Dissecting the Manchester Test Case....

[diddydicky]

This can be proved by someone with their agreement to hand applying for a copy and then checking the wording of the recontructed agreement with the original they have.

 

quite agree conniff

 

we need someone to "bait" the creditors with a s77/79 request then if the reconstituted agreement if faulty it needs to be raised through a national media so as to discredit the whole practice

[seriously fed up]

Can u guys kindly advise me on my case :

http://www.consumeractiongroup.co.uk/forum/mbna/239030-mbna-reston-threating-court-5.html

 

At present both MBNA and Restons asking for my signature to honour my CCA request and Subject access request. I am scared to give them my signature as these guys have spohisticated IT gadgets which can easily copy my signature and paste it on their dodgy agreements.. Please advise what should I do...

 

Tell them to get lost. Presumably the address you are using for the purposes of the CCA request is the same one that they have been using to send you all manner of abusive letters and financial information which could be seriously embarrassing if it fell into the wrong hands.

This is probably the sort of letter you should send http://www.consumerforums.com/resources/templates-library/86-debt-collectors/572-debt-letter-when-company-refuse-cca-due-to-no-signature-.

But perhaps this one would be as good (or could be added) if appropriate to your circumstances - http://www.consumerforums.com/resources/templates-library/86-debt-collectors/579-letter-when-dca-refuses-to-comply-with-a-cca-request.

Just a delaying tactic. And in any case, they have worked pretty hard to be as untrusted as they are, why should we trust them now.

[gezwee]

I'm interested what RBS are going to do in my case.

 

I have a CCJ against them for a small sum (under £500) which was issued Aug 2009. I haven't chased payment, but recently I wrote too them threatening a warrant and they have passed it to their legal dept for 'attention'.

 

Methinks they might be a bit late for a set aside.

 

I'd spend the extra 100 squid and issue third party debtor order........ or really take the pee and send the bailiffs into your local branch

[paulwlton]

So has anyone tried this one in court? Or with lenders? I would guess you have Silverfox.

Re the profitability of credit cards, you are spot on. But the other factor was the rush for growth. Working through two steps TOOK LONGER.

 

I defended a court claim for my OH in May on the basis that her Barclaycard application form was non compliant.

 

CL Finance were represented at the hearing but the judge struck their claim out after 10 minutes and awarded costs which my honorable OH declined because it was her day off work.

 

Each case will be judged on fact.

 

PW

[seriously fed up]

Not tried it in court but the lender (CAP1) are long over the horizon

 

I am trying to shake this lot off - well actually crapquest to whom cap1 sold the debt while in dispute. Sorry to be a nuisance but can i just get this right, you said in effect "yes that's an application form, now show me the executed agreement with my sig on it?"

[seriously fed up]

I defended a court claim for my OH in May on the basis that her Barclaycard application form was non compliant.

 

CL Finance were represented at the hearing but the judge struck their claim out after 10 minutes and awarded costs which my honorable OH declined because it was her day off work.

 

Each case will be judged on fact.

 

PW

 

Yes, and well done. I might be able to do with your advice - see http://www.consumeractiongroup.co.uk/forum/barclaycard/239319-christmas-card-barclaycard.html

 

But just to sort of tease this one out, was your case that the only form your OH had signed - the application form - was missing prescribed terms. Or was it that the only form she had signed was an application form and there was no more detailed signed agreement in existence?

 

Its the idea that there should be an application form first which they consider and if they are going to take it forward THEN they issue an agreement, with all the t&cs set out and signed by them, for you (the debtor) to sign and then send back. Only then do they issue a credit card. That is what I am really trying to get clear here.

[paulwlton]

Yes, and well done. I might be able to do with your advice - see http://www.consumeractiongroup.co.uk/forum/barclaycard/239319-christmas-card-barclaycard.html

 

But just to sort of tease this one out, was your case that the only form your OH had signed - the application form - was missing prescribed terms. Or was it that the only form she had signed was an application form and there was no more detailed signed agreement in existence?

 

Its the idea that there should be an application form first which they consider and if they are going to take it forward THEN they issue an agreement, with all the t&cs set out and signed by them, for you (the debtor) to sign and then send back. Only then do they issue a credit card. That is what I am really trying to get clear here.

 

I stapled their pathetic application form to the AQ and respectfully requested that the DJ give directions that the Claimant produce an agreement which complied with the Act and regs thereunder.....obviously they couldn't BINGO!

 

Not intending to Hijack the thread...just trying to help peeps.

 

Worked for me.

[seriously fed up]

more or less pathetic than the attached?

[paulwlton]

more or less pathetic than the attached?

 

Not good is it? - unfortunately as a LIP it all boils down to the judge lottery.

[seriously fed up]

yes, true. Shouldnt be like that though.

Blind them with informed opinion!

Thanks Paul - nice article in the Mail on Sunday btw. Well done. 8-)

SFU

[nick20045]

I normally used a 'modified' sig. - one you can identify but also prove is not your usual. I also usually sign over the date, just to make it even more difficult.;-)

Sign: John Smith

 

underneath put "For and on behalf of"

 

They cannot dispute that as it is legal.

[diddydicky]

more or less pathetic than the attached?

 

an application form can be an executed agreement for the purposes of the act if it is signed by the debtor and contains all of the prescribed terms within the signature document

 

the doubly good news for you is:_

 

it does not contain the prescribed terms

 

even if it did there is no mention anywhere (let alone prominantly) that it is a credit card agreement regulated by the consumer credit act 1974

 

it is about as useful as a chocolate fireguard

 

this document has nothing to do with the "judge lottery" it is 100000000000000% edited. The judge would give them a very serious slap on the wrist if they produced this document in court for any other reason than for the judge to wipe his bottom on!

Edited January 12, 2010 by slick132
please avoid swearing - this is CAG, not Facebook

[Peterbard]

Hi

Yes sign it but with alitle distinguishing flourish

 

The copy you recieve will not be a exact copy of your agreement anyway and cannot be used as the poof,but it could be lifted an put on your agrement.

I generaly scan or photocopy the response before sending it back,

Just in case they get the idea of recreating your orriginal doc for use in court.

 

Petr

[paulwlton]

an application form can be an executed agreement for the purposes of the act if it is signed by the debtor and contains all of the prescribed terms within the signature document

 

the doubly good news for you is:_

 

it does not contain the prescribed terms

 

even if it did there is no mention anywhere (let alone prominantly) that it is a credit card agreement regulated by the consumer credit act 1974

 

it is about as useful as a chocolate fireguard

 

this document has nothing to do with the "judge lottery" it is 100000000000000% edited. The judge would give them a very serious slap on the wrist if they produced this document in court for any other reason than for the judge to wipe his bottom on!

 

You think Im talking bollords? I assure you Im not old boy

Edited January 12, 2010 by slick132
swearing edited

[Peterbard]

quite agree conniff

 

we need someone to "bait" the creditors with a s77/79 request then if the reconstituted agreement if faulty it needs to be raised through a national media so as to discredit the whole practice

 

 

Hi

Wouldnt make a hapeneth worh of differnse the judgement says that it does not have to be an exact copy in form to the orriginal in fact it can be produced without sight of it.Just has to conform with the regs.

 

Peter

[Gaznkaz08]

while there seems to be a bit of dissussion re application forms, would this stand up in court

 

http://i131.photobucket.com/albums/p316/Gee-dub-ya/replies/img022-1-1.jpg

[B3rty]

Please don't take this the wrong way but if anyone has to ask the question then you are on a sticky wicket because you will need to be able to convince the judge thats its not and why quoting the ACT/SI and case law...

 

I may say its OK someone else may say its not and we had a lot of this over recon agreements prior to Waksman....

[oilyrag]

Where are all our guests????

 

oilyrag

[nick20045]

while there seems to be a bit of dissussion re application forms, would this stand up in court

 

http://i131.photobucket.com/albums/p316/Gee-dub-ya/replies/img022-1-1.jpg

How is somebody supposed to be able to check that?! Can hardly read it. Should upload to imageshack and set the settings to 17 or 19in monitor. Then upload.

[Gaznkaz08]

How is somebody supposed to be able to check that?! Can hardly read it. Should upload to imageshack and set the settings to 17 or 19in monitor. Then upload.

 

 

any better?

 

http://i131.photobucket.com/albums/p316/Gee-dub-ya/replies/img022.jpg

[brooooooooooce]

"we need someone to "bait" the creditors with a s77/79 request then if the reconstituted agreement if faulty it needs to be raised through a national media so as to discredit the whole practice"

 

Well Diddydicky I'm game, cos that's exactly what happened to me with the Halifax - S.78 they sent reconstituted, SAR produced copy of original - not remotely like it, no PT's, no lender signature.

 

After reading the article in the Mail on Sunday I posted a comment and at the moment I'm feeling like like writing to my MP.

[nick20045]

 

You think Im talking bollords? I assure you Im not old boy

 

For a contract to be valid in law, it must be signed by both parties..

 

A Witness is required if its a document that needs notary witness..ie affidavit, probate so on..

 

A contract must fill four requirements for it to be a valid contract.

 

A lawfully binding contract that contains the following 4 mandatory elements for it be deemed a lawfully binding, bilateral contract:

 

1, Full Disclosure.

 

2, Equal Consideration. ("Consideration" means: something REAL, TANGIBLE and OF VALUE, e.g. money, or an item of value - something you "insert credit company" are trading for my signature / promise.

 

3, Lawful Terms and Conditions.

 

4' 'Wet' (hand signed, in proper ink) signatures of BOTH Parties/Meeting of the Minds.

 

5: If however they have a single signed agreement and they gain your consent to action (either with or without knowlege..tactic consent or aquisition by silence (i.e. you failed to contact them with your counter claim within the period stipulated)...then you will be found as the debtor by adjudication in a county court.

 

So first of all we have 1, 2, and 3 above.

 

4 should be done.

 

Let us look at 5. A "Single signed agreement". This is where the 2006 Act comes in and once the creditor shows the Court that you have been spending the money and paying then the Court will find in the creditors favour and against you.

 

So let us move away from the 2006 Act and go to the 1974 Act. That Act is different. Procedure:

 

Make application. (I want to apply for credit. This is "me", This is what where I live, This is what I earn).

Application approved.

Send terms and conditions to be approved by debtor.

Debtor approves terms and conditions and puts "wet" signature to them.

Creditor sends card and advises of credit limit.

 

Today, we get a lot of spam put through our letterbox. The local pizza takeaway prices, the local kebab prices, the .............

 

In the 1980's we used to get credit card forms sent as spam offering all sorts of credit.

 

So back to the argument of "application form vs agreement".

 

I apply for a firearms license. It is an application form.

 

UNLESS on that application form I am advised of ALL the rules and regulations (e.g. what safety I must have in my home such as security so the firearm cannot be stolen, how am I to keep the cartridges away from the firearm, how am I to store the cartridges, what security I have to have in my car when travelling with said firearm etc etc) then it is simply An Application.

 

It is only once the application is approved, I am given the terms and conditions and I agree to them that we have an agreement.

 

And that is where the 1974 CCA "kicks in". Because it says "An executed agreement". An application form is not an agreement. It is simply "I have read your basic conditions. I wish to apply for credit".

 

It IS at the end of the day, the creditors perogative to make sure that before giving credit (lending money) they have themselves protected so they get the money back. IF the creditor decided to "cut corners" (such as for example not keeping copies of the original executed agreements to save on storage space) then the old saying "kicks in" and that saying is: A fool and his money are soon parted. (Doubt that will say that in the House of Lords :D )

[paulwlton]

To reiterate - when a layperson steps into court to challenge their application/agreement it's all down to the "judge lottery"

 

PW

[davefirewalker]

more or less pathetic than the attached?

 

I thought mine was bad.......yours doesnt even contain "this is a credit agreement regulated by the CCA1974, sign only if you wish to be bound by its terms"

 

What can they hope to achieve with that

 

Dave

[vint1954]

any better?

 

http://i131.photobucket.com/albums/p316/Gee-dub-ya/replies/img022.jpg

There are no prescribed terms on this document, so it would be unenforcable, unless they manage to find the actual document with PT's on the reverse. Even then I have always argued that the signature needs to come after the prescribed terms.