Cap1 & CCA return

[pford]

ok I have spoken to the Financial Services Ombudsmans office about Barclaycard and they would like me to send an official complaint in so they can investigate it fully. The guy I spoke to wouldn't commit himself as it has to go to another department but he is familiar with sections 77/78 and 85 and he certainly didnt make any suggestion that my thoughts were wrong.

 

I think I will report it and still persue them privately in the court if neccessary.

 

What details are they after I’m in the same boat with the Halifax they haven’t responded to my s77 & s78 request been over 3 months now.

[meagain]

Just to clear a few things up, I'm not suggesting that anyone here is building up other people's hopes, only that it seems quite a few people seem to want to pin their hopes on this. I do recognise what you're trying to do, but in equating SS77/78 with S85 when the intention and the context in which they apply are completely different (IMU - SDA) is a dangerous generalisation to make. What you are suggesting has merit, but is not quite as clear-cut as the issue of penalty charges (which has always been an open-and-shut case). I just felt the Devil was not adequately represented at the table. Remember that the Devil's Advocate used to be called the Promoter of Faith.

[tamadus]

I agree meagain this is not going to be as easy as reclaiming charges, but their are several examples of case law where the court has deemed the agreements unenforceable and even CAG has some successes with section 77/78.I am probably the most advanced in this thread with a s78 claim or failure to respond and I'll be keeping the thread posted. s85 I am feeling a little guilty over as the only CC i can apply the theory to have either recently settled or I am trying the s 78 attack with. So far every opinion from the legal seagulls has been very positive in respect to all 3 sections but at the end of the day it will come down to a court appearance to see what a judge says. I know and appreciate that and would rather avoid it but I guess I have to test it out or always wonder.

 

Just to clear a few things up, I'm not suggesting that anyone here is building up other people's hopes, only that it seems quite a few people seem to want to pin their hopes on this. I do recognise what you're trying to do, but in equating SS77/78 with S85 when the intention and the context in which they apply are completely different (IMU - SDA) is a dangerous generalisation to make. What you are suggesting has merit, but is not quite as clear-cut as the issue of penalty charges (which has always been an open-and-shut case). I just felt the Devil was not adequately represented at the table. Remember that the Devil's Advocate used to be called the Promoter of Faith.

[Guest bong]

A fixed credit agreement is exactly what it says, an agreement to borrow a fixed amount over a fixed term and repay a set amount of interest. Running credit is of the credit card variety where the company aloow your day to day credit level to vary under a running agreement.

 

The word should was refering to the fact that a bank current account should have a positive balance most of the time (until the bank takes loads of charges:eek: ) If you use a debit card knowing their is not enough money to cover the transaction (either with or without an overdraft facility) then your actually breaking the rules yourself.

 

Most loans are covered by the CCA up to 25,000, although not where they are secured on land and certain other items. Although I think the 2006 revision has increased the limits. I disagree with the inclusion of a debit/charge card in the definition you found as it isnt a promise to pay by a creditor of yours, but is debited directly from your bank account (which in theory should have sufficienbt funds to cover the debit) some charge cards could be credit tokens though. Likewise most cheques would debit existing funds in the bank account but in some cases could debit a credit card. The later will be covered by the CCA and the credit card agreement. basically the difference comes down to whether the funds are supplied by a third party ( the CC company) or by yourself from a bank account.

 

Sorry to hark back to this - but I don't think it's as clear as that.

 

1. how am I "breaking the rules" if the bank has agreed an overdraft limit?

 

2. a cheque when issued with a cheque card is guaranteed by my bank so it is a promise to pay by them. Where does the idea come from that a bank account should have sufficient funds in it to cover the debit? Overdrafts are quite standard and I would say the norm for most if not many account holders. Thus the funds are being provided by a third party.

 

3. an overdraft can be for an indefinite period (mine has been running unreviewed for atleast 10 years). And it doesn't have a fixed rate as in a loan agreement and the repayments are not fixed any more than a credit card's variable minimum repayment figure. Am I missing the point here about it being a fixed credit agreement?

 

Turning to credit cards, while I do accept that all companies are not the same, I received a replacement card from Morgan Stanley in September 2005 which I never activated and it is still attached to the letter it came with. On the reverse of the letter it states in bold letters at the top Credit Card Agreement regulated by the Consumer Credit Act 1974 and underneath "This is a Credit Agreement between us (MS) and you, the person who made this Agreement." Further down the page, in addition to other information, like the current APR, it states "This page and the enclosed MS card conditions form your copy of the Agreement".

 

Why do you interpret the S.85 term "executed agreement" to mean that it must have your signature on it?

[Guest The Terminator]

 

Turning to credit cards, while I do accept that all companies are not the same, I received a replacement card from Morgan Stanley in September 2005 which I never activated and it is still attached to the letter it came with. On the reverse of the letter it states in bold letters at the top Credit Card Agreement regulated by the Consumer Credit Act 1974 and underneath "This is a Credit Agreement between us (MS) and you, the person who made this Agreement." Further down the page, in addition to other information, like the current APR, it states "This page and the enclosed MS card conditions form your copy of the Agreement".

 

Why do you interpret the S.85 term "executed agreement" to mean that it must have your signature on it?

 

I can see where your coming from Bong regarding overdrafts and would agree with you there.My point regarding CC and S85 would be that T&C change all the time so when you first agree to take out a card you are agreeing to the T&C at the time.Now when a replacement card is issued the T&C may be different so it is a new agreement and this is where S85 kicks in.An example that may be worth thinking about is for instance You agree to pay x amount of rent for six months and you sign an agreement.After 6 months I put it up by x amount.Now unless you sign a new agreement saying that you agree to the terms I can't enforce it.In MS instance in which you state I for the life of me cannot see how that is not breaching the CCA.

[Guest bong]

when a replacement card is issued the T&C may be different so it is a new agreement and this is where S85 kicks in

 

Thanks for your reply. However the terms and conditions do state that they can vary their terms and conditions from time to time. Therefore I do not see it as a new agreement, just an amended one. Would you not agree?

[meagain]

1. how am I "breaking the rules" if the bank has agreed an overdraft limit?

 

If you exceed this limit, whether this limit is zero or greater, whether it be by a store floor limit or a guaranteed cheque, knowing that you will exceed the limit, I believe that is fraud, in much the same way as if you issue a cheque without the guarantee knowing that it will bounce.

 

Why do you interpret the S.85 term "executed agreement" to mean that it must have your signature on it?

 

The precise meaning is the issue here. "Executed agreement" is defined in the Act as meaning a correctly-formed agreement signed by both parties (or something along those lines).

 

As for varying the agreement, I have always thought that this is perfectly acceptable with the consent of both parties. Of course, when in many cases the bank will say that if you refuse to accept the new terms you must close the account, this may put a different spin on things.

[Guest bong]

If you exceed this limit, whether this limit is zero or greater, whether it be by a store floor limit or a guaranteed cheque, knowing that you will exceed the limit, I believe that is fraud, in much the same way as if you issue a cheque without the guarantee knowing that it will bounce.

 

I was actually referring to an agreed limit that you're staying within - not exceeding

 

 

 

The precise meaning is the issue here. "Executed agreement" is defined in the Act as meaning a correctly-formed agreement signed by both parties (or something along those lines).

 

the fact that they're not sending you a copy of the signed agreement doesn't mean it wasn't signed originally. It was executed.

[Guest bong]

another thought - do we ever sign a copy of "the Agreement" anyway? From memory I thought we only had to sign an application for a card and then they issue the Agreement which you could decide to cancel if you choose.

[meagain]

I was actually referring to an agreed limit that you're staying within - not exceeding

 

For all intents and purposes, if you are staying within the limit, there is funding available for the account.

 

the fact that they're not sending you a copy of the signed agreement doesn't mean it wasn't signed originally. It was executed.

 

That is where the confusion with S85 arises - it has not been properly tested in court, and the few times that it has been mentioned in judgement haven't cleared it up.

 

From memory I thought we only had to sign an application for a card and then they issue the Agreement which you could decide to cancel if you choose.

 

In those cases, the agreement may not have been properly executed, in which case you could spend with impunity. Of course, that would be highly irresponsible. Satisfying, but irresponsible.

[zootscoot]

To amount to a copy of the executed agreement there is no requirement for a signature under Regulation 3 of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983.

 

3 General requirements as to form and contact of copy documents

 

(1) Subject to the following provisions of these Regulations, every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall be a true copy thereof.

 

(2) There may be omitted from any such copy-

 

(a) Any information included in an executed agreement, security instrument or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations thereunder as to the form and content of the document of which it is a copy;

 

(b) Any signature box, signature or date of signature (other than, in the case of a copy of a cancellable executed agreement delivered to the debtor under section 63(1) of the Act, the date of the signature by the debtor of an agreement to which section 68(b) of the Act applies);

 

© In the case of any of an unexecuted agreement delivered or sent to the debtor or hirer under section 62 of the Act, the name and address of the debtor or hirer; and

 

(d) In the case of any copy of an executed agreement given to the debtor under section 77(1) of the Act for fixed-sum credit, or under section 78(1) for running-account credit, under which a person takes any articles in pawn, any description of the article taken in pawn.

[Guest bong]

For all intents and purposes, if you are staying within the limit, there is funding available for the account.

 

I know there is funding available, but the point is is it a credit agreement covered by this Act?

 

Have to go out now but will be back later!

[sam19677]

Zootscoot, so when we ask for a CCA are you saying that the crediter has'nt got to supply a signed agreement? This is all so confusing!

[meagain]

So, this would suggest that perhaps the T+C might be enough to satisfy S85 - after all, they merely form the agreement, minus the signature, and the document you signed will have stated that said T+C apply.

 

In my mind, herein lies the problem - that of purpose. S85 seems to me to serve the purpose of ensuring that a consumer receiving a credit-token is aware of the terms of the agreement they entered into originally. This may well be necessary in the case of a 3-year card expiring, where the paperwork may be inaccessible (or just lost). For S85, whether or not you entered into the agreement is not in question (under S51, unsolicited credit-tokens are illegal). All you need to be aware of is the actual terms of the agreement you believe is in force. As it's not in question, there would appear to be no need to provide anything more than the specific terms of the agreement, right? The actual validity, enforceability or legality of the agreement aside, of course.

 

Under S78, the reason that we would need a signature is that the issue of whether or not the agreement is valid (etc.) is in doubt. They could send the T+C, however, that wouldn't answer the question of whether or not you entered into the agreement in the first place. This would suggest a practical need for a signature.

[tamadus]

Sorry to hark back to this - but I don't think it's as clear as that.

 

1. how am I "breaking the rules" if the bank has agreed an overdraft limit?

 

If you stay within the limt the bank has given you then your not, but if you knowingly exceed that limit when you use the debit card or use a cheque guarantee card then its breaking their agreement rules and is actually tantamount to fraud.

 

2. a cheque when issued with a cheque card is guaranteed by my bank so it is a promise to pay by them. Where does the idea come from that a bank account should have sufficient funds in it to cover the debit? Overdrafts are quite standard and I would say the norm for most if not many account holders. Thus the funds are being provided by a third party.

 

A cheque card only guarantees payment under certain conditions. I agree overdrafts are fairly standard now but the basic idea of an overdraft is a known safety net not an absolute right and repayment of the facility occurs when money is paid into the account. I have an overdraft facility but I have been lucky enough to not have to use it in over a year.

 

3. an overdraft can be for an indefinite period (mine has been running unreviewed for atleast 10 years). And it doesn't have a fixed rate as in a loan agreement and the repayments are not fixed any more than a credit card's variable minimum repayment figure. Am I missing the point here about it being a fixed credit agreement?

 

Its more likely to be a fixed agreement because their is a fixed limit and it is repayed as soon as money is credited (the overdraft level reduces by any credit into the account) If that doesnt occur the bank will soon remove the facility and revert it to a fixed repayment schedule.

 

Turning to credit cards, while I do accept that all companies are not the same, I received a replacement card from Morgan Stanley in September 2005 which I never activated and it is still attached to the letter it came with. On the reverse of the letter it states in bold letters at the top Credit Card Agreement regulated by the Consumer Credit Act 1974 and underneath "This is a Credit Agreement between us (MS) and you, the person who made this Agreement." Further down the page, in addition to other information, like the current APR, it states "This page and the enclosed MS card conditions form your copy of the Agreement".

 

Why do you interpret the S.85 term "executed agreement" to mean that it must have your signature on it?

 

An executed agreement has to be agreed by both parties. The only way of proving that is by signing it. The copy they have enclosed with your card is a copy of an unexecuted agreement. For example does it clearly show the total cost of credit?

[tamadus]

another thought - do we ever sign a copy of "the Agreement" anyway? From memory I thought we only had to sign an application for a card and then they issue the Agreement which you could decide to cancel if you choose.

 

We have a right to cancel it yes, but I have copies of executed agreements for some cards and application forms for others. The Executed agreement has to clearly state is is a 'credit agreement regulated under the consumer credit act 1974' and must include the cancellation clause. Without those it is not an agreement. The application form I was sent recently is not an agreement under the CCA because it doesnt state it or give the cancellation clause. It is nothing but an application form.

 

As an analogy would you expect to be able to drive simply because you applied for a provisional license but never actually got it or learnt to drive ?

 

Some companies are now titling the signature box of applications forms and including the cancellation clause in it so yes that could constitute an agreement.

[meagain]

An executed agreement has to be agreed by both parties. The only way of proving that is by signing it. The copy they have enclosed with your card is a copy of an unexecuted agreement. For example does it clearly show the total cost of credit?

 

Surely it is the terms of the agreement executed previously? Certainly the last card I received contained not only the T+C leaflet, but also the pricelist and a copy of the "summary box" that's becoming en vogue these days.

[tamadus]

Surely it is the terms of the agreement executed previously? Certainly the last card I received contained not only the T+C leaflet, but also the pricelist and a copy of the "summary box" that's becoming en vogue these days.

 

I agree but it's the copy of that previously executed agreement that I think s85 is refering to and not a copy of their latest version of it. If Barclaycard produce the agreement I signed then fine but I am not going to allow them to enforce on the basis of an application form, even if it does say I agree to their terms and conditions. Plus it never gave me notice that I could cancel it

[meagain]

Plus it never gave me notice that I could cancel it

 

Then your agreement is useless anyway

 

Why would S85 refer to the original agreement? If the agreement has changed, the terms of the original agreement are worthless, as they don't reflect the terms associated with the new card at the time it is issued, which ultimately is what S85 is all about. This might be the case for S78, but I don't see it being the case for S85.

[un1boy]

We have a right to cancel it yes, but I have copies of executed agreements for some cards and application forms for others. The Executed agreement has to clearly state is is a 'credit agreement regulated under the consumer credit act 1974' and must include the cancellation clause. Without those it is not an agreement. The application form I was sent recently is not an agreement under the CCA because it doesnt state it or give the cancellation clause. It is nothing but an application form.

 

As an analogy would you expect to be able to drive simply because you applied for a provisional license but never actually got it or learnt to drive ?

 

Some companies are now titling the signature box of applications forms and including the cancellation clause in it so yes that could constitute an agreement.

 

So, if I've been sent my agreement which is titled, 'credit agreement regulated under the consumer credit act 1974' and says refer to the terms and conditions, but there's no cancellation clause on that page/agreement, is the agreement unenforcable/incorrect?

[Mike220359]

Further to post 257.

 

Meagain, the original executed agreemnet is the crux of all matters realating to the CCA. Because within that agreement there is a clause that allows them to vary terms and conditions subject to the necessary notice.

 

Regardless of the fact that a new card is supplied with new terms and conditions, the only way those terms and conditions can be enforced is by the production of the original contract that allows them to do so.

 

I repeat what others have said the Unfair Contract Terms & Conditions Act is NOT cut and dried, in theory you have to contend that the offender has breeched contractual law, and they have to prove otherwise. And as Lickthewallfatboy has found in his case against CitiFinancial, a bank merely has to produce figures (which because of buisness privacy) do not have to be placed in the public domain which underscore his assertion that the fees applied are fair.

 

As I have said before 77/78 & 85 are safety valves. If the babnk breaks them it breaks the law - end of story. No legal argument, no anything, he breaks the law and it doesn't matter what clever lawyer is rolled out to defend them, they break the law. With all the ramifications that that causes.

 

I'll (once again) get off me soap box.

 

Mike

ps best regards Tam & Terminator

[Mike220359]

pps, how did you become a Gold Account customer Tam, I want to be one!!! lol

 

Mike

[Number6]

Why are we arguing about what constitutes a properly executed agreement?

 

The CCA is clear:

 

61 Signing of agreement

(1) A regulated agreement is not properly executed unless—

 

(a) 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, and

 

(b) the document embodies all the terms of the agreement, other than

implied terms, and

 

© the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible.

 

Section 60(1) says:

 

60 Form and content of agreements

(1) The Secretary of State shall make regulations as to the form and content of documents

embodying regulated agreements, and the regulations shall contain such provisions as

appear to him appropriate with a view to ensuring that the debtor or hirer is made aware

of—

 

(a) the rights and duties conferred or imposed on him by the agreement,

 

(b) the amount and rate of the total charge for credit (in the case of a

consumer credit agreement),

 

© the protection and remedies available to him under this Act, and

 

(d) any other matters which, in the opinion of the Secretary of State, it is

desirable for him to know about in connection with the agreement.

 

So a properly Executed Agreement MUST be signed by the debtor and the creditor in the prescribed manner and the document MUST contain all of the terms and conditions that you are agreeing to. Otherwise it's not executed.

 

So S85 means that a copy of the original agreement (signed by both parties) MUST be provided with every new card issued.

 

I have so far received only one copy agreement that seems to comply with all of this, the two other copies I've received are application forms only signed by me and not containing all of the T&C's

 

Pete (yes, I am still alive!)

[meagain]

Regardless of the fact that a new card is supplied with new terms and conditions, the only way those terms and conditions can be enforced is by the production of the original contract that allows them to do so.

 

That makes some sense in the case of a disputed agreement, but not in the context of an agreement not in dispute.

 

And as Lickthewallfatboy has found in his case against CitiFinancial, a bank merely has to produce figures (which because of buisness privacy) do not have to be placed in the public domain which underscore his assertion that the fees applied are fair.

 

Surely the claimant is as entitled to see the evidence presented by the defendant as the defendant is to that of the claimant? Blatant infringement on human rights otherwise.

 

As I have said before 77/78 & 85 are safety valves. If the babnk breaks them it breaks the law - end of story.

 

It's somewhat obvious that if it is set down in law and not complied with, they have broken the law. The argument is over whether or not they have actually broken the law, which in my mind is still somewhat dubious, especially given the different purpose of S85. It's important that you don't blindly equate it to 77/78, as the circumstances in which they apply is quite clearly very different. In both cases, the argument that the original agreement is needed and a signed copy needs to be produced are reasonable. It is also reasonable to argue that the T+C will do for S85, given its purpose. What is certain is that it is not reasonable for a bank to argue the same for SS77/78, given their purpose.

 

The big problem here is that not only is SS77/78 obvious, but there is also enough precedent for it, such as in the Wilson case where the defendant was unable to produce an accurate notice when called upon to do so. With S85, we're on new ground. From the judgements we've seen here, it has only ever been mentioned in passing, and in a way that would suggest that maybe the T+C might be enough. The possibility remains a possibility until a judge rules it out.

 

So S85 means that a copy of the original agreement (signed by both parties) MUST be provided with every new card issued.

 

See zootscoot's post above.

[Number6]

See zootscoot's post above.

 

I *think* we have crossed wires here.

 

Regulation 3(2) is a subset of 3(1); these only relate to copies of unexecuted agreements, i.e. any copy sent for approval or some other purpose and hence this is why the signature boxes etc can be left out.

 

3 (1) & (2) do not relate in any way to executed agreements.

 

Pete