CCA's and Dave against the world !!!

[foolishgirl]

1. GF say they have sent copy executed agreement - did they? Or was it just the applic. form above (2a)? I don't see an executed agreement.

 

2. Difficult to read small print on applic. form but that doesn't look like a CCA.

 

3. Why have they copied current T&Cs onto back of applic. form? Would I be cynical in thinking it was done just to confuse you? Surely they're not doing it to save the planet's paper supplies?!

 

As the docs. stand (if no CCA sent) don't think they've supplied anything near an enforceable CCA but DFW will no doubt give you his views when he's around.

[noomill060]

DVD and foolishgirl- it would be easier to help you if you started your own threads.

 

No offence, but you are hijacking this one and it gets very confusing when this happens.

 

You'll get all the help you need, just start your own thread.

 

[robcag]

DVD and foolishgirl- it would be easier to help you if you started your own threads.

 

No offence, but you are hijacking this one and it gets very confusing when this happens.

 

You'll get all the help you need, just start your own thread.

 

 

Hi noomill

 

Not wishing to further hijack Daves thread, but this was pointed out further up the thread. dvdriley actually started his/her own thread and both Dave and myself searched it out and replied in it, suggesting s/he posted up his agreement, which s/he said he was going to do, so I'm not sure why s/he is continuing to post stuff here.

 

dvdriley's thread is here http://www.consumeractiongroup.co.uk/forum/general-debt-issues/153914-goldfish-cca-enforceable.html

 

Hi dvdriley, without wishing to sound unfriendly or unhelpful, it would be better as noomill says, to post your stuff in your own thread, as posting here is just lengthening and confusing Daves thread. Dave has already replied to it, so you have his attention!

 

Cheers and good luck

Rob

[foolishgirl]

Posts on Goldfish - dvdriley - reported to mods to merge.

[Guest dvdriley]

sorry to be thick, but where do i post now?

[foolishgirl]

Post on your own thread - Goldfish Cca Enforceable?

 

Everybody that has subscribed to/posted on this thread or your own will be aware when you put new Qs etc. up there.

[Guest dvdriley]

ta

[BlueSquirrel]

sooo, not wanting to sound like a thicky either, just to make sure I have understood this correctly. It is OK for the prescribed terms to be on the reverse of the agreement in a section marked T & C providing it refers to that in the bit you sign?

[davefirewalker]

sooo, not wanting to sound like a thicky either, just to make sure I have understood this correctly. It is OK for the prescribed terms to be on the reverse of the agreement in a section marked T & C providing it refers to that in the bit you sign?

 

YES....with an if.........

 

As long as they are within the document that you signed......on the back, on another page................but not in an extra booklet, and most importantly they must be linked to the signature page somehow.

 

what I am trying to say is that they could send you a copy of the "agreement" with your signature, and a copy of the terms that they "say" were on the back??? how do you prove otherwise?

 

in some cases they show default charges as being £12 this is only a recent development, so if your agreement was from 2000 and you got t&c's that state £12 then they are not from the same doc

 

Dave

[Acerfan]

Hi all,

I've just subscribed to the thread & I've got a couple of questions I'm hoping someone can help me with. Firstly, can anyone tell me if the judge in the Rankine case was Judge Brown? I ask because I've just received a letter saying the credit card company's complied with my s78 request by sending an application form and (undated) T&Cs & stating the issues have been interpreted in the high court by Judge Brown. It would be a great help if I can find out what they're referring to. As they've given me no more information, they're obviously hoping to intimidate me into giving up.

 

My second question is, can anyone send me the links for Wilson v FCT &

Wilson v Hurstanger please?

 

Many thanks & thanks for a great thread

[maybelline]

British and Irish Legal Information Institute

[foolishgirl]

The judge in the recent Rankine case was Judge Simon Brown. DFW posted a pdf of the judgement in this thread Post #752.

 

Maybelline's link above will take you to the case law in the Wilson judgments amongst other: you can also find it on these pages

This is a draft of the judgment to be handed down on ––––– 2000 at ––––– a.m. in Court No –––––. It is confidential to Counsel and Solicitors, but the substance may be communicated to clients not more than one hour before the giving of judgment.

 

The Wilson & Anor v Hurstanger Ltd [2007] EWCA Civ 299 (04 April 2007)

Edited August 3, 2008 by foolishgirl
split links

[Chalkitup]

Hi all,

I've just subscribed to the thread & I've got a couple of questions I'm hoping someone can help me with. Firstly, can anyone tell me if the judge in the Rankine case was Judge Brown? I ask because I've just received a letter saying the credit card company's complied with my s78 request by sending an application form and (undated) T&Cs & stating the issues have been interpreted in the high court by Judge Brown. It would be a great help if I can find out what they're referring to. As they've given me no more information, they're obviously hoping to intimidate me into giving up.

 

My second question is, can anyone send me the links for Wilson v FCT &

Wilson v Hurstanger please?

 

Many thanks & thanks for a great thread

 

Hello Acerfan,

 

This might help .... http://www.consumeractiongroup.co.uk/forum/legal-issues/147432-high-court-judgement-rankines.html Post 50 then reply by Dave Post 51

 

Onwards and Upwards

 

Chalkitup

[creditcardmug]

YES....with an if.........

 

As long as they are within the document that you signed......on the back, on another page................but not in an extra booklet, and most importantly they must be linked to the signature page somehow.

 

what I am trying to say is that they could send you a copy of the "agreement" with your signature, and a copy of the terms that they "say" were on the back??? how do you prove otherwise?

 

in some cases they show default charges as being £12 this is only a recent development, so if your agreement was from 2000 and you got t&c's that state £12 then they are not from the same doc

 

Dave

 

Hi, just an observation, surely its for them to prove they were on the back, not for you to prove otherwise.

Most of these are held on microfisch, so even when in court how can it be shown that the two pages if present are indeed the front and back of the same sheet?

[tifo]

Does anyone know if s.78 CCA 1974 and OFT debt collection guidelines apply to current account overdrafts as HSBC are saying they don't?

 

I've received a response to an 'unfair treatment' letter i sent to HSBC bank re their lack of CCA response and selling the account. They've referred to their solicitors as i allege many things.

 

Their letter states that a s.78 CCA request cannot be fulfilled because no credit agreement exists in relation to the overdraft because of Part V exemption etc. and that the CCA 1974 does not apply to current accounts because there is no 'credit'. Because of this, the OFT debt collection guidelines also don't apply.

 

They're quoting an OFT determination of 21 December 1989 and that nothing has to be supplied re s.78 and they don't have to comply with OFT debt collection guidelines. I can only find references to a determination of 1 February 1990 and in the Coutts & Co case.

 

Yet, at court for this account, their POC stated "payment due under an account regulated by the CCA 1974" and i got a CCJ. I still have this showing on my records even though i don't owe HSBC any money for this account as it was sold, but i've been told that the CCJ passes to the new owner even though it was given to HSBC.

 

I need to respond to them soon as it's been a few weeks but i cannot get a definate answer here.

Edited August 3, 2008 by tifo

[davefirewalker]

Hi, just an observation, surely its for them to prove they were on the back, not for you to prove otherwise.

Most of these are held on microfisch, so even when in court how can it be shown that the two pages if present are indeed the front and back of the same sheet?

 

In that case CPR rule 16(7.3) might be of some help

 

7.3

Where a claim is based upon a written agreement:

(1)

a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing, and

(2)

any general conditions of sale incorporated in the contract should also be attached (but where the contract is or the documents constituting the agreement are bulky this practice direction is complied with by attaching or serving only the relevant parts of the contract or documents).

 

 

dave

[creditcardmug]

In that case CPR rule 16(7.3) might be of some help

 

7.3

Where a claim is based upon a written agreement:

(1)

a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing, and

(2)

any general conditions of sale incorporated in the contract should also be attached (but where the contract is or the documents constituting the agreement are bulky this practice direction is complied with by attaching or serving only the relevant parts of the contract or documents).

 

 

Yes that helps but, if the originals were destroyed and only copies available from microfisch, i still dont see how it can be shown that the two docs are in fact both sides of one sheet.

Also if 7.3(1) is to be taken literally then copies of any sort are not admissable, is that correct?

[davefirewalker]

In that case CPR rule 16(7.3) might be of some help

 

7.3

Where a claim is based upon a written agreement:

(1)

a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing, and

(2)

any general conditions of sale incorporated in the contract should also be attached (but where the contract is or the documents constituting the agreement are bulky this practice direction is complied with by attaching or serving only the relevant parts of the contract or documents).

 

 

Yes that helps but, if the originals were destroyed and only copies available from microfisch, i still dont see how it can be shown that the two docs are in fact both sides of one sheet.

Also if 7.3(1) is to be taken literally then copies of any sort are not admissable, is that correct?

 

It would appear to be so.....

 

I dont know if it has been tested as yet ...but I would certainly include it in any defence

 

Dave

[creditcardmug]

Ok thanks for that, I expect to have to be arguing it in court at some point in the future, and I'm just trying to get the consensus of opinion before i start.

 

I realise its a contentious issue, but, as its the advice I'm giving out to posters on here I thought we ought to get as much clarity as possible, especially as a lot of people are raising it.

 

Thanks again

[car2403]

Ok thanks for that, I expect to have to be arguing it in court at some point in the future, and I'm just trying to get the consensus of opinion before i start.

 

I realise its a contentious issue, but, as its the advice I'm giving out to posters on here I thought we ought to get as much clarity as possible, especially as a lot of people are raising it.

 

Thanks again

 

Don't rely on it working, however, as I've recently used that argument in Court - admittedly a County Court, with a District Judge only - and it didn't work.

 

Long story, short; GE Money didn't have the whole agreement - only the first page, which has my signature on it. The remainder of the terms (excluding prescribed terms) were on pages 2-4 of the agreement, but GE admitted to no longer having them. When I mentioned the CPR mentioned above, the Judge said that GE wouldn't make such a mistake, ignored the fact they admitted they didn't have the original, nor the whole agreement, and dismissed my case against them as a result. Yes, I'm considering appealing, but this is what we're up against - regardless of what the Law and CPR says. Here's the link, if you're interested;

 

http://www.consumeractiongroup.co.uk/forum/other-stores/110148-car2403-ge-capial-bank.html

[tinkerbell20]

I checked your thread out Car. If the prescribed terms hadn't been present on the page with your signature do you still think that judge would have ruled for the Lender. Or do you think it was because it was the so called standard terms & conditions missing?

[car2403]

I checked your thread out Car. If the prescribed terms hadn't been present on the page with your signature do you still think that judge would have ruled for the Lender. Or do you think it was because it was the so called standard terms & conditions missing?

 

Had the prescribed terms been missing, it would have been irrevocably unenforceable.

 

As it stands, it was merely improperly executed, as it contains the prescribed terms.

 

My challenge was against the Default - arguing the charges applied were contractural penalties, or unfair under UTCCR.

 

The Judge ignored the fact the agreement was only page 1, (with the prescribed terms/signatures on) and didn't mention agreeing to apply any charges.

 

As the charges were applied, outside of the agreement, the Default is unlawful.

 

The Judge decided that GE couldn't have made such a mistake, regardless of not having the other 3 pages of the agreement, and refused to order the removal of the Default under the CCA/DPA, as a result.

[tinkerbell20]

Had the prescribed terms been missing, it would have been irrevocably unenforceable.

 

As it stands, it was merely improperly executed, as it contains the prescribed terms.

 

My challenge was against the Default - arguing the charges applied were contractural penalties, or unfair under UTCCR.

 

The Judge ignored the fact the agreement was only page 1, (with the prescribed terms/signatures on) and didn't mention agreeing to apply any charges.

 

As the charges were applied, outside of the agreement, the Default is unlawful.

 

The Judge decided that GE couldn't have made such a mistake, regardless of not having the other 3 pages of the agreement, and refused to order the removal of the Default under the CCA/Data Protection Act, as a result.

 

 

OK I was just trying to determine if you thought he would have followed the same reasoning if the prescribed terms themselves had been on the missing pages................

[creditcardmug]

Thanks for your reply, i cant help thinking that as the prescribed terms don't take up much space,and with the level of importance attached to them, that the card companies should have them on the face of the agreement with your signature, and that they were negligent in not ensuring this was done.

Therefore if the agreement should fall over in court on account of this then it was their fault in not making sure of this.

There is some case law in one of pauls defences outlining this, but i cant find it at the mo. As in they should not benefit from their mistake , or words to that effect.

Thanks for the link ill check it out

[davefirewalker]

OK guys.....

 

Battle is joined

 

Just received this on Saturday morning, in reply to my refusal to accept a write off......

 

-----------------------------------------

Further to my letter of 23rd july and your fax of the 25th, it is not accepted that the bank has any liability to you and any Claim that you see fit to issue will be defended.

 

Apart from the fact that your Claim would be time barred under the limitation Act 1983, your legal analysis is flawed. S78 will not assist you as has been pointed out to you before but I note from your latest fax that you appear to accept this and are now attempting to make a Claim under Sections 61-65 and S127 of the Consumer Credit Act.

 

However, you are again referred to the judgment of Rankine-v-American Express Services Europe Ltd. Which also dealt with these Consumer Credit Act points. The Court specifically upheld the use of an un-countersigned agreement, holding that this was compliant with the Consumer Credit Act and Regulalions. It is again suggested that you take note of the comments of the Judge, severely criticising Claimants who try to use the Consumer Credit Act

as a means of attempting to defeat the payment of debts owed.

 

Quite apart from this, there is no automatic right to compound interest and you are not entitled to claim an interest rate that is either a compound rate or happens to be a rate that was applied under the agreement. which agreement, you refuse to accept applies, in any event.

 

If you were to issue a Claim the Bank would set off thc debt you owe to it and it would in any event be recommending to barclaycard that it apply for an immediate strike out of any such Claim.

------------------------------------------------

 

I had never made ANY claim regarding S78....which we all know is only to do with seeing a copy of your docs etc

 

And as regard being time barred I discovered the cause of action when I got my agreement in mar 2007.....the agreement stems from Jan 2001 so maybe 2months "might" be barred. I think that they are running scared, and are trying to intimidate me......

 

I wrote this in reply.......it is the last chance before I file the N1

 

--------------------------------------------------

with regard to your letter of the 30th July You have raised a few points that seem to need correcting, I will take them in order

 

What makes you think any claim would be statute barred? The limit on claims is 6 years from the discovery of the cause of action unless it was hidden. I found out about your lack of agreement after the reply to my dsar and cca in march 2007, at most two months “may” be statute barred. It is my belief that it was known all along that the agreement held was unenforceable and that, that fact was hidden from me until I forced your hand. However let me quote from Lord Denning.....

 

20. Lord Denning (MR) explained the meaning of the expression "concealed by the fraud of [the defendant or his agent]" in King v Victor Parsons & Co [1973] 1 WLR 29, 33-34 as follows:

 

"The word 'fraud' here is not used in the common law sense. It is used in the equitable sense to denote conduct by the defendant or his agent such that it would be 'against conscience' for him to avail himself of the lapse of time. The cases show that, if a man knowingly commits a wrong (such as digging underground another man's coal); or a breach of contract (such as putting in bad foundations to a house), in such circumstances that it is unlikely to be found out for many a long day, he cannot rely on the Statute of Limitations as a bar to the claim: see Bulli Coal Mining Co v Osborne [1899] AC 351 and Applegate v Moss [1971] 1 QB 406. In order to show that he 'concealed' the right of action 'by fraud', it is not necessary to show that he took active steps to conceal his wrongdoing or breach of contract. It is sufficient that he knowingly committed it and did not tell the owner anything about it. He did the wrong or committed the breach secretly. By saying nothing he keeps it secret. He conceals the right of action. He conceals it by 'fraud' as those words have been interpreted in the cases. To this word 'knowingly' there must be added recklessly': see Beaman v ARTS Ltd [1949] 1 KB 550, 565-566. Like the man who turns a blind eye. He is aware that what he is doing may well be a wrong, or a breach of contract, but he takes the risk of it being so. He refrains from further inquiry least it should prove to be correct: and says nothing about it. The court will not allow him to get away with conduct of that kind. It may be that he has no dishonest motive: but that does not matter.”

 

Secondly, I think that you are confusing issues or cases. I have NEVER used S78 of the CCA1974 as a basis of ANY claim made to Barclays, as said previously S.78 is only to do with a consumers right to see the agreement, please go over the various correspondence that has passed between us since last year and you will notice that the issues are all in relation to the enforceability aspect and S127(3). The issues that are at the fore are that you do NOT have a properly executed agreement that complies with the standards required by the Consumer Credit Act 1974 and its various sub regulations and amendments. Especially The Consumer Credit (Agreements) regulations 1983 which lays out the format and content requirements of a regulated agreement.

You are again referring to the Rankine judgement, I cannot see how this particularly bad judgement has any relevance. There is nothing in that case that is comparable to my particular situation. The Rankines were trying to use S78 by saying that they never received their copy of the agreements, or that they weren't countersigned (S.60 – 61), or other defences that would only make the agreement improperly executed and enforceable by a court order. They made a serious mistake in antagonising the judge by gloating about how much they had previously got away with. I assume that we both know a little about contract law and realise that there would be no way forward with that sort of defence. It could be proved by performance that a contract existed whether or not it was signed by the creditor (not signed by the debtor would be another case entirely).

 

My case is completely different and based on sound legal principles. I do not deny that I have borrowed the money and I HAVE received my copy of the agreement and that it is pretty worthless, as you know. I shall not repeat here all the previous information save to say that it is an unenforceable agreement.

 

The judge also criticised the Rankines for trying to avoid payment of debts legally owed. He may well have been upset with them that they were trying to make a business out of avoiding debt, and by their attitude. This claim however is based on sound legal principles and binding precedents. Please let me try to explain.......THERE IS NO DEBT OWED and further, money has been taken from me under false pretences and maybe even fraud, though that would be a harsh thing to say and I would not like to test that in court, but that is what it might look like to the uninitiated.

 

Fraud

A person is guilty of fraud if he is in breach of any of the sections listed in subsection (2) (which provide for different ways of committing the offence).

 

(2) The sections are—

(a) section 2 (fraud by false representation),

(b) section 3 (fraud by failing to disclose information), and

 

1.section 4 (fraud by abuse of position).

 

(3) A person who is guilty of fraud is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum (or to both);

 

(b) on conviction on indictment, to imprisonment for a term not exceeding 10 years or to a fine (or to both).

 

2 Fraud by false representation

(1) A person is in breach of this section if he—

(a) dishonestly makes a false representation, and

(b) intends, by making the representation—

(i) to make a gain for himself or another, or

(ii to cause loss to another or to expose another to a risk of loss. (2)

 

A representation is false if—

 

(a) it is untrue or misleading, and

(b) the person making it knows that it is, or might be, untrue or misleading.

 

(3) “Representation” means any representation as to fact or law, including a representation as to the state of mind of—

(a) the person making the representation, or

(b) any other person.

 

(4) representation may be express or implied.

 

(5)For the purposes of this section a representation may be regarded as made if it (or anything implying it) is submitted in any form to any system or device designed to receive, convey or respond to communications (with or without human intervention).

 

The agreement is unenforceable and is improperly executed, because of this there is NO debt to pay.

I am not making this stuff up as I go along, it is the LAW, as laid down in Acts of parliament, and precedents gained in various high court judgements.

 

I will paraphrase for you the judgement in Wilson v FCT, in which it was basically agreed that if the agreement was missing or had mis-stated the prescribed terms then the debt was unrecoverable and could be looked on as a gift. I refer you to Wilson v FCT......and in particular Lord Nichols of Birkenhead' statement. I think that you will find that this BINDING ruling predates and comes from a higher court than that of the Rankine judgement.

 

Lord Nichols of Birkenhead.....

“71. I turn to the statutory setting of section 127(3). The Consumer Credit Act contains many requirements about the form and contents of regulated agreements. Parliament has singled out some obligations as having such importance that non-compliance leads automatically and inflexibly to a ban on the making of an enforcement order whatever the circumstances. These obligations are specified in section 127(3) and (4). In these two subsections Parliament has chosen, deliberately, to exclude consideration of what is just and equitable in the particular case. The latter approach, enabling the court to consider the circumstances of the particular case, was adopted as the general rule in section 127(1). Section 127(3) and (4) are, expressly, exceptions to the general rule. In prescribing these two exceptions Parliament must be taken to have considered that the sanction generally attaching to non-compliance with the statutory requirements was not sufficient to achieve compliance with the duty to include all the prescribed terms in the agreement (section 61(1)(a)) or the duties to provide copies and notice of cancellation rights (sections 62 to 64). Something more drastic was needed in order to focus attention on the need for lenders to comply strictly with these particular obligations.

72. Undoubtedly, as illustrated by the facts of the present case, section 127(3) may be drastic, even harsh, in its adverse consequences for a lender. He loses all his rights under the agreement, including his rights to any security which has been lodged. Conversely, the borrower acquires what can only be described as a windfall. He keeps the money and recovers his security. These consequences apply just as much where the lender was acting in good faith throughout and the error was due to a mistaken reading of the complex statutory requirements as in cases of deliberate non-compliance. These consequences also apply where, as in the present case, the borrower suffered no prejudice as a result of the non-compliance as they do where the borrower was misled. Parliament was painting here with a broad brush.”

 

If whoever designed that agreement had taken the time to do it properly we would not be here now. What I can't understand is that Large financial institutions have teams of lawyers at their disposal, it would have only taken one person 2 minutes or less to spot the deficiencies!!! Bad agreements were, and still are being drawn up everyday, I guess that you lot just cross your fingers and hope no-one spots the mistakes. Well that attitude is not sufficient to ensure that you will be repaid if anyone ever questions one of these so called “agreements”.

 

I agree that there is no “automatic right” to compound interest but it is an avenue that I intend to follow. Recent judgements in the high court have opened the way forward in this respect.

Barclays along with all the other lending institutions charge compound interest when lending at their commercial rates. It could be said that the bank has made a profit by re lending my money, and that I have been without the benefit of it. It was found in Sempra metals v HMRC that restitution WAS available at common law for money paid in mistake and that the only JUST remedy would be compound interest to compensate for the “time value” of the money lost.

 

I shall also be applying to the CRA's shortly and if Any adverse information regarding this account is held, I shall be seeking damages as well. I suppose that it is worth mentioning (Kpohraror v Woolwich Building Society [1996] 4 All ER 119) in which it was shown that damages can be claimed for wrongful reporting of false information to a credit file. You have been warned on at least a couple of occasions via a S10 Data Protection Act 1998 not to process or to pass data onto third parties while the account is in dispute and its status is unconfirmed.

 

So basically it looks like we have a Mexican stand-off. I am NOT going to pay any more money into this account until its status is legally verified and decided by a judge in court, and up to that point I will continually question it. What are YOU going to do now. Personally I would prefer you to start the action, however I am not frightened of taking that particular step. To be honest the thought of taking this to court is really quite exciting.

 

This is the last attempt at trying to get a settlement before court action please consider your actions carefully.

 

----------------------------------------------

 

I am now getting weary of these word games and am anxious to get into court ( or to get a settlement )

 

Ill keep you updated

 

Dave

Edited August 3, 2008 by davefirewalker