Help required drafting defence for set aside application - CL Finance.B&Q store card (GE Money) now santander

[colin21958]

Hi Everyone,

 

I recently joined this site and have managed to obtain masses of very useful information for which I would like to thank everyone.

 

I recently sent out CCA letters to all my credit card issuers (11 in total; alll issued originally before April 2007).

 

I have received three responses so far (and the deadline for all the others is 18th August 2009, so they only have two postal days left!)

 

First:

 

Of the three I received, the first was from Santander (The agreement they have sent to me seems to be a printed version of a scanned document, which has been reduced in size making it very difficult to read and would definitely be illegible if I scanned it again to upload it here, so I have tried to analyse it myself and hope that someone can answer these questions for me…);

 

This was originally an agreement with GE Money for a card with an "Open Spend Period" and a “Spend Limit” at B&Q (making it a debtor-creditor-supplier agreement for restricted-use credit I believe?) which then became a fixed sum loan rather than a running credit facility.

 

Question 1: I presume that this agreement comes under the scope of s77 of the act rather than s78 for disclosure purposes, etc.?

 

The agreement doesn't mention a "Credit Limit" specifically, but rather refers to the "Spend Limit". It also says there is an initial spend limit of £5000 but that the spend limit may be changed from time to time and that this would be notified in writing…

 

Question 2: Does this satisfy the requirement to specify the Credit Limit?

 

The agreement they have sent is a copy of the original agreement which I did sign, however, the agreement also refers to other conditions which presumably are on another sheet which has not been supplied. It also seems to state two interest rates… Firstly there is a statement of “14.9% APR(Variable)” on its own. Then in a another place on the document it says that they “will charge interest at a rate of 13.970% per annum”

 

Question 3: Does this satisfy the requirement to show the interest rate to be charged adequately?

 

Second:

 

The second one is from Barclaycard:

 

All they sent was a letter stating the balance, payments, etc., and then another letter which enclosed a copy of their terms and conditions. No copy of the agreement has been received. I am therefore going to treat this as an indication that they don’t have an original signed agreement to send me and process it accordingly.

 

Third:

 

This was from Capital One. I received a leaflet “Important Information... About your … Card” and a “Terms of your Capital One Credit Card Agreement” letter which included a statement of the amount outstanding, but nothing about payments, etc. On the reverse of this letter is the terms and conditions of a credit card agreement, but has no personal information or signatures, etc. It is clearly just a “Standard Leaflet”, not part of any signed agreement and certainly not a "True copy" of the original. In their covering letter they said that “Your personal details, the signature box, signature and date of signature have been omitted from the copy provided as permitted under Regulation 3 of the Consumer Credit (Cancellation Notices and Copy Documents) Regulations 1983.”

 

Question 4: Am I right in assuming that this bit about the regulations is rubbish and that they should have provided a copy of the original agreement in its entirety?

 

I would appreciate all contributions and opinions. Many thanks.

[colin21958]

I have one more question in relation to another account. I have an account which was passed to a DCA who then issued court proceedings. I had offered to pay a reduced amount of £35 per month but they rejected this payment and the court was left to rule on my offer. The court made a ruling that I pay £31.60 per month! Now, my question is, if this account turns out to be legally uneforceable (as I believe it will be - they have not responded yet to my CCA letter and they only have until 19/08/09 to do so) how to I deal with the fact of the CCJ. Do I contact the court asking for this judgement to be removed? How do I do this? I am presuming they didn't need to produce the agreement in the proceedings for this? These are areas I have no idea about and would be very grateful if anyone could help point the way. Many thanks again.

[Genelover]

Im by no means an expert in any of this, but if you read through my thread you'll see that what you received from Barclaycard is exactly what I had!! The DCA is still pusuing a court claim, has come up with an application form and I assume is hoping that will be enough even though it doesnt contain prescribed terms. I guess it will just be down to teh judge on the day!

 

And yes, they can provide a 'true copy' omitting signature, etc, but if the case ends up in court, they will have to produce the original document. try writing and asking them if they are in possesion of the original - I have tried this with one creditor and they never replied - that was almost a year ago!

 

Sorry cant help with your other questions but I'm sure someone will eventually - you've come to the right place!

 

Good luck

[sunflower99]

Hi Collin

Bumping your thread as i not sure about the issue of what happens when a ccj has been applied to an account,I think i have seen other threads about it and hopefully another cagger will be along to advise you,However the ones that have not been enforced and are pre 2007 may have unenforceable agreements and even be shreeded particularly ones drawn up 2004 or before 2004 have a better chance of not being enforceable.If you look at my Barclayshark thread you may find some useful letters and advice on there as all Barclkayshark have supplied me with are unsigned ts and cs:)Here is link to thread!- http://www.consumeractiongroup.co.uk/forum/barclaycard/187749-barclaycard-response-my-cca-12.html

[colin21958]

Thank you both very much for your contributions. I will check out your threads.

[colin21958]

Is anyone out there? I am still hoping that someone may be able to help, particulary with the account which has a CCJ, but which I am fairly sure will be unenforceable.

[sunflower99]

Hi colin

Bumping your thread hope someone comes along soon to help you with ccj one.Have you written to any of the straight forward ones who you have not had a ccj with to say what they have sent you in not a proper reponse to a cca request ?

[creditcardmug]

Hi

Cap 1 never have agreements, only app forms containing no prescribed terms

Barclaycard likewise depending on the age of the agreement, so you should be ok with these

As to the one with a ccj, you will struggle to get this set-aside i feel, as you admitted the debt and made an offer of payment, you could try though, you could however apply to the court to have the payment amount reduced, should your circumstances mean you cant afford it

[colin21958]

Hi SF,

 

Yes, I have written to all the companies and have received replies from 4 (out of 10!). None of the 4 I have received are enforceable for very obvious reasons (missing terms, ones that are clearly only applications, etc., etc.,), the others haven't replied within the specified time limit, so I have sent them "default" letters telling them I need to see a "true copy" of an agreement or confirmation in writing whether or not one exists, reminding them that they cannot just "reconstruct an agreement" of which they hold no signed copy without committing an offence. They now have a limited time to confirm or otherwise. If any of them do confirm, I intend to issue them with a "disclosure before proceedings start" request under the Civil Proceedures Rules to see if what they hold really is enforceable or not. The one that concerns me most is the one with the CCJ. I only admitted to the debt because of their harrassing behaviour and threats which I didn't realise at the time they couldn't carry out! If I had known at the time that the debt was unenforceable I wouldn't have admitted to anything. Of course any lay person would probably have done the same thing. So, as I was effectively coerced into admitting something which I couldn't possibly have known for sure at the time, through threats, etc., I wonder if this argument would hold any water in terms of getting it set aside?

 

Thanks again for you help.

[colin21958]

Hi CCM,

 

Thanks for your contribution. I would like to attempt to get the judgement set aside. Do you know how I go about that?

 

Regards,

 

Colin.

[colin21958]

I would like someone to have a look at a CCA for me to see if they think it is enforceable or not. It is a GE Money agreement and whilst it seems to have everything else it needs there is no stated credit limit; it mentions a spend limit instead. I have scanned it and will post it on here if I can work out how! If anyone could let me into the secret of how to do that I would be really grateful! Thanks.

 

Colin

[cerberusalert]

If you upload them to TinyPic - Free Image Hosting, Photo Sharing & Video Hosting & then copy and paste the URL back here we'll be able to see them.

 

On the Tinypic page left click the 'choose' button & a seperate window will open, choose which file you want to upload and left click 'open', the window will close then left click 'upload now' button. Your document will upload to tiny pic & the page will refresh giving a list of links. Just copy & paste the Url link back here & we'll be able to see it.

[colin21958]

Thank you very much!

 

Here it is: (even though it says 1 of 4 at the top, this was all they sent me!)

[colin21958]

Hi,

 

I would really appreciate anyone's comments on this agreement shown

above. I am a bit confused by it because firstly I am not certain how it

would be classified. It was a B&Q Credit Card, and it was taken out for

doing a kitchen. It was obviously only to be used in B&Q (therefore making

it a Restricted Use Debtor-Creditor-Supplier type agreement. It had an

"Open" period of 6 months in which to make purchases, during this period

it was interest free. Then after this period no more purchases could be

made on it, so I would presume that makes it a fixed amount, fixed term

agreement?) Now, if I have determined all that correctly then I am trying

to determine the Prescribed terms for the agreement and its not as

straight forward as I thought it might be!

 

In Schedule 1 of the Consumer Credit (Agreements) Regs 1983, it

says that under paragraph 3 (if that applies?): Under the heading

"FINANCIAL AND RELATED PARTICULARS Description of goods, services, land etc"

3. Restricted-use debtor-creditor-supplier agreements for fixed-sum

credit to finance a transaction comprising the acquisition of goods,

services, land or other things specified in the agreement or identified and

agreed on at the time the agreement is made.

(For which column 2 says): A list or other description of the goods,

services or other things and, in the case of land, a general

description of the land, the acquisition of which is to be financed by

credit under the agreement.

On the agreement at the top it says "Major Project Category Kitchen" -

which I presume would probably satisfy that requiurement?

 

Under the Heading "Cash price":

4. Agreements falling within paragraph 3.

(For which column 2 says): The cash price in relation to each list or

other description of goods, services, land or other things, to be

shown under paragraph 3 above, and the total cash price.

As there is no "One Item" or "List of items" they do not apear to have

included such a term... They have a "Spend Limit" of £5000, but this is

hardly a "Cash Price" is it? And I suspect that is there in an attempt to

satisfy the next prescribed term...

 

Under the Heading "Amount of credit":

6. Agreements falling within paragraph 3 except agreements under

which both--

(a) the total amount payable by the debtor is not

greater than the total cash price referred to in

paragraph 4; and

(b) there is no advance payment falling within

paragraph 5.

(for which column 2 says):

The amount of the credit to be provided under the

agreement, namely the difference between the

total cash price to be shown under paragraph 4

above and the total of any advance payments to

be shown under paragraph 5 above.

Paragraph 5 doesn't apply because it is where the debtor has to make an

advance payment, eg., a deposit. So I deduce that there should still be a

"Cash Price" term? Which doesn't seem to appear anywhere.

 

7. Agreements for fixed-sum credit not falling

within paragraph 3.

(For which column 2 says): The amount of the credit to be provided

under the agreement.

So from this I am assuming there should be a term called "Amount of

Credit"? Which there certainly isn't!

 

Under the heading: "Term of the agreement"

8A. Agreements of fixed duration for running account credit.

(For which column 2 says): The duration of the agreement.

and

8B. Agreements for fixed-sum credit.

(For which column 2 says): The duration or minimum duration of the

agreement.

I can't see a term relating to either of these? I would presume therefore

that "Term of the agreement" is a prescribed term which is missing

whichever of these two it comes under?

 

Also, in schedule 6 (Prescribed Terms) it says:

(Column 1 Heading) : (1) TYPE OF AGREEMENT

(Column 2 Heading) : (2) PRESCRIBED TERMS

 

Under the heading: "Amount of credit"

1. Restricted-use debtor-creditor-supplier

agreements for fixed-sum credit--

(a) to finance a transaction comprising the

acquisition of goods, services, land or other things

specified in the agreement or identified and agreed

on at the time the agreement is made;

(b) under which the total amount payable by the

debtor is not greater than the total cash price; and

© under which there is no advance payment.

(For which column 2 says):

A term stating the amount of the credit, which may

be expressed as the total cash price of the goods,

services, land or other things, the acquisition of

which is to be financed by credit under the

agreement.

2. Agreements for fixed-sum credit not falling

within paragraph 1.

A term stating the amount of the credit.

I am of the opinion that paragraph 2 applies here because

the goods are not "identified" or listed in detail and the total

amount payable by the debtor would include interest and would

therefore be greater than the Cash Price as would have to be

the case for paragraph 1 to apply?

 

So again, if this is right (indeed whichever paragraph applies)

the prescribed term "Amount of Credit" seems to be required?

and I wouldn't therefore have thought that "Spend Limit" would

suffice ("Spend Limit" could of course have a number of different

meanings depending on individual's interpretation rather than

"Amount of Credit" which is defined within the ACT.).

I hope there is someone (preferably with legal experience) who

can help me with this very soon and give me their opinions of

my deductions... Thanks in

advance.

 

Colin

Edited August 30, 2009 by colin21958

[colin21958]

One more general question; this is with regard to "True Copies" of agreements; would it be fair to say that these should include the "APR"

and "Total Charge for Credit" as they were shown on the original agreement? I mention this because in response to my CCA request Barclaycard

sent a "Terms and Conditions" sheet (in fact two different versions) which is clearly a copy to be sent after an agreement has been entered into because under the Headings "APR" and "Total Charge for Credit" it says "Not applicable see below" and below is a statement which says

"Please note the APR and Total Charge for Credit are both statutory information that we are required to include when you enter into the agreement.

They are based on assumptions which we have to make at that time and are not therefore relevant to you after the agreement has

been entered into so these have been left blank...".

 

They are sort of confirming that this is not a true copy of the agreement anyway, aren't they!?

Edited August 30, 2009 by colin21958

[sunflower99]

Hi Colin

bumping your thread and hopeing someone with more knowledge of legal stuff will come along to advise.Only thing is it is a more recent agreement being near end of 2oo6 so there is more danger of it being an enforcreable one than one that may have been drawn up before 2004 ,But hope one of the more knowledgeable legal legal bods will look at thread and comment

[colin21958]

Thanks Sunflower,

 

I'm hoping someone will be able to help.

[*Sunny*]

Hi I have recently just started this whole process and wrote to my banks requesting for original signed copies of my CCA as under the act 1974.

Several have replied with unsigned copies - which i will be pursuing.

In addition Sainsburys and Halifax sent me unsigned copies with a cover letter stating that...

"The copy of the agreement enclosed with this letter complies with the requirements of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983. Regulation 3(2)(b) provides that a copy can ommit any signature box, signature or date of signature. In summary we are not required to produce a copy with your signature on it."

Can anyone advise on this? Is there anyway, by law, I can ask them give me a signed copy?

[colin21958]

Hi Sunny,

 

I am quite new to this myself, but I have already spent many, many hours reading threads all over this site; there is so much great information on here its almost difficult to know where to start! However, I also found and downloaded copies of tha CCA 1974 and the CC (Agreement) Regulations 1983 and have read them! (and printed out all the revelant sections so I can refer to them easier!) They make very difficult reading for laypersons such as me, however, I am now starting to understand some of it.

 

The point which you have raised is a very sticky one from what I gather. There are three avenues I have come across on this site to obtain copies of documents such as this;

1). The CCA request - which usually ends up producing a supposed "true copy" (although some companies seem to ignore these altogether; 4 out of 11 of mine did!). This "True copy" amounts quite often to an application form and some terms and conditions leaflets (or I have also received some copies of agreements which appear OK but have no signatures, dates, etc., on and could therefore be anything and certainly not necessarily a copy of something which was actually signed!). Under the CCA regulations what constitues a "true copy" is stated as something which reflects the contents of the original, but from which they are allowed to omit some details such as signatures, signature box, dates, etc. The rational behind this apparently being that a "true copy" could be produced on a typewriter rather than a photocopier and obviously goes back to times before reliable photocopying was possible and/or common/economical. But it must provide a true representation of the original document, but this certainly doesn't help in any way if you want to know what agreement you signed and indeed whether you actually did sign one!

 

By sending whatever document they send they usually state that they have fulfilled their obligations under this request (and it is impossible to know exactly what they have so there is no way you can be sure if this is true!), so it is then necessary to determine from what they do send, what they actually might have. If they send photocopies of signed documents, or at least what appear to be original documents with your personal data on them, then I would think it is quite likely that they really have sent copies of all they have, so you can probably make a fairly good assessment from these. However, if they send blank agreements, and the like, then this may mean they have nothing, or they may have something which they don't want to show early on for some reason (possibly so that they can send everyone the same thing whether or not they actually hold original documents, making it less certain for people whether to pursue it further or not.). I suppose the only good point here is that they assert that the copies they send are true copies, so if it later comes to light that they aren't this is likely to be a misleading action under Regulation 5 of the Consumer Protection from Unfair Trading Regulations 2008 and would also constitute an unfair or improper business practice, so they could suffer in some way from this I suppose, though I'm not quite sure in what way at the moment! (again hoping someone will help here!)

 

2). The Subject Access Request (under the Data Protection Act). From what I understand this is supposed to make them provide photocopies of everything they have, but again, it seems from what I have read on various threads thoughout the site they don't seem to comply this these very well either!

 

3). A request under the Civil Procedure Rules, which I gather is a much better option as they then must provide actual photocpoies of documents specifically requested; however, as I understand it, a court claim against you needs to have been instigated before this is applicable; if I am wrong here I am hoping someone more knowledgeable will correct me! However, in my opinion it may be worth getting to that point just to find out what they actually hold! If what they produce then is enforceable you can just admit the debt and try to make an arrangement with them for payment; failing which the court would make the order of what you pay if it continued and you lost. Of course you need to be aware that there are other things they could ask the courts for if you proceed with the court action, like charging orders, etc., however, as I understand it they can't just do this for no reason, you have to have at least defaulted on a payment arrangement first.

 

As I said above though, I am only just starting to learn all this so please take it all with a pinch of salt until someone who knows better confirms what I have said or corrects it where necessary!

 

I am also hoping someone with legal experience will come along soon and answer some of my questions on this thread.

 

Regards,

 

Colin

Edited August 31, 2009 by colin21958

[colin21958]

How many other people have experienced this problem...

 

I have now sent about 40 letters by recorded delivery and about a quarter of them are not recorded as having been delivered when I check on the post office track and trace site! Some of these have definietly been delivered because I have received replies to them, but others show as being accepted by the post office only and as I have not received replies to these I don't know whether they got them or not. I also tried calling the post office to check on the missing ones, but they obviously just checked the same system as I did as they gave the same response. So, how can you be sure they have got the letters if it doesn't show as being delivered? I think I read somewhere on this site something like, if the letter is sent by recorded delivery and is not returned within a few days it is assume to be delivered for legal purposes on the date it would normally be delivered by whatever class of delivery is used; does anyone know if this is correct and will stand up in court? Thanks.

[colin21958]

Is there anyone who can help me with this? I would really value peoples' opinion on "Spend Limit" as apposed to "Credit Limit" as one of the prescribed terms? I think this B & Q application may otherwise be enforceable, so I value all input. Especially if anyone has had dealings with this type of agreement before. Thanks.

 

Colin.

[sunflower99]

Hi Colin!

sorry no one been on to answer your query so bumping your thread,I suppouse spend liimit is snother word for credit limit .Perhaps they using a bit of psychology! LOL as the word Credit bring home to us more that the money is borrowed and we paying huge interest on it ! Where as spend does not sound quite so worrying !

[colin21958]

Hi Sunflower,

 

Thank you very much for contributing to this thread again. I agree that this type of psychology is probably the reason for using that term in the agreement; and certainly could suggest deviousness in the minds of those producing the document, but do you think it passes the legal test for being in there?

 

The word "Credit" is actually DEFINED in the act (s9(1)) so that there is no confusion about what it means and "Credit Limit" is actually DEFINED in relation to running-account credit in s10(2). It is obvious that the reason these terms are actually defined in the Act is so that there is no ambiguity as to their meaning in the mind of anyone referring to the Act! The fact that the word credit is used by Parliament I suggest is to actually emphasise to the comsumer that credit is actually what they are applying for and indeed to emphasise the fact that they are tying themselves in to paying enourmous amounts of interest! Otherwise why would they have been so specific about this word in the Act, even to go as far as defining it!? The term "Spend limit" is of course not defined in the act and so it's meaning is open to interpretation just like the term "Approved Limit" is on Egg agreements I would think? Again it may be telling you what you can spend on any one transaction, or what you can spend on one day, etc., but may not have anything to do with what money they will contribute towards this spend!? To analyse these terms, "Credit" (according to the Act's definition) is something THE CREDITOR PROVIDES, whereas "SPEND", which we must deduce from everyday language is something YOU DO (because it is not defined anywhere within the Act and it is therefore entirely down to common usuage as to what it means!). ALSO, there is no directly EXRESSED or even IMPLIED relationship between these two terms even in everyday language they are seperate and totally independant things!! i.e.,, you can spend without having credit and you can have credit and not have to spend the money provided! (e.g., you could invest it to earn more money than it costs in interest; there ARE ways of doing this!)

 

I realise that at the end of the day its going to depend on what some judge thinks, and therefore whether he thinks he has the right to enforce the agreement, but I think I would still agrgue that Parliament defined the term Credit limit for a reason; because that was the term they expected to be used so that there would be no ambiguity in the agreement as to exactly what it was for! Actually, I suppose in this particular agreement according to the Act it should state "Amount of Credit", not even credit limit as it is a restricted use fixed-sum credit agreement! And schedule 6 of the Regs states "Amount of Credit" as the prescribed term in relation to this type of agreement. These are my thoughts anyway.

 

Thanks again Sunflower, for creating some activity on this thread, perhaps someone else will come and let me know what they think too!

 

Regards,

 

Colin.

[colin21958]

I have recently received a notice of a "Judgement for Claimant (in Default)" for a court action which I was not even aware had been taken!

 

The debt which this relates to is now with CL Finance. It was originally a B&Q store card (with GE Money), which was later taken over by Santander - although I never received any notice of assignment about that! and was then sold to CL Finance recently. I did receive a notice of assigment about this transfer from CL Finance's solicitors, however, this was received at the same time as the court claim form and the court judgement was received!). The reason I did not receive these documents until after the judgement was because everything had been sent to my old address - I moved from that address back in 2006 and the company was well aware of this fact! I even have a letter from Santander sent to me at my current address which also included a "Statement of Account" showing my current address as part of a s78 request! (This was dated any months before the court action was filed!)

 

I had stopped paying this account some time ago and had received the s78 response. I had communicated with them several times showing my current address, yet it seems they then decided to file a claim using my old address! Almost seems delberate! I only just received the claim form, notice of assignment and court judgement because my ex-wife still lives at my old address and she passed them to me when she returned home after she had been out of the country for many months.

 

I therefore wish to get the judgement set aside and file a defence against this claim. I would be grateful if anyone could offer advice on this process. Thanks.

[dx100uk]

typical trick by cl finance

you have a very good chance of this being set aside.

 

i'd use the search in the blue bar above for cl finance

 

there are plenty of others that have suffered this trick

 

dx