**DISCONTINUED** Cabot Financial Court Summons ( Scotland )

[FlamingParrot]

Re: Ok, its now my turn - Cabot Financial Court Summons

It's hard enough for a paper application. If you see in Wegmuller, http://www.bailii.org/ew/cases/Misc/2012/19.html, he had memories of applying for the card. Most online applications will involve little or no memory beyond, i was on my computer when i applied. The CCA applies equally except a signature is presented by a different method. No more, no less.

That's exactly what I was referring to, when you apply in any other way you can often show the terms weren't there, for example, because you filled in a short form with no terms.

If you have an agreement which you signed and it did not have a prescribed term it will be, and always will be, irredeemably unenforceable. They can still send a true copy which satisfies s78 though but that'd be the least of their worries. Of course having an irredeemable agreement is only of any use if a judge says it is UE.

That was the case in Santader v Mayhew, Mayhew lost the s.78 argument, i.e. the judge ruled s.78 had been complied with, however, the account was irredeemably UE because there was never an agreement for the credit card. The Judge said:

In my judgment the Claimant complied with the section 78 request within the stipulated time and is not prevented from enforcing this debt for non-compliance with a section 78 request.

All the talk about different sections of the act completely mess with the few brain cells I have!

The above example illustrates the difference, the judge ruled that s.78 had been complied with, yet the agreement was still UE: https://paulatwatsonssolicitors.word...er-credit-act/

11. Was the April 2000 agreement valid? Section 61 of the Consumer Credit Act requires that a valid agreement must contain all the prescribed terms (credit limit, interest rate and repayment terms) and be signed by the debtor and the creditor. The Defendant’s case was that she went into Harrods banking hall and picked up a pre-paid foldable application form which she took home,
filled in and sent off. She said there were no terms and conditions other than those printed on one side of the form. She had kept a copy of the form for her records. She also said that when she received the store card there were no terms and conditions with it. It was the Claimant’s case that terms and conditions were supplied, that procedures for providing terms and conditions were automated and that it would be unrealistic to expect that the Claimant could call anyone to give evidence as to the application of those procedures in this case. The Claimant was not able to provide a copy of the documents which it said would have accompanied the application form. The Defendant struck me as a methodical person who had kept a copy of the application form for her records and I have no doubt she would have kept, though possibly not read, any terms and conditions sent to her. I believed her evidence that she had not received any terms and conditions, either when she took the application form or when she received the card. I therefore find that the April 2000 agreement is unenforceable.

That's the difference, the information request under s.78 was satisfied but the agreement itself was UE. :thumb:

[Ruby]

Re: Ok, its now my turn - Cabot Financial Court Summons

Me again! I am getting rather restless as I have had no response back from Crapbot as yet with regard to my queries.

The CCA agreement sent for the Vanquis account makes no reference to any person. I understand that a properly executed agreement should state the name of both parties??

Credit Card Agreement Regulated by the Consumer Credit Act 1974:
Parties
a. Vanquis Bank Ltd whose registered address is .......
b. The person signing this agreement and whose name and address is stated on the Reply Card or your application (you, yourself, your).

Is the way that (b) is worded enough?

Credit limit - no mention of that at all.........

APR - only sets examples

Sorry, my mistake in some previous posts I was referring to generic T & C's that were sent but actually the T & C's were incorporated within the 'CCA Agreement' sent by them. As explained previously the CCA sent to me had no personal reference to anybody. A single sheet stapled to the CCA headed Digital Signature Application Details gives just very basic info of name, address and employment status.

I hope I have made things a little clearer :tinysmile_twink_t2:

[FlamingParrot]

Re: Ok, its now my turn - Cabot Financial Court Summons

Me again! I am getting rather restless as I have had no response back from Crapbot as yet with regard to my queries.

The CCA agreement sent for the Vanquis account makes no reference to any person. I understand that a properly executed agreement should state the name of both parties??

Yes, it should.
The Consumer Credit (Agreements) Regulations 1983:

Parties to agreement
2. All types.
(1) The name and a postal address of the creditor.
(2) The name and a postal address of the debtor.

Credit Card Agreement Regulated by the Consumer Credit Act 1974:
Parties
a. Vanquis Bank Ltd whose registered address is .......
b. The person signing this agreement and whose name and address is stated on the Reply Card or your application (you, yourself, your).

Is the way that (b) is worded enough?

Credit limit - no mention of that at all.........

That's one of the prescribed terms, which should be expressed as below:

Credit limit
8. Agreements for running-account credit. The credit limit expressed as:—
(a) a sum of money;
(b) a statement that the credit limit will be determined by the creditor from time to time under the agreement and that notice of it will be given by him to the debtor;
(c) a sum of money together with a statement that the creditor may vary the credit limit to such sum as he may from time to time determine under the agreement and that notice of it will be given by him to the debtor; or
(d) in a case not falling within head (a), (b) or (c) above, either a statement indicating the manner in which the credit limit will be determined and that notice of it will be given by the creditor to the debtor or a statement indicating that there is no credit limit.

APR - only sets examples

APR
15. All types except those referred to in paragraph 16.
The APR in relation to the agreement or a statement indicating that the total amount payable under the agreement is not greater than the total cash price of the goods, services, land or other things, the acquisition of which is to be financed by credit under the agreement.
16. Debtor-creditor-supplier agreements for running-account credit under which—

(a) the debtor agrees to pay the creditor an amount specified in the agreement on specified occasions;
(b) there is a credit limit; and
(1) The APR in relation to the agreement calculated on the assumptions specified in sub-paragraphs (2) and (3) below.
(2) The first assumption referred to in sub-paragraph (1) above is the assumption that—
(a) the debtor is provided with an amount of credit at the date of the making of the agreement which, taken with the amount of the charge for that credit ascertained at that date, is equal to the credit limit; and
(b) the debtor repays the sum of the amounts referred to in head (a) above by payments of the amounts specified in the agreement on the occasions specified in the agreement and makes no other payment and obtains no further credit in relation to the account.
(c) charges for credit are either—
(i) a fixed amount in respect of each transaction, or
(ii) calculated as a proportion of the price payable under a transaction financed by the credit.

[Ruby]

Re: Ok, its now my turn - Cabot Financial Court Summons

Thanks FP, so when we return back to court in January we can state that the Vanquis agreement was not properly executed due to name/address of debtor not being present in CCA Document. It is not enough to staple a piece of paper attached to a CCA agreement stating name/address and employment status, especially since this single sheet of paper was clearly just labeled 'digital application details' and makes no reference to any kind of consumer credit agreement, or forming part of.

Point 2 - no mention of credit limit
Point 3 - only examples of various APR's

As for Aqua, they did not enclose the correct reconstituted agreement. I happen to have the very first statement received after the account was opened back in 2006 and it contradicts the APR/Charges that were mentioned in the reconstituted document. Also there is a contradiction with regard to the bank name and address supplied on the reconstituted version. As I understand it under this banner the account remains unenforceable until such time they come up with the right documentation.

I hope I am on the right lines.......

[FlamingParrot]

Re: Ok, its now my turn - Cabot Financial Court Summons

Thanks FP, so when we return back to court in January we can state that the Vanquis agreement was not properly executed due to name/address of debtor not being present in CCA Document. It is not enough to staple a piece of paper attached to a CCA agreement stating name/address and employment status, especially since this single sheet of paper was clearly just labeled 'digital application details' and makes no reference to any kind of consumer credit agreement, or forming part of.

Point 2 - no mention of credit limit
Point 3 - only examples of various APR's

Going back to the post quoted below, they've not properly complied with s.78 because of the points above.

If this was, as I believe, a post-April 2007 card, then s.127 no longer applies because it was repealed with effect from April 6 2007. That means the agreement couldn't be irredeemably unenforceable even if the credit limit and APR (which are prescribed terms) were not present at the time you entered into the agreement.

You do know s78 and s127(3) are separate and distinctly different ?

S78 can be satisfied and at the same time an agreement is UE via s127(3) and that an agreement might be UE under s78(6) but be perfectly acceptable under s127(3) ?

If you sign an agreement initially which is spot on with the act and has your name and address at the time correct but request a copy vis s78 and the copy says your name is Jones instead of Smith (if for example you got married and changed your surname) it is not a true copy as it is the name AT THE TIME which is required. It'll never be irredeemably unenforceable though only temporarily until the manage to get a true copy.

If you have an agreement which you signed and it did not have a prescribed term it will be, and always will be, irredeemably unenforceable. They can still send a true copy which satisfies s78 though but that'd be the least of their worries. Of course having an irredeemable agreement is only of any use if a judge says it is UE.

[FlamingParrot]

Re: Ok, its now my turn - Cabot Financial Court Summons

As for Aqua, they did not enclose the correct reconstituted agreement. I happen to have the very first statement received after the account was opened back in 2006 and it contradicts the APR/Charges that were mentioned in the reconstituted document. Also there is a contradiction with regard to the bank name and address supplied on the reconstituted version. As I understand it under this banner the account remains unenforceable until such time they come up with the right documentation.

I hope I am on the right lines.......

You are indeed! :grin:

Again, above we have a s.78 non-compliance situation if they sent you a recon that's not accurate, however, that's a redeemable fault.

As this is from 2006, s.127 would apply here if the original agreement you entered into had been missing some of the terms, however, you would have to make an assertion to that effect. If this was an online application, it won't be easy to make such an assertion for the reasons we'd previously discussed, so we are, once more, left with the s.78 argument.

[Ruby]

Re: Ok, its now my turn - Cabot Financial Court Summons

If this was, as I believe, a post-April 2007 card, then s.127 no longer applies because it was repealed with effect from April 6 2007. That means the agreement couldn't be irredeemably unenforceable even if the credit limit and APR (which are prescribed terms) were not present at the time you entered into the agreement.

Ok, thats a bummer! What about the fact that the CCA agreement does not give any details of who the debtor is? As per my post 107.

[Ruby]

Re: Ok, its now my turn - Cabot Financial Court Summons

I have been trying to furnish myself with pre April 2007 CCA rules and post April 2007. Reading PF's guidelines have been very helpful but it seems that further discrepancies are that the APR and credit limits are another item that can be acceptable as missing pre 2007.

Please can someone tell me definitively whether a document headed as Credit Agreement regulated by the Consumer Credit Act 1974 has to contain the name and address of both parties (debtor and creditor) within the body of the document pre/post 2007 and regardless whether this 'account' was opened via the internet or by post.

[mystery1]

Re: Ok, its now my turn - Cabot Financial Court Summons

Can you clarify the question please ?

Are you on about the original agreement you signed or a a true copy of it ?

M1

[Ruby]

Re: Ok, its now my turn - Cabot Financial Court Summons

I guess a 'true copy' as it was in response to a CCA request. The 'True copy' was actually really not much more than a template of a CCA as it had no reference to anyone except Vanquis and sported various examples of APR's and no mention of credit limit. Although I do not remember this, it looks like this application for the credit card was made on line, however we have no recollection of this.

Please note I believe the court system is slightly different here is Scotland but the CCA regs are the same.

[mystery1]

Re: Ok, its now my turn - Cabot Financial Court Summons

http://www.bailii.org/ew/cases/EWHC/QB/2009/3417.html

Issue 1 (c)
It is more convenient and logical to deal with this before Issue 1 (b) which is not concerned with content at all, but form.
The Claimants all contend that the copy must contain the name and address of the debtor as at the date of the executed agreement. The Defendants deny that this is required at all.
As a matter of common sense it is difficult to see how a copy of an agreement can omit the names of the parties. It might be thought that the address of the debtor, however, was immaterial, at least to the debtor, who can be assumed to know what it was at the time, if different from his present address. However, as noted above, any application of the concept of materiality must not override the requirements of s78 and the Copies Regulations properly understood. In my view it is clear that the name and address must be provided:
(1) The name and address of the debtor would have appeared on the executed agreement and it is not suggested otherwise; a copy of the executed agreement would thus, without more, need to contain those details;
(2) Moreover those details are required by the Agreements Regulations. While Reg. 3 (2) (a) permits the omission of certain information about the debtor, this does not apply if the information was required by the Agreements Regulations. As the name and address is (see paragraph 13(1) above), the obvious implication from Reg. 3 (2) (a) is that it cannot be omitted;
(3) Even more tellingly, Reg. 3 (2) (c) permits the omission of the name and address from the s62 copy (of the unexecuted agreement). That surely entails the conclusion that outside the case of a s62 copy, the name and address is required; this is supported by the editors of Guest and Lloyd's Encyclopedia of Consumer Credit Law ("Guest") at p3200/l;
(4) As against this, the Defendants contend first that Reg. 3 (2) merely sets out a list of expressly permitted omissions. It does not mean that other omissions, entailed by an application of materiality, are not permitted. I disagree. Leaving aside what might be described "low level" omissions which could be cured by such an application (spelling errors, non-misleading presentational matters) the form of Reg. 3 suggests that it is providing a code for what is to be expected in a copy, as si 80 itself provided for in some detail. Any omission of any significance (which must include name and address) needs to be expressly permitted under subparagraph (2);
(5) On Reg. 3 (2) (c) specifically, it was said that this was entailed because it would usually be impossible to put a name and address in the s62 copy which would be presented to the debtor (for example as in the worked example) in a booklet available to all prospective applicants, before he had engaged in the application process. I follow that, but I do not see why that deprives the point made in subparagraph (3) above of its force. Indeed, it may suggest that there had to be a compelling reason (impossibility as Mr Mitchell put it in paragraph 16 (c) of his written submissions) before the omission of the name and address could be contemplated.
(6) It is also said that this view of Issue 1 (c) will place an unnecessary (and perhaps impossible) burden on lenders because it may be hard to find the original address or it may have been lost altogether because for example it was electronically overwritten by a later address. This is of course possible in theory but it is noteworthy that in the cases before me, it was not suggested that the creditors concerned could not have produced a name and address if necessary and that included the case of Yunis where none was provided, in part to keep the lis generated by that case, alive; (I canvassed this point with Ms Tolaney for HSBC on Day 2 p59 but in the event no further submissions from HSBC as to the practicality of providing in some way the original name and address were made, on the basis that there was no evidence available on the point);
(7) I am mindful of the theoretical scenario postulated which compares a failure to provide a name and address in the executed agreement itself and a similar omission in the s78 copy. In the former case, to omit the address would lead to an IEA but one which the Court could enforce under sl27 (1). On the other hand, assuming that the address was indeed on the original executed agreement but the s78 copy omitted it, the result would be continuous unenforceability under s78 (6) until and unless the address were found and inserted into or onto the reconstituted copy. The more serious state of affairs is the former yet the latter yields the harsher consequence. In abstract terms that is correct - but I have serious doubts as to whether the latter is likely to arise. See sub-paragraph (6) above;
(8) It is further said that the provision of the name and address to the very person who can be expected to know it is unnecessary and pointless. But part of that submission relies on the broader argument that the purpose of s78 and the Copies Regulations is the Current Information Purpose. However, as explained in relation to Issue 2 below, I think that is too narrow a meaning. And if - as I find in relation to Issue 2 - a copy of the original executed agreement (albeit reconstituted if the creditor wishes) is still necessary where there have been later variations, there is no reason why the copy should not, equally, include the name and address of the debtor at that time.
Having decided that question, there is the consequential question of how the creditor is to provide the original name and address. Consistent with my finding on Issue 1 (a) I take the view that it is open to the creditor to provide the name and address within the reconstituted copy from whatever source it has of those details. It does not have to take them from the executed agreement itself, which is what Mr Uff and Mrs Thompson contend. The difference between the parties here is graphically illustrated by what has happened in Carey. Initially the creditor reconstructed the executed agreement - as shown at pages 197-201 - but without the name and address filled in. Then this was added to the reconstruction from HSBC's records.
Mr Uff in particular contended that this was not s78 compliant because the name and the address did not come from the executed agreement. He said that the copy had to be of that document which on its face tied itself to the debtor. Only in that way could the debtor be assured that agreement was indeed to be attributed to him because the name and address on it was reproduced directly on to the copy. But this argument depends on the correctness of the Proof Purpose being the driver behind s78 and the Copies Regulations, which I have rejected. On the other hand, it is not as if the provision by the creditor of the name and address from its records is not of some value to the debtor. It at least indicates that the creditor has a record of the fact of this person at an identified address making an agreement at some point in the past.


M1

[nemesis45]

Re: Ok, its now my turn - Cabot Financial Court Summons

If what you have received is intended to be a " reconstituted" agreement it must have:
1 Your name and address as at the inception of the agreement.
2. The Original Creditors name and address at inception
3. The Ts & Cs at inception.
4.The Ts & Cs at closure of the account.
5. Any " material" amendments to the Ts & Cs during the life of the agreement..
6. Any other documents mentioned in the Ts & Cs.

Without these a reconstituted agreement fails to meet a CCA Request.

Pre 2007 agreements must be a proper copy of the Original agreement signed and executed.

There is some doubt on the above, but faulty agreements are being successfully challenged on pre April 2007 agreements.

[Ruby]

Re: Ok, its now my turn - Cabot Financial Court Summons

Oh heck! I wish It was more straight forward. I really like the way nemesis 45, FP and others have clearly pointed out the various sections of the CC Act, but it seems that there are many loopholes that companies such as Crapbot are abusing ......

[mystery1]

Re: Ok, its now my turn - Cabot Financial Court Summons

In my view it is clear that the name and address must be provided

It is straight forward. I just copied the whole part of the judgement to help you understand why. The quote above, however, is the position. It doesn't get any simpler than that :okay:

M1

[Ruby]

Re: Ok, its now my turn - Cabot Financial Court Summons

Thank you M1. Sorry to be such a pest, its just that Crapbot sent a CCA document that could have belonged (IMO) to our Prime Minister as it had no personally details of anyone apart from Vanquis, just examples of APRS and no mention of any credit limit provided (albeit FP said it was not necessary to provide APR and credit limit pre 2007 agreements). To my mind it was a template of a Credit Agreement. Stapled to that 'template' was a single sheet of paper headed Digital Signature Application Details giving just very basic info of name, address and employment status and making no reference to any kind of consumer credit agreement, or forming part of.