CCA and time limit

[dori2o]

Originally Posted by zootscoot

What Hagen states is correct.

S.77 /78 only apply during the lifetime of an agreement and therefore there is no obligation to supply the agreement. Have a look at the CCA in the statutes template library. You will see that s.77-8 come under part V of the act which only applies to matters arising in the lifetime of an agreement. It is always best to read the actual law itself.

If you want to get a default removed you will need to either use s.14 of Data Protection Act 1998 if the data is incorrect (eg if it was made up of any bank charges) or s.10 of Data Protection Act on the grounds that it is causing you substantial damage and or distress which is unwarranted.

Hope this helps

Zoot

If this is the case, why have the CCA request letter in the tmplates library. Most people use this to enquire if DCA's have copies of the agreements. However, the reason most DCA's are chasing accounts is because they have been defaulted. So almost all the threads that have been posted advising how people can get rid of DCA's are incorrect?

I have looked through the CCA and cannot find anything to suggest that once an agreement has been defaulted it becomes a terminated agreement.

Please can one of you post some information to confirm this?

[The Terminator]

13th January 2007, 14:45 #1140 (permalink) peterbard vbmenu_register("postmenu _485913", true);
Classic Account Customer



Join Date: Jul 2006
Posts: 295



Re: Consumer Credit Act Agreements
Hi
Below is a copy of the letter sent from Ian Mcartney after a arepresentation made by me to my MP, sorry about the delay in posting but I was awaiting my MP OK.

It is not complete as ihave removed refernce to certain issues not relavant to this thread. I have underlined some interesting points and have added some comments at the end.

dti

21 December 2006

Re consumer credit act 1974

Thank you for your letter of the 7th of December on behalf of your constituent Mr Peter Bardsley of******************* about a possible irregularity in the Consumer Credit act 1974.

The Consumer Credit (Prescribed Periods for Giving Information) Regulations apply to all the situations that ate listed in the Schedule to the Regulations and this include Sections 77 and 78 of the Act, which are about copies of the executed agreement and not pre contractual information

The Cancellation Notices and copies of Documents Regulations are made under Section 180 of the Act ) power to prescribe the ford etc of documents) and Section 180 enables Regulations to be made to provide for including/excluding certain information from copies sent out under the Act. The Regulations apply to all copies sent our under the Act unless specifically excluded in the Regulations themselves.

Mr Bardsley describes a situation in which he was sent a copy of a company’s standard Terms and Conditions when requesting a copy of a signed agreement form. Just sending the Terms and Conditions is a breach of the Act and Regulations as, apart from the information that the Regulations provide that you may exclude, the copy must be a “true copy” of the agreement**

If Mr Bardsley feels that the rules are being flouted he should report the companies concerned to Trading standards and the Office of Fair Trading. It is also a breach of the Act and the Regulations to send the application form rather that a “true copy” of the Agreement.
On the point that Mr Bardsley makes about unscrupulous companies adjusting agreements, If there were a dispute about an agreement, the lender would need to prove to a court that there was an agreement and, it is highly likely that the lender would have to produce the original signed document to prove they had and agreement with the consumer to start with,
The lender should need to prove to a court that there was and agreement **and, it is highly likely that the lender would have to produce the original signed document to prove they had an agreement with the consumer to start with. If the lender can’t prove the existence of the agreement, winning any court case would prove difficult.


Approved By the Minister and signed in His presence

Pp Ian Mc Cartney


**This confirms that the burden of proof is on the creditor to provide proof of the existance of an agreement and not on the debtor to prove it's none existance.

My response to this letter is posted earlier in this thread.

Peter



thanks to PETER on the cca thread
__________________

[MilkTrayMan]

Hi All,

Lots of people have viewed this Thread since the last post (...incl. numerous Moderators and Site helpers!).
...Yet no-one seems to be able to post a Clarification of the position, that I'm quite certain many Claimants would be interested in knowing?!

[joneshousehold]

I agree tifo & MilkTrayMan and I am not sure we have got to the bottom of this yet.

If an agreement is terminated or voided by the default then surely the creditor no longer has the permission of the debtor to process any information about them. How then can the creditor sell the debt if they cannot give the personal information about the debtor?

Please don't get me wrong, I am not just arguing here, I really don't understand how this operates. I am wondering if your advice is based on something else. That's why I asked for someone to explain the legal backing for the advice and to give some idea of expertise. I can see a certain logic in the idea that the agreement is terminated on default but that then presents other problems. Those problems suggest the agreement is not actually terminated. Most of the terms and conditions I have seen do not say the agreement is terminated if the debtor defaults. What they actually say is that the creditor has the right to collect all the debt immediately rather than in accordance with the agreement.

I have read most of the CCA several times and I know that if the agreement is ended a copy of the agreement cannot be requested. What I am questioning is the rationale for saying the agreement is terminated when a default occurs. Perhaps if this can be clarified it would help me to understand.

Anyway I see we have not heard from bubbles again and I fear we may have frightened him/her off. Please come back bubbles!

[MilkTrayMan]

Hi joneshousehold!

Originally Posted by joneshousehold

Anyway I see we have not heard from bubbles again and I fear we may have frightened him/her off. Please come back bubbles!

What concerns me is not that bubbles has gone walkabout (...we ALL have lives other than on CAG apparently!...lol), but the fact that there are TWO distinct viewpoints on the issue.

ONE by zootscoot and hagenuk
...and ONE by all the OTHER posters!

ONE viewpoint is right and ONE is wrong...
The Terminator has provided documentary supporting evidence.
...Where is the rebuttle???
I made the point of numerous views of the Thread in my last post. Yet still NO posts either way by other Moderators or Site Helpers!!!
Do they not have views on this topic???
...Preferably backed up with Case Law examples etc!

[The Terminator]

Hi Jones

I've just taken this out of mbusa's T&C:

10d After this agreement ends, you will still be personally liable to pay all amounts which are due (or may become due) to us under this agreement.

It's the bit in brackets that gives everything away.Are they saying in a roundabout way that if there is no agreement and that as it is regulated by the CCA then the debt cannot be enforced.It also says to us not to us or a third party which to me would mean that they couldn't sell it to a DCA.

[joneshousehold]

MilkTrayMan Woh tiger! You know it may be that H & Z are right and the rest of us wrong. I think we should at least wait and hear them out. For all we know they could be the top debt counsellors and legal experts in the country. Give them a chance to explain.

Don't get me wrong, I still think we may have a point, it's just if we upset H & Z they may never settle down and explain the reasons behind their advice. I know it's frustrating but that's the pleasures of a forum. Perhaps if you get yourself a nice long drink we may find our patience rewarded with clarification in the end.

Oh dear, I am going on a bit! Sorry if I have upset anyone, I just want everyone to be happy (and informative!)

Anyway that's a very crazy colour scheme you use. I thought I looked very fetching in red!

[joneshousehold]

Terminator - Barclaycard's used to say

Subject to any legal limitations, all amounts due under this Agreement will be payable in full....if you breach this agreement

Also

Either of us may end this Agreement by giving written notice

This suggests a default merely affects the way the agreement is operated rather than voids or terminates it. That's the reason for my comments.

I am just rooting for bubbles. Hope he/she can get something sorted out.

The others I have are similar wording

[The Terminator]

Originally Posted by joneshousehold

Terminator - Barclaycard's used to say

Also
This suggests a default merely affects the way the agreement is operated rather than voids or terminates it. That's the reason for my comments.

The others I have are similar wording

87 Need for default notice

(1) Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,—

(a) to terminate the agreement, or

(b) to demand earlier payment of any sum, or

(c) to recover possession of any goods or land, or

(d) to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or

(e) to enforce any security.


“default notice” has the meaning given by section 87(1);

I've read this a few times and unless im missing something it doesn't terminate the agreement.

[MilkTrayMan]

Hi joneshousehold!

Originally Posted by joneshousehold

MilkTrayMan Woh tiger! You know it may be that H & Z are right and the rest of us wrong. I think we should at least wait and hear them out. For all we know they could be the top debt counsellors and legal experts in the country. Give them a chance to explain.

I haven't exactly said that they are wrong!
I think I posed Devil's Advocate type questions didn't I?

Am just looking for ANYONE to give supporting evidence to either side of the viewpoints.
Up to press, The Terminator is winning hands down!

I made the point about the other Moderators and Site Helpers cos they seem to have rather sat on the fence on this one!
It is NOT an US and THEM issue.
...It's a WIN-WIN situation that we want, with everyone going away more informed.

Originally Posted by joneshousehold

Anyway that's a very crazy colour scheme you use. I thought I looked very fetching in red!

How do U like U in Purple???...rofl...

[zubo]

Bubbles: I hope the various ifs and buts etc. do not confuse you too much - hang in there. I have posted elsewhere (sorry lazy me - search on my posts) my very similar problems. In a nutshell - The Debt Collector was receiving from me £2 per month over the last 6 years on 3 accounts - most times ok, sometimes I missed. They began to hassle me so I sent them a CCA request. They responded that it was so old they didnt have to. 6 months later (I had been busy) after I received good advice in my post on the forum I sent them a stiff letter telling them that they had committed an offence on each account liable to £2,500 and the agreement was unenforceable and I was paying no more.
They then wrote back and informed me that their client had instructed them to close all three accounts. I will shortly be doing a follow up letter to ensure that the accounts are closed at nil balances. (the debts were around £6k in total).

If you have sent a CCA request with the fee and receive nothing in the timescales you should follow the steps I took.

I am following this post with a seperate post to ask questions to clarify a couple of points posted, but thought this might help you a little.

[dori2o]

Originally Posted by The Terminator

87 Need for default notice

(1) Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,—

(a) to terminate the agreement, or

(b) to demand earlier payment of any sum, or

(c) to recover possession of any goods or land, or

(d) to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or

(e) to enforce any security.


“default notice” has the meaning given by section 87(1);

I've read this a few times and unless im missing something it doesn't terminate the agreement.

I too have read this agreement, and again, like you, unless I'm missing something, it does not say that a default automatically terminates an agreement. It mearely acts as step towards doing so should the creditor wish to take that path.

If I'm wrong I hope someone can inform me of where I am misunderstanding.

[zubo]

Quote: Sadly it is not quite as simple as that. The original agreement is probably already void, in particular if you defaulted on it. That does not mean that the money is no longer owed or that the bank can no longer prove that it is owed.

If you make a credit agreement unenforceable by making a CCA request. The agreement ie relating to terms and conditions such as date of payment, interest rate etc is unenforceable but the debt remains. You have had the money and have not given anything in return. Therefore the money is still in law regarded as belonging to the creditor. Without the agreement in place allowing for monthly payments the creditor can request this money at any time. You may be able to negotiate a new payment arrangement.

Could you clarify the circumstances which makes an agreement void - especially if you default. My <limited> understanding is an agreement will always be current as long as it is not terminated by either party and the creditor will ensure that it remains current to ensure that he can legally enforce it. Void is a new term to me.

thanks

[zubo]

Quote: So there is no point in doing a CCA as the original agreement no longer exists. It's pointless trying to render an agreement unenforceable if it doesn't exist and no criminal offence is committed by the bank if they do not supply a copy of the agreement.

A debt is a property right referred to in law as a chose in action. Statements are admissible evidence in court to prove transactions going through an account. Therefore they are evidence that a person has received money or purchases under an account. You can dispute these but would need to give a convincing explanation as to why you did not receive such goods or money.

Hagen, I beg to differ (not that I am in any way an expert...)
The agreement whether it is terminated or otherwise defines exactly what goods/service was offered and the terms surrounding it. My limited understanding is that you are under law ALWAYS entitled to request a copy. Enforcement of the debt must be based upon the agreement. Any transactions merely show the interaction you have had with the creditor and constitute nothing else - no liability.
The agreement imho is the only basis the debt can be enforced.

[joneshousehold]

S