Cap1 & CCA return

[citizenB]

A friend was advised by his solicitor to request copies of his credit agreements as follows:

 

Dear sirs

 

I authorise you to provide me with a true copy of the regulated and executed agreement I entered into with you for account no. xxxxxxxxxxxxxxx. I enclose a postal order in the sum of £2 for this.

 

Yours faithfully

 

Most creditors ignored it. Is it sufficient for my friend to put the accounts into dispute or should I advise him to re apply using a CAG template letter and a £1 postal order?

 

If he has already requested the document and sent the £2.00 ? he should write a follow up letter advising that the company is now in default of his request. That as far as he/she is concerned the account is now in dispute until such times as they comply.

 

There is no need to send any further money.

 

Where on earth did the solicitor get the £2.00 from ??

[r&b]

does he not need to mention that the request is made under s77/78 to enable it to be put in dispute?

Edited September 24, 2009 by r&b

[letitbeme]

You may have read this, but if you haven't!

 

BANK OF SCOTLAND -v- ROBERT MITCHELL

1st June 2009

APPROVED JUDGMENT

JUDGE LANGAN:

 

1. I have to deal with an issue as to costs which has arisen on the informal discontinuance of an action.

 

2. The action was commenced on 21st May 2008. The claimant bank had, in December 2003, issued a credit card to the defendant, and the claim was for £15,417.23, being the amount said to be due on the defendant's account. Judgment in default, for a total sum of £15,727.23, was obtained on 4th July 2008. The defendant subsequently applied to have the judgment set

aside. That application came before District Judge Jordan on 29th January this year and was successful. The recitals to the District Judge's order say this:

"And upon the defendant's proceedings on the basis of a breach of

Section 61(1)(a) of the Consumer Credit Act, namely that the claimant

failed to comply with the requirements to give copies of all the

documents relevant to the agreement at the time of signing, and upon

the defendant contending that notwithstanding Section 65 of the

Consumer Credit Act 1974, Section 127(3) of the Act preventing the

enforcement".

 

After those recitals it is ordered the court sets judgment aside, and it is ordered that there be, "A determination of the issue set out above". Various procedural directions then follow.

 

3. What has been listed for trial today is, "The determination of issue", referred to in the order which I have just recited.

 

4. The agreement made in relation to the defendant's credit card was a regulated agreement within the Consumer Credit Act 1974. Section 61(1)(a) of that Act provides:

 

"A regulated agreement is not properly executed unless 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 or hirer, and by or on behalf of

the creditor or owner".

 

Having regard to the date of the agreement made in this case, which was prior to amendments made to the Act which took effect from 5th April 2007, the result of non compliance with Section 61(1)(a) would be that the credit card agreement would be unenforceable against the defendant, see Consumer Credit Act 1974 Section 127(3).

 

5. This morning I was informed by Miss Gardner, counsel for the bank, that the bank was withdrawing its claim against the defendant. This announcement has been accepted by Mr Berkley QC, who appears for the defendant, as equivalent to the service of a notice of discontinuance under the Civil Procedure Rules Part 38.3. By the Civil Procedure Rules Part 38.6.1:

 

"Unless the court orders otherwise, a claimant who discontinues is

liable for the costs which a defendant against whom the claimant

discontinues incurred, on or before the date on which notice of

discontinuance was served on the defendant".

 

Miss Gardner contends that the court should, "Order otherwise", and make no order for costs as between the parties. Mr Berkley contends that the presumption in CPR 38.1.6 should operate, and further that the order for costs to be made in favour of his client should be an order for assessment on the indemnity basis.

 

6. The thrust of Miss Gardner's submission is that the issue directed by the District Judge, and on which the evidence has been focussed, is whether the bank supplied the defendant at the time of signing the application form for credit with documents which contained all the terms of the agreement between them. I shall elaborate a little further on this. It has been the defendant's case that he was supplied with nothing more than the application form which he signed. It has been the bank's case that in accordance with the usual practice of the bank the defendant would have been, and must have been, supplied with other documents, including a pack which will have contained all the terms and conditions of the agreement made between the parties. Miss Gardner goes on to say that the defendant has at the last moment taken a new and radically different point, namely that the document signed by the defendant did not contain all the prescribed terms of the agreement. I must again elaborate on this. It is common ground that the only document signed by the defendant was the application form. It is also common ground that the application form did not, on its face, set out the prescribed terms of the agreement between the parties. The point which is treated by Miss Gardner as a

new point is dealt with in paragraphs 22 and 23 of Mr Berkley's written argument, and it will, I think, be more economical if I simply quote those two paragraphs in full rather than attempt,in my own words, to expand on them:

 

"The key words in Section 61(1)(a) are the reference to a document

itself containing all the prescribed terms, and conforming to the

regulations under Section 61. This language is clear and specific, and

ensures that mere reference to terms contained in another document

will not suffice. The document must contain the prescribed terms, just

as the signed document referred to in Section 127(3), which might save

the day, must however contain the prescribed terms. The construction

contended for by the defendant is entirely consistent with the language

of Section 61(1), and is also supported by Professor Good in his

encyclopaedic work - see Good & Consumer Credit Law and Practice

volume 2, 2B 5.121, and see also the comments at 2B 5.247. There the

learned author draws a distinction between the language of paragraph

(a) contain and paragraph (b) embody. It is respectfully submitted that

the court should adopt the same reasoning in determining this issue in

favour of the defendant, irrespective of whether or not it finds that the

defendant was supplied with documents other than the credit

agreement itself".

 

7. In my judgment, the point with which I have just been dealing is not properly to be characterised as a new point on which the bank can present itself as being taken by surprise. I refer to four documents. First, on 3rd November 2008, when the defendant was acting as a litigant in person, in the request to have the default judgment set aside he said this:

 

"As the court is aware, in the absence of all the prescribed terms being

embodied, it will render a document unenforceable in court. These

terms must be contained within the agreement, and not in a separate

document headed 'Terms and Conditions', or words to that effect".

Secondly, on 18th February 2009, solicitors, who were by then acting for the defendant, sent to the solicitors acting for the bank a copy of what they called an expert report setting out the reasons why the agreement was in breach of Section 61(1)(a), and they went on:

 

"As you are aware it is our client's position that at the time he entered

into the agreement he was not provided with a copy of the terms and

conditions governing the agreement".

 

If one goes to the so called expert's report, one finds that it is in effect an opinion prepared by another firm of solicitors, and the opinion contains the following:

 

"Based on the information provided, it appears that the prescribed

terms and conditions were not included in the document signed by the

borrower. The agreement would appear to be in breach of the

regulations in that it does not contain within the signed agreement itself

all of the prescribed terms".

 

Thirdly, that point having been taken on behalf of the defendant, it was robustly rejected by the solicitors acting for the bank in their reply of 19th March 2009:

 

"Our client has sought counsel's opinion on this matter and her view is

that the agreement is compliant. We note that your client is arguing

that at the time of signing the agreement, the application for a credit

card, he was not provided with the actual terms and conditions which

were contained in a separate document to the application. Whilst our

client accepts that the application itself does not comply with the

requirements of the Consumer Credit Act 1974, and only becomes

compliant by reference to terms and conditions, there are references in

the agreement to the conditions in which it states that they are provided

in the Halifax credit card application pack".

 

Fourthly, going back in time a little, on 4th March 2009, in the defendant's witness statement made for the purpose of the trial of the issue, at the very beginning of the statement, in paragraph 3, he said this:

 

"It is my position that the agreement is not enforceable by the claimant

as it has failed to comply with its obligations under Section 61 of the

Consumer Credit Act 1974 by failing to include within the document

that I signed all the prescribed terms".

 

8. The absence of further reference to the point in the evidence is hardly surprising, since the point is one of law, on which there was no controversy as to the facts.

 

9. Miss Gardner has given no reason for the withdrawal of the action. She is in no way to be criticised for the omission. She is bound to act in accordance with her instructions, and those instructions were presumably to say no more than she has in fact said. But this does not prevent me from drawing what is in my judgment the only inference which can possibly be drawn from what has happened, which is that the bank realises that if the issue were to be

contested it would either lose on the issue or be at serious risk of losing. There may be hundreds of similar cases and the bank would plainly not wish other defaulting customers to get wind of an adverse decision on the fundamental point which is embodied in the quotation from Mr Berkley's written argument, which I have already set out.

 

10. Accordingly, I conclude, without hesitation, that there is no reason for displacing the presumption as to incidence of costs which is ordinarily applicable in a case of discontinuance. The bank will pay the defendant's costs of the claim, subject only to any existing order for costs in favour of the bank not being disturbed.

 

11. Finally, I have to consider whether the costs of the defendant should be assessed on the standard or on the indemnity basis. In my judgment the assessment should be on the indemnity basis. The only realistic view of what has happened is that the bank has surrendered on a straightforward point of law, to which it has on several occasions been alerted by the defendant or his solicitors. A large commercial enterprise which proceeds with litigation in the face of warning signs of the kind which were erected here, adopts a high risk strategy. The point in question was a simple one. There was no relevant controversy as to the evidence. To choose to abandon the claim on the very day of the hearing is doing a serious disservice to the efficient administration of justice, and comes very close to constituting an abuse of process. At the very least, the bank's conduct of the litigation falls comfortably within the range of cases in which, on the modern authorities, an assessment of costs on the indemnity basis is appropriate.

[Artie44]

If he has already requested the document and sent the £2.00 ? he should write a follow up letter advising that the company is now in default of his request. That as far as he/she is concerned the account is now in dispute until such times as they comply.

 

There is no need to send any further money.

 

Where on earth did the solicitor get the £2.00 from ??

Perhaps the solicitor was thinking of another type of request. I have the same question as r&b, doesnt the request need to specify that it is under S77/78 of the act to be properly constituted?

[car2403]

Where on earth did the solicitor get the £2.00 from ??

 

That would be correct if he had 2 accounts

[vint1954]

Andrew 1 , thank you someone else is thinking like me and has the same questions. You can not say the judge was penalising the Rankines, he is a JUDGE and has stated his interpretation of the LAW. That interpretation clearly muddy the water for credit card holders, and indeed is a point of law to which any party could rely to the detriment of a card holder. It would be great to have a technical response to my above statement and in the light of which a purposeful response to mitzi 50 application/agreements......

I think you will find that the Rankine case revolved around the fact that they took the CC company to court, stating that s127 precluded a judgement from being entered. The judge pointed out that s127 can only be used when there is an open account and as their account was closed, s127 did not apply. Had they gone to court under s142, then they may have succeeded.

 

If I have that wrong, then I am sure that someone will be able to put me right.

[pt2537]

Andrew 1 , thank you someone else is thinking like me and has the same questions. You can not say the judge was penalising the Rankines, he is a JUDGE and has stated his interpretation of the LAW. That interpretation clearly muddy the water for credit card holders, and indeed is a point of law to which any party could rely to the detriment of a card holder. It would be great to have a technical response to my above statement and in the light of which a purposeful response to mitzi 50 application/agreements......

If you read the Goode Consumer Credit Law Report you will see that the commentators say the judge made an error on an number of points, this is echoed by numerous counsel whom i have instructed over the past few months

[B3rty]

127(3) is about enforcement where as the Rankines were bringing the litigation so enforcement wasn't an issue

 

Paul where is that report you mention is it available to mere mortals or for those in the club as it were?

[pt2537]

127(3) is about enforcement where as the Rankines were bringing the litigation so enforcement wasn't an issue

 

Paul where is that report you mention is it available to mere mortals or for those in the club as it were?

i cannot post it im afraid as its in the law reports (paper) not electronic

[MilkTrayMan]

i cannot post it im afraid as its in the law reports (paper) not electronic

Perhaps scaning + posting the (paper) report via a photobucket account could be possible pt2537?

...If you don't know how to do it, I could always post a link to a Thread that explains the very simple process for you.

 

[pt2537]

ah, perhaps i should have mentioned copyright to qualify that comment, i am unable to post this on here due to copy right

[citizenB]

does he not need to mention that the request is made under s77/78 to enable it to be put in dispute?

 

Yes, I imagine so. If the original requesnt wasnt made under the CCA1974.

 

That would be correct if he had 2 accounts

 

 

This is also true

[MAGDA]

Can anyone offer any information on chargecards please? I have looked on the forum and the main one to crop up seems to be the m&s chargecard, which is actually more of a credit card in that the balance can be carried over and a minimum monthly pamyment made. The chargecard I need help with is one which was attached to my Nawest Advantage Premier Account. It looked like a normal Nwest Gold visa card, but any spending for any particular month had to be settled in full on a set date each month and couldn't be carried over. I was informed by Rory some time ago that a chargecard is a CCA regulated account, just like a Credit card, but what I want to know is should the agreement for this card be much the same as a normal credit card agreement and contain certain information (although it won't have an interest rate as the balance is settled each month) on how payments are made and when etc. I don't think Nwest have an agreement relating to this card (think we just ticked a box to say we wanted it, but nothing specifically relating to the card provided) and it was eventually offset against our o/d when we experienced difficulties with the account, which is now subject to court proceedings and the chargecard makes up a very large portion of the o/d debt.

 

Thanks for any help. Magda

[vint1954]

Can anyone offer any information on chargecards please? I have looked on the forum and the main one to crop up seems to be the m&s chargecard, which is actually more of a credit card in that the balance can be carried over and a minimum monthly pamyment made. The chargecard I need help with is one which was attached to my Nawest Advantage Premier Account. It looked like a normal Nwest Gold visa card, but any spending for any particular month had to be settled in full on a set date each month and couldn't be carried over. I was informed by Rory some time ago that a chargecard is a CCA regulated account, just like a Credit card, but what I want to know is should the agreement for this card be much the same as a normal credit card agreement and contain certain information (although it won't have an interest rate as the balance is settled each month) on how payments are made and when etc. I don't think Nwest have an agreement relating to this card (think we just ticked a box to say we wanted it, but nothing specifically relating to the card provided) and it was eventually offset against our o/d when we experienced difficulties with the account, which is now subject to court proceedings and the chargecard makes up a very large portion of the o/d debt.

 

Thanks for any help. Magda

Hi Magda,

 

Sounds like it was akin to a Diners Club card and early amex cards. That was supposed to be paid off each month, but you could pay over 2 or 3 months.

 

Found this thread.

http://www.consumeractiongroup.co.uk/forum/amex/172749-american-express-charge-card.html

 

 

http://www.consumeractiongroup.co.uk/forum/amex/203117-amex-platinum-charge-card.html

[MAGDA]

Hi Magda,

 

Sounds like it was akin to a Diners Club card and early amex cards. That was supposed to be paid off each month, but you could pay over 2 or 3 months.

 

Found this thread.

 

http://www.consumeractiongroup.co.uk/forum/amex/203117-amex-platinum-charge-card.html

 

Hi vint, many thanks, will have a look now.

 

Magda

[vint1954]

And here,

 

http://www.harpermacleod.co.uk/cms_assets/briefing/Briefing_Note-_Banking_&_Finance_0107.pdf

 

http://www.consumeractiongroup.co.uk/forum/amex/171715-amex-charge-card-agreement.html

[MAGDA]

And here,

 

http://www.consumeractiongroup.co.uk/forum/amex/171715-amex-charge-card-agreement.html

 

thanks vint - hopefully will make the whole charge card issue a bit clearer:)

 

Magda

[MAGDA]

Thanks to the above links, I now know that charge cards are not regulated by the CCA 1974 - although apparently some are partly regulated (or even completely) such as those offering a cash advance facility for example, which mine did. Guess the only way to know for sure what the situation is with Nwest charge cards is to see the actual agreement, although I don't remember filling any forms in at the time we were given the card. Have sent a cpr 18 though (so far ignored) to Nwests solicitors asking for everything relating to the chargecard as well as the actual current account, so see if anything eventually turns up. many thanks, Magda

[vint1954]

If there was a cash advance, then I would think that it is regulated. Did the cash have to be paid back at the end of the month, or over a period.

Edited September 28, 2009 by vint1954

[MAGDA]

Hi, the cash had to be paid back at the end of the month as well, so not sure what, if any, difference that makes. Have tried looking on Nwests website to see if they have anything about their charge card, but couldn't see anything much. I've been asking Nwest for over two years to provide the chargecard details, but because they offset it against the overdraft, they say they don't have anything to provide any longer. Magda

[MAGDA]

just noticed on Nwests website, they have an application for a business chargecard and it states at the top that it is "partly regulated by the CCA 1974" - so wonder if the personal banking chargecard is the same?

[enoughisenough]

Sorry for taking a deviation here since recent posts have been preoccupied with charge cards.

 

I recently posted that a previously and likely unenforceable agreement for a credit card with egg had been replaced with a loan agreement which was most likely enforceable.

 

Unlucky me most might say. I have paid most of the loan and therefore the card but I had one missed payment and they have deluged me at home at work , by email and the mobile by call, text, email, messages left with admin staff at work and so on. I am talking nearly seventy calls/emails/texts here. I have recorded two complaints pointing out s.40 AJA s.1 HA and s.127 CA and the calls have never stopped. In fact they have increased. Anyway I can deal with this aspect so no worries.

 

What I am really interested in is just how enforceable the loan agreement is. Since this paid off the card under what was probably an unenforceable agreement and since they have been plaguing me for next to nothing I'd really like to stick it to them.

 

So step wise is the following agreement enforceable? (This is for the loan). Looks to me like it is but I'd appreciate the opinion of someone who knows it is or isn't. This is not a get out of jail card. I'll carry on paying them nonetheless. If you really pee me off I'll go for and s77/s.78 on the original credit card agreement.

 

I just want to be sure of things if they start getting reallydifficult.

 

 

 

 

Edited September 27, 2009 by enoughisenough

[davefirewalker]

Firstly and not going too deeply into the the legalities of them offering a loan to pay off the credit card.

 

what date was this.......if after Apr 2007 you'll have a major problem

 

Even so....it has the prescribed terms and your ticked box (sig) so I would imagine that you would have a difficult job trying to shake this one off.

 

just my thoughts

 

Dave

[Cristal]

Apologies for intruding here - my issue is tangental to this thread but I can't find another with the specific info I need.

 

In response to my CCA request, I have been sent a copy of my application form (which lacks many of the prescribed CCA terms) for an M&S Reserve Account. Both Rockwell and Collect Direct debt collectors have given up and returned the account to M&S.

 

So, now I am corresponding with M&S directly and they maintain that a Notice of Assignment to Rockwell and Collect Direct is not necessary, as my account has not been sold but allocated to collection agents working on behalf of M&S Money.

 

Is M&S correct?

 

They've also inadvertently included details of another M&S Reserve client, which must be a breach of the DPA?

 

Again, huge apologies if this is an 'off thread' matter!

 

Cristal

[andrew1]

Apologies for intruding here - my issue is tangental to this thread but I can't find another with the specific info I need.

 

In response to my CCA request, I have been sent a copy of my application form (which lacks many of the prescribed CCA terms) for an M&S Reserve Account. Both Rockwell and Collect Direct debt collectors have given up and returned the account to M&S.

 

So, now I am corresponding with M&S directly and they maintain that a Notice of Assignment to Rockwell and Collect Direct is not necessary, as my account has not been sold but allocated to collection agents working on behalf of M&S Money.

 

Is M&S correct?

 

They've also inadvertently included details of another M&S Reserve client, which must be a breach of the DPA?

 

Again, huge apologies if this is an 'off thread' matter!

 

Cristal

 

 

If the debt was not sold, you will not require any notice of assignment as it has not been 'assigned' the agents are merely chasing as an agent.

 

As for the additional information you received about other clients I refer you to the wise man himself BF

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/222404-oh-dear-poor-debt.html

 

As for the application form, you need to inform M&S they are still in default of your CCA request using the letter from the Templates library and therefore the account will remain in dispute until it is supplied.

 

My only word of warning is that if you were to stop paying them on time this may be reflected in and may affect your Credit Files at the credit Reference Agencies which in turn could cause difficulty in obtaining credit. If M&S were to rescind on any claim for payment then you may ask a court to repair your Credit File, but it's like getting the devil to believe in religion to get the CRA's to change their files.