Cap1 & CCA return

[basa48]

Did this argument ever get settled/proven?

Is section 85 reference to replacement cards and new agreements enough to render an agreement unenforceable????

 

Even though s85 specifically states that a new CCA is required every time a new card is issued, I cannot ever remember seeing one. Unless the usual cardboard/paper folder they come in counts.

 

If not I can't imagine there is a card agreement out there that IS enforceable !!

[basa48]

...........Saw there had been a good letter re this a while back by Car who appears to be very knowledgeable on this area.

 

I wish you could find that letter. Might be very useful.

[basa48]

Can anyone comment on whether the 'fast track small claims' is the best procedure for removal of DNs and credit file default entries for an unenforceable Credit Card agreement ?

 

Most disputed and un-paid creditors will trash your credit file out of pure spite and I want to recitify that if possible.

[basa48]

Are you asking if it's "fast track" or "small claims"? if so, it depends on the amount of the claim, or how complicated it is.

 

I was almost fast tracked when the default was less than £300, because the case was considered so complex, so beware either way.

 

My case is fairly straighforward.

 

It concerns a Tesco unenforceable credit card agreement (I absolutely know it is unenforceable btw). If, as I assume they will, they default me (I've stopped my DD) and place a record on my credit file, I want to take them to court to get the agreement declared unenforceable, the default removed and my credit file reinstated.

 

I won't be asking for any money back apart from expenses of the action.

 

Is this the right route? It is a simple (?) case.

 

PS: This is the so called 'agreement':

 

[basa48]

It looks to be on the face of it pretty unenforceable........but what happens when they produce the terms and conditions that go with it, that contain all the prescribed terms, and then do an old boys club style hearing and screw you over ?? Dont rush headlong into court without preparing fully. BTW they probably wont remove the default either.....

 

Even though the agreement is unenforceable all that means is that they cant enforce it.......not that it doesnt exist.

 

The default will stay.

 

sorry

 

Dave

 

T&Cs as a separate document don't comply with the CCA, all the 'prescribed terms' MUST be on the ONE document you sign as an agreement, else it is not properly executed.

 

Old boys or no, a judge CANNOT enforce an agreement that doesn't contain all the prescribed terms under CCA127(3) and 61(1)(a).

 

Under such circumstances a judge can insist a default on an agreement that is unenforceable can be removed and the credit file reflect that. Defaulting an account that is in dispute contravenes Data Protection Act s10(1) & s12(1). Permission to process data is only given by virtue of a valid credit agreement.

 

Oh .. and what 'fleeced by RBOS' said PS: Thanks FBR .. more grist to the mill m8

Edited March 17, 2009 by basa48

[basa48]

I know of a case RECENTLY where the agreement (like yours) had NO prescribed terms. They produced a seperate document, different scale, different typeface and not even from the same date. Then proceeded to say these are the terms that would have been on the back............guess what the judge fell for it and the case was thrown out.....with costs of over £5k. It didnt even get to a full trial this was just a hearing

Dave

 

Except that if you look at my 'agreement' / application, around the edges it says 'moisten glue before folding'. Meaning a 'send to' address must have occupied at least half of the reverse side. I doubt they would put all the T&Cs on what would become the outside of an envelope.

 

In any event I would be sure to do a 31.16 disclosure request before going into court.

 

I'm surprised the defendant didn't ask to see the original document (with T&Cs on the back) in court and more surprised the judge didn't reprimand the CC co for misleading the defendant by witholding very relevant information. Something wrong there.

[basa48]

So, would one have to issue proceedings against the creditor to have the 'agreement' (or lack of it) deemed unenforceable in order to have the CRA's remove the damaging data?

 

Damn, and that's just what I was about to ask. :grin:

 

Also which is the best vehicle, small claims or part 8. And which clause 142(1) or 127(3).

 

Note 142(1) states “the court may if it thinks....” whereas 127(3) states “The court shall not......”

[basa48]

Which procedure depends on whether you're seeking damangs - if you are, it's Part 7 (where allocation to track will depend on the amount being claimed) and if not, it's the Part 8 procedure.

 

In effect, you are applying to the Court for an order declaring the parties rights (outlining the unenforceability of the agreement against the debtor) under s.142(1), based on s.127(3).

 

If the debt wasn't irrevocably unenforceable under s.127(3), making an application under s.142(1) would be suicide, as the Court would allow enforcement under s.127(1)(i) if the agreement is signed by the debtor and therefore not in the remit of s.127(3). So, the use of s.142(1) should only be considered where a CCA request has been made and the agreement sent falls in to s. 127(3) - meaning applications like this shouldn't be entered in to lightly.

 

I'm utterly (well nearly ) convinced my 2002 Egg Card agreement is legally unenforceable. Whether a judge would agree is the risk element here. So your answer is just what I was looking for. I didn't grasp that 142(1) could be based on 127(3).

 

Can I include a request to the courts to rectify my credit file (s14 DPA) in the same application?

 

Then there is the question of Egg's unlawful? recission of contract letter (otherwise known as the 'termination' letter).

[basa48]

Ah, right, I'm with you now. This is the quote that is more relevant to your question, then;

 

33. In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under section 61 that all the terms should be in a single document, and backed up by the provisions of section 127 (3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the minimum terms) are to be found in Schedule 1

 

OMG I've been searching for this ... can't find it anywhere on the net !!

[basa48]

Wilson & Ors v. Secretary of State for Trade and Industry [2003] UKHL 40 (10 July 2003)

 

Nah .. that's the Lords Opinion of the Appeal Courts decision of the HHJ Hull case.

 

That quote must be from the original Wilson v FCT case by HHJ Hull.

 

Thanks for trying anyway m8.

[basa48]

It's just one opinion that we need to make the Court aware of.

 

Indeedy, which is why I would love to read through the whole judgement. I have actually read all of Lord Nicholls opinion !! phew !! :grin:

[basa48]

Now I have got the link to the case on Bailii working, you can! Well, the Court of Appeal judgment in which it is quoted with approval, anyway.

 

Thanks for that Viscount. Very useful. 8)

[basa48]

Think you want this one HAK - it's Para 26

 

Wilson v First County Trust Ltd [2001] EWCA Civ 633 (2 May 2001)

 

See also Lord Nicholls opinion para 49

[basa48]

In which case they couldnt possibly have been part of the original contract.. surely ?

 

As obviously were not the T&Cs for my Egg Card agreement as per the attached letter sent with (all?) my agreement.

 

[basa48]

Hi

 

Sorry to go on about this but It has been playing on my mind all week.

 

I know if the Judge asks do I owe the money I should admit it and divert him to the fact its unenforcable.

 

I just cant stop thinking at that point he will stop the case and seek judgment on me.

 

Can anybody assure me:confused:

 

HAK

 

I've been thinking a lot about that myself.

 

The best I've been able to come up with up to now is something along these lines:

 

Recently following casual discussions with more knowledgeable friends I became aware that some credit card agreements may not be ‘legal’ and was worried I could fall foul of changes to any agreements that may not be legal.

 

When I received what was purported to be the agreement for this account I realized it was not a proper agreement and decided to challenge it with the company concerned.

 

Without a proper agreement in place I felt it unreasonable to continue repayments to an account that has no basis in law. To continue to do so could leave me open to amendments or variations to the running of the account outside the scope of the laws governing credit agreements and thus beyond mine or even the laws control.

[basa48]

Has the Amazing MBNA Interest Rate Trick been performed on your account?

 

Erm .. could you elaborate on this please?

 

My MBNA Card says it is charging 2.53% per month. Which equates to nearly 35% APR

[basa48]

I really can't understand how they can enter a moral judgement if they have a specific set of laws to follow.

 

Am I missing something very obvious?

 

Lexis:)

 

Possibly .. some may call it humility, others would call it BS, but the fact remains the judge is boss and you always tug your forelock to the boss !!

[basa48]

OK .. Im going to throw out another tidbit now.

 

Which is best:

 

• Take them to court?
  
• Defend their action?
  

 

There's only one way to find out ..............

 

FIGHT!!!!

 

(Apologies to Harry Hill )

[basa48]

Thx car and viscount ... I had almost come to the same conclusion. Plus of course you don't come over to the judge as some aggressive chancer, you remain the innocent downtrodden debtor fallen on hard times being crushed by the evil conglomerate !!!!

 

Pity I sorta hinted I might take them. Maybe they'll smell blood when I don't, but too late realise it's their own.

 

God it's cliche night for me !!!

[basa48]

When did you complete this application ?

 

This is nothing like the Platinum application form supplied to me following my CCA request

 

Looks like a typical paste up job to me ...font size ..lining up etc

What does it say at the bottom left of the terms column?

 

Plus two headings quoting CCA 1974 ???

 

V dodgy

[basa48]

Could someone cast their eye over the letter I intend to send to one of the banks re zeroing balance for unenforceable application form.

 

Thanks

 

Good letter.

 

Note that rendering unenforceable is by way of 142(1) and 127(3).

[basa48]

Hi all citizenB has asked me to run this by you as to what is in a book on law. I posted it on fingers thread concerning Halifax.

 

This to me is a major question. If this is a useable point of law it could have MAJOR implications for a great many Egg Card agreements which generally have the signature box on the reverse side under a reference to the T&Cs.

 

 

 

[basa48]

One word ....... WOW!!!!

[basa48]

Maybe it would be nice to share the relevant 1983 consumer agreement regulations as you have told me to read them.

 

If it's the CC(Agreements)Regs 1983 your after, if you PM an email addy I'll send them (.pdf) 8)

[basa48]

Hi

Quiet on here tonight

looks like i am going to have to go and talk to the wife.

Ho hum

 

LOL that's mean !!

 

Oh Hang on i saw the rest of the posting from the proffessor feller you know the one who said the signature had to be "on one side",hmm "on one side" doesnt sound like statutory language does it, anyway.

The rest of it is complete holihocks too, recons that the rest of the T and Cs can be apart from the prescribed terms because of the word embodied we know better don't we.

 

Peter

 

I did think the sig on the same side was way too good to be true, otherwise most credit agreements would be dead in the water.

 

I didn't follow what you say about the T&Cs.

 

I always thought these could be a separate piece of paper so long as there was a reference to them on the signed agreement which contains the prescribed terms.