Cap1 & CCA return

[Peterbard]

Thanks jon

I have found if you get to technical they go for your throat. To be honest i don't hold out much chance but if it does mean that any one with a bank overdraft can use the cca to get post contract info it will be worth the jibes.

 

Peter

[un1boy]

Hi Uni

 

I am currenly trying to get an answer to this .

In my mind when a bank issues an overdraft the agreement becomes a multi account with one part the overdraft within the CCA and the other the current account outside. If the bank closes your account and agrees payment plan and still charges you interest then it becomes a fixed sum credit agreement which of course is also regulated by the cca. if so they are liable to respond to the 77 or 78 request i have e-mail the oft and am awaitng a reply.

Peter

 

Thanks for all your efforts Peter.

 

Can the banks close your account sif you issue a sec 78 request?

[MoonHawk]

I would appreciate a confirmation or clarification of my undestanding in relation to a scenario.

 

I have a copy on a Barclaycard application which was sent in relation to a S78 request. All the appropriate sections are there as prescribed by the guidelines, apart from the fact that it is not signed by Barclaycard. The section headed "BANK USE ONLY Authorised Signature" is blank. Now my understanding is that to be executable, it must include a signature either from the credit company or a representative.

 

From the OFT guidelines:

FORM AND CONTENT OF CANCELLABLE AGREEMENTS

To be properly executed, and so legally enforceable without a court order, an agreement must be recorded in a document which embodies all its terms, is signed by both trader and customer, and is readily legible when given or sent to the customer for

signature.

and

 

Signatures

All agreements are to be signed by both customer and trader, or their representatives, and the date of signature entered. The customer’s signature and its date must be inside a box. This box can be of any size and appear anywhere in the agreement, but the wording inside it must be easily legible and must follow that for the appropriate type of agreement as set out in Appendix 2. The signature of the trader and its date must be outside the customer’s signature box. Similarly the signature of any witness, and its date, must also be outside the customer’s signature box.

 

and

 

COPIES OF AGREEMENTS TO BE GIVEN TO THE CUSTOMER

An unexecuted agreement is a document embodying the terms of the proposed agreement. It becomes executed when both the trader and the customer have signed, no matter who signs it first. For example, an agreement would become executed on the customer’s signature if the trader had signed it before sending it to the customer.

Similarly, it would become executed if the trader presented the agreement personally to the customer for signature having first signed it himself. In the more common case where the customer signs first, the agreement will not become executed until the trader signs it.

 

This was sent by a DCA that has purchased the debt, and was sent over 30 days following the request, so not a criminal offense (yet).

 

Am I correct to assume that this can now only be enforced under a court order (which the guidelines permit at the discetion of the judge as long as there is a customer signature)?

 

And are they still in default since the signature is not on the document, or has the request been satisfied?

 

Best Wishes

MoonHawk

[un1boy]

I would appreciate a confirmation or clarification of my undestanding in relation to a scenario.

 

I have a copy on a Barclaycard application which was sent in relation to a S78 request. All the appropriate sections are there as prescribed by the guidelines, apart from the fact that it is not signed by Barclaycard. The section headed "BANK USE ONLY Authorised Signature" is blank. Now my understanding is that to be executable, it must include a signature either from the credit company or a representative.

 

From the OFT guidelines:

FORM AND CONTENT OF CANCELLABLE AGREEMENTS

To be properly executed, and so legally enforceable without a court order, an agreement must be recorded in a document which embodies all its terms, is signed by both trader and customer, and is readily legible when given or sent to the customer for

signature.

 

and

 

Signatures

All agreements are to be signed by both customer and trader, or their representatives, and the date of signature entered. The customer’s signature and its date must be inside a box. This box can be of any size and appear anywhere in the agreement, but the wording inside it must be easily legible and must follow that for the appropriate type of agreement as set out in Appendix 2. The signature of the trader and its date must be outside the customer’s signature box. Similarly the signature of any witness, and its date, must also be outside the customer’s signature box.

 

and

 

COPIES OF AGREEMENTS TO BE GIVEN TO THE CUSTOMER

An unexecuted agreement is a document embodying the terms of the proposed agreement. It becomes executed when both the trader and the customer have signed, no matter who signs it first. For example, an agreement would become executed on the customer’s signature if the trader had signed it before sending it to the customer.

Similarly, it would become executed if the trader presented the agreement personally to the customer for signature having first signed it himself. In the more common case where the customer signs first, the agreement will not become executed until the trader signs it.

 

This was sent by a DCA that has purchased the debt, and was sent over 30 days following the request, so not a criminal offense (yet).

 

Am I correct to assume that this can now only be enforced under a court order (which the guidelines permit at the discetion of the judge as long as there is a customer signature)?

 

And are they still in default since the signature is not on the document, or has the request been satisfied?

 

Best Wishes

MoonHawk

 

Did they send you the terms and conditions that were relevant at the time too?

[MoonHawk]

Thanks for the reply Un1boy. Not mine and i have asked the same question and am waiting for a reply e-mail.

 

Best Wishes

MoonHawk

[un1boy]

Thanks for the reply Un1boy. Not mine and i have asked the same question and am waiting for a reply e-mail.

 

Best Wishes

MoonHawk

 

I'm sorry mate - I don't understand your post....

[zubo]

I would appreciate a confirmation or clarification of my undestanding in relation to a scenario.

 

I have a copy on a Barclaycard application which was sent in relation to a S78 request. All the appropriate sections are there as prescribed by the guidelines, apart from the fact that it is not signed by Barclaycard. The section headed "BANK USE ONLY Authorised Signature" is blank. Now my understanding is that to be executable, it must include a signature either from the credit company or a representative.

 

From the OFT guidelines:

FORM AND CONTENT OF CANCELLABLE AGREEMENTS

To be properly executed, and so legally enforceable without a court order, an agreement must be recorded in a document which embodies all its terms, is signed by both trader and customer, and is readily legible when given or sent to the customer for

signature.

and

 

Signatures

All agreements are to be signed by both customer and trader, or their representatives, and the date of signature entered. The customer’s signature and its date must be inside a box. This box can be of any size and appear anywhere in the agreement, but the wording inside it must be easily legible and must follow that for the appropriate type of agreement as set out in Appendix 2. The signature of the trader and its date must be outside the customer’s signature box. Similarly the signature of any witness, and its date, must also be outside the customer’s signature box.

 

and

 

COPIES OF AGREEMENTS TO BE GIVEN TO THE CUSTOMER

An unexecuted agreement is a document embodying the terms of the proposed agreement. It becomes executed when both the trader and the customer have signed, no matter who signs it first. For example, an agreement would become executed on the customer’s signature if the trader had signed it before sending it to the customer.

Similarly, it would become executed if the trader presented the agreement personally to the customer for signature having first signed it himself. In the more common case where the customer signs first, the agreement will not become executed until the trader signs it.

 

This was sent by a DCA that has purchased the debt, and was sent over 30 days following the request, so not a criminal offense (yet).

 

Am I correct to assume that this can now only be enforced under a court order (which the guidelines permit at the discetion of the judge as long as there is a customer signature)?

 

And are they still in default since the signature is not on the document, or has the request been satisfied?

 

Best Wishes

MoonHawk

 

MoonHawk

 

I have sent my response back - this is an Application not an executed agreement and reminded them that while they are in default they cannot enforce the alleged agreement nor can they apply any charges nor will you pay them any money until they remove the default.

 

You are in the same situation - it is an APPLICATION form NOT an agreement never mind an executed agreement.

 

I would do the same as me.

[MoonHawk]

I'm sorry mate - I don't understand your post....

 

Sorry ... I'll try in English

 

The agreement is not mine. I am helping someone else out and I do not know about any accompanying documents. I have asked the account holder if there was T&C included and am waiting for a reply e-mail.

 

MoonHawk

 

I have sent my response back - this is an Application not an executed agreement and reminded them that while they are in default they cannot enforce the alleged agreement nor can they apply any charges nor will you pay them any money until they remove the default.

 

You are in the same situation - it is an APPLICATION form NOT an agreement never mind an executed agreement.

 

I would do the same as me.

Thanks Zubo.

 

At the top it does say "If you have been asked to forward any documents with your application ... blah blah". So as far as I am concerned it is just that that... an application. But as it does conform to an agreement by having the ncessary elements then a judge might see different. I personally think these should be separate documents, but today's "I want it yesterday" mentality has created a b*****dised document that is very dangerous.

 

Best Wishes

MoonHawk

[zubo]

Sorry ... I'll try in English

 

The agreement is not mine. I am helping someone else out and I do not know about any accompanying documents. I have asked the account holder if there was T&C included and am waiting for a reply e-mail.

 

 

Thanks Zubo.

 

At the top it does say "If you have been asked to forward any documents with your application ... blah blah". So as far as I am concerned it is just that that... an application. But as it does conform to an agreement by having the ncessary elements then a judge might see different. I personally think these should be separate documents, but today's "I want it yesterday" mentality has created a b*****dised document that is very dangerous.

 

Best Wishes

MoonHawk

 

MoonHawk

 

We have discussed this at length, I do not believe that any application no matter how much detail they put into it can ever be used to represent an executed agreement. These are different documents and the Act goes into them with great detail. No judge would ever accept a signed application form as an agreement.

Advise your friend to follow the process I outlined.

[MoonHawk]

Thanks Zubo will do I didn't intend to be pain. I have read through the whole thread, the CCA and the OFT document on agreements, but wanted to confirm my understanding before advising someone else.

 

I have also just had confirmation that this was the only thing received ... a one page form. No T&C, no other details. lmao

 

Best Wishes

MoonHawk

[un1boy]

The agreement is not mine. I am helping someone else out and I do not know about any accompanying documents. I have asked the account holder if there was T&C included and am waiting for a reply e-mail.

 

Oh, ok - thanks for clearing that up!!

[un1boy]

No T&C, no other details. lmao

 

Well then, they still haven't satisfied your requuest - they need to send the terms and conditions anyway....but, then it's and application form so it's unenforcable anyway....

[MoonHawk]

Thanks again

 

Best Wishes

MoonHawk

[paulwlton]

MoonHawk

 

We have discussed this at length, I do not believe that any application no matter how much detail they put into it can ever be used to represent an executed agreement. These are different documents and the Act goes into them with great detail. No judge would ever accept a signed application form as an agreement.

Advise your friend to follow the process I outlined.

 

If the Application form contains all the prescribed terms and is signed by the creditor and debtor then this would pass in my opinion.

 

If it doesn't include all the prescribed terms, and this is the important bit, if it doesn't include correctly stated prescribed terms then a court is precluded from enforcement.

[MoonHawk]

If the Application form contains all the prescribed terms and is signed by the creditor and debtor then this would pass in my opinion.

 

If it doesn't include all the prescribed terms, and this is the important bit, if it doesn't include correctly stated prescribed terms then a court is precluded from enforcement.

 

I would say the same. From reading the OFT definitions of Cancellable Agreemnts, I believe (if the creditor decides to risk it and pursue it even if in default) then it would be at the discretion of the judge if all the elements were included.

 

APPLICATION TO THE COURT FOR AN ENFORCEMENT ORDER

The court cannot order enforcement where an agreement – even one in the proper form – was not signed by the customer. However, provided that the customer has signed some sort of document containing details of the amount of credit (or the credit limit), the rate of interest (if appropriate) and of the repayments, it can be enforced in some circumstances. If the court makes an order regarding such an agreement, it can direct that any term not included in that document shall have no effect. In short, a faulty document can in some circumstances be enforceable, but anunwritten agreement can never be enforceable under the Act.

 

In this case though, they sent a copy not signed by them, so it can clearly be said that it was an application.

 

Best Wishes

MoonHawk

[m55dlc]

I'm looking for a bit of guidance here. We received a court pack dated the 19th December (long story short here), I sent a SAR and a s78 on the 27th December I filed an acknowledgement of service followed by a defence in January. Now, the SAR date has passed, so too has the 28 days since I filed my defence (therefore the case should automatically have been stayed) and the DCA is 12 + 31 days on the s78. I've got the track and trace number from the Royal Mail saying they received my SAR & s78 combo on the 28th December, they cashed the cheques (£10 & £1 - both of which had SAR & s78 details on reverse, so they can't argue about payment received) in early January.

 

Now, the question is this: If you were in my position, would you:

1) let sleeping dogs lie - they can't do anything at the moment, but may well find the agreement in the future and so everything would be on again

2) inform the court that they haven't fulfilled on a SAR or a s78

3) tell the DCA about their position and attempt to negotiate a settlement

4) give the DCA 7 days to reply until you:

i) go after their data controller for non-compliance on the SAR

ii) go after the company for non-compliance on the s78

iii) file an n1 to get the money back you paid in SAR & s78 costs (and a court filing fee)

 

Does anyone have any thoughts on what I should do next? We're talking about a debt of circa £3k where the agreement is getting on for 15 years old?

 

It's the fact that there are a number of charges on this account and the fact that they wouldn't have complied with the s85 regs that make me rather annoyed at them (oh, and I opened the MCOL stuff on Christmas Eve - something they obviously thought would be funny but rather more makes me feel completely justified in telling these people where to get off!) Any thoughts you could help me with here would be greatly appreciated

[zubo]

If the Application form contains all the prescribed terms and is signed by the creditor and debtor then this would pass in my opinion.

 

If it doesn't include all the prescribed terms, and this is the important bit, if it doesn't include correctly stated prescribed terms then a court is precluded from enforcement.

 

Paul,

 

We will have to agree to disagree. That is an agreement I'm sure.

 

Application: A request and supply of information in support of pre-contract consideration.

Agreement.One of the elements of a legal contract. When an offer made by one party has been accepted by the other, with mutual understanding by both, an agreement exists. (LE)I think not at all the same!

[zubo]

I'm looking for a bit of guidance here. We received a court pack dated the 19th December (long story short here), I sent a S.A.R - (Subject Access Request) and a s78 on the 27th December I filed an acknowledgement of service followed by a defence in January. Now, the SAR date has passed, so too has the 28 days since I filed my defence (therefore the case should automatically have been stayed) and the DCA is 12 + 31 days on the s78. I've got the track and trace number from the Royal Mail saying they received my SAR & s78 combo on the 28th December, they cashed the cheques (£10 & £1 - both of which had SAR & s78 details on reverse, so they can't argue about payment received) in early January.

 

Now, the question is this: If you were in my position, would you:

1) let sleeping dogs lie - they can't do anything at the moment, but may well find the agreement in the future and so everything would be on again

2) inform the court that they haven't fulfilled on a SAR or a s78

3) tell the DCA about their position and attempt to negotiate a settlement

4) give the DCA 7 days to reply until you:

i) go after their data controller for non-compliance on the SAR

ii) go after the company for non-compliance on the s78

iii) file an n1 to get the money back you paid in SAR & s78 costs (and a court filing fee)

 

Does anyone have any thoughts on what I should do next? We're talking about a debt of circa £3k where the agreement is getting on for 15 years old?

 

It's the fact that there are a number of charges on this account and the fact that they wouldn't have complied with the s85 regs that make me rather annoyed at them (oh, and I opened the MCOL stuff on Christmas Eve - something they obviously thought would be funny but rather more makes me feel completely justified in telling these people where to get off!) Any thoughts you could help me with here would be greatly appreciated

M5

 

My initial thoughts - someone else may help because I wont be online until late tomorrow.

 

Concentrate on the court process:

 

Did your defence make reference to the pending s78 request and the SAR?

Why do you assume it's stayed? Have you sent in a request for a stay?

Personally, I would request that the Court dismisses the Claim due to their inability to respond to the S78 - ie the alleged agreement is unenforceable because of lack of any requested executed agreement. Take control and dictate the timescale - especially as they have no agreement.

 

I did not go to court but forced a DCA down the same path for an old 10 year alleged agreement. I threatened to take them to court they then wrote saying that they would no longer pursue me but quoted the amount of money owed. That was like waving a red rag, so I wrote again threatening them with the fines and litigation unless they reduced the debt to nil and they have written agreeing to write off £6k.

 

One final question I am curious about - what is the basis of their claim? what concrete proof do they have? pm me if you want to keep it quiet.

[JonCris]

If the Application form contains all the prescribed terms and is signed by the creditor and debtor then this would pass in my opinion.

 

If it doesn't include all the prescribed terms, and this is the important bit, if it doesn't include correctly stated prescribed terms then a court is precluded from enforcement.

 

We should also remember than any such document must be treat with equal status...........it can't be just an after thought

[JonCris]

Paul,

 

We will have to agree to disagree. That is an agreement I'm sure.

 

Application: A request and supply of information in support of pre-contract consideration.

Agreement.One of the elements of a legal contract. When an offer made by one party has been accepted by the other, with mutual understanding by both, an agreement exists. (LE)I think not at all the same!

 

Zubo I think your quoting contract law when we are referring to the CCA 1974 which is a different matter all together & places a much greater burden on the creditor

[Guest The Terminator]

Banks to write off record £6.6bn of bad personal debt-Business-Money-Borrowing-TimesOnline

 

And they've just announced 4.1 bill profits.Scandelous!!!

[JonCris]

Agreed............Blimey a thought has just come to mind....... If they are writing off mine or your debt then the DCA's may have no legal entitlement to pursue the debt courtsey of......... Dimond v Lovell

[JonCris]

Following on from my last post......We would have to ask "have you written off my debt" & they would have to respond.........If they said "no" then nothing gained but if they said "yes it's out of our hands" etc: Then bingo.............If they lied claiming they hadn't written it off & it was discovered they had mislead you & it had been written off.....then that would be a fraud as per the new 2006 Fraud Act

[m55dlc]

Following on from my last post......We would have to ask "have you written off my debt" & they would have to respond.........If they said "no" then nothing gained but if they said "yes it's out of our hands" etc: Then bingo.............If they lied claiming they hadn't written it off & it was discovered they had mislead you & it had been written off.....then that would be a fraud as per the new 2006 Fraud Act

 

Sorry JonCris, are you talking to me, or someone else?

[JonCris]

anyone! Just a few thoughts to mull over in view of the banks recently announced huge profits & write offs........ Check out mine & Terminators previous recent posts