Cap1 & CCA return

[Peterbard]

Hi, that makes me wonder why banks default/terminate overdrafts commonly under s76(1) 98(1) when section 76(6) 98(6) clearly states that it doesn't apply in situations where a breach has occurred. I am referring to a situation where the overdraft limit has been exceeded - not just a case where the bank ended the overdraft agreement for other reasons. I have tried getting the OFT to clarify this, and they have said that s76 and 98 do not apply, only to fixed term agreements, so why do banks terminate under these sections when a breach/default has clearly occurred and if it isn't relevant. I ask because we are currently defending an overdraft claim. Doesn't seem to make sense.

 

Just to add, the OFT say that if an overdraft 'contract' allows for termination on demand they do not even need to default/terminate under s87 - this would only appy where the contract did not already cover this. I have read on so many threads on the forum that s76 etc apply and other people argue it is 87, so this just confuses it even more.

 

many thanks, Magda

 

Hi Magda

Overdrafts are covered by the consumer credit act however, unfortunately the bank does not have to have an agreement for your overdraft .

Yes the bank can terminate your account at any time the same as any other running credit account, they do still however have to issue a default notice under section 87 if they want to pursue the debt through the courts.

Peter

[Peterbard]

Hello Magda!

 

 

 

To be honest, I'm not convinced the banks know what they are doing half the time, and just grab the nearest official sounding Notice and use that. Most of the s76(1)/s98(1) Notices that I have seen do tend to go out of their way not to mention anything about a default. They just tend to be bland Notices saying that something is being ended, as if all is well in the Rose Garden.

 

 

 

No, it doesn't.

 

Direct them back to s61(1)(a) which clearly states that the Prescribed Terms must be contained.

 

General terms can be embodied into the Agreement from elsewhere (i.e. another document), and that is covered by s61(1)(b)...but that does not cover the Prescribed Terms.

 

House of Lords Case History supports the above (Wilson), as does Professor Roy Goode and Francis Bennion who drafted the Act.

 

Cheers,

BRW

 

 

HI

 

Me to

 

Peter

[diddydicky]

[Desperate Daniella]

Magda and BRW,

 

You may want to look at CCMAN Vs Goldfish because CCMAN has just been taken to Court by Cabot on a Goldfish Agreement with no prescribed terms at all, and the judge has warned him he hasn't a leg to stand on, and this appears to be due to the Carey Judgment in December, although from reading that (173 and particularly 178 about the 'four corners') I'm just not getting why that is. If you have been sent an application form with no prescribed terms how is that a CCA-compliant enforceable agreement?

 

Also, I don't see why one judge would be able to undermine a unanimous decision by three Law Lords in Wilson.

[vint1954]

Magda and BRW,

 

You may want to look at CCMAN Vs Goldfish because CCMAN has just been taken to Court by Cabot on a Goldfish Agreement with no prescribed terms at all, and the judge has warned him he hasn't a leg to stand on, and this appears to be due to the Carey Judgment in December, although from reading that (173 and particularly 178 about the 'four corners') I'm just not getting why that is. If you have been sent an application form with no prescribed terms how is that a CCA-compliant enforceable agreement?

 

Also, I don't see why one judge would be able to undermine a unanimous decision by three Law Lords in Wilson.

I guess the short answer to that is, they trained alongside the bankers and don't have a clue.

 

It is clear that Carey dealt with s78 requests and s78 only. HHJ Waksman refused to comment further. CCMAN's defence is that they did not comply with s78, then that is the only reason Carey should be relevant.

[Peterbard]

Magda and BRW,

 

You may want to look at CCMAN Vs Goldfish because CCMAN has just been taken to Court by Cabot on a Goldfish Agreement with no prescribed terms at all, and the judge has warned him he hasn't a leg to stand on, and this appears to be due to the Carey Judgment in December, although from reading that (173 and particularly 178 about the 'four corners') I'm just not getting why that is. If you have been sent an application form with no prescribed terms how is that a CCA-compliant enforceable agreement?

 

Also, I don't see why one judge would be able to undermine a unanimous decision by three Law Lords in Wilson.

HI

In Wilson as in most successful cases the terms where technically incorrect but there on the page.

It is very difficult for the creditor to disprove the evidence of a calculator.

It seems that if there are no prescribed terms at all the creditor can just say well they where attached at the time of signing so that would have made it a document.

Cases a cropping up all over the place of creditors presenting a scanned signature place and pleading that the prescribed terms where either on the other side or would have been attached, and mostly getting away with it.

On more than one occasion I have heard the judge has remarked that the creditor would not have failed to have the terms on the agreement as they where such a well organised financial institution.

My question is if they where so well organised why didn’t they ensure that the prescribed terms where on the same side as the signature so the issue wouldn’t arise.

Just a thought

Peter

[MAGDA]

Hi Magda

Overdrafts are covered by the consumer credit act however, unfortunately the bank does not have to have an agreement for your overdraft .

Yes the bank can terminate your account at any time the same as any other running credit account, they do still however have to issue a default notice under section 87 if they want to pursue the debt through the courts.

Peter

 

Thanks Peter for clarifying that,

 

many thanks, Magda:)

[MAGDA]

Magda and BRW,

 

You may want to look at CCMAN Vs Goldfish because CCMAN has just been taken to Court by Cabot on a Goldfish Agreement with no prescribed terms at all, and the judge has warned him he hasn't a leg to stand on, and this appears to be due to the Carey Judgment in December, although from reading that (173 and particularly 178 about the 'four corners') I'm just not getting why that is. If you have been sent an application form with no prescribed terms how is that a CCA-compliant enforceable agreement?

 

Also, I don't see why one judge would be able to undermine a unanimous decision by three Law Lords in Wilson.

 

thanks for the info DD

 

regards, Magda

 

I guess the short answer to that is, they trained alongside the bankers and don't have a clue.

 

It is clear that Carey dealt with s78 requests and s78 only. HHJ Waksman refused to comment further. CCMAN's defence is that they did not comply with s78, then that is the only reason Carey should be relevant.

 

It's unbelievable sometimes just how prejudiced these judges can be - they should be making decisons according to the Legislation in place, but they seem to pick an choose as they please.

 

Why did DDMAN use non-complicance with section 78 as his defence, if he had an uneforceable agreement to hit them with?

 

Magda

[fleeced_by_rbos]

If such a numpty judge finds in favour of the bank/DCA and it is clearly contrary to the law of the land, what remedy does the consumer have? Appeal? Can the judge prevent an appeal?

[cab1ne]

If such a numpty judge finds in favour of the bank/DCA and it is clearly contrary to the law of the land, what remedy does the consumer have? Appeal? Can the judge prevent an appeal?

 

"NO"

 

cab

[vint1954]

thanks for the info DD

 

regards, Magda

 

 

 

It's unbelievable sometimes just how prejudiced these judges can be - they should be making decisons according to the Legislation in place, but they seem to pick an choose as they please.

 

Why did DDMAN use non-complicance with section 78 as his defence, if he had an uneforceable agreement to hit them with?

 

Magda

Well, non complience with s78 is a defence in itself, rather that them just supplying a reconstruction under s78, which is now deemed sufficient.

[MAGDA]

Well, non complience with s78 is a defence in itself, rather that them just supplying a reconstruction under s78, which is now deemed sufficient.

 

Yes, that's the trouble, seems a lot of judges do think that's sufficient now.

 

Magda

[cab1ne]

so,

a proper default notice lets the creditor do all the nasty things within s87/88.

 

and,

a dodgy default notice prevents the creditor doing all the nasty things within s87/88.

 

would i be right in assuming that upon termination of the agreement that is it.

 

reading through woodchester/swayne, termination hardly gets mentioned and i am under the impression that unlawful rescission was decided on the dodgy default and not the termination. (or am i missing something).

 

cab

[Peterbard]

so,

a proper default notice lets the creditor do all the nasty things within s87/88.

 

and,

a dodgy default notice prevents the creditor doing all the nasty things within s87/88.

 

would i be right in assuming that upon termination of the agreement that is it.

 

reading through woodchester/swayne, termination hardly gets mentioned and i am under the impression that unlawful rescission was decided on the dodgy default and not the termination. (or am i missing something).

 

cab

 

Hi

 

No dont think your missing anything

 

Peter

[fleeced_by_rbos]

"NO"

 

cab

 

No you can't appeal, or no the judge can't stop you, or no don't even think about it FBR?

[MAGDA]

No you can't appeal, or no the judge can't stop you, or no don't even think about it FBR?

 

No, the judge can't stop you.

[fleeced_by_rbos]

Ah thanks Magda. I hate the idea that some idiot judge just sides with the banks, despite their supposed neutrality, and then your stuffed with a gloating bank oinking all the way out of the court room.

[cab1ne]

No, the judge can't stop you.

 

 

cab

[MAGDA]

Ah thanks Magda. I hate the idea that some idiot judge just sides with the banks, despite their supposed neutrality, and then your stuffed with a gloating bank oinking all the way out of the court room.

 

yes, and idiot judges are in abundance in my local court.

 

 

Magda

[Desperate Daniella]

I've just done a google search on all the barristers acting in the Carey case. It's quite clear that the barristers acting for Carey and the others were hopelessly out-classed.

 

Bradley Say and Julian Gun-Cunninghame come from Gough Square Chambers, as do four of the barristers acting for the banks - good set.

 

Two of the barristers for the bank come from 3vb and one of them, Sonia Tolaney is described as "the form horse at the banking and commercial ligitation Bar". (So she is a smart highflyer.)

 

Bankim Thanki QC and Andrew Mitchell come from a set (Fountain Court) which has no less than 22 QCs amongst its members.

 

From their profiles on the 9 St John Street Chambers, neither Zoe Thompson nor Laura D'Cruz specialise in consumer credit law. David Uff appears to be more involved with insolvency than anything else. The only James Martin I can find is in a crime set, so I assume it's not him.

 

This is sheer stupidity. The CMCs have this big case and instead of getting hard hitters they have at least three barristers who do not specialise in Consumer law.

 

And we could all be affected by this judgment.

 

DD

[captain2]

Yes very worrying this Manchester situation - Ive now reconciled myself to adopting a different approach rather than relying on an erratic and rapidly moving set of goal posts the CCA has come to be -my approach is now centering on going into a debt management plan as a self employed businessman - the plan is self certified and the creditors have no realistic option but to go with it (other than issuing statutory demands and bankruptcy which the OFT and Court would frown on ) - once the plan has been established then it will serve as a collection point for all the other unsecured debt I have as it unfolds upon vehicle HP shortfalls etc and the co existence of so many creditors in the plan would be a deterrent to any one creditor breaking loose so to speak as they can all clearly see that one being preferred to another is not an option and a bankruptcy would not release sufficient to pay them. Then Im hoping once sickened off by the small drip each month may well be inclined to take a full and final settlement paid off over a shorter finite period - coupled with a rearguard action by my claim man. company to approach the more questionable agreements with a zero to 30 per cent deal paid off within the debt management plan.

[means2anend]

I've just done a google search on all the barristers acting in the Carey case. It's quite clear that the barristers acting for Carey and the others were hopelessly out-classed.

 

Bradley Say and Julian Gun-Cunninghame come from Gough Square Chambers, as do four of the barristers acting for the banks - good set.

 

Two of the barristers for the bank come from 3vb and one of them, Sonia Tolaney is described as "the form horse at the banking and commercial ligitation Bar". (So she is a smart highflyer.)

 

Bankim Thanki QC and Andrew Mitchell come from a set (Fountain Court) which has no less than 22 QCs amongst its members.

 

From their profiles on the 9 St John Street Chambers, neither Zoe Thompson nor Laura D'Cruz specialise in consumer credit law. David Uff appears to be more involved with insolvency than anything else. The only James Martin I can find is in a crime set, so I assume it's not him.

 

This is sheer stupidity. The CMCs have this big case and instead of getting hard hitters they have at least three barristers who do not specialise in Consumer law.

 

And we could all be affected by this judgment.

 

DD

 

 

 

hmmmm....Raymond Cox QC has been used to being ''Gamekeeper'' for the banks...it seems due to those past successes he has ''Locked himself out'' as ''Poacher''

 

m2ae:rolleyes:

[diddydicky]

Hi

 

True nevertheless

 

Not saying he can demand his money back but if it is a credit card he can stop giving you any more ,which is fair enough if you think about it.

 

Peter

 

well yes i don't dispute that- almost every credit card contains a clause which allows the lender to restrict the use of the card or reduce the limit

 

 

this has nothing to do with terminating the agreement

 

and is a totally different kettle of fish from saying that no termination is ever unlawful

[MAGDA]

HI

In Wilson as in most successful cases the terms where technically incorrect but there on the page.

It is very difficult for the creditor to disprove the evidence of a calculator.

It seems that if there are no prescribed terms at all the creditor can just say well they where attached at the time of signing so that would have made it a document.

Cases a cropping up all over the place of creditors presenting a scanned signature place and pleading that the prescribed terms where either on the other side or would have been attached, and mostly getting away with it.

On more than one occasion I have heard the judge has remarked that the creditor would not have failed to have the terms on the agreement as they where such a well organised financial institution.

My question is if they where so well organised why didn’t they ensure that the prescribed terms where on the same side as the signature so the issue wouldn’t arise.

Just a thought

Peter

 

Hi Peter, unfortunately you are right, it is happening more and more as we can see from many of the cases on this forum.

 

In my case, with the Cabot claim, it is just an application form and when it was signed, the prescribed terms were nowhere in sight. As you mention though, they will argue it was all part of the same document.

 

It's still the case, from my experience, that the judges are only too ready to believe everything the creditor says, and most of the time they are lying through their teeth.

 

Still, going to fight this one to the end and see what happens.

 

regards, Magda

[Peterbard]

well yes i don't dispute that- almost every credit card contains a clause which allows the lender to restrict the use of the card or reduce the limit

 

 

this has nothing to do with terminating the agreement

 

and is a totally different kettle of fish from saying that no termination is ever unlawful

 

Hi

 

Sorry to appear thick but isnt this a contradiction, please bear with me and explain , but to me if a creditor can terminate an agreement at any time, then how can he unlawfully terminate it. If it is on the back of a dodgy Default notice it is the notice that is in breach, not the termination,that is ok because we just said it is. Unless he is robbing a bank when he does it i suppose that would make it unlawful.

 

Peter