Curious twist on two CCA requests-they are taking me to Court!

[Laiste]

Hi everyone,

 

I thought my situation might be interesting to those of you doing CCA requests!

 

I did requests for the original agreement to Egg and a Marbles credit card. Both failed to comply with the 12 day and one month deadline for furnishing the documents. However, both have started legal proceedings in the County Court!

 

We have put in our defence to both claims stating that they have not complied with the CCA 1974. Egg have not responded to our defence, they don't have much longer! We have received the A/Questionnaire for Marbles which has to be sent back by the 29th Aug. Apparently, Marbles also have to respond by the 29th Aug to our defence!

 

We are prepared to defend the case, but wondering whether they are playing a game of brinkmanship? Also, we are wondering what will happen if they do produce the agreement just prior to the case being heard, or possibly in Court? Has anyone else been in this position? Neither Company has sought the permission of the Judge to proceed with the case, so should I request in my A/Q that both (as they come up) are struck out?

 

It does seem entirely unfair that may might be able to enforce the agreement (if they produce the documents) having committed a criminal offence! After all a criminal offence is far more serious than non payment of a debt and they are supposed to be fully conversant with the CCA 1974! If anyone knows of any cases or other legislation that would support our argument I would be really grateful if you could provide details. Also my understanding is, that under an Equitable principle a party has to go to Court, "with clean hands." They are pursuing the case and could hardly be said to have acted honourably having flouted the CCA 1974, and committed a criminal offence!

 

Any thoughts or advice would be greatly appreciated!

 

Many thanks in advance!

 

Laiste.

[zootscoot]

Hi Laiste,

 

I will be interested to see how this one turns out.

 

The equitable principle you refer to only applies when the person is seeking to rely on equity as oppose to common law or statute.

 

I'm pretty sure that if they do produce the documents that means the debt is then enforceable as failure to comply with CCA merely 'suspends' the debt.

 

Although, I'm not in this position myself and not aware of any others that have.

 

Best of luck

 

Zoot

[lickthewallfatboy]

Both my CCA requests have been fulfilled long after the 30 days,but I have written to both offering a full and final settlement on both loans-

 

£200 on £1100 and

£400 on £2300

 

still awaiting a response....

[Mike220359]

If they do produce the documentation then really there isn't much that you can do, although a complaint to trading standards and the oFT should still be made, after all they have committed an offence and poorpaperwork is one of the things that the OFT can withdraw credit licences for

[Mike220359]

It may of course be brinkmanship, but one thing to remember if the court upholds their prosecution the finacial relationship is established in law and is therefore enforcable whther they have the original documentation or not!

 

Mike

[Laiste]

Hi Guys,

 

Many thanks for your messages!

 

I may be entirely wrong in my thinking here, but there has to be a reason why Parliament set down very specific timescales for Companies to comply with CCA requests.Why would criminal liability be factored into the legislation if very little was going to happen to Companies who didn't comply. I realise licenses can be revoked, but in reality, what is the chance of that happening?

 

Surely there has to be a reason why Companies have to seek the permission of a District Judge to proceed with a case where they haven't complied with the CCA 1974, in time, irrespective of whether the documents have been furnished, be it even a long time after the 1 month has expired.

 

I suppose what I am saying is, (if a case goes ahead) the Judge must have the power/discretion to say the debt is unenforceable, because they are in breach of the Act and their actions give rise to criminal liability. Many legal cases turn on a technicality, why not a situation such as this? It sends very much the wrong message to banks and c/c Companies, if they think they can ignore the CCA 1974, and commit criminal offences without any sanctions!

 

Perhaps ours will be test cases, I just feel that the prospect of them being able to enforce the debts having flouted the Act, which after all regulates their business and which they are supposed to be fully conversant with, is beyond comprehension. If we have to go Court over this to let a Judge decide, then so be it! It will be a great help to everyone here doing CCA requests, if a Judge agrees with us.

 

I am very interested to hear people's views.

 

Laiste.

[gizmo111]

Have you asked in your defence for a copy of the agreement - as if they have no agreement how can they prove the debt. From the letter - is the contested bit where you ask for the judge to strike the claim out?

 

As you are aware, a credit agreement that is not properly documented and signed by the customer is totally unenforceable under the CCA and therefore is a complete defence to any court claim that is issued.

 

Take note at this stage, that any legal action you may contemplate will be both vigorously defended and contested.

 

[Mike220359]

Fair play Gizmo, brilliant!

 

Mike

[Laiste]

Hi Gizmo,

 

In our defences we haven't asked for a copy of the credit agreement. We have stated that each c/c Company has failed to furnish the documents in the requisite time, which explains the situation clearly to the Judge.

 

We would be looking to get the case struck out because after the 12 days (if my understanding is correct) the permission of a Judge has to be sought to proceed. The absence of the documents would be another reason we can put forward for the case to be struck out. No documents-no debt-no case!

 

We are considering all options that might be available to us.

 

Laiste.

[ecobabe]

i could be wrong here but i think that the court's permission is needed after the one month. the Act says that after 12 working days it is in default and while default continues it is unenforceable, if default continues for 1 month then an offence is committed. so within the month they can come up with agreement, but after that they need to go to court to have it enforced. but it doesn't look likely in your case that they've got agreement

[ecobabe]

here is the Act verbatim

 

"If the creditor under an agreement fails to comply with subsection (1)—

(a) he is not entitled, while the default continues, to enforce the agreement; and

(b) if the default continues for one month he commits an offence. "

[Laiste]

Thanks for that Ecobabe!

 

I have not had the chance to trawl through the CCA 1974 as yet, but I am certainly going to need to be au fait with all the relevant provisions if these matters go to Court!

 

I have seen it said by numerous people on here, that if a c/c Company fails to comply with the timescale for providing the documents, that the permission of the Court must be sought b4 a case can proceed. I am wondering where this is stated in the Act, or if it is simply someone's opinion. If it is true,this is a defence in itself, as each of the Companies have just simply filed claims! Do you know where I can find this information in the Act?

 

Many thanks,

 

Laiste.

[zootscoot]

Hi Laiste,

 

I found this which should certainly help you

 

House of Lords - Wilson and others v. Secretary of State for Trade and Industry (Appellant)

 

The case of Wilson v S.of S.

 

Mrs Wilson purchased a BMW on credit the credit agreement stated 5,250 instead of 5,000 The House of Lords held that the whole debt was unenforceable because the document did not comply with CCA as did not correctly state the price. In fact the credit was 5,000 + 250 arrangement fee was cost of credit.

 

 

Shows how serious paperwork is taken by the highest court in England!

 

 

Hope this helps.

 

Zoot

 

ps. note the interest rate a whopping 97%

[Laiste]

Hi Zootscoot,

 

Thanks ever so much for that, I will have a read of the case a bit later! As you say, paperwork is taken very seriously by the Courts and the case you have pointed me in the direction of, may well guide me to other relevant cases as well!

 

I do hope we are able to find enough arguments to render the debts unenforceable, we will then be able to share our experience with everyone here and help others in a similar situation. Knowledge is most definitely power!

 

Thanks again,much appreciated!

 

Laiste.

[gizmo111]

But the act says that the debt is enforcableable if they do not comply - so surely they should be asking if they cna sue you as they are in default and have no pfoof of debt?

[zootscoot]

Hello again

 

 

The relevant section of the Act is 127(3). This makes the agreement entirely unenforceable unless a signed document containing all the prescribed terms is provided. At present this makes the agreement automatically unenforceable. The judge simply can not enforce the debt no matter what.

 

This is about to change under the CCA 2006 which repeals s.127(3). This comes into force April 2007. Under the new Act the court has a discretion as to whether to enforce the debt or not.

 

So you should be fine.

 

Zoot

[gizmo111]

Hi Zootscoot,

 

Thanks ever so much for that, I will have a read of the case a bit later! As you say, paperwork is taken very seriously by the Courts and the case you have pointed me in the direction of, may well guide me to other relevant cases as well!

 

I do hope we are able to find enough arguments to render the debts unenforceable, we will then be able to share our experience with everyone here and help others in a similar situation. Knowledge is most definitely power!

 

Thanks again,much appreciated!

 

Laiste.

 

Hi which part of the country are you - if you are near and court attendance is ineviatble then I would be be than happy to support you.

[Laiste]

Hello Zoot and Gizmo!

 

I have just been scimming through the HOL case and there are some very interesting issues it raises. I will need to properly digest it tommorow, but there may be recourse through the Convention on Human Rights and the Human Rights Act also.

 

I really want to find a legal argument that supports our position if they do produce the documents. They may or may not do this, but its important to cover this. They should not be allowed to enforce the debt if they are out of the prescribed timescale. Just like the whole issue with penalty charges, these Companies will keep on flouting the law and trying to get away with treating customers appallingly, until we challenge them. The message c/c Companies will be getting if they can get away with providing the info as and when they want, is that the law is there to be both ignored and abused. If they had provided the documents within the 12 days or 1mnth, then fair enough, I would have accepted that. It can hardly be reasonable that they can commit an offence and still enforce the debt!

 

Thanks for the offer Gizmo, we do have lots of support from friends and family, I dare say it will probably be a day out for all, lol!

 

Laiste.

[zootscoot]

Hi Laiste,

 

The Human Rights issue referred to in the case relates to the loan company's defence and not Mrs Wilson's claim.

 

The Loan company was arguing that the trial judge's finding that the debt was unenforceable under the CCA amounted to a breach of Article 1 of Protocol 1 the right to be free from deprivation of your possessions. Also that the fact that s.127 (3) meant the debt was automatically unenforceable without the a judge ever having looked at the merits of the case was in breach of Art 6 - the right to a fair trial. The Court of Appeal found for the loan company and declared CCA incompatible with Convention Rights. This is what prompted the CCA 2006. The House of Lords subsequently reversed the finding of the Court of Appeal. So at least in your case they will not be able to raise this as a defence.

 

Hope this helps

 

Zoot

[Laiste]

Hi,

 

I have been pondering what constitutes a properly executed agreement since having a brief look at the case last night. Consider that if any of the details on the original agreement you sign are wrong, then that is not a properly executed contract as the CCA 1974 requires, and that will render the debt unenforceable. So, incorrect name, address, loan/credit limit details will render the contract unenforceable I'm sure.

 

I discovered a while ago that PPI had been added to the Egg c/c account from when the contract was taken out. We would never opt for it as it is an expensive waste of money. This got me thinking, because it was added at the outset, if it is not included in the agreement when we signed it, it is not a properly executed agreement. I really want them to send the agreement now, as I am certain that we would not have signed for it, as we tend to scrutinise all paperwork. This may well be a further defence. It is reasonable to conclude that they would not be able to enforce the debt on this basis.

 

Regards,

Laiste.

[zootscoot]

You might want to have a look at this thread. The case in it refers to the exact situation you mention.

 

http://www.consumeractiongroup.co.uk/forum/legalities/25135-unenforceable-agreement-case-details.html

[JonCris]

Egg are trying to cloud the issue.

Even if the court where to allow the case to go forward, which is doubtful, they still have to prove the whole of the debt & to do that they have to establish that their penalty charges are fair & reasonable, which we all know they are not..

 

Its' very important not to lose sight of this.

 

I suggest if it's handled correctly, that by taking court action & saving you the cost of issue Egg have actually, by trying to be too clever, shot themselves in the foot.. No lower court can overule what is already established law nor can it disregard statute such as the Unfair Contract Terms.

 

On reflection this may be the opportunity we have waited for & Egg are by going to court giving us the opportunity to finally make the banks justify their charges

[NitrousOxide]

I agree, put a defence and counterclaim in then ask them to show how much their costs actually are.

[Laiste]

Hi everyone,

 

Well, I've just picked up the post and guess what? Direct Legal and Collections, on behalf of Egg, have sent the agreement and statements....! I have had a quick look through and there is no evidence on the agreement that we signed up for PPI, but it appears on the 1st statement! This is daylight robbery! More importantly, it ties in with one of the arguments we will be putting forward that the agreement was not properly executed, we definitely did not sign up for PPI! Thanks again Zoot for the other case, I imagine it is almost a certainty they have charged interest on the PPI unlawfully!

 

Many thanks Joncris for your comments! I did sort of lose sight of the penalty charges angle. Egg's clever little stunt is sooo going to backfire! This is the perfect situation to challenge the penalty charges; as they have kindly provided the evidence! I wonder what the liklihood is of them going to Court when I mention the charges in the A/Q? LOL!

 

Does anyone know who the best person at Egg and also Marbles would be to call as a witness to explain their penalty charges? I am serious by the way. If both of these companies want to engage in bully boy behaviour, I think it's only fair to play them at their own game!

 

Regards,

 

Laiste.

[JonCris]

You might want to have a look at this thread. The case in it refers to the exact situation you mention.

 

http://www.consumeractiongroup.co.uk/forum/legalities/25135-unenforceable-agreement-case-details.html

 

Excellent zootscott I referred to this case a while back & coudn't find it Thanks

 

PS would you like to tell the OFT about this cos they don't know that's for sure