** WON ** LP1 - is this a valid CCA? ( Lloyds )

[Amethyst]

Re: LP1 - is this a valid CCA?

Okay kept it very brief., you might want to reword it a bit though xxxx



Dear Lowell

Thank you for your somewhat delayed response to my request for a true copy of the alleged agreement under the Consumer Credit Act section 78.

You must realise the document copy you have sent to me is not a copy of a credit agreement and does not satisfy my formal request made under Section 78(1) of the Consumer Credit Act 1974 and does not comply with the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983. The copy document you have sent me does not include the terms and conditions applicable at the time the agreement was executed or as varied and does not contain the heading prescribed by the Consumer Credit Act nor any relevant cancellation notice.

Failure to comply with the provisions of the Consumer Credit Act means that the agreement becomes unenforceable while the failure to comply persists, and the courts have no discretion to allow enforcement. For the avoidance of doubt I do not acknowledge any debt owing to your company.

Previously you have stated to me

Your credit agreement
We refer to your recent request for a copy of the original credit agreement for this account. After liaising with Lloyds in an effort to obtain this document we have been advised that it is no longer available due to the length of time since the account was opened with you
We are closing your account
At this time we have closed our file and will not make any further contact with you concerning payment against this account unless the copy of the agreement is received at some point in the future from Lloyds.

Please confirm that this remains the case.

Yours sincerely

xxxxxx

[sleslie86]

Re: LP1 - is this a valid CCA?

Thank you so much... just have 1 question relating to this bit though...

Failure to comply with the provisions of the Consumer Credit Act means that the agreement becomes unenforceable while the failure to comply persists, and the courts have no discretion to allow enforcement. For the avoidance of doubt I do not acknowledge any debt owing to your company.

I have previously made payments to this account, does that matter - and I am already paying off two debts with them that they could provide a valid CCA.

Many thanks Amethyst! x

[Amethyst]

Re: LP1 - is this a valid CCA?

Nope It just makes sure that stat barring continues accruing since you stopped making payments due to your financial circumstances - long way to go on that side, but they really can't take you to court for this debt based on the document they have sent, if they try it you can defend.

[sleslie86]

Re: LP1 - is this a valid CCA?

I might change 'any' to 'this' debt owing to your company.

Only because I am paying other debts to their company,

[Amethyst]

Re: LP1 - is this a valid CCA?

Change it how you like, its just as a starting point xx you know your case and own circumstances far better than I.

[sleslie86]

Re: LP1 - is this a valid CCA?

Hi Amethyst,

I know it's been a long time, but Lowell eventually got back to me in response to that template letter you suggested to me as seen in this thread. You mentioned to me (based on what I posted) would not satisfy the requirement of the Consumer Credit Act.

"the document you have posted on the PDF would not in itself satisfy the requirements of the Consumer Credit Act. There are no terms and conditions and no prescribed terms at all - it is solely a print out of your application - it is not a credit agreement."

I have attached their response for your perusal.

They've written that to me, + they've enclosed the Internet Banking Application ..AGAIN... this was the document I originally posted in this link + they've decided to enclose multiple copies of statements to provide evidence of the credit used by me under the facility - I have attached this image for your perusal as well.

Can you please advise on what I need to do or respond back?

Many thanks for your help.

[Amethyst]

Re: LP1 - is this a valid CCA?

It still isn't a CCA. They cannot enforce that in court under the Consumer Credit Act the account is unenforceable until they do.

There are NO prescribed terms. Have they not even tried to send you copies of the terms of the account from the right period ?

For second opinions this is the document they claim to be the CCA http://www.legalbeagles.info/forums/...6&d=1409215584



That CCA that was signed in Jan 2008 needs to be provided. It can be a recon yes, but what they have provided isn't even that.

[FlamingParrot]

Re: LP1 - is this a valid CCA?

It's a database report of an online application which doesn't require a signature (post 2005) but they should have sent the T&Cs as well.

The problem with online applications is that they can just print out any T&Cs and argue those were the ones you agreed to when ticking the box. The only way to find out whether this is true would be if there were discrepancies between the terms and actual amounts charged on statements for interest, late payment charges, etc.

[sleslie86]

Re: LP1 - is this a valid CCA?

There are NO prescribed terms. Have they not even tried to send you copies of the terms of the account from the right period ?

Nope. As I say, all I keep receiving is that IBC Credit Card Application Report / Internet Banking Application.
What about this new tactic, sending me copies of statements to prove I was using the credit facility? How does that stand in court?

They referred in their latest letter to me:

1. They have already provided me a copy of my agreement - which is the IBC Credit Card Application Report / Internet Banking Application.
2. The agreement stated a start date
3. They have sent me a recon copy which omits the signature is in compliance with the Act.
4. They believe that Lloyds have sent Lowell a true copy of the credit agreement.
5. As the facility was opened online, it is not required, or possible for them to supply a copy of the agreement that was signed.

Please note, I do not even remember going online applying for these cards!!

Right, so I have never been sent any prescribed terms since requesting the CCA - all they keep sending me is that two-page IBC Credit Card Application Report / Internet Banking Application, which is the same thing you have asked for second opinions on.

On your good judgement, how should I reply back to them?

Thanks for all your help on this x

[sleslie86]

Re: LP1 - is this a valid CCA?

Thanks FP... but I'd have to be sent those T&C's in the first place correct? You mentioned they can print off any T&C's and argue I accepted them, but what about the 'prescribed terms' - surely there are no generic T&C's for that, otherwise they'd have to doctor it?

For a credit agreement to be enforceable in a court of law it must contain a number of prescribed terms. If any contract is missing any of these prescribed terms then it can be deemed ‘unenforceable’ and the debt cannot legally be collected by the lender.

In section 127(3) of the Consumer Credit Act 1974 it clearly states;


(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).


Here is an overview of the requirements of section 127(3) of the Consumer Credit Act 1974. For a credit agreement to be enforceable it must contain the following prescribed terms;


1) Amount of credit - NO, not received by Lowell/Lloyds
There must be a term on the agreement which states the amount of credit which has been issued
2) Credit Limit - NO, not received by Lowell/Lloyds
The agreement must include regarding a credit limit or if a credit limit is not required (i.e. in the case of a loan)
3) Repayments NO, not received by Lowell/Lloyds
The agreement must contain information on how the debtor is to make repayments. This could be in the form of any of the following points;
a. Amount of repayments to be made
b. Date the repayments are to be made
c. Timing of payments
d. Frequency of payments
e. Total number of repayments (For instance, when a loan is required)
f. The power of the creditor to vary any of the above mentioned
f. The manner in which any of the above is to be determined.
4) Rate of interest - NO, not received by Lowell/Lloyds
There must be a term referring to the rate of interest to be applied to the credit agreement

So shall I write back to them and say that they still have not provided 'prescribed terms' therefore it is is still unenforceable until they do so? The CC statement copies they have sent me do not act as the 'prescribed terms' do they? The 'prescribed terms' should be with the credit agreement.

What would be the best way to handle this?

p.s. As I have mentioned, I do not specifically remember going online to apply the these Airmiles DUO cards (I really don't! - I think the bank did this on my behalf)- so how can they provide sufficient evidence that it was me that actually applied for it online?

[sleslie86]

Re: LP1 - is this a valid CCA?

:bump:

[Amethyst]

Re: LP1 - is this a valid CCA?

They have not sent you a copy of the agreement. It has NO prescribed terms. It really is not a credit agreement made online, offline or anywhere, it's just an internal report.

It is not and would not be deemed a CCA. http://www.legalbeagles.info/forums/...6&d=1409215584 For starters it doesn't state it is a Credit Agreement regulated under the Consumer Credit Act 1974 - so they fail instantly. There have to be terms and it has to be a credit agreement. Yes it can be a made up invented photoshop idea of what it might have looked like, and it doesn't need to have your signature on (if it was online it wouldnt have anyway just a tick) but it needs your address on and it needs the prescribed terms.

The statements and that would help in a standard 'balance of probabilities' case - but this is a Consumer Credit Act case and there are strong regulations for protection.

http://www.legislation.gov.uk/uksi/1.../contents/made

and of course

CCA 78 (6)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;. . .

78 Duty to give information to debtor under running-account credit agreement.

(1)The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of [F1£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 state of the account, and

(b)the amount, if any currently payable under the agreement by the debtor to the creditor, and

(c)the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

[sleslie86]

Re: LP1 - is this a valid CCA?

Thanks, I am going to response with this -

Dear Lowell

Thank you again for your somewhat delayed response to my request for a true copy of the alleged agreement under the Consumer Credit Act section 78.

You must realise (again) the document copy you have sent to me is not a copy of a credit agreement and does not satisfy my formal request made under Section 78(1) of the Consumer Credit Act 1974 and does not comply with the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983.

The copy document you have sent me does not include the terms and conditions applicable at the time the agreement was executed or as varied and does not contain the heading prescribed by the Consumer Credit Act nor any relevant cancellation notice.

You have not sent me a copy of the agreement. It has NO prescribed terms. It really is not a credit agreement made online, offline or anywhere, it's just an internal report. It is not and would not be deemed a CCA. It doesn't state it is a Credit Agreement regulated under the Consumer Credit Act 1974. Also, there have to be terms and it has to be a credit agreement with my address on and it needs the prescribed terms.

As for the statements you enclosed, they have no bearing, as this is a Consumer Credit Act case.

Please note:

CCA 78 (6)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;. . .

78 Duty to give information to debtor under running-account credit agreement.

(1)The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of [F1£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 state of the account, and

(b)the amount, if any currently payable under the agreement by the debtor to the creditor, and

(c)the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor

Failure to comply with the provisions of the Consumer Credit Act means that the agreement becomes unenforceable while the failure to comply persists, and the courts have no discretion to allow enforcement. For the avoidance of doubt I do not acknowledge this debt owing to your company.

Previously you have stated to me

Your credit agreement
We refer to your recent request for a copy of the original credit agreement for this account. After liaising with Lloyds in an effort to obtain this document we have been advised that it is no longer available due to the length of time since the account was opened with you
We are closing your account
At this time we have closed our file and will not make any further contact with you concerning payment against this account unless the copy of the agreement is received at some point in the future from Lloyds.

Yours sincerely,

xxxxxxxxxxxxxxxHow does that sound?

[mystery1]

Re: LP1 - is this a valid CCA?

It sounds to me like people are mixing up s78 and s127.

S78 needs to be a true copy of what was originally on the agreement as well as up to date terms too. It doesn't matter if there were prescribed terms, default charges or a confession from the bank manager that he was a cross dresser. If it was on the original it should be on the copy (signature is allowed to be missing as per statute). If it's a true copy then s78 has been complied with providing it has up to date terms and a signed statement.


S127 is about the content at inception. If the prescribed terms were missing at inception s127 (3) comes in to play providing the date of inception was before the April 2007 change to statute.

M1

[Amethyst]

Re: LP1 - is this a valid CCA?

In this case it is neither a true copy nor contains the prescribed terms - what they have sent just isn't the credit agreement, so we don't even need worry about prescribed terms, they haven't fulfilled s.78 yet... at all.