CCA requests- Meaning of Executed Agreement.

[dori2o]

I have sent a CCA request to one of my creditors and they have responded with the following.

When entering into a credit agreement with you, we were required to send you three copies of the agreement. The first copy (set out as an application form) was sent out in duplicate. One copy would have been signed by you and returned to us. The second copy (unexecuted, in that it would not have been signed by us) would have been yours to keep. The third copy sent to you would be an executed copy of the agreement, as by that stage it would have been signed by you and us. We do not send out a version that shows both signatures, but nevertheless send an executed copy which is the 'card carrier' copy sent with your American Express credit card.
This executed copy excludes the signatures, but nonetheless complies with the "true copies" requirement of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983. These regulations allow us to omit any signature and/or signature box, so although the card carrier is the executed copy, it does not have to include our respective signatures. On the basis that you received and have been using your credit card, we can only assume that you have been provided with the card carrier and therefore the executed copy of the agreement.

Now my question is this.

When responding to a CCA request I am aware that the agreement supplied must contain all the prescribed terms.

However, does this document that they send have to be the signature document. Would they get away with supplying what they refer to as the 3rd copy or Card carrier, or does the executed agreement have to contain the signatures?

[Curlyben]

Re: CCA requests- Meaning of Executed Agreement.

The Card Carrier is TOTALLY unacceptable as an executed agreement under CCA.
This cobblers stems from the last Rankine Judgement as it total rubbish.

Now while they are, almost, correct, the agreement MUST still contain all of the prescribed terms and your personal details. Shame they quoted the wrong SI there as well.
It's SI 1983/1553 Consumer Credit (Agreements) Regulations and NOT SI 1983/1561 Consumer Credit (Enforcement, Default and Termination Notices) Regulations.

Typical Amex seem to be relying heavily on this carppy judgement.

Have they sent you anything that even comes close to an agreement ?

[dori2o]

Re: CCA requests- Meaning of Executed Agreement.

The only thing they have sent is a copy of the application form from 2001, it has no prescribed terms, and is as it says it is, an application form.

See here:



I'm looking for a paragraph to put in my next letter that refers to this matter regarding the Card Carrier, just a short paragraph that tells them in uncertain terms that I do not accept what they have said, can anyone suggest anything?

[Sapphire]

Re: CCA requests- Meaning of Executed Agreement.

Here hun have a read of Curly's guide Legal Beagles oh and letter #7 is good and you could adapt it for your own needs.

[dori2o]

Re: CCA requests- Meaning of Executed Agreement.

UPDATE:

I have had a reply from Newmans!!!!!!!

They have sent me a copy of my application form and some terms and conditions which they claim are from the account I have with Amex.

There is a signature box on the bottom of page 1 of the T&C's that has no signature in it.

Also the minimum payment section says 2.5% of the balance, when I took out the card in 2001 it was 3.5%.

Where it talks about late payment fees it says that they are £8, but when I took out the agreement they were £25.

So, am I right in thinking that they have supplied the current T&C's for this account? Does this meet their requirements under the CCA 1974 request? Does this now make the debt enforceable?

[Curlyben]

Re: CCA requests- Meaning of Executed Agreement.

This is taken from another thread;

Under SI 1983/1553 the prescribed terms MUST be within the signature document to be valid, having them on a seperate sheet headed T&C or similar ISN'T acceptable.

SI 1983/1553 (6 Signing of agreement) which states that the prescribed terms MUST be within the signature document. (Column 2 schedule 6)

This applies to all agreements pre May 2005.
So basically this is unenforceable, under 127(3).

Just to add to my comments re terms witin signature doc.
This was covered off in Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting the provisions of the two schedules the Judge said

33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated.
As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the minimum terms) are to be found in Schedule 1.

BUT with Rankine they seem to be under the impression that this DOESN'T apply any longer...
oh dear.

[dori2o]

Re: CCA requests- Meaning of Executed Agreement.

So, what should my next move be. Do I write explaining that what they have send does not fulfil the request?

Is my basis for this being that these are not the T&C that were contained within the signature document? Should I explain that I believe these to be the current T&C and therefore not what was contained within the signature document?

Do I quote to them Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

[Curlyben]

Re: CCA requests- Meaning of Executed Agreement.

Throw this at them

Thank you for your letter of 21st Jan 09 which I have read with interest.

As you are no doubt unaware the enclosed documentation in no way complies with the consumer Credit Act 1974 (CCA) in so far as it is completely lacking any of the prescribed terms requried for a credit agreement.
The prescribed terms specified in Sch 6 of Consumer Credit (Agreements) Regulations 1983 SI1553 are as follows:

* credit limit
* repayments
* rate of interest

There is no mention of any of these terms in the Amex Application form and as such this document has no validity in law as a regulated credit agreement.

As such this is a clear breach of s61(1) of CCA

* 61.—(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.

Futhermore this document is totally unenforceable in a court of law as laid out in CCA s127(3)

* 127.-(3) The court shall not make an enforcement order under section 65(1) if section
61(1)(a) (signing of agreements) was not complied with unless a document (whether
or not in the prescribed form and complying with regulations under section 60(1))
itself containing all the prescribed terms of the agreement was signed by the debtor or
hirer (whether or not in the prescribed manner).

This was also addressed in Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting the provisions of the two schedules the Judge said:


* 33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated.

Also in the case of Wilson v First County Trust Ltd [2001] 3 All ER 229, Sir Andrew Morritt said:

* 26 The recognition that there is nothing in the 1974 Act which prevents an improperly executed regulated agreement from giving rise to contractual rights, nor which prevents the right to possess goods pawned as security passing on delivery of the goods, provides the answer, as it seems to us, to the principal argument advanced on behalf of the Secretary of State in support of his submission that there is nothing in s 127(3) of the 1974 Act which is incompatible with convention rights. It was said, in effect, in relation to art 1 of the First Protocol, that, where there was no document signed by the debtor--or where the document signed by the debtor did not contain all the prescribed terms of the agreement--neither the agreement, nor the delivery of the pawn, conferred any enforceable rights on the creditor. So, in the present case, the creditor had no relevant 'possessions' to the peaceful enjoyment of which it was entitled, or of which it was deprived by s 127(3) of the 1974 Act. In effect, the creditor--by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms--must (in the light of the provisions in ss65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift, of the loan moneys to the debtor. The creditor had chosen to part with the moneys in circumstances in which it was never entitled to have them repaid; so there is nothing to engage the rights guaranteed by art 1 of the First Protocol. Nor, on that analysis, does the creditor have any civil rights in respect of which it is entitled to a fair and public hearing by an independent and impartial tribunal. Article 6 of the convention is not in point.

So in a nut shell the lack of prescribed terms renders this agreement unenforceable and the moneys an gift that was never intended to be repaid.

Should your client now continue with this legal action as stated in your letter, I will welcome the opportunity for a judge to look at several offences committed by Amex under CCA, as well as your client’s non-compliance with and total disregard for the law on this occasion.

Therefore you have 14 days from receiving this letter to contact me with your intentions to resolve this matter.

I would appreciate your due diligence in this matter.

I await your rapid response.

You'll need to tidy the formating while you are reading it through.

[dori2o]

Re: CCA requests- Meaning of Executed Agreement.

As you are no doubt unaware the enclosed documentation in no way complies with the consumer Credit Act 1974 (CCA) in so far as it is completely lacking any of the prescribed terms requried for a credit agreement.
The prescribed terms specified in Sch 6 of Consumer Credit (Agreements) Regulations 1983 SI1553 are as follows:

* credit limit
* repayments
* rate of interestoin

The T&C they have sent doinclude these terms,however they are the current T&C's not the ones that would have been on the back of the application, they have not supplied those as yet. Do I need to amend the letter with respect to this, and if so what do I need to say.

Many thanks for your help.

[Curlyben]

Re: CCA requests- Meaning of Executed Agreement.

The T&C's are TOTALLY meaningless in this case, as per my comments in post #6 !!!!!

In pre 2005 agreements ALL of the terms MUST be within the signature document.

[dori2o]

Re: CCA requests- Meaning of Executed Agreement.

OK then.

Will send the letter.

Many Thanks again.

[dori2o]

Re: CCA requests- Meaning of Executed Agreement.

Today I got this from Newmans

We are writing in response to your unsigned letter dated 24th March 2009.

You have stated that we have failed to satisfy your request. If you have retained a copy of your original agreement, you will note that on the reverse of the Agreement are the original terms and conditions applicable to the account. Our copy of the aggreement and the terms and conditions issued to you correspond directly to your agreement.

We have previously provided you with a copy of the application form, and from that you will see it is clear that by signing the form you were entering into a credit agreement. The signature box contains the phrase, 2This is a Credit agreement regulated by the Consumer Credit Act 1974. Sign only if you want to be legally bound by its terms".

When entering into a credit agreement with you, Amex were required to send you three copies of the agreement. The first copy (set out as an application form) was sent out in duplicate. One copy would have been signed by you and returned to Amex. The second copy (unexecuted, in that it would not have been signed by Amex) would have been yours to keep. The third copy would be an executed copy of the agreement, as by that stage it would have been signed by you and amex. We do not send out a version that shows both of the signatures, but nevertheless send an executed copy, which is the card acrrier copy sent with your american express card.

This executed copy excludes the signatures, but noetheless complies with the "true copies" requirement of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983. These regulations allow Amex to omit and signature and/or signature box. On the basis that you received and have been using the card, we can only assume that you have been provided with the card carrier and therefore the executed copy of the agreement.

You refer to the ac**** being in Dispute. However OFT guidelines state:

"By 'disputed' we mean genuinley disputed. We are not seeking to protect 'won't pays' but those who are being pursued for a debt they do not owe or genuinley believe they do not owe. Debt collectors who can show that the debt is due and that any dispute has been looked into and the debt confirmed will not be in breach of this provision"

We are in no doubt as to the fact that this debt is genuinley owed by you, and believe that since your account was opened you have been provided with all documents necessary to evidence the debt.We have made every effort to respond fully to your requests where appropriate, and hope that our correspondencehas allayed any concerns you may have in relation to your agreement with us.

We do not believe that we can assist you any more than we have already done, and therefore ask that you direct any ongoing grievances in this matter to the Financial Ombudsman Service. We will not enter into any further correspondence with you on these particular issues.

Your file has now been passed to our solicitors 'Copes' whom will be contacting you soon.

So, what do I do now?

If I go through the FOS what the chanceof them siding with Amex/Newmans?

If I go via the FOS, surelythat puts the account in dispute, so 'Copes' would have to wait for any resolution before they can proceed with their threats?

Any advice appreciated

(I have the e-mail address of the person who has written to me, is it worth writing to him or is this really their final answer?)