Dear Mair 1975 Well done with the definition of averment. Your attachment also shows the definition as "to assert formally as a fact". Under the new rules the creditor required to aver that they have the agreement, which begs the question what if, in the final analysis, they do not have the agreement and therefore avered incorrectly? Is this a contempt of court? Is this grounds for seeking damages i.e. the legal costs incurred as a result of this incorrect averment? Would a direct lie to the court be grounds for a request for the creditors CCL to be reviewed? I would once again encourage interested parties to write to The Secretary to the Sheriff Rules Council, Haywiegt House, 23 Lauriston Street, Edinburgh, EH3 9DG to ask why, if a creditor is to make an averment, they cannot produce the agreement. Presumably to make an averment they require to check that they have the document and if so why can a photocopy not be provided. The production of the document may then avoid the action taking place and save the court time. Lets take the opportunity to tell the Sheriff Rules Council of the abuses used by creditors and how they use their financial and leagal muscle to frustrate the intentions of the the CCA 1974.

Pinky 69 I was appreciative of your reply and you are quite right, there are a few changes coming in on the 1st December which will make creditors life more complicated. Going to Court is always a daunting prospect, mainly because of the financial implications if you lose, through some technicality. A summary court case,I understand, leave you in this position. I have been trying to devise a way of using the system to maximise the effect but minimise the risk. I have been giving a thought to such a course of action and would welcome the throughts of others on this. The small debts proceedure is designed to be both more simple, more cost efficient and limit the possisble liability to costs. Let's assume that you have the plastic response from the creditor stating, for instance, that an application form meets their obligations under section 77-79, and that they are therefore going to continue collecting payments. If you then wrote advising that they were in default and stating the reasons for this and adding that no further payment should be sought, if they did take a further payment they are in contravention. If say the payment was £50 and the borrower then raised a small debt action to recover the £50, the costs of the lagal action would have been minimised. To defend the action the creditor would have to prove that the application form was compliant. This would prove a cheap and effective way to have the agreement declared legally unenforcable. The alternative would be to suspend payments and challange the creditor to take the matter to Court which has two disadvantages, there would be no limitations of possible costs and by the time the case reached court the borrowers credit record would have been wrecked. If the Court pronounced the agreement unenforcable it may also be possible to ask the sheriff to advise the creditor that no further enforcement actions should be attempted. One of the changes to Court proceedures on the 1st December is that the creditor has to submit the properly executed credit agreement to the Court at the outset of any action. I would assume that the reverse would be true, that if they were called to defend an action, such as the small debt action, they would also have to deliver the properly executed agreement upon the initial statement of defence. I may be flying a kite here and would welcome any thorughts, even if it is to shoot my kite down. Better here than in Court!

Jed2004's postion is not unusual insofar that creditors without the documentory evidence seek to pressure consumers into making payments to which they are not obligated. This, as I have said in another thread, appears to be directly contrary to Part 2 section 5 a&b of the CPUT 2008. They are trying to induce an aveage consunemer to take an action which they would not otherwise have taken. By purporting to have the agreement or threatening legal action when this is not justified, they must be contravening the Act. The problem with the Act being that we are all depandant upon the OFT as the enforcers to take the necessary legal action. This is extremely unlikely to happen given the sclorosis (?) which pervades that organisation. If however we arranged a concerted campaign and send all of the cases to them which fell into this catagorty and demanded that they take action, then maybe they would be forced into action. After all we are only asking them to invoke the law which they are mandated to do. What is the point of Parliament passing legislation, restricting the enforcement to one body, and then that body takes it upon itself to interpret the law by not seeking to impose it. Creditors are aware of this and treat the OFT with distain and contemt. With the abuses catalogued on this site on a daily basis it is obvious that the licencing requirements are also "interpreted " by the OFT. Is there anyone else interested in a campaign where section 5 a&b could be invoked via the OFT by sufficient of us taking the trouble to write to the OFT on each occassion that creditors abuse that part of the Act? Maybe a standard letter, capable of variation for individual cases, would cut down the work but achieve the desired effect.

Hi PGH7447 Thank you for your response and your valuable link. Although I was aware of the changes, the Credit Today article was extremely useful. It is late in the day but I do feel that consummers should also be represented at the meeting with creditors, even if this is through written submission, if only to re-assure the Council that their changes are welcomed by the wider public. It has always seemed to me that creditors seeking to pressure borrowers with copy applications or re-constructed agreements are commiting an offence under part 2, Section 5 a&b of CPUT 2008. By stating repeditively that what they have sent is compliant when they know that it is not, they are inducing the unwary consumer into making payments to which they are not obligated. This would appear to my untrained eye to be a direct contravention of this section of the Act. The weakness of this situation however being that only the OFT can take action under these provisions. Regulators have shown their reluctance to impose the law in this area, presumably as they do not wish to be seen as assisting their fellow citizens in challanging commercial contacts where they precieve to be a moral question. The change in rules however mean that the consummer does not have to go through the proceedure of appealing to the OFT for action.

Solicitors have been circularising their creditor clients with details of this change for some time, especially Kyle & Yule. The fact that creditors have been provided with a right to representaion at the meeting on the 6th November is a worry as they will undoubtedly seek to water down the effects of the changes. I do feel that although time is short, as many borrowers as poosble should write to The Secretary of the Sheriff Court Rules Council at Haywieght House. 23 Lauriston Street, Edinburgh, EH3 9DQ. No doubt all of the creditors, their legal council and other pursuaders will be wheeled in to try and change the new rules. The fact that they are worried is underlined by the fact that the rules only seek the pursuer to bring forward at the outset that which they have to rely upon should the hearing continue. What the changes really mean is that creditors are robbed of the ability to threaten legal action and the costs associated with defending that action. Creditors depend upon the reluctance of most borrowers to submit to the Court and to the posibility of cross examination. Most borrowers see a Court as an area where they are out of their depth, subject to unknown and unexpected rules and proceedures which will leave them exposed to the ridicule of creditors legal representitives. The cost of having legal reprentation to avoid this situation arising means that this is not a practical option. Most solicitors are now charging £165 per hour for their services, the definition of their time to include reseach, travelling and time waiting for the case to call at the Court. Even if the borrower wins and claims costs, these will only cover a proportion of the costs expended. This change could be very significant and a quick communication with the Rules Council supporting their changes will at least confirm to them that their foresight does have the support of the public . It will also put into context the pressure that will inevitably be exerted by the creditors and their paid acolytes. Let's exert the power of the pen.

Hi Gezwee Thank you for your response and you are correct in your assessment of me as a newcommer. I have been reading a large nunber of forums but have not been involved in posting or starting threads previously. My problem is finding my way round the CAG system as I have tried to find references to this case without sucess. This is obviously because I have been looking in the wrong place and/or not knowing how to look for a specific subject. I did put McGuffick in the search panel ... but no sucess. Now that I know that the information is out there I will redouble my efforts to find it. Thank you once again for taking the time to reply. Luss

In light of the recent McGuffick judgement, has anyone any thoughts on the long term consequences. It would appear that having an agreement declared unenforcable still remains the same but the endorsement of the rights of the creditor to continue to pursue the debt and to register adverse credit information is a killer. The creditor will continue indefinitely to register late payments and defaults and totally trash any credit record. It will ensure that any credit challange in the future will be wrecked by this action. This judgement appears to effectively negate the protections afforded by CCA 1974 by exacting an unacceoptable penalty for excercising your rights under section 77-79. There is one proposition that I would like other views on, this being the use of CPUT 2008, part 2, section 5, a&b. It states that if an organisation deliberately misleads a consumer in such a way that the consumer will take an action that they would not have taken if they had not been mis-informed, then an offence has been committed. If a creditor, in the knowledge that an agreement is unenforcable, chases the debt, which by definition is demanding payment, this is mis-information as they are pursuading the consumer to make a payment to which they are not legally obligated. It would appear to me that this action infringes the terms of the Act but I would welcome others views on this assessment.

I have been reading the various threads on CAG but this is the first time I have attempted to join in. Please accept my apology if I transgress the etiquette I have received an offer for the return of the PPI premium, plus interest, from BoS. They wish to use this to reduce the loan. For my own reasons I wish the premium and interest returned to me. What is the situation? Can I insist on the funds being referred to me or do BoS have the right to make the decission. The other problem being that the credit agreement is in default but BoS insist that what they have sent is compliant. This is palpably not so. This may therefore result in a referral to the Ombudsman. Is this dispute reason enough for me to demand the payment direct to me or will BoS insistance that the account is not in default provide them with a reason for applying the return of premium to the loan?