ADDABET vs GOLDFISH

[Peterbard]

My Last word Honest

 

For what it is worth.

It is not a mater of what a judge may think or do, the judge can do nothing the agreement is unenforceable. As for a default being registered how can a default be made on a agreement that does not legally exist?

 

Regards

 

peter

 

Peter

[alanfromderby]

Chaps,

 

Some very interesting and useful reading there:D , so am thinking i should sit tight say nothing and pay nothing???

or should i write to them saying this ???

or report them to the Information Comissioners Ofiice ???

or complain to the Trading Standards ???:-|

 

 

....and there you have the dilemma.

 

I think the discussion has covered most of the arguments, and clearly the law is on your side. It really depends on how vigorously you wish to pursue the matter.

[ADDABET]

Quick update,

 

Just received a copy of my signed application form and terms and conditions .At first i thought great this isn't a true copy of a signed agreement but on closer examination noticed in the top left hand corner (in small print) it states that this is a 'Credit Agreemnet regulated by the Consumer Credit Act 1974. ???

 

Problem is now how can i prove if need be that i got after 30 days ???

[ADDABET]

Quick update,

 

Just received a copy of my signed application form and terms and conditions .At first i thought great this isn't a true copy of a signed agreement but on closer examination noticed in the top left hand corner (in small print) it states that this is a 'Credit Agreemnet regulated by the Consumer Credit Act 1974. ???

 

Problem is now how can i prove if need be that i got after 30 days ???

[Peterbard]

Hi

 

Don't Panic ,first check that it is in fact a correctly executed agreement.Does it contain all the prescribed termsie

APR

Credit LImit

Amount of credit

Rate o frepayment

Cancellation details

 

I know Tam has a lot of experiance in this area so it would be as well to check some of his earlier postings.

Also check that the agreement does not say dependant on credit check or words to that effect. as that would not make it an offer of an agreement.

 

Let me Know

[Peterbard]

HI

Just double checked

If what they have sent you is just a copy of your apliction then it is not acceptable as a true coy of your agreement.

There would have to be two documents an aplication form and an agreement.

IN my opinion since the company cannot give you one of the prescrbed terms (the credit limit ) untill they have processed the aplication the agreement is invalid. Anyone dissagree?

I have noticed that many credit card agreements say ."We will give you notice of your credit limit and we may change them at any time ".To try and cover this but it does not wash IMO.

Section 59 which states:

Agreement to enter future agreement void

 

(1) An agreement is void if, and to the extent that, it purports to bind a

person to enter as debtor or hirer into a prospective regulated agreement.

 

Also according to the OFT guidlines 2004 13(4):

 

"A loan cannot be considered as guaranteed or pre-aproved unless it is free from regarding any credit conditions of the debtor."They are attempting to have their cake and eat it offering you an agreement when they have not checked your credit record so they can just walk away from it if it doesn't cut muster, this would qualify as a prospective agreement which is void.

 

Regards

Peter

[ADDABET]

Peter,

 

In answer to your post................

 

No APR

No Credit Limit

No Amount of Credit

No Rate of Repayment

 

There is a right to cancel box saying 'Once you have signed this Agreemnet you will have a short time a right to cancel. Exact details of how and when you can do this will be posted to you with your Goldfish Card'

 

There is mention a few times of this paperwork being a agreement but the title at the top says 'Your personal application for the Goldfish Card'.......................

 

All very misleading i'd say............................

[ADDABET]

Deleted

[Peterbard]

HI

Send them a letter back with a photocopy of the letter they sent you saying

 

Thank your recent correspondance regarding my request under section 77 of the Consdumer Credit Act,as you know the item requested must be a true copy of the agreement made at the execution of the contract. I must point out that the document sent contains none of the prescribed terms as discribed in section 60 of the Consumer credit act and theredore was not correctly executed and theredore woud be unenforceable in law. I must also point out that you are now in a default situation and you may not under section77 pursue this alledged account.

 

As no executed agreement seems to exist i must insist that you remove any defaults or reports that were instigated by information provide by yourselves as you have not recieved my permission to share any of my personal data.

 

I am sure you are aware that by not providing the information you have now comited an offence and may be reported to the OFT and the ICO

[ADDABET]

Peter,

 

A letter is winging its way to Goldfish................thanks for that.

 

Let's see what they come up with next.........................

[ADDABET]

Have noticed Goldfish have just reduced my credit limit............

 

On a side not as i'm in dispute with Goldfish and believe the debt is now unenforceable at the present time iv'e cancelled my repayments, i assume this is the correct procedure ??? as i know there adding charges to my statement..............

 

I tried to explain when there collections dept rang me for a payment but this as expected fell on deaf ears................

[ADDABET]

Well have just recieved an offer of £191.00 along with the same crap they sent me last time which isn't what i requested at all in my CCA Request:-x .

 

They clearly don't understand what the law requires them to supply me and at the same time try to fob me off with there delaying tactics and there belief that the information and offer will shut me up...............

 

I will again reiterate to the them the debt by law is unforecable as they haven't conformed to my original CCA Request and deadlines.................

 

God this gets painful !!!

[JonCris]

doesn't it just!

[ADDABET]

Quick update,

 

Just sent another letter to Goldfish for what its worth.................

 

Basically iv'e said they haven't complied with my original CCA Request yet again and that they were originally over the deadlines for supplying the information so by law i believe the debt to be unforceable...........

 

Bet this won't stop them sending me information to fob me off and getting phonecalls for payments from there collections dept

 

Complete to$$ers !!!

[ADDABET]

As i thought Goldfish's response shows there complete ignorance/incompetence once again.............

 

They sent me ( a load of crap basically with a make shift credit agreement not the signed copy of the original) what they believe is complying with me request and so inturn believe the agreement is enforceable...................

 

They just don't get it do they, know matter how many times you tell them they continually persist in not complying with the laws that there meant to adhere too and furthermore pressure you with there demands and what information they think is satisfactory to give you.............

 

Not sure wot to do next apart from not pay them anything...........

[zubo]

As i thought Goldfish's response shows there complete ignorance/incompetence once again.............

 

They sent me ( a load of crap basically with a make shift credit agreement not the signed copy of the original) what they believe is complying with me request and so inturn believe the agreement is enforceable...................

 

They just don't get it do they, know matter how many times you tell them they continually persist in not complying with the laws that there meant to adhere too and furthermore pressure you with there demands and what information they think is satisfactory to give you.............

 

Not sure wot to do next apart from not pay them anything...........

 

I must say AA I nearly jumped in with both feet in response to Alan's comments, but luckily Peter got there first.

 

My own position is very clear, and a word of warning... Alan I admire enormously he judges situations ctitically and I personally appreciate that, I, on the other hand would best be described as a chancer, someone who like to use his b+++s as a brake riding on the edge of a razor blade... so my views are extreme.. I'm not proud of it .. its who I am. So we are talking high risk strategies.

 

I also would point out that I have never denied that I owe money or have no debt and perhaps to paraphrase Alan's posts, I am using a technicality to circumnavigate repaying that, but that to me is how things need to be. I never considered doing anything like this until Amex decided that they did not wish me to use their card - and all that was over three late payments in the previous 15 months... sheer arrogance.

 

Once I started looking more into this I realized that all these CCP are pure out and out crooks. Pure simple greed.

 

Enough.

 

Alan is wrong - the CCA applies to whoever has aqcuired the debt so if a DCA has bought it then he is obliged under CCA legislation to provide you with a true copy of the executed agreement. As Peter says, we have debated this on the main CCA thread, an application can never be construed as an agreement and it does sound like you have a number of prescribed requirements missing. In addition, an application is pre-contractual and despite use of the card and proving transactions occured cannot substitute for the missing executed agreement.

 

In addition, it is something else which I will be developing a response to based on Surlybonds great work, because there is no executed agreement then there has been given no consent by you to share your data. Consent is a primary requirement within the context of DPA for a CRA continued processing of your data as is also the executed agreement. Absence of both makes it impossible to see how a CRA can process that data.

 

Alan is correct in that you need to clearly understand what you wish to achieve and more importantly the risks you are prepared to take. So its your call on how you wish to procede.

 

Give us your thoughts or pm me.

 

Z

[ADDABET]

Think i'll sit tight and say nothing and pay nothing..............

[alanfromderby]

Alan is wrong - the CCA applies to whoever has aqcuired the debt so if a DCA has bought it then he is obliged under CCA legislation to provide you with a true copy of the executed agreement. As Peter says, we have debated this on the main CCA thread, an application can never be construed as an agreement and it does sound like you have a number of prescribed requirements missing. In addition, an application is pre-contractual and despite use of the card and proving transactions occured cannot substitute for the missing executed agreement.

 

 

Can I just clarify my position on this, as I am not sure that I ever said that the CCA did not apply to any DCA.

 

What I did say (erroneously), was that the DCA would not necessarily have to rely on the CCA to push for repayment. However, I was then directed to the House of Lord's judgement which clearly showed that where an agreement was not available, or was faulty, then not only is the agreement unenforceable - but the lender has no other recourse available to collect outstanding monies, or goods.

 

Clearly, this applies to any DCA, as well as the original lender - although we have seen several DCA's threaten action under "property" legislation.

 

My main concern is that by taking a pro-active role, we have to place these issues in front of a District Judge.

 

If Goldfish (or a DCA) were to issue a claim for monies owed without a valid agreement - then clearly the case would not get very far at all. Without a true copy of the agreement, it should be fairly easy to seek a strike out.

 

What would seriously worry me, is where a customer initiated action against a lender for removal of a default, and/or refund of charges, on an account where the customer knew that a large amount was legitimately owed (notwithstanding the lack of agreement).

 

In such a situation, I could see a District Judge accepting that, under the letter of the law, the agreement was unenforceable - but that costs be awarded to the bank on the basis that the claimant was trying to have his cake, and eat it.

 

I certainly think in this case, to sit back and wait for Goldfish to make the next move is probably your best option.....but, I am also still concerned that they may issue a default, at which point you have to think very carefully about how to deal with that.

[Peterbard]

In such a situation, I could see a District Judge accepting that, under the letter of the law, the agreement was unenforceable - but that costs be awarded to the bank on the basis that the claimant was trying to have his cake, and eat it.

 

Hi

Sorry i ddin't use the quote because it was only this small section that i have a problem with.

Firstly why is there is this distinction between a district judge and any other he doesnt have any more powers or does he ?

I know he is able to sit in both civil and criminal cases but not simulataniously and he is only the instrument of the law when all is said and done.

 

Secondly how can a judge award costs on a hearing that has noty taken place because the plaintifs case is unenforceable.

I am not trying to be smart i really would like to know the logic behind this.

Best Regards

 

Peter

 

 

 

[zubo]

I certainly think in this case, to sit back and wait for Goldfish to make the next move is probably your best option.....but, I am also still concerned that they may issue a default, at which point you have to think very carefully about how to deal with that.

 

Alan,

 

Taking your last point - if you assume that the agreement is unexecuted then they have failed to comply with the Act and as such is unenforceable and the Creditor is in default - so they cannot enforce it, issue defaults, make charges UNTIL they either comply with the Act or obtain a judgement.

For the debtor to take this to court as you quite rightly say is high risk - it can go either way and the judge may under certain circumstances issue an enforcement order with costs.

Each of us, as I said, will have to take a view on the status of the agreement and what actually is amiss and consider the implications and associated risks.

 

Z

[alanfromderby]

The "difficulty" with the County Court is that it was set up as means to push through low value claims as quickly as is practically possible, at a reasonable cost. Of course, this is also a positive as well, since it allows people to take on big companies without the need for a solicitor.

 

Perhaps to cite a District Judge as being the problem is wrong, what I am saying is that a judge sitting in the county court seems to have leeway to seek a balanced decision between the parties - rather than a black and white, right and wrong judgement.

 

Whether this is written down in law, or is an interpretation of the CPR that has just become acceptable practise, I am not sure. Certainly though, the way that different county court judges deal with similar cases is well documented on this forum.

 

To answer Peter's second point, my argument was based on the circumstances of a customer making a claim for removal of an unlawfully applied default, and/or reclaiming charges on an account that they had stopped making payments to - but where they clearly owed more to the lender than the charges applied.

 

As Zubo says, "each of us will have to take a view on the status of the agreement and what actually is amiss and consider the implications and associated risks".

 

My comments are based on the experience we have gained on this forum from those who have trod the county court path.

 

Clearly it is perverse to see a claimant having costs awarded against them when they have the law on their side....but it happens, and to blindly go into a legal claim without considering that fact is dangerous, and potentially very expensive.

[Peterbard]

Hi

I am sorry if i am being a bit thick here but just to simplify, are you saying that costs can be awarded against you even if you win or if the case is thrown out because it is uneforceable?

 

 

Regards

Peter

[alanfromderby]

If a claim is commenced by the other party, and is thrown out due to an unenforceable agreement then no.

 

If someone issues any court claim and wins, then a judge has always had the power to award costs against them if he was to feel that the action was (in his mind) unreasonable.

 

This often happens in libel claims, and can leave someone with an extremely hollow victory.

[Peterbard]

Hi

 

Thank you i was unaware of this it is something i have not come accross before and as you say it bears due consideration.

 

Regards

Peter

[birchave0]

I sent my request to Goldfish for a copy of the CCA and all I got was a new, blank, unsigned agreement with March 2007 on it, they asked me to sign and return it! I've had my goldfish card since 2001!!!!!