Cap1 & CCA return

[un1boy]

Exactly - but the government need banks, don't they?

[un1boy]

I have just been reading this:

 

78 Duty to give information to debtor under running-account credit agreement

 

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

 

(a) the state of the account, and

 

(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and

 

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

______________

Would I be right in thinking that if the lenders haven't confirmed:

 

(a) the state of the account, and

 

Ie. In default (plus default notices)

 

(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and

 

The current balance of the account

 

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

 

A list of payment dates etc

 

That they still commit an offence, regardless of whether they provide the signd Agreements?

 

Any thoughts?

[un1boy]

Hi Terminator, I may be being thick here but waht do the sections you've posted above actually mean? I've read and read them, but can't think what they are saying, sorry!! :-/

[un1boy]

OK letter to Barclaycard and Lloyds TSB drafted and posted here for comments.

 

I refer to my letters dated 17th August 2006 which was delivered via recorded delivery to your offices on 21 August 2006, and my follow up letter dated 15 September 2006.

 

In my letter of 17 August I made a formal request for a copy of the signed, executed credit agreement for the above numbered Barclaycard account under section 77(1) and section 78(1) of the Consumer Credit Act. In addition a statement of my account should have been sent along with any other document mentioned in the credit agreement.

 

The Consumer Credit Act allows 12 working days for this request to be carried out before your company enter into a default situation. If the request is not satisfied after a further 30 calendar days, Your company commit an offence. These time limits expired on 5 September 2006 and 5 October 2006 respectively.

 

As you are no doubt aware subsection (6) states:

 

If the creditor under an agreement fails to comply with subsection (1)—

 

(a) He is not entitled, while the default continues, to enforce the agreement; and

(b) If the default continues for one month he commits an offence.

 

Therefore as at 5 October 2006 this account became unenforceable at law and it is now my intention to refer this matter to the enforcement authorities.

 

In addition it is also my intention to notify CCCS that this account is no longer enforceable and that payments to it should cease immediately. Any default notices or adverse comments your company have recorded on my credit reference file should be immediately removed.

 

Additionally any monies I may have paid to your company should be returned to me forthwith.

 

Failure to respond favorably to this letter within seven (7) days of receipt will result in immediate litigation being commenced against your company without further notice.

 

I await your rapid response.

 

Yours Faithfully

 

 

 

Tamadus

 

Hi Tamadus,

 

I'm a bit confused as to what you are trying to achieve with this. Are you asking for an original copy of the credit agrrement?

 

What has this got to do with a copy of the agreement beign sent with each card?

[un1boy]

un1boy,

 

I made a request for a copy of the original, signed , executed credit agreement under section 77 and 78 before I realised that section 85 had a very similar although not exactly the same affect.

 

If the don't or can't supply the agreement under section 77/78 then again the agreement is unenforceable as long as they are in default. So until they produce the document the only thing they can do (and it's unlikely they will do it) is to go to court and ask a Judge to enforce the debt. A Judge is unlikely to do that just because they ask and may or may not have an application form. Without that paper they effectively have to write off the entire debt. In addition if the debt doesnt exist today then in the eyes of the law it has never existed, ergo they have to repay any interest etc they have charged me since the day it began.

 

Both Barclaycard and Lloyds TSB Trustcard have now exceeded the time allowed by the CCA and are effectively in criminal default. They cannot enforce the debt ouytstanding or pass it to any other company for enforcement.

 

I promise they will try and fight this but they can only win if they have that paper and they are then going to have to explain to a court why they didn't produce it within the allowed timespan.

 

As I fallback in case they do produce it and save their necks after the fact I will then drop back to using section 85 and again they cannot profit while in default so have to refund about 25 years of interest.

 

I only ever started looking into this because they hide behind their microfiche argument and refuse to provide data under my S.A.R - (Subject Access Request) request

 

footnote for the men in black: try stalling my claim and I will hit you with a section 85 claim. You should know what that means. heck I might do it anyway just for fun:D

 

Hi there,

 

Thanks for this. so, is the request youa re sending now a request for docs under sec 85? That's what's confusing I think, lol. sorry.

[un1boy]

ok folks sorry been up to my neck in my real job last few days. Thanks for looking after things Terminator.

 

Basically a credit agreement has to be signed by both parties. If it isnt then it is unenforceable. This applies to CC companies banks , pawnbrokers, and catalogue companies. If they supply credit either through a running credit or fixed credit agreement then that agreement is regulated by the CCA and comes under its terms and conditions. If they fail to keep proper records or follow the CCA then they are liable.

 

If they cant or wont produce the documentation for the customer a judge is going to take a dim view of it if they then try to have it enforced in court whether they produce the documents or not. A court is very unlikely to enforce it without that paperwork.

 

Mike, I actually dont think time limits will play an important part as we can prove criminal negligence (or intent) by these companies to decieve us all over a period of many years. The deception is paramount as others have said to offences under the theft act. If an individual can be prosecuted 20 years after commiting theft so can a bank or CC company. We are actually talking public fraud on a big scale here, once this breaks its going to mean open season. I am actually scared to think what the total amount might involve.

 

They are not allowed to make a profit while in default, if that default goes back more than 6 years as a result of their deception why should we, the consumer lose? for a court to enforce time limits would be paramount to allowing them to profit over several years because of our trust in the banks etc. If we lose because of it then they are profiting.

 

This whole situation of them being in default has been created by themselves, I cannot see any court allowing them to make millions in profit from their offences. I am tempted to think they are also guilty of money laundering offences by profiting whilst in default.

 

As Terminator has said the Wilson v First County Trust (and other cases) have proved the point on every occasion including the House of Lords. Legal precedent has already been established to some degree regarding unenforceable contracts.

 

My guess is the companies will either try and go to court to bully us out of it or pay up and want confidentially agreements for as long as they can keep it quiet.

 

had chance to speak to a solicitor friend today who immediately grabbed his books and cross referenced with new updates of the CCA. Just like Terminators solicitor friend he confirmed they are in deep doo doo. In fact his entire office went silent before exploding

 

Letters have gone to both Barclaycard and Lloyds TSB under section 78(1) who are both noticeable by their silence so far, the bang when it happens is expected to be off the Richter scale

 

Thanks for this info. I have been supplied with the agreement for ym credit card, which was signed by me on one date and signed beneath by the bank on the day before!!!!

 

Is that leagal? Wouldn't they need to sign it on the same day/at the same time?

[un1boy]

Its actually very rare that contracts are signed on the same date so yes it's perfectly legal.

 

look at section 85 though Un1boy as its possible that if the card has been replaced since the account began but they didnt suppyly a copy of the agreement along wiht the replacement then they may still be in default

 

Thanks for clearing this up.

 

I am aware if the sec 85 though - are we waiting for you to test the case, or should we start writing to them about this?

[un1boy]

Oh I'm elected to try it first am I ? lol

 

I was going to finish dealing with my claims under section 78 first but OK I'll pick a card at random that I havent started a claim for yet and send a letter. May have to be one I have already settled my charges claim with though as I am running out of accounts old enough to have issued a replacement card lol.

 

Lol, not at all - I'll try it first if you like? Might need a little help from you though, lol. Let me know, I'm quite happy!!

[un1boy]

Go for it:D section 85 (1) is the relevent legislation and the crucial words are copy of the executed credit agreement. That basically means it has to be signed by both parties to the agreement.

 

Is this regarding the fact that the agreement needs to be sent with each replacement card?

[un1boy]

Stupid question, please ignore my above post.....

 

It says this:

85 Duty on issue of new credit-tokens

 

(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.

 

(2) If the creditor fails to comply with this section—

 

(a) he is not entitled, while the default continues, to enforce the agreement; and

 

(b) if the default continues for one month he commits an offence.

 

 

(3) This section does not apply to a small agreement.

 

 

I'll draft a letter and PM you for your thoughts, is that ok? Or should I post it on here?

[un1boy]

Meagain, is it possible to tell us what your expertise are on etc?

 

Many posts you make are all the same; abrupt; rarely positive and unhelpful.

 

I'm not having a go I am just interested in what your particular experience/expertise in these subjects is.

[un1boy]

hi tamadus,

could you help got Aletter from steve baily yesterday offering me a gogw of £400even to my claim is wellover that, but hes reminding me of terms "3b" in the credit agreement which clearly states that it is agreeded i pay £25 each time a paymt is missed, or i have exceeded my limit, or a cheq is returned is this right as i dont have agreement now, they have sent my statements so im just about to work out how much theyve charged me. Also on bottom stmnts it says min paymt includes overdue amount of .... but it says on in stmnt that theyve charged me for missed paymt..do i add both of them to my total amount ??? can you help please

 

Hi there, if this is regarding bank charges please can you start your own thread in the relevant section for your particular bank and tehn let us know where it is and what it's called.

 

WE can pop over to it and help you more clearly then!!

[un1boy]

We have a right to cancel it yes, but I have copies of executed agreements for some cards and application forms for others. The Executed agreement has to clearly state is is a 'credit agreement regulated under the consumer credit act 1974' and must include the cancellation clause. Without those it is not an agreement. The application form I was sent recently is not an agreement under the CCA because it doesnt state it or give the cancellation clause. It is nothing but an application form.

 

As an analogy would you expect to be able to drive simply because you applied for a provisional license but never actually got it or learnt to drive ?

 

Some companies are now titling the signature box of applications forms and including the cancellation clause in it so yes that could constitute an agreement.

 

So, if I've been sent my agreement which is titled, 'credit agreement regulated under the consumer credit act 1974' and says refer to the terms and conditions, but there's no cancellation clause on that page/agreement, is the agreement unenforcable/incorrect?

[un1boy]

Hmmm...I'm not too sure on this. As far as I understand it, you can still withhold payments as they now need to apply to the court to enforce it.

 

Might be wrong though!!

[un1boy]

Afraid not as long as they provide the terms and conditions as part of the agreement at the time of signing the signature confirms you have also read them. At least it does on this.

 

Hi Tam,

 

Does it say on your 'agreement' that signing confirms you've seen them?!

[un1boy]

lol

[un1boy]

This has just been posted:

 

Just got back from the library.

 

1983No.1557

 

Consumer Credit Act

 

 

PART III

 

Firms of notice of cancellation rights to be included in copies of cancellable executed agreements sent by post to the debtor or hirer under section 63(2) or (4) of the act.

 

Section 63(2) refers to notification to be given within seven days of the agreement date obviously no fee is required for this it is basically so that you can check your rights to cancel so no signature would be necessary.

 

We are applying under section 77-79 of the act

 

Reference to this is given in SI 1569

 

Requirements for this information is given in the act .

 

Seems that someone has been trying to confuse us.

 

in this thread:

 

http://www.consumeractiongroup.co.uk/forum/other-institutions/10900-loan-company-cannot-supply-20.html

[un1boy]

Oh sorry!!

[un1boy]

lmao

[un1boy]

Great Terminator!!!

 

If you need any help, let me know!

[un1boy]

poltmcm

 

The CCA says:

 

 

 

So section 60 (1) (b) clearly says that the rate and total charge for credit must be shown.

 

Pete

 

On the actual agreement? Even if it says that you abide by the temrs and conditions, even though they are not supplied?

[un1boy]

So, what you're saying then (or the CCA is saying) is that even if I've been sent an agreement which is headed "CREDIT AGREEMENT REGULATED UNDER BYTHE CONSUMER CREDIT ACT1974"

 

then has my address and that of the bank's

 

then says, "I have read an agree to be bound by the terms and conditions attached."

 

then has a box with the right to cancel stuff in it

 

then has a box saying "This is a credit agreemtn regulated by the consumer credit act 1974. sign it only if you want to be legally bound byits terms. then has my sig and date on it.

 

Then has another box, "Signed on behalf of of the bank and date."

 

But nothing else (ie the APR)

 

then it is an unenforcable agreement?

[un1boy]

Fair enough - I agree.

[un1boy]

So the original agreement should state the APR and total charge as it stands when the agrement is struck.

 

Any subsequent variations are then notified to the debtor which is what does happen.

 

Pete

 

That's what I would have thought too!

[un1boy]

thats effectively it and it mostly works. Mostly problems with the total charge for credit seem to occur when its been wrongly calculated or something has been missed from the calculation.

 

I'm sory Tam, can you expalin what you mean by, "thats effectively it and it mostly works. ".

 

Sorry, I'm just a bit confused by what you mean!