Unenforceability General Questions & Answers

[PriorityOne]

Re: Unenforceability General Questions & Answers

[QUOTE=mystery1;317514]

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

M1[/QUOTE]

Generally speaking, that's what the vast majority of application forms lack.... and people need to look out for this.

[Enforcer]

Re: Unenforceability General Questions & Answers

This is why I have stated that Gemma Anderton from Barclaycard executive office stated that the prescribed terms "would" have been on the reverse. I have asked for a reconstituted version of my application form, together with a copy of the prescribed terms, that "would" have been on the reverse.

[Never-In-Doubt]

Re: Unenforceability General Questions & Answers

[QUOTE=mystery1;317514]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[/QUOTE]

The easiest way of describing it is that you ought to have seen and agreed to the prescribed terms PRIOR to signing or receiving any credit. If you did not then its likely to be unenforceable.

So if they sent an application form and terms came later in a booklet it's unenforceable. If however they sent an application form which had the prescribed terms on the front (back or linked) and you seen them PRIOR to receiving the credit product then it's likely to be enforceable.

In layman :)

[Never-In-Doubt]

Re: Unenforceability General Questions & Answers

[QUOTE=Enforcer;317518]This is why I have stated that Gemma Anderton from Barclaycard executive office stated that the prescribed terms "would" have been on the reverse. I have asked for a reconstituted version of my application form, together with a copy of the prescribed terms, that "would" have been on the reverse.[/QUOTE]

Ok so say she supplies these terms as was and the prescribed terms are missing/incomplete? Then what?

For the same respect; are you able to categorically deny that you seen them on the reverse?

Just wondering what your views are :beer

(There's a reason I'm asking just two questions....)

[PlanB]

Re: Unenforceability General Questions & Answers

[QUOTE=Never-In-Doubt;317520] For the same respect; are you able to [B][COLOR=plum]categorically deny that you seen them on the reverse[/COLOR][/B]? [/QUOTE]

That's what Mayhew did in [I]Santander vs Mayhew[/I] in Paragraph 11 of the judgement here:

[URL]http://forums.all-about-debt.co.uk/showthread.php?t=6821[/URL]

[Never-In-Doubt]

Re: Unenforceability General Questions & Answers

[QUOTE=planB;317521]That's what Mayhew did in [I]Santander vs Mayhew[/I] in Paragraph 11 of the judgement here:

[URL]http://forums.all-about-debt.co.uk/showthread.php?t=6821[/URL][/QUOTE]

Oh yes indeed I remember - they hated that :lol

[PlanB]

Re: Unenforceability General Questions & Answers

My point is saying "I don't recall seeing the Ts&Cs on the reverse of the application form" is an option but stating "I never saw them [B][COLOR=navy]because they weren't there[/COLOR][/B]" is better (if that's true obviously).

If you say you "don't recall seeing them" you leave yourself open to the creditor saying "we always had them on the reverse because that's what we do as a matter of practice and here's an example" and a DJ will believe them and presume you have a "selective memory" which is what Mayhew (Plan B) was accused of in court.

[Never-In-Doubt]

Re: Unenforceability General Questions & Answers

So you have Sussed out why I asked Enforcer the two questions above lol.

Spoilsport. But yea; that's the reason.

Forget what the bank say/send/claim - what really matters is YOUR recollection of events. If the PT's weren't there; they weren't there. You can argue that all day long in court but see the problem is when people lie and the bank produce the actual original and show it to the judge.

Hence it's imperative to know what cards (or paperwork) the OC actually does have as that would surely sway your memory cells if it ever got to court ;W ;W

In enforcers case the bank stated the terms were on the reverse. I believe them, usually they were BUT the PT's were not. These were on the main application page as matter of course. I suspect this one is an older type agreement (pre-2005) which would show the PT's on a secondary sheet - which sometimes came with the application but didn't come at all a lot of the time if it was a flyer/phone application.

Sooooo - could be interesting :)

[Enforcer]

Re: Unenforceability General Questions & Answers

This dates back to year 2000. However, there is no signature on behalf of the creditor either. It's up to them to supply a "true copy" of the application form together with prescribed terms that "would" have been on the reverse.

[Never-In-Doubt]

Re: Unenforceability General Questions & Answers

Quite but lack of creditor signature in itself is not a fight worth taking....

[cardiac arrest]

Re: Unenforceability General Questions & Answers

I'm in the same boat as Enforcer, although my application form stated (now I can read it) 'See Conditions of Use overleaf"...

The copies the bank have sent are all blank on the reverse....and the Conditions of use they have now supplied me with wouldn't have fitted on the reverse anyway...?

I just wish I could find someone else who had the same card application at the same time from the same place, as my memory at the moment isn't 100% from 2002. The best I could say at the moment is I'm about 90% sure there were no interest rates shown on the back of the application form because I was too excited about the Interest Free period that was advertised ..

[PlanB]

Re: Unenforceability General Questions & Answers

[QUOTE=Never-In-Doubt;317554]Quite but lack of creditor signature in itself is not a fight worth taking....[/QUOTE]

I reluctantly agree with that. Paul has previously said that a stamp, "X" or other marking can be a signature for the purpose of executing a documant according to case law [I]Goodman vs J Eban[/I]

[URL]http://forums.all-about-debt.co.uk/showpost.php?p=307906&postcount=279[/URL]

[I]*Sorry for the link but I can't cut & paste into posts yet :doh[/I]

[Enforcer]

Re: Unenforceability General Questions & Answers

Unless a hand written sort code and reference number. Or a bar code sticker with my name on it constitute a signature, there is no signature on behalf of the creditor.

[Enforcer]

Re: Unenforceability General Questions & Answers

[QUOTE=Never-In-Doubt;317524]So you have Sussed out why I asked Enforcer the two questions above lol.

Spoilsport. But yea; that's the reason.

Forget what the bank say/send/claim - what really matters is YOUR recollection of events. If the PT's weren't there; they weren't there. You can argue that all day long in court but see the problem is when people lie and the bank produce the actual original and show it to the judge.

Hence it's imperative to know what cards (or paperwork) the OC actually does have as that would surely sway your memory cells if it ever got to court ;W ;W

In enforcers case the bank stated the terms were on the reverse. I believe them, usually they were BUT the PT's were not. These were on the main application page as matter of course. I suspect this one is an older type agreement (pre-2005) which would show the PT's on a secondary sheet - which sometimes came with the application but didn't come at all a lot of the time if it was a flyer/phone application.

Sooooo - could be interesting :)[/QUOTE]

No reference to prescribed terms on the signature page. No reference to them being enclosed, attached or in outer space. But even with a magnifying glass I cannot make out everything. Particularly with a bar code sticker covering up some of the words.

I would never have picked up on the cancellation clause if they had not typed it up in big letters. Thank you Barclaycard you stated that the cancellation notice would be posted to me, it was, on the same document as the terms and conditions!

[Oldandblue]

Re: Unenforceability General Questions & Answers

Hiya Don't have a clue what I'm doing been told to consider UE on bank loan
SAR and letter from bank. No paperwork account to old But this has been sold to CABOT they say not a loan it's a current account /overdraft not entitled to s77/79 Pay up
Also advised complain to FOS as bank turned this loan into an overdraft really need to get this right this time but its such a mess. So if I go for UE do I just ignore everything and see what happens Thanks