Cap1 & CCA return

[Guest Battleaxe]

I just wish one of the national newspapers would catch on to Section 85.

Terminator will be the first, I am waiting until the 26th to go in and I am not sure where Tam is on this part of the Act. Crap One has already tried to be smart, but it isn't washing with me. they have defauulted and been in default since 2004/2005. I am just waiting to test this in court MBNA are for the drop on the same day

[m55dlc]

Peter

 

Posted vs Served are still distinct. Something can be posted and not served, other things can be served and not posted, and served by posting. The point being, unless something is actually being served (and you are aware of the difference in legalese between something that requires service and something that doesn't) then they have to prove that it was received. To receive something is not necessarily to have been served it.

 

Now who is raking over old coals then?

[rippedoffagain]

You are the trailblazers for s85, and I truly hope you win, as then the next avalanche would begin, and could bury plenty.

[ncf355]

Hi all,

 

served a CCA 1974 s78 request on Goldfish for the mrs

 

I'm a little bit unsure about what theyve sent, as to whether it meets requirements:

 

1) Heading states "your application for the goldfish credit card"

2) Its addressed to "the occupier"

 

BUT:

 

It states "credit agreement regulated by the cca 1974, this agreement is made between us HSBC and you"

 

Then goes on as a normal application form, and right at the end has a signature box containing the wifes sig and date, plus underneath the creditors sig and date

 

The terms and cons are on the back of the same piece of paper, but look distinctly of angle, like they have been photocopied there?

 

 

Would this pass?

 

 

I think I have them for the following, but want clarification from someone with more knowledge in this area!:

 

(my statement to them) -

 

 

I must inform you that the document you have provided does not fulfil the request as it is an application form, not (to quote section 78 [1] ) “a copy of the executed agreement” and also fails to conform to the relevant sections of the Consumer Credit Act 1974:

• Section 60 (1) (b) states the agreement must contain the amount and rate of the credit
  
• Section 60 (1) (d) states the agreement must contain the protection and remedies available via the act
  
• Section 61 (1) (b) states “the agreement embodies all of the terms of the agreement”

What do you all think?

[un1boy]

Wow guys, I last checked this thread last night and there has been over 3 pages of dialogue since.....

 

Here are a few of my collective thoughts on some issues mentiones:

 

The "if any" argument: It is my contention that it means "if it is an account which requires an agreement", not, if they have been bothered to keep it or not.

 

The reason behind this? Because it makes a mockery of the whole thing, I mean, if it meant "if they have a copy of it" then they would be able to get you to sign an agreement and throw it away straight away and you'd still be liable for it? Na, ah, I don't think so - the agreement is the major player in all of this.

 

On another note, you must remember that a county court has to consider the balance of probability, not that they are guilty beyond reasonable belief. So, not everything necessarily has to be proved.

 

It is my personal opinion however that, in order for someone (ie a bank) t prove that you received a letter they should have to prove it was received, not just sent.

 

Now, the problem with this is: You say a company hasn't sent you a default notice, but they have a marker on their system saying they sent you one. Then, about a week or so later, they have a note on their system that you called to arrange a payment plan.....now, on the balance of probility, do they really need to prove you received it? By acting on it, surely you've proved that?

 

However, as in my case, I only reacted to a letter I received from the DCA (received no Default Notice) and my SAR confimed this. I ahve asked them to prove that the DN they allegedly sent me complied with the relevant secs of the CCA too, which they can't.

 

If you did receive the notice however, I would assume they would have to prove it complied with the section of the CCA covering the contents of DN's. how do they do this? By supplying a copy of the DN they sent you, not a template.

 

It is in cases like that that they would have to prove things, not necessarily on everything.

 

As I understand it, the burden of proof is on the defendant in order to substanciate the details of their defence. Claimants have a responsibilty to prove certain things too.

 

I hope you understand what I am saying, I'm still taking in some of the 3+ pages I've just read....

[Sparkie1723]

ncf355

 

Have a look at section 63 of the CCA this section applys to credit token agreements under section 10 of the CCA, can you rememer if you received an executed copy of the agreement when your wife received her card? You should have been given one under sub section 4 if you did not get one it is an unexecuted agreement and if you did is it the same as the one they have just sent you?

 

Just a couple of pointers that might help.

 

sparkie1723

[un1boy]

Also, someone mentioned reporting the offences to TS - it is they who can rule that the criminal offence has been commited and take action against it.

 

I contacted TS the other week and sent through the info....I called them today and he is going to look into the situ and call me back, so I will let you know what happens

 

(also, on an unrelated note, I was issued Notice of cancellation by on of my banks to close my accounts due to my "recent requests for refunds of charges" in november......I wrote back to complain and they have writtne to me today to say that they are retracting the notice, but, if I breach the terms and condtions of any of my accounnts then they will close all of my accounts!!! So, I'm really pleased with that result)

[Acerfan]

Battleaxe, just tried to PM you. Can you PM me your email address so I can send you some info you might be interested in?

 

Thanks

Acerfan

[ncf355]

Good stuff so far folks, thanks!

 

Anyone else care to offer an opinion on my Goldfish CCA post above?

[InKogneeToh]

 

i am going to have to reconsider the valentine i was going to send you .

 

Hi Peter

 

I am very sorry to have to tell you that your name has already been removed from my database of potential 'bits on the side' due to the fact that your application form was not 'served' on me on the required date.

 

However, you are quite welcome to apply again next year, provided that your application is 'served' by 14 February at the latest.

 

Regards, Pam

[Guest Battleaxe]

Hi all,

 

served a CCA 1974 s78 request on Goldfish for the mrs

 

I'm a little bit unsure about what theyve sent, as to whether it meets requirements:

 

1) Heading states "your application for the goldfish credit card"

2) Its addressed to "the occupier"

 

BUT:

 

It states "credit agreement regulated by the cca 1974, this agreement is made between us HSBC and you"

 

Then goes on as a normal application form, and right at the end has a signature box containing the wifes sig and date, plus underneath the creditors sig and date

 

The terms and cons are on the back of the same piece of paper, but look distinctly of angle, like they have been photocopied there?

 

 

Would this pass?

 

 

I think I have them for the following, but want clarification from someone with more knowledge in this area!:

 

(my statement to them) -

 

 

I must inform you that the document you have provided does not fulfil the request as it is an application form, not (to quote section 78 [1] ) “a copy of the executed agreement” and also fails to conform to the relevant sections of the Consumer Credit Act 1974:

• Section 60 (1) (b) states the agreement must contain the amount and rate of the credit
  
• Section 60 (1) (d) states the agreement must contain the protection and remedies available via the act
  
• Section 61 (1) (b) states “the agreement embodies all of the terms of the agreement”

 

 

What do you all think?

 

I am hesitating here. Strange that it is addressed to the occupier, does the agreement have you wife's details, as she would have given them and is it in her hand writing (I am assuming it was a mail shot application).

[Guest The Terminator]

Insurance | Car Insurance | Home Insurance | Life Insurance | Travel Insurance -MSN Money UK - PPI fine opens the compensation floodgates

 

Hopefully this will make everyone's day

[Guest Battleaxe]

Term,

 

This makes my little heart sing with joy, no wonder Crap One was so quick to cancel the PPI when we complained. Looks like they have been very naughty.

[Guest The Terminator]

I am hesitating here. Strange that it is addressed to the occupier, does the agreement have you wife's details, as she would have given them and is it in her hand writing (I am assuming it was a mail shot application).

 

23. By s. 61 (so far as material):
     
    
    "(1) A regulated agreement is not properly executed unless -
    (a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60
    (1) is signed in the prescribed manner both by the debtor .... and by or on behalf of the creditor ..., and
    (b) the document embodies all the terms of the agreement, other than implied terms ...."

    
    

24. By s. 65 (1):
    
    "An improperly-executed regulated agreement is enforceable against the debtor ... on an order of the court only."

The above was taken from case law Watchtower Investments vs Payne COA(2001).Now the piece I'm interested in is the part in blue.The way that I interpret this is that when a copy of the agreement is requested then it should have two signitures to make it executed.Now under S85(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.

Now this is why the banks are stalling due to the fact that they will never be able to put a defence together.I suggest that anyone who has received their S78 request to send it back because on some of the posts I've read today it seems that their is not an agreement that has been properly executed.Oh and Bill if your reading this the clock is ticking:lol:

[Guest The Terminator]

Term,

 

This makes my little heart sing with joy, no wonder Crap One was so quick to cancel the PPI when we complained. Looks like they have been very naughty.

 

Well I do like coming up with these little gems;)

[Guest The Terminator]

Hi Peter

 

I am very sorry to have to tell you that your name has already been removed from my database of potential 'bits on the side' due to the fact that your application form was not 'served' on me on the required date.

 

However, you are quite welcome to apply again next year, provided that your application is 'served' by 14 February at the latest.

 

Regards, Pam

 

I gather it would have to be by special delivery:lol:

[e28bigalbexley]

HI All

Got a reply from cap 1 today with a copy of the signed application form, and a big tick the NO box for PPI, Oh dear they have been charging me me for 7 years for PPI. I wonder what to do.

1 Forget about it?

2 Prelim letter with simple interest attached?

3 Prelim with Compounded Contractual Interest attached?

 

AL:D

[Guest The Terminator]

HI All

Got a reply from cap 1 today with a copy of the signed application form, and a big tick the NO box for PPI, Oh dear they have been charging me me for 7 years for PPI. I wonder what to do.

1 Forget about it?

2 Prelim letter with simple interest attached?

3 Prelim with Compounded Contractual Interest attached?

 

AL:D

 

Just go for the jugguler I think everyone else is:D

[elizabeth1]

Insurance | Car Insurance | Home Insurance | Life Insurance | Travel Insurance -MSN Money UK - PPI fine opens the compensation floodgates

 

Hopefully this will make everyone's day

 

 

Now isn't that Karma?????

[Guest Battleaxe]

Stop Press,

 

Had a phone call from a researcher on Watchdog and I mentioned Section 85 to her. She didn't know about it. they are doing a piece on bank charges and successful claims, so I mentioned my second bite and the six year bit, meaning you have six years in which to make your claim, not only six years worth yadaa yadda yadda and then threw in the Section 85 on credit cards. I am not missing an opportunity to open the flood gates and the PPI mis-selling and fine is going to make the banks sit back and seriously rethink about people power. She asked me why i didn't use my reclaim to pay off the overdraft and I told her that the overdraft would not have been there if it hadn't been for the charges and as I am going for the second bite of the cherry with contractual interest compounding, it will be a win win situation for us and the overfraft will be wiped out. She was interested in A & L's retaliation on the account closure also, especially as we had started the second action and threatening to default us. let's see how A & L react to this. I didn't mention the attitude of A & L personal Finance and their Loan Life Insurance Cover and refusing to cancel it, knowing that Kent has cancer and the insurance is worthless to us. Then again the FSA and FOS should take care of that little problem for us.

[Guest Battleaxe]

 

Now this is why the banks are stalling due to the fact that they will never be able to put a defence together.I suggest that anyone who has received their S78 request to send it back because on some of the posts I've read today it seems that their is not an agreement that has been properly executed.Oh and Bill if your reading this the clock is ticking:lol:

 

Good idea Term, I am sending ours back, because it is a photocopy of a faxewd copy and the banks signature is missing. I told Wee William that it was not properly executed, so I will send it back, after taking a photocpy of it for reference (never trust the little devils) and see what response is evoked.

[emmaphill]

Hi

 

I have been folowing this thread with much interest especially as my favourite people are involved MBNA! Some help would be appreciated as to my next move! I apologise in advance for the long post.

 

MBNA have not been in contact with me since late October when they settled my claim in full (including contractual interest)by means of a cheque direct to myself. There does however remain a balance with them of around £3k. However, before the claim was settled and whilst the account was in dispute they sold the debt to Arrow (who now claim they have sold it back). When i became aware of the sale early Oct i sent the following letter to which i have never recieved a response.

 

Dear Mr Johnson

 

Thank you for your letter dated 9th October 2006 the contents of which have been noted.

 

I was shocked by your declaration that the account had been defaulted and on consulting my credit file I have found that sure enough it is stating that the account defaulted on the 29/9/06. I have not received any notification of this default and therefore question its legality. Unless you can provide a true copy of the said notice, then I consider that any default entry on my credit files to be wholly unwarranted. Additionally the fact that you defaulted my account whilst in dispute is a clear disregard for the principles of the banking code and I intend to amend my claim to include a request to remove the default and notify the ombudsman of your actions. This is a clear disregard for the principles of the banking code of which you are a member.

 

In your letter you state you have incurred ‘significant’ losses against my outstanding debt after repaying a proportion of the penalty charges back to me. You maintain that me missing 15 payments (I assume you mean during the whole duration of the account) has led to you sustaining ‘significant’ losses against the account. ‘Significant’ I define as a fairly large amount and having a major effect. I therefore ask for a breakdown of this ‘significant’ cost to your company, which if your statement is accurate should be readily available. The principle of my court claim against you is on the basis that the charges imposed by you to be punitive in nature, as they are not a genuine pre estimate of costs incurred by you in respect of any breaches of contract. To remedy my claim a clear breakdown of the cost incurred by you for each individual breach will in fact void my whole case. I therefore ask for disclosure of this ‘significant’ loss so I can in fact investigate whether or not your charges in fact do constitute a ‘penalty’. Disclosure of the loss incurred is essential in justifying this comment of ‘Significant’ loss in your response. Failure to do so can leave you with no argument in your defence at the court hearing.

With regards to your offer of an additional £850 in full and final settlement I am again left confused by your argument. I have not disputed that I breached conditions of my contract what I am refuting is that the penalties applied for this breaches are punitive and do not reflect the cost incurred by you and are therefore a penalty which is unlawful under common law. So my argument yet again is not whether the breach occurred but whether you can justify the penalty which you applied. As mentioned earlier if you can support any penalty applied on this account through a breakdown of the costs incurred I would gladly welcome it. As I am, yet to receive a default notice even though 13 days have passed since you claim it was issued I am still holding the account as active. Additionally to say that the refund can not be supplied in the form of a cheque is questionable to say the least, as I am aware there is no reason why this can not occur. Also the mere fact that you are no longer complying to the banking code is in itself justification for the payments to be made directly to myself so I have the reassurance of knowing that they can be used in a means I see fair. Having held the account for a period of over 6 years and on your admission only missing 15 payments the fact that you say the fees have not yet been paid by myself also does not ring true. The fees I am claiming date back to 2001 and thus have been paid by myself through monthly payments. I therefore will say I will accept the £850 offered as a part payment towards my court claim on the basis that I receive it in the form of a cheque made payable to myself. Once the funds have cleared I shall notify the courts that a part payment has been received and the claim will be reduced to reflect this payment and the remaining amount will be sought.

I enclose a statutory 10 demand, which I would like actioned you have 21 days in which to respond to this demand. Additionally I understand that under the Consumer Credit Act 1974 (Sections 77−79), I am entitled to receive a copy of my credit agreement on request. I enclose a payment of £1.00, by postal order ref. 1014297644, which represents the fee payable under the Consumer Credit Act. You have 12 days in which to provide me with a signed original copy of this agreement and I await a response.

To conclude I do not accept your response as a full and final settlement of the matter and my claim is now in the hands of the courts. I await a response in reply to the above and hope that my queries are given the attention they deserve. I accept a reply in 7 days to the contents of this letter and for the information requested to be supplied as legally required.

I consider the account to still be in dispute and there will be no payments made by myself until the matter is concluded.

 

I trust this clarifies my position.

 

I have not chased this up for a number of personal matters but i now need to address this matter and bring about closure to some extent. I have not recieved a response to my Stautory 10 request or a copy of my credit agreement and to be honest i dont think there is one! Do you think I should now send a LBA of my intention to take matters further or should i just let things be?

 

Thanks in advance

 

Emma

[e28bigalbexley]

Just go for the jugguler I think everyone else is:D

 

Ohh yes without a doubt and thanks to the £700odd in charges that i reclaimed i got all my statements so it wont be hard adding up all the ppi charges, and of course the agreement must be void or Cap ! are in serious trouble charging all those premiums without authorisation (looking through average is £20 a month) (can i claim for all 7 years and 1 month)

Oh Nuts i will anyway:D

Al:) Happy days

[un1boy]

Stop Press,

 

Had a phone call from a researcher on Watchdog and I mentioned Section 85 to her. She didn't know about it. they are doing a piece on bank charges and successful claims, so I mentioned my second bite and the six year bit, meaning you have six years in which to make your claim, not only six years worth yadaa yadda yadda and then threw in the Section 85 on credit cards. I am not missing an opportunity to open the flood gates and the PPI mis-selling and fine is going to make the banks sit back and seriously rethink about people power. She asked me why i didn't use my reclaim to pay off the overdraft and I told her that the overdraft would not have been there if it hadn't been for the charges and as I am going for the second bite of the cherry with contractual interest compounding, it will be a win win situation for us and the overfraft will be wiped out. She was interested in A & L's retaliation on the account closure also, especially as we had started the second action and threatening to default us. let's see how A & L react to this. I didn't mention the attitude of A & L personal Finance and their Loan Life Insurance Cover and refusing to cancel it, knowing that Kent has cancer and the insurance is worthless to us. Then again the FSA and FOS should take care of that little problem for us.

 

 

I got the call too and sent off the docs......the trouble is the bank who threatened to close my accounts have withdrwan the notice now, lol....but i mentioned sec 77-79 and sec 85 too.

 

Will see what she says

[Guest The Terminator]

Hi

 

I have been folowing this thread with much interest especially as my favourite people are involved MBNA! Some help would be appreciated as to my next move! I apologise in advance for the long post.

 

MBNA have not been in contact with me since late October when they settled my claim in full (including contractual interest)by means of a cheque direct to myself. There does however remain a balance with them of around £3k. However, before the claim was settled and whilst the account was in dispute they sold the debt to Arrow (who now claim they have sold it back). When i became aware of the sale early Oct i sent the following letter to which i have never recieved a response.

 

 

I have not chased this up for a number of personal matters but i now need to address this matter and bring about closure to some extent. I have not recieved a response to my Stautory 10 request or a copy of my credit agreement and to be honest i dont think there is one! Do you think I should now send a LBA of my intention to take matters further or should i just let things be?

 

Thanks in advance

 

Emma

 

I actually hate MBUSA and everyone who post's to the thread know it.I would advise yourself and anyone else to take them to the cleaners because that's what I intend to do.They are the most malicious bunch of s--t Ive ever had the pleasure to deal with.If they think that the S85 issue will be the end of it they can dream on because I haven't started yet.I doubt if they have a copy of the agreement because I can't remember signing one.