Cap1 & CCA return

[tifo]

halifax said the same thing to me, i.e. they will look at the account if i complain in future, but this was on an account closed in 2002!

 

yet i am still waiting to conclude the offer.

[InKogneeToh]

What if a bank tells u to close your account after u get sent an agreement with no prescribed terms? You think the FOS will fine them?

 

Hi

 

Are you referring to a bank current account? - because that wouldn't have an 'agreement' in the sense you mean anyway.

 

Regards, Pam

[un1boy]

Hi

 

Are you referring to a bank current account? - because that wouldn't have an 'agreement' in the sense you mean anyway.

 

Regards, Pam

 

hi Pam,

 

sorry, what i mean is if they hve sent u an agreement for a credit card which has no prescribed terms or terms and conditons with it and is therefore unenforcable and you challenge the bank - what if they then say they want to terminate ur facilities?

[Cornucopia]

The data MUST be able to be understood by the data subject & if it isn't then they are in breach of the DPA.

 

Write back remind them of this & tell them that if they don't comply you will report them to the ICO

 

Also provided you have asked you should be given true copies of ALL the agreements so mention that also is one of your requirements

 

If you are still paying & intend disputing the debt you should send a sec 77-79 CCA request thereby placing the debt in dispute which means that you can stop payments & the creditor cannot enforce the debt until they comply.

 

If after 42 days they have still not complied they being in criminal default must seek a courts permission to enforce the debt which can only be given if they produce a true properly executed agreement

 

JonCris, I hope you can advise with this....!

 

I have long been subscribed to this thread and some of you will know of my battle from my MBNA Nightmare! thread, but it has now taken a turn and I would like some advice from you clever lot, I hope you don't mind!

 

I have received what can only be described as a cut and shuffle from MBNA purporting to be a "true executed agreement". I didn't actually CCA MBNA but the DCA Arrow Global who are long in default and have sent me zilch, therefore they are still in default as far as I am concerned!

 

This document contains the following :

 

Mr Corn's application form. Signed by him but with a stamp across the application and declaration section by them.

 

What appears to be a credit card mailer with Mr Corn's name and address, card number and credit limit (this was the credit limit at time of sale, not inception). This looks like it has had stickers stuck over bits of info prior to being copied.

 

Cut and shuffled onto the bottom of this is "Credit Agreement regulated by the Consumer Credit Act 1974 terms and conditions". It has various apr's and whatnot on it.

 

This is followed by another full page of T&C's but at the bottom, the sticker fairy has been at work again and covered something up.

 

Lastly, there is a another page saying "Terms and Conditions of Use", however, this illustrates another completely different set of aprs to the previous page.

 

There are no signatures on any of this.

 

I believe that they have used constructive conjecture to cobble this thing together and it appears that other have EXACTLY the same document purporting to fulfil the CCA.

 

This is also the third time they have tried to "comply". The other two times they only sent the application form, so why did they not do this first....oh there are so many reasons I can't tell you!!!!

 

As expected the DCA's sols, Eversheds, are hot on the heels of this and have sent me a lovely letter this morning..........my response will depend on advice from you.......thank you very much!

[InKogneeToh]

Hi Corn

 

Are you able to post up this 'offering' or have you done already in another thread?

 

Regards, Pam

[Cornucopia]

Hi Corn

 

Are you able to post up this 'offering' or have you done already in another thread?

 

Regards, Pam

 

Hello Pam,

 

Unfortunately not, but I do have a fax if anybody wants to have a look!

 

Regards,

 

Corn:)

[zubo]

hi Pam,

 

sorry, what i mean is if they hve sent u an agreement for a credit card which has no prescribed terms or terms and conditons with it and is therefore unenforcable and you challenge the bank - what if they then say they want to terminate ur facilities?

 

uni

 

First thing is - from a simplistic view - if you say you have no agreement, then you havent one so why would the bank continue to allow you to use the facilities. One thing I am interested in is what is the form of withdrawal of the facilities? ie how did they tell you - because - whilst THEY are in default they cannot make any enforcement at all!!! seems a bit peverse not to stop you using something you havent signed for and allow you to knock up more debt, but in a way it seems an acknowledgement that there is no agreement - so how did they phrase it??

 

Z

[zubo]

Hello Pam,

 

Unfortunately not, but I do have a fax if anybody wants to have a look!

 

Regards,

 

Corn:)

 

Corn, as I understand they first sent you an application form and then this cobbled agreement?

 

I would write back and say that you believe that what you received is a reconstructed agreement which is not permitted under the original request for a true copy of the original executed agreement nor would be allowed by a county court and that they are still in default and must supply you with the true copy of your agreement.

 

Z

 

Z

[Cornucopia]

Corn, as I understand they first sent you an application form and then this cobbled agreement?

 

I would write back and say that you believe that what you received is a reconstructed agreement which is not permitted under the original request for a true copy of the original executed agreement nor would be allowed by a county court and that they are still in default and must supply you with the true copy of your agreement.

 

Z

 

Z

 

Thank you Zubo. I will remind the DCA also that they are still in default as they have sent me absolutely nothing, not even an acknowledgement.

 

It does make me very cross that they can do things like this and think they can get away with it. They really do treat us as if we are imbeciles. I really think I have a good case with them, aside from all the other issues like defaulting via email giving us one day to clear the account, writing and admitting they didn't follow the correct default procedure but selling nonetheless and the continual lies! Oh I could go on and on but I won't because I have already done that on my thread!

 

I think this is the last straw for me.........I am off to put my gladiator outfit on!!

[TideTurner]

Corn,

 

When you write back, tell them you are fully aware of the definition of Fraud - "the production of an instrument which causes another to do or say something with a view to causing a gain" and quote these from the Theft Act 1968

 

17. False accounting

(1) Where a person dishonestly, with a view to gain for himself or another or with

intent to cause loss to another,-

(a) destroys, defaces, conceals or falsifies any account or any record or

document made or required for any accounting purpose; or

(b) in furnishing information for any purpose produces or makes use of any

account, or any such record or document as aforesaid, which to his knowledge is

or may be misleading, false or deceptive in a material particular;

he shall, on conviction on indictment, be liable to imprisonment for a term not exceeding

seven years.

(2) For purposes of this section a person who makes or concurs in making in an

account or other document an entry which is or may be misleading, false or deceptive in a

material particular, or who omits or concurs in omitting a material particular from an

account or other document, is to be treated as falsifying the account or document.

18. Liability of company officers for certain offences by company

(1) Where an offence committed by a body corporate under section 15, 16 or 17 of

this Act is proved to have been committed with the consent or connivance of any director,

manager, secretary or other similar officer of the body corporate or any person who was

purporting to act in any such capacity, he as well as the body corporate shall be guilty of

that offence, and shall be liable to be proceeded against and punished accordingly.

(2) Where the affairs of a body corporate are managed by its members, this section

shall apply in relation to the acts and defaults of a member in connection with his functions

of management as if he were a director of the body corporate.

and

 

The Fraud Act 2006

http://www.opsi.gov.uk/ACTS/acts2006/ukpga_20060035_en.pdf

The great thing is you've got the evidence you need.

Tell them you will be making a complaint to the ICO and the DTI, and you will require a copy of the original agreement to be produced in Court.

Looks like they've well and truly shot themselves in the foot.

BTW - they use post-it notes to blank out information which are removed afterwards. These leave traces on the document should it be examined - but the two will not look similar anyway.

Point out to them that the copy they have sent is not a copy of any agreement you have signed and emphasise that additional information has been added and removed since you last saw the document and that you believe additional stamps have strategically been added to cover up application etc.

Hope this helps

Tide

[paulwlton]

In an earlier post i made reference to the fact sec 85 doesn't include the word "true", after reading through the Regs again all executed agreements must be a true copy.

 

 

General requirements as to form and content of copy documents

3.-(1) Subject to the following provisions of these Regulations, every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall be a true copy thereof.

[Cornucopia]

A massive thank you to you all, you wouldn't believe how comforting it is to have you lot out there! I am so grateful!

 

Tideturner, that information is invaluable, I will use it in my letter!

 

I will give you short update when I have further news or at least a link to the thread, it's a corker!

 

Thanks so much x

[TideTurner]

Paul,

 

I am currently looking at the Fraud Act and believe that where they cannot provide a copy of an agreement which conforms to the CCA they should hold up their hands and pay up. Anything outside of that they should face criminal proceedings.

 

The idea, however, is to let them know you are aware of their cock up, and the conscequences, with a view to getting them to do the right thing. If they don't do the right thing you can simply make a complaint in your local cop shop.

 

For the Serious Fraud Office to get involved, the fraud must be for more than £1m.

 

I don't think there would be a problem reaching this amount.

 

Tide

[InKogneeToh]

Hi

 

The following is copied from the OFT doc -

Frequently asked questions (FAQs)

April 2005

OFT786a

The document was written for the purpose of answering many of the questions that lenders might have about the new regulations coming into force in May 2005 and the amendments to the CCA itself.

 

The passage below refers to the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations, which to my knowledge have not been changed in any way. Therefore, it is feasible to assume that what it says has always been applicable and relates to copy documents sent under all sections of the Act:

 

1.24 Does the copy have to be identical?

 

Reg 3(1) of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations requires that, subject to certain limited exceptions, any copy of an unexecuted agreement must be a ‘true copy’. This means that it must be identical to the agreement as presented or sent to the debtor for signature.

 

Reg 3(2) permits the exclusion from the copy agreement of:

• any information relating to the debtor, or included for the creditor’s use, which is not required by the Agreements Regulations;

• the name and address of the debtor; and

• any signature box.

 

Regards, Pam

[progenic7]

on the subject of fraud, i know someone has already tried reporting the issue to the serious fraud team, and they did actually bother to write back with their 50 point check list, that seemed so specific it would be doubtful any firm would come under the catagory.

 

again on the subject of cops this has been tried but they didnt seem too worried that an offence had taken place really, maybe gathering evidence and passing on to the CPS may be a better option.

 

though of course the burden of proof in a criminal case is alot tougher, ie beyond a shadow of a doubt. Would be a great day in judicial history though

[tamadus]

Tam you will not be surprised to know that I don't agree with the sentiment "if I owe it I'll pay it"

 

To hell with that. If any consumer, all of whom over the years will have been fleeced at some time by the money lenders, can legally avoid paying any debt then they certainly have my whole hearted support.

 

By their conduct & their avarice the banks, the credit card & finance companies no longer hold the high moral ground & are never ever to be trusted again

 

Jon is it ok to call you now ?

[tamadus]

BBC NEWS | Business | Hackers target TK Maxx customers

 

anyone spotted this card fraud

 

The Uk has been slow taking up on this story. It was announced several weeks ago in the USA and I heard about it early Februaryfrom an announcement in an IT trade journal.

[JonCris]

yes they will but they will be 'fined' by the fos all of about 150 quid......Big deal!

[tamadus]

Totally off topic (but thats my perogative )

 

Has anyone any comments on this breaking news story

 

Probe call into Brown's tax move - news.uk.msn.com

 

Looks like financial matters are getting on top of certain people at last.

[m55dlc]

I've just had a thought. My MBNA 'agreement' states the word application three times, yet the card mailer they've concocted doesn't mention it once..... erm, how is that ever going to be a 'true copy' under s85?

 

I've just come back from the pub so I might be talking candyfloss....

[Rhia]

Sorry to interrupt but this thread gets the best brains (flattery etc). Can anyone hop across to Nick and answer his question?

 

http://www.consumeractiongroup.co.uk/forum/mbna/78738-dca-creditor-issue-mbna.html

 

Ta everyone!

[ladybird17]

well I've just come back from having a curry and I agree with you.

[tamadus]

Sorry to interrupt but this thread gets the best brains (flattery etc). Can anyone hop across to Nick and answer his question?

 

http://www.consumeractiongroup.co.uk/forum/mbna/78738-dca-creditor-issue-mbna.html

 

Ta everyone!

 

I just posted on it Rhia

[tamadus]

I've just had a thought. My MBNA 'agreement' states the word application three times, yet the card mailer they've concocted doesn't mention it once..... erm, how is that ever going to be a 'true copy' under s85?

 

I've just come back from the pub so I might be talking candyfloss....

 

Hmmm the mailer shouldnt even mention an application as its supposed to be a true copy of the agreement.

 

If they are relying on an application form as the agreement then the mailer should be a true copy of that application as long as it's properly executed).

 

Oooops do I see their argument that the mailer complies with sec 85 flying out the window ?

[InKogneeToh]

In an earlier post i made reference to the fact sec 85 doesn't include the word "true", after reading through the Regs again all executed agreements must be a true copy.

 

 

General requirements as to form and content of copy documents

3.-(1) Subject to the following provisions of these Regulations, every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall be a true copy thereof.

 

Hi Paul

 

I've just re-read sections 77 & 78 and they don't say 'true' copy either, but as you have shown, the regs. that support these sections DO!

 

Also to reinforce what you are emphasising here please see my earlier post today about the OFT's definition of the word 'true'.

 

I think the creditors will no longer be able to rely on their dreamed-up interpretation of what constitutes a 'true' copy when faced with this very clear explanation of what is required for any copy provided under any section of the Act!!

 

That is, (although it does not appear to have to be a facsimile copy) it MUST be IDENTICAL to the actual agreement that you signed in the first place!!

 

So - copies of agreement templates X

 

copies of T&C leaflets X

 

copies of card mailers X

 

copies of cut'n'paste 'Blue Peter' collages X

 

copies of the Bank of England safe codes - well maybe!! :D

 

Regards, Pam