Cap1 & CCA return

[zubo]

There defence is about 20-odd points (all on that thread) and they reckon they have consent by use basically....although they have no agreement or anything like that......can you post on the thread for me?

 

thanks mate....

 

did you need this??

 

http://www.consumeractiongroup.co.uk/forum/legalities/24013-defaults-proposed-method-removal.html

[Seahorse]

The very letter I've adapted to send to Vodafone. More info as/when/if.

[Peterbard]

A CCA agreement becomes unenforceable in some situations were it has been improperly executed not unexecuted! If it is unenforceable then the lender cannot force you to pay but the debt still exists and so does your consent to sharing data - the agreement is not void or unlawful - it is still an agreement. If the creditor has a copy of this agreement then he can lawfully say he has a legitimate interest in it.

 

Now your getting the hang of it Pam complete jibberish, an implroperly executed agreement is not the same as an unexecuted agreement.???

Niether of the above forms of an a agreement constitute a contract and all terms therin are void.

 

How do you define a incorrectly executed agreement ,could be the name of you aunt fanny on the top and the words you will give us a fiver a week and signed. Followed by consent to share your data.Incorrectly exectued but still an agreement.#

Methinks you need more potion.

 

Peter

 

Peter

[Peterbard]

M55 -if the account has been defaulted, then it has been closed and the agreement has been terminated anyway, especailly if the default has been applied unlawfully by not sending a default notice etc, and therefore there is no legitimate interest for you to process my data

 

Hi Uni

 

A default is issue prior to an agreement being terinated as we all know so when the creditor is said to be in default the agreement has to be still active otherwise what would he be defaulting on?

 

Regs

 

Peter

[un1boy]

M55 -if the account has been defaulted, then it has been closed and the agreement has been terminated anyway, especailly if the default has been applied unlawfully by not sending a default notice etc, and therefore there is no legitimate interest for you to process my data

 

Hi Uni

 

A default is issue prior to an agreement being terinated as we all know so when the creditor is said to be in default the agreement has to be still active otherwise what would he be defaulting on?

 

Regs

 

Peter

 

Hmm...good point!

[Peterbard]

HI Again

 

The question of whther the sim is a crdit token. No you pay for it up front ,no credit involved.

 

Petr

[m55dlc]

HI Again

 

The question of whther the sim is a crdit token. No you pay for it up front ,no credit involved.

 

Petr

 

Do you pay for it up front? I thought it was in arrears? I make a phone call and am billed for it?

 

The arguement also here is that you can pay for other items, not just usage, and you can pay for other 'soc's, like itemised billing and insurance. The question arises when you purchase a ringtone, as the monies are paid to a third party. Also, when you go abroad, the monies eventually are paid to a third party.

 

Now, if you clear your balance each month, surely this operates as a charge card and not a credit card, but I'm intrigued as to how this differs in the eyes of the law. Yes, there is credit involved, just in the same way as there is credit involved with an AmEx card. I may agree to clear the balance each month and there is no option of missing a payment. I've had the same contract now for nearly 10 years (OK, same MSISDN (CTN (phone number))) and there was a time when they would let your account roll over for up to three months. Also, there are a number of accounts where you only pay quarterly and others where you can pay yearly (don't ask me how I know as I just know....), so what are these if they are not credit?

 

Also, I could make a phone call whilst on holiday and not be billed for it for months. The percentages of this happening are really not as low as you may think. Also, if there is no credit involved, why would you credit check?

 

I think what we need here is someone to jump in and say that the CCA does not cover these agreements as you are paying for a service in arrears. That this is effectively a utility and you have no control as to the level of payment you make to the utility.

 

Oh, and as an afterthought. Crap, there is credit involved and it cannot be refuted by the mobile companies. I purchase a phone for £100.00, but the cost of the phone is actually £500.00, so the £400.00 difference is spread over 12 or 18 months and forms part of my monthly charge. What is that if it isn't credit?

[Seahorse]

A default is issue prior to an agreement being terinated as we all know so when the creditor is said to be in default the agreement has to be still active otherwise what would he be defaulting on?

 

Sooo... If a creditor sells on a debt, and effectively terminates the contract, what right does the purchasing company have to register a default, as you have no contract with the new owner? Or is the debt contract NOT terminated, but passes to the new owner? In which case surely, the new owner is obligated to assume the original creditor's duties (Under the CCA, DPA etc), as well as the creditor's rights?

 

Seahorse

[m55dlc]

Sooo... If a creditor sells on a debt, and effectively terminates the contract

 

Where did you read that then? How does this effectively terminate the contract exactly? The debtor has merely not kept up with the agreement and the agreement may well have been terminated. How exactly does this terminate the contract?

[FANTASY CHARGES]

HI Again

 

The question of whther the sim is a crdit token. No you pay for it up front ,no credit involved.

 

Petr

 

 

URRRRRRRRR not in all cases it is possible to have a SIM card (that is not a phone card) purely for using to access the internet it is very expensive about £2 per megabite of info transferred it is called vodafone data PAYU ...... there is a limit per month of data that you can transfer ( but this limit is not so much about money as limits on the data you cantransfer ) you pay by direct debit every month -- so you are getting short -term credit -- but technically it is credit ..

[m55dlc]

Fantasy, a sim card is a sim card is a sim card. It is the tariffs and socs that are present on the account the sim card is registered to that denote what it is. A sim card is a number (22 digits I believe) that is passed to the network along with the IMEI (the handset, or datacard or (believe it or not) coke machine) the sim card is in. The more I think about this the more sim cards are tokens provided with a credit agreement. You have a contract that lasts 12 to 18 months to cover the cost of the handset. This must be covered by the CCA.

[m55dlc]

HI Again

 

The question of whther the sim is a crdit token. No you pay for it up front ,no credit involved.

 

Petr

 

Peter, are you talking about PAYT / PAYG or CONTRACT?

 

PAYT, PAYG pay as you talk or pay as you go. Contract phones, where you get credit checked and then issued a £350 to £500 handset for between free and £100, payable over 12 to 18 months - pushes my buttons for credit.

[Guest The Terminator]

Are they saying a copy of the executed agreement was sent when they issued you with a new card, it's usually just T and Cs that are sent.

 

Billl: Get real,You can make up excuse after excuse but you won't get around S85 I suggest you read it.Forget about the crape about that sending a mailer fullfilles S85 BECAUSE it doesn't.Now if your man enough let's take this to court and to be honest I don't think you've got the guts to because you know your in a no win situation.

[Guest The Terminator]

Good Morning my colleagues who stir the cauldron.

 

I am sure they are clutching at straws with this reply.

 

Indusrty standard does not make it lawful and I am prepared to apply for a CCJ against MBNA and Capital one regarding these defaults and see what they produce in Court as evidence when the Act is very clear. i am going to write back to Will Wareing and point this out once again with the caution that the application fro the CCJ is going ahead.

 

he knows that Agreement is uneforceable because it was original issued by Alliance & leicester and not MBNA so of course there is no MBNA signature to be seen, as it is obvious to blind harry, that it is a faxed copy which was photocopied to us and I am sure a Judge woulkd be interested as the Act also clearly states, it must be a true copy of the original Agreement.

 

I am going to keep picking away at this one. One breach bad enough, two breaches, surely will land someone in trouble and if Will Wareing thinks he can smooth talk me out of this he is sadly mistaken. He can explain it to our local County Court Judge.

 

How do you word an application for a CCJ regarding Section 85?

 

Clutching at straws is about right.BA you can't get around S85 and that is that regardless of the mailer's the law is the law I see nothing about mailers in it:lol:

[Guest The Terminator]

OPEN INVITATION

Come on Bill let's take it to court.Not only will you be in breach of S85 but also your T&C will come under scrutitny and contrument.So if your not up to it perhap's I should take the lead.Dartford County Court beckon's

[paulwlton]

Can someone explain exactly the mailer argument they are saying satisfies sec 85.

[JonCris]

Posting a default is part of an enforcement & if any agreement falls foul of the CCA & is unenforcable (as in Wilson v Secretary of State) then although the debt does exist there is no remedy left to the creditor which includes the processing of that data. Mrs Wilson even had her security returned to her as a result of the judgement

 

To explain further if the agreement is void then the whole of the agreement is void which includes the bit where the debtor consented to their data being processed

[elizabeth1]

Posting a default is part of an enforcement & if any agreement falls foul of the CCA & is unenforcable (as in Wilson v Secretary of State) then although the debt does exist there is no remedy left to the creditor which includes the processing of that data. Mrs Wilson even had her security returned to her as a result of the judgement

 

To explain further if the agreement is void then the whole of the agreement is void which includes the bit where the debtor consented to their data being processed

 

JonCris

 

Is there a link to this Mrs Wilson Case anywhere on here by any chance? I am sure I saw it somewhere but can't find it now - way past my bedtime!!

[JonCris]

This case is the reason why this government much to their shame are removing the protection of s127 of the CCA 1974 as they decided it was too punitive on the money lenders & when you read it you will see why

 

They where so concerned for the money lenders profits they used public money to take the case to the HOL but lost......again

 

http://www.parliament.the-stationery-office.co.uk/pa/ld200203/ldjudgmt/jd030710/will-1.htm

House of Lords - Wilson and others v. Secretary of State for Trade and Industry (Appellant)

[InKogneeToh]

Posting a default is part of an enforcement & if any agreement falls foul of the CCA & is unenforcable (as in Wilson v Secretary of State) then although the debt does exist there is no remedy left to the creditor which includes the processing of that data. Mrs Wilson even had her security returned to her as a result of the judgement

 

To explain further if the agreement is void then the whole of the agreement is void which includes the bit where the debtor consented to their data being processed

 

Hi

 

Mrs Wilson's case was different than the norm because she had used her vehicle as security for her loan and the Act states:

 

113 Act not to be evaded by use of security

 

(1) Where a security is provided in relation to an actual or prospective regulated agreement, the security shall not be enforced so as to benefit the creditor or owner, directly or indirectly, to an extent greater (whether as respects the amount of any payment or the time or manner of its being made) than would be the case if the security were not provided and any obligations of the debtor or hirer, or his relative, under or in relation to the agreement were carried out to the extent (if any) to which they would be enforced under this Act.

 

(2) In accordance with subsection (1), where a regulated agreement is enforceable on an order of the court or the Director only, any security provided in relation to the agreement is enforceable (so far as provided in relation to the agreement) where such an order has been made in relation to the agreement, but not otherwise.

It also states :106 Ineffective securities

 

Where, under any provision of this Act, this section is applied to any security provided in relation to a regulated agreement, then, subject to section 177 (saving for registered charges),—

 

(a) the security, so far as it is so provided, shall be treated as never having effect;

 

(b) any property lodged with the creditor or owner solely for the purposes of the security as so provided shall be returned by him forthwith;

© the creditor or owner shall take any necessary action to remove or cancel an entry in any register, so far as the entry relates to the security as so provided; and

 

(d) any amount received by the creditor or owner on realisation of the security shall, so far as it is referable to the agreement, be repaid to the surety.

 

 

Unfortunately there is no similar specific direction in relation to money already paid to the creditor under an unenforceable agreement!

 

Mrs Wilson got her money back because she had paid it to get her car back after the 1st instance court had ruled that the agreement and security were enforceable. When the appeal court overturned that decision they ordered FCT to return her car and the money.

 

Plus, an unenforceable agreement is NOT void - it is still valid and lawful - it just can't be enforced.

 

Regards

[elizabeth1]

This case is the reason why this government much to their shame are removing the protection of s127 of the CCA 1974 as they decided it was too punitive on the money lenders & when you read it you will see why

 

They where so concerned for the money lenders profits they used public money to take the case to the HOL but lost......again

 

http://www.parliament.the-stationery-office.co.uk/pa/ld200203/ldjudgmt/jd030710/will-1.htm

 

House of Lords - Wilson and others v. Secretary of State for Trade and Industry (Appellant)

 

 

Thank you - I started reading cases like this before Christmas - but my PC threw a wobbley and I lost all the bookmarked data I had saved - I couldn't remember what it was about!!

 

Thanks for your help JonCris and Pam - it's always good to go back over something to re-jog the memory!!

[JonCris]

I'm not claiming the debt doesn't exist. The point I'm trying to make is if the debtor sends a D10 then because the agreement is unenforcable the data cannot be processed.

 

In other words the creditor can no longer rely on the terms of an agreement that is unenforcable. If that was the case they could still pursue the debt

[InKogneeToh]

I'm not claiming the debt doesn't exist. The point I'm trying to make is if the debtor sends a D10 then because the agreement is unenforcable the data cannot be processed.

 

In other words the creditor can no longer rely on the terms of an agreement that is unenforcable. If that was the case they could still pursue the debt

 

Hi,

 

Yes I agree that this is an arguable point but it is yet to be tested and I await the first claim with interest! Judges are strange beings as I well know!

 

Regards, Pam

[InKogneeToh]

Now your getting the hang of it Pam complete jibberish, an implroperly executed agreement is not the same as an unexecuted agreement.??? Correct - an improperly executed agreement is one that has been made but does not contain all that it should, whereas an unexecuted agreement is one that has not yet been entered into!

Niether of the above forms of an a agreement constitute a contract and all terms therin are void. Incorrect - an improperly executed agreement is still a valid contract -why else would a court have a discretion in (some circumstances) to allow enforcement - they couldn't do this if the contract was void. -

How do you define a incorrectly executed agreement ,could be the name of you aunt fanny on the top and the words you will give us a fiver a week and signed. Followed by consent to share your data.Incorrectly exectued but still an agreement.#

Methinks you need more potion. Methinks you need less!! -and a good read of Wilson v FCT 8)

 

 

 

 

Who's talking jibberish??

 

This is what I said, now with further explanation!! -

 

A CCA agreement becomes unenforceable in some situations were it has been improperly executed not unexecuted! (i.e. the term for an agreement that does not contain all that it should is 'improperly executed' NOT 'unexecuted' ...... 'unexecuted' means not made)

 

If it is unenforceable then the lender cannot force you to pay but the debt still exists and so does your consent to sharing data - the agreement is not void or unlawful - it is still an agreement. If the creditor has a copy of this agreement then he can lawfully say he has a legitimate interest in it. (i.e. If the creditor has a copy of an 'improperly executed' agreement - it may be unenforceable but it is still valid and lawful and so the creditor has a legitimate interest in it).

 

Is that a bit clearer. :grin:

 

Regards, Pam

[ladybird17]

Crikey Pam - another insomniac! Your explanation makes perfect sense to me.