Unenforceability & Template Letters II

never-in-doubt

I_Love_Crisps wrote: »

Hi m8...sending letter 4 to Capital One today, you say they dont have to provide signature...the form they sent was obv just a new application form, it had all the terms on, but was obv not the original agreement (no sig, just a new form), is this going to be unenforceable?

If it was an application form then unlikely it will be enforceable, but the prescribed terms dictate that.

astravanman

http://forums.moneysavingexpert.com/showpost.html?p=29153811&postcount=1586

Hi NID, not sure if you've had chance to have a look at what Egg sent me in the above post.
However, in the mean time we have now dug out the original paperwork & agreement that egg sent in 2005. It contained 2 copies of the CCA loan agreement (one to sign, date and return & a copy to keep). We still have the 2 copies as no paperwork was ever signed & returned back to egg.

They may be relying on the signature tick in the cca internet print out that they sent us, but in their Terms and Conditions it says:

1.1. This agreement will be deemed to be made on the day we receive the signed agreement from you, except that it shall not be binding on us until we have completed and are satisfied with our final credit checks and other searches and unless we receive within 3 months of the date we signed this agreement:
* the agreement signed by you
* any other documents or information we requested, in the form we asked for.
* a valid Direct Debit instruction for the monthly payment instalments.

Also, I don't know if this also has any bearing on things but the CCA internet print out that they sent is signed (ticked) by Egg on 16 Sep, whereas the original paper cca sent in 2005 is signed by Egg on 19 Sep.

Appreciate your thoughts on this mate.

smifff_2

never-in-doubt wrote: »

Hi matey - you have to bear in mind though that after the recent McGuffick case they can actually ring you (I think upto 8 times a day)... :eek:

But that said, changing your number or blocking withheld numbers does the trick, but legally they can ring you so just bear that in mind! The only things that haven't changed is their ability to enforce the debt without the agreement, but otherwise they can add a default and they can hassle you (to an extent).

But you do right to ignore them, they will soon go away and prey on someone more willing to [STRIKE]be duped[/STRIKE] pay up!

Hi NID, thanks for that. The guy that phoned me seemed to accept it when I said they're not allowed to phone me, maybe it was his 1st day.

I don't mind if they phone me to be honest, it will break up the bordom a bit. As you know I live in france and look after my wife who suffers from MS and is also Bipolar, so any phone calls would be welcome. As my wife is often spaced out on the medication she takes i could always let her answer the phone, that would really confuse them.:rotfl:
Sorry if I sound cruel but if I didn't joke about the situation I'd probly slit my wrists:D

daz10277

Hey NID

I've just checked the prescribed terms again and realised that for fixed term loans without restrictions, they are not required to have the interest rate so my issue with the APR and calculation of interest is irrelevant! Have I interpreted this correctly?

Cheers mate
D

nomorecc

does this mean MBNA cc agreements are unenforceable???

never-in-doubt

astravanman wrote: »

However, in the mean time we have now dug out the original paperwork & agreement that egg sent in 2005. It contained 2 copies of the CCA loan agreement (one to sign, date and return & a copy to keep). We still have the 2 copies as no paperwork was ever signed & returned back to egg.

They may be relying on the signature tick in the cca internet print out that they sent us, but in their Terms and Conditions it says:

1.1. This agreement will be deemed to be made on the day we receive the signed agreement from you, except that it shall not be binding on us until we have completed and are satisfied with our final credit checks and other searches and unless we receive within 3 months of the date we signed this agreement:
* the agreement signed by you
* any other documents or information we requested, in the form we asked for.
* a valid Direct Debit instruction for the monthly payment instalments.

Also, I don't know if this also has any bearing on things but the CCA internet print out that they sent is signed (ticked) by Egg on 16 Sep, whereas the original paper cca sent in 2005 is signed by Egg on 19 Sep.

Appreciate your thoughts on this mate.

If you have both copies and can confirm the details differ then it would appear unenforceable wouldn't it? Therefore you can assume so, but bear in mind the use of the tick is lawful and they may rely on this in court, but would still require the original before taking any such action, if you have them both they can still present a copy by printing a copy, so it'd be hard to prove other than the fact your dates do not agree with theirs which is in essence fraud, if they have manufactured the agreement.

However, from what i've seen it looks fully enforceable but then again, it is a microfiche as is evident. In fact it may be a screen print. But the point remains, i'd say it was enforceable - whether they can produce the original is all that really matters though...

never-in-doubt

smifff wrote: »

Hi NID, thanks for that. The guy that phoned me seemed to accept it when I said they're not allowed to phone me, maybe it was his 1st day.

I don't mind if they phone me to be honest, it will break up the bordom a bit. As you know I live in france and look after my wife who suffers from MS and is also Bipolar, so any phone calls would be welcome. As my wife is often spaced out on the medication she takes i could always let her answer the phone, that would really confuse them.:rotfl:
Sorry if I sound cruel but if I didn't joke about the situation I'd probly slit my wrists:D

Hiya

I think your post is funny - I guess it would be funnyto let her loose on them for 10 mins and see what they think! Seriously though, i'd be ignoring them myself.

Don't worry too much - the calls etc will stop soon enough

never-in-doubt

daz10277 wrote: »

Hey NID

I've just checked the prescribed terms again and realised that for fixed term loans without restrictions, they are not required to have the interest rate so my issue with the APR and calculation of interest is irrelevant! Have I interpreted this correctly?

Cheers mate
D

The interest rate and calculations of repayment etc should be there, although there is no provision for there to be a separate bit regards to the rate, most lenders add it and then work out the monthly premiums etc with that in mind......

But your calculation of interest claim would always be flawed as this is not imperitive, it is only a minor breach of the contract - not a breach of CCA as such.

If you're relying on this one factor alone, you won't get very far mate...

never-in-doubt

nomorecc wrote: »

does this mean MBNA cc agreements are unenforceable???

Does what, exactly, mean MBNA agreements are Unenforceable?

But no, you cannot assume all agreements are the same just because there may be the odd bad one - it is an 'each-to-their-own' kinda style which means that no two agreements are usually the same (excluding older Egg ones)

Wol2

fermi wrote: »

By the way Wol2, the judgement they are misleadingly quoting in that letter is one that is:

a) Not legally binding on any other court, so completely irrelevant here.
b) Widely regarded (even in the legal community) to be a load of old CARP.

But DCA's don't mind quoting carp if they think you might believe it. :rolleyes:

Quickie update: DCA has crumbled thanks to the letter sent.:D
Thank you Fermi/NID.....:beer::beer::T

xxx