Consumer Credit Act Agreements

[tamadus]

Originally Posted by PhantomReclaimer

Not necessarily. The 16 digit number is the card number and might or might not be the same as the account number.

A debit card has a 16 digit number which identifies that particular card but the account number is the card holders bank account number. There are also cases where more than one person has a card for the same account but, for obvious reasons, they can't both have the same number.

P.

Very true on both counts, thanks for correcting me. 16 digits are used for several reasons, but invariably that number will relate directly to the account number. Likewise a second user on the account will have a different card number bit it relates directly to the primary account. MBNA changed my card number( and should have issued a new agreement I believe) on 2 accounts but both numbers on both accounts can still be referenced directly to the appropriate account. So using the card number will have the same affect as using the real account number.

Hmmmm this could present something new. IF my card number isn't the same as my account number (which it obviously might not be) then why haven't they advised me of the real number. In actual fact I have just looked at a credit agreement and no account number appears anywhere on it

Something else that needs researching now

[zootscoot]

85 Duty on issue of new credit-tokens

(1) Whenever, in connection with a credit-token agreement, a credit-token (other than the first) is given by the creditor to the debtor, the creditor shall give the debtor a copy of the executed agreement(if any) and of any document referred to in it.

If you look at the wording of the section the answer is staring you in the face.

"In relation to a new credit agreement," when they issue a new card this is just a new piece of plastic, whatever the technology used in it, in relation to the old agreement.

[tamadus]

Originally Posted by zootscoot

If you look at the wording of the section the answer is staring you in the face.

"In relation to a new credit agreement," when they issue a new card this is just a new piece of plastic, whatever the technology used in it, in relation to the old agreement.

It actually doesnt say in relation to a new credit agreement it says

85. Duty on issue of new credit-token

(1) Whenever, in connection with a credit-token agreement, a credit-token (other than the first) is given by the creditor to the debtor, the creditor shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it.

I see this as saying that whenever a new token (other than the first issued on the agreement) is issued a copy of the agreement has to be provided. It obviously has to be provided with the first token issued as that is the start of the new account and agreement.

A new piece of plastic is still a new token as it will be invalid once it reaches the expiry date ergo a new token is needed to maintain the running credit agreement. The agreement itself can run as long as desired by either party.

[The Terminator]

Tamadus and zootscoot you two are gods Im just about to issue a default notice to MBNA and Humptey Dumptey.Watch this space for the reaction. This just strengthing everybody else's case.I had a lawyer look over what Tamadus posted i.e S85 and his answer is the same as zootscoots" Its staring you in the face"

[zootscoot]

Sorry whenever in connection with a new credit -token agreement then. If you want to be pedantic.

[tamadus]

Originally Posted by zootscoot

Sorry whenever in connection with a new credit -token agreement then. If you want to be pedantic.

Sorry zootscoot I wasn't trying ot be pedantic, but you know that changing one word in these things can make a huge difference in its meaning. If this really means what I think in law then they have all left themselves wide open to it and I can't beleieve they haven't realised that en-block.

[zootscoot]

I can't quite imagine what you're thinking but to me they 've opened themselves up to nothing?

[tamadus]

Originally Posted by The Terminator

Tamadus and zootscoot you two are gods Im just about to issue a default notice to MBNA and Humptey Dumptey.Watch this space for the reaction. This just strengthing everybody else's case.I had a lawyer look over what Tamadus posted i.e S85 and his answer is the same as zootscoots" Its staring you in the face"

Let us know the reaction please Terminator. I'd love to know what else your lawyer said if you want to PM me

[tamadus]

zootscoot my logic is this.

The first token issued starts the agreement and a copy of the regulated agreement will have been sent out with or just before the card(token) is sent.

The token has a life span of say 2 years and is replaced at that time with a new token, but NOT a new agreement. The act says that whenever a token is given (issued) by the creditor to the debtor, the creditor shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it. Because the initial token is specifically mention this must be referring to subsequent token or replacements. Therefore if a copy of the agreement isn't given with the replacement token the the creditor is in default.

[zootscoot]

The Act states whenever a token is issued in connection with a new credit -token agreement. When a replacement card is issued this is a new credit token but it is not in relation to a new credit-token agreement.

[The Terminator]

Originally Posted by tamadus

Let us know the reaction please Terminator. I'd love to know what else your lawyer said if you want to PM me

You will be the first to know the reaction.Basically what the lawyer said(and I work in housing litigation) is that from what he can recall their is no case law where this section of the CCA(1974) has been brought up and that the debtor has every right to issue a default notice against the CC company because overall they have not complied with the Act.He has also advised me that it would be possible to register the default and he is looking into this for me.Once I have the information I will be posting it on here.He also advised me that the banks do not like going to court because nine times out of ten they lose even going to the COA.I will provide the following link for everyone on this site.There are two other issues that I brought up and im reading from the notes I made.1) A DCA cannot issue a default notice wither they are acting for a creditor or not.The default notice must be served by the creditor as the agreement is between the creditor and the debtor not the DCA and the debtor.2) Activating a card is purely a security measure and does not allow the CC provider to get around S85 as he would still have to provide a copy of the original agreement for replacement cards.

British and Irish Legal Information Institute

In the search engine put in the name of a bank and you will see what I mean.This is case law from the COA there may be information there that will help our cause.

[tamadus]

Originally Posted by zootscoot

The Act states whenever a token is issued in connection with a new credit -token agreement. When a replacement card is issued this is a new credit token but it is not in relation to a new credit-token agreement.

But section 85 doesn't mention new agreements, only new tokens and it specifically says a copy of the agreement should be given and thats my point.

[tamadus]

Originally Posted by The Terminator

You will be the first to know the reaction.Basically what the lawyer said(and I work in housing litigation) is that from what he can recall their is no case law where this section of the CCA(1974) has been brought up and that the debtor has every right to issue a default notice against the CC company because overall they have not complied with the Act.He has also advised me that it would be possible to register the default and he is looking into this for me.Once I have the information I will be posting it on here.He also advised me that the banks do not like going to court because nine times out of ten they lose even going to the COA.I will provide the following link for everyone on this site.There are two other issues that I brought up and im reading from the notes I made.1) A DCA cannot issue a default notice wither they are acting for a creditor or not.The default notice must be served by the creditor as the agreement is between the creditor and the debtor not the DCA and the debtor.2) Activating a card is purely a security measure and does not allow the CC provider to get around S85 as he would still have to provide a copy of the original agreement for replacement cards.

British and Irish Legal Information Institute

In the search engine put in the name of a bank and you will see what I mean.This is case law from the COA there may be information there that will help our cause.

great news Terminator, I wait with bated breath now

[zootscoot]

But section 85 doesn't mention new agreements, only new tokens and it specifically says a copy of the agreement should be given and thats my point.

Look at the very first sentence of s.85(1)

[pcr1]

Originally Posted by zootscoot

Look at the very first sentence of s.85(1)

It doesn't say new.

I originally raised this here but no-one had an answer:
http://www.consumeractiongroup.co.uk...ies+in+default

I am currently researching this. I need to read a copy of Goode on Consumer Credit which one of my local libraries has. I'm going there this week and will update that thread when I know the score.

It may be in "copies": i.e. for s85 the copy does not have to be signed (and they usually include the Ts&Cs booklet with the card. So they may or may not be in default: watch that space above.

In any case, all they need to do to remove themselves from default is comply in the same way as a s77/78 request (if they have an agreement), but would of course have to refund all interest charged over the period.

[The Terminator]

I've just read your threads again and S85(1) is staring the consumer right in the face.It is put in plain English and there is no doubt to it's meaning.As I said in my previous post Im going to serve a default notice on MBUSA and Humptey Dumpty.The way that I see it is nothing ventured nothing gained.Why should the CC providers be able to issue default notices and the consumer can't although it has taken 32 years for someone to come up with what is basiclly a"loophole" in the law.The T&C booklet issued with the card is not away around S85 as S85 quite specifically states "signed agreement"

[tamadus]

s85 clearly states 'a copy of the executed agreement(if one exists). That to my mind is a signed copy of the agreement, which has to be clearly marked as being a 'Credit agreement regulated by the Consumer Credit Act 1974' Having the Title 'Application form' or Terms and conditions' does NOT make it a credit agreement. An unsigned copy of the agreement cannot be binding on either party.

I agree pcr1 they only need to send a copy of the agreement to remove themselves from default, BUT is a retrospective copy sufficient? s85 clearly states that the act of giving the copy should occur at the same time as giving the new token so they may have to issue new cards along with a copy of the agreement to everyone affected to get out of default.

One other thing suddenly comes to mind. If the terms and conditions are an integral part of the credit agreement, then the agreement is unlawful to start with. We know the terms and conditions are unlawful because they include the unlawful charges, hence the agreement must also be unlawful as well.

I really am having a terrible time believing that every one of the credit card companies have made this same fundamental mistake.

I agree that as long as they are in default they can't make a profit so would have to refund any interest charged.

As Terminator says s85 is very clear in its wording (and for once it doesnt send us through dozens of other parts of the act to clarify it). Terminator please make sure you issue the defaults in strict accordance with the act or they will only bounce it back.

These companies make millions from their business and should be operating within the laws regulating the business. If they fail to do that then how can we, the consumer, ever trust them? If thus discussion closes the loophole and forces them to become accountable to the regulations then it will have achieved a miracle. If we can't trust those who routinely handle our financial lives on a daily basis then we all have a major problem.

[pcr1]

Originally Posted by tamadus

s85 clearly states 'a copy of the executed agreement(if one exists). That to my mind is a signed copy of the agreement, which has to be clearly marked as being a 'Credit agreement regulated by the Consumer Credit Act 1974' Having the Title 'Application form' or Terms and conditions' does NOT make it a credit agreement. An unsigned copy of the agreement cannot be binding on either party.

Absolutely. An "executed agreement" must be properly formatted and must be signed by both parties.

Originally Posted by tamadus

I agree pcr1 they only need to send a copy of the agreement to remove themselves from default, BUT is a retrospective copy sufficient? s85 clearly states that the act of giving the copy should occur at the same time as giving the new token so they may have to issue new cards along with a copy of the agreement to everyone affected to get out of default.

The default continues, according to the Act, until they provide the copy of the agreement. This will remove them from default, but whilst they were in default (from sending the new card to sending the copy of the agreement), they cannot enforce the agreement which means they can't demand payment and can't charge interest. They can't then do this retrospectively.

Originally Posted by tamadus

One other thing suddenly comes to mind. If the terms and conditions are an integral part of the credit agreement, then the agreement is unlawful to start with. We know the terms and conditions are unlawful because they include the unlawful charges, hence the agreement must also be unlawful as well.

No. Under contract law, if the contract can continue with the unfair term removed then it will. This is the case with these agreements.

Originally Posted by tamadus

I agree that as long as they are in default they can't make a profit so would have to refund any interest charged.

As above, it's because they can't enforce the agreement, so can't demand payment and can't charge interest whilst they are in default.

Originally Posted by tamadus

As Terminator says s85 is very clear in its wording (and for once it doesnt send us through dozens of other parts of the act to clarify it). Terminator please make sure you issue the defaults in strict accordance with the act or they will only bounce it back.

It will depend on any case law which the Goode document should answer. I'll report straight back when I've read it; I intend to get to the library this week as I'm away next week.

[tamadus]

(snip)

The default continues, according to the Act, until they provide the copy of the agreement. This will remove them from default, but whilst they were in default (from sending the new card to sending the copy of the agreement), they cannot enforce the agreement which means they can't demand payment and can't charge interest. They can't then do this retrospectively.

So, how about if the default started with a new card say 10 years ago? They would not be happy at having to refund that much in interest and would probably risk going to court.

No. Under contract law, if the contract can continue with the unfair term removed then it will. This is the case with these agreements.

As the credit agreement is such an important document I would have thought it would have to be re-signed agreeing to the changes. A legal agreement cannot be changed to suit the creditor without being agreed by the debtor. The signatures verify the agreement.

As above, it's because they can't enforce the agreement, so can't demand payment and can't charge interest whilst they are in default.

Agreed totally

It will depend on any case law which the Goode document should answer. I'll report straight back when I've read it; I intend to get to the library this week as I'm away next week.[/quote]

I'll get a copy of this and scan through it as well.

[pcr1]

Originally Posted by tamadus

So, how about if the default started with a new card say 10 years ago? They would not be happy at having to refund that much in interest and would probably risk going to court.

Thaaat's the gamble!

Originally Posted by tamadus

As the credit agreement is such an important document I would have thought it would have to be re-signed agreeing to the changes. A legal agreement cannot be changed to suit the creditor without being agreed by the debtor. The signatures verify the agreement.

No, as a remedy to an unfair term, per legislation, the contract will remain in force when the court invalidates the offending terms. Only if the offending term forms such a substance to the contract that the contract cannot possibly continue without it, will the court terminate the contract.

It says this in UCTA and UTCCR but I don't have them to hand to quote unfortunately.

You're much better off going down the s77, s78 and hopefully even better the s85 route. (I say better because under s85, even if they produce an agreement, they need to refund a fair bit of interest. One of my Barclaycards started July 2003 and doesn't expire till December this year!)

Originally Posted by tamadus

I'll get a copy of this and scan through it as well.

It's reference only and not widely available, so you'll need to sit in the library to read it or copy it (which is what I'll be doing!). I'll post the ISBN/ISSN number when I look it up again, which will probably be tomorrow, if not then Thursday.