Dissecting the Manchester Test Case....

[Spiros386]

Maybe I need to start a thread but just a quick question.

 

I took out a credit card last year with 6 months holiday. The agreement states 19.8% APR and 1.5 % per month, the bill has come through and it is asking for £495.00 minimum payment on £9,800. I calculate interest at around £160.00 per month. They have said they are correct legally and the APR is irrelevant and they point out that I signed for monthly compounded interest. This is well outside the tolerance me thinks.

 

Any advice, my first reaction is Ombudsman and no pay till resolution or am I up the preverbial.

[spartathisis]

Is it not what they state, Minimum Payment? Usually 5% of outstanding amount and £490 is 5% of £9800. All CC have a minimum repayment amount mainly around the 5% mark.

[means2anend]

I cannot see anywhere that a 1% tollerence is allowed? only 0.1% for rounding up and down.

 

 

You'll find it in Schedule 7 to the '83 Agreements Regulations 'Disclosure Of APR'

[means2anend]

Also can any learned caggers explain to me as to WHY the Consumer Credit Agreements (Amendments) Regulations 2004/1482 should NOT ALSO apply to Agreements made on or after May 1985.

 

I say this because in the above Statutory Instrument under APPLICATION OF REGULATIONS at Regulation 8 it expressly states that in the same SI Regs 1-3 and 5-7 apply to agreements made on or after May 1985.

If this is correct there are huge consequences for all agreements made before 2005

 

I may be wrong but can someone clarify..

 

m2ae

Edited April 3, 2010 by means2anend

[seriously fed up]

that would be very good m2ae - i quite3 agree. Btw, you might be amused to hear that I am about to write to Egg taking them up on the manner in which they have interspersed their t&cs with information not required by the regs (see http://www.consumeractiongroup.co.uk/forum/egg/254345-letter-egg.html#post2861696).

Re the regs, m2ae is talking about vint, he's quite right - see below

SCHEDULE 7

PROVISIONS RELATING TO DISCLOSURE OF THE APR

Permissible tolerances in disclosure of the APR

1. For the purposes of these Regulations, it shall be sufficient compliance with the requirement

to show the APR if there is included in the document-

(a)a fate which exceeds the APR by not more than one; or

(b)a rate which falls short of the APR by not more than 0·1; or

©in a case to which any of paragraphs 2 to 5 below applies, a rate determined in accordance with the paragraph or such of them as apply to that case.

The key one is (a)

[diddydicky]

Also can any learned caggers explain to me as to WHY the Consumer Credit Agreements (Amendments) Regulations 2004/1482 should NOT ALSO apply to Agreements made on or after May 1985.

 

I say this because in the above Statutory Instrument under APPLICATION OF REGULATIONS at Regulation 8 it expressly states that in the same SI Regs 1-3 and 5-7 apply to agreements made on or after May 1985.

If this is correct there are huge consequences for all agreements made before 2005

 

I may be wrong but can someone clarify..

 

m2ae

 

the consequences being what?

[vint1954]

They can exeed the rate by 1%, but why would they, but cannot understate the rate by more than 0.1%

[means2anend]

the consequences being what?

 

I have read my sentence again and I should have put are there instead of there are..BIG DIFFERENCE...

 

But while we are on the subject...The amended versions are explicit in the manner and order that information must be set out....and IF pre-2005 (May 1985 onwards) agreements are required to comply and they in fact do not..is there not a danger that the consumer is likely to be misinformed..after all is this not the same result that would be arrived at as has been warned in case law where certain high level omissions may distort the sense of the document when read by the consumer...

 

Pre-2005 agreements may not have been set out in the order and manner required by latest amendments yet it appears as if according to Reg 8 in the amended version regs 1-3 and 5-7 still apply to agreements made on or after that date...

 

m2ae

[seriously fed up]

m2ae, I have downloaded a copy of these regs (2004/1482) but I have to say I cant find anything that is consistent with what you have said. This is not to say that you are wrong only that I cant find it.

However, I would be SURPRISED (but no less delighted if you are right) if you were correct here as this, in effect, would be retrospective legislation as it would commit lenders to standards for documents sent out since 1985 of which they knew nothing till 2004. Generally speaking retrospective legislation is a big no-no (though it has happened, in fairness). Just to give you an example of the problems of legislating retrospectively, the govt might have announced last Thursday that tax rates for 07/08 and 08/09 were being raised retrospectively by 10% so would you all please make out cheques and send them to HMRC - you can imagine the reaction then (btw, last Thursday was 1st April).

So i would VERY much hope you are proven right on this, but I cant find it in the regs that you refer to. Could you give us some more precise guidance. Thanks

[seriously fed up]

the consequences being what?

 

Well one consequence would be - if correct (and see above) - is that the sig box should come at the end of the contract (think this has been a point that Vint has made for some time) and not at the bottom of the first page with not a term or condition viewed, far less a prescribed term.

[diddydicky]

well that would indeed be an important consequence and one which i admit i had not took too much notice of before

[means2anend]

I am going to look at the 2004/1482 AGAIN this morning in case I only see ''what I want to see''. (and compare any difference with 1983/1553

 

 

m2ae

[seriously fed up]

to repeat - I COULD have missed it, though I would very much like to see it as I think it could be very important.

Good luck in your searches m2ae

[rebel11]

I've just had a reconstituted CCA agreement provided. This is in reply to a SAR. When the CC Account was opened, it was with another, but the credit card company have provided a reconstituted CCA agreement with the present companies details on it.

Is that classed as :- ' an agreement has been varied by the creditor under a unilateral power of variation' ?

[angry cat]

I've just had a reconstituted CCA agreement provided. This is in reply to a SAR. When the CC Account was opened, it was with another, but the credit card company have provided a reconstituted CCA agreement with the present companies details on it.

Is that classed as :- ' an agreement has been varied by the creditor under a unilateral power of variation' ?

 

A credit agreement is deemed as varied when one is provided with a second token; the second credit card (token) after the first.

Normally the first token (credit card) runs for approx 3 years.

 

AC

[PriorityOne]

I've just had a reconstituted CCA agreement provided. This is in reply to a SAR. When the CC Account was opened, it was with another, but the credit card company have provided a reconstituted CCA agreement with the present companies details on it.

Is that classed as :- ' an agreement has been varied by the creditor under a unilateral power of variation' ?

 

You need to make a CCA request for the original....

 

If they produce the same kind of tosh under a CCA.... then it shouldn't have your sig. on it, since it's different to the one you (allegedly) signed.... How old is this account? Are you saying that the new co. is a different cc company, a subsidiary or a DCA?

[ruinedbynatwest]

Well Done Priority One. I think you are right to show your thinking. It maintains objectivity - establishes transparency.

My point remains that the common-law(yers), albeit "flat earthers" in their thinking, are right insofaras this important statute (CCA) was not implemented to allow "won't pays" to avoid their liabilities by technical defences. We all make mistakes and the thought of a feckless borrower walking away from substantial borrowings on what is clearly an honest mistake on the part of a bank employee, is distasteful to the majority.

 

However, there are serious exceptions, where a trader will deliberately set out to 'wrong foot' any potential legal challenges by cleverly not documenting terms so as to expose a potential claimant to the rigours of the common law - where a defendant will need to find extremely large sums to cover costs - as Natwest did to us in the 80's where our costs exceeded £1.5 millions of Legal Aid funding and where the Judgments are clearly biased against the consumer as you also suggest .

 

See

 

www.ruinedbynatwest.com

 

Happy Easter !!

 

John Story

 

First defendant - National Westminster Bank PLC V Story & Pallister

Edited April 5, 2010 by ruinedbynatwest
typos

[PriorityOne]

Well Done Priority One. I think you are right to show your thinking. It maintains objectivity - establishes transparency.

My point remains that the common-law(yers), albeit "flat earthers" in their thinking, are right insofaras this important statute (CCA) was not implemented to allow "won't pays" to avoid their liabilities by technical defences. We all make mistakes and the thought of a feckless borrower walking away from substantial borrowings on what is clearly an honest mistake on the part of a bank employee, is distasteful to the majority.

 

However, there are serious exceptions, where a trader will deliberately set out to 'wrong foot' any potential legal challenges by cleverly not documenting terms so as to expose a potential claimant to the rigours of the common law - where a defendant will need to find extremely large sums to cover costs - as Natwest did to us in the 80's where our costs exceeded £1.5 millions of Legal Aid funding and where the Judgments are clearly biased against the consumer as you also suggest .

 

See

 

www.ruinedbynatwest.com

 

Happy Easter !!

 

John Story

 

First defendant - National Westminster Bank PLC V Story & Pallister

 

No doubt the CCA wasn't implemented to allow "won't payer's" to get away with paying nothing, but neither were our income tax laws implemented to allow those with monetary/birth privileges to hide their money in offshore accounts and the like. The use of technicalities only seem to produce extreme reactions when used by the little people, otherwise known as the "feckless", against the bigwigs.... or so it seems to me anyway.....

 

Every so often one of the "feckless" is held up as an example to the rest of us. Sometimes huge sums of money and the threat of serious consequences come into play in order for us to try and defend aspects of consumer law which shouldn't really have been left open to dispute in the first place.... but then, what would us poor, ignorant souls really know about the law....

 

We're all "feckless" after all.....

 

[diddydicky]

No doubt the CCA wasn't implemented to allow "won't payer's" to get away with paying nothing, but neither were our income tax laws implemented to allow those with monetary/birth privileges to hide their money in offshore accounts and the like. The use of technicalities only seem to produce extreme reactions when used by the little people, otherwise known as the "feckless", against the bigwigs.... or so it seems to me anyway.....

 

Every so often one of the "feckless" is held up as an example to the rest of us. Sometimes huge sums of money and the threat of serious consequences come into play in order for us to try and defend aspects of consumer law which shouldn't really have been left open to dispute in the first place.... but then, what would us poor, ignorant souls really know about the law....

 

We're all "feckless" after all.....

 

 

i agree

 

what's more the consumer credit act WAS INDEED drafted with the intention that IF the creditor could not be bothered crossing the T's and Dotting the i;s then it would allow for a won't pay to avoid his responsibilities

 

the fact that the reasoning behind this assumption was that the greater "good" (that of protecting the ordinary person against the might of the creditor) would be paramount- even if that meant that individuals might benefit- is of no concern

 

the CREDITOR is QUICK to resort to the LETTER OF THE CONTRACT when jacking up interest rates when base rates are tumbling to their all time low

 

therefore a contract is a contract is a contract- and loophole or no loophole- they deserve what their arrogance and high handed attitude visits upon them- including those who can "shaft" them by exploiting "loopholes" that the creditors themselves would willingly exploit if they were in "Their " favour

[oilyrag]

Yes DD and P1 I agree wholeheartedly.

 

I sometimes have real worries about the amount of discussion about the "morality" of "exploiting loopholes in the law" by us ordinary folk. Remember an awful lot of us who are labelled "feckless" and the derisory ticket of "won't payers" have turned this way because of some unforeseen problem in their lives and have received arrogance, abuse and harassment to the grave if necessary from these so called moral, fine upstanding pillars of society institutions. That is no exageration either. Where is the morality in the pure greed which is still going on that has ruined many thousands of peoples lives? Where is the morality of London bankers emptying client accounts over night to feed their gambling addictions on other stock markets in the pure pursuit of their own greed? Where is the morality in buying and selling commodities (an example is cocoa beans that I am certain of the facts) several times over outside market hours without them even moving just to manipulate the price into an advantageous position for the trader ready for market opening the next day (and I can name the bank and first name the trader concerned)?

 

Perhaps I should point out on the arthimetic front most of us have in fact paid several times over for the alleged debt and have found it growing by the unilateral application of the creditors "rights" under the law. Is this the morality in which much store is placed?

 

There is no morality to the money markets so they should not bleat like stuck pigs when it rebounds on them in a lawful way. WE ARE NOT EXPLOITING ANY LOOPHOLE JUST USING THE LAW AS IT IS WRITTEN.

 

Where is the morality in the tax evasion (criminal by the way ref. HMRC) [problem] known as "securitisation" of income streams provided by you and I into offshore dealings outside the jurisdiction of our tax authorities. Is this morality?

 

Let us be clear, the financial institutions have had 35 years or thereabouts to get their house in order. They have significantly failed to do so and have made mega money from not doing so, out of you and I. Why can that be determined as an ethical and moral situation when it is apparently immoral to some for the likes of us to use the specifics of the law (statute to boot) to enforce our own position in all this. There is no loophole the law is clear--- no correct documentation, then forfeit all rights and benefits under the alleged contract. This I believe was reinforced by HHJ Waksman in his judgement at clause 234 paras 1 -4.

 

My own experiences which have been long and bitter as well, now lead me to advise all that banks and finacial institutions are totally amoral, unethical and ruthless criminals. If you have a mindset that this is the case treating them all in this light then you have some chance of succeeeding with your campaigns against them.

 

Remember the Law of the Jungle is oK when it works in their favour, now the likes of CAG and others have turned it around then its not OK for us to use it.

 

Hypocrisy and Duplicity are good watchwords

 

regards

oilyrag.

[brooooooooooce]

Yes DD and P1 I agree wholeheartedly.

 

I sometimes have real worries about the amount of discussion about the "morality" of "exploiting loopholes in the law" by us ordinary folk. Remember an awful lot of us who are labelled "feckless" and the derisory ticket of "won't payers" have turned this way because of some unforeseen problem in their lives and have received arrogance, abuse and harassment to the grave if necessary from these so called moral, fine upstanding pillars of society institutions. That is no exageration either. Where is the morality in the pure greed which is still going on that has ruined many thousands of peoples lives? Where is the morality of London bankers emptying client accounts over night to feed their gambling addictions on other stock markets in the pure pursuit of their own greed? Where is the morality in buying and selling commodities (an example is cocoa beans that I am certain of the facts) several times over outside market hours without them even moving just to manipulate the price into an advantageous position for the trader ready for market opening the next day (and I can name the bank and first name the trader concerned)?

 

Perhaps I should point out on the arthimetic front most of us have in fact paid several times over for the alleged debt and have found it growing by the unilateral application of the creditors "rights" under the law. Is this the morality in which much store is placed?

 

There is no morality to the money markets so they should not bleat like stuck pigs when it rebounds on them in a lawful way. WE ARE NOT EXPLOITING ANY LOOPHOLE JUST USING THE LAW AS IT IS WRITTEN.

 

Where is the morality in the tax evasion (criminal by the way ref. HMRC) [problem] known as "securitisation" of income streams provided by you and I into offshore dealings outside the jurisdiction of our tax authorities. Is this morality?

 

Let us be clear, the financial institutions have had 35 years or thereabouts to get their house in order. They have significantly failed to do so and have made mega money from not doing so, out of you and I. Why can that be determined as an ethical and moral situation when it is apparently immoral to some for the likes of us to use the specifics of the law (statute to boot) to enforce our own position in all this. There is no loophole the law is clear--- no correct documentation, then forfeit all rights and benefits under the alleged contract. This I believe was reinforced by HHJ Waksman in his judgement at clause 234 paras 1 -4.

 

My own experiences which have been long and bitter as well, now lead me to advise all that banks and finacial institutions are totally amoral, unethical and ruthless criminals. If you have a mindset that this is the case treating them all in this light then you have some chance of succeeeding with your campaigns against them.

 

Remember the Law of the Jungle is oK when it works in their favour, now the likes of CAG and others have turned it around then its not OK for us to use it.

 

Hypocrisy and Duplicity are good watchwords

 

regards

oilyrag.

 

Good post!

[jonoh1]

Excellent oilyrag. So it is a loophole when we use the law or just a simple technicality.

 

Yet just look at what the Insurance companies use. I never hear judges say they use loopholes or technicalities.

 

The all system is a joke.

[vint1954]

I've just had a reconstituted CCA agreement provided. This is in reply to a SAR. When the CC Account was opened, it was with another, but the credit card company have provided a reconstituted CCA agreement with the present companies details on it.

Is that classed as :- ' an agreement has been varied by the creditor under a unilateral power of variation' ?

As we all know, for s78 it can be a reconstruction.

 

Here is the OFT view on the matter:

 

''Sections 77 and 78 of the CCA 1974 refer to supplying a copy of the ‘executed’ agreement within 12 working days of receiving a written request from the debtor. Failure to do so makes the agreement unenforceable against the debtor until a copy is provided.

 

Execution involves signing the agreement. If no agreement has been executed, it is impossible to supply a true copy of the agreement. Should a creditor supply a copy agreement, even though the debtor has never signed any agreement with that creditor, no indication should be given that it is a true copy or a copy of an executed agreement.

 

To do so may contravene Regulation 5 of the CPRs and be an unfair or improper business practice.

 

The consequence of the debtor not having signed a credit agreement with the creditor is that the agreement is unenforceable except where the court orders that enforcement may take place. Where the agreement was made before 6th April 2007 the court is not able to make such an order unless the agreement was signed by the debtor.

 

Therefore it is misleading to state, when complying with a section 77 or 78 request, that the debtor has signed or would have signed (or similar) the enclosed agreement where the debtor has not done so. From 26 May 2008 such a statement will be a breach of the Consumer Protection from Unfair Trading Regulations 2008 (CPRs). Regulation 5 of the CPRs states that a commercial practice is a misleading action if it contains false information in relation to the main characteristics of the product (amongst other matters) and is likely therefore to cause the average consumer to take a transactional decision he would not have taken otherwise. The product in question is the credit agreement and the main characteristics include the ‘execution of the product’ (Regulation 5(5)(d) of the CPRs).

 

Telling a consumer that he signed such an agreement is also a misleading statement about his rights and the risks he might face as covered by Regulation 5(4)(k) of the CPRs. It is our view that it is likely that a consumer will take a transactional decision to make a payment under the credit agreement or to refrain from exercising his rights under the agreement as a result of being misled about whether he signed it.

 

Breach of Regulation 5 of the CPRs is a criminal offence under Regulation 9 and can also be enforced under Part 8 of the Enterprise Act 2002. Under section 218A of the Enterprise Act, where an application for an Enforcement Order is made the court may require the Respondent ‘to provide evidence of the accuracy of any factual claim’ (such as a claim that a debtor has signed a credit agreement).

 

In addition, it should be noted that threats to take action that cannot be taken is listed as one of the factors that will be considered in assessing aggressive practices in Regulation 7(2) of the CPRs.

 

May 2008 ''

 

and:

The copy of the executed agreement need not be an exact copy but it must be a ‘true copy’ and not some reconstruction of what the original might have been and it must contain the same terms as the original. Where the terms have been varied as provided for within the agreement, the copy of the original agreement must be accompanied by a document setting out the current terms, as varied. Certain details may be omitted from the original agreement eg the signature but the debtor must be in no doubt as to the true nature of his obligations under the loan.

 

Should no original agreement be in existence it is very hard to say that the copy the creditor offers to the debtor is, in fact, a true copy as there would be no original with which to compare it. In our view the onus of proof would be on the creditor to show that the copy is a true one and where none existed he may have difficulty discharging this. Neither should creditors suggest that a consumer has signed a credit agreement where they are unable to provide evidence to support this — to do so is likely to be a misleading action under Regulation 5 of the Consumer Protection from Unfair Trading Regulations 2008 (the CPRs) and would also constitute an unfair or improper business practice.

 

Why not ask if it is coppied frrom the original.

Vint

[vint1954]

 

Yet just look at what the Insurance companies use. I never hear judges say they use loopholes or technicalities.

 

Depends where your pension and investments are.

[means2anend]

As we all know, for s78 it can be a reconstruction.

 

Here is the OFT view on the matter:

 

''Sections 77 and 78 of the CCA 1974 refer to supplying a copy of the ‘executed’ agreement within 12 working days of receiving a written request from the debtor. Failure to do so makes the agreement unenforceable against the debtor until a copy is provided.

 

Execution involves signing the agreement. If no agreement has been executed, it is impossible to supply a true copy of the agreement. Should a creditor supply a copy agreement, even though the debtor has never signed any agreement with that creditor, no indication should be given that it is a true copy or a copy of an executed agreement.

 

To do so may contravene Regulation 5 of the CPRs and be an unfair or improper business practice.

 

The consequence of the debtor not having signed a credit agreement with the creditor is that the agreement is unenforceable except where the court orders that enforcement may take place. Where the agreement was made before 6th April 2007 the court is not able to make such an order unless the agreement was signed by the debtor.

 

Therefore it is misleading to state, when complying with a section 77 or 78 request, that the debtor has signed or would have signed (or similar) the enclosed agreement where the debtor has not done so. From 26 May 2008 such a statement will be a breach of the Consumer Protection from Unfair Trading Regulations 2008 (CPRs). Regulation 5 of the CPRs states that a commercial practice is a misleading action if it contains false information in relation to the main characteristics of the product (amongst other matters) and is likely therefore to cause the average consumer to take a transactional decision he would not have taken otherwise. The product in question is the credit agreement and the main characteristics include the ‘execution of the product’ (Regulation 5(5)(d) of the CPRs).

 

Telling a consumer that he signed such an agreement is also a misleading statement about his rights and the risks he might face as covered by Regulation 5(4)(k) of the CPRs. It is our view that it is likely that a consumer will take a transactional decision to make a payment under the credit agreement or to refrain from exercising his rights under the agreement as a result of being misled about whether he signed it.

 

Breach of Regulation 5 of the CPRs is a criminal offence under Regulation 9 and can also be enforced under Part 8 of the Enterprise Act 2002. Under section 218A of the Enterprise Act, where an application for an Enforcement Order is made the court may require the Respondent ‘to provide evidence of the accuracy of any factual claim’ (such as a claim that a debtor has signed a credit agreement).

 

In addition, it should be noted that threats to take action that cannot be taken is listed as one of the factors that will be considered in assessing aggressive practices in Regulation 7(2) of the CPRs.

 

May 2008 ''

 

and:

The copy of the executed agreement need not be an exact copy but it must be a ‘true copy’ and not some reconstruction of what the original might have been and it must contain the same terms as the original. Where the terms have been varied as provided for within the agreement, the copy of the original agreement must be accompanied by a document setting out the current terms, as varied. Certain details may be omitted from the original agreement eg the signature but the debtor must be in no doubt as to the true nature of his obligations under the loan.

 

Should no original agreement be in existence it is very hard to say that the copy the creditor offers to the debtor is, in fact, a true copy as there would be no original with which to compare it. In our view the onus of proof would be on the creditor to show that the copy is a true one and where none existed he may have difficulty discharging this. Neither should creditors suggest that a consumer has signed a credit agreement where they are unable to provide evidence to support this — to do so is likely to be a misleading action under Regulation 5 of the Consumer Protection from Unfair Trading Regulations 2008 (the CPRs) and would also constitute an unfair or improper business practice.

 

Why not ask if it is coppied frrom the original.

Vint

 

 

The above is all very well...but most of it is what it SHOULD be ( in OFT's view).Apart from the CPUTR The law is as it IS in Carey.Signatures absent must be proved to have been made by the Claimant IF bringing the case.

 

The above scenario (in OFT view) in practice will never happen 'cos the burden would be on the creditor and so are quite content just to sit back..also s78 informational purposes only and NOT proof of execution.

 

The only way this would work in terms of proof of execution is if the claimant actually had possession of the unexecuted original and was able to show it in Court(hence satisfying the absence of a positive plea as mentioned in Carey which was fatal to a couple of those cases) but then it may have not gone that far and been disposed of in pre-conduct hearings.Misleading statements would also be more easier to prove if claimant had possession of unexecuted original and could be produced to rebut 'honest statements made by creditors.'

 

The Copies Documents and Cancellation Notices Regulations 1983 has much conspired against us to achieve this...One can almost vision how the TORY government came out on the side of the Institutions..no doubt some may have had an ''interest''.

 

As has been said many times before ..the Creditors would be reluctant to BRING the claim as it is THEY who will have to produce the Original in Court.

Edited April 6, 2010 by means2anend