Unenforceable CCA where now?

anthony1

I took out a Mint credit card in 2003. I requested a copy CC which I received. I beleive the agreement is unenforceable. On the credit agreement they sent it states my credit limit as £4500.00. However on the seperate terms and conditions , unsigned, it shows credit limit as £9400.00. These cannot be the terms and conditions sent with the agreement from 2003. Also they are on a seperate piece of paper, not the reverse of the agreeement. The agreement is not signed my them and it only shows interest rate, the rest is data protection stuff. Also the apr is idfferent to the agreement.

Also they applied the £1.00 to my account? Whrer do i go now?

Karmacat

Hi Anthony

I clicked on your post with the intention of bumping, so you could get feedback (I don't know much about this particular kind of thing).

Can I check tho, what is unenforceable, exactly? You're saying the credit limit is in dispute, okay, how much do you owe on this card? Is that whats actually in dispute?

I don't know what the £1 is either... are you asking how you go about challenging what they say you owe?

Good luck checking it all out!

Leixlip1

Sounds unenforceable but you should double check on the Consumer Action Group website - some very knowledgeable people on there !

GeorgeUK

It seems they've applied your £1 CCA payment to your account (as well as providing the CCA). If the CCA does not have the prescribed terms then you should notify them of this.

A true executed CCA has to have the following information in it:

IS MY AGREEMENT ENFORCEABLE( Via section 127(3) CCA1974)
PRESCRIBED TERMS FOR THE PURPOSES OF SECTIONS 61(1)(0) AND 127(3) OF THE
CONSUMER CREDIT ACT 1974 Taken from sced.6(1983/1553) regulations

**What do we mean by unenforceable?
In the Consumer Credit Act section 127 there is a provision for making an agreement unenforceable if it does not contain certain pieces of information.
Subsections 1,2,3,4 state which pieces of information these are, and everything mentioned there must be included within the body of the agreement, if one is missing the agreement is unenforceable.

How does unenforceable differ from enforceable with a court order only?
When an agreement is unenforceable it means that the court or the judge cannot make a ruling on it. The court cannot make it enforceable.
When an agreement is enforceable only by ruling of the court it means that the agreement can be stopped by the debtor but the court has the power to re-instate it and allow the credit to continue to enforce.**

The Prescribed Terms are these

A Amount of credit
A term stating the amount of credit

B Repayments
A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following-
(a) Number of repayments;
(b) Amount of repayments;
(c) Frequency and timing of repayments;
(d) Dates of repayments;
(e) The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable.

C Rate of interest
A term stating the rate of interest to be applied to the credit issued under the agreement

D Credit limit
This may be a term or the manner in which it will be determined or that there is no credit limit.

---

Which of these applies to you depends on the type of agreement you have?

For a Running Account (credit card) agreement

BC and D Apply

For a Restricted Use Debtor Creditor Supplier
Where the dealer is the supplier and the creditor is the one providing the finance.
The money can only be used for the purpose it is given.
There is no interest on the purchase (the cash price is the same as the total price)
And there is no advance payment
A is applicable

For a fixed Sum Credit Agreement
A conventional credit agreement with none of the above restrictions

A and B apply

For a Hire Agreement

B is Applicable

This paper only covers section 127(3) of the Act agreements can also be unenforceable by contravention of sections 1 and4 this will be the subject of the next paper.
Please note that these Prescribed terms where not changed in any way by the 2004/1482 Ammendments although the form in which they appear on the agreement was. Subsection127(3) was repealed on the 6th of April 2007 so that unenforceability due to 127(3) will only apply to agreements executed before that date.

Can you check that all the required prescribed terms are on the documents they provided (especially section ? If not then the CCA is unenforcable.

Dear Sir/Madam,

With reference to my previous letters, I wish to draw you attention to your company's lack of compliance with my legal request.

On **DATE** I made a formal request for a true signed agreement for the alleged account under consumer credit Act 1974 s77/8. A copy of which is enclosed for your perusal and ease of reference.
You have failed to comply with my request, and as such the account entered default on **DATE**.

The document that you are obliged to send me is a true copy of the executed agreement that contained all of the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself as defined in section 61(1) of CCA 74 and subsequent Statutory Instruments. If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document.

As you may not be aware , failure to comply with this request within 12 working days renders the alleged debt UNENFORCEABLE in law. Furthermore, if this non-compliance continues for a further month then a summary, criminal offence is committed.

Furthermore you should be aware that a creditor is not permitted to take ANY action against an account whilst it remains in dispute.

The lack of a compliant credit agreement is a very clear dispute and as such the following applies.

* may not demand any payment on the account, nor am I obliged to offer any payment to you.
* may not add further interest or any charges to the account.
* may not pass the account to a third party.
* may not register any information in respect of the account with any credit reference agency.
* may not issue a default notice related to the account.

Therefore this account has become unenforceable at law.

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

After taking advice, I am of the opinion that your continued pursuit is in violation of the Administration of Justice Act 1970 section 40, Protection from harassment Act 1997 section 3 as well as breaching a number of the OFT Collection Guidelines.

I reserve the right to report your actions to any such regulatory authorities as I see fit.
You have 14 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint.

I hope that you will enter into a sincere dialogue with me about this matter and I am writing this letter to you on the assumption that you would prefer to do this than merely respond with standard letters and leaflets.

I would appreciate your due diligence in this matter.

I await your rapid response.

Yours Faithfully

anthony1

Thanks... Mint are saying they only need to send a copy of the cca plius provide a copy of the CUURENT T & C,S. In any event the agreement is only signed by me and not them?

GeorgeUK

As it is a credit card - the following must be included on the CCA as these are the required prescribed terms.

B Repayments
A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following-
(a) Number of repayments;
(b) Amount of repayments;
(c) Frequency and timing of repayments;
(d) Dates of repayments;
(e) The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable.

C Rate of interest
A term stating the rate of interest to be applied to the credit issued under the agreement

D Credit limit
This may be a term or the manner in which it will be determined or that there is no credit limit.

Write yes or no beside each of these to determine whether everything required is there. Once we can see what is missing, we'll be able to advise further.

Karmacat

Wow, George, thats serious biz... I may well subscribe to this thread just to keep track of that. Thanks.

anthony1

Thanks George, nothing in B is on the agrement. Its all DATA protection stuff. Also what about the signature issue

fermi

anthony1 wrote: »

Also what about the signature issue

Lack of an actual signature from the creditor does not in itself bar the agreement being enforced through the courts.

anthony1

I will try and scan tommorrow but it appears unenforceable as they have sent seperate T & C's, valid today and not even from the inception of the agreement!!!!

delboypass

how do you subscribe to a thread as I would to keep track on this one

PS:How much do you owe on the credit card + credit limit now.