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An interesting point B3rty

 

If you have been asked to cut your cards in half and return them but do not, where is the proof that the cards are actually signed. Especially if replacement chip & pin cards have been issued, I wonder how many of those are used unsigned?

 

This does not take away your point regarding using the credit token though.

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They keep cut up and returned cards to prove they were signed? :eek:

 

Not according to my SAR replies ;)

Always happy to help where I can!

:lol:

Beware of legal advice given on a private forum - do you REALLY know who is posting? Are they REALLY accountable for their posts? What if you follow their advice and get something wrong?

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Advice and comments posted by car2403 are offered purely without prejudice. They reflect only my personal opinion and do not represent the opinion of this forum or it's management. You should always seek legal advice from a qualified legal advisor. As a member of the site team, I disable reputation - reputation points mean nothing, please check my posting credentials yourself and make an informed decision. You shouldn't PM me and await a reply - I may be too late with a response. No replies will be given in Private Messages - just as with getting advice from the forum, getting advice via Private Messages is dangerous. CAG is about sharing successes so others can follow your example, this is primarily why I'm here, so please don't be offended if I don't offer replies in PM that doesn't comply with this. Help CAG to help others by keeping your thread up to date.

 

 

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The APR in fixed sum credit has a tolerance of plus 1 and minus .1 of the correct APR. If the APR was to breach the tolerance would the agreement be unenforceable as per s 127(3) or would the court have discretion.?

An appeaser is one who feeds a crocodile, hoping it will eat him last. <br />

Winston Churchill

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It is interesting. I have this fight coming with AMEX, soon, as well. They reckon I signed the cards and that ties me to their agreement. I reckon I've always used chip and pin and have never seen their agreement, never mind signed it, nor have I ever signed the card.

Always happy to help where I can!

:lol:

Beware of legal advice given on a private forum - do you REALLY know who is posting? Are they REALLY accountable for their posts? What if you follow their advice and get something wrong?

It was Winston Churchill who said; "Democracy is the worst way to run a country except for all the others"

 

Advice and comments posted by car2403 are offered purely without prejudice. They reflect only my personal opinion and do not represent the opinion of this forum or it's management. You should always seek legal advice from a qualified legal advisor. As a member of the site team, I disable reputation - reputation points mean nothing, please check my posting credentials yourself and make an informed decision. You shouldn't PM me and await a reply - I may be too late with a response. No replies will be given in Private Messages - just as with getting advice from the forum, getting advice via Private Messages is dangerous. CAG is about sharing successes so others can follow your example, this is primarily why I'm here, so please don't be offended if I don't offer replies in PM that doesn't comply with this. Help CAG to help others by keeping your thread up to date.

 

 

USEFUL LINKS; New User Guide to CAG | Can't find what you're looking for? | Intro to Consumer Credit Litigation | Is My Agreement Enforceable | Default (Surleybonds) Template Letter | Defaults - background, removal methods, challenges and taking a claim to Court | Digital Signature Guide | Overdrafts and the CCA

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Now that changes things again car.

 

If they are claiming that you signed the cards, the only proof they would have is if you cut them in half and returned them. You do not think they keep them according to your previous post. But that argument might be a standard assumption by Amex, even if you don't return the cards.

 

However, I do not see how signing or using the cards can have any bearing on a case. I accept that it could be proof that you have had the benefit of goods bought with the cards, but I do not see how it can validate an otherwise unenforceable agreement which does not comply with regulations. In the same way that the 6 years statements and payments etc proves the debt, which is an argument that has been dismissed on here many times. We do not dispute or agree the debt, this is a matter of law and the agreement is not enforceable due to etc. The signature box must be in the agreement not in a bit of plastic which arrives in the post a couple of weeks or a couple of years afterwards.

 

The way I see it is that they sent you a plastic card to go out and buy goods or services with. They asked to apply for one, you did, so they sent it. If you also asked for a card for another family member they would send an additional card. If they then demanded payment in full they would demand it from you. If you pointed out that most of the debt was from the second cardholder they would claim that because they did not have an enforceable agreement with the second cardholder, only with you, you were responsible. If they also do not have an enforceable agreement with you we are back to the situation where it must therefore have been a gift.

 

They like to try and prove the debt when in fact the courts are there to uphold the law.

 

Pedross

Edited by pedross
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Agreed.

 

The issue is when you get a numpty Judge who looks at the moral issues and uses his prejudice to promote those over the legal issues.

 

If only all Judges thought the same way as us :rolleyes:

Always happy to help where I can!

:lol:

Beware of legal advice given on a private forum - do you REALLY know who is posting? Are they REALLY accountable for their posts? What if you follow their advice and get something wrong?

It was Winston Churchill who said; "Democracy is the worst way to run a country except for all the others"

 

Advice and comments posted by car2403 are offered purely without prejudice. They reflect only my personal opinion and do not represent the opinion of this forum or it's management. You should always seek legal advice from a qualified legal advisor. As a member of the site team, I disable reputation - reputation points mean nothing, please check my posting credentials yourself and make an informed decision. You shouldn't PM me and await a reply - I may be too late with a response. No replies will be given in Private Messages - just as with getting advice from the forum, getting advice via Private Messages is dangerous. CAG is about sharing successes so others can follow your example, this is primarily why I'm here, so please don't be offended if I don't offer replies in PM that doesn't comply with this. Help CAG to help others by keeping your thread up to date.

 

 

USEFUL LINKS; New User Guide to CAG | Can't find what you're looking for? | Intro to Consumer Credit Litigation | Is My Agreement Enforceable | Default (Surleybonds) Template Letter | Defaults - background, removal methods, challenges and taking a claim to Court | Digital Signature Guide | Overdrafts and the CCA

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Agreed.

 

The issue is when you get a numpty Judge who looks at the moral issues and uses his prejudice to promote those over the legal issues.

 

If only all Judges thought the same way as us :rolleyes:

 

But surely this comes down to The Law and:

 

 

Also may I draw your attention to Francis Benion

Consumer Credit Act 1974 s 127(3)

“As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on

Wilson v First County Trust

Ltd [2003] UKHL 40, [2003] 4 All ER 97.

 

Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn’t be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I’m glad the House of Lords has now vindicated my reasoning and confirmed that nobody’s human rights were infringed.”

 

They can and do squirm as much as they can.

Vint

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Would the bennion quote have any sway in court if they are leaning towards a moral judgement, as I always think it's a pretty good moral argument in itself?

Time flies like an arrow...

Fruit flies like a banana.

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But surely this comes down to The Law and:

 

 

Also may I draw your attention to Francis Benion

 

Consumer Credit Act 1974 s 127(3)

“As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawsonfor his interesting and well-argued article (30 August 2003) on

Wilson v First County Trust

Ltd [2003] UKHL 40, [2003] 4 All ER 97.

 

Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn’t be bothered to ensure that all the prescribed particulars were accurately included inthe credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I’m glad the House of Lords has now vindicated my reasoning and confirmedthat nobody’s human rights were infringed.”

 

They can and do squirm as much as they can.

 

Vint

 

Again, I can't argue against it, but with the volume of claims I see having to go to appeal on these forums, all I can do is hang my head in utter shame with regards these Judges the flaunt their position by applying personal prejudices to legal situations. I've even been on the receiving side of numpty decisions and it's very easy to give up the fight and roll over and die - especially with a huge costs bill if things don't go your way in any appeal. Most wouldn't even get that fair. It's a complete travesty.

 

Would the bennion quote have any sway in court if they are leaning towards a moral judgement, as I always think it's a pretty good moral argument in itself?

 

Not really, as it isn't binding precedent.

 

But, then, even when you do use binding precedent, (there's plenty around!) it can still be ignored and incorrect Judgment applied, so you're back to having the balls and ability to fight back by appealing.

Always happy to help where I can!

:lol:

Beware of legal advice given on a private forum - do you REALLY know who is posting? Are they REALLY accountable for their posts? What if you follow their advice and get something wrong?

It was Winston Churchill who said; "Democracy is the worst way to run a country except for all the others"

 

Advice and comments posted by car2403 are offered purely without prejudice. They reflect only my personal opinion and do not represent the opinion of this forum or it's management. You should always seek legal advice from a qualified legal advisor. As a member of the site team, I disable reputation - reputation points mean nothing, please check my posting credentials yourself and make an informed decision. You shouldn't PM me and await a reply - I may be too late with a response. No replies will be given in Private Messages - just as with getting advice from the forum, getting advice via Private Messages is dangerous. CAG is about sharing successes so others can follow your example, this is primarily why I'm here, so please don't be offended if I don't offer replies in PM that doesn't comply with this. Help CAG to help others by keeping your thread up to date.

 

 

USEFUL LINKS; New User Guide to CAG | Can't find what you're looking for? | Intro to Consumer Credit Litigation | Is My Agreement Enforceable | Default (Surleybonds) Template Letter | Defaults - background, removal methods, challenges and taking a claim to Court | Digital Signature Guide | Overdrafts and the CCA

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Again, I can't argue against it, but with the volume of claims I see having to go to appeal on these forums, all I can do is hang my head in utter shame with regards these Judges the flaunt their position by applying personal prejudices to legal situations. I've even been on the receiving side of numpty decisions and it's very easy to give up the fight and roll over and die - especially with a huge costs bill if things don't go your way in any appeal. Most wouldn't even get that fair. It's a complete travesty.

 

 

 

Not really, as it isn't binding precedent.

 

But, then, even when you do use binding precedent, (there's plenty around!) it can still be ignored and incorrect Judgment applied, so you're back to having the balls and ability to fight back by appealing.

 

In an ideal world it would be nice to be able to say that car is wrong, but unfortunately (for us the LIP's) everything he is saying is absolutely spot on. I know this from first hand experience.

 

Magda

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Oh well, although I know it's not case law or anything, I just wondered if you could counter any possible moral argument that the judge may apply with Bennions moral argument that creditors should give the consumer a fair deal if they expect to keep a contract going.

 

Bit of a bummer that the ethics only appear to work one way...:rolleyes:

Time flies like an arrow...

Fruit flies like a banana.

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The APR in fixed sum credit has a tolerance of plus 1 and minus .1 of the correct APR. If the APR was to breach the tolerance would the agreement be unenforceable as per s 127(3) or would the court have discretion.?

 

Hi PW,

 

As I read the regs. The interest rate is a prescribed term - lack or error of renders the agreement unenforcible.

 

APR is a required term with some lattitude and lack of or error renders enforcible on the order of the court.

 

The regs changed in 2005, when is your agreement?

 

Just my interpretation.

 

I understand you have some experience with s59. Wondered if you would share with me as I'm trying to get some understanding of how the courts interpret this para.

 

Cheers

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Re the section 59 question

In contract law that lies outside the CCA. The main task for the court is to decide whether a contract exists at all.

A contract when it is formed goes through three main stages ;

The invitation to treat

The offer

And the acceptance.

The competion of the contract is seen to be made on the acceptance.

A great deal of common law is wrapped around this for instance take a menu outside a restaurant for instance is that an offer is that a invitation to treat.

And when is the contract made? when you order your meal or when you sit at the table?

When the CCA 1974 formed the permissible pre-contractual procedure was written into the legislature in order to minimise the confusion.

Section 59 is there to ensure that an invitation to treat is not taken as an offer and cannot bind either party.

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Re the section 59 question

In contract law that lies outside the CCA. The main task for the court is to decide whether a contract exists at all.

A contract when it is formed goes through three main stages ;

The invitation to treat

The offer

And the acceptance.

The competion of the contract is seen to be made on the acceptance.

A great deal of common law is wrapped around this for instance take a menu outside a restaurant for instance is that an offer is that a invitation to treat.

And when is the contract made? when you order your meal or when you sit at the table?

When the CCA 1974 formed the permissible pre-contractual procedure was written into the legislature in order to minimise the confusion.

Section 59 is there to ensure that an invitation to treat is not taken as an offer and cannot bind either party.

 

Thanks samanthasquig,

 

What defines acceptance and is there any case law? I'm particularly looking for failed cases where an agreement (acceptance) is declared not so.

 

I believe that an application, which is clearly so based upon its content, is pre-contractual. To use your reference, I see this as an invitation to treat.

 

I can see this is a significant grey area but would like to use such an arguement to declare an application unenforcible on the basis of it failing to fulfil some basic criteria for an agreement.

 

Appreciate your thoughts

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So, am I right in thinking that this section:

 

56. Antecedent negotiations.

— (1) In this Act “antecedent negotiations ” means any negotiations with the debtor or hirer— (a)

conducted by the creditor or owner in relation to the making of any regulated agreement, or

 

(b)

conducted by a credit-broker in relation to goods sold or proposed to be sold by the credit-broker to the creditor before forming the subject-matter of a debtor-creditor-supplier agreement within section 12(a), or

 

©

conducted by the supplier in relation to a transaction financed or proposed to be financed by a debtor-creditor-supplier agreement within section 12(b) or ©,

 

 

and “negotiator ” means the person by whom negotiations are so conducted with the debtor or hirer.

(2) Negotiations with the debtor in a case falling within subsection (1)(b) or © shall be deemed to be conducted by the negotiator in the capacity of agent of the creditor as well as in his actual capacity.

(3) An agreement is void if, and to the extent that, it purports in relation to an actual or prospective regulated agreement— (a)

to provide that a person acting as, or on behalf of, a negotiator is to be treated as the agent of the debtor or hirer, or

 

(b)

to relieve a person from liability for acts or omissions of any person acting as, or on behalf of, a negotiator.

 

 

(4) For the purposes of this Act, antecedent negotiations shall be taken to begin when the negotiator and the debtor or hirer first enter into communication (including communication by advertisement), and to include any representations made by the negotiator to the debtor or hirer and any other dealings between them.

Coupled with s59 is a death knell to any application purporting to be an agreement?

 

Thanks

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Hello

 

My issue is slightly different being to do with Fraudulent Credit Agreements and defaults I have found in my name which now sit with Aktiv Capital.

 

I requested the original CCA from Aktiv Capital on these fraudulent defaulted accounts two months ago. I received a letter today from AK saying they have received the details of the credit agreements but have asked me to forward them identity documents in order to investigate my claim of fraud. They also have requested I send them an identity document with my signature on it.

 

I am more than a little sceptical of doing this having read about the horrific practises of these companies.

 

I had thought that they were legally obliged to provide me with the documents I have requested rather than ask me for identity documents without substantiating why they need them?

Any thoughts ?

Thank you to anyone with any advice.

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They don't need id for the CCA, they are being obstructive at best, and at worst are sitting by the letterbox with scissors and glue waiting for your sig (paranoid, me??):D

 

I don't know about your fraud claim, but if you want to get it done and dusted nice and quickly rather than having a letter argument, give them your signature, but print it over a patterned multi-coloured background. You can also send it back through the printer once you've done that and add crosses over the top of it. They'll be bl**dy lucky to lift that, and they can't complain that you haven't sent them id!

Time flies like an arrow...

Fruit flies like a banana.

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I'm sure this has been asked a thousand times, but can someone tell me exactly where the line was drawn on Agreements falling under the '74 Act

 

I need to know if challenging an agreement's enforcability when the cut off date was for the '74 Act and what dates fall under the 2006 Act amendments.

 

Ta SC

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I'm sure this has been asked a thousand times, but can someone tell me exactly where the line was drawn on Agreements falling under the '74 Act

 

I need to know if challenging an agreement's enforcability when the cut off date was for the '74 Act and what dates fall under the 2006 Act amendments.

 

Ta SC

 

If you're talking about removal of the effect of s.127(3) CCA 1974, the cut off date, asyou put it, is any agreement entered in to after 6 April 2007.

 

The 2006 Act does nothing to the effect of unenforceability, generally, other than to remove the automatic unenforceability of agreements under the combined functions of s.60/s.61, s.65 & s.127(3). Agreements can still be declared unenforceability, but they have a discretion as to whether they do or do not do so.

Edited by car2403
D'oh
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Always happy to help where I can!

:lol:

Beware of legal advice given on a private forum - do you REALLY know who is posting? Are they REALLY accountable for their posts? What if you follow their advice and get something wrong?

It was Winston Churchill who said; "Democracy is the worst way to run a country except for all the others"

 

Advice and comments posted by car2403 are offered purely without prejudice. They reflect only my personal opinion and do not represent the opinion of this forum or it's management. You should always seek legal advice from a qualified legal advisor. As a member of the site team, I disable reputation - reputation points mean nothing, please check my posting credentials yourself and make an informed decision. You shouldn't PM me and await a reply - I may be too late with a response. No replies will be given in Private Messages - just as with getting advice from the forum, getting advice via Private Messages is dangerous. CAG is about sharing successes so others can follow your example, this is primarily why I'm here, so please don't be offended if I don't offer replies in PM that doesn't comply with this. Help CAG to help others by keeping your thread up to date.

 

 

USEFUL LINKS; New User Guide to CAG | Can't find what you're looking for? | Intro to Consumer Credit Litigation | Is My Agreement Enforceable | Default (Surleybonds) Template Letter | Defaults - background, removal methods, challenges and taking a claim to Court | Digital Signature Guide | Overdrafts and the CCA

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I think they need to give you a Deed of Assignment, they are assigning it to someone else.

'rise like lions after slumber, in unvanquishable number, shake your chains to the earth like dew, which in sleep had fall'n on you, ye are many, they are few.' Percy Byshse Shelly 1819

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Just a very quick question, can credit card companies pass on the debt to a debt collector, BEFORE tjey have issued a default notice or can they pass it on when they feel like it?

 

 

If they (the DCA) are demanding payment of sums that would not have become due until a future date (early payment of the full outstanding balance) then a Default Notice would need to have been issued first. But, I wouldn't write to point out their mistake, because they will simply issue one there and then. If it then goes to court at some point, they will then have a compliant DN.

 

I think they need to give you a Deed of Assignment, they are assigning it to someone else.

 

They only need to issue a Notice of Assignment if the debt has been sold, as often the DCA is only acting on behalf of their client (the creditor) and do not actually own the debt.

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