Cap1 & CCA return

[Mike220359]

85 is still there but that darn SI/1557 from 1983 means they dont have to send a signed copy with a new card so basically if they send their terms and conditions with it then they are acting within the act.

 

No they have to send a copy of the excuted agreement, the terms and conditions are not enough, it cannot be the terms and conditions applicable on 29.11.06. It must be the terms and conditions that applied when the account was issued, this is the baseline for all other alterations for the terms and conditions that apply later, because the right to alter T & Cs later in the contract are established by the first executed agreement.

 

I realise that the copy agreements cited in the 1983 SI say that signature boxes and signatures and even dates can be missing, but all mass produced paperwork has issue dates, as had the T & Cs recently issued to me under a section 85 by Lloyds TSB that they try to fob me off with. The trouble is in the bottom left hand corner it had an issue date of June 2006.

 

Sorry Mr Humphrey, not a copy of the executed agreement and so your bosses are in default.

 

Monumment, in default since 2002, Royal Bank of Scotland deafulted in 2000. If it were that easy for them to squirm out of it don't you think that they would. As RBS said, 'we are unable to supply you with a copy of the executed agreement or terms and conditions applicable at the time the agreement was signed.' Then there is the section 61 issue, I know for a fact that Citibank, RBS and lloyds agreements had only one signature box, let them proove otherwise.

 

Mike

[Guest The Terminator]

No they have to send a copy of the excuted agreement, the terms and conditions are not enough, it cannot be the terms and conditions applicable on 29.11.06. It must be the terms and conditions that applied when the account was issued, this is the baseline for all other alterations for the terms and conditions that apply later, because the right to alter T & Cs later in the contract are established by the first executed agreement.

 

I realise that the copy agreements cited in the 1983 SI say that signature boxes and signatures and even dates can be missing, but all mass produced paperwork has issue dates, as had the T & Cs recently issued to me under a section 85 by Lloyds TSB that they try to fob me off with. The trouble is in the bottom left hand corner it had an issue date of June 2006.

 

Sorry Mr Humphrey, not a copy of the executed agreement and so your bosses are in default.

 

Monumment, in default since 2002, Royal Bank of Scotland deafulted in 2000. If it were that easy for them to squirm out of it don't you think that they would. As RBS said, 'we are unable to supply you with a copy of the executed agreement or terms and conditions applicable at the time the agreement was signed.' Then there is the section 61 issue, I know for a fact that Citibank, RBS and lloyds agreements had only one signature box, let them proove otherwise.

 

Mike

 

Agreed the SI are only amendments or extra clauses to the law and should not be construed as being the law as when it was passed by Parliment.I have been informed that when a law is passed it is stature any amendments to the law in the way of Statutory Instruments or regulations do not have the power to over ride stature.As S85 has not been repealed in either the 1974 or the 2006 Act then is is still as it says.One suggestion when quoting any act it is always prudent to put as amended in brackets.

[meagain]

No they have to send a copy of the excuted agreement, the terms and conditions are not enough, it cannot be the terms and conditions applicable on 29.11.06. It must be the terms and conditions that applied when the account was issued, this is the baseline for all other alterations for the terms and conditions that apply later, because the right to alter T & Cs later in the contract are established by the first executed agreement.

 

If you want to use that as a defence in court, good luck.

[Guest The Terminator]

If you want to use that as a defence in court, good luck.

 

That is a solid defence what Mike has posted.Even if a case went to the COA there is no way that it can be opposed because it states very clearly in plain English.

[JULI99]

Could anyone clarify something for me.

 

If after 2 1/2 months credit card company actually come up with the credit agreement do I resume paying them and do my prelim letter for charges or because they went over the time limit do they have to do anything to get the account back on track.

 

juli99

[un1boy]

Could anyone clarify something for me.

 

If after 2 1/2 months credit card company actually come up with the credit agreement do I resume paying them and do my prelim letter for charges or because they went over the time limit do they have to do anything to get the account back on track.

 

juli99

 

Hi there, from my knowleged if this is in response to a CCA request you have sent them you can still wothold payment and they must now take you to court in order to it enforced.

 

You could wirte back to them to this effect if you like, because they are not allowed to charge you interest or make a profit on it now until it is enforced. only my understanding though - I'm sure someone will correct me if I'm wrong?

[JULI99]

Thanks for that. They do not charge me interest at the moment. They gave up on that a while ago. Think I will just let them come to me. Its all gone surprisingly quiet lately. No one rings me anymore.

 

juli99

[meagain]

That is a solid defence what Mike has posted.Even if a case went to the COA there is no way that it can be opposed because it states very clearly in plain English.

 

You want to put that to the test? Can't speak for anyone else, but here's how I see it panning out:

 

1. Debtor stops paying, stating creditor is in default of S85

2. Creditor takes debtor to county court

3. Debtor defends on the above basis

4. Judge decides that debtor is taking the p*ss and issues judgement against them.

 

Failing to fulfill a S78 request, and then failing to establish that the contract exists is one thing, but this is entirely another. You've already been proved wrong on the 1983 regulations. Don't now start spreading misinformation about this until it has been tested in court.

[meagain]

Thanks for that. They do not charge me interest at the moment. They gave up on that a while ago. Think I will just let them come to me. Its all gone surprisingly quiet lately. No one rings me anymore.

 

If that is indeed 2.5 months after a S78 request, they are no longer in default, but have committed an offence. As un1boy correctly points out, they would have to go to court to seek permission from a judge to enforce the agreement - in so doing admitting to the offence.

 

You might be able to get them to remove any record from your credit records too, since if they aren't able to enforce the debt, it might as well not exist, so your credit records are inaccurate (at least, that's how it should be - no guarantees that this will work)

[un1boy]

No one rings me anymore.

 

I'm not surprised. you have a legal right to wihthold payment now; if they do call, tell them to correspond with you by letter!

[Mike220359]

Hi there, from my knowleged if this is in response to a CCA request you have sent them you can still wothold payment and they must now take you to court in order to it enforced.

 

You could wirte back to them to this effect if you like, because they are not allowed to charge you interest or make a profit on it now until it is enforced. only my understanding though - I'm sure someone will correct me if I'm wrong?

 

In addition the bank will still have committed a criminal offence since they hadn't provided the notice in the prescribed period. They would be in a catch 22 situation, wher they (i'm sure) would be more than happy to come to an arrangment.

 

Mike

[Mike220359]

You want to put that to the test? Can't speak for anyone else, but here's how I see it panning out:

 

1. Debtor stops paying, stating creditor is in default of S85

2. Creditor takes debtor to county court

3. Debtor defends on the above basis

4. Judge decides that debtor is taking the p*ss and issues judgement against them.

 

Failing to fulfill a S78 request, and then failing to establish that the contract exists is one thing, but this is entirely another. You've already been proved wrong on the 1983 regulations. Don't now start spreading misinformation about this until it has been tested in court.

 

You can take peoples thoughts as valid or not, in my case I don't care whther you personally do or not, but DON'T EVER ACCUSE ME OR ANY OTHER CORRESPONDANT ON THIS SITE AS SPREADING MISINFORMATION.

 

How rude can you get.

 

Mike

[Guest The Terminator]

You want to put that to the test? Can't speak for anyone else, but here's how I see it panning out:

 

1. Debtor stops paying, stating creditor is in default of S85

2. Creditor takes debtor to county court

3. Debtor defends on the above basis

4. Judge decides that debtor is taking the p*ss and issues judgement against them.

 

Failing to fulfill a S78 request, and then failing to establish that the contract exists is one thing, but this is entirely another. You've already been proved wrong on the 1983 regulations. Don't now start spreading misinformation about this until it has been tested in court.

 

Meagain: Don't accuse me or any other poster of posting false information you are totally out of order.It seems your post's are full of negative comments and what I do on here is throughlly researched.Your best bet is to stuff the 1983 Regs [edited] because they have been superseeded by the 2004 regs

[meagain]

You can take peoples thoughts as valid or not, in my case I don't care whther you personally do or not, but DON'T EVER ACCUSE ME OR ANY OTHER CORRESPONDANT ON THIS SITE AS SPREADING MISINFORMATION.

 

I'm not accusing. I'm making a statement of fact. This information is entirely untested, and you run the risk of people relying on it.

 

The two of you have already been proved wrong at least once already in this thread. Don't push your luck a second time. Like I said, if you want to tell people this, test it on your own case first.

[Guest The Terminator]

I'm not accusing. I'm making a statement of fact. This information is entirely untested, and you run the risk of people relying on it.

 

The two of you have already been proved wrong at least once already in this thread. Don't push your luck a second time. Like I said, if you want to tell people this, test it on your own case first.

 

Where!!

[meagain]

That whole thing about S77/78 requests not being covered by R3 of the 1983 regs, when we've had the DTI confirm that actually they are? You're welcome.

[Guest The Terminator]

That whole thing about S77/78 requests not being covered by R3 of the 1983 regs, when we've had the DTI confirm that actually they are? You're welcome.

 

Hate to prove you wrong but I have never posted anything about S77/78 requests.

[meagain]

Out of interest, when you mentioned the "2004 regs" were you referring to SI 2004:1481? (There were quite a few "Consumer Credit (X) Regulations" that year) You'll find that it doesn't amend the bits of the 1983 regs that put responses to S77/78, as well as S85, well within its purview. Maybe, just maybe, it's possible that the banks are in default if they don't send you copies of the original T+C (complete with any other relevant bits) along with the current ones when you get your new card. The bank's explanation would be along the lines that they don't include the original terms as it might be confusing to the cardholder - which in itself is an entirely reasonable statement. I can't see a judge saying this is not reasonable, and that they have not in this respect adhered to the spirit of the law - I just cannot see it happening. S85 clearly exists to ensure that the debtor is made aware of the terms of the agreement - the more unscrupulous lenders I'm sure would all too happily send you a new card and sting you later given the opportunity to do so. In the absence of specific evidence which suggests the intention of S85 is anything other than to protect us by imposing a duty on the creditor to keep the debtor informed about their obligations, that is the only way I can possibly interpret it.

 

For that reason, we should, until you've found yourself some case law, or gone to court yourself, err on the side of caution. Without something a little stronger, I can't see a judge taking your side on that basis.

[MARTIN3030]

Ok Guys nothing wrong with constructive diaogue.....but this appears to be getting personal or is certainly heading in that direction.

Just calm things down a little.

[tamadus]

Just to expand the discussion a little further, and this is purely theory until I can get it verified. Terminator briefly outlined this to me and posted about it recently and I must admit I hadn't even considered it.

 

Any Act of Parliament passes into statute and become law. In theory nothing can change that statute as it's written unless an ammendment is also passed into statute or the act is repealed.

 

The 1882 Statutory instrument, although allowed for in the CCA has never been passed into statute, so in theory cannot ammend the original act. An SI is only really something put in place as a recommendation by the secretary of state and shouldn't be able to overule or overide the original act.

 

Now this is where we need advice from a constitutional lawyer. The argument that the 1983 SI means that a 'true copy' doesn't need signatures and dates is in theory false as the SI cannot overide the original act and any copy under sections 77/78 or 85 are specifically called 'true copies' in the original 1974 Act of Parliament. To be a 'true copy' it must carry the signatures and dates.

 

So my question to anyone who knows more about constitutional law then myself is can or does the SI of 1983 overide the original act?

[Guest The Terminator]

Statutory Instrument Practice

 

Statutory Instruments (SIs) are the commonest form of subordinate legislation (also known as secondary or delegated legislation). They are made by or under powers conferred by or under statute on Her Majesty in Council or on a Minister, the National Assembly for Wales or other body or person, and provide the detailed regulations which implement Acts of Parliament. As such they must always be intra vires, that is, they must be within the scope of the enabling power in the parent Act.

[andrew1]

Statutory Instrument Practice

 

Statutory Instruments (SIs) are the commonest form of subordinate legislation (also known as secondary or delegated legislation). They are made by or under powers conferred by or under statute on Her Majesty in Council or on a Minister, the National Assembly for Wales or other body or person, and provide the detailed regulations which implement Acts of Parliament. As such they must always be intra vires, that is, they must be within the scope of the enabling power in the parent Act.

 

Which in laymans terms relative to meagain's post means............?

[meagain]

It would appear that if the Act allows SIs to modify it, they're valid. If the Act does not allow SIs to modify it, it might mean that and any all SIs, including those designed to strengthen the original protections, would be pretty much null and void.

 

Of course, this presents a problem, because if the matter comes up in the County Court, and the SIs do happen to be ultra vires, then your case might end up in a higher court. After all, a judge's word is only binding upon subordinate courts, and County Courts don't have any. A lot would depend on whether to judge decides that you have been seriously wronged, or are chancer trying to dodge a debt.

 

Given that the vast majority of legislation passed (by a factor of about 200) are SIs, I would imagine that things are somewhat flexible in this area. Remember, some of the provisions of UTCCR are more restrictive than UCTA, meaning that if this overlap and modification were not possible, a good proportion of our cases might not stand up to scrutiny.

 

I'll see if I can tap up some law students who might have some knowledgeable contacts. Of course, no guarantees there. Someone qualified in law or working in the sector doesn't necessarily mean that they actually know anything about the law.

[ecobabe]

are you talking about the credit card issue here? cos i thought it had already been established that an agreement is completely unenforceable without copy of original signed agreement as per House of Lords, Wilson v First County Trust Ltd

[Guest The Terminator]

are you talking about the credit card issue here? cos i thought it had already been established that an agreement is completely unenforceable without copy of original signed agreement as per House of Lords, Wilson v First County Trust Ltd

 

This is what we are trying to establish doe's an SI overide the parent act. I personally don't think it can. As such they must always be intra vires, that is, they must be within the scope of the enabling power in the parent Act. I think the part underlined gives the answer.