Cap1 & CCA return

[un1boy]

Now if we can convince the banks to send our full history as requested

 

If not, can you ligitimately use an estimate?

[tamadus]

If not, can you ligitimately use an estimate?

 

I see no other alternative Un1 if they refuse to send data as requested in my SAR. The only other possible is to take enforcement action to comply them to provide almost 30 years of data. Thats a lot of paper :o

 

I would be happy to use an estimate based on the data they have supplied and let them amend it as needed. I dont expect or want to avoid my legal obligations and avoid repaying any legitimate usage (capital) on the card. But I do want to put them in a position of admitting they are at fault, that their general housekeeping is a disgrace and to refund anything that is legitimately reclaimable.

 

Thats an awful big wish list considering this is Barclaycard we are discussing

[un1boy]

Yeah, I know what you mean.

 

Do they have to keep their records that far back though?!

[JonCris]

Tam I don't think you could apply an estimate until after you have concluded you DPA litigation. If the bank WAS able to convince the court that they no longer held the data the court might strike out any claim for that period which may still be considerably pre6 years.

 

Un1boy they claim they don't have to hold it but if they have the data (as they all do) then they have to supply it irrespective of it's age. Some members have had data supplied going back a couple of decades..

 

Watch out for the letter which says "the bank is not required to retain data over 6 years old".......or words to that effect......NOTE they don't say they don't have it..........they claim they don't have to have it.

 

My reponse is to write back & request when, where & how they disposed of my data. If they do have it as it's part of their procedure to keep it then they would have to make up a tissue of lies to not admit it

[tamadus]

In theory they only need to keep them for 7 years to comply with Inland Revenue rules. My guess is they keep them for longer as a fraud/money laundering prevention aid. I doubt very much that they keep 30 years of them though.

 

now lets take 2 million customers x 1 A4 sheet per month (+any extras like letters) = 360 bits of paper per customer = a lot of storage space.

[JonCris]

Tam

 

Abbey have data going back too 1923! as do many of the banks,.

 

Remember we had a whistle blower who worked in their storage facility in Milton Keynes who told us

 

Not much paper as most of it is on microfiche which they thought would save them but for the Information Commissioners recent ruling

[tamadus]

Tam I don't think you could apply an estimate until after you have concluded you Data Protection Act litigation. If the bank WAS able to convince the court that they no longer held the data the court might strike out any claim for that period which may still be considerably pre6 years.

 

Un1boy they claim they don't have to hold it but if they have the data (as they all do) then they have to supply it irrespective of it's age. Some members have had data supplied going back a couple of decades..

 

Watch out for the letter which says "the bank is not required to retain data over 6 years old".......or words to that effect......NOTE they don't say they don't have it..........they claim they don't have to have it.

 

My reponse is to write back & request when, where & how they disposed of my data. If they do have it as it's part of their procedure to keep it then they would have to make up a tissue of lies to not admit it

 

I agree Jon, I would have to start a DPA enforcement action first and conclude that before making an estimated claim.

 

I can see they are going to be offering me coffee soon at my local court, with the amount I'll be visiting them. I have 2 cases scheduled on the same day in March

 

I need to write to them soon pushing for my full history as requested and see what they come up with, I did mention it in my letter last week but no reply yet.

 

Once I get March out of the way I can concentrate more on this and a couple of other ongoing cases. Strange how I left what appeared to be simple to the bottom of my list and they are turning into a lot more complax due to the other party intransigence.

[tamadus]

Tam

 

Abbey have data going back too 1923! as do many of the banks,.

 

Remember we had a whistle blower who worked in their storage facility in Milton Keynes who told us

 

Yep I remember it

 

Barclaycard certainly had my original application ( but no properly executed agreement) although the copy of the T&C is just black blobs on the page.

 

I can understand trying to use the application form as an agreement, but I still can't understand why so many cases are showing up where even that isn't available.

[elizabeth1]

I quite agree with what you guys are saying here about the limitations act ought to start from when the customer gets the knowledge to do something about what has been done etc..

Like we all know now - nobody knew or would have guessed of the "wrong doing" that had gone on until recently - and it's sure been going on longer than 6 years!!

 

It's a pity some ruling hasn't been done where these companies are simply told to be more honest and just give it back to people concerned etc.. - like we know a lot will miss out simply because they don't know any wrong had been done? I reckon the pity of that is - it's usually those who can least afford it who get hit by this stuff?

[tamadus]

Unfortunately that's always the case Lizzy. Despite recent publicity there are many who dont watch TV or read the newspapers and it will pass them by.

 

I firmly believe the OFT shoiuld act and order repayment to everyone affected. Problem is that the government relies on the banking sector too much to help stabilise our economy so it's not in their interest to champion for the consumer.

 

Governments only major concern is keeping the people sufficiently happy to keep the government in their nice comfy jobs.

[TANZARELLI]

I agree Tam, perhaps a bit of lobbying at election time is on the cards for members of CAG and other bank charges websites. If we work together it would have more impact.

[ladybird17]

Have just "tweaked" my letter to MBNA re. S85 - thanks to all on this thread who have helped- invaluable. Battleaxe how are you doing with MBNA? And should I now move this to the MBNA thread?

[un1boy]

Hey guys, how's it going with Police? I want to go to mine too what should I tell them?

[tamadus]

I agree Tam, perhaps a bit of lobbying at election time is on the cards for members of CAG and other bank charges websites. If we work together it would have more impact.

 

I will definitely be asking questions of all candidates in my constituency Tanz, and they better have some good replies.

 

Actually you have just given me a very good idea, I think I need to make a couple of phone calls today to some former colleagues within the UKIP party.

[tamadus]

Have just "tweaked" my letter to MBNA re. S85 - thanks to all on this thread who have helped- invaluable. Battleaxe how are you doing with MBNA? And should I now move this to the MBNA thread?

 

You can move it if you want to Ladybird but I think it's relevant in this thread, so please keep us advised You can bet they are going to try and argue it as long as possible.

[tamadus]

Just to clarify the section 85 debate, after lots of PM's asking about it

 

section 14 defines a credit token thus:

 

14 Credit-token agreements

 

(1) A credit-token is a card, check, voucher, coupon, stamp, form, booklet or other document or thing given to an individual by a person carrying on a consumer credit business, who undertakes—

 

(a) that on the production of it (whether or not some other action is also required) he will supply cash, goods and services (or any of them) on credit, or

 

(b) that where, on the production of it to a third party (whether or not any other action is also required), the third party supplies cash, goods and services (or any of them), he will pay the third party for them (whether or not deducting any discount or commission), in return for payment to him by the individual.

 

 

(2) A credit-token agreement is a regulated agreement for the provision of credit in connection with the use of a credit-token.

 

(3) Without prejudice to the generality of section 9(1), the person who gives to an individual an undertaking falling within subsection (1)(b) shall be taken to provide him with credit drawn on whenever a third party supplies him with cash, goods or services.

 

(4) For the purposes of subsection (1), use of an object to operate a machine provided by the person giving the object or a third party shall be treated as the production of the object to him.

 

this clearly defines a credit card as a credit token,

 

then if we look at section 85 itself:

 

85 Duty on issue of new credit-tokens

 

(1) Whenever, in connection with a credit-token agreement, a credit-token (other than the first) is given by the creditor to the debtor, the creditor shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it.

 

(2) If the creditor fails to comply with this section—

 

(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.

 

 

(3) This section does not apply to a small agreement

 

 

The critical part here is subsection (1) which clearly states a copy of the EXECUTED agreement + any document mentioned in it. Section 85 will not apply for the first card issued as a copy of the agreement should be supplied under section 61.

 

It is well established now that the executed agreement is the signed agreement with all the relevent details completed.

 

As we know these companies bulk mail replacement cards and include either/or a blank generic copy of an agreement and latest T&C. This is NOT what the CCA states should be sent with it.

 

I believe this is why SI1983/1557 came into effect, so that fully signed copies of the agreement would not be 'lost in the mail' along with a nice shiny new card. Remember that devil chip'n'pin wasn't around then so a blank card and signature was valuable.

 

The section 85 debate really is that simple and I think it's very clear cut. Although I can promise the companies will argue for all they are worth. Every one of them has ignored the consequences of sec 85 for years and instead of following what is laid down in law they prefer to follow industry standards.

 

We all thought bank charges made big profits for them? well this has the potential if it becomes widespread knowledge to virtually put most of them out of business. Their profits come from Interest charged and they cannot enforce the agreement while in default so cannot apply any charges to the account, plus they also commit an offence.

[m55dlc]

I've just received a default notice from MBNA, but the date of the letter (22/01/07) and the date of action for remedy (26/01/07) is only four days, and it was sent second class so it didn't arrive until the 27th. Now, as far as I can see this has broken CCA1974 S88.2, and as the date posted / method of postage has made it arrive after the date specified in the letter (something MBNA has done on three separate occasions before) it is in breach of the Malicious communications (? or whatever that one is called) and any subsequent default registered with the CRA's is in breach of the DPA 1999.

 

I'm issuing a CCA1974 s78 request today and will file an LBA mentioning charges and s85 by the end of next week. This is getting a little bit tiresome from MBNA!

[Guest Battleaxe]

Ladybird, Make sure you have updated your MBNA thread, maybe a copy of your letter regarding section 85. i didn't do a covering letter, I just filled the relevant details in and sent off recorded delivery to the legal department.

 

I am waiting to see if the cheque arrives for the agreed amount regardin non-compliance and have to talk to BW on Thursday regarding the charges .

 

of course the section 85 will be ongoing, they have until 26 February to comply.

[tamadus]

I've just received a default notice from MBNA, but the date of the letter (22/01/07) and the date of action for remedy (26/01/07) is only four days, and it was sent second class so it didn't arrive until the 27th. Now, as far as I can see this has broken CCA1974 S88.2, and as the date posted / method of postage has made it arrive after the date specified in the letter (something MBNA has done on three separate occasions before) it is in breach of the Malicious communications (? or whatever that one is called) and any subsequent default registered with the CRA's is in breach of the Data Protection Act 1999.

 

I'm issuing a CCA1974 s78 request today and will file an LBA mentioning charges and s85 by the end of next week. This is getting a little bit tiresome from MBNA!

 

They have definitely breeched sec 88.2 which states the date given to rectify any breech must be at least 7 days from the notice issue. I'd also mention this in your letter, and keep the envelope

 

I am doing a case for my ex wife with MBNA who keep sending the claim in bits and drabs, she got a cheques this week for £90 with nothing but a compliments slip lol. They really are falling apart under the strain. I think sec 85 notices have got them in a tailspin

[TideTurner]

Ladybird, do you have a link to your letter, or could you PM me?

 

Just reading the recent posts, surely the Limitation Act applies to the date of discovery?

 

And with S32 covering any concealment by the banks, there must be no form of recourse.

 

Does the six year 'rule' apply to mortgages? Similarly, when a contract is taken out which covers an indefinite period, both parties should keep full records of any transactions.

 

The banks have a duty to their shareholders to ensure backups are made of all of their data in either a physical, digital or magnetic format.

 

Any SAR made to them should request your information, alternatively, a confirmation that it has been destroyed, the method and reason for destruction.

[un1boy]

is it possible to get a step by step guide to the sec 85 claims? i want to send some off...ive got 2 credit cards that have defaulted

 

should we claim the charges back first?

[tamadus]

Ladybird, do you have a link to your letter, or could you PM me?

 

Just reading the recent posts, surely the Limitation Act applies to the date of discovery?

 

And with S32 covering any concealment by the banks, there must be no form of recourse.

 

Does the six year 'rule' apply to mortgages? Similarly, when a contract is taken out which covers an indefinite period, both parties should keep full records of any transactions.

 

The banks have a duty to their shareholders to ensure backups are made of all of their data in either a physical, digital or magnetic format.

 

Any S.A.R - (Subject Access Request) made to them should request your information, alternatively, a confirmation that it has been destroyed, the method and reason for destruction.

 

Mortgages have their own special 12 year rule

[tamadus]

is it possible to get a step by step guide to the sec 85 claims? i want to send some off...ive got 2 credit cards that have defaulted

 

should we claim the charges back first?

 

step by step guide ? we are still seeing if it produces a result lol

 

I stress the section 85 argument is still very much in the early stages and we are basing our arguments and letters on it as we go along. Once we get a definitive reply then a step by step will be done.

 

I'm inclind to say ignore charges on the account as they would have to be consolidated into any settlement we achieve.

[un1boy]

ok thanks tam

[ladybird17]

I did post a copy of my S85 letter yesterday, but have made a couple of changes, so here it is again. There is a further issue I have outlined in this letter - as you will see from the first paragaph. I thought about deleting it on this page as it would make me easily identifiable, but then I thought "and so what?" so here it is:

 

Dear Ms. MBNA

Re. Account No: xxxx

 

I would first start by confirming the telephone conversation which took place yesterday morning (26th January, 2007) with your operative xxxx. We discussed that I am claiming under my PPI and xxxx and I agreed that St. Andrews are making payments to you later than the due date on my account, despite my sending in documentation of my continuing sickness on time. Because of the lateness of their payments to you, you are debiting me with late payment charges. I am unclear as to the validity of these charges, as I see no evidence of manual intervention when they are applied. Perhaps you would clarify this point. It was agreed that my account would be “In Dispute” as of the date of the phone call.

Notwithstanding the above, it has been brought to my attention, that under Section85 of the CCA, it was your statutory obligation to issue me with a signed copy of my agreement with yourselves when issuing me with a new Credit Card. This you failed to do, and I would respectfully suggest that it is MBNA that is, and has been since the date of issue of the new card, in default, not as you suggest in your letter, me.

I fail to see how any of the interest and punitive late payment charges that have been debited to my account since the date of issue of the current card are lawful or enforceable when you have clearly failed to abide by the regulations of the CCA.

It is my intention therefore, to claim back the interest and any other unlawful charges that have been applied to my account since the date of issue of the new card, due to your default. I shall however, desist in doing so for 14 days from the date of this letter to allow you the opportunity of sending me a satisfactory response .

Yours sincerely,