Cap1 & CCA return

[meagain]

(1) Whenever, in connection with a credit-token agreement, a credit-token (other than the first) is given by the creditor to the debtor, the creditor shall give the debtor a copy of the executed agreement(if any) and of any document referred to in it.

 

(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.

 

I actually had to double-check both of those myself for a moment.

[Number6]

I actually had to double-check both of those myself for a moment.

 

Just for clarity you are saying that the copy of the agreement that must be supplied as per S.85 has to be a true copy, i.e. complete with signatures of both parties?

 

And that Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 R3(1) and R3(2) only relate to pre-agreement unexecuted documents?

 

Pete

[Mike220359]

I'm sorry meagain, I wish that I had stuck by my assertion in an earlier post that I wouldn't join in an exchange with you, and this will be the last time that I do.

 

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

 

Are you being deliberatly obtuse?

Section 85 deals with the issue of new cards, nothing else.

If new terms and conditions are imposed by the creditor he merely needs to give you notice (I think under the 1974 act 7 days notice) he doesn't have to produce the oroginal agreement in this case.

 

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.

 

Good grief no. If he states that the information is sensitive in the business sense he can ask for the evidence to be given in secret, as CitiFinancial did in their case. Its up to the judge to determine whther they can do it, and up to the plaintiff to protest.

As for human rights (I've scrubbed out what I originally replied to this point) suffice to say they do not apply, and I'm not going to engage in any debate on this point. There is enough information on this site regarding the limitations of the Human Rights Act.

 

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.

 

I always think that my mother in law had some wonderful quotes for these exact situations. One easily comes to mind,

'Where ignorance is bliss 'tis folly to be wise' Mary Kathleen Roberts 1914-1991

 

See zootscoot's post above.

 

As my signature says, when business is concluded I will post details of my exchanges with, Barclaycard, RBS and Lloyds TSB (oh did I use section 85, you know I think I did!)

 

Mike

 

Best wishes Tam & term.

[Mike220359]

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

 

I totally agree, just why are we? Threads go back to the early moths of this site stating what it is.

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

 

Spot on

 

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

 

Then the one you have recieved that has complied with the act is enforcable (incidentally was that signed after 1st Jan 2004 or was it from the RBS or HBOS group?), the others aren't. As has been said elswhere many times.

 

Mike

[Mike220359]

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.

 

Then I'm afraid they have broken the law.

 

Mike

[Number6]

 

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

 

Then the one you have recieved that has complied with the act is enforcable (incidentally was that signed after 1st Jan 2004 or was it from the RBS or HBOS group?), the others aren't. As has been said elswhere many times.

 

Mike

 

The agreements that appear to be correct are from Egg. There are three agreements;

 

1) Egg Credit Card. I've just noticed that the agreement is signed and dated by me as 26/3/03 but signed and dated by Egg at 25/3/02. The form was sent to me originally in 2002 so it appears I dated it incorrectly

 

2) Egg Money Account. Signed and dated by me at 25/5/04

 

3) Egg loan. Signed and dated by me at 15/6/02

 

The two "incorrect" agreements are from Morgan Stanley and Sainsbury's, both CC's

 

Pete

[tamadus]

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

 

Mike

 

PM sent Mike

[tamadus]

I'm sorry meagain, I wish that I had stuck by my assertion in an earlier post that I wouldn't join in an exchange with you, and this will be the last time that I do.

 

 

 

As my signature says, when business is concluded I will post details of my exchanges with, Barclaycard, RBS and Lloyds TSB (oh did I use section 85, you know I think I did!)

 

Mike

 

Best wishes Tam & term.

 

I am dealing with Barclaycard and Lloyds at the moment and again will post full details once its concluded. I should be getting a letter from a Senior Card Manager at Lloyds TSB ( wow I'm impressed at fancy titles ) by monday so looking forward to that

[tamadus]

Thanks for covering for me Mike, work has been even more hectic than normal lately and finding time to respond to all posts is getting difficult. I'v taken today off as I have a chest infection or cold started thats caused a terrible cough and burning chest so hopefully I can make some comments.

 

Firstly lets get it clear that sections 77/78 are included to allow the consumer access to the credit agreement at any time for either fixed or running credit agreements hopefully there is no argument regarding that or the very obvious reasons for it.

 

I have no idea why section 85 was included in the act unless one of the legislators that drafted it felt a very good reason for it. It is still there after the 2004 and 2006 (which don't come into effect until 2008 revisions of the act so obviously its inclusion is still considered important by legislators over 30 years after the original Act.

 

I believe it has a very important role as its wording is very precise. It's one of the few sections (77/78 included) that actually specify an offence can be committed. It does NOT apply to the first card issued on an account, only to subsequent cards. The question now begs to be answered 'Why did the legislators consider it important enough for the agreement to be sent with replacement cards?'

 

I think this comes down to a good understanding of human nature, especially where money is concerned and when that human nature collects into a corporation. Almost without exception companies will sidestep the law in order to boost profits. We trust our financial institutions (or used to trust them) so if they can save a few pounds by sending us identical printed paperwork we accept that they are abiding by the law. Remembering the CCA was passed into law as a means of consumer protection I think section 85 is there so we, the consumer, have a safety net. Its there so that every couple of years we are reminded in black and white and reinforced by our signature of exactly what that bit of plastic really means. a leaflet of terms and conditions may form PART of the agreement but its isnt the be all and end all of it.

 

Most of us never read the legal bits, they are long winded and rarely make sense to most of us, and the companies have been using that for years to save themselves having to pull the agreements out of storage every time they issue a replacement card. In the process they have used ready made paperwork to convince us they are right. We are still seeing them attempt to defend their charges regime despite the overwhelming evidence and legal opinion and case law that says the charges are unlawful.

 

Most of us are happy to break various laws out of convenience and profit, But most of us are prepared to accept the consequences when we get caught. These companies want the convenience and profit but not the consequences.

 

I realise I am assuming a lot in my interpretation of section 85 and only a judge can confirm or deny it, but if my understanding of those few lines is wrong then I can see no other logical reason for it being part of the act after over 30 years. An act which has recieved a lot of scrutiny in those 30 years.

[tamadus]

The agreements that appear to be correct are from Egg. There are three agreements;

 

1) Egg Credit Card. I've just noticed that the agreement is signed and dated by me as 26/3/03 but signed and dated by Egg at 25/3/02. The form was sent to me originally in 2002 so it appears I dated it incorrectly

 

ohhhh so you didnt agree to the terms and conditions for 12 months after they did. I'm sure their is scope for another discussion in that somewhere.

 

2) Egg Money Account. Signed and dated by me at 25/5/04

 

3) Egg loan. Signed and dated by me at 15/6/02

 

The two "incorrect" agreements are from Morgan Stanley and Sainsbury's, both CC's

 

Pete

 

heehee

[Number6]

heehee

 

1) Egg Credit Card. I've just noticed that the agreement is signed and dated by me as 26/3/03 but signed and dated by Egg at 25/3/02. The form was sent to me originally in 2002 so it appears I dated it incorrectly

 

ohhhh so you didnt agree to the terms and conditions for 12 months after they did. I'm sure their is scope for another discussion in that somewhere.

 

Yes, I only noticed that this morning and I've been vaguely thinking about it ever since. I'm sure they should have picked that up and queried it before issuing my card. Maybe the agreement is not enforceable until the date I signed it? So a years worth of interest should be knocked off.

 

I'll keep thinking for the time being.

 

Pete

[Guest The Terminator]

 

Most of us never read the legal bits, they are long winded and rarely make sense to most of us, and the companies have been using that for years to save themselves having to pull the agreements out of storage every time they issue a replacement card. In the process they have used ready made paperwork to convince us they are right. We are still seeing them attempt to defend their charges regime despite the overwhelming evidence and legal opinion and case law that says the charges are unlawful.

 

That is exactly the way it is and nobody can argue with that.

Most of us are happy to break various laws out of convenience and profit, But most of us are prepared to accept the consequences when we get caught. These companies want the convenience and profit but not the consequences.

 

They seem to think that they are a law to themselves

I realise I am assuming a lot in my interpretation of section 85 and only a judge can confirm or deny it, but if my understanding of those few lines is wrong then I can see no other logical reason for it being part of the act after over 30 years. An act which has recieved a lot of scrutiny in those 30 years.

 

Section 85 can only be interpratated one way for the simple fact that it is written in plain English.People that are in the law profession that I've spoken to are still mystified that this section is very rarely mentioned and Megain just for reference I work in litigation unfortunatly it's housing and not consumer.

Anyway Tam this might make you feel better LOL. Apprantly Humpty Dumpty have made a loss of 36mill to the year for june blaming it on bad debt and the OFT are launching an investigation into the PPI so all in all not a good day for the banks and CCP'S.

[Guest The Terminator]

Then I'm afraid they have broken the law.

 

Mike

 

Correct Mike.I would imagine that their days are well and truly numbered.Can't wait to let my big firework off.

[tamadus]

Anyway Tam this might make you feel better LOL. Apprantly Humpty Dumpty have made a loss of 36mill to the year for june blaming it on bad debt and the OFT are launching an investigation into the PPI so all in all not a good day for the banks and CCP'S.

 

Ohhhh I hope they have enough to refund the 2-300 in charges they nailed me for about 18 months ago

 

Just in case they are watching, MY SAR was sent on my personal headed paper and has the address listed with you as my normal address, it also carried my personal signature and gave the account number. I have NO intention of playing your game and sending a utility bill to confirm my identity and then have you start the 40 days again. The 40 days started the date you signed for that letter and its running out fast. (only need it to confirm the date of 1 charge).

[tamadus]

generally it's a bad month for all of them now Terminator. Abbey lost the microfiche argument and so will Barclays soon Now a long overdue investigation into PPI.

 

I have always considered the British people to have a long fuse but we fight like hell once it's been lit and we get off our backsides. The fuse has been well and truly lit under the British consumer and the explosion is firmly aimed at anybody or company that has been taking us for a ride for all these years.

 

I'm almost tempted to lodge a claim for more than 6 years just to ask a judge to overule the 6 year time statute. Then I can raise a matter between me and Barclays about adding words into a contract AFTER it was signed that cost me about 5000 and was never resolved to my satisfaction. Now I simply cross through any empty areas before signing anything.

[Mike220359]

The agreements that appear to be correct are from Egg. There are three agreements;

 

1) Egg Credit Card. I've just noticed that the agreement is signed and dated by me as 26/3/03 but signed and dated by Egg at 25/3/02. The form was sent to me originally in 2002 so it appears I dated it incorrectly

 

2) Egg Money Account. Signed and dated by me at 25/5/04

 

3) Egg loan. Signed and dated by me at 15/6/02

 

The two "incorrect" agreements are from Morgan Stanley and Sainsbury's, both CC's

 

Pete

 

If I remember correctly Egg are part of the RBS group so their attention to detail doesn't suprise me, although that said I'm surprised at the discrepency in the date. Sainsbury's does surprise because (again I'm sorry if I am wrong they are part of the HBOS group)

 

Anyway the upshot is you know where you stand and where they stand as well.

 

Good Luck

 

Mike

[tamadus]

Yes, I only noticed that this morning and I've been vaguely thinking about it ever since. I'm sure they should have picked that up and queried it before issuing my card. Maybe the agreement is not enforceable until the date I signed it? So a years worth of interest should be knocked off.

 

I'll keep thinking for the time being.

 

Pete

 

For most circumstances for as long as our society has been around we have dated our signature as evidence of when it was signed, sure mistakes happen but they should be picked up on scrutiny and corrected where such important documents are involved. We all know our homes are the biggest financial investment most of us will ever make and our cars are considered the second biggest. I would rate our credit cards above my car as over the years its going to become a huge expense.

 

It's a matter of whether a judge would assume its nothing but a typo, although most of us make dating mistakes at the start of a year very few make the same mistakes in advance so you could argue it was deliberate.

 

In brief though its another point that proves how complacent they are with our financial details.

[tamadus]

If I remember correctly Egg are part of the RBS group so their attention to detail doesn't suprise me, although that said I'm surprised at the discrepency in the date. Sainsbury's does surprise because (again I'm sorry if I am wrong they are part of the HBOS group)

 

Anyway the upshot is you know where you stand and where they stand as well.

 

Good Luck

 

Mike

 

I thought Egg were part of the Prudential group now ?

[Mike220359]

I thought Egg were part of the Prudential group now ?

 

Just shows how things have changed! lol

 

Hope u get well soon Dave

Mike

[tamadus]

Just shows how things have changed! lol

 

Hope u get well soon Dave

Mike

 

Thanks Mike I think its just a nasty cold or flu

[Mike220359]

Thanks Mike I think its just a nasty cold or flu

 

Don't be daft its man flu everyone knows we get ill far worse!

[zootscoot]

Don't be daft its man flu everyone knows we get ill far worse!

 

Nahh its bird flu that is deadly! Lol

[tamadus]

Don't be daft its man flu everyone knows we get ill far worse!

 

LMAO I dont have time for it to get worse, sheeesh I have a fishing contest on Sunday lol

[tamadus]

Hey Zoot I'm not a bird

 

This did hit very fast and different to how I usually catch flu though so who knows. One thing is for sure it wont stop me making claims

[Guest The Terminator]

I've got plenty of fireworks to let off but im going to save my biggest firework for last.

 

From what i've heard tonight that biggest firework may well go off sooner rather than later:D

 

Mike & Tam speak soon