Creditor failed to provide CCA now commencing collection

[pt2537]

section 64 cca states

64. Duty to give notice of cancellation rights.

— (1) In the case of a cancellable agreement, a notice in the prescribed form indicating the right of the debtor or hirer to cancel the agreement, how and when that right is exercisable, and the name and address of a person to whom notice of cancellation may be given,— (a)

must be included in every copy given to the debtor or hirer under section 62 or 63, and

 

(b)

except where section 63(2) applied, must also be sent by post to the debtor or hirer within the seven days following the making of the agreement.

 

 

(2) In the case of a credit-token agreement, a notice under subsection (1)(b) need not be sent by post within the seven days following the making of the agreement if either— (a)

it is sent by post to the debtor or hirer before the credit-token is given to him, or

 

(b)

it is sent by post to him together with the credit-token.

 

 

(3) Regulations may provide that except where section 63(2) applied a notice sent under subsection (1)(b) shall be accompanied by a further copy of the executed agreement, and of any other document referred to in it.

(4) Regulations may provide that subsection (1)(b) is not to apply in the case of agreements such as are described in the regulations, being agreements made by a particular person, if— (a)

on an application by that person to the Director, the Director has determined that, having regard to—

(i) the manner in which antecedent negotiations for agreements with the applicant of that description are conducted, and

(ii) the information provided to debtors or hirers before such agreements are made,

the requirement imposed by subsection (1)(b) can be dispensed with without prejudicing the interests of debtors or hirers; and

 

(b)

any conditions imposed by the Director in making the determination are complied with.

 

 

(5) A cancellable agreement is not properly executed if the requirements of this section are not observed.

 

 

and s127 which is what the courts look at with regards to their powers of enforcement says

 

 

(4) The court shall not make an enforcement order under section 65(1) in the case of a cancellable agreement if— (a)

a provision of section 62 or 63 was not complied with, and the creditor or owner did not give a copy of the executed agreement, and of any other document referred to in it, to the debtor or hirer before the commencement of the proceedings in which the order is sought, or

 

(b)

section 64(1) was not complied with.

[albertini]

Hummm.. So can you clarify the bottom line for me?

 

If i recevied this document by post i have a right to cancel and they may not enforce.

[shane5408]

Hiya,

 

If it is a cancellable agreement then the creditor has a duty to provide copy documents and with them cancellation rights, if this is not adhered to then it may be unenforcable by virtue of 127(4) of the Act.

 

If it is a cancellable agreement and no cancellation rights are even mentioned on the agreement they have contravened the regulations, thus predjudicing you, hence an enforcement order could be appealed against using s127(1) of the Act.

 

the question is, it is cancellable or non cancellable! For an agreeement to be non cancellable it must satisfy the following criteria:

 

Agreements that are secured on land.

 

Agreements that are signed at or within the creditors premise or place of work.

 

Agreements that have been signed by the detor without any prior face to face discussion with the creditor.

 

This wasn't signed by you on company premises, it is not secured on land and there was face to face discussion with the finance broker (as he was acting on behalf of creditor this counts as antecedent negotiations imo) For these reasons I think this is a cancellable agreement.

 

I'm not an expert on this particular subject and it may be because this is not a conventional regulated agreement but a conditional sale agreement there is something i am overlooking, for that reason I would wait for Peterbard to give his expert opinion on this.

 

kind regards,

shane

[pt2537]

this would be covered by 127(4) shane if they had not supplied cancellation rights wouldnt it?

[albertini]

The agreement they have sent me is headed “Conditional Sale Agreement regulated by The Consumer Credit Act 1974”.

There is no mention of cancellation rights but there is a clause on termination only after £7900 has been paid.

A small clause on the document also says “before you sign you should read the terms of this agreement carefully including those on the following pages and that you understand them”.

They have not though provided the “following pages” so I cannot upload them to see what you think of them.

[shane5408]

this would be covered by 127(4) shane if they had not supplied cancellation rights wouldnt it?

 

 

yes thats right

[shane5408]

The agreement they have sent me is headed “Conditional Sale Agreement regulated by The Consumer Credit Act 1974”.

 

There is no mention of cancellation rights but there is a clause on termination only after £7900 has been paid.

 

A small clause on the document also says “before you sign you should read the terms of this agreement carefully including those on the following pages and that you understand them”.

 

They have not though provided the “following pages” so I cannot upload them to see what you think of them.

 

Hiya,

 

in that case they remain in default of the CCA request, they must provide the agreement as well as any document referred to in it, including all further t&c's they make mention of. If they havent they remain in default and as such cannot enforce the agreement

[albertini]

Ok, so i should write asking for those terms? I will send a letter todaqy.

 

Who's to say though that the terms they give us now will be the terms issued then?

[albertini]

The letter from them i attached in one of my earlier posts and this is my proposed reply incorporating the points that people have rasied today.

 

Any comments welcome before i send it:

 

I am in receipt of your letter dated 9th November 2007 and accompanying documentation.

 

Allow me to begin by making my own points in response to the contents of your letter.

 

It seemed to me that there was an obvious attempt to muddy the waters at this stage (August 28th). This is because my initial letter of the 23rd July 2007 was a clear and unequivocal request under the CCA 1974 Act for documentation relating to the alleged agreement.

 

I note your comments regarding the potential breach of the Data Protection Act with wry amusement. Whilst I applaud YOUR competence in making sure that your company was not falling foul of the Data Protection Act, it is a shame your telephone operatives never felt the need to apply the same standards and vigorous compliance to this Act in the roughshod manner they attempted to contact and threaten me (and others that I work along side).

 

Hence my complaint to you about the breaches of both the law and the OFT guidelines that your staff made in their dealings with me.

 

I trust therefore, bearing in mind your clear and stated dedication to adhere to the Data Protection Act in your letter, and the witness statement you have (alongside my own version of events), you now accept that your nameless operatives fell foul of this and other Acts and acted in a very unprofessional manner. Not only do they give both your company and your industry a bad name they open you up to the possibility of further action by the controlling authorities in your industry.

 

In truth though, in your letter of the 28th August, it appeared strange to me that a Professional Solicitor could attempt to draw some ambiguity in what was clearly a bog standard CCA request, of which your office must now be receiving, and processing, hundreds, on a daily basis.

 

Your request for clarification on my part about this debt seemed no more than a thinly veiled attempt to draw me into acknowledging a debt against me with a company I did not know who had employed a Debt Collection Agency that I knew nothing of either.

 

My letter of the 23rd July 2007 clearly spelt out the CCA request, yet you saw fit not to comply with it nor furnish me with the relevant documents at that point.

 

You cannot have it both ways. You cannot say that you wanted to be sure under The Data Protection Act that my position was clear when for the previous three or four months your company had, through its telephone operatives, “released the hounds” on me. Surely then your operatives should have been ensuring the debt was correctly assigned to me before all the threats and intimidation over the telephone began?

 

It seems to me that your procedures are badly skewed here. Where is the logic in aggressive chasing and threats BEFORE you have ascertained precisely the correct debtor? Unless of course you operate a strategy of bullying people into paying for unproven debts?

 

Whilst it will serve no purpose to remind you of the consequences for a breach of a CCA request the general rule of thumb of 12 days + 30 days still applies. You can argue that you weren’t sure about my letter but the fact is the Act is clear on the time frames your company has with which to comply with my request and you failed to do so.

 

You then move onto say you never received my letter of the 5th September. This letter was actually faxed to your office on the 5th September. Nevertheless the clock was ticking from the 23rd July and despite your sterling attempts to suggest otherwise, it is clear your company has committed a breach for which I retain the right to take further.

 

Your position is further weakened as you are STILL in default of providing ALL relevant information under the CCA 1974. The copy agreement you have provided clearly mentions accompanying terms and conditions yet you have failed to supply these to me. May I point out that until such time as you comply with the CCA request in entirety this account remains in dispute and is not enforceable. This includes a requirement on you to supply all documentation referred to in the agreement.

 

I would therefore request that you send them to me as well.

 

Once I have these documents, and after taking advice, I will be in position to correspond further with you.

 

I await your rapid response.