Prescribed terms...again..

[Enforcer]

Re: Prescribed terms...again..

Just sit tight,missing prescribed terms as you say. Not a lot anyone can do.

[cardiac arrest]

Re: Prescribed terms...again..

The important one is,cancellation notice,you will notice that this is with the terms and conditions that were sent to you in the post. Hence the document you signed was nothing more than an application form.Non complaint with s61,

Thank you Enforcer...

yes indeed..because the application form did state 'to follow'...and there it is...whereas the original t and c 's that might have been given to me would also have said 'to follow'...

the difference I suppose between s78 and s61...is what they have sent for s78 is the executed agreement, ie the one 'signed' by the bank and then returned with my new card at the time...with the details of cancellation procedures...which , what you say, doesn't satisfy s61 ?

I hadn't considered it from this angle before, for some reason, but I suppose s78 is for information purposes only and doesn't give you any clue really if the OC holds the original t and c's that were supposedly attached with the application form I picked up.

Not sure where this leads me to be honest...

[Enforcer]

Re: Prescribed terms...again..

The important one is,cancellation notice,you will notice that this is with the terms and conditions that were sent to you in the post. Hence the document you signed was nothing more than an application form.Non complaint with s61,

[cardiac arrest]

Re: Prescribed terms...again..

Have been thinking about this... .....

So...my CCA request provided -

a) A photocopy of the front sheet of a signed copy of the credit agreement AFTER it was approved by the Bank (as it has my name /address typed on it in place of my handwriting).

Fair enough I suppose...they typed that info onto a sticky label , with some internal reference numbers, and stuck it over my original handwritten details...

b) A photocopy of the Conditions and the General Conditions which were sent to me after my application had been approved (including prescribed terms)...not those present at the point of signing.

How do I know this ? Well the application form says 'exact details of how and when (you can cancel) will be sent to you by us' ..and those details are in the above ..so it must be after .
In addition they have my name and address and credit limit (albeit the wrong amount) and credit card number .... already typed on these pages..

Not sure if this has any significance at all really...?

The CCA request also produced an odd thing...a copy of a letter which suggests they have sent a replacement credit card to me..dated some 12months AFTER my account had been defaulted ??? I wondered if this was intended to show what 'would have' been on the reverse of the application form ..ie the prescribed terms...and indeed on the reverse it does talk about credit limits...payments due and the interest rates applicable...but it fails because the already agreed credit limit is typed into the narrative of this form..and the interest rates are not those applicable at the time.. .so yet again, this is not from the time of signing the application form.

To sum up then.. all the info sent to me from my CCA request are copies of what was sent to me after the application had been approved, and not before.

Does this still mean they have complied with a CCA request...?

[cardiac arrest]

Re: Prescribed terms...again..

Thats a tough one. for a credit card (which i assume this is) the regs state that the T&Cs must have:

A term stating the credit limit or the manner in which it will be determined or that there is no credit limit.

so from your example they seem to have a mis stated prescribed term on the one hand but have gone on to comply on the other. The term they have provided doesnt state the credit limit - it states a different credit limit that is not yours. It does however state "the manner in which it will be determined" if i understand what you are saying. Not sure i would want to be in front of Waksman arguing that one. The creditor might be a touch nervous too though. It should give you negotiation room though. I will have dig to see if there are any cases bang on point for that.

That's very good of you, thank you.

As an aside...when my copy of the application/agreement arrived (I didn't keep a copy) I noticed there were little 'sign posts' on it, in the form of padlocks....these are for use of my personal data and it says it is important that I have read and understood the sections with a padlock next to them..both on the application form itself, including the back page..and in the product terms and conditions. By signing these sections I give permission for them to use my personal data etc etc..

But...

The there is no copy of any 'back page', and the copy of the 'terms' do not have any padlocks either...although one does appear in the general conditions.

Now I know they like to confuse us with terminology, as if 'terms and conditions' is all one thing when in fact it is three things...the terms (embracing prescribed terms)....the conditions and then the general conditions...which they have clearly separated within the pile of paperwork and refer to as separate sections. maybe I'm just nit picking ?

Another anomaly is where the application form states.."I accept and agree to be be bound by the conditions and details of the card as set out overleaf.." but as I've said...there is no overleaf... on the s78 copy they have sent me.

So that's no back page, and no overleaf. So they've missed sending something...which may well mean they don't have it ..maybe they'll say there 'would have' been something..........

[ATW]

Re: Prescribed terms...again..

If a creditor, on a s78 request, states anything other than "A term stating the credit limit or the manner in which it will be determined or that there is no credit limit." then the chances are it is bog roll. Most credit card applications do not have a limit agreed before you sign !

M1

some have a "pre approved" (or however they phrase it) limit.

If the s78 request has not produced a true copy of the agreement then s78 (6) prevents enforcement but that can be cured.

If it has produced them then you move on to whether was enforceable when signed and if it has mis stated or missing prescribed terms its dead and cant be revived. The question then is whether that clause is a properly stated prescribed term.

Can the agreement be put uploaded into the secure section (Can someone put a link in or however its done please) so we can have a look at it to see the wording? Its easier to be more specific once what we are talking about can beseen and read properly.

[mystery1]

Re: Prescribed terms...again..

If a creditor, on a s78 request, states anything other than "A term stating the credit limit or the manner in which it will be determined or that there is no credit limit." then the chances are it is bog roll. Most credit card applications do not have a limit agreed before you sign !

M1

[ATW]

Re: Prescribed terms...again..

One small point though...obviously the terms have to be present at the time of signing...and Banks get round the credit limit requirement by explaining the methodology rather than stating what it actually is, because at this stage they haven't actually approved the application...But if the s78 copy of the terms states a wrong credit limit does that invalidate the requirement for it to be a true copy even though they go on to state the methodology by which the credit limit will be determined ?

Thats a tough one. for a credit card (which i assume this is) the regs state that the T&Cs must have:

A term stating the credit limit or the manner in which it will be determined or that there is no credit limit.

so from your example they seem to have a mis stated prescribed term on the one hand but have gone on to comply on the other. The term they have provided doesnt state the credit limit - it states a different credit limit that is not yours. It does however state "the manner in which it will be determined" if i understand what you are saying. Not sure i would want to be in front of Waksman arguing that one. The creditor might be a touch nervous too though. It should give you negotiation room though. I will have dig to see if there are any cases bang on point for that.

[cardiac arrest]

Re: Prescribed terms...again..

oops. heres the link:
http://www.bailii.org/cgi-bin/markup...method=boolean

Ah yes, I remember reading this one now...an excellent judgement !

Even though the s78 request was deemed satisfied, the failure to then come up with the relevant evidence (if there was ever any) at court under the s61 'test' was crucial.

I suppose this reinforces the point above that a s78 request can reveal what a Bank has and what it doesn't have. A 'cobbled up' (true copy) of the Terms which don't actually fit in with the terms as they were at the time of signing ?

One small point though...obviously the terms have to be present at the time of signing...and Banks get round the credit limit requirement by explaining the methodology
rather than stating what it actually is, because at this stage they haven't actually approved the application...But if the s78 copy of the terms states a wrong credit limit does that invalidate the requirement for it to be a true copy even though they go on to state the methodology by which the credit limit will be determined ?

[ATW]

Re: Prescribed terms...again..

oops. heres the link:
http://www.bailii.org/cgi-bin/markup...method=boolean

[ATW]

Re: Prescribed terms...again..

Don't forget that they can send something that complies with s78 which you can accept as being the T&Cs as at the time of execution (so the s78 request is satisfied) but which demonstrates that s61 wasn't complied with. See Santander v Mayhew on bailli.

[mystery1]

Re: Prescribed terms...again..

Indeed...the 'Would have' eh ? I would have been younger if I'd been born later... 'Would have' isn't really enough for the banks though if they intend to win a possible court case..they'd have to prove it, or at least on the balance of probabilities... If they insisted on putting PT's on the back of an application form, which then had to be returned to the bank..and then they destroyed it but kept a copy of just the front page...well, I suppose they could just produce a master copy from that time and tell the Judge...this is what we sent out ...

Indeed and then it'd up to you to return the burden of proof to them, if you can.

If you can't you're pissing in to the wind.

M1

[cardiac arrest]

Re: Prescribed terms...again..

Mine says, "Here is your copy of the terms and conditions" which was plainly sent after the credit card was agreed. The prescribed terms, are on a seperate bit of paper, and no doubt "would have been" on the reverse.

Indeed...the 'Would have' eh ? I would have been younger if I'd been born later... 'Would have' isn't really enough for the banks though if they intend to win a possible court case..they'd have to prove it, or at least on the balance of probabilities... If they insisted on putting PT's on the back of an application form, which then had to be returned to the bank..and then they destroyed it but kept a copy of just the front page...well, I suppose they could just produce a master copy from that time and tell the Judge...this is what we sent out ...

[SXGuy]

Re: Prescribed terms...again..

Should have mentioned that They enclosed Barclays Advance Agreement - Bank Copy to be signed and returned. Credit Agreement Regulated by the Consumer Credit Act 1974
this form asks if I would like funds transferred to my current account, and how much. Contains a signature area for the bank and one for me. It also has a section at the bottom which states.
Your Right to Cancel
Once you have signed this agreement, you will have for a short time a right to cancel it.
Exact details of how and when you can do this will be sent to you by post by the Bank.

And that's it! No terms and conditions, no prescribed terms. NO NOTHING.

Terms and conditions were subsequently sent in the post to me, these include the cancellation notice.

Read into this as you wish.

Mine says, "Here is your copy of the terms and conditions" which was plainly sent after the credit card was agreed. The prescribed terms, are on a seperate bit of paper, and no doubt "would have been" on the reverse.

[SXGuy]

Re: Prescribed terms...again..

Complying with Section 78, and being able to produce the correct items in court can be two different things. Section 78 is a request for your CCA documents. OFT guidance, sections 2.20 and 2.21 state what a creditor can send in regards to complying with section 78. As does rullings such as Carey.

In order to satisfy a section 78, a creditor can, reconstuted what "would have" been with the agreement at the time of inception. They are supposed to use whatever means they have to reproduce a true copy.

Now in court, it would be argued that what they sent, is not what you received. The claimant would have to prove it was. And thats the sticking point.

You would have to be certain and very asertive, that what they sent you, is not a recon based on what was on the reverse, and show why. This is where section 61 comes in.

Say for example on your copy it listed paragrah 6.1 in the prescribed terms, but on their recon there was no 6.1. Then what they sent you, couldnt possibly be a recon of the orginal. or if it is, then the agreement was wrong to begin with.

What we try to do, is get them to admit they cant enforce the agreement, or state they have not complied with the request under section 78, for whatever reason that may be. Barclaycard wont ever admit it, some do.