Cap1 & CCA return

[e28bigalbexley]

From what i've heard tonight that biggest firework may well go off sooner rather than later:D

 

 

I you let that off in your garden Mr Terminator, from where im sitting i'll probably hear the bang:o

[tamadus]

Now I'm wondering which firework you let off Terminator. You never even gave me warning to get into my bomb shelter I have a feeling I might hear the blast from here

 

Drop me a mail and let me know what you've done today lol.

[e28bigalbexley]

AS for you Tam you should be getting a nice dose of night nurse and into to bed. And not nescersaraly in that order. Or spelt like that either.

[tamadus]

AS for you Tam you should be getting a nice dose of night nurse and into to bed. And not nescersaraly in that order. Or spelt like that either.

 

The night nurse declined but I am definitely heading that way

[meagain]

Blimey. It is getting late. I read that as "getting the night nurse into bed".

[tamadus]

I was hoping lmao heading for slumber land now so speak to you all tomorrow.

[tamadus]

I have been doing some reading over the weekend in regard to Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983. I have not yet found the 1983 version of the regulations but later version are very clear in that copies of documents without signature boxes etc are only acceptable where the unexecuted agreement is wanted for reference purposes. In particular it appears that a copy (with signature boxes removed) must be supplied at the same time as the full copy is sent for signature. This short form generic document does not appear to satisfy section 77/78/85 requests.

 

Sections 77/78/and 85 of the CCA clearly state copies of the executed agreements ie all portions of the agreement including signatures must be present for the agreement to be executed, also any other document refered to in the agreement has to be supplied ie terms and conditions.

 

I also took a look at the Civil Proceedure Rules and in particular CPR 31, and subject to the next reply from Barclaycard I am very tempted to initiate proceedings for standard disclosure of documents based around CPR 31. I have been informed by one of my legal eagles that I can do this and claim costs involved as I am attempting to resolve the matter without using court time. In particular CPR 31.16 states

 

31.16 (1)This rule applies where an application is made to the court under any Act for disclosure before proceedings have started(1).

(2)The application must be supported by evidence.

(3)The court may make an order under this rule only where –

(a)the respondent is likely to be a party to subsequent proceedings;

(b)the applicant is also likely to be a party to those proceedings;

©if proceedings had started, the respondent’s duty by way of standard disclosure, set out in rule 31.6, would extend to the documents or classes of documents of which the applicant seeks disclosure; and

(d)disclosure before proceedings have started is desirable in order to –

(i)dispose fairly of the anticipated proceedings;

(ii)assist the dispute to be resolved without proceedings; or

(iii)save costs.

(4)An order under this rule must –

(a)specify the documents or the classes of documents which the respondent must disclose; and

(b)require him, when making disclosure, to specify any of those documents –

(i)which are no longer in his control; or

(ii)in respect of which he claims a right or duty to withhold inspection.

(5)Such an order may –

(a)require the respondent to indicate what has happened to any documents which are no longer in his control; and

(b)specify the time and place for disclosure and inspection

 

 

 

To my mind this means I can apply to the court for an order of disclosure to enforce any act of parliament in an attempt to avoid litigation, which should negate the banks argument under the SI of 1983 and produce a definite response to it.

 

Only trouble is Barclaycard are very noticeable at the moment by their total silence

 

Any comments would be appreciated.

[Mike220359]

Thats my thought as well regarding the 1983 conditions.

 

As regards Barclaycard, they have indeed gone very quiet, I think that they are waiting to see what happens next. I haven't heard a word or a 'phone call since I slapped s85 on them weeks ago but I'm waiting to see what happens within their timeframe of resolution by the 30th October.

 

Watch this space.

 

Mike

[tamadus]

Thats my thought as well regarding the 1983 conditions.

 

As regards Barclaycard, they have indeed gone very quiet, I think that they are waiting to see what happens next. I haven't heard a word or a 'phone call since I slapped s85 on them weeks ago but I'm waiting to see what happens within their timeframe of resolution by the 30th October.

 

Watch this space.

 

Mike

 

Me too Mike. Not a word since they claimed an application form was sufficient under my section 78, and nothing yet regarding my stopped payments which they should have noticed as it was due to reach them on the 19th.

 

I'll allow them another 14 days and then petition the court under CPA 31.6 for standard disclosure. If they dont produce it then I will have no alternative but to issue a claim for almost 30 years of interest, charges etc on the basis they have no agreement.

 

I anticipate their next move will be to issue against me as their last letter stated it was their final response on the matter. Final response ? when they haven't even attempted to produce a legitimate and legally requested document? Somehow I think this is going to become even more fun

[e28bigalbexley]

Nice to see your back in form must have been that nurse:eek:

[tamadus]

Nice to see your back in form must have been that nurse:eek:

 

Lmao Al she declined the invitation

 

not over it completely yet but that nasty cough has subsided and the head cold seems to be drying out now. I got a decent nights sleep last night ( first since Thursday) so hopefully I'll be back to normal in a day or so. Ready and raring to go again

[tamadus]

I have today recieved from Lloyds TSB a copy of the application form/ credit agreement as requested in August.

 

Nice grovelling, apologetic letter with it but no explanation as to why it was not sent within the CCA time frame.

 

The question now is as they are well outside the timeframe what action do I take? Their default of course is now resolved but in theory it will still take a court order to enforce the agreement. The letter is also dated 17 October and arrives on the 24th October so I am left wondering what postal service they are using.

 

Open to suggestions guys

[un1boy]

Hmmm...I'm not too sure on this. As far as I understand it, you can still withhold payments as they now need to apply to the court to enforce it.

 

Might be wrong though!!

[tamadus]

Thats what I understand Un1 although not paying isnt what I had in mind. I suspect I will resume the payments and demand a full investigation into why the agreement wasn't sent earlier and possibly some form of settlement to not persue it further in addition to a rapid settlement on my claim for charges.

 

At least they now fully understand that I will take action if I need to

[meagain]

I have today recieved from Lloyds TSB a copy of the application form/ credit agreement as requested in August.

[...]

The question now is as they are well outside the timeframe what action do I take? Their default of course is now resolved but in theory it will still take a court order to enforce the agreement. The letter is also dated 17 October and arrives on the 24th October so I am left wondering what postal service they are using.

 

Can you turn the usual rule on its head and suggest that a letter may be deemed sent two days before it is received (in this case, the 20th)? The default is resolved, but of course they have committed a criminal offence (assuming S78). I think it will take more than a court order to enforce the agreement. It will take them admitting the offence in court, and explaining why they want to act out of time, and why they have not raised the matter in correspondence previously, and then still having the sheer balls to ask for leave to enforce the agreement (speaking of balls, "testicle" literally means "little witness").

[tamadus]

Can you turn the usual rule on its head and suggest that a letter may be deemed sent two days before it is received (in this case, the 20th)? The default is resolved, but of course they have committed a criminal offence (assuming S78). I think it will take more than a court order to enforce the agreement. It will take them admitting the offence in court, and explaining why they want to act out of time, and why they have not raised the matter in correspondence previously, and then still having the sheer balls to ask for leave to enforce the agreement (speaking of balls, "testicle" literally means "little witness").

 

The letter is dated 17 October and arrived here this morning so I can only assume its been sitting in somebodies out tray waiting for them to pluck up the courage to send it lol As I said above I think I will write back telling them the default is resolved but their lack of action has created a situation which should not be allowed to happen. I'll hint that a reasonable offer of settlement might make me reconsider the legal implications towards them;)

 

I suspect they might go for it as I doubt they want to go to court and admit their criminal negligence:rolleyes:

 

They have addressed most of my points EXCEPT the section 85 comments I made.

 

LMAO I never knew that translation can I adapt it for my signature file ??

[Guest The Terminator]

I have been doing some reading over the weekend in regard to Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983. I have not yet found the 1983 version of the regulations but later version are very clear in that copies of documents without signature boxes etc are only acceptable where the unexecuted agreement is wanted for reference purposes. In particular it appears that a copy (with signature boxes removed) must be supplied at the same time as the full copy is sent for signature. This short form generic document does not appear to satisfy section 77/78/85 requests.

 

Sections 77/78/and 85 of the CCA clearly state copies of the executed agreements ie all portions of the agreement including signatures must be present for the agreement to be executed, also any other document refered to in the agreement has to be supplied ie terms and conditions.

 

I also took a look at the Civil Proceedure Rules and in particular CPR 31, and subject to the next reply from Barclaycard I am very tempted to initiate proceedings for standard disclosure of documents based around CPR 31. I have been informed by one of my legal eagles that I can do this and claim costs involved as I am attempting to resolve the matter without using court time. In particular CPR 31.16 states

 

31.16 (1)This rule applies where an application is made to the court under any Act for disclosure before proceedings have started(1).

(2)The application must be supported by evidence.

(3)The court may make an order under this rule only where –

(a)the respondent is likely to be a party to subsequent proceedings;

(b)the applicant is also likely to be a party to those proceedings;

©if proceedings had started, the respondent’s duty by way of standard disclosure, set out in rule 31.6, would extend to the documents or classes of documents of which the applicant seeks disclosure; and

(d)disclosure before proceedings have started is desirable in order to –

(i)dispose fairly of the anticipated proceedings;

(ii)assist the dispute to be resolved without proceedings; or

(iii)save costs.

(4)An order under this rule must –

(a)specify the documents or the classes of documents which the respondent must disclose; and

(b)require him, when making disclosure, to specify any of those documents –

(i)which are no longer in his control; or

(ii)in respect of which he claims a right or duty to withhold inspection.

(5)Such an order may –

(a)require the respondent to indicate what has happened to any documents which are no longer in his control; and

(b)specify the time and place for disclosure and inspection

 

 

 

To my mind this means I can apply to the court for an order of disclosure to enforce any act of parliament in an attempt to avoid litigation, which should negate the banks argument under the SI of 1983 and produce a definite response to it.

 

Only trouble is Barclaycard are very noticeable at the moment by their total silence

 

Any comments would be appreciated.

 

So thats where my massive great firework went:D

[dollies01]

I dont understand why you are offering them anything, they were in default, the debt is now unenforceable unless a Judge says otherwise, for them to force you to pay, they have to tell the Judge the full story.........not going to look good on them is it?!

If you give in and make offers to them, they are just going to continue to break the law and think they can get away with it.

Just my opinion of course

[tamadus]

I dont understand why you are offering them anything, they were in default, the debt is now unenforceable unless a Judge says otherwise, for them to force you to pay, they have to tell the Judge the full story.........not going to look good on them is it?!

 

If you give in and make offers to them, they are just going to continue to break the law and think they can get away with it.

 

Just my opinion of course

 

I agree with you Dollies but I am trying to look at it from all angles.

[dollies01]

Dear Sir/ Madam Re agreement no. xxxxxxxxxx I wrote to you on (date) via recorded delivery, requesting a true copy of the signed agreement under the terms of the secs. 77(1) and 78(1) of the CCA 1974, enclosing the statutory maximum fee of £1 in the form of a postal order/cheque. I was not provided me with a signed agreement under the consumer credit act, I was not

provided with a statement of account, nor a true copy of the deed of assignment, within the legal time frame despite my properly formatted and paid for request. I do not acknowledge any debt to xxxxxxxxx Ltd. I will no longer be making payments against this "debt" as it is unenforceable. I now belive that you may have committed a criminal offence under the terms of the Consumer Credit Act, and non compliance with the original request is therefore a complete defence to any court claim that is issued. This will result in a report being submitted to the relevant statutory authorities.I calculate that since xxxxx,you have taken £xxxx from my account. I require repayment in full of this money within 14 days or I shall begin a claim against you for the full amount plus interest plus my costs and without further notice.

What is the worse they can do?!

[Number6]

I agree with you Dollies but I am trying to look at it from all angles.

 

Hi Tamadus

 

Looking at it from all angles have you actually received a copy of a properly executed agreement? Or an application form with only your signature on it?

 

If the latter I would be inclined to write back and say "thanks for the copy application form, now where's my copy agreement?"

 

I've done this to Morgan Stanley and Sainsbury's so far. They sent me the app form, I wrote back and asked for the agreement that complies with S61 of CCA. I haven't heard a peep back from them so far.

 

Pete

[tamadus]

Dear Sir/ Madam Re agreement no. xxxxxxxxxx I wrote to you on (date) via recorded delivery, requesting a true copy of the signed agreement under the terms of the secs. 77(1) and 78(1) of the CCA 1974, enclosing the statutory maximum fee of £1 in the form of a postal order/cheque. I was not provided me with a signed agreement under the consumer credit act, I was not

provided with a statement of account, nor a true copy of the deed of assignment, within the legal time frame despite my properly formatted and paid for request. I do not acknowledge any debt to xxxxxxxxx Ltd. I will no longer be making payments against this "debt" as it is unenforceable. I now belive that you may have committed a criminal offence under the terms of the Consumer Credit Act, and non compliance with the original request is therefore a complete defence to any court claim that is issued. This will result in a report being submitted to the relevant statutory authorities.I calculate that since xxxxx,you have taken £xxxx from my account. I require repayment in full of this money within 14 days or I shall begin a claim against you for the full amount plus interest plus my costs and without further notice.

What is the worse they can do?!

 

Hmm let me think I know. They could send they heavy brigade to knock at my door :o but somehow I think my 4 black belts will ruin that plan

 

I think I am going to hit them with a combination of what you have put above and a section 85 notice :o plus of course a claim for repayment of charges and interest:D

 

In theory the agreement is enforceable, but would a judge follow that logic or would he enforce their default offence ?

[Number6]

Hmm let me think I know. They could send they heavy brigade to knock at my door :o but somehow I think my 4 black belts will ruin that plan

 

I think I am going to hit them with a combination of what you have put above and a section 85 notice :o plus of course a claim for repayment of charges and interest:D

 

In theory the agreement is enforceable, but would a judge follow that logic or would he enforce their default offence ?

 

IMHO a judge can only enforce the agreement if the agreement itself is properly executed according to S61.

 

Pete

[tamadus]

Hi Tamadus

 

Looking at it from all angles have you actually received a copy of a properly executed agreement? Or an application form with only your signature on it?

 

If the latter I would be inclined to write back and say "thanks for the copy application form, now where's my copy agreement?"

 

I've done this to Morgan Stanley and Sainsbury's so far. They sent me the app form, I wrote back and asked for the agreement that complies with S61 of CCA. I haven't heard a peep back from them so far.

 

Pete

 

I have done the same with Barclaycard, hence their silence of late.

 

This is the application form but it is also headed (in much smaller font) credit Agreement regulated by the consumer credit act 1974 and also carries the cancellation notice, and its fully signed and dated, so yes it is the agreement. They have even attached a bad copy of their terms and conditions.

[Number6]

I have done the same with Barclaycard, hence their silence of late.

 

This is the application form but it is also headed (in much smaller font) credit Agreement regulated by the consumer credit act 1974 and also carries the cancellation notice, and its fully signed and dated, so yes it is the agreement. They have even attached a bad copy of their terms and conditions.

 

Then me being bloody minded me I would be inclined to tell them to either get a judge to enforce it or go swivel!

 

Pete