Cap1 & CCA return

[Guest The Terminator]

Let us know the reaction please Terminator. I'd love to know what else your lawyer said if you want to PM me

You will be the first to know the reaction.Basically what the lawyer said(and I work in housing litigation) is that from what he can recall their is no case law where this section of the CCA(1974) has been brought up and that the debtor has every right to issue a default notice against the CC company because overall they have not complied with the Act.He has also advised me that it would be possible to register the default and he is looking into this for me.Once I have the information I will be posting it on here.He also advised me that the banks do not like going to court because nine times out of ten they lose even going to the COA.I will provide the following link for everyone on this site.There are two other issues that I brought up and im reading from the notes I made.1) A DCA cannot issue a default notice wither they are acting for a creditor or not.The default notice must be served by the creditor as the agreement is between the creditor and the debtor not the DCA and the debtor.2) Activating a card is purely a security measure and does not allow the CC provider to get around S85 as he would still have to provide a copy of the original agreement for replacement cards.

 

British and Irish Legal Information Institute

 

In the search engine put in the name of a bank and you will see what I mean.This is case law from the COA there may be information there that will help our cause.

[tamadus]

The Act states whenever a token is issued in connection with a new credit -token agreement. When a replacement card is issued this is a new credit token but it is not in relation to a new credit-token agreement.

 

But section 85 doesn't mention new agreements, only new tokens and it specifically says a copy of the agreement should be given and thats my point.

[tamadus]

You will be the first to know the reaction.Basically what the lawyer said(and I work in housing litigation) is that from what he can recall their is no case law where this section of the CCA(1974) has been brought up and that the debtor has every right to issue a default notice against the CC company because overall they have not complied with the Act.He has also advised me that it would be possible to register the default and he is looking into this for me.Once I have the information I will be posting it on here.He also advised me that the banks do not like going to court because nine times out of ten they lose even going to the COA.I will provide the following link for everyone on this site.There are two other issues that I brought up and im reading from the notes I made.1) A DCA cannot issue a default notice wither they are acting for a creditor or not.The default notice must be served by the creditor as the agreement is between the creditor and the debtor not the DCA and the debtor.2) Activating a card is purely a security measure and does not allow the CC provider to get around S85 as he would still have to provide a copy of the original agreement for replacement cards.

 

British and Irish Legal Information Institute

 

In the search engine put in the name of a bank and you will see what I mean.This is case law from the COA there may be information there that will help our cause.

 

great news Terminator, I wait with bated breath now

[zootscoot]

But section 85 doesn't mention new agreements, only new tokens and it specifically says a copy of the agreement should be given and thats my point.

 

 

Look at the very first sentence of s.85(1)

[pcr1]

Look at the very first sentence of s.85(1)

 

It doesn't say new.

 

I originally raised this here but no-one had an answer:

http://www.consumeractiongroup.co.uk/forum/legalities/22737-all-credit-card-companies.html?highlight=all+credit+card+companies+in+default

 

I am currently researching this. I need to read a copy of Goode on Consumer Credit which one of my local libraries has. I'm going there this week and will update that thread when I know the score.

 

It may be in "copies": i.e. for s85 the copy does not have to be signed (and they usually include the Ts&Cs booklet with the card. So they may or may not be in default: watch that space above.

 

In any case, all they need to do to remove themselves from default is comply in the same way as a s77/78 request (if they have an agreement), but would of course have to refund all interest charged over the period.

[Guest The Terminator]

I've just read your threads again and S85(1) is staring the consumer right in the face.It is put in plain English and there is no doubt to it's meaning.As I said in my previous post Im going to serve a default notice on MBUSA and Humptey Dumpty.The way that I see it is nothing ventured nothing gained.Why should the CC providers be able to issue default notices and the consumer can't although it has taken 32 years for someone to come up with what is basiclly a"loophole" in the law.The T&C booklet issued with the card is not away around S85 as S85 quite specifically states "signed agreement"

[tamadus]

s85 clearly states 'a copy of the executed agreement(if one exists). That to my mind is a signed copy of the agreement, which has to be clearly marked as being a 'Credit agreement regulated by the Consumer Credit Act 1974' Having the Title 'Application form' or Terms and conditions' does NOT make it a credit agreement. An unsigned copy of the agreement cannot be binding on either party.

 

I agree pcr1 they only need to send a copy of the agreement to remove themselves from default, BUT is a retrospective copy sufficient? s85 clearly states that the act of giving the copy should occur at the same time as giving the new token so they may have to issue new cards along with a copy of the agreement to everyone affected to get out of default.

 

One other thing suddenly comes to mind. If the terms and conditions are an integral part of the credit agreement, then the agreement is unlawful to start with. We know the terms and conditions are unlawful because they include the unlawful charges, hence the agreement must also be unlawful as well.

 

I really am having a terrible time believing that every one of the credit card companies have made this same fundamental mistake.

 

I agree that as long as they are in default they can't make a profit so would have to refund any interest charged.

 

As Terminator says s85 is very clear in its wording (and for once it doesnt send us through dozens of other parts of the act to clarify it). Terminator please make sure you issue the defaults in strict accordance with the act or they will only bounce it back.

 

These companies make millions from their business and should be operating within the laws regulating the business. If they fail to do that then how can we, the consumer, ever trust them? If thus discussion closes the loophole and forces them to become accountable to the regulations then it will have achieved a miracle. If we can't trust those who routinely handle our financial lives on a daily basis then we all have a major problem.

[pcr1]

s85 clearly states 'a copy of the executed agreement(if one exists). That to my mind is a signed copy of the agreement, which has to be clearly marked as being a 'Credit agreement regulated by the Consumer Credit Act 1974' Having the Title 'Application form' or Terms and conditions' does NOT make it a credit agreement. An unsigned copy of the agreement cannot be binding on either party.

 

Absolutely. An "executed agreement" must be properly formatted and must be signed by both parties.

 

I agree pcr1 they only need to send a copy of the agreement to remove themselves from default, BUT is a retrospective copy sufficient? s85 clearly states that the act of giving the copy should occur at the same time as giving the new token so they may have to issue new cards along with a copy of the agreement to everyone affected to get out of default.

 

The default continues, according to the Act, until they provide the copy of the agreement. This will remove them from default, but whilst they were in default (from sending the new card to sending the copy of the agreement), they cannot enforce the agreement which means they can't demand payment and can't charge interest. They can't then do this retrospectively.

 

One other thing suddenly comes to mind. If the terms and conditions are an integral part of the credit agreement, then the agreement is unlawful to start with. We know the terms and conditions are unlawful because they include the unlawful charges, hence the agreement must also be unlawful as well.

 

No. Under contract law, if the contract can continue with the unfair term removed then it will. This is the case with these agreements.

 

I agree that as long as they are in default they can't make a profit so would have to refund any interest charged.

 

As above, it's because they can't enforce the agreement, so can't demand payment and can't charge interest whilst they are in default.

 

As Terminator says s85 is very clear in its wording (and for once it doesnt send us through dozens of other parts of the act to clarify it). Terminator please make sure you issue the defaults in strict accordance with the act or they will only bounce it back.

 

It will depend on any case law which the Goode document should answer. I'll report straight back when I've read it; I intend to get to the library this week as I'm away next week.

[tamadus]

(snip)

 

The default continues, according to the Act, until they provide the copy of the agreement. This will remove them from default, but whilst they were in default (from sending the new card to sending the copy of the agreement), they cannot enforce the agreement which means they can't demand payment and can't charge interest. They can't then do this retrospectively.

 

So, how about if the default started with a new card say 10 years ago? They would not be happy at having to refund that much in interest and would probably risk going to court.

 

No. Under contract law, if the contract can continue with the unfair term removed then it will. This is the case with these agreements.

 

As the credit agreement is such an important document I would have thought it would have to be re-signed agreeing to the changes. A legal agreement cannot be changed to suit the creditor without being agreed by the debtor. The signatures verify the agreement.

 

As above, it's because they can't enforce the agreement, so can't demand payment and can't charge interest whilst they are in default.

 

Agreed totally

 

It will depend on any case law which the Goode document should answer. I'll report straight back when I've read it; I intend to get to the library this week as I'm away next week.

 

I'll get a copy of this and scan through it as well.

[pcr1]

So, how about if the default started with a new card say 10 years ago? They would not be happy at having to refund that much in interest and would probably risk going to court.

 

Thaaat's the gamble!

 

As the credit agreement is such an important document I would have thought it would have to be re-signed agreeing to the changes. A legal agreement cannot be changed to suit the creditor without being agreed by the debtor. The signatures verify the agreement.

 

No, as a remedy to an unfair term, per legislation, the contract will remain in force when the court invalidates the offending terms. Only if the offending term forms such a substance to the contract that the contract cannot possibly continue without it, will the court terminate the contract.

 

It says this in UCTA and UTCCR but I don't have them to hand to quote unfortunately.

 

You're much better off going down the s77, s78 and hopefully even better the s85 route. (I say better because under s85, even if they produce an agreement, they need to refund a fair bit of interest. One of my Barclaycards started July 2003 and doesn't expire till December this year!)

 

I'll get a copy of this and scan through it as well.

 

It's reference only and not widely available, so you'll need to sit in the library to read it or copy it (which is what I'll be doing!). I'll post the ISBN/ISSN number when I look it up again, which will probably be tomorrow, if not then Thursday.

[tamadus]

Thaaat's the gamble!

 

 

 

No, as a remedy to an unfair term, per legislation, the contract will remain in force when the court invalidates the offending terms. Only if the offending term forms such a substance to the contract that the contract cannot possibly continue without it, will the court terminate the contract.

 

It says this in UCTA and UTCCR but I don't have them to hand to quote unfortunately.

 

You're much better off going down the s77, s78 and hopefully even better the s85 route. (I say better because under s85, even if they produce an agreement, they need to refund a fair bit of interest. One of my Barclaycards started July 2003 and doesn't expire till December this year!)

 

 

 

It's reference only and not widely available, so you'll need to sit in the library to read it or copy it (which is what I'll be doing!). I'll post the ISBN/ISSN number when I look it up again, which will probably be tomorrow, if not then Thursday.

 

I have already started down the s78 route with Barclaycard who have just sent me a lovely copy of the original application form from 1979 Just written back to them saying thank you very much but I asked for a copy of the signed agreement as along with everything over 2 years old you failed to supply it under my SAR.

 

The 30 days runs out on 5th October:D

 

If they do manage to surprise me then I might fall back onto the s85 argument and demand they rectify their default (which must date back to about 1980/81)and refund all that interest.

 

Another card from the early 80's also run out of time on the 5th October and they must be running around scratching their heads as they have sent me another 2 copies of data under my SAR from July

[pcr1]

I believe what we're looking for is:

"Consumer credit law and practice"

General editor: R.M. Goode

 

Dewey Decimal classification: 346.073/GOO

 

There are various volumes. Last publication date is 1999. There is also a CD-ROM version if you can get it, published 2003.

 

I'll most likely check this out on Thursday.

[Guest The Terminator]

thanks for that pcr1.I'll look on the web later to see if there is an e-book version.Had a look this afternoon to see if I could get some more info but have hit a blank at the moment.

[tamadus]

I just got back from my daughters house and mentioned it to her and she thinks she may have a copy at her office. She owns a company that does costings for legal firms so she is going to look tomorrow and let me borrow it if she has it

 

I did a quick search earlier on the net and hit a blank wall.

[tamadus]

I just had a thougt pcr. How about we get both yours and this thread merged for clarity ?

[tamadus]

I have managed to find Goode's Consumer credit law and practice for sale online but I changed my mind about buying it at £768

[Guest The Terminator]

I've come up with something which may be of interest.I went through some old papers tonight and stumbled on what could be the key that we are looking for.I've found an old letter from MBUSA which has the following. Top right hand corner replacement card.Then underneath details of activation.Underneath this credit agreement as regultated by the cca(1974) then it go's on about the terms and conditions etc.Then it says copy of agreement for you to keep and a notice about your cancellation rights.T&C continue on the back.The key is that nowhere on the letter is there a signture and it is not a copy of the original executed agreement so I am treating this as a breach of S85.I read the Act again and it is that first line.This is going back to 2000 and basically it is a cancellation form which says only send back if you wish to cancel and tooking through some of the terms very unfair.

[tamadus]

I've come up with something which may be of interest.I went through some old papers tonight and stumbled on what could be the key that we are looking for.I've found an old letter from MBUSA which has the following. Top right hand corner replacement card.Then underneath details of activation.Underneath this credit agreement as regultated by the cca(1974) then it go's on about the terms and conditions etc.Then it says copy of agreement for you to keep and a notice about your cancellation rights.T&C continue on the back.The key is that nowhere on the letter is there a signture and it is not a copy of the original executed agreement so I am treating this as a breach of S85.I read the Act again and it is that first line.This is going back to 2000 and basically it is a cancellation form which says only send back if you wish to cancel and tooking through some of the terms very unfair.

 

I am convinced the executed agreement has to be signed, what you have a a standard pre-printed thing so I am inclinded to agree its a breach.

 

I am just having a lot of difficulty believing they have all made such a big and fundamental mistake over s85. They have teams of legal eagles to make sure all this stuff is within the regulations and yet a couple of people on this site stumble onto it ?

[Guest The Terminator]

Im 99.999% sure they can't get out of this one.S85 was written into the Act for a purpose.It would be pointless putting something in an act only for it to be totally ignored.If you look at a couple of post down somebody has mentioned S85 in a sample letter to Trading Standards.

[dollies01]

Sadly I have to admit all this has gone right over my head..............I felt the breeze!

But does any of it mean, I can tell Lowell finance that a Application form does not cover a cca request?!

[Guest The Terminator]

You most definitly can.

[tamadus]

Sadly I have to admit all this has gone right over my head..............I felt the breeze!

But does any of it mean, I can tell Lowell finance that a Application form does not cover a cca request?!

 

dollies, I have today written to Barclaycard telling them that very same thing. The regulations are very clear about the format that the agreement is presented in. It has to clearly say 'Credit agreement regulated under the Consumer Credit Act 1974'

[tamadus]

OH something else that has come up in the last couple of days. Apparently a default notice isnt fully binding unless it is served by hand, but I need to cross check this still. But a couple of people independantly have said it so its very possibly true.

[pcr1]

I have managed to find Goode's Consumer credit law and practice for sale online but I changed my mind about buying it at £768

Hence why I'm off to the library!

 

I've hit blanks when searching for Goode and for s85 online (using various terms - I can Google pretty well!). I found a mention of s85 in a high court case about a mortgage (where the credit agreement was found to be totally unenforceable because the lender put a number in the wrong place), but the judge said he wasn't looking at that as it didn't matter, and furthermore wasn't up to speed on it so wasn't sure of the implications. The lady was claiming that Lloyds did what we're saying (no signed agreement with new card) with her Access card, as it was called then.

 

But nothing else... so Goode had better have the goods!

[Guest The Terminator]

OH something else that has come up in the last couple of days. Apparently a default notice isnt fully binding unless it is served by hand, but I need to cross check this still. But a couple of people independantly have said it so its very possibly true.

 

It also says in the T&C that the the CC company are to be informed of change of address but gives no timespan and I'm reading from MBUSA's T&C and I quote"If any cardholderchanges his/her name or you change your address you most notify us as soon as you can".So in effect you could change your name and address tomorrow and tell them in six years and a days time thus the agreement being stature barred.Limitation Act(1980).As for delivering by hand I'm sure that only applies to warrents issued by the courts.