Is My Agreement Enforceable - Useful

[Leightonx1]

Thanks so much for all your help everyone, I really appreciate it. I've sent the DCA another p***off letter and asked them to give me a final response to my complaint (they conveniently lost this but mentioned its existence in the last letter). Have also asked them to confirm if they believe what they have sent is enforceable (bearing in mind I have a letter from them only three weeks before the last agreeing that it wasn't, then Manchester concluded, and they just sent me the same old documents again with the addition of two reconstituted agreements). I’ll let you all know the response I get back, in fact I’ll scan it in for you, should be interesting, some of the letters they send are ridiculous.

[katie3105]

I have a firm of solicitors who have been dealing with my case. 2 are halifax cards the same as this with the same paperwork. they have decided not to go ahead after the test case result on the basis that they would not be successful as the application form refers to the T&C in the application pack and therefore they have concluded that this would be enforcable....?????

[Leightonx1]

I'm of a different opinion with mine.

1) They have not provided me an executable signed agreement, it's an application form with no precribed terms

2) I have it on good authority that the T&C post date the 'application form even'. But even if this wasn't the case, the T&C they have sent do not in any part contain my signature, there is nothing linking them to that application form.

I know categorically for a fact that I've never seen those documents before. I intend to carry on fighting them. I have no intention of taking them to court and putting the Burdon of proof on myself, I will let them do that if they wish and I'm very confident they would lose as what they have provided me with thus far is completely unenforceable.

The Manchester case is only relevant to a request pursuant to s.77/78, in my case my request is under s.127. Even if it wasn’t the Manchester case has more relevance to those taking there DCA to court rather than the DCA taking the debtor to court. It is the DCA’s responsibility to provide an executable agreement, and if your case is the same as mine, they certainly have not.

[Leightonx1]

P.S. the application form they've sent to me doesn't mention anything about an 'application pack'. This one dates from 2003, when was yours from?

I would ask people on here but I'm pretty sure that it would not make a blind bit of difference if it says anything about an application pack, as far as my understanding is the pre-described terms have to be within a signed agreement. So even if it did go to court, they still wouldn’t be able to enforce it with no pre-described terms. It may be different if you become the claimant and you take the DCA to court, which I think is the difference between our cases.

[katie3105]

Your application from was the same as mine from 04 it clearly states at the top you will find a copy of the terms and conditions with your application pack and also states attached to this application you will find important inforamtion realting to your account.

 

I fully sympathise with you..... Mine is exactly the same and I agree with you but my solicitors seem to think different. It is being tested in court I think next month !

[Leightonx1]

Ah beg your pardon you're quite right, I missed that bit...still makes no difference in terms of them enforcing it in a court with me as the defendant, as far as the law and the courts are concerned it still doesn't conform to what is required in terms of the pre-described terms issue, what they have given both of us doesn’t conform to section 60 and 61 of the consumer credit act 1974 which makes it unenforceable under s.65, not having the pre-described terms 'within' the agreement prevents even a court from enforcing it, Manchester changed nothing on this issue.

 

I think your solicitors are wise not to pursue a case against them at this time, but do you mind me asking why have you taken the decision to take the DCA to court in the first place or have I confused this, are they taking you to court?

 

In my case I doubt the DCA would risk taking me to court as there is clear doubt concerning the enforceability of what they have provided, would they really want to test it, if they could have why didn’t Halifax do it? I believe they sold it knowing all too well it was unenforceable and it was already in dispute with Halifax. My DCA specialise in collecting on unenforceable debt, they do this by confusion and ignorance. If they do take me to court, I shall defend; I have 2 years of evidence to submit in relation to them and there games.

 

 

Whatever happens if it goes to court, so be it, I'll fight them till the end on this, and in my case I genuinely don't believe I owe them anything.

Edited January 20, 2010 by Leightonx1
corrected spelling and missed out word

[katie3105]

I paid a cmc company 2 years ago to do this for me and they have passed it to a solicitor. I am quite happy not to go to court however I paid £2000 so I would like some sort of outcome. I am in total agreement with oyu though and that has always been my stance. It seems I might know more next month when they come back to me on the issue !

[Leightonx1]

I've just realise something, in the huge pile of documents I've kept in relation to this I have two completely different 'application forms', sent on different occasions from the DCA. Both contain exactly the same information without pre-described term etc, but the font is different. I only have one of the 'application form' in this font, the other photocopies are all the same, wonder if that’s relevant, how can two application forms exist for the same account!

Edited January 20, 2010 by Leightonx1

[Leightonx1]

What guarantee's did your CMC give you when you paid for this service if they were unsuccessful? Perhaps it may end up being them you'll have to take to court for a refund if they can't deliever what they promised? I hope for your sake they do though

[vint1954]

I have a firm of solicitors who have been dealing with my case. 2 are halifax cards the same as this with the same paperwork. they have decided not to go ahead after the test case result on the basis that they would not be successful as the application form refers to the T&C in the application pack and therefore they have concluded that this would be enforcable....?????

The act actually states that the prescribed terms must not be referred to in another document.

[vint1954]

P.S. the application form they've sent to me doesn't mention anything about an 'application pack'. This one dates from 2003, when was yours from?

 

 

I would ask people on here but I'm pretty sure that it would not make a blind bit of difference if it says anything about an application pack, as far as my understanding is the pre-described terms have to be within a signed agreement. So even if it did go to court, they still wouldn’t be able to enforce it with no pre-described terms. It may be different if you become the claimant and you take the DCA to court, which I think is the difference between our cases.

No and you must forget Manchester unless you are taking the DCA to court. That revolved around documents to be supplied for s77-79.

 

The prescribed terms, APR, repayments and credit limit ( or a term ) must appear within the signature document and must not be referred to as being in another document. There are plenty of Higher and appeal court judgements to back this up, plus the author of the act, Bennion.

 

Mcleoud goes on to say that his oppinion is that they must be on the signature page, however this is referred to as academic work.

 

If a credit company tries to use the words from Carey, that a document does not have to be one sheet, they may have a point if it is a long contract, however that agreement would have to be numbered ( page 1 of 8 of contract under CCA1974 ) and bound as one document with the signature at the end. This is obviously tosh, as all you get is a one page application form with an advert on the back for a free prize draw or offer. The creditor then forgets to comply with the law in sending you an agreement to sign ( not T&C's) and expects everything to be hunky dory.

[vint1954]

Your application from was the same as mine from 04 it clearly states at the top you will find a copy of the terms and conditions with your application pack and also states attached to this application you will find important inforamtion realting to your account.

 

I fully sympathise with you..... Mine is exactly the same and I agree with you but my solicitors seem to think different. It is being tested in court I think next month !

Again, prescribed terms cannot be referred to as being in another document. Perhaps your solicitors are good at wills:D

[frettful38]

No and you must forget Manchester unless you are taking the DCA to court. That revolved around documents to be supplied for s77-79.

 

The prescribed terms, APR, repayments and credit limit ( or a term ) must appear within the signature document and must not be referred to as being in another document. There are plenty of Higher and appeal court judgements to back this up, plus the author of the act, Bennion.

 

Mcleoud goes on to say that his oppinion is that they must be on the signature page, however this is referred to as academic work.

 

If a credit company tries to use the words from Carey, that a document does not have to be one sheet, they may have a point if it is a long contract, however that agreement would have to be numbered ( page 1 of 8 of contract under CCA1974 ) and bound as one document with the signature at the end. This is obviously tosh, as all you get is a one page application form with an advert on the back for a free prize draw or offer. The creditor then forgets to comply with the law in sending you an agreement to sign ( not T&C's) and expects everything to be hunky dory.

 

 

Hi vint, I have been reading the advice and comments you have given above and have found this very fascinating. It seems that you have quite a bit of knowledge about this cca stuff. I really am in two minds and I do not know if mine of my OH's cca agreements are correct.

I have had quite a few opinions on here some saying they are and some not, like I said I do not for certain. Is it possible that you could please see what you think please. I have attached it below. I have been advised (can't remember by who) that as the pages are linked and numbered that the cca agreement is correct and enforceable. I would love to see what your opinion is please.

 

Here it is,

 

http://i450.photobucket.com/albums/qq223/sophiak_bucket/hsbc/h9.jpg

http://i450.photobucket.com/albums/qq223/sophiak_bucket/hsbc/h10.jpg

http://i450.photobucket.com/albums/qq223/sophiak_bucket/hsbc/HSBC.jpg

http://i450.photobucket.com/albums/qq223/sophiak_bucket/hsbc/CCF07122008_00005-2.jpg

 

The last page is signed by HSBC, I was wandering that is the signature and the banks signature not supposed to be on one page. The CCA Agreement are all numbered 1,2,3 and so on. There are a total of 6 pages altogether.

[vint1954]

Hi vint, I have been reading the advice and comments you have given above and have found this very fascinating. It seems that you have quite a bit of knowledge about this cca stuff. I really am in two minds and I do not know if mine of my OH's cca agreements are correct.

I have had quite a few opinions on here some saying they are and some not, like I said I do not for certain. Is it possible that you could please see what you think please. I have attached it below. I have been advised (can't remember by who) that as the pages are linked and numbered that the cca agreement is correct and enforceable. I would love to see what your opinion is please.

 

Here it is,

 

http://i450.photobucket.com/albums/qq223/sophiak_bucket/hsbc/h9.jpg

http://i450.photobucket.com/albums/qq223/sophiak_bucket/hsbc/h10.jpg

http://i450.photobucket.com/albums/qq223/sophiak_bucket/hsbc/HSBC.jpg

http://i450.photobucket.com/albums/qq223/sophiak_bucket/hsbc/CCF07122008_00005-2.jpg

 

The last page is signed by HSBC, I was wandering that is the signature and the banks signature not supposed to be on one page. The CCA Agreement are all numbered 1,2,3 and so on. There are a total of 6 pages altogether.

Its a very unusual credit card agreement. Was it signed in branch?

 

Also, conveniently the first 2 pages are not numbered.

[frettful38]

Its a very unusual credit card agreement. Was it signed in branch?

 

Also, conveniently the first 2 pages are not numbered.

 

 

Hi vint, no it was not signed in the branch, there were 6 pages its just I am trying to find them on photobucket and will post them as soon as I do. This cca agreement does not look proper to me but have received mant advice it is, so really I am in two minds.

 

What is your opinion vint, I really would appreciate knowing.

[frettful38]

http://i450.photobucket.com/albums/qq223/sophiak_bucket/hsbc/CCF07122008_00000-1.jpg

 

http://i450.photobucket.com/albums/qq223/sophiak_bucket/hsbc/CCF07122008_00003.jpg

 

I found the missing two pages

[BARFLY]

what's being tested in court next month? could you provide more details, please.

[vint1954]

http://i450.photobucket.com/albums/qq223/sophiak_bucket/hsbc/CCF07122008_00000-1.jpg

 

http://i450.photobucket.com/albums/qq223/sophiak_bucket/hsbc/CCF07122008_00003.jpg

 

I found the missing two pages

Very unusual and suspect. Do you recall where it was signed.

[frettful38]

Very unusual and suspect. Do you recall where it was signed.

 

 

Yes I do vint1954, It was posted to my home and signed and posted back to HSBC. This is my OH's cca and my one is similar too. I also received it by post and then signed and returned it to HSBC by post.

[diddydicky]

which is VERY unusual because this is the type of document that it printed off in the bank and you normally sign in there and then with their staff as a witness and then take your copies with you

 

did you keep the envelopes?

[frettful38]

which is VERY unusual because this is the type of document that it printed off in the bank and you normally sign in there and then with their staff as a witness and then take your copies with you

 

did you keep the envelopes?

 

No diddydicky I did not. At that time you would not have thought that you would need the envelopes in the future would you?

 

I can honestly say that these documents were posted to us guaranteed. So where do I go from here please?

[Peterbard]

Its a very unusual credit card agreement. Was it signed in branch?

 

Also, conveniently the first 2 pages are not numbered.

 

 

Hi where is the interest rate?

 

"the interst rste is cslculated in the san=me manner as the APR"

 

Is it really (1+(APR/100))^(1/12)-1 to give you your effective monthly rate.

 

Hardly what you would call a figure that any lay member of the public could understand.

 

No the regs say the interst rate should be shown not the APR they are not calculated the same way. It is true that APR includes charges and flat rate inteset does not but there is a bit more to it than that in my opinion this is none compiant in that the unterest rate is not shown.

 

Peter

[vint1954]

Yes I do vint1954, It was posted to my home and signed and posted back to HSBC. This is my OH's cca and my one is similar too. I also received it by post and then signed and returned it to HSBC by post.

Perhaps you applied at your branch and they sent it out.

 

Some of the pages are numbered some not. Strangely enough, the pages without numbers, contain the prescribed terms and there is nothing in the text linking them together.

[frettful38]

I'm not too sure vint exactly how we applied for our credit cards, maybe online I think, and they sent us out an application form and we signed and posted back.

 

The pages are numbered. My OH's cca are numbered, 1 of 7, 2 of 7 and so on. I think I may have blacked them out whilst scanning them up on here.

 

The cca is dated March 06, and I am sure there must be a few things that are not correct, but can't seem to find out what:confused:

[the_shadow]

I'm not too sure vint exactly how we applied for our credit cards, maybe online I think, and they sent us out an application form and we signed and posted back.

 

The pages are numbered. My OH's cca are numbered, 1 of 7, 2 of 7 and so on. I think I may have blacked them out whilst scanning them up on here.

 

The cca is dated March 06, and I am sure there must be a few things that are not correct, but can't seem to find out what:confused:

 

If you applied online post December 2004 then a digital signature (tickbox) alongside Prescribed Term's shown online is all that is required to be compliant and enforceable.

 

Prior to 2004 they required a signed copy to back the online application up.

 

S.