rbs (advanta) mint card...unenforceable agreement

[willowb]

Hi all, some of you may remember me? It's good to see you and this site ( as well as others) still going....my how you've grown!... big trousers now?:cheer2:

If you do remember me then you'll know that I was a 24/7 girl...loads of claims, a default removal and an erc etc etc....After it all (kids still very young) I was exhausted so disappeared.

Anyway, for two years this has been bugging me. My last claim was going to be against RBS Mint regarding, what I regarded to be, an unenforceable agreement but as explained, I just didn't have the energy to follow through. I'm still paying this a/c monthly through a DMC, the balance stands at about £3,700.

As far as I can remember there are 2 prescribed terms missing from this agreement (which is imo an application form) one being that there is no credit limit and two being that there is no schedule for repayments. There is a rate of interest and it has been signed by myself and stamped (inc sig) by the office.

I'm out of touch so I'm sorry if things have changed, I've had a sniff about:beagle:and think that all I've deduced is still right....can someone have a look for me please?

I'm prepared to take them on....could do with getting back in the ring....starting to get slow and fat.

Any help will be very much appreciated
Wxxx

[Mochamoo]

Re: rbs (advanta) mint card...unenforceable agreement

Welcome back Willow x

[willowb]

Re: rbs (advanta) mint card...unenforceable agreement

Thanks sweetie (thank you for remembering me :>))....it's good to see you here....like popping into a local that I haven't been in for a while!

Wxxx

[Mochamoo]

Re: rbs (advanta) mint card...unenforceable agreement

Aww course I remember you sure loads of others will too! No idea about the unenforcable agreement though! Am sure CB will be along at somepoint to have a nosy xx

[Curlyben]

Re: rbs (advanta) mint card...unenforceable agreement

You are indeed correct.
This document completely fails as a compliant credit agreement in the fcat it is missing TWO prescribed terms and the interest rate is iffy as well.

APR is NOT the Rate of Interest as prescribed by SI1983/1553, but a marketing and comparison tool used by the OC's.
The actual Rate of Interest is a different beast altogether..

[pt2537]

Re: rbs (advanta) mint card...unenforceable agreement

Wilson v First County Trust Ltd - [2001] 3 All ER 229

VC Sir Andrew Morritt

Further, it is not the omission of every term of the agreement which leads to the consequence that the court cannot make an enforcement order. There will be a failure to comply with s 61(1)(a) of the 1974 Act if the document which is signed is not in the prescribed form or does not conform to regulations made under s 60(1) of the 1974 Act. Regulations made under s 60(1) may--and, in the case of the 1983 regulations, do--require a great deal of information (in addition to terms prescribed for the purposes of s 61(1)(a)) to be included. For example, the annual percentage rate of charge for credit (APR) must be included in a regulated consumer credit agreement--see reg 2(1) of, and Sch 1 to, the 1983 regulations--but a statement of the APR is not one of the prescribed terms set out in Sch 6 to those regulations. A court is not prevented from making an enforcement order if the failure to comply with s 61(1)(a) of the 1974 Act is the omission of a term which is not a prescribed term--see s 127(3). In such a case the court may, if it thinks fit, make an enforcement order which directs that the agreement is to have effect as if it did not include the term which has been omitted from the document signed by the debtor-- see s 127(5) of the 1974 Act.

Sorry Mr Mint card, you must try harder, lol

That agreements totally unenforceable 100%,

[willowb]

Re: rbs (advanta) mint card...unenforceable agreement

Oh fab! Thank you CB and nice to meet you! Right well, I shall keep reading and make a start on a letter....gosh feels funny doing this again!

Thanks again,
wxxx
------------------------------- merged -------------------------------
And thank you PT x

[pt2537]

Re: rbs (advanta) mint card...unenforceable agreement

interestingly, they will most likely say, as their counsel did, right before we filleted his donkey, that the prescribed terms were in the terms and conditions which you recieved with the card.

if that is their submission that the prescribed terms are in the terms and conditions this is a breach of s61(1) (a) CCA 1974 as the terms must be there infront of you when you signed the document, thus if they are is the t&cs that come with the card, that is not compliant with the act full stop

[willowb]

Re: rbs (advanta) mint card...unenforceable agreement

Yes, it's all coming back to me! slowly.... I knew at the time, that I could have gone for it but....oh well nevermind!

Can you link your thread pls PT?

Wxxx

[pt2537]

Re: rbs (advanta) mint card...unenforceable agreement

sorry willow, there is no thread on that, its my day job

[willowb]

Re: rbs (advanta) mint card...unenforceable agreement

oh... sorry! .....please feel free to keep checking up on me! lol

Jxxx

[enaid]

Re: rbs (advanta) mint card...unenforceable agreement

Just popping in to say welcome back willowb, nice new avatar too.
Enaid x

[willowb]

Re: rbs (advanta) mint card...unenforceable agreement

Thanks sweetie! Yours is soooo cute :>) wherever there is pink elephants, there has got to be a little bit of happiness....or is that LSD? well, one or the other! xxx

[Amethyst]

Re: rbs (advanta) mint card...unenforceable agreement

Hey Willow xxx nice to see you again :kiss:

[willowb]

Re: rbs (advanta) mint card...unenforceable agreement

Aww thank you Am! well done on the site...it looks fab! from small acorns hey??? It's so good to see so many original people here still helping others. Thank you for the warm welcome back x
------------------------------- merged -------------------------------
Right so just looking through my files, this is how it went....

CCA request letter...

RBS MINT
Credit card operations centre
PO Box 6050
Southend-On-Sea
SS99 1WL

28th January 2007

Account number: ...
Dear Sir/Madam


I am presently striving to organise my personal information and can find no reference to the above agreement that I am presently paying money into. I require you to supply the following documentation:

Firstly, you must supply me with true copies of the agreements you refer to in these matters. This is my right under the legislation contained within section 77 (1) and section 78 (1) of the Consumer Credit Act 1974 - your obligation also extends to supply account statements. I enclose a £1 postal order in payment of the statutory fee for the account.

I also require that you supply signed true copies of the deeds of assignment of the above referenced agreements.

You are reminded that you are obliged to supply these documents, whether you are the original creditor or not, under section 189 of the CCA 1974.

As you are aware, a credit agreement that is not properly documented and signed by the customer is totally unenforceable under the CCA and therefore is a complete defence to any court claim that may be issued.


Yours Faithfully,

To which I received the 'application form' and responded...

RBS Customer Service
P.O.Box 6050
Southend On Sea
SS99 1WL

19th March 2007


Reference Number:

Dear Sir madam,


You may recall that I requested a copy of this credit agreement in my letter dated 28 January 2007.

I eventually received a letter from yourselves dated 27 Februrary 2007 enclosing a copy of the origional application form dated 28 December 1998. In case there is any doubt, I require a copy of the "executed agreement" and not the application form. As you should be aware under the Consumer Credit Act 1974 (Sections 77-79) I am entitled to receive a copy of the credit agreement on request. A copy of the credit agreement should have been supplied within 12 working days. I am shocked that the copy of the application form was sent so unprofessionally being attached merely to a letter informing me that the statements which I am entitled to by law will cost me a further £3 each on top of the required £1 postal order which I sent with my origional letter and for which I have retained a receipt.

Consequently after the passage of 12 working days from the receipt of my letter dated 28th Januray, your company was in "default" and a month after that date (13th March 2007 - 2 working days allowed for posting) your company had committed a "criminal offence"and continues to do so. I have contacted my local Trading Standards about this issue and am awaiting a response.

[quote: Consumer Credit Act 1974]

77 Duty to give information to debtor under fixed-sum credit agreement

(1) The creditor under a regulated agreement for fixed-sum credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of [£1], shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,-

(a) the total sum paid under the agreement to the debtor;

(b) the total sum which has become payable under the agreement by the debtor but remains unpaid, and the various amounts comprised in that total sum, with the date when each became due; and

(c) the total sum which is to become payable under the agreement by the debtor, and the various amounts comprised in that total sum, with the date, or mode of determining the date, when each becomes due.

(2) If the creditor possesses insufficient information to enable him to ascertain the amounts and dates mentioned in subsection (1)(c), he shall be taken to comply with that paragraph if his statement under subsection (1) gives the basis on which, under the regulated agreement, they would fail to be ascertained.

(4) If the creditor under an agreement fails to comply with subsection (1)-

(a) he is not entitled, while the default continues, to enforce the agreement; and

(b) if the default continues for one month he commits and offence.


In brief what you are required to supply me is as follows:

* 1. A copy of the original signed executed agreement. (NOT SUPPLIED)
2. A copy of any other document mentioned in the agreement [eg T&Cs relating to the year the agreement began]. (NOT SUPPLIED)
3. A statement signed by the creditor of the amount already paid by the debtor, any missed payments and their dates and how
much is still outstanding and their due dates. (NOT SUPPLIED)





* What the signature document must contain

These must be on the signature document and not on another document referred to.
1. A heading in one of the following forms of words shown prominently on the first page:
Hire-Purchase Agreement regulated by the Consumer Credit Act 1974
or
Conditional Sale Agreement regulated by the Consumer Credit Act 1974
or, in any other case,
Credit Agreement regulated by the Consumer Credit Act 1974.
Where the document embodies an agreement, of which at least one part is a credit agreement not regulated by the Act, the word ‘partly’ must be inserted before ‘regulated’ in the heading – unless the regulated and unregulated parts of the agreement can be clearly seen to be separate.
2 The name and a postal address of both trader and customer.
3 A description (in enough detail to identify it) of any security to be provided by the customer and a description of its subject matter. The description must be in the main agreement but the full terms can be in a separate document referred to in the main agreement.
4 Details of any default charges which the customer or a relative of his is required to pay if he breaches the agreement.
5 Certain financial and related particulars.
6 Statements of certain forms of protection and remedies provided for the customer by the Act.
7 A signature box (see Appendix 2 of link).

61 Signing of agreement

(1) A regulated agreement is not properly executed unless—

(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and

(b) the document embodies all the terms of the agreement, other than implied terms, and

(c) the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible.

RBS have failed to provide details as outlined above in points 3, 4, 5 and 6. There is no reference to the amount of credit being lent (credit limit) within the application form sent nor is there any reference as to how this credit was agreed to be paid. The APR as expressed in the top right hand corner of the said application form relates to the requested balance transfers but there is no information as to the APR which would have been applied to any subsequent purchases.
RBS have failed to supply the information which I required and is my right to obtain within the prescribed timescales. RBS have therefore completely negated their responsibilities under the Act. At this point in time this debt is unenforceable and I would be within my rights to stop all payments.

I am generously allowing you another 14 days from the date of this letter to provide all the documentation required under the Consumer Credit Act 1974, if after the 14 days has expired I will be stopping payments to RBS as the debt is unenforceable. If you do fail to provide said documentation in it's entirety and proper format then your only option to reinforce the debt is to apply for a Court order, if you fail to get the debt enforced and are found guilty of breaching the CCA then you are liable for a fine of up to £2,500.

I look forward to hearing from you.

Yours Faithfully

I then wrote to TS...

Lancashire County Council Trading Standards
58-60 Guildhall St
Preston
Lancashire
PR1 3NU

Mrs Willow B
Removed address

22nd March 2007

Dear Sir/ Madam,
I recently sent an email to yourselves (attached with copy of application form) concerning a problem I am having with RBS at the moment, I have not had a response to this email as yet. RBS have not fully complied with my CCA request and I am corresponding with them still in the hopes that they will send to me the documentation I am entitled to by law and that they need to enforce the debt.
I wrote to them recorded delivery on the 28th January requesting the information (letter enclosed). I eventually received a response from RBS dated 27 Februrary 2007 enclosing a copy of the origional application form dated 28 December 1998 (letter enclosed). In case there is any doubt, I require a copy of the "executed agreement" and not the application form. As you know under the Consumer Credit Act 1974 (Sections 77-79) I am entitled to receive a copy of the credit agreement on request. A copy of the credit agreement should have been supplied within 12 working days. A copy of the application form was sent attached merely to a letter informing me that the statements which I am entitled to by law will cost me a further £3 each on top of the required £1 postal order which I sent with my origional letter and for which I have retained a receipt.

[quote: Consumer Credit Act 1974]

77 Duty to give information to debtor under fixed-sum credit agreement

(1) The creditor under a regulated agreement for fixed-sum credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of [£1], shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,-

(a) the total sum paid under the agreement to the debtor;

(b) the total sum which has become payable under the agreement by the debtor but remains unpaid, and the various amounts comprised in that total sum, with the date when each became due; and

(c) the total sum which is to become payable under the agreement by the debtor, and the various amounts comprised in that total sum, with the date, or mode of determining the date, when each becomes due.

(2) If the creditor possesses insufficient information to enable him to ascertain the amounts and dates mentioned in subsection (1)(c), he shall be taken to comply with that paragraph if his statement under subsection (1) gives the basis on which, under the regulated agreement, they would fail to be ascertained.

(4) If the creditor under an agreement fails to comply with subsection (1)-

(a) he is not entitled, while the default continues, to enforce the agreement; and

(b) if the default continues for one month he commits and offence.


In brief RBS have supplied/not supplied the following:

* 1. A copy of the original signed executed agreement. (NOT SUPPLIED)
2. A copy of any other document mentioned in the agreement [eg T&Cs relating to the year the agreement began]. (NOT SUPPLIED)
3. A statement signed by the creditor of the amount already paid by the debtor, any missed payments and their dates and how
much is still outstanding and their due dates. (NOT SUPPLIED)





* What the signature document must contain

These must be on the signature document and not on another document referred to.
1. A heading in one of the following forms of words shown prominently on the first page:
Hire-Purchase Agreement regulated by the Consumer Credit Act 1974
or
Conditional Sale Agreement regulated by the Consumer Credit Act 1974
or, in any other case,
Credit Agreement regulated by the Consumer Credit Act 1974.
Where the document embodies an agreement, of which at least one part is a credit agreement not regulated by the Act, the word ‘partly’ must be inserted before ‘regulated’ in the heading – unless the regulated and unregulated parts of the agreement can be clearly seen to be separate.
2 The name and a postal address of both trader and customer.
3 A description (in enough detail to identify it) of any security to be provided by the customer and a description of its subject matter. The description must be in the main agreement but the full terms can be in a separate document referred to in the main agreement.
4 Details of any default charges which the customer or a relative of his is required to pay if he breaches the agreement.
5 Certain financial and related particulars.
6 Statements of certain forms of protection and remedies provided for the customer by the Act.
7 A signature box (see Appendix 2 of link).

61 Signing of agreement

(1) A regulated agreement is not properly executed unless—

(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and

(b) the document embodies all the terms of the agreement, other than implied terms, and

(c) the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible.

RBS have failed to provide details as outlined above in points 3, 4, 5 and 6. There is no reference to the amount of credit being lent (credit limit) within the application form sent nor is there any reference as to how this credit was agreed to be paid. The APR as expressed in the top right hand corner of the said application form relates to the requested balance transfers but there is no information as to the APR which would have been applied to any subsequent purchases. There are no terms and conditions included either.
RBS have failed to supply the information which I required and is my right to obtain within the prescribed timescales. RBS have therefore completely negated their responsibilities under the Act.

I am interested in your advice over this situation as I have written to RBS again to ask for the relevant documentation and have given them a further 2 weeks in which to comply with this request.

I look forward to hearing from you.