Unenforceability & Template Letters II

never-in-doubt

terimon wrote: »

Hello NID. Even though my Virgin Credit Card was done on line and i ticked a box and it looks enforceable is it worth me sending off a query letter anyway?

Yes mate - its always worth it, just bear in mind if you done it online then an unsigned (ticked) CCA will suffice. Did they send on more than one page that are also unsigned? If so, follow same advice given above to cap'n haggis

never-in-doubt

moo_cow wrote: »

Hi NID, I have recieved this letter this morning, which to be honest is no surprise as I said in my previous post I still have the original credit agreement which I never returned. Basically, all they have sent me is a copy of an agreement someone would sign if they were opening an account now. it's all blank spaces. so in respect of Lowells, what action do I take next?

Send the following letter to Lowells:

Dear Sirs,

Account No: XXXXXXXX

You have failed to respond to my legal request to supply me a true copy of the original Consumer Credit Agreement for the above account

I note that you have replied to my CCA Request by sending a copy of Terms & Conditions and not a True Copy of the alleged Consumer Credit Agreement, in line with my formal request. As such, I must inform you that this is not sufficient to comply with the request and that your company is still in default under the act.

To clarify, just sending the Terms and Conditions is a breach of the Act and Regulations, apart from the information that the Regulations provide that you may exclude, the copy must be a 'true copy' of the agreement.

This breach of the agreement can be demonstrated as follows;

Section 180(1) (b) authorises, “the omission from a copy of certain material from the original, or the inclusion of certain material in condensed form.” This refers to statutory instruments made under the heading Copies of Document Regulations and in this care in particular to SI 1983/1557.

Before leaving section 180 there are two other sections that should be mentioned, which are;

Section 2(2) (a)
A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not satisfied unless the copy supplied is in the prescribed form and conforms to the prescribed requirements;

And more importantly

Section 2(b)
A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not infringed by the omission of any material, or its inclusion in condensed form, if that is authorised by regulations.

You will see that this quite clearly states that whilst certain items may be left out of the copy document, the rest of the document must be in the form and contain all items as prescribed by the regulations.

Turning to the regulations regarding what may be omitted from these copies these are contained with SI 1983/1557.

The regulations state:

(2) There may be omitted from any such copy-

(a) any information included in an executed agreement, security instrument or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations thereunder as to the form and content of the document of which it is a copy;

(b) any signature box, signature or date of signature (other than, in the case of a copy of a cancellable executed agreement delivered to the debtor under section 63(1) of the Act, the date of signature by the debtor of an agreement to which section 68(b) of the Act applies);

It is quite clear what can be omitted from the copy document, this again asserts that all other details of the agreement should presented in form and content as required by the regulations.

The requirements of the Agreement regulations 1983/1553 are very explicit in describing the form and content of an agreement and this as I have demonstrated also applies to the copy of any such agreement with the above mentioned proviso.

Nowhere within these regulations does it state that part of the agreement can be presented on a separate document headed terms and conditions. It does, however, state that 'all terms and conditions should be within the agreement document and is explicit of the form in which it is presented'.

In either case, please confirm that you have, in your possession, a credit agreement that is in all ways fully compliant with the Consumer Credit Act 1974, as amended, and the subsequent regulations made there under. For the avoidance of doubt, if you are in possession of such a document, but are unable to supply me with a true copy of it, please outline your reasons why you are unable to supply it to me in your reply.

Furthermore, I respectfully request that you provide me by return a copy of the credit agreement which bears my signature. I require this as I have reason to believe that there may be discrepancies within the agreement which may leave it improperly executed.

I look forward to your response within the next 14 days.

Yours faithfully

Sign digitally

never-in-doubt

I know this specifically relates to T&C's being sent out, just go through the letter and change the wording from Terms & Conditions to Copy of Blank CCA.

cejsmith

never-in-doubt wrote: »

Send this letter: 3. CCA Query

It is not for you to mention the lack of prescribed terms, let them tell you what is missing. You do not list them and do their job, you simply send the letter which says the prescribed terms are not intact - thjat is good enough..... i.e. you're telling them you know summat aint right

The fact an agreement is not signed does not allow for unenforceability, no!

Thanks for that, it was the dated bit though that I was wondering about.

never-in-doubt

cejsmith wrote: »

Thanks for that, it was the dated bit though that I was wondering about.

I told you - in last post! But regardless, you should never quote the specifics as to why the agreement is not enforceable, you simply send the blanket letter.

Did you miss my last post?

never-in-doubt wrote: »

Send this letter: 3. CCA Query

It is not for you to mention the lack of prescribed terms, let them tell you what is missing. You do not list them and do their job, you simply send the letter which says the prescribed terms are not intact - thjat is good enough..... i.e. you're telling them you know summat aint right

The fact an agreement is not signed does not allow for unenforceability, no!

terimon

never-in-doubt wrote: »

Yes mate - its always worth it, just bear in mind if you done it online then an unsigned (ticked) CCA will suffice. Did they send on more than one page that are also unsigned? If so, follow same advice given above to cap'n haggis

They enclosed (as they put it)

a) A copy of your executed agreement
b) Your up to date terms and conditions
c) A copy of your recent statement (which shows the state of your account) which has been signed

never-in-doubt

terimon wrote: »

They enclosed (as they put it)

a) A copy of your executed agreement
b) Your up to date terms and conditions
c) A copy of your recent statement (which shows the state of your account) which has been signed

Eeeeh, by gum laddy! I'd just send the CCA Dispute letter anyway, can do no harm can it? :rotfl:

Edit:
Actually, didn't I say that it would be best for you to ignore them? You're now confusing me cos we've sorted you, so why more posts about the same problem? In your case you have to sit back and do nothing - we're not going to have to go over the same ground as last week are we? I hope not....

cejsmith

never-in-doubt wrote: »

I told you - in last post! But regardless, you should never quote the specifics as to why the agreement is not enforceable, you simply send the blanket letter.

Did you miss my last post?

NID mate

Sorry we seemed to be at crossed purposes, I understand about the signed bit. But my understanding was to be legally binding, an agreement had to be signed and dated. Mine was just signed but not dated that all I was asking about

Also do you know if an agreement has to be signed by the lender within a certain time scale????

Thanks

terimon

There is a bit where i have ticked the box authenticating as my signature and the MBNA Director has ticked a box that says: Above are sections 1-3 of your terms and conditions. The rest of your terms and conditions (i.e.sections 4-16 including definitions), can be viewed by clicking the Terms and conditions link at the top of this page.

never-in-doubt

cejsmith wrote: »

NID mate

Sorry we seemed to be at crossed purposes, I understand about the signed bit. But my understanding was to be legally binding, an agreement had to be signed and dated. Mine was just signed but not dated that all I was asking about

Also do you know if an agreement has to be signed by the lender within a certain time scale????

Thanks

No, No, No - it does not have to be signed and dated at this stage as they can send a copy document so please concentrate on what i'm saying. You've more chance of platting fog that winning unenforceability cos it wasn't dated - that is self explanatory and thus I never answered.