Cap1 & CCA return

[MAGDA]

Magda

 

From what you say, I think it's extremely unlikey they will have a water-tight paperwork trail capable of enforcing payment on the debt against teh current card or account no. As well as following PT's advice (as always!) I think it's worth seeing how far away from 6 years you are from your last payment against the ORIGINAL card and account number - since this might soon become SB - and they may well have an enforceable agreement for this - more likely than for the new account no and card no.

 

BDe

 

Thanks BD, the SB issue is another angle to look at as well as all the others! Thanks to PT also for his comments.

 

regards, Magda

[pt2537]

hmmm may fall into problems there to be honest,

 

SB is unlikely to assist as the terms of an agreement will almost certainly contain a right to appropriate payments

 

it will be there in the small print, and i know its in the MBNA docs i have in the office, worth a look but i wouldnt hang my hat on it at trial

[MAGDA]

Thanks PT, thought it might be a bit of a long shot:)

 

regards,

 

Magda

[Chalkitup]

trouble is you cant rely upon chalkitups recollections so hard facts will be needed if the court is to consider this as a triable issue

 

Hello Magda / PT,

 

Ummmm .... slightly more than just recollections!!!

 

For instance ..... I have just grabbed the first upgrade I can find from my rather large collection ...... and surprise it is 1996 .... MBNA .... I had a visa and Mastercard and MBNA offered Platinum Plus Visa ..... the MBNA letter states To enable us to initiate this change please complete the following sections of the enclosed application ....... Personal details / additional cardholder / PPI !!!! / SIGNATURE AND DATE OF SIGNATURE ... all other details will be transferred from your original application unless otherwise stated. When the new account number has been established we will contact you regarding the transfer of any balances from the old account to the new account.

 

I have copy of MBNA Platinum Plus application here .... NO prescribed terms .... infact no terms at all!!

 

My statements from then confirm the visa and Mastercard accounts were closed and a Platinum Plus opened up ........... I even sent a covering letter to them confirming the closure of the visa and Mastercard accounts on being issued a Platinum Plus card.

 

Hope this helps one way or another Magda.

 

Onwards and Upwards

 

Chalkitup.

[MAGDA]

Thanks CIU, it's good of you to post all of this. I think most of the old MBNA agreements tend to be unenforceable, so not surprised that your platinum 'agreement' didn't have any of the prescribed terms and despite the fact that Cabot try to convince everyone that the t&cs were part of the agreement, I don't recall this being the case. As you mentioned before, a lot of the old t&cs didn't have all of the correct prescribed terms anyway.

 

I will have to get all of the documents out again and have another look at them, especially the statements and see if I can spot anything to confirm when the new account was opened.

 

Your posts have really helped a lot CIU, so many thanks for that. Just wish I was as efficient as you and had filed all the paperwork away - I usually have to spend a week hunting round the house when I want to find anything.

 

Magda

[Wilma Shoozfit]

credit tokens expire, therefore it would be beneficial imho to find out, if this was a replacement card, as defined within s85 or was this a new agreement with a new credit token and the balance was transfered.

 

May be able to use part 18 to seek clarification

 

Abridged version of my saga:

 

B/C have confirmed to me (in writing) that in 2007 they transferred the balance of my original account (opened in 2003) to a "new account number" although they deny this is a new account(huh?). They used the out of date info from my 2003 application to open this. All this is logged in their Subject Data reports supplied under my DSAR. They claim that it was because I reported my card stolen - I have asked them why they didn't issue "new account numbers" when previously 2 cards where reported lost/stolen in transit - they've ignored me.

 

Although B/C stopped sending statements in February 2009 (last payment made to them December 08), Mercers issued a DN dated 24/05/09 giving me until 10/06/09 to pay 205.00 arrears of min payments as per the monthly statements. In B/C's WS at a hearing for non-compliance of my DSAR later in the year it's stated that B/C closed the account in May 09, 10 days before the date given to correct the default.

 

As a further aside - the DJ at the DSAR hearing pointed out that the copy application from 2003 which B/C claimed to be my agreement was illegible, the Barrister for B/C implied that the original had been destroyed so they had included a template to compare- I pointed out that the sample template of the mailer included in their bundle was not the same as the application form I completed.

 

Sept last year I had First Credit Management chasing me for the full balance and this year it's Moorcroft/Midas Legal chasing me - I've told them all the account is in dispute - get lost -but I've given up writing to B/C as they adopt the "selective reading" tactic and always sidestep or ignore my questions regarding their administration errors don't get me started on the PPI!!!!.

 

I'm not sure what my next action should be. To tell the truth I wouldn't know where to start if I took B/C to court -

option 1. Unpaid PPI (admitted as miss-sold by B/C but only part refunded), full restitution of interest - so far 8% on partial refund of PPI and charges- or do I ignor this and go for

Option 2. No credit agreement, unlawful rescission of contract (but if there' no lawful agreement how can there be an unlawful rescission?). Or last but not least

Option 3. The DPA route -their right to process data without an agreement, their refusal to acknowledge a request to cease processing data which they've admitted is inaccurate, damage to my credit reputation etc

 

Or shall I sit tight and wait for B/C to sell the debt to some poor unsuspecting DCA and the summons landing on the doormat.

 

I don't think I can go for all the first 3 options in one claim but any of these 3 would make a reasonable defence if B/C or a DCA sued me.

 

By the way I have sent an official complaint to the ICO which was logged in January this year just in case option 3 is the way to go.

 

Any advice on the way forward?

 

 

Wils

[MAGDA]

I really wouldn't consider taking BC to court, especially given the current climate, it's better to sit tight IMO and wait for them to issue a claim, if they ever do. I guess you could look to put a claim in with Barclays for the remainder of the PPI, and they might settle that without the need to go to court - there are a lot of PPI threads, so might be worth looking at some of those as some people on the forum have a lot of experience claiming back PPI.

 

As far as your data goes, as far as I'm aware (could very well be wrong) Carey v HSBC confirmed that it is still acceptable for a creditor to report on your credit history (adverse or otherwise) even if they do not have an enforceable agreement, because if you did actually default on the account it's considered fair to report this. If the data is inaccurate, then that's obviously a different matter and could be report to the ICO, which you say you've done anyway, but again I wouldn't like to say how successful you would actually be in court with this.

 

Personally, I would wait it out and see what happens.

 

Hope this helps a bit, I'm sure you will get a lot of other opinons on this as well.

 

Magda

[means2anend]

Yes!...You can be reported to the CRA's whilst in default..that fact was cleared up in detail in MgGuffick v RBS last Sept/Oct '09.

 

As to the accuracy of that or any existing information on file is another issue altogether.

 

Reporting to CRA's was/is not considered to be an enforcement (whose nature and extent) was discussed in the above case.If it were decided that reporting had in effect amounted to enforcement then that would not have been allowed.

 

MgGuffick claimed that in reality reporting WAS or had the same effect as enforcement 'cos it was simply a means of putting pressure on achieving the same goal( repayment of monies owed).

 

But this was disagreed upon by Justice Flaux and said that the underlying purpose was for Lenders to be more informed about the risks involved when lending and that it aided responsible lending

Edited April 10, 2010 by means2anend

[pt2537]

ONLY WHERE THERE IS A BREACH OF S78

 

there is no case law that deals with reporting data where there is an irredeemable breach of the CCA and lets not forget what Lord Hoffman said in dimond and lovell;)

[means2anend]

ONLY WHERE THERE IS A BREACH OF S78

 

there is no case law that deals with reporting data where there is an irredeemable breach of the CCA and lets not forget what Lord Hoffman said in dimond and lovell;)

 

 

The above case dealt with S77 and it was not irredeemably unenforceable

 

But what you say above should apply equally s77/78 where irredeemably unenforceable

 

However you are quite right in that an Dimond v Lovell also discussed the issues of common law contract that underpinned an unenforceable agreement in relation to rights and liabilities.

 

However Dimond v Lovell presented a situation in which there did not exist a contract at common law either and hence there should be no reporting to CRA's. A Prescribed Term was missing.No prescribed term =improper execution=no contractI think if my memory serves me it was the amount of credit.£250 I think that the lender was trying to incorporate this into the agreement after the agreement had been signed.

 

There were wider issues involved in this case.

 

Dimond v Lovell had Human rights issues involved that were alleged to be incompatible with the Consumer Credit Act 1974 in relation to possession of security.

 

Or was Dimond v Lovell dealing with a replacement vehicle? under the Consumer Credit Agreement

Edited April 10, 2010 by means2anend

[mystery1]

Dimond v. Lovell [2000] UKHL 27; [2000] 2 All ER 897; [2000] 2 WLR 1121 (11th May, 2000)

 

This one ?

 

M1

[means2anend]

yes...that one

 

Thanks M1

 

The human rights one was a different case... I got meself a..e over t..*!%

[MAGDA]

Hi could someone take a look at Martel's thread please - she is defending a claim for an overdraft and really needs some help.

http://www.consumeractiongroup.co.uk/forum/legal-issues/235954-big-overdraft-must-respond-8.html#post2875182

 

Many thanks, Magda

[means2anend]

A QUESTION

 

Does anyone agree with me that according to Electronic Communications Order 2004/3236 inserted as S:176A CCA 1974.....

......Allows creditors to be exempt from putting a signature and gives no choice for the debtor BUT to place a tick or some other form or means of consent instead of a signature in relation to On-Line Agreements.

 

Or is the agreement irredeemably unenforceable( i.e no contract) because of the absence of both Creditor AND Debtor signatures

 

This Amendment to Agreements Regulations 1983/1553 after subsection 4 there is a new subsection 5 (See Below) of Section 6 did not affect the requirement of ordinary sigs in that Regulation so DOES that mean that these Regs (and amended Agreements Regs 2004/1482) still apply to Online Electronically concluded Agreements in connection with how signatures are to be made...to the original executed agreement in that signatures are still required on Online Electronic Agreements from both Creditor and Debtor.

 

Subsection 5 of Section 6 Consumer Credit Agreements Regulations 1983/1553

 

''(5) Where an agreement is intended to be concluded by the use of an electronic communication nothing in this Regulation shall prohibit the inclusion in the signature box of information about the process or means of providing, communicating or verifying, the signature to be made by the debtor or hirer''

 

It would not make sense to make a note of how to put across your signature and then put your signature down in the ordinary way if you could put your signature down anyway.

 

The above section would ONLY make sense if a signature was not able to be put down in the usual form as we do now on paper agreements.And so as a result it is my understanding that signatures in the normal sense are not legally required by both Debtor AND/OR Creditor for Online Agreements.

 

Any comments please correct me!!

Edited April 14, 2010 by means2anend
''to the original executed agreement'' ''OR''

[means2anend]

However in relation to Post 16980 it could equally be argued that there is no contract concluded because the section says that the signature box should simply contain a statement that advises how,where and when a signature is to be given ..in other words it does not say or authorise the omission of a signature in the executed agreement just that an explanation ought be given as to how,when and where it should be given

For example my friend has allegedly concluded electronically an agreement but the sig box simply says ...

 

'' This is a Credit Agreement regulated by the Consumer Credit Act 1974.Sign it only if you want to be legally bound by its terms.''

 

Signature of customer

 

please tick this box

(this is instead of providing your signature)

date of signature

 

 

I would say that if a hard copy of this electronically concluded agreement AS THE ORIGINAL is not sent subsequently for proper signature then it has not been properly executed.

 

It could therefore be argued that any electronically concluded agreement online is in effect ''SUBJECT TO CONTRACT'' and therefore at that point no contract has come into existence and therefore the ''cooling off periods and all other things associated with the contract etc... have not started.

 

I believe then that a simple tick instead of any signature is insufficient to turn this into an executed agreement.

I shall be using this reasoning in writing on his behalf to state that there is no agreement with EGG!!!

 

I will let you know of the outcome...HELLO GUEST!!!

 

m2ae

Edited April 14, 2010 by means2anend

[cashface]

I am just starting out on this site (dont fully have the hang of it yet so appologies if I am posting in the wrong area couldnt find option for new thread?) I am attempting to find out if my credit agreements may be unenforceable and possibly avoidable in some way. I have a credit card agreements with the following card companies, HSBC, Egg, Marks and Spencer Money, Citi Cards, Barclaycard (formerly this was a Liverpool Victoria account) and I also have an Egg loan . All of these agreements were taken out before April 2007. Whilst these ongoing debts are a major strain (which I am only just managing to cope with by working several jobs), the information on my credit reports show that all of the credit I have or have had previously has been managed well with no missed payments , defaults or CCJs. I have drafted letters ready to send to the credit card companies to request copies of my credit agreements but I am concerned about my options should any of the agreements turn out to be unenforceable. I currently work in the insurance industry and therefore FSA regulated and for my career to continue in this area it is imperative that my credit file remain in good order, my credit file is checked regularly by my employer so if any blips show up in the future I will be out!! If my understanding is correct if it turns out that an agreement is unenforceable, this would mean the lender couldn’t enforce the debt on me in court but the debt would still exist??? So if I refused to pay them they would still register all the relevant defaults/missed payments with the credit reference agencies and my credit file would be seriously impaired. Because of my job I would not want to stop paying anything if it would risk my credit file and career ( I have been opting to pay them rather than eat!) so could anyone advise how I would approach this if my agreement as I suspect are found to be unenforceable?? If I have to keep on paying to save my credit report I guess theres nothing I could do? Would I maybe be able to get a solicitor involved to help get the debts written off and removed from my credit file or is this likely to be too expensive to consider?? Any help would be very much appreciated.

[Gallahad]

Cashface once you discover your credit agreements are unenforcable you put the account in dispute. The major problem you face is although the best route is to cease paying until resolved, it is then inevitable that your credit file will be trashed for 6 years, I would not advise appointing a solicitor as all the advice you need can be obtained on this site for free.

[means2anend]

Cashface-Get your agreements ANYWAY...who knows they may actually have problems with Prescribed Terms and if so then it may be possible to write the improperly executed agreement off= no contract= no rights and liabilities and consequently no adverse information that may affect your credit file.

 

I would agree with Gallahad in that you will get all the advice here anyway.Once you get copies of your agreements remove the personal indentifiable data post it up using photobucket and someone will tell you whether it is or is not properly executed.

 

If they are merely unenforceable then you need to decide what route is best for you to take.

 

Here is the link

Image hosting, free photo sharing & video sharing at Photobucket

[means2anend]

erased /duplication of post above

Edited April 14, 2010 by means2anend
duplication.

[lexis200]

Hi Cashface

 

I hope this site helps you work things out. I would suggest spending a few days reading round and gleaning info if you do want to do something. If you do, it can be very useful to have a folder on the PC for any quotes, letters, information etc that you may be able to use in the future.

 

With regards to getting agreements, m2ae is right, getting the letters out for agreements shouldn't cause you any problems. The only thing is that even if they were completely and utterly unenforceable (or non-existent), the likelihood is that if you tried to do anything about it your file would be slaughtered.

 

As a personal example, we have a fair few cards and most have absolute rubbish as far as agreements go, with some not even having one at all. This has not stopped our rating being trashed. Basically it seems that as soon as they realise they aren't going to get money from you, then they throw their toys out of the pram and make you pay in other ways - namely stress and no credit rating.

 

Of course you may find you argue with them and they simply roll over and give up - this has on the odd occasion happened if you look round the site - but I would say sadly the odds are vastly stacked against this happening.

 

Once they've trashed your rating you can try and get inaccurate details removed, but as you will see if you look around, this is a majorly uphill battle and of course whilst you're fighting it the big 'D' will be showing on your file - and there is no guarantee (regardless of whether they are legally allowed to blight your file or not) that you will get the CRA's to remove damming info:(

 

Is there no possibility you could tell your boss that you have in the past had some issues but that they are being sorted out, however it does mean your file will go downhill? Sorry if that's a daft question, I have no idea about whether the good rating is a legally required thing or simply what your employer requires.

 

Alternatively is there any chance of sorting out payment plans with your creditors? I have had very good results with this in the past, and although some did decide to slap a default on instantly, others just marked it 'arrangement to pay'. I realise this is not exactly a glowing recommendation on a file, but at least it's not a default. Maybe if you wrote to them and explained the situation they would accept lower payments for a few months and agree not to mar your file at all (including even with atp), as this would mean you'd lose your job and in turn be unable to pay them anything at all? It's banking on you being able to get your letter to a person with a modicum of decency, which is a feat in itself when you're talking about creditors, but I suppose there is a possibility it may work...?

 

 

Looking at the cards you have, I would guess that the Citi and Egg ones will be rubbish. We have both, both are crap and yet both are still being argued despite them being told this. Both have also filed defaults. Citi appear to have not managed ever to issue a compliant and enforceable agreement, but actually getting a copy out of them is a bloody Herculean task (which we've still not managed!) Egg had issues with the prescribed term 'Credit Limit' in their earlier agreements which is currently the subject of much discussion and soon to be a major court case, and it appears at the moment that all earlier agreements may be unenforceable (although until the case is heard it should not be banked on!)

 

Whatever you do decide, the one thing I would state again and again is do not talk to them on the phone unless you are recording the call. Even if you can record calls, I would still choose writing over phone calls any day. And if you can afford it, Recorded delivery lets you track exactly when they received your letters which can be dead handy when they lie and tell you they've not received them (MBNA and Co-op are buggers for this).

[Desperate Daniella]

Hi Cashface,

 

I agree with Lexis. She's summed it all up brilliantly.

 

Unfortunately even if they have non-enforceable agreements they don't just hold their hands up and say, okay we'll write this off. (I really thought that is what they would do when I wrote asking for my agreements. That was before I joined CAG of course.) As soon as you stop paying they hit you where they can in any way possible.

 

If keeping your credit file in order is the most important thing then you just must not start defaulting on the agreements or you will get the defaults - unless as Lexis suggests you can speak to someone sympathetic who'll agree easier agreements and not mark your CRAs.

 

Whatever you do, don't be tempted by a claims management company - there are real horror stories about those too.

 

You'll get all the advice a solicitor could give you on CAG for free.

 

However, I have just one thought. If you have a good credit rating, can you not move some of the money owed to 0% interest on a balance transfer to another company. You need to check the new company is not connected with the one you are transferring from - I one tried to move a Bank of Scotland balance to 0% at Halifax and of course they said no!

 

Don't try and do them all at the same time - it will flag up on the CRAs - but maybe one at a time three months apart, starting with the one you are being charged the most interest on. If you could just reduce the interest for a few months maybe that would give you some breathing space to pay off more of the debts themselves and eat!

 

Good luck.

 

DDx

[lexis200]

 

However, I have just one thought. If you have a good credit rating, can you not move some of the money owed to 0% interest on a balance transfer to another company. You need to check the new company is not connected with the one you are transferring from - I one tried to move a Bank of Scotland balance to 0% at Halifax and of course they said no!

 

Don't try and do them all at the same time - it will flag up on the CRAs - but maybe one at a time three months apart, starting with the one you are being charged the most interest on. If you could just reduce the interest for a few months maybe that would give you some breathing space to pay off more of the debts themselves and eat!

 

Good luck.

 

DDx

 

Ooh, didn't even think of that - that could be a very good idea if it's possible for you to do. It saves your rating and it should ease your payments. Also maybe if you can find a low long term loan rate perhaps you could move the lot so that interest isn't crippling you and you have a set amount to pay each month?

[Desperate Daniella]

Another good idea to check out.

 

Your options are better than ours precisely because you have that good credit rating.

[cashface]

Thanks for all your comments and ideas you have all been really helpful.

I have decided as suggested by Means2anend to go ahead and ask for my agreements and see what comes back if anything. I presume providing I keep on paying the minimum payments they will not be able to record anything negative with the CRA’s - my only concern is whether writing to ask for copies of my agreements is likely to antagonise them in any way - I have had a few card companies increase my interest rate over the years and I am worried that if I pee them off they may put the rate up so high that I wouldn’t be able to afford the repayments which could force me into default etc so if anyone has any thoughts about the likelyhood of this please let me know.

Thanks Lexis200 for your explanation and advice - I am jumping the gun a bit as I dont know if my agreements are unenforceable yet but It would seem they have me over a barrel here! I really do have to keep my credit file in a good order if I want to stay in the industry I work in. I currently sell and advice on insurance products which is an activity regulated by the FSA and as such I have to be vetted as an “approved person” which is subject to a fit and proper test which includes various conditions including assessment of financial soundness - so anything more than a couple of missed payments on my file could be dodgy and I suspect that even an arrangement to pay creditiors would be considered bad in the eyes of the FSA when assessing my “financial soundness” . My employer is pretty cool about stuff but this is a big deal as the FSA are our effectively our licence to trade.

 

Thanks also to Desperate Daniella for the advice to avoid claims management companies and whatever happens with the outcome of my agreements I will plan my next move via advice from this site and avoid those companies at all costs. Also regarding DD’s other suggestion to move the debt to another company - I could consider this but I know that lenders are much more strict about lending than they were previously and although my debts are in good order and well managed I am still heavily over committed so I'm not sure they would accept me as I would still pose some risk because of the level of credit I have outstanding, my total debt (excluding my mortgage) on the cards and loan is about £35,000 my best option would probably be to remortgage to clear the debt but at the moment I am in negative equity so this isn’t an option just now. Think it would be worth a try though so I might apply for a card just to see if I get accepted – one credit search can’t really hurt after all.

 

Anyway cheers everyone. heres hoping I get lots of damaging info back from them. Good luck to all of you in pursuig your cases.

Cashface

[Desperate Daniella]

Good luck to you too, cashface. Come back if we can be of any more help.

 

As you say, one application for a 0% card can't hurt. Just double-check that the banks aren't in the same group.

 

In fact, I might try that before asking for the agreements because everyone shares info. If it works you can try another one in a few months time and it just makes you look informed and on the ball. Applying for the agreements could alert them that you might be about to challenge, and you really don't want to tip them off until you really have to.

 

DDxx