i need to check out.

 

Best regards

Peter

[wednesday1867]

HI

 

I have read through the thread and will post on the other thread but from what i have seen so far you have covered most of the salient points already,

However i wil be pleased to add my two peneth for what it is worth there are just a couple of bits i need to check out.

 

Best regards

Peter

 

Thanks a lot that would be great

[robingetz]

Sorry to intrude, but I started my own thread on a CCA I recieved, but I didn't get much luck in finding out whether it is genuine or not, and I found this thread so I thought I'd try my luck on here. The CCA was from Littlewoods catalogue, and it doesn't resemble anything that has been described on this thread. The problem I have is that I don't remember signing an agreement, and they have sent me "their copy" and I don't have my copy, and I don't throw any financial documents away. If I upload the agreement, can anyone please let me know if they think it is a genuine credit agreement. Thanks.

[shirleyc]

hello there,

sorry to butt in but wonder if you can clarify for me? i SAR ed natwest back in jan +am claiming bit by bit as they seem unable to send all info at once!

the latest info i got was that they 'cant locate any further information on my loan accounts'-i had 2 loans with them which i am claiming mis-sold PPI on(with help from Hellhasnofury's calculations!) On the phone they say they cant locate any orig docs so do i need to CCAthem or is this latest letter enough?iwant to claim all int ive paid to these crooks!thanx for any help shirl