Cap1 & CCA return

[paulwlton]

Can you enlighten me as to what exactly you recieved and on what grounds they have failed the CCA request? I didnt get the back of my CCA ('Terms and Conditions are shown overleaf') so I have a reason to reject it as not satisfactory.

From what Im reading and talking to others about, yours seems to satisfy the CCA request. Please tell me more.

 

Sorry i should have been a bit more specific, the application form they sent was blank at the back with terms and conditions stapled to it. I made the request in mid October.

As we know a document signed which doesn't contain all the presribed terms is unenforceable.

[Guest The Terminator]

Sorry i should have been a bit more specific, the application form they sent was blank at the back with terms and conditions stapled to it. I made the request in mid October.

As we know a document signed which doesn't contain all the presribed terms is unenforceable.

 

It looks like you've got them over a barrel.The pressure must be getting to them.

[Fullyskinted]

It looks like you've got them over a barrel.The pressure must be getting to them.

 

OK, sounds the same as mine.

 

Front page of a two sided document. How would they be able to wriggle out of it though?

Double side copy the original?

Surely a Judge would be hard faced not to take their side over such a 'trivial' matter.

Providing that they could prove the 'overleaf' was from the one you signed...

[joneshousehold]

When we had a reply from Barclaycard to a S77-9 request it was late and unreadable. There was also attached a copy of the terms and conditions but this was entirely the wrong shape and size to have been printed on the back of the 'application form/agreement'.

 

We have initially written back and said the document supplied is illegible and does not comply with the requirements of the Act. When they come back we will refer to the size issue if the agreement looks otherwise OK.

 

All this just makes matters worse for them. Not only are they in default but they are prolonging the matter and all the time we are refusing to make any payments.

 

I am also a bit tempted to quote the letter from the DTI man about an application form not being an agreement and ask them to explain themselves if they still persist. At least if I can get them to address the issue I can judge how reliable their case will be before I decide whether to accept there is any agreement in place.

 

This is now all a bit of a side issue in fact as there is still S85 and S63 to consider. So all in all they don't seem to be able to win because by the time I have claimed back all the interest charges they will owe me money!

 

I think the important thing to remember is there is more than one issue now and most have committed an offence with one or two of them. They can do little to stop the inevitable result.

 

Do you know we look forward to their calls these days! "Hello Mr Barclaycard, how lovely of you to call. It's such a lovely day today and your call has just made it better!"

[paulwlton]

With a Credit Card, the Application Form is the Credit Agreement but of course, it still has to be signed by both parties and be a copy of the original

AC

 

 

I thought it was fully executed with just the debtors signature.

[joneshousehold]

I thought it was fully executed with just the debtors signature.

 

I thought it was only executed when both the debtor and creditor sign it.

[Fullyskinted]

Well, mine has my signature on it and that of a member of BCard staff too - 'Authorised Barclaycard Signatory' dated 18 days after I signed it...

[Guest The Terminator]

I thought it was only executed when both the debtor and creditor sign it.

 

two signitures and it's executed.If one signiture is missing then bin it.

[paulwlton]

two signitures and it's executed.If one signiture is missing then bin it.

 

My application as my signature on it only, this doesn't mean it's unenforceable, it's just not fully executed, it can only be enforced through the court. I think.

[joneshousehold]

I believe Terminator is (as usual) quite right. If it has only one signature on it it isn't executed and is not enforceable. Have a look at the wording of the Act to see the exact implications. It makes interesting reading

[Fullyskinted]

Just cobbled this together....

 

Any thoughts please? I wanna send it off tomorrow. (Would have been sooner but needed further advice and also had a lot going on )

 

I am in receipt of your letter dated 21st January 2007 following my request for a copy of my original Credit Agreement.

Whilst I am pleased that you have made a reasonable effort – the request has not been fulfilled as per Section 78 of the CCA 1974.

The document is hardly what I would call ‘legible’ for starters, but I was able to just about read the content of the copy document by way of a scanner and my home computer to magnify the scanned image.

In the small print, it clearly states ‘Conditions of Use – set out overleaf’ – but the copy you have submitted to satisfy my CCA request does not show these. The rear of the sheet is blank.

I need to see a genuine copy of the original document – with the Terms and Conditions I am to abide on the overleaf of the front of the statement. A copy of the 2nd side will not suffice. The document will need to be re sent to me in its entirety.

As such, now that the 12 working days have expired (from your receipt of the request for the agreement and supporting documents) the account is now in dispute.

Whilst it remains in dispute the agreement is unenforceable.

Whilst it is unenforceable, no interest is to be added to the account. No action can be taken against me. No adverse credit references or defaults can be listed against me with Credit Reference Agencies. The account cannot be passed to a Debt Collection Agency. And lastly, I am not obliged to make any further payments to the account. Essentially, the account is ‘held’ as it was on the date of the CCA request expiring (21st January 2007).

 

 

I attach a copy of the CCA Section 78 for your viewing.

 

 

I will reiterate from my letter of 2nd January 2007:- ” I understand that under the Consumer Credit Act creditors are unable to enforce an agreement if they fail to comply with a request for a copy of the agreement under these sections of the Act.”

If I am not in receipt of the true copies by the 21st February, you have committed an offence and the relevant authorities will be notified.

 

Yours faithfully,

[paulwlton]

I believe Terminator is (as usual) quite right. If it has only one signature on it it isn't executed and is not enforceable. Have a look at the wording of the Act to see the exact implications. It makes interesting reading

 

The Terminator didn't state it was unenforceable just unexecuted.

 

(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)

(signing of agreements) was not complied with unless a document (whether or not in the

prescribed form and complying with regulations under section 60(1)) itself containing all the

prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the

prescribed manner).

 

This reads to me that if a document has all the terms included and i have signed it then a court can enfiorce it without the creditors signature.

[joneshousehold]

My reading of the Act was that the agreement is unenforceable until the court orders otherwise and the court may, if it is so minded, issue an order to make it enforceable. This part says the court cannot make it enforceable if any part of S61(1)(a) is not complied unless the debtor has signed it. So the agreement at the moment is unenforceable and the creditor will need to ask the court to issue an enforcement order to make it enforceable.

 

The argument on the forum has been that when such a hearing takes place, the debtor would bring to the attention of the court all the other failings of the creditor such as S63, S77-9 and S85. For that reason and for the reasons of cost the creditor may be reluctant to actually take that step. So for the moment the agreement remains unenforceable. The debt still exists and the creditor has to make a decision. Leave the unenforceable debt on the books or write it off. That's partly the reason why Terminator says that this is not a quick fix way to get out of paying your debts. The creditor may decide that a request to the court is worth a shot.

[ladybird17]

This thread gets more interesting by the hour! If the courts did overturn and make it enforceable, it would be interesting to see what would then happens if the claimant then raises other issues like S.77 -9 or S.85 - if they have failed to comply wth other sections, and it still gets overturned and made enforceable, then that would surely make a mockery of the CCA if it's possible can wriggle out of every section not complied with?

[Guest Battleaxe]

Would the banks set foot in court while they are in breach of Section 85 to try and get an agreement made enforceable?

 

It's like playing poker. Who blinks first?

[ladybird17]

I don't know the answer to that Battleaxe! I wouldn't have thought they would defend a S85 - but what I think and what the banks think couldn't be further apart on the spectrum of rational, fair and sensible thought processes! And it always help to remember never to confuse the law with justice.

[joneshousehold]

but what I think and what the banks think couldn't be further apart on the spectrum of rational, fair and sensible thought processes!

 

Quite. I wouldn't have dreamt of trading under an important piece of legislation and then disregarded parts that would have endangered my financial wellbeing but the banks clearly thought they would be OK. It's a shame their bank didn't ask them for a report on their proposal including a normal SWOT analysis, cashflows, report on the market and the legislation...ah but wait a minute, they are the bank. Oh now I get it - you do as I say not as I do. Neat

[humbleman]

sorry to intrude, would appreciate some help on my thread its to do with a hire agreement regulated by CCA 1974, Thanks

 

http://www.consumeractiongroup.co.uk/forum/legalities/62237-personal-guarantee-ltd-co.html#post526060

[TANZARELLI]

They have been getting away with it for years now for so long they prob thought they had it all sewn up, oh how wrong could they have been. lol

[Guest Battleaxe]

Just been contacted by the S unday Mirror regarding the bank charges and our fight with A & L, MBNA..Tam and Terminator will love this. photographer coming at 4pm. CAG is going to be well publicised by me. I also mentioned Section 85 so we can fire a shot across the bows of these banks. Story hasn't been written yet....are we ready for the next chapter boys? Can we use this opportunity?

[TANZARELLI]

Just been contacted by the S unday Mirror regarding the bank charges and our fight with A & L, MBNA..Tam and Terminator will love this. photographer coming at 4pm. CAG is going to be well publicised by me. I also mentioned Section 85 so we can fire a shot across the bows of these banks. Story hasn't been written yet....are we ready for the next chapter boys? Can we use this opportunity?

 

I would suggest caution. We wouldn't want to give away too many of our strategies to early on or it could backfire. Just a thought. Good to get a CAG plug in though. Nice!!

[Peterbard]

Hi Somebody asked about section 59

 

I brought the subject up eralier but i have been busy with the Tribnunals and court bill issue.

Yes it reads to me like you cannot have a prospective aggreement so all those credit card appliations that are just agreements but are not considered to be executed when signed (because the creditor has not done your credit score) are void. Also it is not possibe to include the prescribed terms in the agreement so it is unenforceable anyway since they wil not have allocated your credit limit.

In other words treating an agreement as a appliation form is just as unacceptable as using an appliction form as an agreement.

 

Food for thought?

Needs more research but that is the idea.

Peter

[InKogneeToh]

 

Also it is not possibe to include the prescribed terms in the agreement so it is unenforceable anyway since they wil not have allocated your credit limit.

 

 

 

 

Hi all

 

Not really wanting to put a spanner in the works but with regard to the credit limit on a regulated running-account agreement, the OFT information doc. on form and content states:

 

Financial and related particulars

 

The following information must be shown together as a whole and not interspersed with any other information, apart from cross-references to terms of the agreement and subtotals of the total amount.

 

......................

 

3 The amount of credit to be provided under a fixed-sum agreement (for example, a cash loan) or particulars of the credit limit under a running-account agreement (for

example, a credit card).

 

The credit limit can be expressed as:

a a sum of money, or

 

b a statement that the trader will, under the agreement, periodically determine the credit limit and notify the customer, or

 

c a sum of money together with a statement that the trader may, under the agreement, periodically vary the credit limit and notify the customer, or

 

d if (a) (b) or © above are not appropriate either a statement indicating how the credit limit will be determined and notified to the customer or a statement that there is no credit limit.

Office of Fair Trading 9

 

I believe that this can be shown in the T&C doc. provided that the copy of the T&Cs is given to the debtor at the start and is referred to in the main agreement document.

 

Regards, Pam

[Peterbard]

Not really wanting to put a spanner in the works but with regard to the credit limit on a regulated running-account agreement, the OFT information doc. on form and content states:

 

Not at all Pam

 

That is just the sort of research i was reffering to howevwer it still leaves section 59 itself and what abou the other prescrbed terms. Sorry if it seems i am making yiou do my work for me.

Peter

[Peterbard]

Sorry just caght the last bit

I believe that this can be shown in the T&C doc. provided that the copy of the T&Cs is given to the debtor at the start and is referred to in the main agreement document.

The prescribed terms must be included in the executed agreement as far as the 1974 cca is concerned

 

Peter