"Unenforcable" Credit Agreements - let's get it out in the open

AMILLIONDOLLARS

Taken from for office of Fair Trade

The Consumer Credit (Agreements) Regulations
The Regulations apply to all regulated consumer credit agreements and consumer hire agreements, including modifying agreements.
In particular, the agreement must contain certain financial and other information. This must be set out in a specified order, with sub-headings, and shown together as a whole. The information must be of equal prominence, and easily legible.
In the case of credit agreements, the required information is:

• nature of the agreement
• parties to the agreement
• key financial information (including the amount of credit or the credit limit, the duration of the agreement, the APR, the total amount payable, and the amounts and timing of repayments)
• other financial information (including a description and cash price of goods or services, any advance payments, the total charge for credit, the rate of interest, how and when interest charges are calculated and applied, the order of allocation of payments, and variable rates and charges)
• key Information (including default or other charges, any security provided by the borrower, and prescribed statements of the protection and remedies available to the borrower), and
• a signature box, and other form of consent where applicable.

here is the link:

http://www.oft.gov.uk/advice_and_resources/resource_base/legal/cca/agreements/

fermi

Yep. I'm aware of that.

The are not all "prescribed" terms though.

The prescribed terms are a smaller subset of those, whose absence can render a pre April 2007 agreement unenforceable.

If you like "the bare legal minimum" that allows it to be enforced through the courts.

The absence of some of the items there that are not prescribed terms will render the agreement "unexecuted". An "unexecuted" agreement can only be enforced by an order of the court. But it can be enforced.

However a pre April 2007 agreement that is unexecuted because amongst the missing information is a "prescribed term" is unenforceable even through the courts.

Basically a smaller list of items is more vital and determines ultimate enforceability.

carlbcfc

I wondering where i stand with this http://forums.moneysavingexpert.com/showthread.html?t=1607953

hannahb123

I have used the template letter to RBS asking for a copy of my loan agreement, I sent it recorded delivery which they received 10 March 2009 along with my £1, I also stated that until I received my agreement that all payments would cease, I still have had no word and they have took the payment from my RBS account they won't let me cancel the direct debit.
Any ideas to my next step.

Now received reply from RBS stating that they regret that they cannot comply with my request for a coy of my loan agreement as i has been misfiled and are unable to loacte it, and that under sec 77 (1) CCA this loan still remains valid and that if I don't comply they will report the default to CRA.

SHOULD I JUST GIVE UP?

cheesedoffwithdebt

petermb wrote: »

There is only one company that will offer a totally free service including the legal assistance. No cost up front or deduction from the compensation.

I think alot of this- like any legal process-depends on a number of joined issues. However I am challenging MBNA and was told by another poster on these boards that it's worth a try as the case which alot of these companies are using as precedent (Rankine v MBNA) is against their contracts. If a debt is unenforcable it means you reach a status quo surely- they can't take it to court and you don't have to pay?

The only issue then is, you need to get it wiped off your credit file- aM I understanding this correctly?

Happy Easter all:D

never-in-doubt

cheesedoffwithdebt wrote: »

I think alot of this- like any legal process-depends on a number of joined issues. However I am challenging MBNA and was told by another poster on these boards that it's worth a try as the case which alot of these companies are using as precedent (Rankine v MBNA) is against their contracts. If a debt is unenforcable it means you reach a status quo surely- they can't take it to court and you don't have to pay?

The only issue then is, you need to get it wiped off your credit file- aM I understanding this correctly?

Happy Easter all:D

Yes mate, it will come off your credit report as there has to be a legal contract for there to be a credit entry, the legal contract would not stand in court would it, if it's unenforceable?, thus there can be no credit entry. Also check for assignment because if the DCA placed the default and the debt wasn't properly assigned then the default comes off and cannot be placed again as one default for one debt.

Its not that they won't take you to court, its more that the judge will not award enforcement so yes, technically the debt can sit in limbo but then you have to bear in mind Statute Barred which will occur usually before the default date....

never-in-doubt

blind-as-a-bat wrote: »

Im afraid it is not that simple, a contract can be implied by act for the purpose of data protection, it does not matter if a enforceable agreement exists if the creditor can prove by say ordering goods you agreed to pay xxx per month that is enough for a creditor to justify entering missed payments, the CRA's will agree and so will the ICO.

You have to remember the data protection act is seperate to the CCA act, and does not require a signed agreemant im afraid to allow the proscessing off your data.

Im afraid a creditor will continue to wreck your credit file, and you will not be able to stop it unless you take court action, which you may or may not win.

There are a couple of cases going through court at the moment that may change this ludicrous situation

I know what you're saying but in essence it is that easy, in that the OC still has to have evidence of a legally binding contract, but then we'd be mixing different laws and there are many different scenarios dependant upon each own merit.

I assume you're referring to dave (UK26 v Lowell)? If so, yes this will change this silly silly law once and for all but for the same respect, assuming the debt is unenforceable, it still has to be assigned properly, also the default notice would have to be issued properly, then the reporting would have to be accurate and if any of the links are broken then yes, you can enforce judgement to have the data removed.

If they refuse to remove the default, you'd look to serve notice under Sec 10 Data Protection Act 1998 to cease and desist, failure to comply with such notice would result in the seeking of enforcement through the Courts.

There is always a back door around these things when you're mixing so many laws within themselves. DCA's are not the OC remember and so long as something goes wrong between the two parties and the assignment, then things can and will get removed from CRA's.

On a side issue, Statute Barred would usually occur before the 6yrs default date so its worth going down that route as well, instead of claiming unenforceability if say there are only a couple of years left within the 6 year window (month after the date you last made a payment).....

never-in-doubt

blind-as-a-bat wrote: »

Thats the appitiser, im more intrested in the main course;)


As for the rest, im not disagreeing with you that it should be as simple as you say, but im afraid the court route is not, until the district judges in this land pass judgement on the legaslation of this land not there own moral view point, or what ever other excuse they use to ignore the legislation.

Im not saying it cant be done, more a word of warning, it will be a long hard fight, and no guarentee of getting the correct result.

The main course? That is the main course, or do you mean Dave vs Experian?

Yea, I agree with your comments entirely, I know i'm making it sound easy - it isn't...... However I am sadly one of those that believe in the justice system, not always right but hey-ho-hum, hopefully things will change real soon.......

saracens

Peter,
I am interested in your comment about the completely free service offered to people with unenforceable CCAs.
I have asked for CCAs from Mint, RBS & Tesco (2 with Tesco) and all have replied although the RBS one was not within the 12 days.
I suspect they all have grounds to challenge their validity as they are all copy application forms:
Mint has not been countersigned by them and was originally RBS Advanta anyway (nothing from when they changed to Mint).
RBS looks like a cut & paste job as suggested in the leaked memo to the Guardian - very dodgy looking!
And Tesco does not show the terms & conditions referred to on the back of the application form and one of them has an old address pre-printed on it, with no reference to our current address at the time of the application.
How would I go about having someone look at these for me?

petermb_2

saracens wrote: »

Peter,
I am interested in your comment about the completely free service offered to people with unenforceable CCAs.
I have asked for CCAs from Mint, RBS & Tesco (2 with Tesco) and all have replied although the RBS one was not within the 12 days.
I suspect they all have grounds to challenge their validity as they are all copy application forms:
Mint has not been countersigned by them and was originally RBS Advanta anyway (nothing from when they changed to Mint).
RBS looks like a cut & paste job as suggested in the leaked memo to the Guardian - very dodgy looking!
And Tesco does not show the terms & conditions referred to on the back of the application form and one of them has an old address pre-printed on it, with no reference to our current address at the time of the application.
How would I go about having someone look at these for me?

I pm'd you some details.