Cap1 & CCA return

[tifo]

If the total of your drawings & purchases, is less than the total of all credits made, can you claim that you owe nothing, based on you have paid for everything you have either purchased, and or been advanced, plus a bit more.

 

Is this the amount you've paid minus the amount you spent, excluding interest, PPI and charges they applied?

[sharkie]

Is this the amount you've paid minus the amount you spent, excluding interest, PPI and charges they applied?

 

 

Yes

 

If you have all of the information regarding the account from start to present, and or finish, so there are no estimates only actuals.

 

Total of all payments/credits minus total of all purchases/drawings (including transfers etc.)

[banker_rhymes_with]

Hello Sharkie!

 

Question

 

If the total of your drawings & purchases, is less than the total of all credits made, can you claim that you owe nothing, based on you have paid for everything you have either purchased, and or been advanced, plus a bit more.

 

That is a very valid issue, and one I keep trying to get people to look at when examining their so called debts.

 

My own argument is along the lines of: adding it all up, I can see that I have Paid them more than they ever let me Spend. Thus, the argument over the Debt is now down to them having an Enforceable Agreement to make me pay all of their Charges and Interest.

 

I do think knowing that, and having that firmly in your mind should you end up in Court, is a very strong mental position to argue from.

 

I stress mental, but knowing you are in the right on the morals of it all, is half the battle won.

 

No Enforceable Agreement = No Right to make you Pay for all of their total Interest and Charges.

 

For example, on one of my Cards, they are chasing me for 18k and climbing. But over the life of the Card, I have Paid them back around 5k more than I ever spent. The 18k they now want, is therefore made up of Interest and Charges.

 

If they can't Enforce, I have not got away without Paying 18k, they have simply lost out on 18k of Charges/Interest that they had no right to anyway, as they were stupid enough not to arrange a suitable Agreement.

 

The debt is not a bag of 18k in Cash that I have gone out and spent.

 

Indeed, you can say I have Paid them 5k of that anyway, so they are only missing out on around 13k of Charges/Interest, of which around 2k were Unlawful anyway, and at least 4k derived from very, very excessive Interest.

 

It's sadly ironic that they will write it off against Tax anyway, so you cannot feel sorry for them in any way at all.

 

I urge everyone when faced with claims to Pay Card or similar Debt, to take a good look at the make up of the alleged Debt. You may be very surprised what the true picture is, and feel much keener to fight back!

 

Cheers,

BRW

Edited July 31, 2008 by banker_rhymes_with
Can't Type!

[sharkie]

Absolutely agree, I know many are in the situation whereby they have not "technically" cleared the debt, and in the early days of having a credit card, especially if it was received to transfer previous debt, however if you have had the card for sometime the chances are you have paid for purchases and drawings plus.

 

The main word here is "agreement" if there is is not an enforceable agreement in place surely you have not agreed to the interest and charges etc, if (to many ifs) you have not agreed why should you pay.

 

So back to the question, (here's that word again) if you are in a situation where you can clearly show that you have more than paid for purchases/drawings/transfers.

 

What action to take, don't want to be pestered.

[Gez]

Spot on BRW. And that is still not taking into account all the hours you have spent & costs you have incurred chasing around to correct mistakes due to their incompetence..

[sharkie]

Gez & BRW

 

We are in agreement that "technically" its paid plus some.

 

How or what is the best route to prove, and or resolve this.

 

In this sort of situation any claim for charges plus some interest will in no way cover the current balance.

 

If there is no agreement I want the whole thing wiped, adverse data and all.

[uptoneck]

Hello Everyone,

 

I've just read through all 608 pages of this amazing thread, taking plenty of notes as I've gone. It's been a real eye opener!

 

I wonder if I could get some opinions regarding a couple of issues I have with Barclaycard.

 

I have two Barclaycard accounts, a Visa and a Mastercard account. I wrote off for copies of my agreements as per s 77/78. With my Visa account, the agreement had all the prescribed terms and had been signed by both Barclaycard and me; however, it also said "subject to the terms and conditions overleaf". The terms and conditions they sent me were clearly not a copy of the "overleaf" as they ran to two pages of A4 (the original application/agreement was only one page) and there was nothing to date them to the time I took out the card in 1987.

 

In the meantime, via this thread, I learned about Section 85. :grin: In the year 2000 my Visa account was "upgraded" to a Gold card with a new card and number. I didn't get a copy of the agreement at the time - just a letter telling me my account was being upgraded and what a privilege it was as I was such a good customer (blah, blah, blah).

 

I've kept all the statements filed away from that time, and it now looks as though (as they've been in default under Section 85) I've overpaid this account by over £1,600! :D I've written to them and asked for this to be refunded and await their reply.

 

I'm now turning my attention to my Mastercard. This started life as a Barclays Assent card, which I paid off before the card was discontinued. Below is a copy of what they sent me under my S77/78 request (yes, really).

 

 

 

From what I've read here it would seem this agreement is completely unenforceable - especially as the terms and conditions clearly were not the ones in force at the time of the application and it hasn't been signed by Barclaycard. It's a bit hard to read here, but the "terms and conditions" state they are a "notice of variation" and will come into effect seven days after I've received them.

 

Yesterday I received a letter from Barclaycard (below). It quotes Regulation 7 of the Consumer Credit (Cancellation and Copies of Documents) Regulations 1983. Unless I missed it somewhere (in which case I apologise) I haven't seen this one used before. Any suggestions as to how I should reply would be much appreciated.

 

Dear Mr Uptoneck,

 

Reference: SECTION 78 of the Consumer Credit Act 1974

 

Barclaycard Account Number: XXXXXXXX and XXXXXXX

 

I write further to your letter dated 23rd June 2008.

 

Firstly, please accept my apologies for the delay in responding to your letter.

I have noted the issues you feel are in contention and I have reviewed what has been sent to you. However, I deem this to be sufficient for the bank to have fulfilled its obligations under Section 78 of the Consumer Credit Act 1974.

 

Credit Credit card agreements are regulated by Section 78 of the Consumer Credit Act 1974. Section 78 of this Act clearly determines a creditor only need supply a debtor a copy of the executed agreement, and a signed statement showing information which is practicable to refer.

 

The Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 deal with how we are to provide a copy of an executed agreement. Regulation 7, shows that where an agreement has been varied, as in your case, a debtor shall include a copy of the latest variation of terms. Regulation 7 does not state that the copy shall include a statement of the original terms as well as a statement of the varied terms. Therefore, Regulation 7 allows us to provide you with a copy of the executed agreement containing the terms and conditions current at the time of supplying the copy.

 

Regarding a signed statement showing information which is practicable to refer, the letter you received with your executed agreement, dated 7th June 2008 fulfils this obligation. This confirms that what we have supplied you, fulfils the Bank's obligation under Section 78.

 

In your letter you state you have not been supplied with the requisite documents that section 78 entitles you to. I disagree with this. What has been sent to you is a clear copy of the executed agreement. Within this document the relevant conditions which are regulated by the consumer credit agreement are included. Further to this, you have also been provided with a copy of your application form. This shows your signature and your personal information. All documents, other than the executed agreement were given to you for your convenience - Section 78 of the Consumer Credit Act 1974 only requires us to provide you with the information stated above.

 

Regarding your application form, you state that it does not adhere to the prescribed form set by the Consumer Credit Act 1974. Regulation 3(2)(a) of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983, shows that when providing copy documents, any information included in an executed agreement can be omitted from other copy documents. This demonstrates that your copy application form need not contain all the elements contained within the executed agreement.

 

You should carry on paying the debt you have accrued on your account. We do not class the account as "in dispute", you have been supplied with the relevant documentation under Section 78 of the Consumer Credit Act 1974, and we will carry on with collection services.

 

I hope this letter has helped with your concerns about the documents you have been supplied with under section 78 of the Consumer Credit Act 1974.

 

 

Yours sincerely,

 

Etc.

 

[Monkehg]

Hi,

 

I'm also kind of new to this forum. I did post once about a company who would rip me off to get credit cards cleared but am now ploughing my way through this thread to confirm that I can do it myself.

 

So this is where I'm at right now - I get the template letter requesting CCA from, lets say MBNA for eg. I send it off to them, I know they can't send a copy of a CCA because I applied online for the card and then as if by magic, one day a card appeared on my doorstep, so I didn't even sign an application form. So then what do I do? It's this next stage that I can't find on this thread. Please help as I really do think i've a good case here and with MBNA charging me 30+% because I missed a couple of payments which turned out to be the fault of my bank, I really don't have any moral issues with regards to trying to get the agreement terminated.

 

Many thanks for any help and I do apologise if this has already been answered within the last nearly 2 years!!

[MAGDA]

I have received an interesting letter from barclays re: a visa card and mastercard. They sent, in response to my CCA request, a copy of the application form signed by me, together with separate terms and conditions for one of the accounts (it was just an application, no prescribed terms and it wasn't signed by barclays), for the second account they sent t&c's only. Their letter now states the following: "Issues relating to the consumer credit act have been interpreted recently in the High Court of Justice. It was confirmed that exectued agreements are the terms and conditions that are sent to debtors when they received their credit card. This is what you have been supplied with." They also add " Regarding your application form, you state that it does not adhere to the prescribed form set by the Consumer Credit Act 1974. Regulations 3(2)(a) of te Consumer Credit (Cancellation Notices and copies of Dcouments) regs 1983 shows that when providing copy docs, any information included in an executed agreement can be omitted from other copy documents. This confirms that your copy application form need not contain all the elements contained within the executed agreement."What do you make of this, thanks, Magda

[davefirewalker]

I have received an interesting letter from barclays re: a visa card and mastercard. They sent, in response to my CCA request, a copy of the application form signed by me, together with separate terms and conditions for one of the accounts (it was just an application, no prescribed terms and it wasn't signed by barclays), for the second account they sent t&c's only. Their letter now states the following: "Issues relating to the consumer credit act have been interpreted recently in the High Court of Justice. It was confirmed that exectued agreements are the terms and conditions that are sent to debtors when they received their credit card. This is what you have been supplied with." They also add " Regarding your application form, you state that it does not adhere to the prescribed form set by the Consumer Credit Act 1974. Regulations 3(2)(a) of te Consumer Credit (Cancellation Notices and copies of Dcouments) regs 1983 shows that when providing copy docs, any information included in an executed agreement can be omitted from other copy documents. This confirms that your copy application form need not contain all the elements contained within the executed agreement."What do you make of this, thanks, Magda

 

This is obviously a reference to the "Rankine" case, it was a very bad judgment, wrongly thought out, by what appeared to be a very biased judge, and apparently not based on previous law. discussion here...>

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/147432-high-court-judgement-rankines.html

 

There is also a discussion on what needs to be supplied as a "true" copy in Paul waltons thread here...............>

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/11427-walton-rbos.html post 661

 

I would totally ignore it and write back to them saying something like my post in my thread "CCA's and Dave against the world"....>

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-1553359.html

 

They tried this on with me and I replied as in the post above, they then offered to write off the debt TOTALLY.....which I refused .......I have BIGGER fish to fry

 

Dave

Edited July 24, 2008 by davefirewalker

[Jeff2000]

This is obviously a reference to the "Rankine" case, it was a very bad judgment, wrongly thought out, by what appeared to be a very biased judge, and apparently not based on previous law.

 

I would totally ignore it and write back to them saying something like my post in my thread "CCA's and Dave against the world"

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-1553359.html

 

They tried this on with me and I replied as above, they then offered to write off the debt TOTALLY.....which I refused .......I have BIGGER fish to fry

 

Dave

 

 

 

 

Hi Dave,

 

 

That letter you wrote to Barclays will probably be of use to me in the not too distant future!

 

I've copied and pasted it. Many thanks!

 

 

Best wishes, Jeff.

[MAGDA]

Hi Dave, many thanks for the links, will have a read of your thread and get a letter off to Barclays. They are certainly persistent at the moment, we have had several letters from RMA and also Westminsters solicitors, which I know are intended to make us cave in and start paying again. No chance! Thanks, Magda

[uptoneck]

Thanks, Dave. Will be sending a letter off to Barclaycard as per your suggestions ASAP. Just received a reply from them regarding my Section 85 claim on my Visa card that is total rubbish, and goes to show that they either haven't read my letter, or they're just taking the p***!

 

Will scan and post later. I think it's the same "round robin" they send out to everyone.

[reallymadwoman]

Could someone have a look at the agreement on this thread please.

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/153270-egg-cca-enforcable.html

[Saint2K]

I'd also greatly appreciate any help with the following CCA related thread:

 

CCA - Are these valid?

[reallymadwoman]

Sorry to ask again, but this one has totally confused me. Could someone look at this thread, please?

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/153368-interest-rate.html

[Enron]

Do we have any case law relating to s85 CCA 1974?

[davefirewalker]

Do we have any case law relating to s85 CCA 1974?

 

Paul walton had a little success with his claim last year.....dont exactly know where it was reported...either here or on his own thread ???

 

Dave

[Enron]

Thanks, have spoken to him briefly about his manufactured RBS agreement.

 

Gearing up to commence action against RBS myself, and came across this little gem:

 

“The Consumer Credit (Cancellation Notices and Copies Of Documents) Regulations 1983 Reg 7

 

7 Copies of agreements or security instruments where the agreement or security instrument has been varied (1) Where an agreement has been varied in accordance with section 82(1) of the Act, every copy of the executed agreement given to a debtor, hirer or surety under any provision of the Act other than section 85(1) shall include either:

(a) an easily legible copy of the latest notice of variation given in accordance with section 82(1) of the Act relating to each discrete term of the agreement has been varied; or

(b) an easily legible statement of the terms of the agreement as varied in accordance with section 82(1) of the Act.”

 

This is handy as it gives definition to the little leaflets which RBS have included with the issue of new cards - they are varied terms of agreement, and not executed agreements - therefore s85 cca1974 has been defaulted with each card issue subsequent to the first card.

[la2006]

Does anyone have any idea which reg xxxx the following refers to: I got it from some website but not interested in using them. In there sample report it states the following:

 

(1) The APR is incorrect and is therefore in breach of Reg xxxxxx. This requires the APR as set out in Sch xxxxxx para's xxx, xxx and xxx.

 

(2)The total interest amount is incorrect and is therefore in breach of Reg xxxxxx. This requires the total interest to be a constituent part to the total charge for credit as set out in Sch xx para xxxxxx.

 

3) The total charge for credit is incorrect from the agreement and is therefore in breach of Reg xxxxxx. This requires the total charge for credit as set out in Sch xx para xxxxxx

 

4) The total amount payable is incorrect from the agreement and is therefore in breach of Reg xxxxxx. This requires the total amount payable as set out in Sch xx para xxxxxx.

 

If anyone can let me know what the xxx xxx etc are...

[Enron]

RBS have just come up with this little gem with reference to their supplied varied terms of agreement.

 

I quote, "We dont understand your comments in respect of s85. If you refer to Regulation 8 of the Cancellation Notices and Copies of Documents Regulations 1983, you will see that the copy of the agreement prescribed by s85(1) shall comprise an easily legibla statement of the current terms of the agreement. All the larned commentary on the Act concludes that a true copy isnt required to satisfy s85(1). We are statisfied that what we send with card renewals compiles with s85(1) and reulgation 8 of the CNC regulations:

 

Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983

8 Copies of credit-token agreements where the agreement contains a power of variation

Every copy of an executed credit-token agreement given to the debtor under section 85(1) of the Act where the agreement

may be varied under a power contained in it shall comprise an easily legible statement of the current terms of the agreement (whether or not varied in accordance with section 82(1) of the Act).

 

I've studied my agreement and there is no power of variation in it.

[davefirewalker]

 

I've studied my agreement and there is no power of variation in it.

 

 

 

are you sure...that seems very unlikely, but if true you can go on to kick a55

 

Dave

[Dileepan]

I had my bank account overdrawn by £20 by a direct debit to t-mobile ,then DD was returned unpaid and bank charged me £30 but I could't afford to pay that penalty then its now ended up with £345 overdrawn by Banks recurring penalties (some times £75 a month)

the debt fowarded to debt collecters recently and a default registered with all major CRA's

*****CAN I REMOVE THIS DEFAULT****

this is totally unfair as this debt fully made up with banking charges,I

haven't borrowed even a penny from the bank(First Direct)

[fergal71]

hi it would be wise to start your own thread dileepan and read a little you will find the information you need

[pudsters14]

Hi all

 

I am submitting an AQ (N149) to the court today and would like a bit of advice..

 

It would be much appreciated if anyone can give feedback or comments

 

Thanks

 

Link to my thread....http://www.consumeractiongroup.co.uk/forum/legal-issues/77464-pudsters14-mbna-5.html

 

Thanks again

 

Pudst

x x x x x

 

Sorry for hijacking the thread!