Jump to content


jpf104 v Tesco credit card


jpf104
 Share

style="text-align: center;">  

Thread Locked

because no one has posted on it for the last 4898 days.

If you need to add something to this thread then

 

Please click the "Report " link

 

at the bottom of one of the posts.

 

If you want to post a new story then

Please

Start your own new thread

That way you will attract more attention to your story and get more visitors and more help 

 

Thanks

Recommended Posts

Cca'd Tesco what they've sent is a 'copy' of the original application form. The covering letter states "enclosed is the 'true' copy of your agreement. As the document contains none of the prescribed terms am I right in thinking this is unenforceable?

cca tesco.pdf

Link to post
Share on other sites

Yes completely unenforceable.

HAVE YOU BEEN TREATED UNFAIRLY BY CREDITORS OR DCA's?

 

BEWARE OF CLAIMS MANAGEMENT COMPANIES OFFERING TO WRITE OFF YOUR DEBTS.

 

 

Please note opinions given by rory32 are offered informally as a lay-person in good faith based on personal experience. For legal advice, you must always consult a registered and insured lawyer.

Link to post
Share on other sites

Yes completely unenforceable.

 

That PDF seems to show all T&C's. Rory is it unenforceable just because an appliction form cannot serve as an agreement too? If yes do you know the relevant pice of law? Would be grateful for some clarity on this one. Thanks.

"Why CCJ when you can CCA!"

Link to post
Share on other sites

I actually missed that there were three pages :o (oops). The t&c's which contain the prescribed terms should be on the same page as the signature, I'm not sure that a judge would say that makes it unenforceable though. I would also argue that s59(1) applies otherwise every time you applied for credit you could end up liable for a "debt" that was never yours. Some judges would agree, some wouldn't.

HAVE YOU BEEN TREATED UNFAIRLY BY CREDITORS OR DCA's?

 

BEWARE OF CLAIMS MANAGEMENT COMPANIES OFFERING TO WRITE OFF YOUR DEBTS.

 

 

Please note opinions given by rory32 are offered informally as a lay-person in good faith based on personal experience. For legal advice, you must always consult a registered and insured lawyer.

Link to post
Share on other sites

I would also argue that s59(1) applies otherwise every time you applied for credit you could end up liable for a "debt" that was never yours. Some judges would agree, some wouldn't.

 

I notice that most credit card companies seemed to have stopped using application/agreement forms and are requiring customers to sign very stringent separate agreements. So hopefully, you are right.

"Why CCJ when you can CCA!"

Link to post
Share on other sites

I have known of judges to agree with this in the past, the problem is that that section is open to enterpretation.

HAVE YOU BEEN TREATED UNFAIRLY BY CREDITORS OR DCA's?

 

BEWARE OF CLAIMS MANAGEMENT COMPANIES OFFERING TO WRITE OFF YOUR DEBTS.

 

 

Please note opinions given by rory32 are offered informally as a lay-person in good faith based on personal experience. For legal advice, you must always consult a registered and insured lawyer.

Link to post
Share on other sites

Interesting points. But...the T&C are from a leaflet - the copy (sent) is the leaflet folded out and photocopied. They also sent me the 2008 edition. If they attempt to take me to court to enforce this debt the following stil exists.

  • The so called agreement has no prescribed terms whatsoever.
  • The terms are on a seperate document which was not part of the original application form (probably sent after the credit card was issued).
  • There is no mention anywhere of the credit limit.

I've told (in other threads) that this constituts a 'pre-contractual' document.

Correct me if I am wrong but the documents they have supplied are as but as much use as a chocolate fireguard (imho)!

Link to post
Share on other sites

Interesting points. But...the T&C are from a leaflet - the copy (sent) is the leaflet folded out and photocopied. They also sent me the 2008 edition. If they attempt to take me to court to enforce this debt the following stil exists.
  • The so called agreement has no prescribed terms whatsoever.
  • The terms are on a seperate document which was not part of the original application form (probably sent after the credit card was issued).
  • There is no mention anywhere of the credit limit.

I've told (in other threads) that this constituts a 'pre-contractual' document.

Correct me if I am wrong but the documents they have supplied are as but as much use as a chocolate fireguard (imho)!

 

Aha! Yes I can see where you are coming from. The corporate logos aren't even the same. so the two are unlikely to be contemporary. If I were you I would point out that you have noticed all this - it will considerably reduce the chance of a court claim even being tried.

"Why CCJ when you can CCA!"

Link to post
Share on other sites

the T&C are from a leaflet

Then that makes a big difference as they need to be contained in the credit agreement not a seperate document (I thought the charges looked rather low).
I've told (in other threads) that this constituts a 'pre-contractual' document.

Yes - that's what s59(1) is in relation too.

HAVE YOU BEEN TREATED UNFAIRLY BY CREDITORS OR DCA's?

 

BEWARE OF CLAIMS MANAGEMENT COMPANIES OFFERING TO WRITE OFF YOUR DEBTS.

 

 

Please note opinions given by rory32 are offered informally as a lay-person in good faith based on personal experience. For legal advice, you must always consult a registered and insured lawyer.

Link to post
Share on other sites

Not sure I can see differences in the logos - Perhaps you could point this out.

 

The older one doesn't have a tapering black border to the left. Also, unlike the newer document, it doesn't have the "every little helps" claptrap scrawled on it which fhey put on everything now but never used to.

"Why CCJ when you can CCA!"

Link to post
Share on other sites

well if they r this years t+c's and u did not take the card out this year then tescos have not provided any of the correct documentation as they are meant to send t+c's from when the account was opened.

 

A application form does not prove you are liable for the debt as it is not a Credit Agreement.

OFT debt collection guidance

 

Please remember the only stupid question is the one you dont ask so dont worry about asking the stupid questions.

 

Essex girl in pc world looking 4 curtains 4 her pc,the assistant says u dont need curtains 4 a computer!!Essex girl says,''HELLOOO!! i,ve got WINDOWS!!'.

Link to post
Share on other sites

Hi

The signature in a pre 2005 agreement does unfortunately not have to be on the same page as the prescribed terms nor does the no interspersing rule apply it does however have to be within the same document but this could run over many pages.

This was rectified in the 2004/1482 where it states that the signature has to be uninterspercesed and within the same block as the rest of the section 1 etc information.

This does not mean that a signature document and a set of T and cs will do as these would not be part of the same document nor is refering to another document containg the information allowed.

 

 

THe application/agreement debate is quite a complicated issue.

If the document says Application form at the top, then as rediculous as it seems the court can rule it as an agreement if it contains the prescribed terms and in particulararily any cancellation details, the incorrect heading is not a prescribed term and would not make it unenforceable as such, it would be up to the court to decide based upn the amount of prejuide caused by the ommissionas to whether the document was an agreement or not, they would then look at what else it contained.

Also it must be remembered that whilst an aplication form cannot be an agreement (in that all that it would contain would be application details) an agreement can be used as an application and this is wht the creditor will say has been sent, for instance if we look at an agreement sent under section 62 where the agreement is executed by the signaure of the creditor because the debtor has already signed, he has the ability to sign thus commencing the agreement or not sign and thus the agreement is scrapped in this sence this is an application.

 

Section 59 could be used in a case where an application form was used in that it purprts to be an agreement but there again you would have to show that it was a sepperate document and not the agreement itself it can also be used along with section 57 to with withdraw from a prospective agreement.

 

Best regards

Peter

  • Haha 1

DO NOT PAY UPFRONT FEES TO COLD CALLERS PROMISING TO WRITE OFF YOUR DEBTS

DO NOT PAY UPFRONT FEES FOR COSTLY TELEPHONE CONSULTATIONS WITH SO CALLED "EXPERTS" THEY INVARIABLY ARE NOTHING OF THE SORT

BEWARE OF QUICK FIX DEBT SOLUTIONS, IF IT LOOKS LIKE IT IS TO GOOD TO BE TRUE IT INVARIABLY IS

Link to post
Share on other sites

Thanks Peter - I’m now confused!!

 

In my case the document purporting to be an ' executed agreement' contains no prescribed terms. It refers to terms and conditions, but even these do not have the credit limit. What is the de facto interpretation on what has been sent by Tesco?

 

Is it an executed agreement - in relation to the 1974 act

Is it an executed agreement - by the virtue it states 'this is an agreement under the 1974 act'.

or is it unenforceable because it contains none of the prescribed terms.

 

Would welcome some feedback

Link to post
Share on other sites

HI

Just had a look

 

 

Executed means signed by both parties and contining all the elements required by the cca.

 

The T and C part of the PDF seems to be the copy 2 which is sent either seven days after the agreement is executed or along with the card hence the request for the number in the cancellation request.

It says that this is a copy of the information found in your agreement plainly it is not.

I would give your chances at successfully challenging this at about 60% the courts are not sympathetic to debtors challenging aggreements as we have found over the last few months and you will have to fight your ground on the issue that the prescribed terms were not contained within the orriginal aggreement you signed and it was therefore only an applicaton which should have been followed up by an agreement and therefore unenforceable under section 127(3) and section 59.

Good luck

Peter

DO NOT PAY UPFRONT FEES TO COLD CALLERS PROMISING TO WRITE OFF YOUR DEBTS

DO NOT PAY UPFRONT FEES FOR COSTLY TELEPHONE CONSULTATIONS WITH SO CALLED "EXPERTS" THEY INVARIABLY ARE NOTHING OF THE SORT

BEWARE OF QUICK FIX DEBT SOLUTIONS, IF IT LOOKS LIKE IT IS TO GOOD TO BE TRUE IT INVARIABLY IS

Link to post
Share on other sites

Thanks Peter it's pretty clear now.

 

However you stated that the Courts are unsympathetic. Are you saying that Judges are generally ignoring 127(3) in favour of shoddy practice by creditors? If this is the case I assume those who have had judgments issued against them have successfully appealed? As far as I am aware a County Court Judge cannot simply use statutory interpretation because he is 'unsympathetic' to a defendant's circumstances. I would be interested to see cases where this has arisen.

Link to post
Share on other sites

As far as I am aware a County Court Judge cannot simply use statutory interpretation because he is 'unsympathetic' to a defendant's circumstances. I would be interested to see cases where this has arisen

 

Hi

 

I did not say the court waould be unsympathetic to a defendnts curcumstances i said that they were unsympathetic to debtors challenging agreemnts, this is evident in most cases recorded even wilson where despite the clear legilation the case went right through to the Lords before judgment was granted for the plaintiff , the judiciarries displeasure at granting this was expressed within that judjement to the extent that it was a major factor in the section being repealled in the cca 2006.

 

No The court cannot ignore legislation but what they can an are doing is muddying the waters regarding whether the terms were there or not,it is very rare in my experiance that a court will find for the debtor on first hearing even if the agreement does not comply with 127(3) they will either ajourn to give the creditor time to find the "correct" documentation or even worse find for the creditor and leave it to the appeal to sort out.

Other people may have different experiances but i base my view on the 10 or so cases i have been invovled with concerning credit card agreements.

Judjes iMO tend to take the overview that the debtor is tryng to get out of their liabilities, and agin IMO do not like haveing the power to make judgemnt taken from them by 127(3).

 

I find that in approaching a hearing you can addopt one of two attitudes one is to try and win the court over to your side by showing that the credtitor has missled you by not giving you the correct information before you executed the contract or that the contract is unfair, or conversly you can say yes i signed the contract but it was not properly executed under section 127(3) so legally unenforceable, although the latter should and does tie the courts hands as per wilson etc it wil not make for an easy option and you will have to keep dragging the courts attention back to the legal argument despite the moral high ground that the creditor will undoubtedly try to addopt.

 

Unfortunately law is open to interpretaion statutory or otherwise and the court will not always interpret it as it should, as has been seen, and illustrated by the over-ruling of one judjes interpretation of the law on appeal, the secret is to stick to your guns if you are sure you are correct.

 

Best regards

Peter

  • Haha 1

DO NOT PAY UPFRONT FEES TO COLD CALLERS PROMISING TO WRITE OFF YOUR DEBTS

DO NOT PAY UPFRONT FEES FOR COSTLY TELEPHONE CONSULTATIONS WITH SO CALLED "EXPERTS" THEY INVARIABLY ARE NOTHING OF THE SORT

BEWARE OF QUICK FIX DEBT SOLUTIONS, IF IT LOOKS LIKE IT IS TO GOOD TO BE TRUE IT INVARIABLY IS

Link to post
Share on other sites

Thank you very much Peter for taking time to provide such a comprehensive response and strategy should it end up before the County Court. It has been really helpful. I'll pm you should it proceed to court and perhaps we could discuss my proposed approach.

Link to post
Share on other sites

HI

Please do

Best regards

Peter

DO NOT PAY UPFRONT FEES TO COLD CALLERS PROMISING TO WRITE OFF YOUR DEBTS

DO NOT PAY UPFRONT FEES FOR COSTLY TELEPHONE CONSULTATIONS WITH SO CALLED "EXPERTS" THEY INVARIABLY ARE NOTHING OF THE SORT

BEWARE OF QUICK FIX DEBT SOLUTIONS, IF IT LOOKS LIKE IT IS TO GOOD TO BE TRUE IT INVARIABLY IS

Link to post
Share on other sites

 

Judjes iMO tend to take the overview that the debtor is tryng to get out of their liabilities, and agin IMO do not like haveing the power to make judgemnt taken from them by 127(3).

 

Best regards

Peter

 

FWIW I have heard that this problem can and has been mitigated by sending the creditor income and expenditure summaries and offering token payments from surplus income. If they refuse and continue with litigation just send the payments anyway and keep any returned cheques etc. It's less likely a judge will take this view of a debtor under these circumstances and will be more favouably disposed towards 127(3).

"Why CCJ when you can CCA!"

Link to post
Share on other sites

  • 3 weeks later...

Update:

 

Received letter that basically states "we've sent you everything we're going to and now we're going resume collection"

 

So..its time to raise the ante a little. I am minded to respond by stating something along these lines:

 

  • Document sent does not meet 1983/1553 in virtually any way - no prescribed terms etc.
  • Therefore no contractual provisions exist by virtue that the document is not a CCA agreement as defined within the act (CCA 1974).
  • No agreement = no debtor - ergo no money owed (unless directed by the courts)
  • No contract = no permission given re data processing (especially to third parties)
  • Therefore no debt acknowledged as no legally enforceable contract was ever made.

That's what I'm thinking - but as ever would welcome some CAG input (in case I've missed anything obvious!)

 

Look forward to your responses

Link to post
Share on other sites

Wellllll I just so happen to have the right letter for you.

 

Account In Dispute

 

Ref:

 

Dear Sir/Madam

 

Thank you for your letter of xx/xx/xx, the contents of which have been noted.

 

You have failed to respond to my legal request to supply me a true copy of the original Consumer Credit Agreement for the above account.

 

On the **DATE** I wrote to you requesting a copy of the credit agreement and other information under the Consumer Credit Act 1974 (Sections 77-79).

 

The document that you are obliged to send me is a true copy of the executed agreement that contained all of the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself as defined in section 61(1) of CCA 74 and subsequent Statutory Instruments. If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document.

 

To date you have failed to comply with these requests in any way, whether by confirmation of receipt of the request or by supplying the requested documents.

 

These documents I requested should be readily available as proof of your legal right to collect this account under the Consumer Credit Act 1974.

 

In my letter of the **DATE** I made a formal request for a copy of the signed, executed credit agreement for the above account under section 78(1) of the Consumer Credit Act 1974. In addition a full statement of this account should have been sent to me detailing all debits and credits to the account.

 

Furthermore

 

 

You are aware that the Consumer Credit Act allows 12 working days for a request for a true copy of a credit agreement to be carried out before your client enters into a default situation.

 

If that request is not satisfied after a further 30 calendar days your client commits a summary criminal offence.

 

These limits have expired.

 

As you are no doubt aware section 77(6) states:

 

If the creditor fails to comply with Subsection (1)

 

(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.

 

Therefore this account has become unenforceable at law.

 

As you have Failed to comply with a lawful request for a true, signed copy of the said agreement and other relevant documents mentioned in it, Failed to send a full statement of the account and Failed to provide any of the documentation requested.

 

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

 

Furthermore I shall counterclaim that any such action constitutes unlawful harassment.

 

Please note you may also consider this letter as a statutory notice under section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect.

 

This means you must remove all information regarding this account from your own internal records and from my records with any credit reference agencies.

 

Should you refuse to comply, you must within 21 days provide me with a detailed breakdown of your reasoning behind continuing to process my data.

 

It is not sufficient to simply state that you have a ‘legal right’; You must outline your reasoning in this matter and state upon which legislation this reasoning depends.

 

Should you not respond within 14 days I expect that this means you agree to remove all such data.

 

Furthermore you should be aware that a creditor is not permitted to take ANY

Action against an account whilst it remains in dispute.

 

The lack of a credit agreement is a very clear dispute and as such the following applies.

 

* You may not demand any payment on the account, nor am I obliged to offer any payment to you.

* You may not add further interest or any charges to the account.

* You may not pass the account to a third party.

* You may not register any information in respect of the account with any credit reference agency.

* You may not issue a default notice related to the account.

 

 

I reserve the right to report your actions to any such regulatory authorities as I see fit.

You have 14 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint.

 

I would appreciate your due diligence in this matter.

 

I look forward to hearing from you in writing.

 

Yours faithfully

BLAH

 

Just eit as needed

Be VERY careful whose advice you listen too

Link to post
Share on other sites

Thanks curlyben

 

Their latest letter was in fact a response to my '12 days + 30' letter that highlighted virtually all of the points you have in your post.

They are basically saying the document they have sent is their agreement, which they are satisfied to rely on. They feel they have complied with my s78 request and are inviting me to take whatever legal redress I see fit! (cheek!!).

 

Point being I can see this as a becoming a bit of a merry-go-round until:

 

  • I force them to take me to court
  • They see the futility in chasing me and give up!
  • Equitably assign the balance (in that case game over).

In light of the above I'm minded to go heavy on points 3 & 5 I made in my last post and force their hand.

Link to post
Share on other sites

have you got all your statements?

Are you able to work out how much the charges are?

Have you made a claim for the charges yet?

OFT debt collection guidance

 

Please remember the only stupid question is the one you dont ask so dont worry about asking the stupid questions.

 

Essex girl in pc world looking 4 curtains 4 her pc,the assistant says u dont need curtains 4 a computer!!Essex girl says,''HELLOOO!! i,ve got WINDOWS!!'.

Link to post
Share on other sites

 Share

  • Recently Browsing   0 Caggers

    No registered users viewing this page.


  • Have we helped you ...?


×
×
  • Create New...