Confused with options

[Foxyflugel]

Hi everyone

Just wanted a little advice on a matter I am dealing with for someone else.

Background is she received a claim form from NCC. Sent a CPR 31.14 request and has been sent an application form (from 1998), a set of terms and conditions (from 1998) and a Key Financial Info doc (from March 2006!), a load of statements and nothing else - even though a Termination notice and default notice were included in the request. The KFI doc and T&C doc in places are pretty illegible.

However, in the 1998 T&Cs it says re - payment £5 or 3% and on the KFI doc it says £5 or 2%.

My question is - as it would seem that they have shafted her by obtaining the KFI doc in 2006 - can they change the t&cs completely (as above) 8 years later? from what she initially had?

Also, she has no money to give them - we are talking around £3k here - her & OH have split up - she has tried negotiating with them to make a monthly payment and they have refused - then sent this claim form.

I don't know where to go with this tbh. If she offers f&f can she pay this in small installments? or do they only accept lump sum payments?
Is it worth trying to negotiate before it goes to court? or for her to go to court with and I&E and offer a monthly payments what she can afford?

Many thanks in advance

Foxy

[debbbs]

Re: Confused with options

They cannot alter the Terms And Conditions of the original agreement without her permission, which would require her to sign a new agreement.

Write back pointing out the irregularities and request a legible copy of her agreement in the prescribed form. The T&C's cannot be attached on a seperate sheet, they must form part of the application, it should also state that is is a credit agreement under the CCA. If it is not in the correct form and you cannot read all of it, it does not comply with her CCA request.

Put the account in dispute and request that no further demands be made until they comply.

Debbie

[Foxyflugel]

Re: Confused with options

The thing is Debbs - she has signed the KFI doc from 2006. There is one line near the end saying 'This is an agreement under CCA 1974 sign only if you want to be legally bound by its terms' - she has signed underneath this - then there is another line which says 'I understand that I am purchasing the product selected above on credit by you and that the terms relating to the credit for the products can be found in this agreement' - no sig underneath this.

She says she can't remember signing anything - however, on the enclosed statements her credit card no then changes as from April 2006!!

I think they've shafted her by having a signature on this - but are they allowed to change the t&cs??

They provided her with an application form (no doubt - from 1998) then on a seperate sheet t&cs ((1998? £20 fee??) and then another doc which has KFI on - no a/c number stated - just her name and address.

Can they then just change her account number (+ t&cs) without her applying again?

Thanks

Foxy

[andrew1]

Re: Confused with options

If she can arrange a full and final settlement, then it is possible to pay in lump sums spread over a period of time, but it depends on their attitude I would imagine.

If she's up for going to court then if she took her I & E sheet the court may confirm a deal and at least she has the court in support thereafter. Even if it's £1 a week.

as Debbie suggests, it's imperative she gets the legible documents too.

[basa48]

Re: Confused with options

If she can arrange a full and final settlement, then it is possible to pay in lump sums spread over a period of time, but it depends on their attitude I would imagine.

If she's up for going to court then if she took her I & E sheet the court may confirm a deal and at least she has the court in support thereafter. Even if it's £1 a week.

as Debbie suggests, it's imperative she gets the legible documents too.

TBH before making any more offers of payment she should insist on the proper documentation for the account, that is:

a properly compliant agreement from the inception date (1998?) which includes the KFI which shows all the prescribed terms (i.e. interest rate. amount of credit , repayment terms) and her signature.

a properly drawn up default notice

If she doesn't recall signing anything in 2006, it is possible that the KFI with a sig is a lash up.

We really need to see copies of everything (minus personal or identifying info.) to make any real sense and decisions.

[andrew1]

Re: Confused with options

Yes I'd agree basa, but as far as agreements are concerned, courts remember often take the generic copies provided by the lender as proof of the terms and conditions. I witnessed that myself and it was a disgrace, but the judge wouldn't have our argument that a legible copy was required. He just assumed a legible copy had originally been supplied. I was a McKenzie friend and could have kicked him I was so mad, but he threatened to have me removed from the court if I continued to remonstrate. We'd lost by that stage anyway as he was just one of those judges without much CCA knowledge and faced by a LIP.

The Default Notices I definately agree and all the KFI's should be correct and present on the agreement.

For clarification, my full and final comment was not so much a recommendation to obtain one, but a response to foxy's question re making part payments once a full and final had been reached which some people feel cannot be done.

But I agree with you.

[Foxyflugel]

Re: Confused with options

Your responses are much appreciated guys - I've got a lot on my plate at the moment

The application form and t&cs docs are the ones identical to those I received from these clowns. But the KFI doc is questionable - how can they change the t&cs, your card no etc from the ones which you originally applied for?

I have attached the docs in question.

Foxy

[miliitant]

Re: Confused with options

quote

how can they change the t&cs, your card no etc from the ones which you originally applied for?


simple answer is they cant

their is recent case law to back this up

ill try and dig it out

[Foxyflugel]

Re: Confused with options

Thanks Militant

Foxy

[miliitant]

Re: Confused with options

Some issuers of store-branded credit cards may be unable to collect debts run up by some of their defaulting card holders, following a court ruling.Judge Henrietta Manners ruled at Clerkenwell and Shoreditch county court that Santander could not collect a debt of £5,126 on a Harrods card.She said this was mainly because the store card's terms and conditions were not properly supplied and signed.
But its later upgrade to credit card was also not carried out correctly.

Judge Henrietta Mannerse held that where a store card had been upgraded to a Credit Card - and no separate agreement had been sent to the customer, that the requirements of the Consumer Credit Act had not been satisfied and the debt under the credit card was unenforceable.
Applies especially to Harrods cards, Debenham cards and Marks & Spencers - (all GE Money).

http://www.bbc.co.uk/news/business-17670803
------------------------------- merged -------------------------------
regulation 7 of the Consumer Credit (Agreements) Regulations of 1983 still required the bank to supply fresh terms and conditions."Compliance with the regulation requires a copy of the fresh agreement containing the relevant prescribed information to be served on the debtor," the judge said.


http://news.bbc.co.uk/1/shared/bsp/h...wjudgement.pdf

[Foxyflugel]

Re: Confused with options

Thanks Militant.

Would the KFI doc from 2006 that has her signature on it (I won't say that she's signed as she says she can't remember signing it!!) count as a new agreement?

But they have only sent her one set of t&cs - the charge is £20 for missed payments etc - so I think this would have been from 1998?

If this is the case then they haven't sent her any new t&cs in 2006 - unless the KFI and T&Cs are one and the same - can they be? is this correct or am I barking up the wrong tree??

Thanks

Foxy :tinysmile_aha_t:

[miliitant]

Re: Confused with options

TO COMPLY WITH A CCA REQUEST THE AGREEMENT AND CURRENT t&c NEED TO BE APPLIED

you need to contact the solicitors for the claimant and inform them they have not supplied the current T&C and as such have not complied with the cpr 31.14 request

request that they confirm the current t&c are for that agreement and ask then to CERTIFY that it is the current t&c

any new agreeement that is signed would cancel out any previous agreement and t&c

also all terms on the agreement and t&c must be legible to comply with the request

[Foxyflugel]

Re: Confused with options

Hi everyone

A point I must share. I have been reliably informed that the 'illegible docs' argument does not apply for docs received under the CPR 31.14 - ONLY under an S78 request.

We have decided to call the solicitors and negotiate as I have been given guidance that there is no defence here.

Can someone give me some pointers on what kind of price they will be looking at? the total balance is around £3k - and she will have to pay it monthly

Thanks

Foxy

[labman]

Re: Confused with options

I would question the recent case law quoted. That was to do with changing the nature of the actual card from a store card to a credit card, where customers had not asked for this to happen.

I thought most T&Cshad a phrase something along the lines of 'We may change these from time to time.'

If they were not allowed to alter them, why is there such a huge issue over them supply the current T&Cs with an agreement. Surely this suggests they can be changed.

[teaboy2]

Re: Confused with options

Not sure if this has been mentioned as i only skimmed through the thread, but i believe this is the relevant legislation to use in your defence:

In response the defendants CPR31.14 request the defendant was supplied a document (Agreement and terms and conditions), a copy of which is attached, that did not comply with the requirements of the Consumer Credit Act 1974 (CCA1974), primarily as the claiment sent an illegible copy, that quite simply is illegible for the purpose required.

The relevant supporting legislation for this is the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI/1557) which states:

2 - Legibility of notices and copy documents and wording of prescribed Forms
(1) The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the [background medium upon which the information is displayed].

As the documents supplied by the creditor are largely illegible then the agreement and terms are unenforceable in law.