Cap1 & CCA return

[m55dlc]

M! What a surprise!

 

Er, yes it was, as you no doubt know.......I take it that two lines and a squiggle to cover the above are not entirely sufficient?

I kind of thought he'd covered the bare minimum. If it was an article of clothing, it would only just stop the wearer from blushing

[davefirewalker]

Hi Maria

 

As you already know if the "agreement" doesnt have all the prescribed terms they are on a loser.

 

if its not signed by both they are on a loser

 

If the t&c are illegible they are on a loser

 

All three forget it they've already lost.

 

As for registering a default its a case for the trading standards or the OFT or the FAS or all three. But from what Ive seen none of them are much use.

 

if the finance co supplied the credit its them you go for. It doesnt matter what excuse they come out with......the bottom line is its their problem.

 

their are some templates I'll try to find them for you.... i'm preoccupied at the moment with a bottle of wine and watching worrld cup cricket ...

 

dave

[itsmeandonlyme]

That famous bottle of wine:)))))

Hello Dave:)

about this agreement..this is my other claim...as u can see i am a PPI queen...( also had it on Barclaycard and Halifax credit card)...

I have used some of your letters that u've posted on my thread and zubo's for Pam from the workshop..... for the CCA request..They know they do not have the agreement... i just want to show them that i know that without the agreement they shouldn't charge me the unlawful fees and PPI in a firt place...)

let me know what u find when you done with wine and cricket:)))

as i said the account is closed....so i can't really tell them that the debts are uninforceble:))))))

 

 

xxx

Maria

[tamadus]

Barclaycard still in default since October. non compliance CCA: legibility of agreement, account still in dispute sec 85.

 

Barclaycard stil in default since August, non- compliance etc etc and attempting to enforce through a company thats not a registered data controller except through it's parent company

[tamadus]

Hi Maria

 

their are some templates I'll try to find them for you.... i'm preoccupied at the moment with a bottle of wine and watching worrld cup cricket ...

 

dave

 

if that was the Australia/ Ireland match you were not preoccupied for long

[andrew1]

Could I just ask something please, I have an agreement document which appears to have all the prescribed terms and signatures, but I read previously somewhere that the particulars of the loan had to be in some specific order with interest shown before or after the loan figures, not sure which. anyway, this is the order which is on my agreement document and I wonder if someone might confirm this is correct or not: thanks

 

Order on agreement went:

Advance 13k

Credit Care Gold - 5956 ( insurance)

Amount of credit - 18956

Interest - 5296

Total amount payable 24253

 

followed by APR 9.9

 

 

also, this agreement was set up on the telephone, the documents were sent by courier and we signed them on the doorstep whilst he handed over the cheque. Is that okay ?

[paulwlton]

Could I just ask something please, I have an agreement document which appears to have all the prescribed terms and signatures, but I read previously somewhere that the particulars of the loan had to be in some specific order with interest shown before or after the loan figures, not sure which. anyway, this is the order which is on my agreement document and I wonder if someone might confirm this is correct or not: thanks

 

Order on agreement went:

Advance 13k

Credit Care Gold - 5956 ( insurance)

Amount of credit - 18956

Interest - 5296

Total amount payable 24253

 

 

 

followed by APR 9.9

 

 

also, this agreement was set up on the telephone, the documents were sent by courier and we signed them on the doorstep whilst he handed over the cheque. Is that okay ?

 

 

Does it state whether the insurance is optional.

[InKogneeToh]

Hi all

 

Off topic - but thought this might make you smile!

 

http://www.consumeractiongroup.co.uk/forum/post-608151.html

 

Regards, Pam

[JonCris]

Whilst the protection of 127 has been removed it is still my understanding that a court still CANNOT make an enforcement order without there being a signed agreement, electronic or otherwise

[alanfromderby]

Whilst the protection of 127 has been removed it is still my understanding that a court still CANNOT make an enforcement order without there being a signed agreement, electronic or otherwise

 

It is not retrospective though, so 127 still applies to agreements taken out prior to 6th April.

[ian1969uk]

Whilst the protection of 127 has been removed it is still my understanding that a court still CANNOT make an enforcement order without there being a signed agreement, electronic or otherwise

 

I'm not sure that's right. I think a court will be able to enforce an agreement whether it is signed or not, depending on the circumstances.

 

It will only be for new agreements, though, and will not be retrospective.

[Cornucopia]

Hi all

 

Off topic - but thought this might make you smile!

 

http://www.consumeractiongroup.co.uk/forum/post-608151.html

 

Regards, Pam

 

Pam, I love it!! I have to say though, this could possibly be the biggest claim on the site, which bunch of "bankers" allowed her to still have a mortgage at 98!!! LOL!!

[Guest Battleaxe]

Regarding Section 85, I want to crank up the pressure on several credit card providers by sending them a S85 default notice. However, the cards I have were all reissued quite recently (within the last 12 months or so). The accounts have been open for between 6 and 9 years, so there must have been an earlier reissue of these cards.

 

How do I go about finding out when the first card reissue was? I am guessing that this would be the date the default was effective from.

 

I have done the SAR/DPA requests re: charges but this doesn't state when cards were reissued.

 

Any ideas?

 

I worked mine out two years from the date the first card was issued. hey ho, quite anice tidy sum, which so far has not been disputed, or repaid. of course working CI out on the amounts using the abacus is taking the time for the CC companies involved

[ian1969uk]

Pam, I love it!! I have to say though, this could possibly be the biggest claim on the site, which bunch of "bankers" allowed her to still have a mortgage at 98!!! LOL!!

 

Sorry to disappoint but this story of the old woman is an urban legend. If you just do a google search for '98 year old woman wrote to bank' it's been around in various guises for quite a few years now and in different countries too.

[The Phantom]

I'm not sure that's right. I think a court will be able to enforce an agreement whether it is signed or not, depending on the circumstances.

 

It will only be for new agreements, though, and will not be retrospective.

 

So the new legislation won't be applied to ALL agreements as from 2008 ?

(Soorry to ask again, but the thought somewhat troubles me as I have been told that as from next year the new law even applies to old agreements)

[ian1969uk]

No, it won't apply to all agreements.

[FANTASY CHARGES]

PLEASE LOOK AT THE BIT IN INVERTED COMMAS STARTING "NOTE ...... " REGARDING THIS BELOW :

 

http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/oft020.pdf

 

(WHICH IS TAKEN FROM THE ABOVE LINK )

 

 

 

"Note on Consumer Credit Agreements 31 May 2005

New Early Settlement Regulations came into force on 31 May 2005, with

transitional arrangements for existing agreements. A revised booklet will be

published in due course. In the meantime please see our interim guidance

at:

http://www.oft.gov.uk/NR/rdonlyres/BA02B3B2-F6D4-4EE0-BDB8-

825BB582F1C7/0/oft801.pdf "

 

DOES ANYBODY KNOW IF THESE TRANSITIONAL ARRANGEMENTS HAVE NOW FINISHED BECAUSE THE LINK HAS BEEN CUT ---

LIKE SO MANY LINKS FROM THIS WEBSITE

[angry cat]

AC, I assume you mean SI 1983/1557 in which case here it is:

 

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.

(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 cancelable 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);

© in the case of any copy of an unexecuted agreement delivered or sent to the debtor or hirer under section 62 of the Act, the name and address of the debtor or hirer; and

(d) in the case of any copy given to the debtor under section 77(1) of the .

Act of an executed agreement for fixed-sum credit under which a person takes any article in pawn, any description of the article taken in pawn.

 

 

and in all its glory the now famous section 7:

 

, Copies of agreements or security instruments where the agreement or security instrument has been varied

7.--(1) Where an agreement has been varied in accordance with section 82(1) of the Act,

(CCA 1974 S82 VARIATION OF AGREEMENTS (1) WHERE, UNDER A POWER CONTAINED IN A REGULATED AGREEMENT, THE CREDITOR OR OWNER VARIES THE AGREEMENT, THE VARIATION SHALL NOT TAKE EFFECT BEFORE NOTICE OF IT IS GIVEN TO THE DEBTOR OR HIRER IN THE PRESCRIBED MANNER) every copy of the executed agreement given to a debtor, hirer or surety under any provision of the Act other than section 85(1) shall include either-

(a) an easily legible copy of the latest notice of variation given in accordance with section 82(1) of the Act relating to each discrete term of the agreement which has been varied; or

(b) an easily legible statement of the terms of the agreement as varied in accordance with section 82( 1) (SEE ABOVE) of the Act.

(2) Where a security provided in relation to a regulated agreement has been varied, every copy of the security instrument relating to it given to a debtor, hirer or surety under any provision of the Act shall include either-

(a) an easily legible copy of any document varying the security; or (b) an easily legible statement of the terms of the security as varied.

 

"Copies of old agreements and security instruments where the agreement contains a power of variation.

 

8. Every copy of an executed cedit-token agreement given to the debtor under section 85(1) of the Act"

CCA 1974 s 85 DUTY ON ISSUE OF NEW CREDIT TOKEN

(1) WHENEVER, IN CONNECTION WITH A CREDIT TOKEN AGREEMENT, A CREDIT-TOKEN (OTHER THAN THE FIRST) IS GIVEN BY THE CREDITOR TO THE DEBTOR, THE CREDITOR SHALL GIVE THE DEBTOR A COPY OF THE EXECUTED AGREEMENT (IF ANY) AND OF ANY OTHER DOCUMENT REFERRED TO IN IT) "where the agreement may be varied under a power conatined in it shall comprise an easily legible statement of the current terms of the agreement (whether or not varied in accordance with section 82(1) of the Act). Copies of old agreements and security instruments where the agreement or security instrument has been lost etc".

 

Comments please, because Morgan Stanley are relying on the above Reg 3 - General requirements as to the form and content of copy documents.

Whereas, Trading Standards have a different opinion based upon Reg 7 - meaning that they (TS) do not consider that MS has complied by sending me a 2006 issue of the T&C's, MS do not have a copy of the agreement circa 2001, there would have been at least 3 credit-tokens issued, that is apart from the first.

 

We are all basing non compliance on CCA 1974 s78. However the banks appear to be reliant on-

The Consumer Credit (Cancellation Notices and Copies of Documents Regulations 1983 - Arrangement of Regulations - Reg. 3

 

AC

[ian1969uk]

That only says they can miss some things out, but it still has to be a copy of the executed agreement. The only executed agreement in relation to an account is the original agreement, therefore I take it to mean they can send a true copy of that original agreement with signatures etc blocked out.

[Professor Fate]

They cant send the executed agreement to you if they have blocked out the signatures. It has to be complete and verifiable.

 

I will add to this bit, depending on your circumstances if there is no copy of the executed agreement with your signature on it then you have no agreement at all. There must be a copy of it, if no SAR or S77 reveals this then does it really exist at all. It`s rather a dangerous situation.

 

I did SAR for Barclaycard and they porduced a photocopy from microfilm of the original executed agreement that must be almost 20 years old. It looked as though a spider had dragged itself across the pages as it was completely impossible to even work out any of the details.

 

I have a piece of information I need, there was a court case regarding the DTi vs lloydsTSb about whether or not an executed agreement really constituted an executed agreement. I had this saved but lost the data, can someone point me in the right direction?

 

Thanks.

[FANTASY CHARGES]

found this case

 

High Court Judgment Template

 

this is a rather authorative website and the case was 2005

 

in section (or point ) 18 it says:-

Relevant provisions of the Consumer Credit legislation

 

The Consumer Credit Act 1974 and the regulations made there under comprise a formidable body of complex legislation. Once penetrated, however, the provisions which are of relevance to the present case can be summarised as follows:

A licence is required to carry on a consumer credit or consumer hire business: section 21 of the Act. It is a criminal offence to carry on such a business without a licence: section 39; and any agreement made in contravention of this prohibition can only be enforced by an order of the Director General of Fair Trading: section 40.

Section 60 of the Act provides for Regulations to be made in respect of the contents and form of agreements. These are the Consumer Credit (Agreements) Regulations 1983 SI 1983/1553. They make provision as to statement of "prescribed terms" amount of credit, interest rate, repayment. An agreement is required to comply with other formalities. It has to be headed to show that it is regulated, and there has to be a box for the customer?s signature.

Section 67 gives the customer the right to cancel the agreement during a cooling off period of 5 days from receipt of the executed agreement sent by post, if there were antecedent negotiations including oral representations made in the presence of the debtor. There is no such right of cancellation where the agreement is executed at the business premises of the credit-provider.

Part IV of the Act and regulations made thereunder regulate the advertising of consumer credit business.

Section 61 provides that non-compliance as to the formalities (including prescribed terms) renders an agreement "improperly executed".

Section 65 allows the Court to permit enforcement of an improperly executed agreement.

Section 127(3) prohibits the making of an order under section 65 in the case of an improperly executed agreement unless a document containing all of the prescribed terms has been signed by the debtor.

Section 16 provides for regulated agreements to be "exempt" in accordance with an order made by the Secretary of State. The Consumer Credit (Exempt Agreements) Order 1989 SI 1989/869 provides, in so far as is relevant to this case, for exemption where payments are to be made in not more than 4 instalments within 12 months of the date of the agreement?s being made. This type of exemption first took effect in 1985 (SI 1985/757).

 

so from this authoratative website we can see the position in 2005

 

 

so the question is could we in a court of law use this case to state the position ( at least some of it) as at 2005 ??

 

come on INK !!

[ian1969uk]

They cant send the executed agreement to you if they have blocked out the signatures. It has to be complete and verifiable.

 

 

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 cancelable 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);

They can omit the signatures from copies, although if they were to try and enforce in court, they would need to produce the signed document.

[angry cat]

They cant send the executed agreement to you if they have blocked out the signatures. It has to be complete and verifiable.

 

I will add to this bit, depending on your circumstances if there is no copy of the executed agreement with your signature on it then you have no agreement at all. There must be a copy of it, if no SAR or S77 reveals this then does it really exist at all. It`s rather a dangerous situation.

 

I did SAR for Barclaycard and they porduced a photocopy from microfilm of the original executed agreement that must be almost 20 years old. It looked as though a spider had dragged itself across the pages as it was completely impossible to even work out any of the details.

 

I have a piece of information I need, there was a court case regarding the DTi vs lloydsTSb about whether or not an executed agreement really constituted an executed agreement. I had this saved but lost the data, can someone point me in the right direction?

 

Thanks.

 

Thanks for your view Professor Fate!

 

Morgan Stanley do not have a copy of the alleged Agreement, Last July I made a Request Under S78 Consumer Credit Act 1974 for a True Signed Executed Copy of the agreement, eventually after approximately 7 months I was sent a copy of a generic Credit Card mailer (credit-token) with no CC and a zero credit limit, it contained the T&C's The mailer purported to be a 2004 issue but was in fact a 2006 issue as the penalty charges shown on it had been reduced from £20 - £12!

 

I reported MS to Trading Standards for committed a legislative offence under the CCA S78...

MS cannot supply the agreement because they do not have it. Therefore they are attempting to get away with the Offence by relying on the Amendments 1983 regs., regulation 3

 

The reason that I asked for comments re reg 3 & reg 7 is that reg 7 appear to be more about the variation of an agreement by credit-tokens...and that as such be appear to be a valid argument.

 

I am interested re: Case DTI v Lloyds TSB as I have been informed by Trading Standards that there is no case law that they can go on, re CCA S78

 

I'm getting ever so confused-

 

Love AC

[Professor Fate]

Hi thanks for that.

 

Yes, I`m aware of that. But what I am saying is that if you ask for the copy of the executed agreement (signature and all) then if such a document truly exists it has to be sent under SAR or even S77-79 request. As a finance company I could quite easily send out a blank agreement to you without your signature that you never signed. Hence no agreement. How do I know this is truly what I singed unless I took a copy at the time?

 

And if it went to court then to actually prove there is an agreement you would have to produce such a copy. So again if you request a copy of that document then there is no reason not to send it, unless they dont have it or cant be bothered.

 

There is an issue with the CCA I have been looking at as what is the difference between a `real` copy of your agreement signature and all that is illegible and sending a copy of the agreement without anything on it (signature) but can be easily read?

 

To me, both are meaningless.

[bfb]

Look at SI 1983/1557 regulations 3 7 and 8

If providers are providing only copies of mailers under section 77/78 requests they are confusing the words "include" and "comprise" they are also ignoring the requirement for a true copy under regulation 3