Cap1 & CCA return

[monopoly23]

Peri, you are more likely able to claim for everything you have paid against it if they cannot provide an agreement (because they cannot prove it ever existed), if however (like in your case) they have provided the agreement but with no prescribed terms then the debt still exits it just can't be enforced.

 

Hi un1boy-are you saying here that any payments made against a debt, that they cannot provide an agreement for, can be claimed back?

It seems ridiculous that if it went to the court stage, you said you were claiming back money paid towards a debt that you don't acknowledge?

Or am I missing something here?

[Josie8]

Hi un1boy-are you saying here that any payments made against a debt, that they cannot provide an agreement for, can be claimed back?

It seems ridiculous that if it went to the court stage, you said you were claiming back money paid towards a debt that you don't acknowledge?

Or am I missing something here?

 

This has to be tested in the courts but in a 2nd case Wilson took she got money refunded on Appeal that she'd had to pay after original court case. However there are a couple of lowe court cases where the judge has ruled that payment already made was voluntary but written off remaining money but these cases were before the Wilson judgement

[rich2568]

HI

Yes i have had one or two CCJs set asside for people on those very grounds it is as well to giv them chance to produce copies though the use of preaction protocol 4.1 with a note saying that in order to avoid wasting the time of the court it wouls be advantqgous to all concerened if a copy if one existed was produced,pre hearing.

Always looks good in court.

 

Best regards

Peter

 

Peterbard- could you expand on this (Give us some details of the `set aside `hearing) as it gives hope to any defendant that has not received a DN. However I am sure in court the claimant would produce one ,and then it is up to the defendant to fight their corner.

[so*fed*up]

Without spending hours and hours reading through this thread again

 

Please can someone post an example of a properly executed CCA for a credit card debt?

 

I have several cards, and apart from the APPLICATION forms, I'm 99.9% sure I've never signed anything else

 

Please, please can someone clarify this for me?

[Sparkie1723]

so*fed*up

 

To be honest I do'nt think you will find one.

 

sparkie

[so*fed*up]

so*fed*up

 

To be honest I do'nt think you will find one.

 

sparkie

 

Blimey - that's very interesting :o

 

I'm mystified though that potentially everyone who has a credit card can stop making repayments and get away with it It just seems waaayyyy to good to be true!

 

I can imagine it'd be just my luck to stop paying everyone, then some law or something is changed, and the card companies take me to the cleaners, lol :grin:

[PERICLAN1]

Peri, you are more likely able to claim for everything you have paid against it if they cannot provide an agreement (because they cannot prove it ever existed), if however (like in your case) they have provided the agreement but with no prescribed terms then the debt still exits it just can't be enforced.

 

As for any interest or charges from this point on - they cannot add anything to the balance because they cannot enforce the terms and conditions so would commit a criminal offence. If they do you're not paying them anyway, so they are increasing a debt balance which they can't recover.

 

What exactly are you looking to achieve Peri? It might be easier to talk you through what you need to do.

 

 

Hi Un1boy

Had to go out for a while.

 

Sorry I understand that no interest can be charged to my account from when they are in default of CCA, however the point I was trying to make was whether there is case to claim back the interest that my credit card company have been applying to my account balance, every month since the account was opened. if there is no prescibed terms or properly 'executed' agreement, hence no term stating that they can charge a given rate of interest?

Could it not be argued that this interest has been applied unlawfully?

[noomill060]

Never seen an enforceable credit card agreement on here- if you find one, let us know!

[davefirewalker]

Hi Un1boy

Had to go out for a while.

 

Sorry I understand that no interest can be charged to my account from when they are in default of CCA, however the point I was trying to make was whether there is case to claim back the interest that my credit card company have been applying to my account balance, every month since the account was opened. if there is no prescibed terms or properly 'executed' agreement, hence no term stating that they can charge a given rate of interest?

Could it not be argued that this interest has been applied unlawfully?

 

Hi Per

This is the end I am working towards.......see my thread here

 

http://www.consumeractiongroup.co.uk/forum/general-debt/84285-ccas-dave-against-world.html

 

Its untried and untested (AFAIK) but I'm giving it a go

 

Dave

[PERICLAN1]

ok dave

will go for a read.......good luck!

[Sparkie1723]

I've some questions.

The OFT have said that twelve pounds is OK for a late fee charge on a credit card.......What is this for? It is still stated a penalty for late payment and should reflect the true cost........the true cost of what ......what cost?

I can't get my head round that, has it actually COST the bank anything???they will make interest on the unpaid amount for another month longer so where does their cost come from?.... they dont write you a letter.... they dont return a cheque ....or a direct debit so what has it cost them, anyone got any answers???

 

sparkie

 

Maybe this should be on the penalty charge forum

 

sparkie

[PERICLAN1]

sparkie1723

£12 still unlawful

Roughly, OFT said that they would not pusue a credit card company if there charges were set at this level, but they did not say that £12 was lawful. They are still penalties that do not reflect their loss or pre-estimate of cost.

Claim 'em back!

[Sparkie1723]

Cheers mate,

glad to see someone else has the same view, I can't see it costs them anything at all.

 

sparkie

[PERICLAN1]

agree

completely automated!

my notice of a breach is actual one line on my next month's statement, which would have been sent in the post anyway so its the cost of the ink for that one line.

Also agree they've been justly enriched with the extra interest on the missed payment, especially at their rates.

[ian1969uk]

HI un1boy,

 

I agree with everything you say there, it is the agreement and how you were "supposed" to pay it back that is unenforceable, the debt still exists....but what people have to watch is ....being as you say a little greedy , because if they do the Creditor might look for other ways of getting their money back....say by going out of their way obtaining receipts for goods ,items etc to prove the debtor did have the money and take them to court under a normal claim for a debt under common law.

 

 

sparkie

 

Sparkie, you need to stop saying this. I've noticed you've posted this a few times and it's not right. There is no recourse to common law for the creditors, so please stop saying there is or you'll frighten people and put them off tackling these companies.

[Pliny the Penuriosus]

I've some questions.

The OFT have said that twelve pounds is OK for a late fee charge on a credit card.......What is this for? It is still stated a penalty for late payment and should reflect the true cost........the true cost of what ......what cost?

I can't get my head round that, has it actually COST the bank anything???they will make interest on the unpaid amount for another month longer so where does their cost come from?.... they dont write you a letter.... they dont return a cheque ....or a direct debit so what has it cost them, anyone got any answers???

 

sparkie

 

Maybe this should be on the penalty charge forum

 

sparkie

 

Sparkie NO! NO! This is becoming like an urban myth.

 

No the OFT haven't said anything of the sort.

 

They have said they WON'T intervene if the charge is £12 or below but that even that may be unlawful (which it is) & it's for a court to decide

[Pliny the Penuriosus]

Sparkie, you need to stop saying this. I've noticed you've posted this a few times and it's not right. There is no recourse to common law for the creditors, so please stop saying there is or you'll frighten people and put them off tackling these companies.

 

Quite right Ian

 

Sparkie there is no recourse to common law for a creditor where there is an unenforceable agreement - see HOL Wilson - v - Secretary of State.

 

This HOL case is why they have removed sec 127 of the CCA which gave this protection for all agreements signed before April 2007.

 

There are tens of thousands of pre April 2007 unenforceable agreements out there which are only now coming to light because consumers are sick to death of being ripped off by the banks.

 

Consumers are now using every legal means to challenge the banks & if that means the consumer is unduly enriched by not having to pay then sobeit

 

As a direct result of their own avarice they are now reaping what they themselves have sown

 

Sparkie I also seem to recall you posting this before & being corrected for it. If you do post such comments again I feel I will have no choice but to advise a Mod of your posting of mis-information

[Peterbard]

Hi

 

Late night discussions are the best.

i have been toying with an idea and had a chance to use it on MBNA they had stoped my card because i had aplied for a section78.

no other reason.

One of the constituant parts of any agreement is the inferred terms and amongst those are the ones that say that nothing within this agreement shall contravine or impede the debtor/hirers statutory rights.

I mentioned this to MBNA and said that they were doing just that by bullying me into not making a perfectly lawful query.

I got my barr lifted nest day,Coincidence?

I wonder if the banks that close accounts because people lawfuly reclaim penalty fees could e gilty of the same breach of contract.

 

Petr

[elizabeth1]

Hi

 

Late night discussions are the best.

i have been toying with an idea and had a chance to use it on MBNA they had stoped my card because i had aplied for a section78.

no other reason.

One of the constituant parts of any agreement is the inferred terms and amongst those are the ones that say that nothing within this agreement shall contravine or impede the debtor/hirers statutory rights.

I mentioned this to MBNA and said that they were doing just that by bullying me into not making a perfectly lawful query.

I got my barr lifted nest day,Coincidence?

I wonder if the banks that close accounts because people lawfuly reclaim penalty fees could e gilty of the same breach of contract.

 

Petr

Peter isn't this why the FOS were looking at fines with some of the Banks?

My hubby had a letter threatening to close an account of his - we were going through FOS for rclaiming charges at the time - so we copied the letter to FOS and they tackled the Bank about it etc.

 

Bank said due to the charges issue "relationship had broken down etc.. blah blah" we then replied that relationship hadn't broken down - we simply wanted money back. But they never closed account in the end - they were just attempting to bully.

 

I think on the basis that these companies have already taken the money involved in the "unlawful charges" - there is a very strong argument that they were the ones who breached contract (cause they were the ones who took endless pots of money from accounts - that ought not to have been taken?) All any of us are doing is asking for a refund of our money.

 

So maybe the breaches of contract aren't on our side - it's on their side?

Let's face it none of these companies are placing their argument to prove their cases are they?

[Peterbard]

Hi

Yes when they refused my card i was furious and i rang their team."Hello are you having a nice day", B*stards parden my french.

I said why have you stopped my card it has a credit limit of £2000 and i only wanted £50 for a treat for my grand daughter,sorry rambling.

They said they were concerned about my spending pattern ,i said what spending pattern i haddn't used it in two months.

I eventually got it out of them that because i had queried the PPIwith a section78 request they had though allo allo whats going on here the and put a stop on my account.

SOO i said but that is in breach of contract you are preventing me from exercising my rights under the cca.

They said no we are not i said oh yes you are and i am going to sue your pants off for so doing.

The very next day i got a letter froma Peter Cros Assistant Credit Controler

 

"Please Accept my apologies for the way your enquiry has been handled. This is not the normal level of cusotomer servicewe strive to provide,

We have of course re-enstated your account"

 

Makes you wonder

 

Regs Peter

[Peterbard]

I think on the basis that these companies have already taken the money involved in the "unlawful charges" - there is a very strong argument that they were the ones who breached contract (cause they were the ones who took endless pots of money from accounts - that ought not to have been taken?) All any of us are doing is asking for a refund of our money.

 

Sorry hate the quote thingy

 

I am when i get around to it start to chase the Nat West for charges on an account closed 12 Years ago using this very logic.

I don't think this is anything new but i wil have to do bit of reading .the way around the six years ruleis is that the bank fraudulently witheld information from you and their is no time limit on that. Or i believe that is roughly how it goes

 

Regards

Peter

[elizabeth1]

Peter - it's like loads of these companies have gone totally nuts?

 

There is stuff about the older than 6 year stuff in here - I read it and forgot to bookmark it - but isn't it to do with concealment? I will try check it out tomorrow.

I want to do an older claim for an account and might try it through the FOS as they won't give me statements - so I will have to estimate using the newer figures that I already have and work out an average for 2001 - 2007 charges. I did already ask for older statements to get nothing - BUT I did get it in writing they destroyed the older statements - so can produce this letter if needed - I asked for a "notice of destruction" proving they actually destroyed the data etc.. (this way that ought not be able to produce rabbits out of hats?). If the FOS doesn't work I can still go court N1 claim later if needed (but we can't do it the otherway around from what I understand)

 

I will look for the older than 6 year stuff and post a link if I find it tomorrow - too sleepy now to look. But I am sure we can go for older stuff too.

[Peterbard]

Hi Found this courtessy of tanz

Section 32 of the Limitations Act 1980 states:

 

32.--

· (1) .... where in the case of any action for which a period of limitation is prescribed by this Act, either-

· (a) the action is based upon the fraud of the defendant; or

· (b) any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant; or

· © the action is for relief from the consequences of a mistake;

· the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it. ....

· (2) For the purposes of subsection (1) above, deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty. . . .

(5) Sections 14A and 14B of this Act shall not apply to any action to which subsection (1)(b) above applies (and accordingly the period of limitation referred to in that sub-section, in any case to which either of those sections would otherwise apply, is the period applicable under section 2 of this Act).

 

 

 

Peter

[Josie8]

VERY IMPORTANT

 

A lot of lenders are saying that they do not have to provide an agreement showing your signature, thats fine, BUT one would argue that whenever you fill in an application/agreement most of your personal details are in your own handwriting therefore a TRUE COPY should have your handwritten details and not a computer printout of their standard copy.

 

 

Totally agree it must be a true copy in every respect though theyu can ommit signatures & names and adresses (i.e. blank them out).

[davefirewalker]

Hi All

 

MBNA have finally given me my SAR....... No notice of any cancelation rights being sent.

 

(brief precis)

 

loan applied for by phone

agreement sent (they signed 11 mar 03)

loan IS cancelable or made cancelable by statement

I signed 12 mar 03

 

what we now have is a cancelable agreement becoming executed on my signature.

 

CCA 1974

 

63 Duty to supply copy of executed agreement

 

(1) If the unexecuted agreement is presented personally to the debtor or hirer for his signature, and on the occasion when he signs it the document becomes an executed agreement, a copy of the executed agreement, and of any other document referred to in it, must be there and then delivered to him.

 

(2) A copy of the executed agreement, and of any other document referred to in it, must be given to the debtor or hirer within the seven days following the making of the agreement unless—

 

(a) subsection (1) applies, or

 

(b) the unexecuted agreement was sent to the debtor or hirer for his signature and, on the occasion of his signing it, the document became an executed agreement.

 

 

(3) In the case of a cancellable agreement, a copy under subsection (2) must be sent by post.

 

(4) In the case of a credit-token agreement, a copy under subsection (2) need not be given within the seven days following the making of the agreement if it is given before or at the time when the credit-token is given to the debtor.

 

(5) A regulated agreement is not properly executed if the requirements of this section are not observed.

 

 

64 Duty to give notice of cancellation rights

 

(1) In the case of a cancellable agreement, a notice in the prescribed form indicating the right of the debtor or hirer to cancel the agreement, how and when that right is exercisable, and the name and address of a person to whom notice of cancellation may be given,—

 

(a) must be included in every copy given to the debtor or hirer under section 62 or 63, and

 

(b) except where section 63(2) applied, must also be sent by post to the debtor or hirer within the seven days following the making of the agreement.

 

 

(2) In the case of a credit-token agreement, a notice under subsection (1)(b) need not be sent by post within the seven days following the making of the agreement if either—

 

(a) it is sent by post to the debtor or hirer before the credit-token is given to him, or

 

(b) it is sent by post to him together with the credit-token.

 

 

(3) Regulations may provide that except where section 63(2) applied a notice sent under subsection (1)(b) shall be accompanied by a further copy of the executed agreement, and of any other document referred to in it.

 

(4) Regulations may provide that subsection (1)(b) is not to apply in the case of agreements such as are described in the regulations, being agreements made by a particular person, if—

 

(a) on an application by that person to the Director, the Director has determined that, having regard to—

 

(i) the manner in which antecedent negotiations for agreements with the applicant of that description are conducted, and

 

(ii) the information provided to debtors or hirers before such agreements are made,

 

 

the requirement imposed by subsection (1)(b) can be dispensed with without prejudicing the interests of debtors or hirers; and

 

(b) any conditions imposed by the Director in making the determination are complied with.

 

 

(5) A cancellable agreement is not properly executed if the requirements of this section are not observed.

 

NO cancelation rights sent !!

 

looks on the face of it to be improperly executed enforceable only by court order......

 

Any thoughts, should I have a go at them

 

rgds

 

Dave