Greymatter's ue Diary

[Paul.]

Re: Greymatter's ue Diary

Hi Niddy

GM - you're paying a token still, so why not just increase it.
No ,I cancelled because I thought it was 2000 and assumed U/E .You asked me why am I still paying 2000 account.

So I don't want any court stuff and as their letter to me was non aggressive I will try for a discount and phased payments,best I can do really.

Niddy what I cannot grasp is that there was a variation and that any variation will cancel the original,so how come when this happened post 1985 NW overlook it yet I have mentioned that certain OC's actually quote this as acceptable.Reading sec 82(1) does appear to have some bearing on my problem,otherwise many people in my situation will get well and truly shafted.
However,I shall let you know how this turns out.
GM

Ok,

Variation of terms is one thing, a creditor can vary rates of interest etc, credit limits , default charges etc but what that means in terms of the agreement is naff all.

Also dont forget a credit token is something that expires every 3-5 years.

So, your Access card expires in say 2000 and you get given a new card called Mastercard. That on its own has diddly squat effect on the agreement as its provided for by sections such as s85 CCA

Where the variation point bites, is on things such as the Mayhew case where there is a "Modifying agreement"

If the agreement becomes a modifying agreement then the earlier agreement is revoked and embodied into the new agreement.

[greymatter]

Re: Greymatter's ue Diary

Paul
Please point me to the Mayhew case.
How do we know that the change was not a modifying agreement,they are obviously not admitting it.
GM

[Paul.]

Re: Greymatter's ue Diary

Ok this is what Goode says on the subject of Modifying agreements

Modifying agreements under s82 Consumer Credit Act

Subsection (2) governs the situation where an agreement is varied by a later agreement between the parties (and will, therefore, not apply to a unilateral variation (above) or to an automatic variation of an agreement taking effect under the terms of that agreement). The later or 'modifying' agreement is to be treated as
revoking the earlier agreement but combining the effect of the two agreements, ie the newly agreed terms and those terms of the earlier agreement which have not been replaced by the new terms; hence 'outstanding obligations' under the earlier agreement are transferred to the modifying agreement.

There can be no modifying agreement within sub-s (2) unless the parties have in some way agreed to vary the terms or the subject-matter of the contract. The addition or substitution of new goods under a hire
purchase agreement will normally give rise to a modifying agreement. More difficulty arises when, on the loss or destruction of goods, replacement goods are provided by an insurer. Assuming that the existing agreement applies to substitute goods (as to which see R M Goode Hire Purchase Law and Practice (2nd edn) p 793) there is some doubt as to the status of that agreement. It may perhaps be argued that, in so far
as the substitution takes effect without any fresh agreement by the parties the contract is not 'varied' or 'supplemented' so as to fall within sub-s (2). Perhaps a term in the original agreement providing for
substituted goods would make this clearer, since the substitution would then operate the original agreement rather than vary it, thus falling outside sub-s (2) and also sub-s (1) (see the note 'Unilateral Variation' above).
It would also avoid the argument that the original agreement was completely replaced thus attracting completely new formality requirements under CCA 1974, ss 60-64.

Whether modifying agreement regulated: sub-s (3)

The general rule is that a modifying agreement replacing a regulated agreement will itself be a regulated agreement. This is so even though it falls outside the financial limits of the CCA 1974 (see CCA 1974, ss 8 and 15) or, apparently, would otherwise be an exempt agreement (CCA 1974, s 16).
If, however, the modifying agreement is for running-account credit, it will be a regulated agreement only if it satisfies the
statutory criteria in its own right (and it should be noted that CCA 1974, s 82 will not apply where CCA 1974,
ss 10(2) or 18(5) apply, ie where an agreement for running-account credit itself provides for the credit limit to
be temporarily exceeded).
Subsection (3) does not apply where the earlier agreement was not itself a regulated agreement; but the
wording of the subsection and of sub-s (2) make it clear that in such a case a 'modifying agreement' will be a
regulated agreement if it falls within the scope of CCA 1974, ss 8 and 15, and does not fall within the scope
of the exemption under CCA 1974, s 16.

'For the purposes of this Act': sub-s (2)

Subject to the exceptions made by sub-ss (4)-(6), a regulated modifying agreement will be treated as subject
to all the relevant provisions of the Act. This has a number of immediate consequences. First, the provisions
of CCA 1974, ss 58 and 60-63, relating to the form and formalities of agreement, will apply: and see the
Consumer Credit (Agreements) Regulations 1983, reg 7 (below). Thus, for example, there must be a
document complying with CCA 1974, s 61(1) and, in particular, embodying the 'combined effect' of the two
agreements, ie both the newly agreed terms and the earlier terms which by virtue of sub-s (2) are
reproduced in the modifying agreements. Furthermore, copies will have to be supplied under CCA 1974, ss
62 and 63 even though the appropriate formalities were observed in relation to the revoked agreement. This
may cause practical difficulties; for example, where it is proposed to transfer a land mortgage to a new
property, to add new property to an existing land mortgage agreement or to secure by a land mortgage a
previously unsecured agreement, CCA 1974, s 58 will apply to the modifying agreement; consequently the
creditor should not release an existing security taken under the earlier agreement until it is certain that the
debtor will not withdraw from the modifying agreement (any attempt to bind the debtor to enter into that
agreement would be void by virtue of CCA 1974, s 59). See also CCA 1974, s 105(2), (9). In addition, it will
be necessary to determine the rate of the total charge for credit with effect from the date of the modifying
agreement and applying for the period beginning with that date: see CCA 1974, s 60(1)(b). As to the
statement of the amount of credit, of the total charge for credit, and of the annual percentage rate of charge
Page 285
for the purposes of CCA 1974, s 82, see the Consumer Credit (Agreements) Regulations 1983, reg 7(6)-(8),
Sch 8, Part I, at III[12.1] ff.

[greymatter]

Re: Greymatter's ue Diary

Paul,apologies for labouring the point but there is a lot at stake here.

Ok,

Variation of terms is one thing, a creditor can vary rates of interest etc, credit limits , default charges etc but what that means in terms of the agreement is naff all.

Also dont forget a credit token is something that expires every 3-5 years.

So, your Access card expires in say 2000 and you get given a new card called Mastercard. That on its own has diddly squat effect on the agreement as its provided for by sections such as s85 CCA

Where the variation point bites, is on things such as the Mayhew case where there is a "Modifying agreement"

If the agreement becomes a modifying agreement then the earlier agreement is revoked and embodied into the new agreement.

I read sec 85 and it does say

(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 other document referred to in it.

So on expiry of my credit token(Access) where is my copy of the executed agreement.
GM

[Paul.]

Re: Greymatter's ue Diary

Paul,apologhies for labouring the point but there is a lot at stake here.



I read sec 85 and it does say

(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 other document referred to in it.

So on expiry of my credit token(Access) where is my copy of the executed agreement.
GM

Rankine v Amex held that in general circumstances such as a new card, the executed agreement is the card carrier which carry the terms and conditions embossed upon them along with the credit card attached to it

[Paul.]

Re: Greymatter's ue Diary

allaboutFORUMS

Here is Rankine v Amex

[PlanB]

Re: Greymatter's ue Diary

Paul
Please point me to the Mayhew case.
How do we know that the change was not a modifying agreement,they are obviously not admitting it.
GM

GM. Plan B was Mayhew in the Mayhew case. I was the defendant so I'm pretty clued up on what went on I'm short on time this weekend but I'll join the conversation again on Monday

In a nutshell non compliance with s.78 is only one of a myriad of ways to defeat a creditor. If your account start date is too far back to play the s.78 card, then look for other reasons where NatWest may have cocked up and compromised their legal position I sense Paul is alluding to what exactly happened when the account changed from Access to MasterCard. I spent a whole year trying to understand the 'modifying agreement' legal argument and I can honestly say I still don't get it although that was one of three reasons why we won the case.

But you're not going to court at present. Surely the object of the exercise now is to keep you out of court for the time being until all the factfinding is complete. And that's not going to happen until you supply those in-the-know with whatever facts/evidence you've got. I suggest you get together a chronology of what happened as far as you (or your dear wife) can remember and add any paperwork to support this. Only then will someone know what cards you've got in your hand to deal

Maybe it's best for you to simply be upfront with what you've got in your hand and let Paul see what (if any) bits of law can be used to argue your position. That's got to be easier than trying to dissect the whole CCA 1974 and get pissed off with the bits which don't apply to your particular situation

[greymatter]

Re: Greymatter's ue Diary

Paul the link is not working.
I take it that Mayhew is this case then
Having read all that you have given me,I still keep coming back to the fact that NW are wrong.
GM

[Paul.]

Re: Greymatter's ue Diary

Paul the link is not working.
I take it that Mayhew is this case then
Having read all that you have given me,I still keep coming back to the fact that NW are wrong.
GM

The link works, you may not have authorised access to that area is all.

How are Natwest wrong?

I must point out that there is no magic remedy that will turn your agreement from an enforceable one to an unenforceable one. Only a District Judge can make that order, just like Judge Manners did in planb's case. The problem is as i see it, you are faced with a 1980 agreement which was outside of the 1974 Act as the key provisions were not enacted at that time. I did a case a while back like that, it was in the Guardian and is still available online now. the case infact was something we couldnt win as the claim was brought on an agreement which fell outside the act for the same reason as yours.

The only way i see you can fight this Natwest job is if the card became a modifying agreement, and nothing you have told me makes me believe it is at the moment.

[greymatter]

Re: Greymatter's ue Diary

Hi PlanB
I have told Paul/Niddy everything I know.
I will need to contact NW this week or it could turn on me,these things have a habit of biting you in the Bum!!
I will give it a break apart from some light reading,until Monday.
Thanks for your input and support Planb its much appreciated.
GM

[PlanB]

Re: Greymatter's ue Diary

Paul the link is not working.
I take it that Mayhew is this case then
Having read all that you have given me,I still keep coming back to the fact that NW are wrong.
GM

Since you're a registered member you ought to be able to go to the "Secure Content" section and then click on "Document Database" and then "Case Law Database" where you'll see all this case law. It's all there except Santander vs Mayhew but I'm sure the Link Fairy will correct that oversight

[greymatter]

Re: Greymatter's ue Diary

Paul
Thanks for your help,I think that the card change from Access to Mastercard was in fact due to it being aquired by RBS.The card conditions were totally different but I cant get an old Access tc's to prove it.Not yet anyway.
Surely this would constitute a modifying agreement?
I will keep digging but as I have already mentioned I need to get in touch with them early next week.
GM

[PlanB]

Re: Greymatter's ue Diary

Paul
Thanks for your help,I think that the card change from Access to Mastercard was in fact due to it being aquired by RBS.The card conditions were totally different but I cant get an old Access tc's to prove it.Not yet anyway.
Surely this would constitute a modifying agreement?
I will keep digging but as I have already mentioned I need to get in touch with them early next week.
GM

Possibly. But in my experience only if it changed what you could achieve with second product that couldn't be achieved with the first. That means was the "upgraded" account giving you wider options such as cash withdrawals or ability to use it in circumstances other than those limited to NatWest.

I'll be back on Monday

[greymatter]

Re: Greymatter's ue Diary

Yes,certainly the cash withdrawals.I will check more into this PlanB.
Have a good week-end
GM

[PlanB]

Re: Greymatter's ue Diary

Paul
Thanks for your help,I think that the card change from Access to Mastercard was in fact due to it being aquired by RBS.The card conditions were totally different but I cant get an old Access tc's to prove it.Not yet anyway.
Surely this would constitute a modifying agreement?
I will keep digging but as I have already mentioned I need to get in touch with them early next week.
GM

I don't think takeovers count as modifying an agreement. My Santander account was bought from G.E. Money as part of a takeover. As far as I'm aware that changes nothing.