Cap1 & CCA return

[m55dlc]

m55dlc, try post 3443

 

Regards

 

Lantana

 

Thanks Lantana

 

I'm just trying to get us to flesh out the rebuttal of what Term posted

[Guest The Terminator]

Having studied this Act for the last six months I can still not find the reason why S85 was drafted into the act.My own thoughts are that it was drafted as a safety net for the consumer or that it acts as a double whammy for example if the CCP is in breach of S61 he then commits an offence under S85 when the card comes up for renewal.

[Guest The Terminator]

First Personal Bank Plc v Sim [1998] EWCA Civ 1194 (10 July 1998)

 

Now this case may give us the answers we are looking for.

[bfb]

s66 relates to liability for the use of a card but says nothing about enforcing an agreement in terms of applying interest etc

 

S51(3) makes an exception to 51(1) for agreements in force. if a second replacement is sent under s85 breach (i.e when there is no agreement in force) the protection of 51(3) is gone and a criminal offence seems to be committed

[ladybird17]

Sorry -I don't understand the relevance of the case you posted Term.

 

Also - when we first started on the S85 bit (a gazillion years ago) it was purely in relation to the issue of cards subseqent to the first. There seems to be a general assumption on here now that they will never be able to comply with our interpetation of S85 "because they can't supply the original agreement". So how many of us have CCA'd our CCP's and asked for the original agreement? - I only sent mine today - are you saying that all of you lot debating this point have already established that your CPP can't provide the original agreement?

 

 

Furthermore - what is a "true" copy? If it's a copy of a fax, which is a copy of the original (assuming it's legible), then I would assume it to be a true copy - just because it's a copy of a copy doesn't make it untrue - comments?

 

Don't all shout at me at once

[m55dlc]

Our friend Mr S Johnson has sent back my SAR with cheque uncashed after 31 days, issuing me with a form to fill in. Ooooooh, these guys get my gumption. I think a really, really nasty letter CCing the ICO is required.

[rippedoffagain]

Sorry -I don't understand the relevance of the case you posted Term.

 

Also - when we first started on the S85 bit (a gazillion years ago) it was purely in relation to the issue of cards subseqent to the first. There seems to be a general assumption on here now that they will never be able to comply with our interpetation of S85 "because they can't supply the original agreement". So how many of us have CCA'd our CCP's and asked for the original agreement? - I only sent mine today - are you saying that all of you lot debating this point have already established that your CPP can't provide the original agreement?

 

Furthermore - what is a "true" copy? If it's a copy of a fax, which is a copy of the original (assuming it's legible), then I would assume it to be a true copy - just because it's a copy of a copy doesn't make it untrue - comments?

 

Don't all shout at me at once

 

My wife and I sent ours today, interestingly neither of us can remember signing an agreement, also my daughter got a cc from the same CCP about seven months ago, and she can't remember signing anything either.

[rippedoffagain]

Our friend Mr S Johnson has sent back my SAR with cheque uncashed after 31 days, issuing me with a form to fill in. Ooooooh, these guys get my gumption. I think a really, really nasty letter CCing the ICO is required.

 

Losing track a bit. Who does Mr Johnson work for?

[m55dlc]

MBNA, who else? The usual SUSPECT when it comes to 'possibly underhand and not quite as white behaviour from a lender'.

[ladybird17]

m55 - is it an "identify yourself" form?

Presumably sent to your address, the same address to which they send your statements, and the one you use when writing to them?

[un1boy]

The whole ever changing T&C arguement is one they DON'T want to start in court. It would be ripped to shreds.

 

I hereby agree to a credit card, where they can change the T&C's. Next year the T&C's state I now owe them £30 a year as an account maintenance fee. A year after that the T&C's state the interest goes up from 10.9% APR to 20.9% APR. I'm sorry, that's not what I signed up for and that's not what my agreement states. But I can't clear the balance so I can't cancel it. Hmmmm, unfair contract term I do believe!

 

Good point!

[m55dlc]

m55 - is it an "identify yourself" form?

Presumably sent to your address, the same address to which they send your statements, and the one you use when writing to them?

 

And the same one in the same letter where he as given me some information on my account, just not all of it! Me thinks a 'erm, if you are not satisfied with my identity (and therefore need the attached form completed) you are in breach of the Data Protection Act 1998 by giving me the information you already have. As you have provided this information to me, I am sure you are happy with my identity, therefore my original request still stands. By close of play on the ##th March 2007 I expect to have in my posession: otherwise I will be contacting the ICO regarding your breach'.

 

Can someone guide me to a good quote regarding delaying tactics etc?

[ladybird17]

I am going out for the evening now, for wine & food, goodee!! So could someone please look at my post #3545 and comment appropriately - or inappropriately if you like!

[Guest The Terminator]

Sorry -I don't understand the relevance of the case you posted Term.

 

 

The relevance to the case is that the T&C were changed without the consumer being informed.The debt was passed around like confitti so not even the court knew who the creditor was.

 

1) There were various communications, but those proved insufficient to produce an agreement and in the result a Court summons was issued on 17th October 1995. The plaintiff is the First Personal Bank PLC, trading as Harrods Card Services. In her defence, dated 3rd November 1995, Miss Sim said, in effect, "I have never heard of the named plaintiffs, I have always had an account with Harrods

 

2)

The next step seems to have been an application by the plaintiffs on 21st June 1996, asking for the defence and the counterclaim to be struck out and for judgment to be entered on a summary basis. That application was supported by an affidavit from Karen Downs, who says that she was a litigation clerk employed by the plaintiff company. What she says in that affidavit is to the effect that the credit card agreement was assigned by Harrods Ltd to the First Personal Bank PLC in 1991, and that notice of that assignment was sent to the defendant on 26th June:

 

 

 

"... with revised terms and conditions, ..."

 

 

3)

The present application therefore appears to be an application for leave to appeal from the decision of Judge Reynolds not to extend the time within which Miss Sim may appeal from the judgment of District Judge Madge, given as long ago as it was. The matter does not stop there because this application came before this court a month or so ago, and it appeared then that there was a question as to whether the plaintiffs had not themselves assigned the account to some other person. The situation is far from clear.

 

 

 

We have letters from Howard Cohen & Co, solicitors acting for CL Finance Ltd. They say that on the 9th April of this year the account which forms the subject of this action was assigned by the plaintiffs, who apparently now have another name, to their clients. They say that an application was made to the West London County Court to substitute their clients for the plaintiffs in this action. Miss Sim says that she has telephoned the County Court and they have no knowledge of any such application. The solicitors ask for this matter to be adjourned so that they can attend to reassignment of the account.

 

 

 

We also have a letter from what is described as "EA Lee & Co Solicitors" giving the same address as the plaintiff. Miss Sim suggests that they are in effect no more than the legal department of the plaintiffs, but we have no knowledge on that one way or another. This letter says that it was not the account but the judgment debt that was assigned by the plaintiffs, who are now renamed. They express surprise that the West London County Court has not substituted CL Finance Ltd as the plaintiffs in this action, nor put Howard Cohen & Co as solicitors on the record. They too require an adjournment of this matter so that they can attend to those questions with the West London County Court. The situation may be quite simply that the judgment debt has been assigned and that that does not affect the proper title of his action.

 

Now the three points I've highlighted go back to what has been said all along.No executed agreement = No enforceible debt.

[The Lantana]

Well I got my CCA request back from MBUSA today (within 12 days)together with my uncashed £1.00.

 

The document provided is evidently a fax of a microfiche print. It is illegible apart from my signature and my name and address, which are printed.

 

What they have provided clearly does not fulfill their statutory obligation, but it does leave me wondering...

 

1) Is this illegible simply because it's a fax of a microfiche?

 

2) Does this mean they have the full monty original in a good quality archived form they can produce in court?

 

3) Are they storing my data off-shore?

 

For these reasons I will write back with my £1.00 insisting on proper fulfillment of my statutory request.

 

Regards

 

Lantana

[The Lantana]

My own take on the purpose behind s85 was for borrowers to be reminded of the terms and conditions they signed up for at the outset of the agreement. This should act as a backstop against the lenders ramping up rates and charges etc.

 

I suspect the MIB's think they're complying with the spirit of the law with their mailers, but evidently not the letter.

 

The credit card industry (like all banking) relies on customer inertia and a passive customer base for maximum profits. As BA pointed out in a previous post, we are no longer dairy cows. I am genuinely excited at the prospect of s85 being exposed in court.

 

Hooray, my 50th post!

 

Regards

 

Lantana

[ncf355]

As promised, BCards idea of an executed agreement - (minus sensitive info of course!)

 

Anyone care to play spot the mistake?

 

 

 

 

[Guest Battleaxe]

And the same one in the same letter where he as given me some information on my account, just not all of it! Me thinks a 'erm, if you are not satisfied with my identity (and therefore need the attached form completed) you are in breach of the Data Protection Act 1998 by giving me the information you already have. As you have provided this information to me, I am sure you are happy with my identity, therefore my original request still stands. By close of play on the ##th March 2007 I expect to have in my posession: otherwise I will be contacting the ICO regarding your breach'.

 

Can someone guide me to a good quote regarding delaying tactics etc?

 

I sent back a very terse letter telling the clock is still ticking from the date they received my original request and they until 4pm on the dealine date to supply the data and this is viewed as a stalling tactic, then immediately lodged a complaint with the ICO. They breached the deadline and this was how I got them for non-compliance on both accounts. ICO found in my favour. i got back the filing fee and £200.00 compensation. I filed for £500.00. but decided to be maganimous because the ICO had already slapped their wrists. Naughty MBNA.

[Guest The Terminator]

As promised, BCards idea of an executed agreement - (minus sensitive info of course!)

 

Anyone care to play spot the mistake?

 

 

 

 

 

Is that the best they can do doesn't exactly comply with S61

[humbleman]

Hi

Dont want to hijack this thread but just need a pointer.

 

Last week sent a CCA request to MG, this morning received a letter stating

 

I confirm receipt of £1.........., as requested please find enclosed a certified copy of your application form and copies of T&C that we would have provided you with at the inception of your account.

 

Then goes onto.. if you are not happy blah blah and ICO contact etc.

 

But there was nothing enclosed with the letter and see how they have worded the bit about the T&C.

 

Any comments how one would respond to this.

 

After the post above I sent them a letter stating there was no agreement with the letter, today received a sorry letter and

 

Please find enclosed a copy of your signed credit agreement and a copy of T&C issued at the time your account was opened. The template supplied to you contains the required information as it was sent out to you. This information is all on file and can be used to evidence that we have acted fairly and correctly and in accordance with the terms of the Act.

 

First of all I never told them that they have acted unfairly and note that in their first letter they refer to a certified copy and in the next letter they say copy of your signed agreement.

 

Now this is the inetersting bit, I have since located a copy of the T&C, they sent me at the commencement of my contract and those T&C are different to the once they have supplied with this letter. Not only that, but the alleged agreemnet is headed

 

CONFIRMATION FORM

Credit Agreement Regulated by the CCA 1974

Name

address

protecting your card

additional CArdholder

By signing this agreement, you confirm.......true info etc

Your right to cancel

my signature and date

 

What do you think.

 

 

[m55dlc]

I sent back a very terse letter telling the clock is still ticking from the date they received my original request and they until 4pm on the dealine date to supply the data and this is viewed as a stalling tactic, then immediately lodged a complaint with the ICO. They breached the deadline and this was how I got them for non-compliance on both accounts. ICO found in my favour. i got back the filing fee and £200.00 compensation. I filed for £500.00. but decided to be maganimous because the ICO had already slapped their wrists. Naughty MBNA.

 

Any chance you could email me the body of the letter you sent to MBNA, and also what you did with regards to the ICO?

 

Many thanks. Remember, 1 before the 3 and virgin.net after the at:-)

[tamadus]

Just received my replacement card with it came a copy of the up to date terms and conditions of the agreement. Thats all. Under sec 85 it clearly states a copy of the executed agreement, however, it does not say a true copy of the original agreement as in a sec 77 78 request.

 

Sec 85 seems ambiguous and the interpretation of what parliament meant is open to challenge on both sides, i would be more confident if sec 85 stated a true copy of the original agreement as in 77 78. Confused.

 

Paul

 

It may not say 'true' but it does say the EXECUTED agreement. There can only be one copy of an executed agreement and that is a true copy. As with sec 77/78 even the terms and conditions must be the same (although later ammendments could also be sent)

 

Any changes (other than in T&C which can be ammended as long as the original T&C are supplied) to the original executed agreement must make it a new agreement.

[InKogneeToh]

Whenever I have read S66 it always seems to me to say that if the card is not received by the debtor/authorised user but intercepted and used by an unauthorised person then the debtor is not liable even though the credit-token agreement is strictly in the debtors name and would ordinarily be liable. I am not saying it's right or anything, it's just the way it reads to me. Am I naive in thinking a creditor would be clutching at straws if they had to use this as a defence?

 

Hi

 

I agree with this interpretation of s66. I think it is to limit the debtor's liability for unauthorised use of the card by a third party unless the debtor has accepted it first.

 

Regards, Pam

[joneshousehold]

Paul, the problem with the mailers is that whilst the CCP may say it is a true copy, that is it contains all the same conditions, requirements etc, if they haven't got the original agreement they would never be able to demonstrate it was a true copy at all. That's part of the reason why we go back and ask for a copy of the original signed agreement so that we can check it is a true copy.

 

Their whole game plan fails at that point. A court would require it and so it is not unreasonable for us to ask. Also any mention of later Regs to avoid providing a copy of the original is just a red herring

[Guest Battleaxe]

M55

 

Complete letter on the way as I type this,

 

I then added this to ICO complaint file already opened.

 

Funny thing about this, I got the compensation cheque from MBNA notified the court on the 9 February. A directions hearing has been listed for the 9th of this month over the non compliance because MBNA said they were going to defend. They didn't want to go to court because they knew I had the adjudication from ICO against them. MBNA keep checking with the court to see if I have notified them that it has been settled, the coourt have not yet struck it off the calendar and MBNA are sweating. Got another letter, rang the court and they admitted they are up to three weeks behind with the paper work regarding the banks and their actions and this causing a heavy backlog regarding administration.