Cap1 & CCA return

[tamadus]

Most of us are now aware of the effects of non compliance with a consumer Credit Act section 77/78 request. I would like to try and clarify the result of a s78 (1) request I recently made.

 

The company concerned responded 12 days before it went to the poition of committing a criminal offence, however what they have sent me is a copy of the original application and is clearly marked as an application. Its my feeling an application shouldn't be considered as a regulated agreement under the CCA. I am certain (but cannot immediately find the detailed description of the form a regulated agreement should take) that the heading on the agreement should clearly state 'Credit Agreement' (or words to that effect).

 

Also on the copy of the application they have sent I added a second card holder (authorised user)with a different surname to mine. Underneath the authorised users signature it clearly states Authorised users must have the same surname as the applicant.

 

I am now wading through the CCA (1974) trying to clarify these points and came across something interesting in section 85, and I quote.

 

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.

 

(2) If the creditor fails to comply with this section-

 

(a) he is not entitled, while the default continues, to enforce the agreement; and

 

(b) if the default continues for one month he commits an offence.

 

(3) This section does not apply to a small agreement.

 

Now by definition a credit card has to be a credit-token. The CCA clearly states that a copy of the executed agreement has to be supplied to the debtor prior to its use and the debtor has a 'cooling off' period. I read section 85 as meaning that any time the creditor replaces or issues a replacement card a copy of the original agreement has to be supplied with the new card (credit-token).

 

I have NEVER recieved a copy of the agreement when a credit card has been replaced. I may be going over old ground here but has anybody any suggestions on section 85 of the CCA and also on the application form suddenly becoming an agreement and the authorised user having a different surname?

[dollies01]

I had the exactly the same response with my cca request to Lowell finance, who are acting on the behalf of Captial One.

 

They sent me a copy of the short application form.

Nothing else whatsoever.

As far as I am concerned they have, so far, failed to fulfill the cca request.

An application form, in my handwriting, merely proves, I applied for a card.

[tamadus]

I fully agree dollies and I am trying to decide now if it's worth persuing. I wonder how many other credit card applications were granted purely on the application form without a clearly marked credit agreement.

 

I have just got a reply to my CCA request to Capital One and its clearly headed 'Credit agreement as regulated by the Consumer Credit Act 1974' along with the terms and conditions and it contains a right to cancel section, along with a section on my rights under the act.

 

My opinion also is that Barclaycard have failed under section 78(1) of the CCA to provide what I asked for and I now need to decide how best to follow it up. My feeling on the application form is that they broke their own (written) rules by allowing an authorised user with a different surname, and that they have also failed under section 85 by not providing a copy of the credit agreement each time a new card was issued. An application form does not constitute a credit agreement, it simply means I applied for one. They did not at the time allow a cooling off period or deliver a copy of the agreement before executing it. They have still not produced a signed credit agreement regulated by the Consumer Credit Act (1974) and what they have produced fails a long way short of the regulations in the act. I need to find out the official version of whats has to be included to constitute an agreement now.

[Guest The Terminator]

 

I've just looked through the Sections of the Act that you have mentioned and in my opinion I think you have opened up a massive can of worms here especally under Section 85 which I see is a very big loophole in the act which constitutes that the terms and conditions are only enforceable during the period between when the card was issued and when it expires.So in effect everytime a new card is issued a new agreement must be issued as well, the same as for arguements sake a tenancy agreement with a private landlord who issues a new agreement every six months.Erm there seems to be a lot of logic there.Having read it again it seems to me that every CC Provider is in breach of the act which unless you have a current agreement default notices are not worth the paper there written on.

[tamadus]

Thats exactly how it struck me as I read it. The first card issue is ok as its covered by the agreement but subsequent issues without being accompanied by a copy of the agreement put the CC company into a default situation and the agreement becomes unenforceable. One interesting point is that Egg actually put on the back of their card that it may only be used in accordance with current Egg card credit agreement conditions. The other cards I have access to only state (if anything) that its use is in accordance with current terms and conditions.

 

As I see it the original agreement will cover a new card issue, but ONLY if its included with the card issue. Maybe I am wrong so hopefully somebody with more knowledge can correct me.

 

This may be a new can of worms but I am no further along with my application form questions and it's after 2:30 again

 

Since when does an application form become an agreement regulated under the act? Every other agreement I have clearly states it is a credit agreement regulated under the CCA (1974) this application form doesnt give that in any way, shape or form, and clearly states it is an application, although it is signed (almost illegibly) by the branch manager.

 

Ah well just another stage in the Barclaycard saga so I am heading for sleepy land and will continue the quest tomorrow.

[Guest The Terminator]

Thats exactly how it struck me as I read it. The first card issue is ok as its covered by the agreement but subsequent issues without being accompanied by a copy of the agreement put the CC company into a default situation and the agreement becomes unenforceable. One interesting point is that Egg actually put on the back of their card that it may only be used in accordance with current Egg card credit agreement conditions.

 

Section 85(1) of the Act makes it plain as you've already posted

 

As I see it the original agreement will cover a new card issue, but ONLY if its included with the card issue. Maybe I am wrong so hopefully somebody with more knowledge can correct me.

 

The only way that would comply is if Section 85 was actually written into the agreement.I think you've stumbled on something here.

 

Since when does an application form become an agreement regulated under the act?

 

It doesn't

 

I'd be interested to know what some of the legal seagulls think of what you have brought up.

[tamadus]

I'd be interested to know what some of the legal seagulls think of what you have brought up.

 

yes so would I and hopefully one or more of them will make a comment soon. The suspense is killing me lol. On the face of it every one of the credit card companies has incorrectly issued replacement cards and the agreement is no longer enforceable.

 

I am also looking at another aspect which makes agreements unenforceable but figured to look a fool on this one first

[pugsley]

hope this is true because I have had 3 cards with capital one over the last 2 1/2 years I possibly activated them and signed them but didn't get a new credit agreement

[PhantomReclaimer]

Most of us are now aware of the effects of non compliance with a consumer Credit Act section 77/78 request. I would like to try and clarify the result of a s78 (1) request I recently made.

 

The company concerned responded 12 days before it went to the poition of committing a criminal offence, however what they have sent me is a copy of the original application and is clearly marked as an application. Its my feeling an application shouldn't be considered as a regulated agreement under the CCA. I am certain (but cannot immediately find the detailed description of the form a regulated agreement should take) that the heading on the agreement should clearly state 'Credit Agreement' (or words to that effect).

 

Also on the copy of the application they have sent I added a second card holder (authorised user)with a different surname to mine. Underneath the authorised users signature it clearly states Authorised users must have the same surname as the applicant.

 

I am now wading through the CCA (1974) trying to clarify these points and came across something interesting in section 85, and I quote.

 

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.

 

(2) If the creditor fails to comply with this section-

 

(a) he is not entitled, while the default continues, to enforce the agreement; and

 

(b) if the default continues for one month he commits an offence.

 

(3) This section does not apply to a small agreement.

 

Now by definition a credit card has to be a credit-token. The CCA clearly states that a copy of the executed agreement has to be supplied to the debtor prior to its use and the debtor has a 'cooling off' period. I read section 85 as meaning that any time the creditor replaces or issues a replacement card a copy of the original agreement has to be supplied with the new card (credit-token).

 

I have NEVER recieved a copy of the agreement when a credit card has been replaced. I may be going over old ground here but has anybody any suggestions on section 85 of the CCA and also on the application form suddenly becoming an agreement and the authorised user having a different surname?

 

I'm, not sure it's that simple. You need to research certain things further. You say that a credit card has to be a credit token. Perhaps, but is "credit token" defined in the Act? Perhaps a "credit token" is some arcane iuntrument that you only geta single use of or something? Even if it isn't then perhaps the actual "credit token" is actually the account with a given spend limit and that the card is only evidence of such "token"? If that were the case then new replacement carrying the same account number and expiry date would not be a new token, just replacement evidence of it.

 

Also, what is a "small agreement"?

 

I've never looked at the Act just runnign some stuff off the top of my head.

 

P.

[pugsley]

SE16090 - Vouchers and credit-tokens: meaning of credit- token

 

Section 142(4) and (5) ICTA 1988

 

A “credit-token” is something which merely has to be produced in order to obtain goods and services without immediate payment. It does not have to be capable of being exchanged for goods or services.

 

A credit-token is “any card token document or other thing”, except a non-cash or cash voucher, which is given to a person by someone who undertakes:

• to supply money, goods or services on credit on its production, for example, a credit card supplied by a retailer or
• to pay a third party for the supply of money, goods or services on its production to that third party, for example, a credit card like a Mastercard or Visa card supplied by a credit card company.

A charge to tax arises where such a credit-token is provided for an employee or a relation ( SE16080) by reason of the employment. For the amount chargeable as an emolument see SE16140.

 

The use of a “credit-token” to operate a machine, for example, a cash dispenser, is deemed to constitute its production.

 

The charge arising from the use of credit-tokens eliminates any argument over whether the payment by an employer of credit card bills run up by an employee is a discharge of the employee's pecuniary liability ( SE00580). There is thus a uniform charge on all employees in these circumstances however the credit card facilities are provided.

 

Guardian Unlimited Money | Credit and debt | GE Capital Bank told to change its ways

[Guest The Terminator]

pugsley said:

Guardian Unlimited Money | Credit and debt | GE Capital Bank told to change its ways

 

Either the OFT have sh-t out or they are totally incumbasant to the law.Section 85(1) quite clearly states that each time a new credit token is issued then a new agrreement has to be signed as well.It is ironic in two ways that the CC companys have got away with this for the last 30 years and a poster on a forum has what in my opinion has opened up a can of worms and most proberly the biggest loophole in the act.Barclaycard, Egg, MBNA eat your hearts out coz the terminator is after yer.

 

pugsley said:

SE16090 - Vouchers and credit-tokens: meaning of credit- token

 

Section 142(4) and (5) ICTA 1988

 

A “credit-token” is something which merely has to be produced in order to obtain goods and services without immediate payment. It does not have to be capable of being exchanged for goods or services.

 

A credit-token is “any card token document or other thing”, except a non-cash or cash voucher, which is given to a person by someone who undertakes:

• to supply money, goods or services on credit on its production, for example, a credit card supplied by a retailer or
• to pay a third party for the supply of money, goods or services on its production to that third party, for example, a credit card like a Mastercard or Visa card supplied by a credit card company.

A charge to tax arises where such a credit-token is provided for an employee or a relation ( SE16080) by reason of the employment. For the amount chargeable as an emolument see SE16140.

 

The use of a “credit-token” to operate a machine, for example, a cash dispenser, is deemed to constitute its production.

 

The charge arising from the use of credit-tokens eliminates any argument over whether the payment by an employer of credit card bills run up by an employee is a discharge of the employee's pecuniary liability ( SE00580). There is thus a uniform charge on all employees in these circumstances however the credit card facilities are provided.

 

So what we are talking here is a credit card.Now in a court of law can that be disputed.IMHO I don't think so.So the OP who brought this up and may only have stumbled over it by chance deserves a beer. Nice one son!!

 

https://wwwa.applyonlinenow.com/UKCCapp/Ctl/link?eid=3E39D3DF

 

Having read the above I see no mention of S85(1) of the CCA(1974)as amended.The legal seagulls might want to study this as from the offset the T&C may well make any agreement null and void.Sorry time to sleep no doubt I will be seeking advice from lawyers tomorrow and will post any information received.

[tamadus]

The Terminator said:

Either the OFT have sh-t out or they are totally incumbasant to the law.Section 85(1) quite clearly states that each time a new credit token is issued then a new agrreement has to be signed as well.It is ironic in two ways that the CC companys have got away with this for the last 30 years and a poster on a forum has what in my opinion has opened up a can of worms and most proberly the biggest loophole in the act.Barclaycard, Egg, MBNA eat your hearts out coz the terminator is after yer.

 

The act doesn't say a new agreement has to be signed but that the creditor ( card issuer) has to give a copy of the executed agreement with the new token.

 

pugsley said:

SE16090 - Vouchers and credit-tokens: meaning of credit- token

 

Section 142(4) and (5) ICTA 1988

 

A “credit-token” is something which merely has to be produced in order to obtain goods and services without immediate payment. It does not have to be capable of being exchanged for goods or services.

 

A credit-token is “any card token document or other thing”, except a non-cash or cash voucher, which is given to a person by someone who undertakes:

• to supply money, goods or services on credit on its production, for example, a credit card supplied by a retailer or
• to pay a third party for the supply of money, goods or services on its production to that third party, for example, a credit card like a Mastercard or Visa card supplied by a credit card company.

A charge to tax arises where such a credit-token is provided for an employee or a relation ( SE16080) by reason of the employment. For the amount chargeable as an emolument see SE16140.

 

The use of a “credit-token” to operate a machine, for example, a cash dispenser, is deemed to constitute its production.

 

The charge arising from the use of credit-tokens eliminates any argument over whether the payment by an employer of credit card bills run up by an employee is a discharge of the employee's pecuniary liability ( SE00580). There is thus a uniform charge on all employees in these circumstances however the credit card facilities are provided.

 

Thanks pugsley I knew it had to be defined properly somewhere. Having just read the article pugsley found I have a feeling they will get over this by claiming the replacement card is the same token and not a new token. The article mentions activating a card but (and I am probably wrong) I see activation as a clear sign that something about the new card has changed even though the account number remains the same.

 

I do recall a couple of years ago that MBNA took over the credit card side of RBS and replaced all RBS affinity cards with MBNA cards. That must surely come under section 85 as the account numbers, the creditor and the card appearance changed. Lots more research needed still.

 

PhantomReclaimer said:

I'm, not sure it's that simple. You need to research certain things further. You say that a credit card has to be a credit token. Perhaps, but is "credit token" defined in the Act? Perhaps a "credit token" is some arcane iuntrument that you only geta single use of or something? Even if it isn't then perhaps the actual "credit token" is actually the account with a given spend limit and that the card is only evidence of such "token"? If that were the case then new replacement carrying the same account number and expiry date would not be a new token, just replacement evidence of it.

 

Also, what is a "small agreement"?

 

I've never looked at the Act just runnign some stuff off the top of my head.

 

P.

 

If I recall correctly a 'small agreement' is one under £50. The difference between a 'new token' anbd a replacement needs clarifying further I think. Personally I suspect that having to 'activate' a replacement card makes it different in and electronic aspect as the replacement wont work untill such time as it is activated, even though the account numbers remain the same. Also small changes occur which are visible, namely expiry dates, security number, and signature strip has to be signed again. I suppose they could even claim that by signing a replacement card that we actually verify the original agreement.

 

I would definitely class the latest 'chip and pin' cards as new tokens though as they use different technology and no longer require a signature at point of sale. Those IMHO should require totally new agreement as the customer (debtor) is now very vulnerable to fraud usage with no comeback on the creditor.

[pugsley]

when I got a replacement credit card the number (is this the same as the account number?, not sure) of the card has changed for capital one, but the account and balance remain the same.

[tamadus]

when I got a replacement credit card the number (is this the same as the account number?, not sure) of the card has changed for capital one, but the account and balance remain the same.

 

The account number is the 16 digit number on the face of the card. I am sure changing the account number should warrant a new agreement, but need advice from the legal eagles

[PhantomReclaimer]

The account number is the 16 digit number on the face of the card.

 

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.

[tamadus]

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:confused:

 

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]

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.

[Guest 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]

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]

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.