Cap1 & CCA return

[Guest The Terminator]

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theory nothing can change that statute as it's written unless an ammendment is also passed into statute or the act is repealed.

 

Thats correct Tam

 

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?

 

So if s78,79,85 have not been repealed or amended in any way then the SI cannot overide the original act.

[ecobabe]

I posted a couple of weeks about a book I'd found "CCA 2006" written by a QC specialising in consumer law. it covers the '74 act and all the SI etc and how the 2006 Act amends it and according to him ," the creditor may not enforce the agreement. This operates as a complete bar to enforcement & there is no power in the court to order otherwise" he refers to Wilson v First County Trust Ltd (no 2) 2002

[Guest The Terminator]

I posted a couple of weeks about a book I'd found "CCA 2006" written by a QC specialising in consumer law. it covers the '74 act and all the SI etc and how the 2006 Act amends it and according to him ," the creditor may not enforce the agreement. This operates as a complete bar to enforcement & there is no power in the court to order otherwise" he refers to Wilson v First County Trust Ltd (no 2) 2002

 

I've read all the Wilson cases including the Law lords decesion and it all comes back to the same point if a copy of the original executed agreement is not presented then the creditor can not enforce the agreement.Thanks ecobabe you have just confirmed this in your last post and it's the Wilson case that has set the presedent.

[fairclaire]

don't know how relevant my two penneth worth is to all this. I work in court pretty much five days a week. The stuff i'm dealing with is nothing to do with debts, credit etc but I do come accross alot of Statutory instruments.

 

The legislation I deal with seems to have SIs added to it on at least (and sometimes more often) a monthly basis.

 

In my experience (and that's all this is) SIs are for the most part pretty much taken as an overwrite to the original legislation. This can vary depending on who you have sitting in the chair on any given day. But in my experience SIs are taken pretty seriously.

 

The best example I can think of lately in my field is the introduction of Civil Partnerships. In the area I work in being legally married was very much the basis of many claims-that was rigid. The introduction of civil partnerships was introduced into that legislation as a SI and I can assure you it very much adhered to as a change in that legislation.

 

That particular example isn't relevent to what we're discussing here but it is an example of how SIs are interpreted in court....in my experience

[Guest The Terminator]

Thanks for the info.But when SI's are drafted into current Acts it's usually and correct me if im wrong certain sections that are amended not the whole Act

[ecobabe]

the CCA 2006 (according to QC whose book i'm referring to) has amended the enforcement section of the Act s127 of CCa 74. at the moment s127 (3&5) prevents any enforcement, without properly signed agreement, wilson etc. new 2006 Act is not retrospective but s127 has been amended; s15 in 2006 act; so that debt can be enforced easier ie don't need original signed agreement. apparently comes into force in april 2008 and as said only applies to agreements taken out after this

[Guest The Terminator]

the CCA 2006 (according to QC whose book i'm referring to) has amended the enforcement section of the Act s127 of CCa 74. at the moment s127 (3&5) prevents any enforcement, without properly signed agreement, wilson etc. new 2006 Act is not retrospective but s127 has been amended; s15 in 2006 act; so that debt can be enforced easier ie don't need original signed agreement. apparently comes into force in april 2008 and as said only applies to agreements taken out after this

 

It nows makes me think that the banks/CCC are using part of the CCA(2006) before it's come into force.

[ecobabe]

i think there's reg's that allow them to supply the agreement unsigned to comply with s77/78 requests but it is unenforceable without original agreement if it goes to court. the book is by Oxford University press, " Blackstone's Guide to CCA 2006" by Richard Mawbrey QC & Tobias Riley Smith( £35). it's pretty comprehensive and covers all CCA '74 and all SI's & reg's that apply to it. It then covers CCA 2006 and how 74 act is changed by it.

[Guest The Terminator]

i think there's reg's that allow them to supply the agreement unsigned to comply with s77/78 requests but it is unenforceable without original agreement if it goes to court. the book is by Oxford University press, " Blackstone's Guide to CCA 2006" by Richard Mawbrey QC & Tobias Riley Smith( £35). it's pretty comprehensive and covers all CCA '74 and all SI's & reg's that apply to it. It then covers CCA 2006 and how 74 act is changed by it.

 

Thanks: I'll see if I can get a copy over the weekend

[gt94sss2]

please ignore

[clint1974]

Well Both RBS & Barclaycard have complied with my requests after initially sending me just a document Barclaycard have now sent the signed agreement.

[e28bigalbexley]

Well Both RBS & Barclaycard have complied with my requests after initially sending me just a document Barclaycard have now sent the signed agreement.

 

 

Clint

was your B/C agreement legible im writing to them again to request another i can read. I can make out my signature and my bank code and the date i signed it but nothing else it just a black gungy photocopy.

 

AL

[clint1974]

yeah mines pretty clear although i think its the original application form which ahs the words regulated by the consumer credit act 1974 above it.

[Number6]

yeah mines pretty clear although i think its the original application form which ahs the words regulated by the consumer credit act 1974 above it.

 

Is it signed by both parties?

 

Does it contain ALL the terms and conditions?

 

Pete

[Guest The Terminator]

yeah mines pretty clear although i think its the original application form which ahs the words regulated by the consumer credit act 1974 above it.

 

Clint the application form cannot be construed as the original agreement.

[e28bigalbexley]

Clint the application form cannot be construed as the original agreement.

 

Oh just noticed the one they sent me is.........application form copy.

 

Letter being typed tonight in post tommorow.

 

And in that case they have committed an OFFENCE

 

Oh Dear.

 

AL;)

[FANTASY CHARGES]

Clint the application form cannot be construed as the original agreement.

Hello TERMINATOR

I got my reply to my CCA request today from RBS -- I was surprised they came up with anything as we are talkover ten years ago) my photocopy sounds possibly similar to CLINT1974 's at the top in incredible small writing it says credit agreement (note they did not send a copy of the back of the form which according to writing on the form contains the conditions of use is this relevant?)regulated by the consumer credit act 1974 (PLEASE COMPLETE ALL SECTIONS IN BLACK BALL POINT PEN IN BLOCK CAPITALS AND (TICK) WHERE APPLICABLE)......

The photocopy under another heading credit cad agreement regulated by the consumer credit act 1974 ...... mentions the interest rates

In the next section it says I apply for a Royal Bank of Scotland MASTERCARD and PIN to be issued to me ..........

---------

it mentions YOUR RIGHT TO CANCEL . once you have signed this agreement you will have for a short time a right to cancel it. Exact details of how and when you can do this will be sent to you by post by the bank.

---------

it goes on to say this is a credit agreement regulated by the consumer credit act 1974 . SIgn it only if you want to be legally bound by its terms.

There is also a space for a credit limit and someone from the bank to sign.

-----------

now for a pedantic bit i filled in only my building societies address NOT the account number NOR the sort code The sort code has been entered by RBS - so technically i have not completed all sections and they have filled in the sort code.

The form also has a checked for fraud stamp on it.

Can you please confirm whether this is an application form only thank!!

[tamadus]

As long as the application form is headed 'Credit Agreement regulated by the Consumer Credit Act 1974' and it carries the 'right to cancel box' then it is part of the agreement. If it doesnt carry these items then it is not the agreement.

 

Ideally we would like it to also have both signature boxes correctly signed and dated but they can leave those off for sec 77/78 requests.

 

Lets try and remember that they will be able to supply the correct thing in the majority of cases.

[FANTASY CHARGES]

As long as the application form is headed 'Credit Agreement regulated by the Consumer Credit Act 1974' and it carries the 'right to cancel box' then it is part of the agreement. If it doesnt carry these items then it is not the agreement.

 

Ideally we would like it to also have both signature boxes correctly signed and dated but they can leave those off for sec 77/78 requests.

 

Lets try and remember that they will be able to supply the correct thing in the majority of cases.

 

Thanks but the way i see it by definition (of a heading) the font size of any heading should be at least the same size font as the rest of the text contained below. The words Credit Agreement regulated by the Consumer Credit Act 1974 are in the smallest possible font imaginable . Moreover the next line has in capitals

(PLEASE COMPLETE ALL SECTIONS IN BLACK BALL POINT PEN IN BLOCK CAPITALS AND (TICK) WHERE APPLICABLE)

The RBS address is in the same small font.

 

So i suggest the header is not a header because on a sample of 1000 people who filled in the form a finite proportion would not be able to read the so called heading due to the reduction in size of the font on the so called heading.Consequently the RBS have gained an UNFAIR advantage by their decision to use a small font

 

I feel that there has got to have been an official ruling (court case) on what constitutes a heading .

[un1boy]

As long as the application form is headed 'Credit Agreement regulated by the Consumer Credit Act 1974' and it carries the 'right to cancel box' then it is part of the agreement. If it doesnt carry these items then it is not the agreement.

 

Ideally we would like it to also have both signature boxes correctly signed and dated but they can leave those off for sec 77/78 requests.

 

Lets try and remember that they will be able to supply the correct thing in the majority of cases.

 

Ok, so, are you saying that the T and C's do not have to be produced on the agreement as well for it to be enforcable? What about if they haven't provided default notices and a statement of account (and what constitutes a statement of account?!). Have they commited a criminal offence in this case?

 

Thanks.

[FANTASY CHARGES]

Ok, so, are you saying that the T and C's do not have to be produced on the agreement as well for it to be enforcable? What about if they haven't provided default notices and a statement of account (and what constitutes a statement of account?!). Have they commited a criminal offence in this case?

 

Thanks.

 

In my earlier post above i mentioned (note they did not send a copy of the back of the form which according to writing on the form contains the conditions of use

[they used this description over ten years ago ]

are the "conditions of use" terms the same as "terms and conditions" ...... sorry if i appear a bit thick ??

[Guest The Terminator]

In my earlier post above i mentioned (note they did not send a copy of the back of the form which according to writing on the form contains the conditions of use

[they used this description over ten years ago ]

are the "conditions of use" terms the same as "terms and conditions" ...... sorry if i appear a bit thick ??

 

What we have to look at here and I've made this point many times.What is the difference between an application form and an agreement.Its the same as you say FC what is the differnce between "conditions of use" and "terms and conditions".I do not see how an "application form" can be an executed agreement as they are two completly different things.Point being is you sign an application form and it is refused then it is not legally binding but if you are accepted then it is.Honestly the bank must think the consumer is "thick" and FC your not thick beleive me.

[Guest The Terminator]

So i suggest the header is not a header because on a sample of 1000 people who filled in the form a finite proportion would not be able to read the so called heading due to the reduction in size of the font on the so called heading.Consequently the RBS have gained an UNFAIR advantage by their decision to use a small font

 

I feel that there has got to have been an official ruling (court case) on what constitutes a heading .

 

It comes under the British Standards which I'll be looking at this afternoon

[Guest The Terminator]

Taken from Collins dictonary:

 

An agreement is a joint decesion that has been reached by two or more people.

 

An application for something is a formal request for it usually in writing.

 

I'll leave you to discuss it

[FANTASY CHARGES]

Hello TERMINATOR

I got my reply to my CCA request today from RBS -- I was surprised they came up with anything as we are talkover ten years ago) my photocopy sounds possibly similar to CLINT1974 's at the top in incredible small writing it says credit agreement (note they did not send a copy of the back of the form which according to writing on the form contains the conditions of use is this relevant?)regulated by the consumer credit act 1974 (PLEASE COMPLETE ALL SECTIONS IN BLACK BALL POINT PEN IN BLOCK CAPITALS AND (TICK) WHERE APPLICABLE)......

The photocopy under another heading credit cad agreement regulated by the consumer credit act 1974 ...... mentions the interest rates

In the next section it says I apply for a Royal Bank of Scotland MASTERCARD and PIN to be issued to me ..........

---------

it mentions YOUR RIGHT TO CANCEL . once you have signed this agreement you will have for a short time a right to cancel it. Exact details of how and when you can do this will be sent to you by post by the bank.

---------

it goes on to say this is a credit agreement regulated by the consumer credit act 1974 . SIgn it only if you want to be legally bound by its terms.

There is also a space for a credit limit and someone from the bank to sign.

-----------

now for a pedantic bit i filled in only my building societies address NOT the account number NOR the sort code The sort code has been entered by RBS - so technically i have not completed all sections and they have filled in the sort code.

The form also has a checked for fraud stamp on it.

Can you please confirm whether this is an application form only thank!!

Referring back to the copy RBS sent me on the left is pre-printed my surname First name address postcode (LAST DIGIT OF POSTCODE WRONG I corrected it) .....

the form has a box CREDIT LIMIT

Please indicate below your preferred credit limit (minimum £1000") .......

 

now i ACTUALLY filled in an amount greater than £1000 say £1600 as an example . If for example they had granted me a credit limit less than £1600 then

 

(a) Even if we assume this TO BE the agreement

(my side of the agreement is for £1600 and theirs for less than £1600 so we do not have an agreement!) and some new agreement would have to be sent to me to sign ???? so logically it can't be an agreement because my credit limit had not been "defined"

option

 

(b) if we assume this NOT to be the agreement

is that this is not the agreement because as i have said the credit limit at that time was a "variable" and not a "constant"

 

Also i reason that when this form was filled the checked for fraud check had not taken place . The form has a date stamped checked for fraud stamp on it & signed.

 

My suggestion is that the agreement should not have been entered into until after the fraud check ----- the presence of the fraud ink stamp on the form backs up the fact that this is an application form.

 

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Today i also obtained application forms for Natwest (owned by RBS) Barclaycard and Lloyds TSB.

the barclays is called initial application form

The natwest is clearly called a credit card application form

and the lloyds tsb is called a Credit Card Application Form -New customer details

In all case any header title or whatever we call it relating to the Consumer Credit Act 1974 is no longer hidden away in small size font

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