Cap1 & CCA return

[Mike220359]

Here Here Terminator

Mike

[sam19677]

You are a tease!!!

[meagain]

All sections of every law should be taken in its context.If you read back through the posts you will see that I mentioned Wilson vs First County which proved that the CCA(1974) is not all one-sided in the banks,cc providers favour due to the way of it's interpratation.

 

Wilson makes reference to SS77/78, and was interpreted in the way we all thought it would - the documentation wasn't in order, so the agreement was unenforceable. It makes no reference to S85, and in the other case provided (1996), I believe the judge even stated that his belief was that there was no dispute over whether the agreement was in place.

 

If you look at the T&C of all the CC Providers you will find that they are not worth the paper that they are written on because everyone issued before May this year had the penalty charges written into them so therefore it would be an unfair contract, would be null and void and unenforceable.

 

Bzzt, wrong. R8(2) UTCCR: that little bit is unenforceable. If there's enough of the contract left, it can happily continue to exist, and not be null and void, just without the unfair bits in it.

 

As for S85 I have had this confirmed that what the law says must be complied with otherwise it is a breach not only of the law but of contract as well.

 

Well, duh. Unfortunately, all you've done in that last statement is use a lot of words to actually say nothing at all.

[Guest The Terminator]

Wilson makes reference to SS77/78, and was interpreted in the way we all thought it would - the documentation wasn't in order, so the agreement was unenforceable. It makes no reference to S85, and in the other case provided (1996), I believe the judge even stated that his belief was that there was no dispute over whether the agreement was in place.

 

 

 

Bzzt, wrong. R8(2) UTCCR: that little bit is unenforceable. If there's enough of the contract left, it can happily continue to exist, and not be null and void, just without the unfair bits in it.

 

 

 

Well, duh. Unfortunately, all you've done in that last statement is use a lot of words to actually say nothing at all.

 

Your starting to sound like the MIB read contract law

[meagain]

Your starting to sound like the MIB read contract law

 

Get over yourself. This "you're not agreeing with me therefore you're wrong" attitude isn't getting anyone anywhere.

[Guest The Terminator]

introduction To The Law Of Contract

 

 

 

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.

 

 

introduction To The Law Of Contract

 

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.

 

meagain said:

Get over yourself. This "you're not agreeing with me therefore you're wrong" attitude isn't getting anyone anywhere.

 

You are entitled to your own opinion the same as everybody else let's face it we are all in the same boat I personally think that there is a lot of scope to what everyone has said on this post.Oh by the way I was trying to post contract law but somehow I can't fit it in.I would however agree that the "attitude" is not getting anyone anywhere.

[meagain]

You haven't answered my points. Do you have a citation for the notion that the entire contract is unenforceable, as opposed to just those parts deemed unfair? Just that UTCCR states that if bits are unfair, and the rest of the contract can proceed as normal, then it does; just as also stated by the severability clauses in the contract itself (which, AIUI, are perfectly lawful).

 

As much as I admire what you're trying to achieve, a lot of people seem to be building their hopes on this already, when we're still not entirely certain of the implications of it all.

 

We all know contract law can be a minefield - which is why you see the same questions asked over and over again, and actually being answered, instead of simply "go read XYZ". If I'm missing something big in this picture, I'd appreciate seeing what it is and where I've got it wrong (because if I have, I won't be the only one).

 

If the pasting is a problem, perhaps drop in a link to wherever it is you're copying from? If you're copying from a file you've got locally, google "pastebin" for places you can dump the text.

 

As we all know, things can be a part of a contract without actually being written into the contract, and just because something is written in doesn't necessarily mean it is a part of it - which ultimately is where people first get confused over the whole charges issue.

 

I should probably add that I agree that the application form most likely doesn't meet the requirements for S78 (though some banks' recent application forms for credit cards do, but will more likely fail on being not properly executed).

[Guest The Terminator]

I have now pasted in the revelents parts of contract law for your perusal.

 

I'm not putting peoples hope's up and nor is Tamadus who started the thread.We beleive that the CCA is full of flaws and the CC providers have literally taken the p out of the consumer for years.As for T&C have you taken the time to read them because I have and I can see that there are many flaws that would make them not only unenforceable but also void.As for S85 that is written in plain English and can only be interprated in one way.

[meagain]

Evidently you're trying to copy/paste something. Where are you doing it from? Perhaps I can help in getting it to work?

[un1boy]

Meagain, is it possible to tell us what your expertise are on etc?

 

Many posts you make are all the same; abrupt; rarely positive and unhelpful.

 

I'm not having a go I am just interested in what your particular experience/expertise in these subjects is.

[tamadus]

This thread really has nothing to do with contract law. Its basis is the consumer credit act. Under section 77/78 if the company cannot produce a properly signed and executed credit agreement thet it is unenforceable as long as their default exists. No court will attempt to enforce a credit agreement without paperwork IMHO.

 

Again section 85 is very clear and specific. When a replacement card is provided a copy of the properly signed and executed agreement should also be provided. Again if its not forthcoming the company goes into a default situation and the agreement cannot be enforced whilst in default.

 

Also they cannot profit while in default so section 85 is fairly easy to get out of default with but no profit can be made whilst the default exists.

 

I am not making this up or embelishing it at all. It's very clear English and exists for a specific reason. My opinion is that it was to remind the consumer that it is a credit agreement we agreed to and signed.

 

The CCA clearly states that under section 77/78 and 85 that the agreement cannot be enforced while the default exists.

 

The laws are very clear and have been upheld in various, although slightly different circumstances.

 

Terminator take a look at section 129

 

That should cause a few headaches somewhere when you understand how the computer systems they use actually work. lol

 

The Terminator said:

I'm not putting peoples hope's up and nor is Tamadus who started the thread.We beleive that the CCA is full of flaws and the CC providers have literally taken the p out of the consumer for years.As for T&C have you taken the time to read them because I have and I can see that there are many flaws that would make them not only unenforceable but also void.As for S85 that is written in plain English and can only be interprated in one way.

 

I'm not convinced they are flaws and loopholes, as neither the 2004 or 2006 revisions have made any changes to them. If we remember the CCA was created in an attempt to protect the consumer rather than the companies, these sections actually make a lot of sense.

 

The consumer should have a legal right to the credit agreement at any time and should be reminded regularly that it does exist. The companies terms and conditions actually have very little effect as the CCA will overide them every time. Heck their terms and conditions of which they are so proud actually mean very little when read in conjunction with the CCA.

 

The worst they can do if we break their terms is cancel the agreement and issue a default (which can in itself be removed virtually immediately). Breaking the CCA is another matter altogether, and delves into the realms of criminal law.

 

One thing life has taught me is that civil law does not enjoy the basic fundamental of criminal law in having a certain amount of its basis in common sense. Criminal law is usually very clear cut and precise, only the sentencing defies belief. Breeches of section 77/78 and 85 clearly state an offence will be committed which action can be taken on by the appropriate enforcement agency.

 

I have today suspended all payments to Barclaycard as I promised them, Tomorrow I am going to refer them to the appropriate enforcement agency and see what their slant is on it.

 

I am not trying to build anybodies hopes up with this, but for the life of me I can't see how a non existant agreement can be enforced. I fail to see how it can be enforced when all 3 sections 77/78/85 clearly state it cant be enforced while the default exists. All 3 sections also clearly state that it has to be the executed agreement.

 

Similarly when they add a penalty charge to the account then it affects the total charge for credit and past cases such as Wilson must also come into the equation, but I think thats a totally new discussion.

 

Meagain this thread was started purely as a discussion on the CCA, I never intended or expected it to get any more than a few replies. The last thing I want or intended was to give anybody false hopes as I think I have already made clear. I have said several times I find it incredible the companies haven't addressed these points of law in the past. However my belief, and that of some others in this thread, is that the wording is so specific and remained that way through 2 revisions that it has always been there for the sole purpose of protecting the consumer.

 

I welcome any constructive comments that may add to the discussion but please lets keep them to the CCA.

[Gaz v]

Hi,

I have been reading this forum and there is some great stuff here. I have a few credit card defaults I wish to contest. many people have said that they sent letters from the templates supplied. I was wondering if anyone could help me. Which ones would I use and where would i find them?

 

Thanx in advance

 

Gaz

 

[tamadus]

Hi,

I have been reading this forum and there is some great stuff here. I have a few credit card defaults I wish to contest. many people have said that they sent letters from the templates supplied. I was wondering if anyone could help me. Which ones would I use and where would i find them?

 

Thanx in advance

 

Gaz

 

 

First you need to know what caused the default, so was the default amount less than any unlawful charges applied to the account, if so then you can ask they be removed on that basis as part of your claim.

 

Other methods basically involve using the various Acts of Parliament like the Data Protection Act to prevent automatic processing of the default.

 

The templates library is under Consumer Action Group heading but you need to be a member to access it.

 

You may get better advice in the 'Debt and Bailiffs' thread under General heading

[Mike220359]

Hiya Tam.

 

You poor devil you have been getting in the neck.

 

I endorse your standpoint, the CCA is a mechanism to safeguard the interests of consumers, initially enabling the establishment of safety nets, and preventing lenders (creditors) from using the power of debt to control lives.

 

Meagain, I'm not going to enter into any form of discussion on your standpoint I respect your view. However, if I did enter into an excahnge I'm sure that I would soon come to the decision that I was right.

 

Sections 77/78/85 are catch points to ensure that banks behave within the law. Hence the default, this allows judicial review of the situation, ostensibly allowing an arbeter to determine whether an agreement has been undertaken fairly by both parties. The fact that when a bank enters default and then does not refer the situation onto the courts leads me to question the behaviuor of the lender.

 

Is it that they are willing to let the debt lie in limbo? I don't think that is the case, since at the end of the day it is money that is not making money.

 

Is it that they are worried about bad publicity? I'm not sure about that one either, because although this site is doing a tremendous job, there still hasn't been a massive groudswell of opinion against the banks. Really the papers haven't really grasped the nettle either.

 

Is it the fact that they will get fined? Well there you have it, I think that's it in a nutshell. A level 4 or 5 fine on the standard scale is nothing to banks, its peanuts. However, the number of times a bank does get fined will cause the FSA to become involved, when that happens, they review a licence, think of the publicity when one of the big four goes to court to regain its lending permissions at which time it's behaviour becomes all to obvious to all and sundry. Politics get involved, even more legislation gets passed to protect the innocent and the banks get strapped even more.

 

No s77/78 and 85 are to protect US from THEM, as other writers have said, they use the CCA to hinder fairness and enjoyment of life (think of the defaults that are issued unlawfully, without care or concern) because they know in the vast majority of cases they can get away with it.

 

I'll get off me soapbox now.

Mike

 

ps Best wishes Tam and Terminator

[Guest The Terminator]

tamadus said:

 

The consumer should have a legal right to the credit agreement at any time and should be riminded regularly that it does exist. The companies terms and conditions actually have very little effect as the CCA will overide them every time. Heck their terms and conditions of which they are so proud actually mean very little when read in conjunction with the CCA.

 

I agree with you there Tamadus I was looking at the wider picture regarding contract law in conjunction with the CCA.

The worst they can do if we break their terms is cancel the agreement and issue a default (which can in itself be removed virtually immediately). Breaking the CCA is another matter altogether, and delves into the realms of criminal law.

 

A very good point but their criminality seems to be legal LOL

One thing life has taught me is that civil law does not enjoy the basic fundamental of criminal law in having a certain amount of its basis in common sense. Criminal law is usually very clear cut and precise, only the sentencing defies belief. Breeches of section 77/78 and 85 clearly state an offence will be committed which action can be taken on by the appropriate enforcement agency.

 

Life has taught me something as well. If you start something go the whole way so you've got my 100% support there.

 

I have today suspended all payments to Barclaycard as I promised them, Tomorrow I am going to refer them to the appropriate enforcement agency and see what their slant is on it.

 

Love it. Tamadus kicks butt lol

 

I am not trying to build anybodies hopes up with this, but for the life of me I can't see how a non existant agreement can be enforced. I fail to see how it can be enforced when all 3 sections 77/78/85 clearly state it cant be enforced while the default exists. All 3 sections also clearly state that it has to be the executed agreement.

 

Agreed

 

Similarly when they add a penalty charge to the account then it affects the total charge for credit and past cases such as Wilson must also come into the equation, but I think thats a totally new discussion.

 

Not to forget the missold PPI

 

Meagain this thread was started purely as a discussion on the CCA, I never intended or expected it to get any more than a few replies. The last thing I want or intended was to give anybody false hopes as I think I have already made clear. I have said several times I find it incredible the companies haven't addressed these points of law in the past. However my belief, and that of some others in this thread, is that the wording is so specific and remained that way through 2 revisions that it has always been there for the sole purpose of protecting the consumer.

 

The point being there Tam is that up until now the man in the street hasn't had access to the various acts.

 

I welcome any constructive comments that may add to the discussion but please lets keep them to the CCA.

 

I think we need to keep to the CCA for ease of reference but during my research in the last couple of weeks I've noted that the CCA is being incorparated into other Acts for example Section 8 of the 2002 Enterprise Act.Just an idea to perhaps cross reference some of the other acts for clarification but we need to focus on the CCA as the main act.

 

Mike220359 said:

Hiya Tam.

 

You poor devil you have been getting in the neck.

 

I endorse your standpoint, the CCA is a mechanism to safeguard the interests of consumers, initially enabling the establishment of safety nets, and preventing lenders (creditors) from using the power of debt to control lives.

 

Meagain, I'm not going to enter into any form of discussion on your standpoint I respect your view. However, if I did enter into an excahnge I'm sure that I would soon come to the decision that I was right.

 

Sections 77/78/85 are catch points to ensure that banks behave within the law. Hence the default, this allows judicial review of the situation, ostensibly allowing an arbeter to determine whether an agreement has been undertaken fairly by both parties. The fact that when a bank enters default and then does not refer the situation onto the courts leads me to question the behaviuor of the lender.

 

Is it that they are willing to let the debt lie in limbo? I don't think that is the case, since at the end of the day it is money that is not making money.

 

Is it that they are worried about bad publicity? I'm not sure about that one either, because although this site is doing a tremendous job, there still hasn't been a massive groudswell of opinion against the banks. Really the papers haven't really grasped the nettle either.

 

Is it the fact that they will get fined? Well there you have it, I think that's it in a nutshell. A level 4 or 5 fine on the standard scale is nothing to banks, its peanuts. However, the number of times a bank does get fined will cause the FSA to become involved, when that happens, they review a licence, think of the publicity when one of the big four goes to court to regain its lending permissions at which time it's behaviour becomes all to obvious to all and sundry. Politics get involved, even more legislation gets passed to protect the innocent and the banks get strapped even more.

 

No s77/78 and 85 are to protect US from THEM, as other writers have said, they use the CCA to hinder fairness and enjoyment of life (think of the defaults that are issued unlawfully, without care or concern) because they know in the vast majority of cases they can get away with it.

 

I'll get off me soapbox now.

Mike

 

ps Best wishes Tam and Terminator

 

Exellent post Mike .Some very good and interesting points

[tamadus]

Hi Mike,

 

I'm so used to getting it in the neck that it doesnt worry me anymore, if somebody is targeting me then they are leaving somebody else alone

 

In saying that though meagain does have some valid points although I dont think they relate directly to this thread.

 

As you have said the CCA is there to protect the consumer from unscrupulous lenders, although it does nothing about the 'loan sharks' which we all know still exist but again that's another story.

 

The collective banks have a lot of political muscle and after 2 reviews of the act have still failed ot get these sections altered in their favour which virtually proves somebody in high office is keeping them intact.

 

The banks etc try daily to bully and intimidate us into repaying debts whatever our financial plight may be, they penalise us as often as they can for not paying and then do the same for paying early as with early redemption charges.

 

Like most institutions with similar power they try and control our daily lives through our spending. Most of us have a reasonable standard of life and the banks dont want to see that. Power is only maintained by keeping the peasants where they belong. As long as we stay in line they maintain their stranglehold and it's easier to control the masses through their collective pockets.

 

They have been able to maintain this position for one reason only. Namely that the majority if us trust out banks (which we have to) and consequently we never actually take the time to look at complex things like the CCA. We have closed our eyes to what we long suspected as being wrong because we were to complacent to get off our lazy a*** and double check on their activities.

 

The tide is now turning thanks to sites like CAG which have given us the opportunity to talk with like minded people and bring together the scattered resources we each have. We are now reading the relevant Acts of Parliament both collectively and individually and then challenging the banks stranglehold.

 

I could tell you of personal instances where banks have deliberately lied and misled me to cover themselves, instances that have cost me a lot of money over the years. I am now putting them all on notice that it wont happen again and I will use the appropriate laws of this country for exactly what they were intended. If the banks choose to deliberately defy and flout those laws then that is something they have to deal with.

 

Terminator thanks for the nice comments but tam is getting a bit long in the tooth to be kicking butt lol

 

I think contract law does have a bearing but only in relation to the terms and conditions they impose ad hoc, the CCA should and does overide those.

 

As I have said before if we steal from a bank it's called theft and we get 20 years. If they steal from us it's called business and they get an award.

 

Agreed all or nothing.

 

I also suspended payments to Lloyds TSB

 

Please don't get me onto the PPI subject lol.

[e28bigalbexley]

 

As I have said before if we steal from a bank it's called theft and we get 20 years. If they steal from us it's called business and they get an award.

 

 

 

Absolutley BANG ON Tamadus f*$$$$@ well right

[tamadus]

 

As I have said before if we steal from a bank it's called theft and we get 20 years. If they steal from us it's called business and they get an award.

 

 

 

Absolutley BANG ON Tamadus f*$$$$@ well right

 

Thanks Al

[sandrajl]

hi tamadus,

could you help got Aletter from steve baily yesterday offering me a gogw of £400even to my claim is wellover that, but hes reminding me of terms "3b" in the credit agreement which clearly states that it is agreeded i pay £25 each time a paymt is missed, or i have exceeded my limit, or a cheq is returned is this right as i dont have agreement now, they have sent my statements so im just about to work out how much theyve charged me. Also on bottom stmnts it says min paymt includes overdue amount of .... but it says on in stmnt that theyve charged me for missed paymt..do i add both of them to my total amount ??? can you help please

[un1boy]

hi tamadus,

could you help got Aletter from steve baily yesterday offering me a gogw of £400even to my claim is wellover that, but hes reminding me of terms "3b" in the credit agreement which clearly states that it is agreeded i pay £25 each time a paymt is missed, or i have exceeded my limit, or a cheq is returned is this right as i dont have agreement now, they have sent my statements so im just about to work out how much theyve charged me. Also on bottom stmnts it says min paymt includes overdue amount of .... but it says on in stmnt that theyve charged me for missed paymt..do i add both of them to my total amount ??? can you help please

 

Hi there, if this is regarding bank charges please can you start your own thread in the relevant section for your particular bank and tehn let us know where it is and what it's called.

 

WE can pop over to it and help you more clearly then!!

[Guest The Terminator]

Terminator take a look at section 129

 

That should cause a few headaches somewhere when you understand how the computer systems they use actually work. lol

 

Erm. I think that is another section to pursue as the bank or CC provider could actually be the debtor especally if it is used with another one of the sections of the act.As for their computer systems apparently they dish out default notices automatically so in fact you could actually be issued a default notice when you are not in default.I might programme my system to do that automatically to MBUSA, Barclayshark and Humpty dumpty then see what happens. I'd also have a look at S63 especally subsection(5).

[tamadus]

hi tamadus,

could you help got Aletter from steve baily yesterday offering me a gogw of £400even to my claim is wellover that, but hes reminding me of terms "3b" in the credit agreement which clearly states that it is agreeded i pay £25 each time a paymt is missed, or i have exceeded my limit, or a cheq is returned is this right as i dont have agreement now, they have sent my statements so im just about to work out how much theyve charged me. Also on bottom stmnts it says min paymt includes overdue amount of .... but it says on in stmnt that theyve charged me for missed paymt..do i add both of them to my total amount ??? can you help please

 

Sandra you will have to remind me what company your claiming from as I can't remember who Steve Bailey works for

 

Its virtually certain that he is refering to a clause in their terms and conditions not the credit agreement, in which case write back saying thank you for the part payment but I am going to continue my claim for the balance owing.

 

The simple fact is the £25 charge is unlawful however they try to dress it up. You may have agreed to their terms and coinditions BUT you didnt know at that time they were unfair and unlawful.

 

You can't include the minimum payment I'm afraidbut yoy can definitely include any late payment or overlimit charges and returned cheque charges.

 

Its interesting he is now calling their unlawful terms and condition a credit agreement. That puts a new slant on their underhanded tactics.

 

Do you have a thread for you claim yet Sandra? If not then start one and you can always PM one of us to run over and see the problem then post in your thread. That way we can keep the place tidy instead of having several topics in one thread:)

[tamadus]

Erm. I think that is another section to pursue as the bank or CC provider could actually be the debtor especally if it is used with another one of the sections of the act.As for their computer systems apparently they dish out default notices automatically so in fact you could actually be issued a default notice when you are not in default.I might programme my system to do that automatically to MBUSA, Barclayshark and Humpty dumpty then see what happens. I'd also have a look at S63 especally subsection(5).

 

My point is that they can't handle time orders on their automatic cumputer systems so they have to do them manually. A lot of them end up forgotten in the bottom of a filing cabinet

 

I had seen section 63 but was saving it for a rainy day

[tamadus]

This doesnt really belong here but I had a letter dated 13/10 from LloydsTSB and apparently a Senior Card Manager will be writing to me within 10 days :o so by my calender he has 5 days left. That should be Mon 23rd or 17 days after they reached the offence status. It should be an interesting letter:D

 

Not a word from the motley crowd at Barclaycard yet.

[tamadus]

ok I have spoken to the Financial Services Ombudsmans office about Barclaycard and they would like me to send an official complaint in so they can investigate it fully. The guy I spoke to wouldn't commit himself as it has to go to another department but he is familiar with sections 77/78 and 85 and he certainly didnt make any suggestion that my thoughts were wrong.

 

I think I will report it and still persue them privately in the court if neccessary.