Conflicting Information CCA

[warwicklad]

I have been an avid memberof this forum for some time, lurking in the backround trying to get as much information as i can, and i feel like i have learned so much from some very wise owls on this forum.

 

I have a question though, and i have searched the faq's and cannot find a clear definitive answer. It is regarding CCA's - as i was just about to send them to my cc companies - i have 2 cards from 2001 and 3 from a couple of years ago - applied for online i think. Everything i have read on this forum got me fired up into going down the CCA route as i have been treated disgustingly by these companies when i was in hardship last year and got no sympathy from them.

 

But i have read this on another forum:

Issue 5 True Copies

A credit card issuer is required to provide three copies of agreement to a borrower. The first copy (which is set out as an application form) is signed by the borrower and sent to the lender. The borrower is given, with this application copy, a copy to keep (in accordance with the requirements of section 62 of the Act. This is the requirement to provide a copy of the unexecuted agreement (unexecuted because at that stage it has not been accepted or signed by the lender). When the agreement is executed a credit card is sent out, and usually this is attached to the “card carrier” copy of the agreement. This copy has to be sent to the borrower by virtue of section 63(4) of the Act and this is the executed copy.

 

The requirement for such documents to be “true copies” is set out in regulation 3(1) of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983. Regulation 3(2) provides that the lender can omit from this document any signature and/or signature box, so although the card carrier is the executed copy, it does not have to (and invariably will not) bear the parties signatures.

 

Source: Basil Rankine vs American Express Services Europe Limited High Court Judge at Birmingham Civil Justice Centre Authorised by Section 9 of the Supreme Court Act 1981

 

16th May 2008

 

OK it looks and sound pretty, but what this means is that as far as the court is concerned, the fact that you have applied for a credit card, and a card has been issued to you, then the application (unexecuted agreement) stands up in court.

So please be aware that if you make a CCA request for the original signed agreement for a credit card, and all you are sent is the application form that bears your signature, and you did receive the card, then that is sufficient for legal action!!!

 

So now i am worried and really confused....is this bloke correct? or is he a mole from a credit card company trying to worry people. Any advice please as i really am at the end of my worry threshold.

[pt2537]

Nope whoever wrote that is talking BallHooks IMHO

[pt2537]

in actual fact i would like to know where this inaccurate rubbish is being stated as i have a good mind to register and put it right

[caro]

Source: Basil Rankine vs American Express Services Europe Limited High Court Judge at Birmingham Civil Justice Centre Authorised by Section 9 of the Supreme Court Act 1981

 

;-)

[warwicklad]

THANK YOU THANK YOU SO MUCH!!!!!

 

YOU DO NOT KNOW HOW MUCH I WAS DREADING READING THE RESPONSE TO MY QUESTION......I REALLY THOUGHT IT WAS RIGHT.

 

I WOULD BE MORE THAN HAPPY TO GIVE YOU THE URL OF WHERE I READ IT, AND WILL HELP YOU IN ANYWAY TO DISCREDIT THIS INFORMATION.

 

AS I CANNOT POST A URL..GO AND HAVE A LOOK ON WWW DOT DEBTQUESTIONS DOT CO DOT UK AND SEARCH FOR

 

Post subject: CCA Requests and Credit Cards (High Court RulinG)

 

 

PLEASE GO GET HIM!! GOD IM SO SO ANGRY NOW....I NEED TO GO AND WALK THE DOG AND GET SOME FRESH AIR....THANK YOU AGAIN FOR YOUR FAST AND CONCISE RESPONSE..

 

DOES EVERYONE REALISE HOW LUCKY THEY ARE HAVING ACCESS TO SUCH A GREAT FORUM...PT2537 YOU ARE MY GUARDIAN ANGEL AND MAY GOOD LUCK SHINE DOWN ON YOU.

 

IT HAS MADE ME EVEN MORE ANGRY NOW, COULD THE CHAP NAMED 'TIM' WHO HAS WRITTEN THIS BE WORKING FOR A CC COMPANY?? AND FRIGHTENING HARD WORKING LAW ABIDIING CITIZENS LIKE MYSELF INTO THINKING THEY HAD NO RIGHTS.

 

I HAVE JUST READ THE WILSON VS FCT CASE...FASCINATING.. WOULD RECOMMEND THIS TO EVERYONE.

[pt2537]

well i have corrected them;)

 

they had locked the thread, so i couldnt post on the thread but i have posted a thread to put them right

[warwicklad]

Why oh why didnt i study law rather than blimmin computer programming....i've been reading this forum for about 5 hours now and i am totally hooked..its fascinating.

 

I have one more question of which i would value the definitive answer to, what are the EXACT requirement/laws regarding cards taken out at different dates (i.e i have read somewhere that cards taken out after April 2007 do not need a cca) and are there any differences to online applications.

 

Thank you your honour!

[Curlyben]

Post Apr 2007 DO need a CCA, but lack of said agreement, or prescribed terms, doesn't automatically bar enforcement as s127(3) has been repealed.

 

They must still prove you signed the agreement and used it.

[pt2537]

well ive been over there and im sorry to say that im not welcome on their forum,

 

maybe i know more than them? maybe i dont ? but something has clearly got up their noses and they pulled my post and then sent me a nice message

 

but i can say for sure 100000% that they are clearly wrong in their assertions and if it is i that is wrong, then why did barclay card settle a 18K credit card debt today? given that they had a signed card application and they had the Card Carrier as well so by their version of events, we should have lost:rolleyes: but we didnt

[Docman]

pt2537

I've also had a look at the site and it is operated by a debt management counselling agency linked to Payplan. Slight bias perhaps, hence the attempt to hide their origins.

As to the case itself, I think the author didn't bother to read a little earlier in the Consumer Credit Act, S 61 (1) to be precise.

But if I am not mistaken, this is the one of several cases involving the Rankines that ‘Aloysiush’ mentioned when having a go at some of your drafts in some other threads. If this post on 'Debt Questions' is an example of what can happen, imagine what could happen if some useless cretin of a solicitor starts to spout it out at a DJ who doesn't have much idea about the CCA. Perhaps it might be worth seeing if someone can post up the reasons the judge went the way he did in the Rankine case. What do you think?

[Curlyben]

Docman, that has indeed been tried by a number of the banks already, most notably Barclays.

Not to worry as there is stronger case law available, like Wilson v FCT in the House of Lords

 

If you read the entire Rankine judgement you soon get a feel for the Judges utter distain for what they were trying to do. I must admit I can't blame him at all.

[pt2537]

well, i did get a reply and i must put the records straight.

 

the Moderators on the site in question did give me a explaination as to why they removed mu post and i see their points.

 

i have advised them of why i feel their argument is wrong and have offered to supply a QCs drafted opinion as to why the Rankine Judgment makes no impact on enforcement of a credit agreement

 

they have advised me that they have forwarded my argument to the owners of the site

 

so lets let them do their bits and bobs

 

the main thing is that we must ensure that people are given the information to fight their cases and that the info is correct

[PriorityOne]

Docman, that has indeed been tried by a number of the banks already, most notably Barclays.

Not to worry as there is stronger case law available, like Wilson v FCT in the House of Lords

 

If you read the entire Rankine judgement you soon get a feel for the Judges utter distain for what they were trying to do. I must admit I can't blame him at all.

 

Aloysiush hasn't mentioned Wilson v FCT at all in "that" thread (unless I've missed something), but focussed on the Rankines instead. I am still wondering why... but since we've called a truce, maybe someone else should ask him, to spare any more rotten tomatoes being thrown in my direction.... lol

[Curlyben]

Seems that selective deafness is the order of the day.

There is way more case law that supports our conclusions than doesn't, about 7-1, but as Rankine is most recent it sticks out.

Also Rankine is only Birmingham High Court as apposed to others which are court of appeals and Lords.

Hmm let me think, which wins here

[rippedoffagain]

Payplan. Sponsored by high street banks, I believe.

[Docman]

Hi eveyone,

 

I now remember this Rankine guy when he was on local TV a few months ago. I thought he had formed a company which was then almost immediately sold on. I must have been asleep for the last couple of months not to have made the connection earlier.

 

Now that I have had the chance to read Judge Brown's judgement, I'll post on the other thread. In general I agree that it doesn't affect the type of cases most CAGgers come across.

[macie]

At para 28 of the Rankine judgment the judge states "When the agreement is executed a credit card is sent out, and usually this is attached to the “card carrier” copy of the agreement. This copy has to be sent to the borrower by virtue of section 63(4) of the Act and this is the executed copy. The requirement for such documents to be “true copies” is set out in regulation 3(1) of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983. Regulation 3(2) provides that the lender can omit from this document any signature and/or signature box, so although the card carrier is the executed copy, it does not have to (and invariably will not) bear the parties signatures."

 

It seems that Judge Brown may have been a bit confused "the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983" doesn't have a section 3(1) or 3(2). The judge probably meant "the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983" which does have a regulation 3(1) and 3(2).

 

This goes to show how complex the legislation is, even for a professional.

 

If your lender sites the Rankine judgment in relation to "true copies" I am fairly sure that it is easy to show the judgment is wrong simply based upon the legislation the judgement sites

[macie]

I think there may be some purposeful misinterpretation of the Rankine judgment.

 

At para 28 it states in relation to "Issue 5 True Copies

 

A credit card issuer is required to provide three copies of agreement to a borrower. The first copy (which is set out as an application form) is signed by the borrower and sent to the lender. The borrower is given, with this application copy, a copy to keep (in accordance with the requirements of section 62 of the Act. This is the requirement to provide a copy of the unexecuted agreement (unexecuted because at that stage it has not been accepted or signed by the lender). When the agreement is executed a credit card is sent out, and usually this is attached to the “card carrier” copy of the agreement. This copy has to be sent to the borrower by virtue of section 63(4) of the Act and this is the executed copy. The requirement for such documents to be “true copies” is set out in regulation 3(1) of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983. Regulation 3(2) provides that the lender can omit from this document any signature and/or signature box, so although the card carrier is the executed copy, it does not have to (and invariably will not) bear the parties signatures."

 

 

I think the application copy, the unexecuted copy and the executed copy must all contain the "prescribed terms" and the same text, but, that the layout of the three types of copy can be different

 

Nothing in the Rankine judgment says that the text can be substantially different between the three types of copies. This is the only way that Judge Brown's judgment can be reconciled with Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299.

 

The word "copies" suggests that the three copy documents have to be, at least textually, the same.

 

So my guess would be that if the prescribed terms are not in the "application copy" they cannot be, by definition, be in the subsequent "unexecuted copy" or "executed copy" if the three are indeed to be considered "copies".

 

If the text contained in the "executed", "card carrier", which is unsigned, doesn't textually match the "application copy" then the one is not a copy of the other.

 

This is not the way the banks have interpreted these paragraphs and I think the banks are purposefully misleading their opponents in this regard.

 

Please correct me if I am wrong.

[aloysiush]

Priority One,

 

You can ask - no problem. Wilson relates to secured lending and is not on all fours with Rankine.

 

I never said Rankine was good law or otherwise. I referred to the fact that they lost and the reasoning behind the same. I happen to feel that the judgment was clouded by an attempt to ensure they lost and that justice prevailed in all the circumstances.

 

Wilson is a judgment, which many on here will find helpful and the comment and consequences of s.127 and others is good law and can be relied upon in the right circumstances.

 

Incidentally, I have not 'had a go' at PT's drafts (DOCMAN). I just don't agree with the style/tactics of some of them. It is merely a matter of style and nothing else, in real terms. I am not saying they are wrong in law. He can do it his way and I will do it mine - no problem. PT - hope you were successful with the exams!

 

Good luck, all.

[Viscount Stair]

Hi! I am a newbie - although I have been lurking for a fortnight. To prove that even lawyers get into trouble sometimes and need help too, I am here to learn as I sort out my own problems. In time, I hope to be able to repay that help by contributing in kind and helping others.

 

Anyway, to the point:

 

I have my own views on the Rankine judgment (which would be most unprofessional for me to post) but I have a specific query about the "section 78 no longer applies after the agreement ends" bit of the judgment (likely to become relevant to me in one of my forthcoming spats).

 

Obiter?

 

Part of a judgment regarded as "turning on its own facts"?

 

Flat wrong?

 

Inconsistent with another precedent I'm not aware of?

 

Any ideas, anyone???

 

Thanks in advance ... and, please, be gentle with me in spite of my avocation.