Cap1 & CCA return

[Peterbard]

Hi Peter, can you help with my understanding of this agreement from Black Horse. (1998)

 

 

 

I believe it to be unenforceable under s127 CCA 1974. It's missing the prescribed term of interest.

 

S3.39 of the Consumer Credit Regulations 1983 state the interest rate must be stated as a Per Annum figure. APR is not a prescribed term. Only interest rate stated is a monthly figure of 1.87%

 

Think it's also unenforceable because the PPI payments are rolled into the total monthly payment and their was no separate breakdown on the costs of PPI. Making the monthly payment figure of this incorrect. Should be something like £44.69.

 

Louiboy

 

HI

 

I am afraid that the rate of interest is not a prescribed term for fixed term credit niether does it have to be itemised on the agreement (Sectuion 9) in post 2004 agreements this is ammended but section 6 which includes the prescribed terms isn't so even though it would make it enforceable with a court order only not to show it, it would not make it unenforceable.

I notice ther is no Total charge for credit on this this is not a prescribed term but would make it enforceable only by order of the court.

Yes the repayments are incorrect and this is prescribed term as you say if the ppi is optional it should form part of the amount of credit and they do not seem to have included it. So it is unenforceable on those grounds

Go Get em.

 

Best regards

 

Peter

[elsinore]

Whilst googling for Goode, I came across this

 

Consumer credit

 

Perhaps CAG would sponsor Peter or another to attend (because it's expensive!)

 

Els

[Peterbard]

Hi! Peter

 

Is there anymore info as to what the reference is!

is it a specific refernece? or the whole Book? or case specific? that everyone is looking for?

 

In the meantime I found this that refers to judgement made

 

HOUSE OF LORDS

 

Lord Browne-Wilkinson Lord Nicholls of Birkenhead

Lord Hoffmann Lord Saville of Newdigate Lord Hobhouse of Wood- borough

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

 

IN THE CAUSE

 

DIMOND

(ORIGINAL APPELLANT AND CROSS-RESPONDENT)

v.

LOVELL

(ORIGINAL RESPONDENT AND CROSS-APPELLANT)

ON 11 MAY 2000

 

Judgments - Dimond (Original Appellant and Cross-Respondent) v. Lovell (Original Respondent and Cross-Appellant)

 

C.I.S. adopts Professor Goode's definition of credit (Goode, Consumer Credit Legislation, looseleaf ed., vol 1, para. 443) which was approved by the Court ...

 

 

 

If you can give me anymore info as what I am actually looking for I will see what else I can find..

 

Got more than enough time on my hands as I am disabled and at home all day.

 

 

minky xxx

 

Hi

The reference could be in any of the above that is the problem if they are on pdf you could try and scan for references to the cca 1974,sorry can't help more.

 

Best regards

Peter

[louiboy]

Thanks Peter. Already had them over. Black Horse and DLC took me to court and bottled the case before it went to proof. They started to fold under questioning and demands for proper documentation.

 

Expenses to me 1 - 0

 

That was a part I needed to be clear with before I serve the summons's on them.

[shooter001]

HI this is my first post here. I have ammended one oy the letters posted on other threads regarding defaulted CCA requests. Barclays have not given me any information on my loan after the 12 working days and 1 calender month.

 

They have not admitted to not having anything. The information commisioner is also putting pressure on them and they still gave no account information for my loan.

 

I have ammended the following letter to try and claim my money back I have paid them and would appreciate any input before I send it.

 

Their address

Your address

Loan Policy Number:

 

Dear sir or madam

 

Request for true copy of Credit Agreement under Sections 77/78 of the Consumer Credit Act 1974

 

I wrote to you recently requesting a true, signed copy of any credit agreement that exists in relation to the above account. This is my right under Sections 77 and 78 of the Consumer Credit Act 1974 on payment of the statutory fee of £1.00. This payment was included with my original request.

 

Under the terms of the above Act, a creditor has 12 working days to provide the requested document. Should they fail to do this, they have a further calendar month to rectify this default. Failure to comply within these timescales is a criminal offence.

 

Both of these deadlines have now passed and I have received nothing in relation to my request. This can lead me to only one conclusion, that being that no signed credit agreement exists in relation to this account.

 

As I am sure you are aware, an agreement that does not contain all of the prescribed terms, and/or is not signed by the debtor, is completely unenforceable, even in a court of law. This will be a complete defence to any court action that you may consider taking.

 

Please note, you may also consider this letter a statutory notice under Section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect. This means you must remove all information regarding this account from your own internal records and from my records with the credit reference agencies.

 

There has never been any regulated agreement in relation to this account, and therefore you have never had my consent to process my data. I also do not see how you can state that you have a legitimate interest in processing my data as we have never had any contract that would enable you to do this.

 

Should you fail to respond within 21 days, I will expect that this means you agree to remove all such data.

 

Be warned, the CCA 1974 is clear that a default can only be issued for breach of a valid, regulated agreement. If there is no agreement, as in this case, then you cannot issue a default as I have not breached any valid, regulated agreement.

 

Furthermore you have also defaulted and yet again failed to give me the requested information detailed in my Subject Access Request letter under the Data Protection Act 1998, and also under the further Instructions from the Information Commissioner.

To resolve this matter I expect the account to hold a zero balance and any monies I have paid to you to be refunded. I can only estimate these based on the records I currently have as you have failed to supply me any under the Data Protection Act 1998. My estimate of payments made on the account is £4860.

Failure to resolve these issues within this time period will leave me no other choice but to report any possible Criminal activities to the Office of Fair Trading, The Information Commissioner, Trading Standards, Merseyside Police and Watchdog for investigation.

 

I look forward to your final decision on this complaint within 21 days. This should include your proposed actions in relation to the lack of a credit agreement.

 

Yours faithfully

 

[Your name]

[angel49]

HI A

Yes the leeway for APR according to the regs is .1% under or 1 % over this would not make the agreement unenforceable via 127(3)as APR is not a prescribed term.

THe agreement could be said to be missleading and you could get a ruling as to unenforceability under subsection 2 of 127 or if it was a reflection of an incorrect interest rate, that is a pp and would make it so.

Best regards

Peter

 

Hi Peter

Thanks for your input. Heres a copy of the agreement assessment checker.

[the main man]

Hi J's

 

I have had a look on line and there are a lot of mentions of this chap so many in fact that it would take an age to find the reference that is being referred to howeer if there is someone out there that has the time it would be greatly appretiated .

 

best regards

Peter

 

 

Hi Peter,

 

I have e-mailed TS and I have asked if they could forward a copy of the relevant part of Goode's interpretation of section 172 to which TS are referring to, so I will post when I get a reply.

 

Regards

 

MM

[Peterbard]

hi

this is why i don't use the things.

payments dont add up to totall patments no wonder it comes out unenforceable unfortunately it is a problem with the software not the agreeement

There is also a problem with the interest though i will work it out tomorrow for you when i have my thinking head on

 

Best regards

 

Peter

 

best regards

 

Peter

[Peterbard]

Hi Peter,

 

I have e-mailed TS and I have asked if they could forward a copy of the relevant part of Goode's interpretation of section 172 to which TS are referring to, so I will post when I get a reply.

 

Regards

 

MM

Hi MM

 

great lets see what they send back

 

best regards

 

Peter

[SteveH2508]

In this case it might be worth some research into the words of Pofessor Goode of Queens Bench. QB is a division of the courts and I am not aware of professorships in QB (although I do admit my knowledge is very limited). Perhaps a little call or note to TS asking who, what, where and when etc to get more of a lowdown on this piece of advice. If it's in the public domain, ask to see it. If not ask why not and under what authority is it being used if not public

 

Just a few thoughts out loud

 

Professor Goode wrote (is writing) the definitive guide to the Consumer Credit Act published by Butterworths. It probably costs at least £300 now. It comes in 2 large blue volumes and gets several updates each year which take ages to put into the books. He is generally accepted as the guru regarding Consumer Credit. (I spent many hours thumbing through those books with a wet towel round my head in a previous existence). Having said all of that, when I used it as a reference book, there was little case law under CCA so a lot was just opinion (albeit well-reasoned) - it would be interesting to see how his views have changed given the Wilson case etc. now.

[voyager9]

peter

 

if you remember a post a bit ago about section 59 with regards to a cahoot agreement

hI

 

I have spent a great deal of time looking into section 59 and have had a great deal of conflicting advice from the OFT on the matter.

On the face of it the only agreements that are exempt from section 59 are (SI552) fixed sum agreements for the purchase of work tools and that comply with the quotaion regulations SI55 which are similar to the agreememt regulations.

However i have had it in writing that they apply to cancellable agreemnts that do not give recourse to excersise that option.

I get the feeling there is a big can of worms here that no one wants us to open.

 

Anyway whichever way you look at section 59 i can not see how it would not apply to the above and make the agreement void.

It is an agreement that porprts to bind a person to enter as

debtor or hirer into a prospective regulated agreement.This in itself would make the agreement void and i for one would be very greatful if someone would test this.

As for credit limit they are alowed to issue just a statement that that will be aplied at a future date on a running agreement.

As for being pre-contractual i am not quite sure what is meant probalbly just me being thick but arn't all agreements going to look precontractual because of the lack of the debtors signature.

 

Best regards

Peter

 

i have used that argument in a letter to hbos/halifax where they have sent an application and said it was the agreement.

 

what i stated was by the definition of the word application it is an agreemement to enter a future agreement and is therefore made void under section 59(i will post exact letter if you want)

 

what followed was a letter a month later saying upon advice from there legal dept they will not comment on my legal arguments.

 

in the meantime they have sold the debt to obvoisely get something out of it and pass the buck, so i think you may be onto something with this.

 

i have now started a claim on this credit card for charges but because of above am also claiming all interest paid and payment protection insurance as all these are also void.

 

will be glad if this does go to court because if the judge agrees then it will settle the argument about applications once and for all and open a can of worms.

 

may need a bit of help with poc though ,will be dut to file in about 2 weeks

 

voyager9

[ian1969uk]

Well, I'm absolutely speechless. I reported MBNA to Trading Standards for non-compliance with Section 78, non-compliance with Section 85 and attempting to enforce an unenforceable agreement (an application form missing all prescribed terms). Trading Standards wrote to me stating they would be taking no action due to the fact they considered MBNA had complied. I sent this to TS:

 

Re: Alliance and Leicester Credit Card (provided by MBNA).

 

I am in receipt of your letter dated 25th May 2007, the contents of which are noted.

 

I am somewhat astonished with your conclusions and would ask you to reconsider them as a matter of urgency. Your response contains many inaccuracies, and these misconceptions appear to have affected the conclusion you have reached.

 

You state that MBNA have provided me with a copy of my agreement. This is clearly not the case as they have supplied me with a copy of an application form which cannot in anyway be mistaken for a regulated agreement as required in law.

 

I draw your attention to the fact that Mr Ian McCartney, Minister of State at the DTI, has replied, when writing about this precise issue, that it is a breach of the Act to send an application form rather than an agreement in response to a request under Section 78 of the CCA 1974. Yet this is precisely what MBNA have done; an unlawful action which you have supported. If you require a copy of the said correspondence I should be only too happy to provide it.

 

Furthermore, the application form they sent me has never been signed by MBNA, so any assertion from them that this document constitutes an executed agreement is clearly very wrong. For your information, an agreement is only executed on the signature of both debtor and creditor. Therefore, MBNA cannot claim to have ever had an executed agreement in relation to this account. As it is a copy of the EXECUTED agreement that they are required to send me in response to a Section 78 request, they simply cannot have complied as you mistakenly assert.

 

Moreover, the application form they sent me lacks every single prescribed term required under the CCA 1974. You state that there are different rules for different agreements. This may be true to an extent but ALL agreements for fixed sum or running account credit must have at least the following terms:

• A credit limit
  
• A rate of interest
  
• A schedule of repayments

This document sent to me by MBNA has none of these, and so cannot possibly constitute an enforceable agreement.

 

Finally, your letter makes no mention of the serious breach of Section 85 (CCA 1974) committed by MBNA in relation to this account. I explained previously what Section 85 requires of the creditor, and as I have now demonstrated without doubt that MBNA have no executed agreement in relation to this account, it follows that they can NEVER have complied with Section 85. I still await your comments on this issue.

 

I have demonstrated clearly that MBNA remain in breach of my request under Section 78 of the CCA 1974. I would like to add that, as well as the issues already described, Section 78 requires that they also send a signed statement of account and a copy of any documents referred to in the agreement. MBNA have done neither. A creditor cannot have fully complied with Section 78 until all of the required documents have been produced. How, then, can you state that MBNA have complied when they haven’t supplied these documents to me?

 

Please be advised that I am well versed in these matters and now I have brought these matters to your further attention I ask that you reconsider your present position.

 

Please also be advised that should you maintain that you will not take any further action regarding these matters, I shall institute a complaint against both you and your employer Trading Standards at the highest level.

 

I apologise for being so forthright but if we, the ordinary consumer, cannot rely on a regulatory authority such as Trading Standards for protection to whom do we turn?

 

I await your reply at your earliest convenience.

 

 

Yours sincerely

 

ian1969uk

 

I received a reply this morning, which reads:

 

Dear ian1969uk

 

Following receipt of your recent letter I have now had the opportunity to review your complaint file.

 

I understand your initial complaint to this Department was regarding MBNA's failure to provide a copy of your credit agreement as requested by virtue of Section 78 of the CCA 1974. Further, I understand your original request under this section was on the 3rd March 2007 and whilst this was reiterated in many other letters after this time, a copy of your application was supplied on or around the 23rd April 2007.

 

As you correctly state a creditor only has the prescribed period, that is 12 working days by virtue of the Consumer Credit (Prescribed Periods for giving information) Regulations 1983 in which to supply the information, after one calendar month the creditor commits an offence. Arising from this I have now written to MBNA to draw their attention to their obligations under the Act and to point out that monitoring will continue in order to identify further potantial breaches.

 

I further understand that you feel the application form supplied by MBNA is not sufficient. The form supplied does refer to the 'terms and conditions overleaf' although not supplied. In addition the following is prescribed for running account credit:

 

• Title of the agreement
  
• Name and postal address of creditor
  
• Name and address of debtor
  
• Credit limit: which includes a statement to the effect that this will be determined by the creditor and indicating the manner in wich this will be given to him.
  
• Term of the agreement of fixed duration for running account credit - the duration of the agreement.
  
• Rate of interest - on the credit to be provided under the agreement or, where more than one such rate applies, all the rates in all cases quoted on a per annum basis with details of when each rate applies.
  
• APR
  
• Repayments calculated on limits
  
• Amount of repayments - a sum of money or a specified proportion
  
• Timing of repayments - for all types - dates/frequency etc
  
• Cancellation rights and charges

The assumption has to be made that these requirements would have been satisfied if the pages overleaf were supplied.

 

You also state that the copy of the application form is not sufficient and that it is not a 'true copy' of your executed agreement due to its lack of signature.

 

'Executed agreement' means a document signed by or on behalf of the parties embodying the terms of a regulated agreement, or such of them as have been reduced in writing. Further Regulation 3 (2) (b) of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983, gives confirmation that it should be a 'true copy' but omissions are allowed ie a signature box, signature or date of signature. Section 180 of the Act also makes provision to authorise the omission from a copy of certain material contained in the original, or the inclusion of such material in condensed form.

 

It is also your assertion that MBNA have not compled with Section 85 of the Act, which states that a copy of a debtor's agreement has to be supplied with the issue of a new credit token or at substantially the same time. It is widely acknowledged that a credit card mailer satisfies this requirement although the agreement is encompassed in a glossy leaflet. Colleagues are also unaware of instances where the requirement under Section 85 is not satisfied.

 

Due to the reasons outlined above, on this occasion no further action is anticipated against MBNA and as outlined previously a copy of your agreement was supplied albeit slightly outside of the required statutory time period, which would not be deemed to be such a sufficient default to warrant a criminal prosecution and hence why on this occasion the company have been warned.

 

Yours sincerely

 

TS

 

I give up

[voyager9]

the definition of the word application is :

 

a formal and usually written request for something, for example a job, a grant of money, or a place at a university

 

therefore if they say it is an agreement then it is an written agreement requesting a future credit agreement and is made void under section 59

 

59 Agreement to enter future agreement void

(1) An agreement is void if, and to the extent that, it purports to bind a person to enter as

debtor or hirer into a prospective regulated agreement.

 

if when you sign a application form it is a binding credit agreement then it binds you to enter a prospective regulated agreement and is void

 

thats my view and i will hapily try to proove it in court.

 

voyager9

[voyager9]

definition of the word prospective:

 

1/ likely to be something

 

expected or hoping to do or become something

 

2/ likely to happen

 

likely or expected to happen ie prospective changes

[JonCris]

What I complete & utter waste of space TS really are.

 

We really need to go after them almost as much as the lenders.

[Jeff2000]

What I complete & utter waste of space TS really are.

 

 

 

 

Oh I dunno! Try selling the wrong shaped bananas!!!

[un1boy]

My TS have been really good so far - can't say much more than that at this stage, but I sent them another agreement they said they would look at, then the guy called me and had a go at me - said I was bombarding them with stuff above my original complaint and that "If you are trying to use to get out of paying debts then that's not what we are here for. We don't mind lokoing into genuine complaints, so when (the other) bank do somehting we can react to, let us know".

 

I was annoyed at first, becaus he was the one that said he would look over the other agreement.

[un1boy]

Ok, with regard to the original terms and conditons - TS reckon that it is acceptable for an online lender to send a copy of terms and coniditons whihc have been printed online in response to a sec 78 request, even though the actual agreement refers to the terms and conditions "being enclosed" and their response letter states that they are onine and they don't send them out.

 

What is correct?

[un1boy]

One more thing, apparently it is acceptable for a lender to send an agrement over 2 pages without the pages being linked or anyhting. I don't see how, but there we go!!

[bizzer]

Hi, Can anyone answer these questions,

I have succesfully reclaimed charges from Shabbey, but as they dragged their heels so much and were dificult from the start, and now that i have read so articles regaurding charging the banks for the time spent pursuing our claims i wondered how to go about it? also have another claim in place at the mo, i have issued that court form N1, now the bank has bounced yet another DD, how can i go about adding this charge to the claim or will it have to go onto a second subsquent claim?

 

Thanks all.

 

Bizzer

[un1boy]

Hi, Can anyone answer these questions,

I have succesfully reclaimed charges from Shabbey, but as they dragged their heels so much and were dificult from the start, and now that i have read so articles regaurding charging the banks for the time spent pursuing our claims i wondered how to go about it? also have another claim in place at the mo, i have issued that court form N1, now the bank has bounced yet another DD, how can i go about adding this charge to the claim or will it have to go onto a second subsquent claim?

 

Thanks all.

 

Bizzer

 

 

Bizzer, I don't mean to sound rude but you're best off going into the charges forums and asking these questions - we can help u there. this thread is far too complicated to be getting into charges stuff.

 

Hope that's ok.

 

Let us know where you start ur thread!

[Peterbard]

the definition of the word application is :

 

a formal and usually written request for something, for example a job, a grant of money, or a place at a university

 

therefore if they say it is an agreement then it is an written agreement requesting a future credit agreement and is made void under section 59

 

59 Agreement to enter future agreement void

 

(1) An agreement is void if, and to the extent that, it purports to bind a person to enter as

debtor or hirer into a prospective regulated agreement.

 

if when you sign a application form it is a binding credit agreement then it binds you to enter a prospective regulated agreement and is void

 

thats my view and i will hapily try to proove it in court.

 

voyager9

HI

 

I have done a bit of work sction 59 after i had this response from the OFT on a random inwquiry i made.

I refer to your enquiry, asking whether credit card application forms provided at petrol stations have to comply with the Distance Marketing Regs and have the appropriate cancellation entitlements. You also ask for an explanation of the function of Section 59 of the CCA in relation to contracts of the above nature.

 

I can confirm that the Distance Marketing Regs cover all consumer credit agreements executed away from the suppliers trade premises and without any face to face discussions with the supplier of the credit; and, where the supplier makes exclusive use of one or more means of distance communication (e.g. telephone, internet, fax, or mail) under an organised distance sales or service-provision scheme. Therefore credit card application forms provided at petrol stations have to comply with the Distance Marketing Regs and provide a cancellation period of 14 days.

 

In relation to contracts of the above nature which do not provide any scope for cancellations Section 59 of the CCA will apply and make the agreements void.

 

I hope you find this information useful.

 

Yours sincerely

 

Omar Hanif

Consumer Credit Enforcement

Markets and Projects Group - Services

 

A you can see it infers that section 59 does apply to prospective agreements.

On closer inspection i found that there is a SI which lists all agremments that are exempt from this section it is 1998/1552.

It says that the only exemption is for the buying of tools of the trade on a fixed term credit agreement.Which would meen that it would apply to everything else.

I have writen to the OFT again to clarify their orriginal response because if it is true it would apply to every agreement that was signed first by the debtor and sent for execution to the creditor.I got a letter back saying that they were not able to give legal advice on the matter. I am afraid i left it there. I am not sure that this applies in they way that we think it does the problem is i can't think of how else it would.

 

I hit a dead end i trust you will have more luck

 

All the best

Peter

[noomill060]

Finally got a full reply to my s.78 request to Barclaycard a while back.

 

(Another photoscan of my application form, and this time - a photoscan of the original T&Cs from 1999.)

 

As ive said previously, on examination the Credit limit on T&Cs differs from the acual credit limit. This is a Prescribed Term so the agreement is unenforeable without a court order, but s.127(3) would preclude any court from issuing one. This has been confirmed by Trading Standards.

 

Wrote back to Adrian Ruffhead pointing this out and included a Data Protection Act s.10 notice to remove default.

 

Eventually I got a response from Adrian Whalley. A big NO.

 

Today I got a letter from Sonia Simmonds -Court Orders and Disclosures manager refering me to s.15 and s.15(1) of my T&Cs. These refer to sharing of data with CRAs.

 

Interestingly, though (and in response to my repayment request for unlawful charges) around £230 has been removed from my alleged debt. about 20% of that asked for), her letter makes no mention at all of the unenforceabillity or otherwise of the credit agreement and she says that collection recovery has been suspended for one month "to allow me time to discuss repayment"

 

(There has been no "recovery action", save for two final demands from Wescot in April)

 

I draw my own conclusion that recovery has been suspended and that no mention is made of the legal enforceabillity of the agreement. Any thoughts from you guys?

 

On another point, a S.A.R - (Subject Access Request) for data from 1985/86 was ignored and I have started a small claim for enforcement of this.

 

A complaint to the Information Commissioners Office has also been made.

[noomill060]

...And of course, the Application Form was a mail shot (DSR regs apply) The photoscanned Application Form isnt signed by Barclaycard, so would come under the transitional arrangements for the 2006 Act, the prescribed form to which, it doesnt confirm.

 

Transitional arrangements means that agreements made prior to September 2005 and signed only by the borrower on that date will be considered to come under the 2004 amendments to the CCA 1974(as amended by SI 1983/1553), which make the need for clarity in the prescribed form of agreements a lot more stringent on the creditor.

[noomill060]

Most pre 2005 credit agreements would not meet the prescribed form under the 2005 ammendments and would thus be void if unexecuted in September 2005