Cap1 & CCA return

[tamadus]

Reading the MBNA case would i be right in thinking that the passing on of debts to outside agencies (DCAs) counts as supply thus incuring VAT?

 

its a bit above me mind I've gone cross eyed reading

 

Thats exactly how the case decided Ally. They can affect your eyesight and mental health like that lol

[tamadus]

He might have been LMAO maybe he already reclaimed his charges

[tamadus]

So how does the VAT work on DCA's do they include it in their recovery charges against the debtor or is their a loop hole again? as this would surely arise every time a debt is passed on between companies?

 

Hmm I assume they charge the VAT to the client company but it's a very good question.

 

Darnation Terminator every time I get my plan of action worked out you complicate it by finding new things to add into the cooking pot. Now I have to decide if I charge Barclaycard VAT on my claim as well as contractual interest

[tamadus]

No you don't charge Vat because you will only have to give it to another bunch of ******** ba****ds

 

Point taken Lmao and on that note and with due consideration that I have to get up in about 5 hours and drive 200 miles I am going to bed. speak soon.

[tamadus]

Tamadus: Are Barclaysharks and Lloyds IOU now classed as criminals? I hope the answer is yes. In about an hour im going to post something that is going to blow everything out of the water.Watch this space.

 

The 30 days allowed for them to reprieve themselves and surprise me expired YESTERDAY, so yes they are now in criminal default. Letter going to them both over the weekend.

 

OOOOOH any hope of a preview in email ??

[tamadus]

I'll be watching lmao

[tamadus]

OK letter to Barclaycard and Lloyds TSB drafted and posted here for comments.

 

I refer to my letters dated 17th August 2006 which was delivered via recorded delivery to your offices on 21 August 2006, and my follow up letter dated 15 September 2006.

In my letter of 17 August I made a formal request for a copy of the signed, executed credit agreement for the above numbered Barclaycard account under section 77(1) and section 78(1) of the Consumer Credit Act. In addition a statement of my account should have been sent along with any other document mentioned in the credit agreement.

The Consumer Credit Act allows 12 working days for this request to be carried out before your company enter into a default situation. If the request is not satisfied after a further 30 calendar days, Your company commit an offence. These time limits expired on 5 September 2006 and 5 October 2006 respectively.

As you are no doubt aware subsection (6) states:

If the creditor under an agreement fails to comply with subsection (1)—

(a) He is not entitled, while the default continues, to enforce the agreement; and

(b) If the default continues for one month he commits an offence.

Therefore as at 5 October 2006 this account became unenforceable at law and it is now my intention to refer this matter to the enforcement authorities.

In addition it is also my intention to notify CCCS that this account is no longer enforceable and that payments to it should cease immediately. Any default notices or adverse comments your company have recorded on my credit reference file should be immediately removed.

Additionally any monies I may have paid to your company should be returned to me forthwith.

Failure to respond favorably to this letter within seven (7) days of receipt will result in immediate litigation being commenced against your company without further notice.

I await your rapid response.

Yours Faithfully

Tamadus

[tamadus]

Thanks Terminator, lets hope it has the desired affect.

 

Just been looking through that appeal to the House of Lords, thats another appeal of the case you posted a few days ago. Great find and it makes me even more convinced we are right in our thinking. Now I am tempted to challenge their adding charges into our account balances as that will affect the amount of credit.

 

It was nice to see that every one of the Law Lords agreed totally with her appeal verdict.

[tamadus]

know dout you will already know about this one but hear it is again

Woodchester v Swayne & Co [1998] EWCA Civ 1209 (14 July 1998)

 

Thanks for that pford, I actually hadnt read that case. Nice precedent where a default notice isn't exactly right in what it says.

 

For the men in black reading this ..... Watch out Tamadus and Terminator are on your case now.

[tamadus]

what’s the nuke at now a 3 or 4 yield

 

I have a feeling the credit industry is about to find out what the Big Bang at the start of the universe felt like

 

So Barclaycard want to hide behind their stupid microfiche argument do they ? Lets see what you make of CCA sections 78 and 85 fired both barrels at point blank range

[tamadus]

Many thanks pugsley I am sure we will

[tamadus]

un1boy,

 

I made a request for a copy of the original, signed , executed credit agreement under section 77 and 78 before I realised that section 85 had a very similar although not exactly the same affect.

 

If the don't or can't supply the agreement under section 77/78 then again the agreement is unenforceable as long as they are in default. So until they produce the document the only thing they can do (and it's unlikely they will do it) is to go to court and ask a Judge to enforce the debt. A Judge is unlikely to do that just because they ask and may or may not have an application form. Without that paper they effectively have to write off the entire debt. In addition if the debt doesnt exist today then in the eyes of the law it has never existed, ergo they have to repay any interest etc they have charged me since the day it began.

 

Both Barclaycard and Lloyds TSB Trustcard have now exceeded the time allowed by the CCA and are effectively in criminal default. They cannot enforce the debt ouytstanding or pass it to any other company for enforcement.

 

I promise they will try and fight this but they can only win if they have that paper and they are then going to have to explain to a court why they didn't produce it within the allowed timespan.

 

As I fallback in case they do produce it and save their necks after the fact I will then drop back to using section 85 and again they cannot profit while in default so have to refund about 25 years of interest.

 

I only ever started looking into this because they hide behind their microfiche argument and refuse to provide data under my S.A.R - (Subject Access Request) request

 

footnote for the men in black: try stalling my claim and I will hit you with a section 85 claim. You should know what that means. heck I might do it anyway just for fun:D

[tamadus]

Hi there,

 

Thanks for this. so, is the request youa re sending now a request for docs under sec 85? That's what's confusing I think, lol. sorry.

 

Nope lol I am following up and chasing them for failing to provide the signed agreement under a section 78 request I made in mid August. Its very similar but I need to follow this as it was started before we realised the implication of section 85. That will follow if they do happen to come though with my 78 request.

 

Just as an example of their complacency I wrote to GE Money on 25 September telling them they had now exceeded the 40 days allowed for an S.A.R - (Subject Access Request) under the Data Protection Act. I got a reply yesterday letting me know they have received my request and would send the documents within the next 40 days as allowed by the Data Protection Act :o Sorry GE Money your in breach of the DPA and I am on your case now as well In addition they passed it to a DCA even though the account is in dispute so tough luck GE Money I don't deal with DCA's who should not be involved according to law.

[tamadus]

ok folks sorry been up to my neck in my real job last few days. Thanks for looking after things Terminator.

 

Basically a credit agreement has to be signed by both parties. If it isnt then it is unenforceable. This applies to CC companies banks , pawnbrokers, and catalogue companies. If they supply credit either through a running credit or fixed credit agreement then that agreement is regulated by the CCA and comes under its terms and conditions. If they fail to keep proper records or follow the CCA then they are liable.

 

If they cant or wont produce the documentation for the customer a judge is going to take a dim view of it if they then try to have it enforced in court whether they produce the documents or not. A court is very unlikely to enforce it without that paperwork.

 

Mike, I actually dont think time limits will play an important part as we can prove criminal negligence (or intent) by these companies to decieve us all over a period of many years. The deception is paramount as others have said to offences under the theft act. If an individual can be prosecuted 20 years after commiting theft so can a bank or CC company. We are actually talking public fraud on a big scale here, once this breaks its going to mean open season. I am actually scared to think what the total amount might involve.

 

They are not allowed to make a profit while in default, if that default goes back more than 6 years as a result of their deception why should we, the consumer lose? for a court to enforce time limits would be paramount to allowing them to profit over several years because of our trust in the banks etc. If we lose because of it then they are profiting.

 

This whole situation of them being in default has been created by themselves, I cannot see any court allowing them to make millions in profit from their offences. I am tempted to think they are also guilty of money laundering offences by profiting whilst in default.

 

As Terminator has said the Wilson v First County Trust (and other cases) have proved the point on every occasion including the House of Lords. Legal precedent has already been established to some degree regarding unenforceable contracts.

 

My guess is the companies will either try and go to court to bully us out of it or pay up and want confidentially agreements for as long as they can keep it quiet.

 

had chance to speak to a solicitor friend today who immediately grabbed his books and cross referenced with new updates of the CCA. Just like Terminators solicitor friend he confirmed they are in deep doo doo. In fact his entire office went silent before exploding

 

Letters have gone to both Barclaycard and Lloyds TSB under section 78(1) who are both noticeable by their silence so far, the bang when it happens is expected to be off the Richter scale

[tamadus]

Thanks for this info. I have been supplied with the agreement for ym credit card, which was signed by me on one date and signed beneath by the bank on the day before!!!!

 

Is that leagal? Wouldn't they need to sign it on the same day/at the same time?

 

Its actually very rare that contracts are signed on the same date so yes it's perfectly legal.

 

look at section 85 though Un1boy as its possible that if the card has been replaced since the account began but they didnt suppyly a copy of the agreement along wiht the replacement then they may still be in default

[tamadus]

Thanks for the clarification and the update tamadus.

 

I have to agree with you that a judge is not going to care much about the statute of limitations, as the way I read it as a layman, this falls under criminal law and not common law. So it is theft and not just a dispute about a contract. But I'll follow the advice of the leagal eagles

 

Regarding the Catalogue companies, I am on the verge of starting claims against Littlewoods, Empire, Choice, Empire, Fashion World and Simply Be, regarding unfair penalty charges. I would be quite happy to try the route of S77;S78;S85, but would need guidance as I am only just getting to grips with taking companies to task with Lloyds

 

If you have time and would like to test the case gainst any of the above, PM me with the details I will need to include in a letter and I'll get them started. Otherwise I'll wait until you have completed your test of this. Please see this as an offer as I am more than happy to wait if it is going to take up too much of your time. We all need to see to our families and do our daily work

 

Best Wishes

MoonHawk

 

Moonhawk, forget section 85 where a catalogue company is concerned. it only applies to the supply and use of a credit token (card or similar) However a section 77/78 (1) request may be worthwhile. Section 77 is for a fixed credit agreement and 78 is for running credit (as with a credit card)

 

If you make a section 77(1) 78(1) request they have 12 working days to comply and they then move into default status, they then have a further 30 calender days after which they commit an offence and the debt becomes unenforceable. They then have to go to court and ask a judge to enforce the debt, which he is unlikely to do unless they have the correct paperwork. PM me and I can go over the fine details with you:)

 

Both Terminator and myself are in constant touch with a couple of solicitors who are saying the same things independantly of each other so I am certain we have the facts right

[tamadus]

Hi tamadus, I am at a similar stage to you with 2 DCAs who have defaulted. I have sent a similar letter to the above to both of them requesting removal of default and notification that the account is settled. I have given them 14 days to comply. I had a reply from one of the DCAs apologising for the delay and they will send out the agreement shortly. I have written back stating they were unable to send it out in the timelimits as detailed in the cca section 78(1) and will still be proceding with court action at the end of my 14 days regardless. I am wondering if you or any other readers have filled out a particulars of claim for court summond that I could utilise as a template for my own? Also do you agree the best action is to ask for a small amount (£100?) in compensation and removal of default so the action is put through small claims court? Or am I best to go thefull shilling and Data Protection Act S.A.R - (Subject Access Request) the DCA and put in a small claim for the monie sI have alreday paid to the DCA? Surely they are more likely to defend such an action?

 

Gargoil, sorry missed this post yesterday. Are they in default or have they gone past the 30 days so they are now commiting an offence ?

 

Sorry I haven't got to the stage of frustration of issuing a court claim yet but I think somebody else has over DPA and if I recal correctly they entered a nominal amount of damages.

 

My letter above details the way I am going at the moment. Failure by Barclaycard and Lloyds TSB will result in me taking further action, firstly the payments will stop lol that should get some sort of response from them

[tamadus]

Good point Tam, I'm not going to pour water over anything you have said. I'll keep watching with interest.

 

Mike

 

Thanks Mike and I still want details (privately) of the 3 your chasing LOL

[tamadus]

hi

i noticed this under the CCA ss.62 and 63. probably been covered but if the creditor has not signed the agreement, when the debtor does, as with normal credit card applications.....then the creditor must within 7 days send a copy of the executed agreement, or before or at the same time as the credit token is given to the debtor;) i know i never got one from either cap one or barclaycard......can some one advise please:D

 

Your quite correct, they should have sent you a copy of the executed agreement, idealy before they send the credit card so you have a cooling off period as prescribed in the CCA.

 

I think I would send a section 78(1) request asking for a copy of the executed agreement, and carefully check the dates on it ( if they actually send it). I didnt remember having one from Cap 1 but they produced it very quickly. Barclaycard tried sending me a copy of the application form lol and have been very silent ever since. Bet the letter they get tomorrow wakes them up.

[tamadus]

Hi guys, I just found this thread and I have very quickly glanced through it 'cos it's late (will go over it in more depth tomorrow) but can anyone tell me if the credit-tokens we're talking about could include debit cards or cheques?

 

A credit token will include a credit card and a credit card cheque as that draws against a line of credit provided by the credit card. A normal bank chaeque and debit card are not credit tokens as they draw against an account balance and no credit is involved.

[tamadus]

SE16090 - Vouchers and credit-tokens: meaning of credit- token

 

Section 142(4) and (5) ICTA 1988

 

A “credit-token” is something which merely has to be produced in order to obtain goods and services without immediate payment. It does not have to be capable of being exchanged for goods or services.

 

A credit-token is “any card token document or other thing”, except a non-cash or cash voucher, which is given to a person by someone who undertakes:

• to supply money, goods or services on credit on its production, for example, a credit card supplied by a retailer or
  
• to pay a third party for the supply of money, goods or services on its production to that third party, for example, a credit card like a Mastercard or Visa card supplied by a credit card company.

A charge to tax arises where such a credit-token is provided for an employee or a relation ( SE16080) by reason of the employment. For the amount chargeable as an emolument see SE16140.

 

The use of a “credit-token” to operate a machine, for example, a cash dispenser, is deemed to constitute its production.

 

The charge arising from the use of credit-tokens eliminates any argument over whether the payment by an employer of credit card bills run up by an employee is a discharge of the employee's pecuniary liability ( SE00580). There is thus a uniform charge on all employees in these circumstances however the credit card facilities are provided.

 

reposted from pugsleys post for clarity

[tamadus]

thanks - I was just wondering about where it doesn't draw against an account balance, where for example you have an overdraft situation.

 

I think an overdraft situation comes under the auspices of a fixed credit arrangement. A standard cheque/debit card although they are tokens, promise to make payment from an account (which in theory should have a positive balance) as opposed to drawing on a line of credit.

[tamadus]

Thanks tamadus. I don't know what a fixed credit arrangement is, but you've said should here, is that your opinion or based on fact?

 

I just found this information on a website Credit Agreements :

 

 

Credit Agreements

 

 

If you have taken out a cash loan or some other financial arrangement then you will probably have entered into a credit agreement.

This is an agreement that allows you to pay for something at a later date rather than now. Credit agreements are covered by a law which means that if you break the agreement you can sue or be sued.

The law is set out in the Consumer Credit Act 1974 and only covers agreements for credit up to £25,000, but not more than this.

If you have a credit card, charge card, cheque, coupon, voucher, etc., these are all types of credit agreements.

If you buy goods which you take away with you, but pay the price in instalments this will also be a form of credit agreement.

If you pay for the goods in instalments, but are not allowed to take the goods until the final payment then this is also a form of credit agreement.

Hire Purchase agreements are also credit agreements. This is where you pay by instalments to use the goods, but have an option to buy the goods if you want to after all the instalments have been paid. If you have taken a loan from a friend or relative however, this is not a credit agreement protected under the Act.

 

 

 

What do you think?

 

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.

[tamadus]

thank tamadus

i had already sent for cap one agreement and they have sent it but there is no date on it from them i have dated it, but they never. just scribbled a name......oh well don't want to deviate you from the original purpose of this thread. let me know how you get on with barclaycard:D

 

This thread is for any discussion regarding the credit agreement and the CCA poltmcm so your not deviating it at all. I have no doubt they hold a lot of agreements that they haven't signed, and do it only when they need to produce the document, unfortunately it's almost impossible for us to prove that. I'm not sure what affect their not dating the signature might have, but I suspect very little.

 

Just checked on Royal Mail website and the letter has landed on somebodies desk this morning, if you feel an earthquake starting its centred on Barclaycards offices

[tamadus]

Thanks for clearing this up.

 

I am aware if the sec 85 though - are we waiting for you to tes tthe case, or should we start writing to them about this?

 

Oh I'm elected to try it first am I ? lol

 

I was going to finish dealing with my claims under section 78 first but OK I'll pick a card at random that I havent started a claim for yet and send a letter. May have to be one I have already settled my charges claim with though as I am running out of accounts old enough to have issued a replacement card lol.