Cap1 & CCA return

[paulwlton]

Legibility of notices and copy documents and wording of prescribed Forms

2.-(1) The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the colour of the paper

[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

 

 

Paul I mentioned this in every letter I have sent but its going on deaf ears.

 

Why do they keep ignoring the fact.

 

HAK

[paulwlton]

Because it's a technicality of the CCA and they don't like it.

 

Paul

[Scrappy01]

Paul I mentioned this in every letter I have sent but its going on deaf ears.

 

Why do they keep ignoring the fact.

 

HAK

 

Hi HAK

 

I'm going to mention it in my letter. But we'll see if I get anywhere (doubtful).

 

Do you know anything about the signed true and certified copy of the original default notice section of the CCA? Where does it say it has to be signed true etc? Is this a legal requirement? Mine wasn't signed true, just stamped with COPY at the top. It's incomplete anyway and I'm just stating this for now, but I'm just intrested to know.

 

Thanks

 

Anita

[Scrappy01]

Sorry I double posted, doh! Deleted now.

[FANTASY CHARGES]

Paul I mentioned this in every letter I have sent but its going on deaf ears.

 

Why do they keep ignoring the fact.

 

HAK

 

RE THIS MASTERCARD ............... "THING"

REMEMBER

 

62 Duty to supply copy of unexecuted agreement

(1) If the unexecuted agreement is presented personally to the debtor or hirer for his signature, but on the occasion when he signs it the document does not become an executed agreement, a copy of it, and of any other document referred to in it, must be there and then delivered to him.

(2) If the unexecuted agreement is sent to the debtor or hirer for his signature, a copy of it, and of any other document referred to in it, must be sent to him at the same time.

(3) A regulated agreement is not properly executed if the requirements of this section are not observed.

MEANING they have to supply you with an exact copy of "the thing"

also check the cc act to see if it is there is anything about offering an " illegal" incentive (200 points) we feel sure the presence of the 200 points "rubbish" in that position violates something need peter bard ......

also remember the 1998 data protection act was not in existence so check the data angle re ...... credit reference agencies ... defaults etc

as we all know they have not got a chance in hell with this mastercard --

their "greed" by mailshotting you ( the please moisten here bit gives it away as a mailshot) is to be "suitably rewarded by the unenforcability of the alleged agreement

[FANTASY CHARGES]

Quote:

Originally Posted by Having_A_Knightmare

Paul I mentioned this in every letter I have sent but its going on deaf ears.

 

Why do they keep ignoring the fact.

 

HAK

 

 

 

that mastercard thing is square size if the terms and conditions were on the back then the document showing the t & c should also be "a square document " you do not want some other original t & c you want the ones on the reverse of the mastercard thing !1

 

simple and obvious

[Peterbard]

Hi

 

Hopefully to help clarity some aspects of the copy stuff,

The section 62 copy is the one that comes with the agreement you sign and send off for the creditors signature.

The mention in the copy of document regulations of the 63(1) copy and the fact that it does require a debtors signature refers to the agreement that you sign which is already signed by the creditor and is usually the carbon underneath the document you send back.

The copy 2 documents that must be sent according to section 63 must be sent within 7 days of the making of the agreement unless;

The agreement was executed on the signature of the debtor ie.(the creditor signature was already on it when it was signed because you will already have a copy under section 63(1)) or;

In the case of a credit token when it may be sent along with the card.

 

Best regards

Peter

[Peterbard]

Hi

I think we must not place to much importance on section 61 of the act the ommission of the creditors signature unly renders the agreement improperly executed as far as the Act is concerned as does any other missing term(61(a)(b)) it does not mean it is void the court can still make an enforcemant order under secion 65.

 

Best regards

Peter

[Scrappy01]

Hi

I think we must not place to much importance on section 61 of the act the ommission of the creditors signature unly renders the agreement improperly executed as far as the Act is concerned as does any other missing term(61(a)(b)) it does not mean it is void the court can still make an enforcemant order under secion 65.

 

Best regards

Peter

 

Hi Peter

 

But in my case, where I'm only trying to remove the default, the courts couldn't enforce the agreement as I've paid up and don't owe them anything, so no legal action can be brought. Not sure how else to persue the default removal......

 

Any advice anyone?

 

Thanks

 

Anita

[Having_A_Knightmare]

Peter

 

What your veiw on the unreadable copys they keep sending out

 

HAK

[shane5408]

Hi Peter

 

But in my case, where I'm only trying to remove the default, the courts couldn't enforce the agreement as I've paid up and don't owe them anything, so no legal action can be brought. Not sure how else to persue the default removal......

 

Any advice anyone?

 

Thanks

 

Anita

Hiya,

 

I've found the easiest method of getting defaults removed is to include the removal as part of your penalty charges claim. do you think their might have been some late payment / overlimit fees? If so send a SAR

 

kind regards,

shane

 

 

______________________________________________

All advice is offered freely & without prejudice

 

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[shane5408]

Hi

I think we must not place to much importance on section 61 of the act the ommission of the creditors signature unly renders the agreement improperly executed as far as the Act is concerned as does any other missing term(61(a)(b)) it does not mean it is void the court can still make an enforcemant order under secion 65.

 

Best regards

Peter

Hi Peter,

 

I agree, but it is interesting to look at the implications of the lack of creditors signature (There would have to be no signature, no rubber stamp etc at all, nothing to indicate the creditor had accepted the agreement hence it was never made etc) when considering section 59(1) of the Act.

 

59(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

 

S 189 defines the following:

 

“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;

 

“unexecuted agreement ” means a document embodying the terms of a prospective regulated agreement, or such of them as it is intended to reduce to writing

 

I never really noticed the definition of unexecuted before but it definitely strenghthens the s59(1) argument I think.

 

kind regards,

shane

 

 

[car2403]

Hi Peter,

 

I agree, but it is interesting to look at the implications of the lack of creditors signature (There would have to be no signature, no rubber stamp etc at all, nothing to indicate the creditor had accepted the agreement hence it was never made etc) when considering section 59(1) of the Act.

 

59(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

 

S 189 defines the following:

 

“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;

 

“unexecuted agreement ” means a document embodying the terms of a prospective regulated agreement, or such of them as it is intended to reduce to writing

 

I never really noticed the definition of unexecuted before but it definitely strenghthens the s59(1) argument I think.

 

kind regards,

shane

 

 

 

 

Depends on your definition of "signature" though, shane. The dictionary definition doesn't sit anywhere in a legal action - a legal definition could be "an undertaking to perform some task" for example, so a company logo would suffice as identifying the parties.

 

Again, not my opinion, but I think a claim based solely on an unsigned (literal meaning) agreement would probably fail. If that is supported by other issues, it will probably have more of an effect.

[shane5408]

Depends on your definition of "signature" though, shane. The dictionary definition doesn't sit anywhere in a legal action - a legal definition could be "an undertaking to perform some task" for example, so a company logo would suffice as identifying the parties.

 

Again, not my opinion, but I think a claim based solely on an unsigned (literal meaning) agreement would probably fail. If that is supported by other issues, it will probably have more of an effect.

Hi Chris,

 

I agree with regard to identifying the parties, a company logo even a worded sentence can do so but in the situation where an agreement becomes executed on the creditors signature IMO there has to be some form of authority from them, be it a rubber stamp or an actual signature. Otherwise the agreement remains unexecuted, hence prospective and void by s59(1).

 

kind regards,

shane

 

 

 

________________________________________

All advice is offered freely & without prejudice

 

If my post has been useful to you please click the scales

[car2403]

Hi Chris,

 

I agree with regard to identifying the parties, a company logo even a worded sentence can do so but in the situation where an agreement becomes executed on the creditors signature IMO there has to be some form of authority from them, be it a rubber stamp or an actual signature. Otherwise the agreement remains unexecuted, hence prospective and void by s59(1).

 

kind regards,

shane

 

 

 

________________________________________

All advice is offered freely & without prejudice

 

If my post has been useful to you please click the scales

 

But, the agreement would become executed once the funds were released or the customer had drawn on the account - I think this is evidence of the agreement being made and executed as both parties have (at least partially) acted on some of their obligations under the agreement.

 

It's not right though, which is why I'm intending on testing it (if it gets to Court) with HFC Bank, in that they haven't signed the agreement - I'm arguing it's unexecuted, or improperly executed at least.

 

It all depends what the Judge thinks on the day, I'm afraid.

[Scrappy01]

Hiya,

 

I've found the easiest method of getting defaults removed is to include the removal as part of your penalty charges claim. do you think their might have been some late payment / overlimit fees? If so send a S.A.R - (Subject Access Request)

 

kind regards,

shane

 

 

______________________________________________

All advice is offered freely & without prejudice

 

If my post has been useful to you please click the scales

 

Hi Shane

 

I tried this with HFC. They paid my claim and didn't remove the default.

[car2403]

Hi Shane

 

I tried this with HFC. They paid my claim and didn't remove the default.

 

Have you continued with your claim as they haven't met it in full?

 

"Default removal + charges" does not equal "charges refunded and Default remains", IMO.

 

Do you have a thread on this claim, anita?

[Scrappy01]

Have you continued with your claim as they haven't met it in full?

 

"Default removal + charges" does not equal "charges refunded and Default remains", IMO.

 

Do you have a thread on this claim, anita?

 

I didn't start one. It was my first claim and they paid up weeks. I've kept checking my credit file and the default still exists on there. The only problem I have is that HFC CCJ'd me (I settled it 2 years ago). Can they still then remove the entry that has the defaults? Obviously I know they can't remove the CCJ entry.

[shane5408]

But, the agreement would become executed once the funds were released or the customer had drawn on the account - I think this is evidence of the agreement being made and executed as both parties have (at least partially) acted on some of their obligations under the agreement.

 

It's not right though, which is why I'm intending on testing it (if it gets to Court) with GE Capital Bank, in that they haven't signed the agreement - I'm arguing it's unexecuted, or improperly executed at least.

 

It all depends what the Judge thinks on the day, I'm afraid.

 

Yeah at the end of the day it all comes down to the interpretation of the judge and it would be foolhardy to rely on this one argument alone.

 

the agreement would become executed once the funds were released or the customer had drawn on the account

 

It is entirely possible the judge will see it this way but looking at statue I can see mention of this, If we look back at s189 definition of executed it cleary states it must be signed by or on behalf of both parties. If it isn't it remains unexecuted and prospective.

 

kind regards,

shane

[Scrappy01]

Paul I mentioned this in every letter I have sent but its going on deaf ears.

 

Why do they keep ignoring the fact.

 

HAK

 

Who have you been dealing with at BarclayCard HAK?

[car2403]

Yeah at the end of the day it all comes down to the interpretation of the judge and it would be foolhardy to rely on this one argument alone.

 

 

 

It is entirely possible the judge will see it this way but looking at statue I can see mention of this, If we look back at s189 definition of executed it cleary states it must be signed by or on behalf of both parties. If it isn't it remains unexecuted and prospective.

 

kind regards,

shane

 

This is what I'm basing part of the claim on, with an "in the alternative" statement just in case;

 

http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/110146-car2403-hfc-bank-default-6.html#post1229509

 

(Sorry, it's the 2nd HFC Bank claim, not GE Capital - too many claims going on and they are all blurring in to each other!)

[JonCris]

The funds being released to the debtor would have no effect in establishing that the CCA 74 agreement was enforceable.

 

See Wilson v Secretary of State

 

The court cannot make an order if there is no 'signed' properly executed agreement. Otherwise as has already been said by another poster the terms of their agreement could include their right to your 1st born

 

However as some judges have creditor sympathies you will have to argue that forcibly in your pleading & even be prepared to appeal if necessary

[shane5408]

The court cannot make an order if there is no 'signed' properly executed agreement

 

Hiya,

 

I assume here you mean an enforcement order and as in signed by the debtor as 127(3) would apply otherwise?

 

kind regards,

shane

[JonCris]

I do