lowell/BW claimform - old monument card 'debt'

[angel_1]

monument-1-1.jpg - Image - Photobucket - Video and Image Hosting

 

PLS see above and i reckon ive only had the application and only what you can see but with current terms and conditions and nothing about terms and conditions at the time of the application

 

plus a letter just advising they have enclosed a copy of my credit agreement, which they are providing under their obligations section 78(1) of the Consumer Credit Act 1974 - requires that they provide me with a copy of my executed agreement.

 

perhaps by explaining to me about the "copy" of the executed agreement, - they now say the Copy for the purposes of the CCA does not refer to an exact copy of the agreement i signed. They are therefore not required by the CCA to provide me with a photocopy of the agreement showing my signature. Section 78 requires them to provide me with a copy of my agreement which looks like the one i signed but which has been updated to contain the terms and conditions which currently apply to my agreement (rather than those which applied a the time i signed the agreement) Important - the copy is not required to include my name or signature.

 

They rather hope im now satisfied with this dribble they have provided and i will continue to make payment on my account.

 

********

 

Whilst my interpretation now is that Yes i agree they have satisfied section 78 by supplying

 

me with an application form with a copy of the current T&C's - BUT it is not enforceable because it doesnt have the prescribed terms in the same document as the signature.

 

What do you guys now think??

 

many thanks ciao for now MAZ

Edited November 12, 2008 by maz1964

[havinastella]

monument-1.jpg - Image - Photobucket - Video and Image Hosting

 

PLS see above and i reckon ive only had the application and only what you can see but with current terms and conditions and nothing about terms and conditions at the time of the application

 

plus a letter just advising they have enclosed a copy of my credit agreement, which they are providing under their obligations section 78(1) of the Consumer Credit Act 1974 - requires that they provide me with a copy of my executed agreement.

 

perhaps by explaining to me about the "copy" of the executed agreement, - they now say the Copy for the purposes of the CCA does not refer to an exact copy of the agreement i signed. They are therefore not required by the CCA to provide me with a photocopy of the agreement showing my signature. Section 78 requires them to provide me with a copy of my agreement which looks like the one i signed but which has been updated to contain the terms and conditions which currently apply to my agreement (rather than those which applied a the time i signed the agreement) Important - the copy is not required to include my name or signature.

 

They rather hope im now satisfied with this dribble they have provided and i will continue to make payment on my account.

 

********

 

Whilst my interpretation now is that Yes i agree they have satisfied section 78 by supplying

 

me with an application form with a copy of the current T&C's - BUT it is not enforceable because it doesnt have the prescribed terms in the same document as the signature.

 

What do you guys now think??

 

many thanks ciao for now MAZ

 

 

Your assumptions are correct.

 

Invite them into court, tell them you will not correspond on the matter any more!

 

JOgs

[huggy41]

i got 1 of those i sent them a letter stating that if thats all they have then to take me to court.

i got a letter back saying that they hvae passed it back and will not here from them again.

[angel_1]

ohhhhhhhhhhhhhhhhhhh fab

 

hiya havinastella - im so happy you have just said that to me,,,,

 

im only going by my gut and after my visit to Trading Standards and what a fellow cagger had put on one of their threads - i was just hunting for the info,,,,,

 

i cant believe im actually beginning to understand this.....

 

thank you thank you

 

ciao for now maz

[angel_1]

hiya huggy

 

mine is actually from monument not been sent to any dca as yet,

 

i was rather wondering what my next step is,,,,,,, like a letter you have sent you reckon??

 

what happens on the credit file and such, ?? that s my next hurdle i want to get to understand

 

thanks for replying much appreciated ciao maz

[lexis200]

Excellent - it's so nice when that happens:)

 

Hopefully getting it sorted will be as simple as working out what a pile of rubbish that 'agreement' is! Well you can dream:rolleyes:

 

Lexis:)

[angel_1]

bumping up any advice now from my post no 5

 

thanks everyone, i dont yet feel this is the end though

 

i believe monument were part of barclays at one time, they then sold or R Raphael and sons plc took the account over

 

i am awaiting on the sars from barclays will be interesting to see what i get back,,,,,

 

anyway, im starting to get the calls so next action is ???

 

thanks much appreciated ciao for now MAZ

[citizenB]

Well, it is definitely an application form.. it says "I am applying for a Visa Credit card, cheques and pin number".

 

It does that you have read and agree to be bound by the enclosed t&cs. However, nowhere do there appear to be any prescribed terms... and that is what is most important

 

What they send you in response to a CCA request is one thing, however it is my understanding that if you request sight of the PROPER, FOR REAL signed copy within the SAR then they must supply you. So if you are going to SAR them, then it wil be interesting to see if you receive anything different.

[angel_1]

hello CB

 

thanks for your reply, yes i noticed that earlier about being bound by the tc's and yes no prescribed terms which could be on the back, which ive not had copy or sight of, only the very upto date terms and conditions.

 

i will await on barclays to respond on the S.A.R - (Subject Access Request), as ive definately req -

 

"A true copy of the original signed, executed consumer credit agreement and copy of the original Terms and Conditiosn, that were in force at the time of the account was opened, and any subsequent amendments to those terms and conditions"

 

in the meantime, my dilemma, should i write to monument and put in a dispute account letter and advise they have not fully supplied all the information and stop paying them this month from now on.?

 

Could i say - ""what you have sent is a copy of the application form with a copy of the current terms and conditions which does satisfy section s78 but this is not enforceable by you as doesnt contain the prescribed terms in ths same document as the signature.""

 

 

Wilson v First County Trust

Ltd [2003] UKHL 40, [2003] 4 All ER 97. - i found interesting,

 

 

a quote i found but am looking for the source at the moment i recall was like - if a creditor company cannot be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that a court should not have power to relieve the creditor from this penalty.

 

 

and see what i get back?

Edited November 12, 2008 by maz1964

[havinastella]

Hi again MAz,

 

You will get the same old rubbish back!!

 

You have to decide what you want from the request now. They do NOT have an enforceable copy, so If you stop paying you'll get 6 years of being passed from DCA to DCA, all throwing defaults against your credit rating and making it more or less impossible to get credit in future.

 

Some on CAG are trying various ways to get these defaults removed, but are finding it more or less impossible.

 

You can reclaim any late payment/unfair charges against the account (if there are any) reducing the amount and then ask for a full and final settlement, reminding them they have no enforceable agreement so you get a good deal.

 

The ball has dropped firmly in your court.

 

Best of luck

 

JOgs

[angel_1]

hello havinastella

 

its what you have wrote that i guess i need to finally think about seriously,

 

so even if they do not have an enforceable copy which i also believe, i can still ask for the charges back? then ask for a full and final

 

i dont think it can get any better than this - otherwise like you say it will get passed around and around i want to get rid of in the best way possible as affecting my credit file is what im trying to avoid

 

so thank you, its like everyone says you have to get the best deal possible

 

i have about 150.00 but also awaiting on the SARS to get correct amounts,

 

i will seriously think about your comments and appreciate fully the concept of the full and final which is my ultimate goal -

 

will be back laters ciao for now maz

[citizenB]

hello CB

 

thanks for your reply, yes i noticed that earlier about being bound by the tc's and yes no prescribed terms which could be on the back, which ive not had copy or sight of, only the very upto date terms and conditions.

 

i will await on barclays to respond on the S.A.R - (Subject Access Request), as ive definately req -

 

"A true copy of the original signed, executed consumer credit agreement and copy of the original Terms and Conditiosn, that were in force at the time of the account was opened, and any subsequent amendments to those terms and conditions"

 

in the meantime, my dilemma, should i write to monument and put in a dispute account letter and advise they have not fully supplied all the information and stop paying them this month from now on.?

 

Could i say - ""what you have sent is a copy of the application form with a copy of the current terms and conditions which does satisfy section s78 but this is not enforceable by you as doesnt contain the prescribed terms in ths same document as the signature.""

 

 

Wilson v First County Trust

Ltd [2003] UKHL 40, [2003] 4 All ER 97. - i found interesting,

 

 

a quote i found but am looking for the source at the moment i recall was like - if a creditor company cannot be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that a court should not have power to relieve the creditor from this penalty.

 

 

and see what i get back?

 

 

Hi Maz, that is a nice quote, but one I think best kept for a defence should it ever come to that

 

The idea is to let them know that you are aware that what they have sent doesnt really cut the mustard.. however dont do their job for them. They know full well what they should send you.

 

I will try and find a letter for you. x

[citizenB]

I just noticed you have said you had SAR'd Barclaycard, who exactly are Monument in the grand scheme of things. Are they a DCA, solicitor, collection agents ?

[havinastella]

I just noticed you have said you had S.A.R - (Subject Access Request)'d Barclaycard, who exactly are Monument in the grand scheme of things. Are they a DCA, solicitor, collection agents ?

 

Hey CB,

 

Barclaycard brought Monument

 

JOgs

[citizenB]

Hey CB,

 

Barclaycard brought Monument

 

JOgs

 

 

Aha, thanks JOgs. I think I will go and develop a headache :grin::grin:

[angel_1]

hiya all

 

thanks for your updates, yes bcard bought monument originally but now i think they have been bought by r raphael therefore, i still should get something from barclays re barclaycards cards ie monument.

 

going to await on that for the time being, but like havinastella has said, i dont think i will get anything else anything different, lets hope,,,,lol

 

thanks again ciao for now maz

[angel_1]

Hi again MAz,

 

You will get the same old rubbish back!!

 

You have to decide what you want from the request now. They do NOT have an enforceable copy, so If you stop paying you'll get 6 years of being passed from DCA to DCA, all throwing defaults against your credit rating and making it more or less impossible to get credit in future.

 

Some on CAG are trying various ways to get these defaults removed, but are finding it more or less impossible.

 

You can reclaim any late payment/unfair charges against the account (if there are any) reducing the amount and then ask for a full and final settlement, reminding them they have no enforceable agreement so you get a good deal.

 

The ball has dropped firmly in your court.

 

Best of luck

 

JOgs

 

 

hiya havinastell

 

so in theory - say ive not paid them this month, not yet had any threats or phonecalls, i could

 

1. request my charges back, i m guessing about 150 which is only about 10% of the debt, get those back and then still not pay and then offer them a full and final settlement, of about £100.00 which is about 10% perhaps offered by a 3rd party and ask that all adverse credit info is removed also from my credit files??

 

Do you think it could work?

 

ta muchly would be happy

ciao maz

[angel_1]

on my travels this morning, i have found a letter from the below thread

 

Re: Nationwide Credit Card Debt Unenforceable?

You could send them back:

 

Dear Sirs,

Account no xxxxxxxxxxxxxx

 

Re: my request under the Consumer Credit Act 1974

Thank you for your recent letter sent to me, the contents of which are noted. I appreciate your quick response to my original letter. However, the reply received by me does not fulfil your requirements under the Consumer Credit Act 1974.

The Act demands that I be supplied with a true copy of any properly executed credit agreement that exists in relation to the above account. I may ask for this on demand providing that a fee of £1.00 is paid. This fee was sent with my original letter.

My request remains outstanding. An application form with no prescribed terms on it, like the one you sent in your reply, does not constitute a true copy of any credit agreement that may or may not have been signed by me on the opening of this account. An application form neither confirms that I am liable for any alleged debt to you, nor gives me any chance to evaluate whether any original agreement was ‘properly executed’.

I still require you to send me a true copy of the original credit agreement that you allege exists. As you will know, under the Consumer Credit Act 1974, a judge is not permitted to make any enforcement order unless the creditor can provide a true signed copy of the original credit agreement. This means that unless you can produce such an agreement, this alleged debt is not enforceable in law.

You had until xx/xx.2008 (12+2 working days after the request was made) to provide me with the true copy I requested. You are now in default of my request. Any account I hold with you is now in legal dispute. Whilst the account remains in dispute, you are not permitted to ask for any payment, nor am I obliged to offer any payment to you. Furthermore, whilst the dispute remains, you are not entitled to charge any interest on the account, nor make any further charges to the account. Additionally, you are not entitled to register any information on this account with any credit reference agency.

To register information with a credit reference agency, you must have written consent from the customer to collate and share such information. This consent is given in the form of a signed credit agreement, so until you produce such an agreement, you may not do this.

The requirement for consent to share data is a clear requirement of the Data Protection Act 1998. any such attempts to share my data without my consent will be met with a complaint to the Information Commissioners Office

The time limits, which are laid down in the Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 are clear. You must supply an executed credit agreement within 12 + 2 working days of a proper CCA request. If you fail to comply with a legitimate request the account enters a default situation.

 

To sum up, I will not be making any further payments to you until you provide me with the document I have requested.

 

Whilst you remain in default of my request, you are not permitted to take any action against this account. This includes adding further charges and passing any information to the credit reference agencies.

I expect you to write to me confimring that the account has been closed and no further action will be taken.

I look forward to your reply.

Yours faithfully

__________________

 

I wonder if i first sent this - what would the responce be, court action?

 

or at least it shows either they have to send me the executed agreement or im forcing their hand to admit they dont in writing back to me,

 

then im back i guess to the full and final settlement just to finalise stuff -

 

i know its my decision its just so scary on the first one isint it?

 

will be back laters ciao for now maz

[underdog13]

Hi Maz,

I'm having the same dilemma as you - got a naff 'agreement' with no prescribed terms, but not sure of the best way to proceed. Do I stop paying or just make token payments of £1 per month? It's such a grey area, isn't it? Some say paying acknowledges the debt, but if you don't pay anything it accelerates the matter into court quicker. I beieve some creds are giving default notices and saying that the agreement is therefore terminated and you are not protected under the 1974 act!

 

Full and final offers are great if you have the funds - I don't at the moment, so that's one option out for me.

 

Will be following your thread with interest - best of luck:)

[angel_1]

thank you underdog,

 

interesting point what you say on creditors giving default notices and then terminating agreement and thus not protected under the 1974 act -

 

anyone else can give further info on this pls

 

many thanks maz

Edited November 16, 2008 by maz1964

[citizenB]

I beieve some creds are giving default notices and saying that the agreement is therefore terminated and you are not protected under the 1974 act!

 

 

 

 

I will ask this question on another thread, see if we can get some guidance on it.

[underdog13]

That's great, thanks CitizenB. I think it's the usual DCA smoke and mirrors, but it never hurts to have a rebuttal ready for their absurd claims;)

[citizenB]

That's great, thanks CitizenB. I think it's the usual DCA smoke and mirrors, but it never hurts to have a rebuttal ready for their absurd claims;)

 

I have asked the question on the Consumer Credit agreement thread. It is visited by CAGers with more knowledge on this subject. I agree, it probably is another idea the DCAs have conjured up.. I also agree, it is wise to have the facts.

[citizenB]

Underdog, the reply to your query is in the following link. It looks as though it could be the DCAs interpretation of the Rankine judgement.

 

http://www.consumeractiongroup.co.uk/forum/general/33174-consumer-credit-act-agreements-659.html#post1820416

[underdog13]

Thanks CitizenB -that' a very interesting thread you've linked to, but wow, what a length - when I have a spare weekend I'll have to read through it all