Unenforceability General Questions & Answers

[Enforcer]

Re: Unenforceability General Questions & Answers

Can anyone help with the following. If the application form, becomes the agreement, but the application also has box ticked for PPI, do the terms and conditions for PPI have to be included at the time of signature?
Would a s78 reply also have to include those terms and conditions?

[cardiac arrest]

Re: Unenforceability General Questions & Answers

[QUOTE=PriorityOne;317253]If it says "application form" then I would be challenging on that basis, since at that stage you're merely applying.... I also wouldn't be bogging myself down with thoughts of court. Flush them out.... You're nowhere near court.

Until/unless they send an enforceable CCA, they need to know that you know they're on a road to nowhere with this.[/QUOTE]

I'm just information gathering at the moment, just in case things become 'difficult' later..always best to know how strong your hand is I think (or not as the case may be). Ideally this will die a slow and quiet death until SB, well that's the plan anyway. ;)

Not sure about the 'application form' thing, was under the impression all these became 'agreements' due to the wording printed on the application form...:s

[Enforcer]

Re: Unenforceability General Questions & Answers

Look at the application form, does it contain words such as when we consider your application. If so it would be a prospective regulated agreement.

[The Tech Clerk]

Re: Unenforceability General Questions & Answers

Wording" for the purpose of this application" found within a MBNA application/signature form? also mention E-Mails from them, anybody know when e-mail really got under way?

[Enforcer]

Re: Unenforceability General Questions & Answers

Have you sent copy to Niddy

[mystery1]

Re: Unenforceability General Questions & Answers

[QUOTE=Enforcer;317284]Look at the application form, does it contain words such as when we consider your application. If so it would be a prospective regulated agreement.[/QUOTE]

[url="http://www.bailii.org/ew/cases/EWCA/Civ/2011/67.html"]http://www.bailii.org/ew/cases/EWCA/Civ/2011/67.html[/url]

M1

[Enforcer]

Re: Unenforceability General Questions & Answers

[QUOTE=Enforcer;317267]Can anyone help with the following. If the application form, becomes the agreement, but the application also has box ticked for PPI, do the terms and conditions for PPI have to be included at the time of signature?
Would a s78 reply also have to include those terms and conditions?[/QUOTE]

Question answered.

See thread by Paul in Forum Case Law Database.
Article by Professor Geraint Howells professor of commercial law, university of Manchester, Barrister.

What must be provided is a "true copy" of the executed agreement and any document referred to in it (such as PPI)

So, if there was a box ticked, for PPI. The creditor must also send a copy of that document to comply with a S78 request. Otherwise it is UE until they do.

[PriorityOne]

Re: Unenforceability General Questions & Answers

[QUOTE=cardiac arrest;317274]I'm just information gathering at the moment, just in case things become 'difficult' later..always best to know how strong your hand is I think (or not as the case may be). Ideally this will die a slow and quiet death until SB, well that's the plan anyway. ;)

Not sure about the 'application form' thing, was under the impression all these became 'agreements' due to the wording printed on the application form...:s[/QUOTE]

No.... an application doesn't morph into an Agreement. There are some that can double-up as both (so to speak) but the wording on these documents is far more specific re. interest, total amount payable, terms & conditions and so on. I've only ever come across two such applications that would be considered enforceable.

[oscar]

Re: Unenforceability General Questions & Answers

I have had a creditor and DCA try the arguement that an Application was a Credit Agreement beacuse "[B]it says at the bottom where you signed this is a credit agreement regulated by[/B]...."

I pointed out I could right that on a Tesco reciept! - Didnt have an answer to that.

Wouldnt recommend saying that - as P One says, rarely, they can be both, but majority are just "applications"

[mystery1]

Re: Unenforceability General Questions & Answers

Given Brophy, as i linked to above, and Carey i wouldn't run that argument. You'd have no chance.

If the application form is incapable of being a credit agreement then you are going down the route of Wegmuller which does provide much improved prospects.

M1

[cardiac arrest]

Re: Unenforceability General Questions & Answers

[QUOTE=mystery1;317507]Given Brophy, as i linked to above, and Carey i wouldn't run that argument. You'd have no chance.

If the application form is incapable of being a credit agreement then you are going down the route of Wegmuller which does provide much improved prospects.

M1[/QUOTE]

Sorry, you've all lost me.....:\

Are you saying if an application which does not have the appropriate terms within the document when signed by the 'debtor'...it remains an application and not an agreement, albeit an unenforeceable agreement ? is this just a play on words, because surely if it is UE it doesn't really matter what it's called does it...although I have a feeling I'm missing something here....:s

[PriorityOne]

Re: Unenforceability General Questions & Answers

[QUOTE=mystery1;317507]Given Brophy, as i linked to above, and Carey i wouldn't run that argument. You'd have no chance.

If the application form is incapable of being a credit agreement then you are going down the route of Wegmuller which does provide much improved prospects.

M1[/QUOTE]

What do you mean by "no chance"?...

*Edit*.... Just re-read and get where your coming from, although not sure Carey would be entirely useless here.

[PriorityOne]

Re: Unenforceability General Questions & Answers

[QUOTE=cardiac arrest;317509]Sorry, you've all lost me.....:\

Are you saying if an application which does not have the appropriate terms within the document when signed by the 'debtor'...it remains an application and not an agreement, albeit an unenforeceable agreement ? is this just a play on words, because surely if it is UE it doesn't really matter what it's called does it...although I have a feeling I'm missing something here....:s[/QUOTE]

If it's UE, then who cares what it's called....

[oscar]

Re: Unenforceability General Questions & Answers

[QUOTE=mystery1;317507]Given Brophy, as i linked to above, and Carey i wouldn't run that argument. You'd have no chance.

If the application form is incapable of being a credit agreement then you are going down the route of Wegmuller which does provide much improved prospects.

M1[/QUOTE]

Hence why I said...

[QUOTE=oscar;317504]
Wouldnt recommend saying that - [/QUOTE]

I stated it to a DCA, over the phone. This was (I am fairly sure) before some of the more recent rulings (inc. Brophy)

Given my background, it was more to have "fun" with the person I was speaking to at that time. However things change (sometimes rapidly) and there is a need to adapt to new arguements

[mystery1]

Re: Unenforceability General Questions & Answers

If you argue it's an application form and because it's only an application form it's unenforceable then you'll lose.

If you say what they have needs prescribed term(s) and prescribed term(s) x are not there then you win.

Application forms which were capable of being proper agreements were not that rare. There are plenty in the Carey judgement alone.

M1