CCA's and Dave against the world !!!

[banker_rhymes_with]

Hello Dave!

 

Happy New Year to you.

 

Going back to your Amex alleged Agreement at Post #1089:

 

 

Assuming this was for a Credit Card (and not a Charge Card, not that I think it matters), and apart from the fact it's a nasty Copy with no sign of any Prescribed Terms...I think it is improperly executed because they have used the wrong Heading for the Agreement section of the Application Form.

 

They've neglected to add the word Card.

 

Here's some bumf I've posted elsewhere that may help:

 

See: Consumer Credit Act (1974) and related Regulations

 

It has the wrong Heading if they want this Application Form to become a Credit Card Agreement. They've omitted the word Card. See Consumer Credit (Agreements) Regulations 1983 SI 1983/1553. Schedule 1 of SI 1983/1553 (see link above) says (1(d) applies to your Card):

 

(1) Subject to paragraph (2) below, a heading in one of the following forms of words--

 

(a) "Hire Purchase Agreement regulated by the Consumer Credit Act 1974";

 

(b) "Conditional Sale Agreement regulated by the Consumer Credit Act 1974";

 

© "Fixed Sum Loan Agreement regulated by the Consumer Credit Act 1974"; or

 

(d) "Credit Card Agreement regulated by the Consumer Credit Act 1974",as the case may require.

 

(2) If none of the headings in 1(a) to (d) above are applicable a heading in the following form of words--

 

"Credit Agreement regulated by the Consumer Credit Act 1974".

 

(3) Where the document and a pawn-receipt are combined, the words ", and Pawn Receipt," shall be inserted in the heading after the word

"Agreement".

 

(4) Where the document embodies an agreement of which at least one part is a credit agreement not regulated by the Act, the word "partly" shall be inserted before "regulated" unless the regulated and unregulated parts of the agreement are clearly separate.

 

(5) Where the credit is being secured on land the words "secured on" followed by the address of the land shall be inserted at the end of the

heading.

 

That alone may well render the thing they are claiming is an Agreement, as being an improperly-executed regulated agreement and so enforceable against the debtor or hirer on an order of the court only (s65).

 

They can't therefore do squat without getting a Court Order, and if they try that, they'll have some issues with s127(3).

 

Amex will, of course, do their usual trick of swearing blind the Prescribed Terms were on the back of this thing! But I suspect they'll be picking on the wrong person if they think you'll be impressed by that!

 

Cheers,

BRW

[davefirewalker]

Hello Dave!

 

Happy New Year to you.

 

Going back to your Amex alleged Agreement at Post #1089:

 

 

Assuming this was for a Credit Card (and not a Charge Card, not that I think it matters), and apart from the fact it's a nasty Copy with no sign of any Prescribed Terms...I think it is improperly executed because they have used the wrong Heading for the Agreement section of the Application Form.

 

They've neglected to add the word Card.

 

Here's some bumf I've posted elsewhere that may help:

 

See: Consumer Credit Act (1974) and related Regulations

 

It has the wrong Heading if they want this Application Form to become a Credit Card Agreement. They've omitted the word Card. See Consumer Credit (Agreements) Regulations 1983 SI 1983/1553. Schedule 1 of SI 1983/1553 (see link above) says (1(d) applies to your Card):

 

 

 

That alone may well render the thing they are claiming is an Agreement, as being an improperly-executed regulated agreement and so enforceable against the debtor or hirer on an order of the court only (s65).

 

They can't therefore do squat without getting a Court Order, and if they try that, they'll have some issues with s127(3).

 

Amex will, of course, do their usual trick of swearing blind the Prescribed Terms were on the back of this thing! But I suspect they'll be picking on the wrong person if they think you'll be impressed by that!

 

Cheers,

BRW

 

 

Thanks for the input.......yes it was for a credit card.....and not only doesnt it have the prescribed terms........it doesnt have there NAME AND ADDRESS either, or a proper header, along with a load of other stuff missing and the bottom of the doc torn off

 

and yes they have sent me about 20-30 pages of A4 with some nicely printed terms and conditions that they swear were on the back.....hmmmmm

 

I dont owe them a penny as I settled up before I realised what a bunch of cowboys they were.

 

This will not stop me from pursuing them though...I want my interest back

 

rgds

 

Dave

[davefirewalker]

hi guys...

 

I posed a question on the main CCA thread and I feel it is a valid point......

 

if an agreement is improperly executed, should they have charged interest on it ? or should interest only start from proper execution?? and ALL money previously paid go towards clearing the debt??

 

A link to this new discussion thread is here

 

http://www.consumeractiongroup.co.uk/forum/general/176726-improperly-executed-agreements-correct.html

 

ALL thoughts and comments welcomed

 

rgds

 

Dave

[davefirewalker]

Hi guys.....

 

I would appreciate comments on this RBS agreement. I have my own thoughts but would like a different view......

 

its in two parts but the second part (where the sigs are ) is ok...just ancillary stuff.

 

Agreement is dated 4/11/05. so 2004 agreements regs apply and it seems as though the prescribed terms are there.

 

PPI was put onto this and I have already opened a dispute regarding it. I was self employed and they knew at the time that it was useless.

 

So we have a multiple agreement one part an any purpose loan and the second the ppi was a restricted use loan d-c-s type

 

I think there should have been TWO agreements not all lumped together

 

Anyway thoughts please

 

 

 

sorry if the figures arent that clear....

 

I'll copy it here

 

key financial information

 

A loan......................... £15071

b term......................... 60 months

c total amount payable.... £17971.80

d installments................. 60 x £299.53 loan £238.49 ppi £61.04

e apr..............................7.4%

 

Other financial information

 

a purpose and amount of loan £12000 ...to finance other debt

b insurance loan...................£3071

c total charge......................£2900.80....comprising interest £2900.80...admin £0.00

d annual rate of interest ........7.16%

e payment allocation......etc

 

rgds

 

Dave

Edited January 10, 2009 by davefirewalker

[davefirewalker]

Any chance, any ideas, any comments ..................??

 

BTW as an aside take a look at this thread....>http://www.consumeractiongroup.co.uk/forum/general-debt-issues/176992-ccjs-only-option-us.html

 

these guys need some proper help

 

Dve

[atwozee]

The agreement states that the loan was for refinance – was any of that refinance with RBS such as a previous loan?

[davefirewalker]

nope......I basically used it to pay off some cc debts and stuff

 

dave

[atwozee]

Looks like they’ve got it correct then – separate amount of credit and repayments for each part of the loan. – It looks enforceable IMHO

[davefirewalker]

Hi guys.....

 

I would appreciate comments on this RBS agreement. I have my own thoughts but would like a different view......

 

its in two parts but the second part (where the sigs are ) is ok...just ancillary stuff.

 

Agreement is dated 4/11/05. so 2004 agreements regs apply and it seems as though the prescribed terms are there.

 

PPI was put onto this and I have already opened a dispute regarding it. I was self employed and they knew at the time that it was useless.

 

So we have a multiple agreement one part an any purpose loan and the second the ppi was a restricted use loan d-c-s type

 

I think there should have been TWO agreements not all lumped together

 

Anyway thoughts please

 

 

 

sorry if the figures arent that clear....

 

I'll copy it here

 

key financial information

 

A loan......................... £15071

b term......................... 60 months

c total amount payable.... £17971.80

d installments................. 60 x £299.53 loan £238.49 ppi £61.04

e apr..............................7.4%

 

Other financial information

 

a purpose and amount of loan £12000 ...to finance other debt

b insurance loan...................£3071

c total charge......................£2900.80....comprising interest £2900.80...admin £0.00

d annual rate of interest ........7.16%

e payment allocation......etc

 

rgds

 

Dave

 

 

 

 

Thought I'd better put the second page up as well......

 

notice in the sigbox for the PPI (which is in dispute in any case) there is a tickbox (very small ) and where it says "I/we understand that I/we am/are purchasing the product ticked above" well its NOT TICKED........

 

and if it was a multiple agreement in any case surely the sig box for the ppi should also have that it is regulated by the consumer credit act......

 

thoughts

 

Dave

Edited January 11, 2009 by davefirewalker

[Goldlady]

I see no ticks:D

[The GodMother]

same ere

[Help48xxx]

I can't see a tick in the box either, although my kids do call me Mrs Magoo 8-)

 

xx

[davefirewalker]

I can't see a tick in the box either, although my kids do call me Mrs Magoo 8-)

 

xx

 

Hey....it took me over 12months of looking to find it ...

 

Dave

[citizenB]

I see no ticks:D

 

Me neither:D

 

 

Thought I'd better put the second page up as well......

 

notice in the sigbox for the PPI (which is in dispute in any case) there is a tickbox (very small ) and where it says "I/we understand that I/we am/are purchasing the product ticked above" well its NOT TICKED........

 

and if it was a multiple agreement in any case surely the sig box for the ppi should also have that it is regulated by the consumer credit act......

 

thoughts

 

Dave

 

I will have to read pt's thread again, however, I was under the impression that if it was a multi agreement.. each part had to have its own terms and conditions and signature.

[davefirewalker]

 

sorry if the figures arent that clear....

 

I'll copy it here

 

key financial information

 

A loan..................... .... £15071

b term..................... .... 60 months

c total amount payable.... £17971.80

d installments............. .... 60 x £299.53 loan £238.49 ppi £61.04

e apr...................... ........7.4%

 

Other financial information

 

a purpose and amount of loan £12000 ...to finance other debt

b insurance loan...................£3 071

c total charge................... ...£2900.80....comprising interest £2900.80...admin £0.00

d annual rate of interest ........7.16%

e payment allocation......etc

 

 

 

Thought I'd better put the second page up as well......

 

notice in the sigbox for the PPI (which is in dispute in any case) there is a tickbox (very small ) and where it says "I/we understand that I/we am/are purchasing the product ticked above" well its NOT TICKED........

 

and if it was a multiple agreement in any case surely the sig box for the ppi should also have that it is regulated by the consumer credit act......

 

thoughts

 

Dave

 

Just thought I'd bring this back to the front for comments......

 

Dave

Edited January 14, 2009 by davefirewalker

[davefirewalker]

Could really do with a definetive answer.......I have my own theories, but a second pair of eyes would be good.........Paul...hint hint

 

Dave

[davefirewalker]

Update........

 

After my recent flurry of letters and lba's.....Barclaycard (ex morgan stanley) from whom I'm claining charges, have written.....

 

"We are sorry to learn of your dissatisfaction....blah blah blah.......we pride ourselves on the high level of customer service...etc......

 

We aim to try to resolve matters by 02 Feb........etc"

 

looks like they are the first in court...the LBA runs out in a few days

 

Once this is out of the way, I can concentrate on the main thrust

 

rgds

 

Dave

[sanrhythm]

mbna recieved my cca request on 3rd DEC then i send them reminder CCA letter and i stop my direct debit today 16 JAN i recieve mbna reply for my cca request please see attached ZIP please help what next?

MBNA REPLY.zip

[cosalt]

Just subbing !

[davefirewalker]

mbna recieved my cca request on 3rd DEC then i send them reminder CCA letter and i stop my direct debit today 16 JAN i recieve mbna reply for my cca request please see attached ZIP please help what next?

 

What they have sent you probably complies with a s77-78 request.......although if the had the original why didnt they just photocopy it and send it on?????

 

try looking here...> http://www.consumeractiongroup.co.uk/forum/legal-issues/173201-why-you-shouldnt-use.html

 

try this approach and see if it gets you anywhere..........but read it first and try to understand the process

 

Rgds

 

Dave

[davefirewalker]

Hi guys......

 

Serious head on for a moment.....

 

Over the past few weeks I've had some pm's from people, Enquiring as to how to go about what I am comtemplating........as regards reclaiming interest paid.

 

BE WARNED....it is not suitable for everyone, the risks are huge and the chances of winning are only so-so.......the costs involved could be enormous.

 

I hate to state the obvious...if you have to ask, then you obviously havent looked deeply enough into it. you need to know the subject inside out. Its not really something where you can "wing it"

 

I have studied the caselaw and precedents, and the relevant laws over the last 18 months or so and to my belief,

 

*** I *** have a case.

 

This will probably go to a high court and the costs to the losing party will be huge.

 

If you are contemplating such an action, I would put it on hold for the time being (unless you are a secret millionaire)

 

Serious head off now..........

 

rgds to all

 

Dave

Edited January 16, 2009 by davefirewalker

[banker_rhymes_with]

Hello Dave!

 

I agree.

 

Perhaps a simpler tactic for many who are in the position of, say, having a Credit Card that has a duff Agreement, and where they have repaid more on a Credit Card than they ever spent on it over the life of the account, then they should just ask for the difference back.

 

i.e. it was paid by mistake. The Creditor had no Right to charge Interest and other Charges, so they can be totally discounted from the issue.

 

IOW, in such an example, perhaps go for the mistake angle rather than the repayment of Interest angle.

 

To give one example, I have a Credit Card with a pants Agreement. I spent 72k approx in 10/11 Years and yet repaid them around 78k.

 

They now want over 20k, but that's the net total of their Interest and Charges over the 10/11 Years when linked to my spending and repayments. But they were not entitled to that Interest and those Charges.

 

Add up what they did charge, and it comes to around 26k.

 

If they have an Agreement, then we end up with:

 

+72K Spending

+26k Charges

-78k Repayments

============

20k Balance they say I owe them.

 

But if they do not have an Agreement, and their Interest and Charges were never valid, then they can be removed from the equation. We end up with this instead:

 

+72K Spending

-78k Repayments

============

-6k Negative Balance...IOW, they owe me +6k!

 

Thus, I'm not re-claiming Interest, so I'm not going to be basing my Claim on any complex issues. I just want back the extra that I did not need to pay.

 

I do appreciate you may've considered this.

 

I do also stress that this is really only of use if there is a clear surplus of payments over spending.

 

Cheers,

BRW

[photoman]

I would just like to add, that I have been in contact by PM with Dave discussing this type of action.

 

I MUST RE-ITERATE WHAT DAVE HAS JUST SAID;

THIS TYPE OF CASE IS ALMOST CERTAIN TO END UP IN A HIGH COURT, AND THE COST RISKS OF LOSING WOULD BE ENORMOUS !!

 

Similar cases have indeed been brought by others in the past, and even won, but such people normally had legal representation (or came to an agreement out of court).

So be very wary of pursuing such an action, even if you feel confident you have a good case, understand the principles and law, and confident of being able to argue your case. Remember:

You will be up against very experienced professional barristers and lawyers, who do this kind of stuff every day..... and also charge enormous fees, which will be included in your costs liabilities should you lose !!

 

We are contemplating another possible approach to this at the moment, so do not lose heart.... our day will come.

 

We would be interested in perhaps hearing from anyone who thinks they may have a strong case, and were perhaps contemplating similar actions.

I will start a thread and post up a link, please add your name to it, and and we will contact you in due course once we have decided what to do here.

Do not worry if we do not get back to you straight away, it does not mean we are not interested in your case, we just need to talk and think things through first.

 

PM

Edited January 16, 2009 by photoman
Thread may be a better idea than PM's

[davefirewalker]

Hello Dave!

 

I agree.

 

Perhaps a simpler tactic for many who are in the position of, say, having a Credit Card that has a duff Agreement, and where they have repaid more on a Credit Card than they ever spent on it over the life of the account, then they should just ask for the difference back.

 

i.e. it was paid by mistake. The Creditor had no Right to charge Interest and other Charges, so they can be totally discounted from the issue.

 

IOW, in such an example, perhaps go for the mistake angle rather than the repayment of Interest angle.

 

To give one example, I have a Credit Card with a pants Agreement. I spent 72k approx in 10/11 Years and yet repaid them around 78k.

 

They now want over 20k, but that's the net total of their Interest and Charges over the 10/11 Years when linked to my spending and repayments. But they were not entitled to that Interest and those Charges.

 

Add up what they did charge, and it comes to around 26k.

 

If they have an Agreement, then we end up with:

 

+72K Spending

+26k Charges

-78k Repayments

============

20k Balance they say I owe them.

 

But if they do not have an Agreement, and their Interest and Charges were never valid, then they can be removed from the equation. We end up with this instead:

 

+72K Spending

-78k Repayments

============

-6k Negative Balance...IOW, they owe me +6k!

 

Thus, I'm not re-claiming Interest, so I'm not going to be basing my Claim on any complex issues. I just want back the extra that I did not need to pay.

 

I do appreciate you may've considered this.

 

I do also stress that this is really only of use if there is a clear surplus of payments over spending.

 

Cheers,

BRW

 

There is also nothing wrong (apart from your own morals that is) with getting the agreement declared unenforceable, and getting a write off.

 

I would not reproach anyone for that stance, as Bennion stated "if they cant be bothered to get the detail right they deserve to lose all right to the money" I paraphrase of course

 

rgds

 

dave

[photoman]

If you think you may have a similar case, and perhaps contemplating similar actions then please post your interest here:

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/178176-contemplating-similar-case.html#post1923114

 

 

PM