Cap1 & CCA return

[un1boy]

Also Pam, I spoke with the OFT about my request and the fact I was sent an agreement with no prescribed terms and they ahven;t sent mee terms and consitions.

 

His exact words were: "Although we don't get involved in individual cases, we would be very interested if you could send in details about your case so that we have all available information to make sure we make the right decision when considering to renew their credit license."

[ladybird17]

so un1 - ignoring me again - what on earth have I done to deserve this?

 

please tell me WHAT IS A CIVIL OFFENCE????!!!!

[un1boy]

so un1 - ignoring me again - what on earth have I done to deserve this?

 

please tell me WHAT IS A CIVIL OFFENCE????!!!!

 

Oh God Ladybird, I am soooo sorry - I didn't see your post (and I went back to check for replies).

 

I am so sorry, I have been in a meeting all morning and I have a migrane - I just wanna go home!

 

The offences of commited as part of the CCA are civil - the police sargeant last nite said that he ahd looked through databases and books and couldn't find anything to say it was criminal.

 

I also found a section saying that your local weights and measures enforcer (Trading Standards) has to enforce offences under the Act!

[ladybird17]

Thankyou un1!!

I happily stand corrected then.

And then Dave777 is reading this correctly.

I shall go and research penalties for a civil offence. (Hanging...? Death by electrocution...? .....Punishment by the CCA witches coven....?

 

This is not the thread to be on if you have a migraine un1 - it probably caused it in the first place!

 

I could come & soothe your brow;)

[angry cat]

Dave, it is a civil offence from my research!

 

No!

 

This is a Criminal Offence.

 

However, there is nothing to stop one taking civil action against the creditor.

 

AC

[ladybird17]

I'm giving up!

[InKogneeToh]

I could come & soothe your brow;)

 

WHAT?? After stealing Perseus from Corn AND leaving tam to drink his scotch alone last night!? You wayward 'witch' you!

:lol::lol:

[ladybird17]

can't help it, Pam, it's just the way I am.

[InKogneeToh]

Hi

 

Okay, let's change the subject then - back to that other minefield known as s85! All those with headaches/hangovers look away now!

 

I have been itching to hit my CC providers with this potential 'default' under s85 but after looking at the relevant sections of the CCA, the 1983 regs and the CC documents I have in my possession again and again, I have now come to the conclusion that there is likely to be no mileage in this issue for many of us.

 

to recap - s85 states:

 

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.

 

The 1983(cancellation notices and copies of documents) regs. state in relation to this:

 

Copies of credit-token agreements where the agreement contains a power of variation

 

8. Every copy of an executed credit-token agreement given to the debtor under section 85(1) of the Act where the agreement may be varied under a power contained 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).

 

We have debated what is meant by the choice of the word comprise and have found that one definition is 'include' which would fit with our preferred interpretation of what is required under s85.

 

BUT - Every other section of these regs. that contains a description of what a copy must contain or consist of, under the various different circumstances, uses the word INCLUDE!

 

Why would section 8 then use a different word (comprise) if it actually means include?

 

So, my conclusion is that for a copy under s85 the creditor is only obliged to sent a copy of the current terms of the agreement (whether or not varied) as per s8 of the regs.

 

This actually appears to be happening in many cases, with either a separate copy of the T&Cs being sent with the new CC or the current terms being printed on the actual 'mailer'.

 

I don't see why the CCA would insist on the creditor sending a copy of the whole original agreement anyway because there is no similar requirement to periodically remind you of your agreement for any other type of credit and I think that the only reason this 'copy' is required on the renewal of credit tokens is because the terms are almost always variable.

 

So, I personally will not be going down this route unless I find that one of my CC providers has not sent the 'copy' of T&Cs at all, in which case I will test the water.

 

I have my body armour in position now and am ready for the expected onslaught - so hit me with it!!

 

Regards, Pam

 

 

 

[Cornucopia]

Thankyou un1!!

I happily stand corrected then.

And then Dave777 is reading this correctly.

I shall go and research penalties for a civil offence. (Hanging...? Death by electrocution...? .....Punishment by the CCA witches coven....?

 

This is not the thread to be on if you have a migraine un1 - it probably caused it in the first place!

 

I could come & soothe your brow

 

Oh for GOD's SAKE!!!

[m55dlc]

If the CCP hasn't signed the application form (in my MBNA case), they cannot comply with the act at all as they don't have an executed agreement to send a 'copy' of. If they sent me a copy of the agreement with my signature on it they still wouldn't comply.

[un1boy]

Thankyou un1!!

I happily stand corrected then.

And then Dave777 is reading this correctly.

I shall go and research penalties for a civil offence. (Hanging...? Death by electrocution...? .....Punishment by the CCA witches coven....?

 

It would probably be a civil penalty then, lol.....I call it all civil offence (same thing)

 

This is not the thread to be on if you have a migraine un1 - it probably caused it in the first place!

 

Tell me about it! It was the meeting I was in that caused it - 4 hours!!!

 

I'm feeling better now, had some painkillers! (I only take them when I am work....)

 

I could come & soothe your brow;)

 

Oh Ladybird, but what about Perseus and Tam?

[un1boy]

No!

 

This is a Criminal Offence.

 

However, there is nothing to stop one taking civil action against the creditor.

 

AC

 

AC, the police sargeant that I spoke with last night says it isn't - so does my dad who is also a police sargeant!

 

They both said that if it is a criminal offence then they would have to investigate it, if not then they don;t get involved!

 

Any idea what makes you think it's a criminal offence?

[un1boy]

I'm giving up!

 

What are you giving up?

[angry cat]

I think that every case is different re S85

 

This is my situation:-

http://www.consumeractiongroup.co.uk/forum/other-institutions/10900-loan-company-cannot-supply-90.html?highlight=angry+cat#post609716

 

Now an update...

Just put the phone down from TS

My local TS fair trading officer does not accept the MS attempted get out, which is because they have sent albeit very late a wrong issue dated set of T&C's under the 1983 copies of docs regs, by sending these MS suggest that they have now complied. Of course, these T&C's were sent on a generic CC mailer with no card, no credit limit, well a zero credit limit!!!

 

TS are very pleasant and helpful to me, but as I was told today they (TS) have no case law to go on, therfore, it doesn't appear that they have prosecuted on an CCA S78 offence before? I offered up the Wilson v love case but wasn't sure if that case would be valid in my particular situation.

Anyhow, TS are still investigating for me, I also stated in the nicest possible manner, that I am extremely concerned re: the MS criminal offence and that I will be putting on some pressure for TS to prosecute.

I do know that TS have been communicating with MS about the MS 1983 reg view which TS does not appear to share.

 

Lastly, TS will be getting back to me next week after further investigations.

 

Love AC

 

ps I remebered to ask as to whether the CCA S78 breach is as I was formally advised a Criminal Offence...answer yes. Futher, I also enquired as what doc. the information comes from...answer it is in the TS notes and I will be advised as to which doc. next week

[un1boy]

I think that every case is different re S85

 

This is my situation:-

http://www.consumeractiongroup.co.uk/forum/other-institutions/10900-loan-company-cannot-supply-90.html?highlight=angry+cat#post609716

 

Now an update...

Just put the phone down from TS

My local TS fair trading officer does not accept the MS attempted get out, which is because they have sent albeit very late a wrong issue dated set of T&C's under the 1983 copies of docs regs, by sending these MS suggest that they have now complied. Of course, these T&C's were sent on a generic CC mailer with no card, no credit limit, well a zero credit limit!!!

 

TS are very pleasant and helpful to me, but as I was told today they (TS) have no case law to go on, therfore, it doesn't appear that they have prosecuted on an CCA S78 offence before? I offered up the Wilson v love case but wasn't sure if that case would be valid in my particular situation.

Anyhow, TS are still investigating for me, I also stated in the nicest possible manner, that I am extremely concerned re: the MS criminal offence and that I will be putting on some pressure for TS to prosecute.

I do know that TS have been communicating with MS about the MS 1983 reg view which TS does not appear to share.

 

Lastly, TS will be getting back to me next week after further investigations.

 

Love AC

 

ps I remebered to ask as to whether the CCA S78 breach is as I was formally advised a Criminal Offence...answer yes. Futher, I also enquired as what doc. the information comes from...answer it is in the TS notes and I will be advised as to which doc. next week

 

Well AC that is great news, thank you!

 

Will you do me a favour and PM me the info they give you re it being a criminal offence as soon as you get it? That way I call my dad and the other sergeant and let them know.

 

If it is a criminal offence then the Police HAVE to investigate it......

[ladybird17]

Un1 - I'm giving up on whether it's "criminal" or "civil, what the difference is, what the penalties are etc. etc.

 

I'm giving up on S85 now Pam's put the spanner in the works:shock:

 

I'm NOT giving up alcohol or cigarettes. :shock:

 

And I wouldn't DREAM of giving up being nice to all my friends on here;)

 

And listen Corn I'm a "SARAH" - single, available, rich and happy.

(...well, ok, two out of four isn't bad)

[Cornucopia]

Un1 - I'm giving up on whether it's "criminal" or "civil, what the difference is, what the penalties are etc. etc.

 

I'm giving up on S85 now Pam's put the spanner in the works:shock:

 

I'm NOT giving up alcohol or cigarettes.

 

And I wouldn't DREAM of giving up being nice to all my friends on here;)

 

And listen Corn I'm a "SARAH" - single, available, rich and happy.

(...well, ok, two out of four isn't bad)

 

LOL! Well listen here Bird, I'm a BITCH (babe in total control of herself).

 

That would be funny if it were true!!!!

[angry cat]

My motto is...NEVER GIVE UP!!!

 

Un1 read the following link

Coventry Trading Standards Service - Business Advice - New Businesses - Clear Yourself for Take-off

 

I hope that it works

 

Love AC

[un1boy]

Un1 - I'm giving up on whether it's "criminal" or "civil, what the difference is, what the penalties are etc. etc.

 

I'm giving up on S85 now Pam's put the spanner in the works:shock:

 

I'm NOT giving up alcohol or cigarettes. :shock:

 

And I wouldn't DREAM of giving up being nice to all my friends on here;)

 

And listen Corn I'm a "SARAH" - single, available, rich and happy.

(...well, ok, two out of four isn't bad)

 

Oh I see, well you should never give up on anything hun!!

[Guest Battleaxe]

Un1 - I'm giving up on whether it's "criminal" or "civil, what the difference is, what the penalties are etc. etc.

 

I'm giving up on S85 now Pam's put the spanner in the works:shock:

 

I'm NOT giving up alcohol or cigarettes. :shock:

 

And I wouldn't DREAM of giving up being nice to all my friends on here;)

 

And listen Corn I'm a "SARAH" - single, available, rich and happy.

(...well, ok, two out of four isn't bad)

 

 

Capital One jumped up and decided they had better refund the unlawful charges once I sent the then Section 85 defaults and threatend an injunction against them. They reckoned the generic mailer was all they had to send when sending out the replacement cards. MBNA are jumpy about this too. they have gone very quiet, so I am going ahead with my action regarding Section 85 and to add insult to injury I added CI to my claim.

[Guest The Terminator]

Un1 - I'm giving up on whether it's "criminal" or "civil, what the difference is, what the penalties are etc. etc.

 

I'm giving up on S85 now Pam's put the spanner in the works:shock:

 

I'm NOT giving up alcohol or cigarettes. :shock:

 

And I wouldn't DREAM of giving up being nice to all my friends on here;)

 

And listen Corn I'm a "SARAH" - single, available, rich and happy.

(...well, ok, two out of four isn't bad)

 

LB: You are not allowed to give up as it is not in your T&C.Im single,available and happy but am I giving up you bet I aint. Them sl-gs will have to put me in a box before that happens and the chances of them doing that are nil.So have a few bottles of wine a few packs of Marlboro and get yer arse back on here.The "witches" would never forgive you if you left the coven.

 

The Terminator has spoken

[Guest The Terminator]

Hi

 

Okay, let's change the subject then - back to that other minefield known as s85! All those with headaches/hangovers look away now!

 

I have been itching to hit my CC providers with this potential 'default' under s85 but after looking at the relevant sections of the CCA, the 1983 regs and the CC documents I have in my possession again and again, I have now come to the conclusion that there is likely to be no mileage in this issue for many of us.

 

to recap - s85 states:

 

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.

 

The 1983(cancellation notices and copies of documents) regs. state in relation to this:

 

Copies of credit-token agreements where the agreement contains a power of variation

 

8. Every copy of an executed credit-token agreement given to the debtor under section 85(1) of the Act where the agreement may be varied under a power contained 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).

 

We have debated what is meant by the choice of the word comprise and have found that one definition is 'include' which would fit with our preferred interpretation of what is required under s85.

 

BUT - Every other section of these regs. that contains a description of what a copy must contain or consist of, under the various different circumstances, uses the word INCLUDE!

 

Why would section 8 then use a different word (comprise) if it actually means include?

 

So, my conclusion is that for a copy under s85 the creditor is only obliged to sent a copy of the current terms of the agreement (whether or not varied) as per s8 of the regs.

 

This actually appears to be happening in many cases, with either a separate copy of the T&Cs being sent with the new CC or the current terms being printed on the actual 'mailer'.

 

I don't see why the CCA would insist on the creditor sending a copy of the whole original agreement anyway because there is no similar requirement to periodically remind you of your agreement for any other type of credit and I think that the only reason this 'copy' is required on the renewal of credit tokens is because the terms are almost always variable.

 

So, I personally will not be going down this route unless I find that one of my CC providers has not sent the 'copy' of T&Cs at all, in which case I will test the water.

 

I have my body armour in position now and am ready for the expected onslaught - so hit me with it!!

 

Regards, Pam

 

 

 

 

The regulations do not overide stature so you can now take off the body armour.

[Guest Battleaxe]

As the Senior member of the Coven, I am not allowing Ladybird to backslide.

[Guest The Terminator]

As the Senior member of the Coven, I am not allowing Ladybird to backslide.

 

Agreed BA anyone who backslides(and you are the senior witch/member) gives you the authority to cast your spells on them that is with the exception of me because im a cyborg:D