Cap1 & CCA return

[tifo]

here it is, i'd uploaded it for someone else on rapidshare and was looking for the link but can't find it so i've done it again .... this was sent to me by another member so thanks to them.

 

Judgment on page 8,

 

RapidShare: 1-Click Webhosting

[car2403]

This judgement doesn't answer the question, as it looks like the appeal to the House of Lords was on a question of law, not of facts. It may be necessary to go back to the original judgement, of which this is the appeal to the House of Lords, (it must have also gone through the Court of Appeal to get there) but I have a feeling that this wasn't a material part of the judgement.

[tifo]

yes, it is the appeal judgment.

 

i read somewhere that the case was about the claimants loss of reputation as a result of the banks action, which can be applied to defaults as well.

[paulwlton]

The above conclusions mean that I would dismiss both the appeal and the cross-appeal, and would uphold the master's award

of general damages of £5,550. He said that it was 'somewhat coincidental' that this was £1,000 more than the amount of the

cheque, although I think he meant by this that the appropriate sum by way of general damages could be calculated in that way

in the circumstances of this case. This amount, as he explained, contained some allowance, though not very great, for injury

to the plaintiff's credit and reputation in Nigeria such as was alleged to have occurred. This is consistent with a correct

approach to the award of general damages in a case where the plaintiff claimed that he was an exporter/importer and

therefore the defendants could reasonably contemplate that he might suffer some injury to his credit in a country overseas.

[Vulture_Bank]

The Distinction between defamation and malicious falsehoods

 

joyce v sengupta court of appeal [1993] 1 All ER 897

 

The question is could the registering of a default by a credit card issuer (who in turn is in default of the CCA ) with a credit reference agency be deemed to be a "malicious falsehood" ?

[Having_A_Knightmare]

Hi

 

Below is the agreement sent to my other half after a CCA request.

I have wrote to them twice regarding its unreadable. Just had a reply back and they have enlarged the T&C not the agrement.

 

Looks like they only have a poor photocopy. What would the judge do if this was taken to Court.

 

HAK

 

[ncf355]

I'd be inclined to write again, but say you are considering court action and therefore require them to supply what they will rely on to enforce the agreement in court

 

As for what you've shown above, don't think they'd have much hope BUT it all depends on the judge!

[ncf355]

Also looks to me (as best I can tell via the extremely poor copy they have given you) as though the "office use only" part is where they should have signed and dated?

 

This being the case, see Section 63(2) (duty to provide copy of EXECUTED agreement) of the CCA 1974 and then Section 127(4)(a) (agreement cannot be enforced by court if 63(2) not complied with)

[Having_A_Knightmare]

Hi ncf355

 

YOu are right about the office signature.

 

THe copy you see is as clear as I can see and cannot make anything out.

 

Surely a judge could not exept this.

 

HAK

[IIIUMINATI]

Looks like an application form to me.

By enlarging is that not tampering with the alledged document.

[car2403]

A signature from the creditor to execute the agreement probably isn't required - I have this argument with GE Capital Bank, if you want to take a look at the thread, or I'm sure Peter or tomterm will be in soon to let you know why in detail.

 

Basic jist of it is that a signature needed to execute isn't a signed signature as we as lay people would know it - a company logo could suffice as a signature for execution.

[Scrappy01]

I have this same problem with BarclayCard. They sent me an application form with no signature from the bank and when I challenged them they are stating the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 at me, saying the copy doesn't need to have a signatory from the bank. I want to reply to their letter and I'm sure I've seen on the forums that a judge would make them provide an agreement with a signatory on if I took it to court, but I've looked all day and can't locate the thread I need.

[Having_A_Knightmare]

Anita

 

If it went to Court the judge would want to see the original agreement not a copy.

 

HAK

[shane5408]

I have this same problem with BarclayCard. They sent me an application form with no signature from the bank and when I challenged them they are stating the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 at me, saying the copy doesn't need to have a signatory from the bank. I want to reply to their letter and I'm sure I've seen on the forums that a judge would make them provide an agreement with a signatory on if I took it to court, but I've looked all day and can't locate the thread I need.

 

Hi,

 

Well if they stated that they are simply wrong, the omissions in the Regs allow for the creditors to omit the debtors signature not their own for this type of agreement

 

they are allowed to substantiate a signature in the form of a rubber stamp however IMO

 

kind regards,

shane

[ncf355]

Don't agree with any of this

 

When it quite clearly has a space for the signature, that is the execution on the part of the creditor and I would stand up in any court behind that

 

Also S61(1)(a) requires that it is "signed in the prescribed manner both by the debtor or hirer and BY OR ON BEHALF OF THE CREDITOR

 

This needs to be by a person, they have now way around this, and I for one would LOVE to see them try and argue it in court

 

In fact, next March I will get that chance

 

[Scrappy01]

Hi Shane, Thanks for that, very useful

 

I've been looking for a PDF copy of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 so I could check out what they are saying, but I can only seem to find bits from it. Do you happen to know where I can get a full copy?

 

I'm sure the letter is just a standard letter anyway. They say I have debt on the account and I know I don't, it was paid in 2004. I just want the default removing!

[ncf355]

Shane: that last one went up after your comment

 

I think you could be right about the rubber stamp, possibility it could be argued against but would be a tough one

[Having_A_Knightmare]

Anita

 

I have one somewhere

 

PM me your email address and I will send it over

 

HAK

[Scrappy01]

Hi NCF355. I quoted s61(1)(a) in my letter to them and the reply was that I was wrong, that on the copy they can omit this.

 

The box is there but it clearly hasn't been signed or dated. Nothing has been covered up so I just think its never been signed.

[Having_A_Knightmare]

Hi

 

Below is the agreement sent to my other half after a CCA request.

I have wrote to them twice regarding its unreadable. Just had a reply back and they have enlarged the T&C not the agrement.

 

Looks like they only have a poor photocopy. What would the judge do if this was taken to Court.

 

HAK

 

 

Looking at the numbering down the left hand spine it looks like this could have been some sort of scanned document. and as they sent me the T&C and called them the agreement it make me think this is the only copy they have got......If so can you image them taking miss HAK to court with this

[Scrappy01]

I've found certain parts from the CCA 1978 that seem to work...... but I could be wrong. Does the 1983 over-ride this in anway? I've highlighted the bits I think that are important. Can anyone agree or disagree with what I've found?

78.—(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of 15 new pence, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information

to which it is practicable for him to refer,—

(a) the state of the account, and

(b) the amount, if any, currently payable under the agreement by the debtor to the

creditor, and © the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

(2) If the creditor possesses insufficient information to enable him to ascertain the

amounts and dates mentioned in subsection (l)©, he shall be taken to comply with that paragraph if his statement under subsection (1) gives the basis on which, under the regulated agreement, they would fall to be ascertained.

(3) Subsection (1) does not apply to—

(a) an agreement under which no sum is, or will or may become, payable by

the debtor, or

(b) a request made less than one month after a previous request under that

subsection relating ~o the same agreement was complied with.

(4) Where running-account credit is provided under a regulated agreement, the

creditor shall give the debtor statements in the prescribed form, and with the

prescribed content

(a) showing according to the information to which it is practicable for him to refer, the state of the account at regular intervals of not more than twelve months, and

(b) where the agreement provides, in relation to specified periods, for the

making of payments by the debtor, or the charging against him of interest

or any other sum, showing according to the information to which it is

practicable for him to refer the state of the account at the end of each of

those periods during which there is any movement in the account.

(5) A statement under subsection (4) shall be given within the prescribed period

after the end of the period to which the statement relates.

(6) If the creditor under an agreement fails to comply with subsection (1)—

(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.

(7) This section does not apply to a non-commercial agreement, and subsections

(4) and (5) do not apply to a small agreement.

79.—(1) The owner under a regulated consumer hire agreement, within the prescribed period after receiving a request in writing to that effect from the hirer and payment of a fee of 15 new pence, shall give to the hirer a copy of the executed agreement and of any other document referred to in it, together with a statement signed by or on behalf of the owner showing, according to the information to which it is practicable for him to refer, the total sum which has become payable under the agreement by the hirer but remains unpaid and the various amounts comprised in that total sum, with the date when each became due.

(2) Subsection (1) does not apply to—

(a) an agreement under which no sum is. or will or may become, payable by the

hirer, or

(b) a request made less than one month after a previous request under that

subsection relating to the same agreement was complied with.

(3) If the owner under an agreement fails to comply with subsection (1)~

(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.

(4) This section does not apply to a non-commercial agreement.

189. (l) In this Act, unless the context otherwise requires—

“ 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 to writing;

[shane5408]

Hi NCF355. I quoted s61(1)(a) in my letter to them and the reply was that I was wrong, that on the copy they can omit this.

 

The box is there but it clearly hasn't been signed or dated. Nothing has been covered up so I just think its never been signed.

 

Hi anita,

 

can you clarify a few things, what type of debt is it, loan, credit card etc

how was the account applied for, online, magazine etc and how did you go through the application process, were you sent an app form which was blank then had to fill it in and send back to the creditor or did you sign it on creditors premises (for eg at a bank) etc. Also when was the account opened.

 

Lastly, if you could post up a copy for us to see if would be useful, you mentioned the creditor has omittied their signature, is there any kind of stamp on the form?

 

kind regards,

shane

[Scrappy01]

Its a credit card. I applied for it on one of those mail shots, a priority application, it was blank and I completed it. I signed it and sent it back. It was in Feb 2002. No stamp. Give me a few mins and I will omit my details, copy it and post for you to have a look at.

[Scrappy01]

Here's the agreement........

20071119161202697.pdf

[Having_A_Knightmare]

Antia

 

This copy is as bad as mine.

Is thereany perscribed terms in the right hand box(top)