Cap1 & CCA return

[lexis200]

I think the point being made here is that it's open to interpretation - mainly whether you consider the punctuation to link those 2 phrases together or not, it seems?

 

Thanks Chris - so really it all depends on what you could persuade a judge to read into it:rolleyes: Gotta love it when you get ambiguous stuff to use:)

[humbleman]

This is why it's important to go into court with written backup for every assertion that you make, or could make during the defence. Then if you do get a know-nothing judge you can show him / her a copy of the appropriate section of the legislation there and then.

 

When I was last in court, even though I was only up against Turnbulls I went into court totally tooled up - I almost needed a trolley to carry all my binders containing copies of acts, case histories and precedents, and commentaries. It was a good feeling when the opposition solicitor had to admit to the judge that he hadn't even got a copy of the CCA with him and I had! :grin:

 

This was a case management hearing, therefore I saw no need to take everything with me, I only brought this up since the other party were talking to the judge about striking out my defence at this hearing and the judge sat there listening to her and in the end he asked her if they had served me a notice to say they intended to bring this up at the hearing and she said no here the judge said in that case we can't talk about striking off my defence.

[Number6]

This was a case management hearing, therefore I saw no need to take everything with me, I only brought this up since the other party were talking to the judge about striking out my defence at this hearing and the judge sat there listening to her and in the end he asked her if they had served me a notice to say they intended to bring this up at the hearing and she said no here the judge said in that case we can't talk about striking off my defence.

 

Ah, OK. Understood.

[whu1]

Just received a second letter from Mercers in regards to Barclay credit card.

 

They have now stated they will pass on debt to local debt collector.

 

Even though no CC agreement has been provided and numerous letters sent to all parties.

 

Anyone else at this stage?? will they go to that stage even though they have refused to answer my letters/requests and that I have placed their account in dispute????????

[MajorPaine]

 

Anyone else at this stage?? will they go to that stage even though they have refused to answer my letters/requests and that I have placed their account in dispute????????

 

Same stage as me, what they actually do next is anyone's guess, I'm just going to wait and find out...

[MAGDA]

Just received a second letter from Mercers in regards to Barclay credit card.

 

They have now stated they will pass on debt to local debt collector.

 

Even though no CC agreement has been provided and numerous letters sent to all parties.

 

Anyone else at this stage?? will they go to that stage even though they have refused to answer my letters/requests and that I have placed their account in dispute????????

 

Same stage as me, what they actually do next is anyone's guess, I'm just going to wait and find out...

 

Quite often, even though the account is in dispute, they still pass it to an external DCA, who will then contact you to make payment, and the whole scenario starts all over again. However, if they are unable to provide the agreement (and a valid one at that) then there isn't very much that they can do. If they do pass it to a third party, just write to them explaining that the account is in dispute and that you await a signed copy of your agreement from their client. Magda

[whu1]

Quite often, even though the account is in dispute, they still pass it to an external DCA, who will then contact you to make payment, and the whole scenario starts all over again. However, if they are unable to provide the agreement (and a valid one at that) then there isn't very much that they can do. If they do pass it to a third party, just write to them explaining that the account is in dispute and that you await a signed copy of your agreement from their client. Magda

 

Don't suppose there is a template letter flying around for this stage if 3rd party gets involved???

[phatram]

Don't suppose there is a template letter flying around for this stage if 3rd party gets involved???

 

ACCOUNT IN DISPUTE

Account number xxxxxxxxxxxxxxx

Dear Sirs,

 

 

Re; your recent reply to my request under section 77-79 of the Consumer Credit Act 1974

 

I note that you have replied to the above by sending your companies current Terms and conditions I must inform you that this is not sufficient to comply with the request and that your company is still in default under the act.

 

To clarify, just sending the Terms and Conditions is a breach of the Act and Regulations as, apart from the information that the Regulations provide that you may exclude, the copy must be a “true copy” of the agreement.

 

This breach of the agreement can be demonstrated as follows;

As you will know section 180(1) (b) authorises, “the omission from a copy of certain material from the original, or the inclusion of certain material in condensed form.” This refers to statutory instruments made under the heading Copies of document regulations and in this care in particular to SI 1983/1557.

 

Before leaving section 180 there are two other sections that should be remembered these are:

 

Section 2(2) (a) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not satisfied unless the copy supplied is in the prescribed form and conforms to the prescribed requirements;

 

And more importantly

 

Section 2(b) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not infringed by the omission of any material, or its inclusion in condensed form, if that is authorised by regulations.

 

You will see that this quite clearly states that whilst certain items may be left out of the copy document the rest of the document must be in the form and contain all items as prescribed by the regulations.

 

Turning to the regulations regarding what may be omitted from these copies these are contained with SI 1983/1557.

 

The regulations state:

(2) There may be omitted from any such copy-

(a) any information included in an executed agreement, security instrument or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations thereunder as to the form and content of the document of which it is a copy;

(b) any signature box, signature or date of signature (other than, in the case of a copy of a cancellable executed agreement delivered to the debtor under section 63(1) of the Act, the date of signature by the debtor of an agreement to which section 68(b) of the Act applies);

 

It is quite clear what can be omitted from the copy document, this again asserts that all other details of the agreement should presented in form and content as required by the regulations.

 

The requirements of the Agreement regulations 1983/1553 are very explicit in describing the form and content of an agreement and this as I have demonstrated also applies to the copy of any such agreement with the above mentioned proviso.

 

Nowhere within these regulations does it state that part of the agreement can be presented on a separate document headed terms and conditions.

It does state that all terms and conditions should be within the agreement document and is explicit of the form in which it is presented.

 

I hope this explains why your reply was unacceptable I await a True copy of my agreement and would remind you again that whilst the request has not been complied with the default continues

 

Yours faithfully

[basa48]

Can anyone comment on whether the 'fast track small claims' is the best procedure for removal of DNs and credit file default entries for an unenforceable Credit Card agreement ?

 

Most disputed and un-paid creditors will trash your credit file out of pure spite and I want to recitify that if possible.

[car2403]

Can anyone comment on whether the 'fast track small claims' is the best procedure for removal of DNs and credit file default entries for an unenforceable Credit Card agreement ?

 

Most disputed and un-paid creditors will trash your credit file out of pure spite and I want to recitify that if possible.

 

Are you asking if it's "fast track" or "small claims"? if so, it depends on the amount of the claim, or how complicated it is.

 

I was almost fast tracked when the default was less than £300, because the case was considered so complex, so beware either way.

[Needabreak]

Would be great if somebody could provide any thoughts on this?

 

Originally Posted by Needabreak

Possible alternative angle where the Agreement, Default Notice and Termination are all OK?

 

Under section 85 of the CCA, the creditor has to send out a copy of the executed agreement and associated terms and conditions upon the issue of a new credit token or they go into default until this is rectified.

 

Assuming they did not rectify it, they then go ahead some months later to issue a default notice and terminate the account, issue court papers etc.

Assuming the DN issued was a valid one (correct in every detail and 14 clear days allowed) and they have terminated the account, this would have been done whilst the account was still in default as per the section 85 breach.

 

This would constitute an unlawful rescission of contract? And as it had been terminated whilst in default, could only be reinstated by agreement of both parties.

 

Even if they had an enforceable agreement in the first place, but did not sent a copy out with the issue of the replacement credit card.

 

If the agreement was an on-line agreement, I put the argument forward that it would be easy to prove the fact whether the agreement was sent with the card re issue to satisfy section 85, as the security systems in place to protect the integrity of the data would have shown an access to the data and print out of the agreement to send with the card.

 

If the creditor uses the argument that the agreement was sent but could not prove any record of it, we could challenge the whole point of the online process being flawed as to it’s integrity, and then how could they prove the tick in the box was indeed who’s they say it is.

 

Just some thoughts but Can anyone build upon or comment on this.

[Needabreak]

Before I go to bed, I remember reading somewhere in here or the various versions of the CCA and OFT documents...

 

...that in the prescribed terms, where an APR is to vary in the first 3 years of the agreement, then the highest APR should then be shown.

 

If I'm correct, say you took out a Balance transfer for 0% for say 9 Months, then you would go onto say 15.9% (where 15.9% would be the APR in the terms) What about if before the first 3 years were up, the Creditor put you on say 34.9% (as certain companies do as we all know!)

 

Surely the 34.9% should have been in the original prescribed terms. I would say this would be very important, as who would have taken the card out knowing this!!

 

This would make the prescribed terms incorrect and possibly render the whole agreement unenforceable??

 

Please somebody check this, my mind has been working overtime and may have burn't out:|

 

Maybe I'm wrong but would love another opinion please. My APR went from 0% to 15.9% then onto 34.9% even though I never missed a payment! I read somewhere that the APR on the agreement if it was to change within 3 years of the agreement, the APR stated had to be the highest.

 

This could help my case maybe?

[phatram]

I assume you are being ripped off by MBNA?

Open a thread there please so we can all join forces.

Surely if enough of us get together we can beat them.

[Needabreak]

I assume you are being ripped off by MBNA?

Open a thread there please so we can all join forces.

Surely if enough of us get together we can beat them.

 

Hi phatram,

 

I do have a thread, here but thought that this was more a general issue. When this thread started there was a lot discussed about section 85, and I was trying to find out what happened to the cases going on at the time.

 

I have read all of this thread and many others and my general questions revolve around this section 85. Assuming the OC did not comply with s.85 then the account remains in default. if the OC then terminates a few months later still in default, what would the situation be?

 

Needabreak

[basa48]

Are you asking if it's "fast track" or "small claims"? if so, it depends on the amount of the claim, or how complicated it is.

 

I was almost fast tracked when the default was less than £300, because the case was considered so complex, so beware either way.

 

My case is fairly straighforward.

 

It concerns a Tesco unenforceable credit card agreement (I absolutely know it is unenforceable btw). If, as I assume they will, they default me (I've stopped my DD) and place a record on my credit file, I want to take them to court to get the agreement declared unenforceable, the default removed and my credit file reinstated.

 

I won't be asking for any money back apart from expenses of the action.

 

Is this the right route? It is a simple (?) case.

 

PS: This is the so called 'agreement':

 

[davefirewalker]

It looks to be on the face of it pretty unenforceable........but what happens when they produce the terms and conditions that go with it, that contain all the prescribed terms, and then do an old boys club style hearing and screw you over ?? Dont rush headlong into court without preparing fully. BTW they probably wont remove the default either.....

 

Even though the agreement is unenforceable all that means is that they cant enforce it.......not that it doesnt exist.

 

The default will stay.

 

sorry

 

Dave

[fleeced_by_rbos]

It looks to be on the face of it pretty unenforceable........but what happens when they produce the terms and conditions that go with it, that contain all the prescribed terms, and then do an old boys club style hearing and screw you over ?? Dont rush headlong into court without preparing fully. BTW they probably wont remove the default either.....

 

Even though the agreement is unenforceable all that means is that they cant enforce it.......not that it doesnt exist.

 

The default will stay.

 

sorry

 

Dave

 

Is that absolutely the final word on it though, Dave? If an agreement is found to be unenforceable due to being non-compliant with Consumer Credit Act and therefore (as stated in test cases and by the draftsman of the act itself) the loaned monies were a gift and the creditor was not entitled to expect repayment since the agreement was not legally sound, then that also means that any default is also not legal as there is no agreement to be defaulted.

 

This is really a point of law, if the agreement is not legal then everything thereafter is not legal, so the credit reference data is not legal including defaults. Surely a creditor can't be given the right to record defaults whilst at the same time having no legal right to expect the credit to be repaid. Seems like a few test cases would sort this out for good.

 

There are plenty of threads covering this issue and ways of arguing the case in court. Take a look at http://www.consumeractiongroup.co.uk/forum/show-post/post-1552559.html for the legal background on the CCA legality issue.

 

FBR

[basa48]

It looks to be on the face of it pretty unenforceable........but what happens when they produce the terms and conditions that go with it, that contain all the prescribed terms, and then do an old boys club style hearing and screw you over ?? Dont rush headlong into court without preparing fully. BTW they probably wont remove the default either.....

 

Even though the agreement is unenforceable all that means is that they cant enforce it.......not that it doesnt exist.

 

The default will stay.

 

sorry

 

Dave

 

T&Cs as a separate document don't comply with the CCA, all the 'prescribed terms' MUST be on the ONE document you sign as an agreement, else it is not properly executed.

 

Old boys or no, a judge CANNOT enforce an agreement that doesn't contain all the prescribed terms under CCA127(3) and 61(1)(a).

 

Under such circumstances a judge can insist a default on an agreement that is unenforceable can be removed and the credit file reflect that. Defaulting an account that is in dispute contravenes Data Protection Act s10(1) & s12(1). Permission to process data is only given by virtue of a valid credit agreement.

 

Oh .. and what 'fleeced by RBOS' said PS: Thanks FBR .. more grist to the mill m8

Edited March 17, 2009 by basa48

[wacsa]

I'm interested in the CCA process (not even sure that's what it's called!) where debts can be written off if the contract is unlawful.

 

I have a loan that was taken out in mar/apr 08, is there no way that the process will work for this debt?

 

Also could you tell me if bank overdrafts and secured home loans can be challenged in this way?

 

Thank you.

[davefirewalker]

T&Cs as a separate document don't comply with the CCA, all the 'prescribed terms' MUST be on the ONE document you sign as an agreement, else it is not properly executed.

 

Old boys or no, a judge CANNOT enforce an agreement that doesn't contain all the prescribed terms under CCA127(3) and 61(1)(a).

 

Under such circumstances a judge can insist a default on an agreement that is unenforceable can be removed and the credit file reflect that. Defaulting an account that is in dispute contravenes Data Protection Act s10(1) & s12(1). Permission to process data is only given by virtue of a valid credit agreement.

 

Oh .. and what 'fleeced by RBOS' said

 

 

OK....I am on your side 100% I too have several agreements that are useless.....so much so that they have offered to write them off without going to court. It is my intention to try to get back the interest wrongly taken...but thats another story

 

I know of a case RECENTLY where the agreement (like yours) had NO prescribed terms. They produced a seperate document, different scale, different typeface and not even from the same date. Then proceeded to say these are the terms that would have been on the back............guess what the judge fell for it and the case was thrown out.....with costs of over £5k. It didnt even get to a full trial this was just a hearing

 

It is NOT about absolutes or the law, its about how lucky you get with the judge appointed.

 

the option then is to appeal the decision....with the legal costs that go with that, baristers et al. If you are stick at it you will probably win......but be prepared to fork out beforehand

 

forewarned is forearmed.......be prepared and make sure its what you want

 

rgds

 

Dave

[davefirewalker]

I'm interested in the CCA process (not even sure that's what it's called!) where debts can be written off if the contract is unlawful.

 

I have a loan that was taken out in mar/apr 08, is there no way that the process will work for this debt?

 

No

 

Also could you tell me if bank overdrafts and secured home loans can be challenged in this way?

 

Thank you.

 

 

it depends............

 

before you embark on anything like this you should get to grips with the legislation........its not like the bank charges where everything is templated

 

YOU have to put some work in.

 

the fact that you are asking questions means that you havent quite got a handle on it.....and that is dangerous for yourself.

 

please read as much as you can and try to understand the process before charging headlong into something that you arent quite sure of

 

Rgds

 

Dave

[fleeced_by_rbos]

Agreed Dave, it could become a battle if you get a bit of a Homer judge to begin with. I guess it would also depend on what your claim states in the first place and how convincing it is and how much it is backed up by test cases and the words of Francis Bennion et al. FunkyFox's claim in the previous link I gave inspired me!

 

FBR

 

[basa48]

I know of a case RECENTLY where the agreement (like yours) had NO prescribed terms. They produced a seperate document, different scale, different typeface and not even from the same date. Then proceeded to say these are the terms that would have been on the back............guess what the judge fell for it and the case was thrown out.....with costs of over £5k. It didnt even get to a full trial this was just a hearing

Dave

 

Except that if you look at my 'agreement' / application, around the edges it says 'moisten glue before folding'. Meaning a 'send to' address must have occupied at least half of the reverse side. I doubt they would put all the T&Cs on what would become the outside of an envelope.

 

In any event I would be sure to do a 31.16 disclosure request before going into court.

 

I'm surprised the defendant didn't ask to see the original document (with T&Cs on the back) in court and more surprised the judge didn't reprimand the CC co for misleading the defendant by witholding very relevant information. Something wrong there.

[fleeced_by_rbos]

Just poking around Francis Bennion's web site (the draftsman of the CC act) and found this interesting overview of the act...... Francis Bennion -

[davefirewalker]

Except that if you look at my 'agreement' / application, around the edges it says 'moisten glue before folding'. Meaning a 'send to' address must have occupied at least half of the reverse side. I doubt they would put all the T&Cs on what would become the outside of an envelope.

 

In any event I would be sure to do a 31.16 disclosure request before going into court.

 

He did !!!

 

I'm surprised the defendant didn't ask to see the original document (with T&Cs on the back) in court (HE DID AND THEY COULDNT SUPPLY IT) and more surprised the judge didn't reprimand the CC co for misleading the defendant by witholding very relevant information. (FAR TOO PALLLY FOR THAT) Something wrong there. I'LL SAY

 

 

rgds

 

Dave