Greymatter's ue Diary

[ScabHunter]

Re: Greymatter's ue Diary

Scabhunter you have picked up on a different thread to the one I am referring to.

Yeah, I know. Sorry, I just thought you'd want confirmation of what you thought earlier, that RW were forging Notices of Assignment.

As far as the GnatPest one goes, I think that has gone beyond the point where the layman can even offer an opinion. I've been posting on debt forums for over four years, and this is the first pre-19/5/85 case I've ever had to look at. So, there is no reference point to even be able to offer an opinion as to what might hold up in court or how you might be able to defend the case.

It really needs input from people who have direct and active involvement in consumer law cases, especially those relating to the modification of agreements. I'd help if there was anything I could do, but I've just got to honestly admit that this completely outside the range of my experience.

SH

[greymatter]

Re: Greymatter's ue Diary

Hi SH
Thanks for your response.
This is why I put this one to Niddy as he and Paul have looked at this before and thats why I put the diary references in.
So hopefully Niddy/Paul can advise .
GM

[Never-In-Doubt]

Re: Greymatter's ue Diary

Hiya

If they start legal action at that point they'd then be told to clarify this point surely? What I mean is you'd be able to seek clarity utilising CPR - right now they'll likely refuse but the fact access was not and is not MasterCard proves there was a variation.

Bit like having an Amex cum Visa - it can't happen and if it ever did then you'd need a whole new agreement if they just "transferred it"...

I don't think you need to do the chasing right now. But check with Paul, you have his email/number don't you?

Hi Niddy
I am trying to prove that when NW changed from Access to Mastercard that this would actually be classed as a 'Modification/Variation.'My account(alredy detailed in my diary) was opened in 1980(not as I first stated 2001).Paul says that I need to give him the 'Rabbit to pull out of the bag'#160.
I have read many articles covering this point of Modification and Variation and learnt that in the Manchester Waksman case he states 'If an agreement has been varied by the creditor under a unilateral power of variation,the creditor must still provide a copy of the original agreement,as well as the varied terms.'
Looking back on your reference to Access #154.Surely this the kind of thing I need to show.
So could you advise me as to whether I should write to NW to confirm that they did/did not vary/modify the tc's from 1980 to the current set of Mastercard tc's which they sent me.
As A point they actually have put my current address on the 'current' tc's .They should reflect the actual address at inception and I think this is also a point re pre 1985 cc.
I am sorry to keep on at this but I cannot accept that the change from Access to Mastercard is not a modyfication or variation.
Thanks Niddy
GM

[Never-In-Doubt]

Re: Greymatter's ue Diary

It really needs input from people who have direct and active involvement in consumer law cases, especially those relating to the modification of agreements. I'd help if there was anything I could do, but I've just got to honestly admit that this completely outside the range of my experience

it is a weird one alright and as you say, with the clear lack of case law we're relying on our own knowledge which isn't always how a judge perceives it.

We'll all be learning as we go - getting by using basic legislation as it is without the actual case law reference.

[greymatter]

Re: Greymatter's ue Diary

Hi Niddy
Thanks for your response,I will check with Paul.Yes thanks I have his email.
Greymatter

[greymatter]

Re: Greymatter's ue Diary

Hi Niddy
I will await Paul's response before doing anything .I am still paying a token payment( I reinstated it )as it was pre 1985 and I did not have any idea/thoughts regarding Variation/Modification at the time.There is quite a bit in my Diaries re this problem.
However I would like to have this situation settled one way or t'other .
I think I am only the second one on the site to have a pre 1985 account.
Greymatter

[Paul.]

Re: Greymatter's ue Diary

Heya

Ok pre 1985 agreement makes things much more tricky.

The prescribed terms were not in force before then, so, the liklihood is that the agreement will not be unenforceable.

Also, what must be provided in a s78 reply is set down in Regulation 9 Consumer Credit Cancellation Notices and Copies of Documents Regulations and states

9 Copies of old agreements and security instruments where the agreement or security instrument has been lost etc

Any copy of an executed agreement made before 19th May 1985 or of a security instrument relating to security provided before that date which is given to the debtor, hirer or surety under any provision of the Act on or after that date may
comprise an easily legible statement of the current terms of the agreement or security as the case may be insofar as they are known to the creditor or owner where, due to an accident or some other cause beyond his control, the creditor or
owner does not have in his possession the executed agreement or security instrument or any copy thereof

So i really think the difficulty here is that the agreement seems to be pre 85

[greymatter]

Re: Greymatter's ue Diary

Thanks Paul
However what about Waksman reference re variation.If there is a variation then the original must be produced.
How can I compare any changes between the original and the current tc's.
GM

[Paul.]

Re: Greymatter's ue Diary

Well the problem was Waksmans ruling was on an agreement after 1985 however, it seems to me to be clear that Reg 9 sets down what must be provided.

[greymatter]

Re: Greymatter's ue Diary

So they can say that all pre 1985 pts were lost and thats it?

[Paul.]

Re: Greymatter's ue Diary

So they can say that all pre 1985 pts were lost and thats it?

well yes, sadly, it does seem to be the case .

[greymatter]

Re: Greymatter's ue Diary

So what about the following:
'We are currently unable to provide a copyof the terms of your credit agreement as varied in accordance with section 82(1)of the Act....We accept that we are therefore preventedfrom enforcing our agreementwith you while this state of affairs continues'
Taken from a pre 1985 account response.

[The Tech Clerk]

Re: Greymatter's ue Diary

And in the 1970s early 1980s the cards (ACCESS & BARCLAYCARD) were sent out to Bank customers on launch, with the provisol that you are bound by the T&Cs once the card is used, no written agreements, the press caught onto this andwas assured it was o.k. at the time.

[Never-In-Doubt]

Re: Greymatter's ue Diary

What about the main fact here - we're confusing the past too much based in the pre-85 access. What we need to think about when was the card moved to the credit card element - that's the 64 million dollar question because I bet my bottom dollar that it was AFTER 1985 hence the reason they've responded saying they can't enforce without the terms etc.

In a nutshell forget the Access card element and base the UE fight around the NEW credit card. They cannot provide an agreement cos you never had one did you thus it will be unenforceable.

Over to Paul, assuming I've got this right surely if the credit card was issued after 1985 and greyMatter is adamant no agreement was signed then he's home and dry as pre-85 would become quite irrelevant as that account closed with a new credit account opened in its place.

That's what all access customers had, remember access was the joint credit card company is Basildon, ie switch and owned by the banks ie natwest etc.... They closed access and sent a new credit card out automatically.

But the question is, when was this?

For info:

Natwest was a founding member of the Joint Credit Card Company (with Lloyds Bank, Midland Bank and the Royal Bank of Scotland) which launched the Access credit card (now MasterCard)

[Never-In-Doubt]

Re: Greymatter's ue Diary

Sounds like the respondents were either not aware of the fact that the account was pre-85, or they were not aware of the legislation!

See my last post above.

OR

they're basing it on the NEW credit card agreement issued after 1985?

Maybe...? Seems logical to me.....