Cap1 & CCA return

[davefirewalker]

Interesting thread . . .

 

I was in court yeterday to remove negative credit entries from my credit record, on the basis that the Co-Op's CCA was a pre contractual application form and not worth tuppence.

 

The Co-Op sent a barrister to defend and their ploy was, "Please settle as 'case dismised' because if we win we will ask the judge to award costs of . . . £3150 !!!"

 

I found it incredible that they were willing to fight their corner with barristers and huge solicitors' bills, quite frankly. As I had reservations about my case anyway, I settled for 'case dismissed, no costs awarded.'

 

When we went in to speak to the judge, (basically to tell him we had settled), he implied that I had made the right decision. I think that in my case there was little chance he would order the deletion of my bad credit history with the Co-Op. On the other hand, the fact the CCA was poor and lacked prescribed terms, (on the front, anyway, ) would give me a great chance to defend any action of theirs, on grounds of unenforceability!

 

This is the thread in full:

http://www.consumeractiongroup.co.uk/forum/legalities/113964-unusual-court-case-co.html

 

I am not saying that you made the wrong decision, it is up to everyone to weigh whats going on at the time....... but if this was a small claims court, they cant add costs.....if however it was heard on a different basis then obviously you made the right choice.

 

you made the right choice in any event, in that you were happy with the outcome.

 

rgds

 

Dave

[davefirewalker]

Hi b+e

 

yeah I do realise that...what i should have said is that they dont normally award costs.....and I didnt really look far enough into your case

 

a good outcome though, no fingers burned

 

Dave

[davefirewalker]

Hi NCF

 

basically correct...but I think you will find that if they dont supply the original they can supply a new one but with all the variations of terms that have happened listed.

 

Copies of agreements or security instruments where the agreement or security instrument has been varied

 

 

7.--(1) Where an agreement has been varied in accordance with section 82(1) of the Act, every copy of the executed agreement given to a debtor, hirer or surety under any provision of the Act other than section 85(1) shall include either-

 

(a) an easily legible copy of the latest notice of variation given in accordance with section 82(1) of the Act relating to each discrete term of the agreement which has been varied; or

 

(b) an easily legible statement of the terms of the agreement as varied in accordance with section 82( 1) of the Act.

 

(2) Where a security provided in relation to a regulated agreement has been varied, every copy of the security instrument relating to it given to a debtor, hirer or surety under any provision of the Act shall include either-

 

(a) an easily legible copy of any document varying the security; or

 

(b) an easily legible statement of the terms of the security as varied.

 

 

rgds

 

Dave

[davefirewalker]

Where does one stand if the creditor decides to change the credit card number and the number shown on an application form differs to the one currently being persued.

 

Your "account" with them hasnt changed......just the card reference no. the terms you agreed to will include somewhere that "from time to time they will monitor your account and may change or restrict your card".

 

the agreement you signed will probably NOT have a card no. on it..it will be issued later.

 

its the general agreement for credit that hasnt changed

 

rgds

 

Dave

[davefirewalker]

hmmmmm this sounds worryingly like a new strategy.....

will have to think on this, I can see it happening more and more if it proves successful....

 

you will have to look at your agreement to see if they are allowed to do this

 

did they issue any default notices ?

 

if they did and the ammount included penalty charges then the default notice is void..and so might the contract...."unlawful rescission of contract" I believe.

 

need to think more on this

 

Dave

[davefirewalker]

Although the account is closed wether by fair means or foul...you can still SAR them and get a copy of the "agreement" that they hold..if it doesnt cut the mustard...then its happy days....

 

Dave

[davefirewalker]

Hi..

 

Just to put my oar in.......

 

The back of the doc notwithstanding...the agreement looks like it complies with the CCA1974.

 

it has the prescribed terms

 

Credit limit.......(we will determine it and may vary it)

repayments

interest rate and APR

 

Anything else may only make it improperly executed and enforceable by court order.....but nothing to stop it being enforced....

 

Sorry

[davefirewalker]

Hi..

 

Just to put my oar in.......

 

The back of the doc notwithstanding...the agreement looks like it complies with the CCA1974.

 

it has the prescribed terms

 

Credit limit.......(we will determine it and may vary it)

repayments

interest rate and APR

 

Anything else may only make it improperly executed and enforceable by court order.....but nothing to stop it being enforced....

 

Sorry

 

You are batting on a sticky wicket here...the agreement looks enforceable and they will continue to add charges.......

the only way forward is as you said do an SAR and reclaim the charges......or even more dangerous and not to be tried without deep thought...let them default you and go for unlawfull recission of contract and **try** to lose it that way..........very risky though

 

looks like the only real way is to claim your charges back and try to keep within their limits....(ouch that hurt, I HATE saying things like that)

 

rgds

 

Dave

[davefirewalker]

Not sure if I have mentioned this on this thread.

 

Its regarding the LV default. I called them up and they said if I pay £10 now they would hold back on the default notice as long as I send in a new budget sheet.

 

 

 

hmmmmmm........Why would they do that ???

 

it looks very suspicious, but that could be just me.....

 

I dont trust anything these people say or do.......they only have their own interests at heart (obviously)

 

be wary

 

Dave

[davefirewalker]

According to their website, its something to do with upper case letters being used where lower case is necessary!

 

Eh?

 

the guy who did this posted on my thread earlier today as a sort of advertisement.......

 

had a look at the link and it was a news report with an advert for his website in it.

 

BUT I must say that in one of my loan agreements it does say ANNUAL PERCENTAGE RATE....where the 1983 regs state it must be annual percentage rate.

 

I had mentioned this a few times but got shot down as I expected, I was clutching at straws.....but if this is so then it gives me another string to my bow....

 

dave

[davefirewalker]

I am searching too - do you know either of their names?

 

His is Basil Rankine .......I think

 

Dave

[davefirewalker]

ULTRA SHORT APPLICATION CERTIFICATE.

 

 

 

 

 

this is a consumer credit agreement.

 

Could this be the clanger?.

 

Do you mean anything like this one.........

 

Notice anything missing ??

 

creditors name

any terms?

any conditions?

anything ?

 

 

rgds

 

Dave

[davefirewalker]

OK, they have replied to my email:

 

Dear Ian

 

Thank you for your email.

 

Basil and Amanda are the leading specialists outside of the banks and their solicitors, who know the full legal reasons why credit card agreements are improperly executed and most are unenforceable and can be legally written-off. We have the only judgment in relation to credit card agreement enforceability, as no others are available in public accessible resources. The exact detail of the judgment is our most closely guarded secret and has not been published by the Royal Courts of Justice. The bank in question is not going to make the judgment public for obvious reasons.

We hope that this answers your question.

Regards

Basil & Amanda

Looking dodgier by the minute...they have a secret judgement? Yeah, OK.

 

 

Looks like they are pushing it for every penny they can get........

 

obvious "losers", but unfortunately they may get the less well advised people along, and end up making a small forune.

 

20%.....UP FRONT !!! you got to be joking, in my case that would be in the region of £2k.....where would anyone in debt get that sort of money?? Answer....borrow some more at a stupid rate. grrrrrrrrr

 

they are as bad as the banks..................muppets

 

Dave

[davefirewalker]

Hi FC

 

wow thats twice the size of mine........

 

and its got the creditors name and a sig (squigle).......why thats almost massive very nearly enforceable...if it had all the prescribed terms on it and a load of other stuff

 

Dave

[davefirewalker]

Even thats huge........

 

I'm not being sizeist here (if thats a word)..but I'm proud that Ive got a small one....(if you know what I mean)

 

I'm quite happy in ALL other departments thank you

 

Dave

[davefirewalker]

Apparently, its not the size, its knowing what to do with it that counts...

 

There speaks a man (or woman) that obviously knows what they are talking about......

 

Dave

[davefirewalker]

hang on a mo........£52k ??? I thought the limit for CCA was £25k

 

WHAT sort of charges have been put on this ???

 

Dave

[davefirewalker]

I agree, i've had a payout under sec 85. Barclaycard bottled it.

 

 

Paul

 

I'm working on it as we speak....a S.85 claim also forms part of my (large) poc

 

Dave

[davefirewalker]

Hello - read some of this THREAD- its MASSIVE!!!!!!! so does this mean rule 77 / 78 and 85 are out the window?

 

 

NO.....

 

The rules changed in apr 2007......if you signed the back of a fag packet with an agreement on it with most things missing, it would probably be enforced under the new rules

 

prior to that they had to comply in EVERY detail

 

The main "get out clause" 127 (3) has been repealed...its now upto a judge and his own personal whims

 

S77, 78, 85 still hold true, though how effective they will be we'll have to see.

 

Dave

[davefirewalker]

Can you point me to what is a s85 claim please regards Gaz

 

S.85 cca1974 is the section whereby the creditor must send you a copy of the executed agreement at each card renewal.......if they dont have the original, how can they have complied

 

Dave

[davefirewalker]

Dont know the "legal" answer, but logically if an account is defaulted, then that is that......it cant or shouldnt be re-defaulted, unless something important has changed.

 

will look into it

 

Dave

[davefirewalker]

Come on guys...we know what is happening here......

 

DONT FEED THE TROLLS

 

this will get bogged down...and while it is fun to bait them I think it detracts a little from the good work that gets done on this thread...

 

Let him post away....dont rise to it, he/she has only come on to cause trouble

 

Dave

[davefirewalker]

Those weblinks do not confirm what they oft said.......in fact they dont really say anything relevant at all

 

what a crock of s**t

 

Dave

[davefirewalker]

IMHO, to prove that they've complied with the Act, they should be able to provide a copy of the original signed and certified Default Notice - just as they should do with copy agreements.

 

If they can't, how can they prove they complied with the Act? That would leave them open to litigation.

 

But like in paul waltons case they might just "recreate" them from historical data.... ( Shouldnt be allowed, but probably is )

 

Dave

[davefirewalker]

Follow Up Letter going to send::

 

 

I am writing regarding your letter dated xxxxx 2008.

The law is very clear about a section 78(1) request under the Consumer Credit Act 1974. When a debtor requests a copy of the credit agreement, the creditor must send this information within the specific timescales and of a readable nature. This is mentioned in Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 section 2(1). If the creditor does not comply with the act of parliament, the account after twelve days is put in default and cannot be enforced in a Court of law. If after thirty more days, the Creditor is committing an offence.

Nowhere in the Consumer Credit Act 1974 does it mention that “it is not unreasonable to expect that there will be some slight deterioration to the filming”. In fact the act is very clear that a true copy must be sent on a section 78(1) request. This is a copy of the original signed agreement and not a film.

As you cannot produce me with a readable copy of the credit agreement and have admitted so in your last letter, this account will always be in default and always be unenforceable in a Court of law. Therefore I do not acknowledge any debt from your company, as there is no documented evidence to link me with the account.

If you still insist on enforcing this account, it will be reported to Trading Standards who will start criminal proceedings against Barclaycard for breaching an Act of Parliament.

Please treat this letter as an official complaint to enable me to report my findings to the FOS.

 

Nice letter....but I get a gut feeling that you are treading on VERY thin ice.....

 

the only real way of walking away from an agreement is if there is something SUBSTANTIALY wrong with it....I agree that the doc is illegible...from what i can see anyway, and that being so I cant see any of the prescribed terms...although there seems to be some sort of interest thing going on.

 

Its a 50/50 call with a judge though...just hope you dont get one like Paul Walton.

 

 

rgds

Dave