Cap1 & CCA return

[Blossomandebony]

but if this was a small claims court, they cant add costs...

 

Yeah, that's a misconception that a lot of people have.

 

The DJ explained to me when he would award costs in a small claim claims court: it is

 

1) when one side has either acted unreasonably, or

 

2) when one side had vexatiously pursued a case which they had no chance of winning, in effect wasting everybody's time.

 

The DJ also said although he has awarded costs in several cases it is not a frequent occurence.

 

In my case, the Co-Op were saying, "We settled this claim in Feb 2006 by paying the customer his charges, and sending the Credit Agreement. The claimant has known this, yet pursued the case to the court stage, even though there is nothing to settle." Whether or not the judge would have listened to their argument we'll never know.

 

This was an unusual case and I wouldn't want to put anyone off going to court - just be aware of what these companies may try to wriggle out of having to face the judge . . .

 

Cheers

[davefirewalker]

Hi b+e

 

yeah I do realise that...what i should have said is that they dont normally award costs.....and I didnt really look far enough into your case

 

a good outcome though, no fingers burned

 

Dave

[asr2]

If the issue number, the security code,on the back changes with each card does this not constitute a 'new agreement' as this happens with each new card???????

[ian1969uk]

If the issue number, the security code,on the back changes with each card does this not constitute a 'new agreement' as this happens with each new card???????

 

No it doesn't.

[ncf355]

asr -

 

These changes do not create a new agreement - even the card number can change, the underlying account number remains the same

 

However (if you havent seen this in this thread) Section 85 of the CCA 1974 requires the creditor to supply a true copy of the original executed agreement with any new card ("credit token" in the words of the CCA 74)issued

 

If they do not comply with this (and most, if not all, do not - they tend to supply an "industry standard" card carrier instead), 12 workings days + 1 calendar month later they may not enforce the agreement

[davefirewalker]

Hi NCF

 

basically correct...but I think you will find that if they dont supply the original they can supply a new one but with all the variations of terms that have happened listed.

 

Copies of agreements or security instruments where the agreement or security instrument has been varied

 

 

7.--(1) Where an agreement has been varied in accordance with section 82(1) of the Act, every copy of the executed agreement given to a debtor, hirer or surety under any provision of the Act other than section 85(1) shall include either-

 

(a) an easily legible copy of the latest notice of variation given in accordance with section 82(1) of the Act relating to each discrete term of the agreement which has been varied; or

 

(b) an easily legible statement of the terms of the agreement as varied in accordance with section 82( 1) of the Act.

 

(2) Where a security provided in relation to a regulated agreement has been varied, every copy of the security instrument relating to it given to a debtor, hirer or surety under any provision of the Act shall include either-

 

(a) an easily legible copy of any document varying the security; or

 

(b) an easily legible statement of the terms of the security as varied.

 

 

rgds

 

Dave

[humbleman]

Where does one stand if the creditor decides to change the credit card number and the number shown on an application form differs to the one currently being persued.

[davefirewalker]

Where does one stand if the creditor decides to change the credit card number and the number shown on an application form differs to the one currently being persued.

 

Your "account" with them hasnt changed......just the card reference no. the terms you agreed to will include somewhere that "from time to time they will monitor your account and may change or restrict your card".

 

the agreement you signed will probably NOT have a card no. on it..it will be issued later.

 

its the general agreement for credit that hasnt changed

 

rgds

 

Dave

[B3rty]

Any thoughts on this

My defaulted First Direct credit card debt was cleared by FD when they created a new savings account and transferred the amount to the credit agreement to clear the debt, they then defaulted the new account on the same day and have since sold this to a DCA.

I have CCA’d the DCA who say this is a bank account and not covered by section 77 CCA as the agreement was terminated, looking through the CCA I can’t see anything that’s relevant to this as technically the debt is clear

However since I did not agree to the new account, did not sign anything I wonder how this would stand up in court and whether FD are in breach of any rules as the “ if any” rule only applies to non written agreements, and I haven’t agreed so this can’t be a non written agreement.

I am going to need help on this and will start a new thread at the appropriate time but read this great debate and understand that there are knowledgeable folk here so just need pointing in the right direction re legal aspects i.e CCA/ LOP ect so I can go and do my research

Thanks

Berty

[davefirewalker]

hmmmmm this sounds worryingly like a new strategy.....

will have to think on this, I can see it happening more and more if it proves successful....

 

you will have to look at your agreement to see if they are allowed to do this

 

did they issue any default notices ?

 

if they did and the ammount included penalty charges then the default notice is void..and so might the contract...."unlawful rescission of contract" I believe.

 

need to think more on this

 

Dave

[car2403]

Any thoughts on this

 

My defaulted First Direct credit card debt was cleared by FD when they created a new savings account and transferred the amount to the credit agreement to clear the debt, they then defaulted the new account on the same day and have since sold this to a DCA.

 

 

Did they do this with your permission? I'm no expert, but it sounds like fraud if they didn't!

 

Also, how can they default you (even if it is an account rather than an agreement) on the 1st day of opening it? Doesn't make sense to me that...

 

I have CCA’d the DCA who say this is a bank account and not covered by section 77 CCA as the agreement was terminated, looking through the CCA I can’t see anything that’s relevant to this as technically the debt is clear

 

Yes, s.77 won't apply to the old agreement as there is no balance. You could send off a DPA SAR to see what comes back though.

 

The account will be regulated by the FSA, rather than the CCA - but if it's an overdraft, they need to have complied with the OFT's s.74 Determination. More on this here;

 

http://www.consumeractiongroup.co.uk/forum/general-debt/31515-ccas-overdrafts.html?highlight=overdrafts

 

However since I did not agree to the new account, did not sign anything I wonder how this would stand up in court and whether FD are in breach of any rules as the “ if any” rule only applies to non written agreements, and I haven’t agreed so this can’t be a non written agreement.

 

Again, sounds like fraud to me, but I'm sure an expert on this will reply in comment.

 

I am going to need help on this and will start a new thread at the appropriate time but read this great debate and understand that there are knowledgeable folk here so just need pointing in the right direction re legal aspects i.e CCA/ LOP ect so I can go and do my research

 

Sounds like a good idea.

 

My initial thoughts were around unlawful Default too, Dave.

[davefirewalker]

Although the account is closed wether by fair means or foul...you can still SAR them and get a copy of the "agreement" that they hold..if it doesnt cut the mustard...then its happy days....

 

Dave

[B3rty]

Thanks for the replies

 

As it happens when they sold the debt they sold a current account that I didn’t use that had a .76p balance so the DCA is actually bought an account to which I can prove has never been in default I have written a pretty strong letter to them with copies of the account showing the status asking them to acknowledge their error and quoting the usual unlawful and vexatious stuff plus data protection regs ect and advising them that I will report them if they don’t deal with this with in 14days so I will wait and see what comes back before taking further action but I don’t want to draw too much attention to this with the bank as they may see their error and try and rectify it…..

 

However its frightening to think that banks are dealing with CC debt in this way and anyone with a bank issued credit card needs to be prepared…its interesting that they used a savings account rather then a current account and I wondered if there were something in the terms that gave them a loop hole, when I spoke to the bank they said they always use savings accounts

 

Just looking at something Rory32 posted in the thread link above, I cant see how this type of transaction can be legal and form part of any agreement without the debtors agreeing to it

 

THE DETERMINATION

 

]The Determination (which is signed by the Director of Fair Trading) is made under section 74(3) of the Act. I set it out in full:

 

1. Under the powers conferred upon me by Sections 74(3) and (3A) and 133 of the Consumer Credit 1974, I, the Director General, being satisfied that it would not be against the public interest to do so, hereby revoke with effect from 1st February 1990 the Determination made by me in respect of Section 74(1)(b) and dated 3 November 1983 and now determine that with effect from 1st February 1990 Section 74(1)(b) shall apply to every debtor-creditor agreement enabling the debtor to overdraw on a current account, under which the creditor is a bank.

 

2. This Determination is made subject to the following conditions:-

(a) that the creditor shall have informed my Office in writing of his general intention to enter into agreements to which the Determination will apply;

(b) that where there is an agreement between a creditor and a debtor for the granting of credit in the form of an advance on a current account, the debtor shall be informed at the time or before the agreement is concluded:

of the credit limit, if any,

- of the annual rate of interest and the charges applicable from the time the agreement is concluded and the conditions under which these may be amended,of the procedure for terminating the agreement;and this information shall be confirmed in writing.

© that where a debtor overdraws his current account with the tacit agreement of the creditor and that account remains overdrawn for more than 3 months, the creditor must inform the debtor in writing not later than 7 days after the end of that 3 month period of the annual rate of interest and charges applicable.

 

3. In this Determination the terms 'creditor' and 'debtor' shall have the meanings assigned to them respectively by Section 189 of [the Act]. The term 'bank' includes the Bank of England and banks within the meaning of the Bankers' Books Evidence Act 1879 as amended.

[wednesday1867]

Berty, im in the same situation, i defaulted on a bank loan, my current account was closed with a positive balance a few months later. This was a few years ago.

 

I was paying it all back until they failed to supply my agreement for the loan, so i stopped paying.

 

To cut a long story short, the debt got sold, the new owners have started proceedings against me, but they have started proceedings on my bank account number, i have proof it was closed with a plus balance. Ive got a fortnight to sort out my defence.

 

This is my thread, getting some excellent help and info from pt

 

http://www.consumeractiongroup.co.uk/forum/general-debt/124165-claim-issued-against-me-2.html

[car2403]

Thanks for the replies

 

As it happens when they sold the debt they sold a current account that I didn’t use that had a .76p balance so the DCA is actually bought an account to which I can prove has never been in default I have written a pretty strong letter to them with copies of the account showing the status asking them to acknowledge their error and quoting the usual unlawful and vexatious stuff plus data protection regs ect and advising them that I will report them if they don’t deal with this with in 14days so I will wait and see what comes back before taking further action but I don’t want to draw too much attention to this with the bank as they may see their error and try and rectify it…..

 

However its frightening to think that banks are dealing with CC debt in this way and anyone with a bank issued credit card needs to be prepared…its interesting that they used a savings account rather then a current account and I wondered if there were something in the terms that gave them a loop hole, when I spoke to the bank they said they always use savings accounts

 

Just looking at something Rory32 posted in the thread link above, I cant see how this type of transaction can be legal and form part of any agreement without the debtors agreeing to it

 

THE DETERMINATION

 

]The Determination (which is signed by the Director of Fair Trading) is made under section 74(3) of the Act. I set it out in full:

 

1. Under the powers conferred upon me by Sections 74(3) and (3A) and 133 of the Consumer Credit 1974, I, the Director General, being satisfied that it would not be against the public interest to do so, hereby revoke with effect from 1st February 1990 the Determination made by me in respect of Section 74(1)(b) and dated 3 November 1983 and now determine that with effect from 1st February 1990 Section 74(1)(b) shall apply to every debtor-creditor agreement enabling the debtor to overdraw on a current account, under which the creditor is a bank.

 

2. This Determination is made subject to the following conditions:-

(a) that the creditor shall have informed my Office in writing of his general intention to enter into agreements to which the Determination will apply;

(b) that where there is an agreement between a creditor and a debtor for the granting of credit in the form of an advance on a current account, the debtor shall be informed at the time or before the agreement is concluded:

of the credit limit, if any,

- of the annual rate of interest and the charges applicable from the time the agreement is concluded and the conditions under which these may be amended,of the procedure for terminating the agreement;and this information shall be confirmed in writing.

© that where a debtor overdraws his current account with the tacit agreement of the creditor and that account remains overdrawn for more than 3 months, the creditor must inform the debtor in writing not later than 7 days after the end of that 3 month period of the annual rate of interest and charges applicable.

 

3. In this Determination the terms 'creditor' and 'debtor' shall have the meanings assigned to them respectively by Section 189 of [the Act]. The term 'bank' includes the Bank of England and banks within the meaning of the Bankers' Books Evidence Act 1879 as amended.

 

It is possible that this could be used without your knowledge, but the Bank will argue that they have complied with Determination and by using the overdraft, you have (albeit impliedly) agreed to the terms of the overdraft - the argument is that you shouldn't have drawn against the overdraft if you didn't agree to the terms and, by using it, have agreed to be bound by them.

 

Berty, im in the same situation, i defaulted on a bank loan, my current account was closed with a positive balance a few months later. This was a few years ago.

 

I was paying it all back until they failed to supply my agreement for the loan, so i stopped paying.

 

To cut a long story short, the debt got sold, the new owners have started proceedings against me, but they have started proceedings on my bank account number, i have proof it was closed with a plus balance. Ive got a fortnight to sort out my defence.

 

This is my thread, getting some excellent help and info from pt

 

http://www.consumeractiongroup.co.uk/forum/general-debt/124165-claim-issued-against-me-2.html

 

This could be the Bank claiming its right to "offset" one debt against another - if one account defaults they can use the balance of another to offset that debt if they go for recovery. This would have to be included in the T&C's of the accounts though, as there is no automatic right to offset in a legal sense.

 

A DPA SAR should reveal the relevant documentation, as mentioned above, which will either prove or disprove the existance of such T&C's.

[B3rty]

However the original debt was a credit card covered by the CCA 1974...I didn't request the use of an unauthorised overdraft to clear that account, or the setting up of a new account for this purpose and its a crafty way of setting aside their obligations under the CCA......

[deb4tlj]

Priority One recommended I get you guys to have a look at this one for me. I CCA'd A&L and this is what they sent back.

 

 

 

It's totally illegible even with a magnifying glass and I don't get the bit in the accompanying letter about it being a "copy of the Original Credit Card Application"? Also were 4 pages of T&C's headed CREDIT CARD AGREEMENT REGULATED BY THE CONSUMER CREDIT ACT 1974 (although the interest rate in here is stated as 24.9% when the original rate upon taking out the card was 15.9%), a recent statment of account (dated 1st December) and another sheet entitled MAKING A PAYMENT.

Any advice would be most welcome.

[PriorityOne]

Just to add that.... there is no credit limit on this doc... but Deb says it's on the back. IMO it's an Application... and even if it wasn't the credit limit would need to be a part of the signature document. It would also need to be legible.

 

Comments appreciated...

[deb4tlj]

Just to add that.... there is no credit limit on this doc... but Deb says it's on the back. IMO it's an Application... and even if it wasn't the credit limit would need to be a part of the signature document. It would also need to be legible.

 

Comments appreciated...

Can I just state that the information that is now on the back of the doc was not on the original one. Hi PO, feel like I have a fairy godmother now - or is that godfather?

[PriorityOne]

Can I just state that the information that is now on the back of the doc was not on the original one. Hi PO, feel like I have a fairy godmother now - or is that godfather?

 

I am definitely female, by the way.... lol ... just in case you think I'm stalking you round the CAG.... lol

[deb4tlj]

I am definitely female, by the way.... lol :grin: ... just in case you think I'm stalking you round the CAG.... lol

 

Always wanted a fairy godmother. :) XXXX

[Having_A_Knightmare]

Hi

 

If there is no Credit Limit on the Original front or back then it is unenforcable.

 

Deb4 have you got the original

[deb4tlj]

No. sorry HAK, I haven't got the original but I do recall at the time that I had to fill in the application form, send it off and then they sent me a letter stating that my credit limit was £1500.

[Having_A_Knightmare]

Tricky one this. Peter B the man for the job if he is around.

[car2403]

Just to add that.... there is no credit limit on this doc... but Deb says it's on the back. IMO it's an Application... and even if it wasn't the credit limit would need to be a part of the signature document. It would also need to be legible.

 

Comments appreciated...

 

It wouldn't need to be, would it, as SI 1553/1983 was obsolute after May 2005 and this was signed in 2006?

 

There's no statement of the protection/remedies available under the Act, so regardless it can only be improperly executed, IMHO. (The lack of credit limit on the same page as the document would seem to confirm this also?)

 

Have you send a S.A.R - (Subject Access Request) to get statements showing charges? Have they send you a copy of original Default notice, if applicable?

 

No. sorry HAK, I haven't got the original but I do recall at the time that I had to fill in the application form, send it off and then they sent me a letter stating that my credit limit was £1500.

 

Do you still have that letter?