Cap1 & CCA return

[tamadus]

Tamadus: Are Barclaysharks and Lloyds IOU now classed as criminals? I hope the answer is yes. In about an hour im going to post something that is going to blow everything out of the water.Watch this space.

 

The 30 days allowed for them to reprieve themselves and surprise me expired YESTERDAY, so yes they are now in criminal default. Letter going to them both over the weekend.

 

OOOOOH any hope of a preview in email ??

[pford]

blow everything out of the water.Watch this space.

 

 

this just a small nuke then:D will be whatching

[tamadus]

I'll be watching lmao

[Guest The Terminator]

This resolves around a case which happened in 1999 but through appeals etc it wasn't sorted by the law lords until 2003 but another appeal was then made in 2005.I don't expect anybody to read all the various texts since 1999 its taken me most of the day to read it and to take everything in and I would not post it unless I thought it was going to be of benifit to everybody.I managed to speak to a solicitor friend of mine earlier and asked him if he could look over the links I provided to him and get back to me asap because I am conteplating legal action against a few CC providers having found flaws in the law.At about 7.30 he rung me back and he said to me and I quote" You have got techinaclly every loan company, CCC,finiancial institution etc by the short and curleys in fact their best bet it to settle out of court of leave it sine die.Anyway back to the link I suggest you dont read the whole judgement but read the following para's 1,2,3 will give you the jest of the case.But it is the following para's you really need to read: 78,123,145,173,219,220 these are the opinions of the Law Lords or you could say the precedent.

 

Wilson & Ors v. Secretary of State for Trade and Industry [2003] UKHL 40 (10 July 2003)

 

Verdict:Ms Wilson has not only been very clever here but has used the law to her advantage.I will leave it up to yourselves to form your own opinions and if the men in black are watching you have just been terminated.

[tamadus]

OK letter to Barclaycard and Lloyds TSB drafted and posted here for comments.

 

I refer to my letters dated 17th August 2006 which was delivered via recorded delivery to your offices on 21 August 2006, and my follow up letter dated 15 September 2006.

In my letter of 17 August I made a formal request for a copy of the signed, executed credit agreement for the above numbered Barclaycard account under section 77(1) and section 78(1) of the Consumer Credit Act. In addition a statement of my account should have been sent along with any other document mentioned in the credit agreement.

The Consumer Credit Act allows 12 working days for this request to be carried out before your company enter into a default situation. If the request is not satisfied after a further 30 calendar days, Your company commit an offence. These time limits expired on 5 September 2006 and 5 October 2006 respectively.

As you are no doubt aware subsection (6) states:

If the creditor under an agreement fails to comply with subsection (1)—

(a) He is not entitled, while the default continues, to enforce the agreement; and

(b) If the default continues for one month he commits an offence.

Therefore as at 5 October 2006 this account became unenforceable at law and it is now my intention to refer this matter to the enforcement authorities.

In addition it is also my intention to notify CCCS that this account is no longer enforceable and that payments to it should cease immediately. Any default notices or adverse comments your company have recorded on my credit reference file should be immediately removed.

Additionally any monies I may have paid to your company should be returned to me forthwith.

Failure to respond favorably to this letter within seven (7) days of receipt will result in immediate litigation being commenced against your company without further notice.

I await your rapid response.

Yours Faithfully

Tamadus

[Guest The Terminator]

Tamadus: Very good letter shouldn't be a problem there..Just to confuse them I would have proberly thrown a few latin words in.

[tamadus]

Thanks Terminator, lets hope it has the desired affect.

 

Just been looking through that appeal to the House of Lords, thats another appeal of the case you posted a few days ago. Great find and it makes me even more convinced we are right in our thinking. Now I am tempted to challenge their adding charges into our account balances as that will affect the amount of credit.

 

It was nice to see that every one of the Law Lords agreed totally with her appeal verdict.

[pford]

know dout you will already know about this one but hear it is again

Woodchester v Swayne & Co [1998] EWCA Civ 1209 (14 July 1998)

[tamadus]

know dout you will already know about this one but hear it is again

Woodchester v Swayne & Co [1998] EWCA Civ 1209 (14 July 1998)

 

Thanks for that pford, I actually hadnt read that case. Nice precedent where a default notice isn't exactly right in what it says.

 

For the men in black reading this ..... Watch out Tamadus and Terminator are on your case now.

[pford]

what’s the nuke at now a 3 or 4 yield

[tamadus]

what’s the nuke at now a 3 or 4 yield

 

I have a feeling the credit industry is about to find out what the Big Bang at the start of the universe felt like

 

So Barclaycard want to hide behind their stupid microfiche argument do they ? Lets see what you make of CCA sections 78 and 85 fired both barrels at point blank range

[pugsley]

I will have access to the legal gateways via lexis nexis athens account, next week, which includes butterworth's direct , lawtel etc, so pm me if you need anything looked up.

[tamadus]

Many thanks pugsley I am sure we will

[Guest The Terminator]

Thanks pugsley.I can get into most of them except lawtel. Anyway going on last nights post and having spent this morning reading up on it yet again in my opinion all agreements from 1999 onwards are null and void and I think the law lords have proved that.It would seem to me that nothing is enforceable might be the reason why I haven't heard from MBUSA in the last week

[un1boy]

OK letter to Barclaycard and Lloyds TSB drafted and posted here for comments.

 

I refer to my letters dated 17th August 2006 which was delivered via recorded delivery to your offices on 21 August 2006, and my follow up letter dated 15 September 2006.

 

In my letter of 17 August I made a formal request for a copy of the signed, executed credit agreement for the above numbered Barclaycard account under section 77(1) and section 78(1) of the Consumer Credit Act. In addition a statement of my account should have been sent along with any other document mentioned in the credit agreement.

 

The Consumer Credit Act allows 12 working days for this request to be carried out before your company enter into a default situation. If the request is not satisfied after a further 30 calendar days, Your company commit an offence. These time limits expired on 5 September 2006 and 5 October 2006 respectively.

 

As you are no doubt aware subsection (6) states:

 

If the creditor under an agreement fails to comply with subsection (1)—

 

(a) He is not entitled, while the default continues, to enforce the agreement; and

(b) If the default continues for one month he commits an offence.

 

Therefore as at 5 October 2006 this account became unenforceable at law and it is now my intention to refer this matter to the enforcement authorities.

 

In addition it is also my intention to notify CCCS that this account is no longer enforceable and that payments to it should cease immediately. Any default notices or adverse comments your company have recorded on my credit reference file should be immediately removed.

 

Additionally any monies I may have paid to your company should be returned to me forthwith.

 

Failure to respond favorably to this letter within seven (7) days of receipt will result in immediate litigation being commenced against your company without further notice.

 

I await your rapid response.

 

Yours Faithfully

 

 

 

Tamadus

 

Hi Tamadus,

 

I'm a bit confused as to what you are trying to achieve with this. Are you asking for an original copy of the credit agrrement?

 

What has this got to do with a copy of the agreement beign sent with each card?

[tamadus]

un1boy,

 

I made a request for a copy of the original, signed , executed credit agreement under section 77 and 78 before I realised that section 85 had a very similar although not exactly the same affect.

 

If the don't or can't supply the agreement under section 77/78 then again the agreement is unenforceable as long as they are in default. So until they produce the document the only thing they can do (and it's unlikely they will do it) is to go to court and ask a Judge to enforce the debt. A Judge is unlikely to do that just because they ask and may or may not have an application form. Without that paper they effectively have to write off the entire debt. In addition if the debt doesnt exist today then in the eyes of the law it has never existed, ergo they have to repay any interest etc they have charged me since the day it began.

 

Both Barclaycard and Lloyds TSB Trustcard have now exceeded the time allowed by the CCA and are effectively in criminal default. They cannot enforce the debt ouytstanding or pass it to any other company for enforcement.

 

I promise they will try and fight this but they can only win if they have that paper and they are then going to have to explain to a court why they didn't produce it within the allowed timespan.

 

As I fallback in case they do produce it and save their necks after the fact I will then drop back to using section 85 and again they cannot profit while in default so have to refund about 25 years of interest.

 

I only ever started looking into this because they hide behind their microfiche argument and refuse to provide data under my S.A.R - (Subject Access Request) request

 

footnote for the men in black: try stalling my claim and I will hit you with a section 85 claim. You should know what that means. heck I might do it anyway just for fun:D

[un1boy]

un1boy,

 

I made a request for a copy of the original, signed , executed credit agreement under section 77 and 78 before I realised that section 85 had a very similar although not exactly the same affect.

 

If the don't or can't supply the agreement under section 77/78 then again the agreement is unenforceable as long as they are in default. So until they produce the document the only thing they can do (and it's unlikely they will do it) is to go to court and ask a Judge to enforce the debt. A Judge is unlikely to do that just because they ask and may or may not have an application form. Without that paper they effectively have to write off the entire debt. In addition if the debt doesnt exist today then in the eyes of the law it has never existed, ergo they have to repay any interest etc they have charged me since the day it began.

 

Both Barclaycard and Lloyds TSB Trustcard have now exceeded the time allowed by the CCA and are effectively in criminal default. They cannot enforce the debt ouytstanding or pass it to any other company for enforcement.

 

I promise they will try and fight this but they can only win if they have that paper and they are then going to have to explain to a court why they didn't produce it within the allowed timespan.

 

As I fallback in case they do produce it and save their necks after the fact I will then drop back to using section 85 and again they cannot profit while in default so have to refund about 25 years of interest.

 

I only ever started looking into this because they hide behind their microfiche argument and refuse to provide data under my S.A.R - (Subject Access Request) request

 

footnote for the men in black: try stalling my claim and I will hit you with a section 85 claim. You should know what that means. heck I might do it anyway just for fun:D

 

Hi there,

 

Thanks for this. so, is the request youa re sending now a request for docs under sec 85? That's what's confusing I think, lol. sorry.

[tamadus]

Hi there,

 

Thanks for this. so, is the request youa re sending now a request for docs under sec 85? That's what's confusing I think, lol. sorry.

 

Nope lol I am following up and chasing them for failing to provide the signed agreement under a section 78 request I made in mid August. Its very similar but I need to follow this as it was started before we realised the implication of section 85. That will follow if they do happen to come though with my 78 request.

 

Just as an example of their complacency I wrote to GE Money on 25 September telling them they had now exceeded the 40 days allowed for an S.A.R - (Subject Access Request) under the Data Protection Act. I got a reply yesterday letting me know they have received my request and would send the documents within the next 40 days as allowed by the Data Protection Act :o Sorry GE Money your in breach of the DPA and I am on your case now as well In addition they passed it to a DCA even though the account is in dispute so tough luck GE Money I don't deal with DCA's who should not be involved according to law.

[reidnet]

Nope lol I am following up and chasing them for failing to provide the signed agreement under a section 78 request I made in mid August. Its very similar but I need to follow this as it was started before we realised the implication of section 78. That will follow if they do happen to come though with my 78 request.

 

Just as an example of their complacency I wrote to GE Money on 25 September telling them they had now exceeded the 40 days allowed for an S.A.R - (Subject Access Request) under the Data Protection Act. I got a reply yesterday letting me know they have received my request and would send the documents within the next 40 days as allowed by the Data Protection Act :o Sorry GE Money your in breach of the DPA and I am on your case now as well In addition they passed it to a DCA even though the account is in dispute so tough luck GE Money I don't deal with DCA's who should not be involved according to law.

 

Im dealing with GE Money too..They are pure crap to deal with..lol, They have until tuesday to get back to me otherwise Im off to see about getting Solicitor to take case on.. If goes well claim is for around £31000.00

 

Ian

[gargoil]

Hi tamadus, I am at a similar stage to you with 2 DCAs who have defaulted. I have sent a similar letter to the above to both of them requesting removal of default and notification that the account is settled. I have given them 14 days to comply. I had a reply from one of the DCAs apologising for the delay and they will send out the agreement shortly. I have written back stating they were unable to send it out in the timelimits as detailed in the cca section 78(1) and will still be proceding with court action at the end of my 14 days regardless. I am wondering if you or any other readers have filled out a particulars of claim for court summond that I could utilise as a template for my own? Also do you agree the best action is to ask for a small amount (£100?) in compensation and removal of default so the action is put through small claims court? Or am I best to go thefull shilling and DPA SAR the DCA and put in a small claim for the monie sI have alreday paid to the DCA? Surely they are more likely to defend such an action?

[Guest The Terminator]

Hi there,

 

Thanks for this. so, is the request youa re sending now a request for docs under sec 85? That's what's confusing I think, lol. sorry.

 

The point we are all trying to make is that when the T&C's were drawn up some bright spark forgot to read the CCA(1974) and all the associated legalistion.So what we have now is that by finding the sections of the act which refer to the CC company being in default the consumer you could say is in the "driving seat".In law all the CC company's are in breach of their own terms and conditions due to the fact of unlawful charges. So reading below and this is contract law will give you a breif idea of how the terms and conditions become unenforceable:

 

1. Void contracts

A "void contract" is one where the whole transaction is regarded as a nullity. It means that at no time has there been a contract between the parties. Any goods or money obtained under the agreement must be returned. Where items have been resold to a third party, they may be recovered by the original owner.

2. Voidable contracts

A contract which is voidable operates in every respect as a valid contract unless and until one of the parties takes steps to avoid it. Anything obtained under the contract must be returned, insofar as this is possible. If goods have been resold before the contract was avoided, the original owner will not be able to reclaim them.

 

3. Unenforceable contracts

An unenforceable contract is a valid contract but it cannot be enforced in the courts if one of the parties refuses to carry out its terms. Items received under the contract cannot generally be reclaimed.

As Tamadus has already pointed out (3) unenforcability of a contract because the credit provider is in default by not following the law.In my opinion the finiancial institutions are living on borrowed time.Wilson vs First County Trust went to the COA 3 times and to the Law Lords and every time Wilson won the appeal because FCT couldn't get their paperwork in order.Judges are only interested in the paperwork.What are the chances of a CCP finding paperwork from 20+ years ago? I'd say that the odds are stacked against them as no paperwork no evidence. Then there is the harrassement issues,the banks have had it their own way for too long and it's now time for the consumer to bite back or in the Terminator's case to put a massive great dent in their finiances.

[Mike220359]

Further to post 147.

 

I know that it is tempting Tam, but unfortunatly the Limitations Act (section 6) precludes any monies older than six years. There are exceptions under the Theft Act but in MHO I think there application are tenuous to say the least.

 

Further to my earlier posts still , havent heard anything regarding section 85, from any of the three I'm dealing with, reporting them this coming weeknd, even though one cheeky ba*****d said that they would get back to me by the 30th October 2006.

 

Mike

[MoonHawk]

A very interesting thread. Great work you are doing guys and I, like many shall follow

 

I have a question if anyone can answer. How does this work with catalogue companies. My wife has several accounts, where she was sent a contract to sign and I know for a fact she never signed or sent them back. So does that make the contract void? Does the same rule apply to their interest charges as has been mentioned in this thread?

 

Best Wishes

MoonHawk

[tamadus]

ok folks sorry been up to my neck in my real job last few days. Thanks for looking after things Terminator.

 

Basically a credit agreement has to be signed by both parties. If it isnt then it is unenforceable. This applies to CC companies banks , pawnbrokers, and catalogue companies. If they supply credit either through a running credit or fixed credit agreement then that agreement is regulated by the CCA and comes under its terms and conditions. If they fail to keep proper records or follow the CCA then they are liable.

 

If they cant or wont produce the documentation for the customer a judge is going to take a dim view of it if they then try to have it enforced in court whether they produce the documents or not. A court is very unlikely to enforce it without that paperwork.

 

Mike, I actually dont think time limits will play an important part as we can prove criminal negligence (or intent) by these companies to decieve us all over a period of many years. The deception is paramount as others have said to offences under the theft act. If an individual can be prosecuted 20 years after commiting theft so can a bank or CC company. We are actually talking public fraud on a big scale here, once this breaks its going to mean open season. I am actually scared to think what the total amount might involve.

 

They are not allowed to make a profit while in default, if that default goes back more than 6 years as a result of their deception why should we, the consumer lose? for a court to enforce time limits would be paramount to allowing them to profit over several years because of our trust in the banks etc. If we lose because of it then they are profiting.

 

This whole situation of them being in default has been created by themselves, I cannot see any court allowing them to make millions in profit from their offences. I am tempted to think they are also guilty of money laundering offences by profiting whilst in default.

 

As Terminator has said the Wilson v First County Trust (and other cases) have proved the point on every occasion including the House of Lords. Legal precedent has already been established to some degree regarding unenforceable contracts.

 

My guess is the companies will either try and go to court to bully us out of it or pay up and want confidentially agreements for as long as they can keep it quiet.

 

had chance to speak to a solicitor friend today who immediately grabbed his books and cross referenced with new updates of the CCA. Just like Terminators solicitor friend he confirmed they are in deep doo doo. In fact his entire office went silent before exploding

 

Letters have gone to both Barclaycard and Lloyds TSB under section 78(1) who are both noticeable by their silence so far, the bang when it happens is expected to be off the Richter scale

[un1boy]

ok folks sorry been up to my neck in my real job last few days. Thanks for looking after things Terminator.

 

Basically a credit agreement has to be signed by both parties. If it isnt then it is unenforceable. This applies to CC companies banks , pawnbrokers, and catalogue companies. If they supply credit either through a running credit or fixed credit agreement then that agreement is regulated by the CCA and comes under its terms and conditions. If they fail to keep proper records or follow the CCA then they are liable.

 

If they cant or wont produce the documentation for the customer a judge is going to take a dim view of it if they then try to have it enforced in court whether they produce the documents or not. A court is very unlikely to enforce it without that paperwork.

 

Mike, I actually dont think time limits will play an important part as we can prove criminal negligence (or intent) by these companies to decieve us all over a period of many years. The deception is paramount as others have said to offences under the theft act. If an individual can be prosecuted 20 years after commiting theft so can a bank or CC company. We are actually talking public fraud on a big scale here, once this breaks its going to mean open season. I am actually scared to think what the total amount might involve.

 

They are not allowed to make a profit while in default, if that default goes back more than 6 years as a result of their deception why should we, the consumer lose? for a court to enforce time limits would be paramount to allowing them to profit over several years because of our trust in the banks etc. If we lose because of it then they are profiting.

 

This whole situation of them being in default has been created by themselves, I cannot see any court allowing them to make millions in profit from their offences. I am tempted to think they are also guilty of money laundering offences by profiting whilst in default.

 

As Terminator has said the Wilson v First County Trust (and other cases) have proved the point on every occasion including the House of Lords. Legal precedent has already been established to some degree regarding unenforceable contracts.

 

My guess is the companies will either try and go to court to bully us out of it or pay up and want confidentially agreements for as long as they can keep it quiet.

 

had chance to speak to a solicitor friend today who immediately grabbed his books and cross referenced with new updates of the CCA. Just like Terminators solicitor friend he confirmed they are in deep doo doo. In fact his entire office went silent before exploding

 

Letters have gone to both Barclaycard and Lloyds TSB under section 78(1) who are both noticeable by their silence so far, the bang when it happens is expected to be off the Richter scale

 

Thanks for this info. I have been supplied with the agreement for ym credit card, which was signed by me on one date and signed beneath by the bank on the day before!!!!

 

Is that leagal? Wouldn't they need to sign it on the same day/at the same time?