Non-compliance with CCA - Advice now please

[Edz11]

In this type of case it is more black and white, guilty or not guilty. The fine tuning comes with the penalty which is a maximum.

[tifo]

The Clerk will go away and check the rule books. They will then issue the summons. It doesn't cost you a penny.

 

Really? Not a penny to issue a summons at Magistrates?

 

What if they fight back and you lose?

[Edz11]

No fee. It is a summary criminal offence. If they have any sense they'll plead guilty by post and pay the fine. If they win they don't pay the fine.

[tifo]

If they win they don't pay the fine.

 

Yes, but then do you have to pay their costs?

 

I'm sure it can't be as easy as you not paying a penny, win or lose.

[Edz11]

Provided that the prosecution isn't "malicious" then it is that easy. The "gatekeeper" is the Magistrate/Clerk. If the application for summons is accepted then there exists a charge which has to be answered. Crime is not dependent on ability to pay fees to a court.

[Having_A_Knightmare]

Provided that the prosecution isn't "malicious" then it is that easy. The "gatekeeper" is the Magistrate/Clerk. If the application for summons is accepted then there exists a charge which has to be answered. Crime is not dependent on ability to pay fees to a court.

 

I tell you Edz I will be trying this if T/S carry on the way they are doing with me.

Will be writing letter to my Councillor shortly as well.

 

If you dont mind me asking Edz what party was you with

 

HAK

[itsamomentintime]

i have been wondering what to do once the 'summary criminal offence' has been committed.

 

hope you are right Edz11, if so it could change everything for the better

[Edz11]

I'd rather not say which party I was with. But I'm quite right wing on some issues and very left wing on others!

 

Trading standards are a bit of a Cinderella service. They have lots of statutory duties - one of them being enforcement of the CCA. It just happens to be a case of priorities and CCA enforcement is down to the individual Council. It helps enormously if one TS Officer is keen about CCA enforcement although they have to be sufficently high up enough in the policy ladder to make it be treated as an issue by that Council.

 

When the DCA had entered the offence period it then becomes an offence. They can't produce the agreement a week later and say they are covered. That's too late. But I would be suprised if the Magistrates didn't take that into account when fining them. It's scale 4, so a MAX of £2500, I think.

[Jed180]

just to say very interesting, excellent & informative thread

[Edz11]

I've mulled this over all day. There are outcomes which will stem from private prosecutions of failures to provide CCA's.

 

The first is that the OC will have to tell the new creditor (if it's fully and completely assigned) if they have a CCA with this debt they are flogging. The DCA's will insist on knowing as the new creditor will not even think of touching the debt without one as it also carries a potential liability of £2500.

 

EG: Moorcoft buy a CCA based agreement which had a book value of £3000 for £300. They then start debt collection proceedings not knowing if they have a CCA. They get the S77/78 letter and are unable to comply - either through delay caused by the OC or there simply isn't one. They then get fined £1000. This unenforceable debt has set them back £1300 and they haven't got a penny for it. I don't expect that the fines will initially be at the max. But if Moorcroft have got form in 20 previous cases and the Magistrates are made aware of that then Moorcroft's business model will then start to lead to maximum fines. (Persistent offender). The argument that "we are a big organisation and we only have a small percentage that we default on" won't wash. If they are big then they can set up systems that ensure that every case where they start collection has a fully functioning and valid CCA.

 

No DCA will even look at a debt that doesn't have a CCA so DCA's will not start debt collection on a wing and a prayer any more.

 

The debt purchase market will go into free fall...

[Curlyben]

I gave my local court a call about this and basically yes, while it IS possible there are HUGE risks involved and costs as well.

 

This isn't another small claim action this is REAL, with very real consequences to boot.

 

While what Edz is posting is technically correct it is NOT recommended or to be given any real consideration at all.

 

DCA's will not simply roll over and let this happen.

They have access to more money than us and in this game the most money wins !!

 

That's why this is a job for TS and NOT a private citizen.

[Edz11]

I'm interested in what the risks are.... please explain.

You began by saying it couldn't be started by an individual and now accept that it can.

 

If the cases are chosen very specifically then there isn't any risk. I'd say that there is more risk in the cases which end up in the fast or multi track than in the County Court than there would be in the Magistrates Court.

 

Scenario - DCA given an unless order by County Court to provide CCA and fails. Case struck out as failure to comply. Next stop the Magistrates. Summons issued. Case heard and evidence presented by way of decision in the County Court (in addition to the CCA request by recorded delivery).

 

Is there a risk in that kind of case? I'm not being antagonistic Curly - but we do need to debate this.

[Josie8]

Interesting line of thought. Will be checking at my local magistrates court on Monday too.

 

What you are saying is that the case is clear where they have failed to comply with s.77 -79 request and you have proof of date they signed for it and proof by say a letter saying they have enclosed whatever document they send to comply after the statutory timescale? The fact that they have complied outside the 30 day limit is sufficient?:o

[rosierose]

Thanks, all, for such an interesting debate. I will be asking an acquaintance who is a clerk.

[Rhia]

TS is chronically underfunded (personally I think we need a NATIONAL TS service but that's another argument). However what they can do is put in a serious complaint to the OFT which can have huge implications. And yes anyone can bring a court action either civil or criminal. As Edz states the magistrates will decide if it has the ability to proceed. You are unlikely to be listed as a vexatious litigant over one case anyway.

[Rhia]

While it is indeed true that any member of the general public can bring a private prosecution on a matter of law, the duty of enforcement of CCA falls to Trading Standards and the OFT.

 

I think you might find this interesting.

 

 

Quote:

Originally Posted by Halsbury's Laws of England/CONSUMER CREDIT (VOLUME 9)

(3) ENFORCEMENT

305. Enforcement authorities.

The duty of enforcing the Consumer Credit Act 1974 and any regulations made under it falls on the Director General of Fair

Trading1 and local weights and measures authorities which are all known as 'enforcement authorities'2. It appears that this

bipartite structure envisages the director having responsibility for overall enforcement3, while the local authorities are

concerned with the detailed enforcement of the Act in their respective areas. When proposing to institute proceedings for an

offence under the Act4 the local weights and measures authority must give the director notice5 of the intended proceedings,

together with a summary of the facts on which the charges are to be founded6. The authority must postpone the institution of

such proceedings until either 28 days have expired since such a notice was given7, or until the director has notified it of

receipt of the notice and summary8. Local weights and measures authorities must also, whenever the director requires, report

to him on the exercise of their functions under the Consumer Credit Act 1974

 

 

This is very interesting Curly Ben and sheds important light on this debate. I have to say it is afascinating argument as in theory it shoud be easy for any citizen to start a case but my own investigation tells me it's not (bit of a turn around from my previous post)

[Stornoway]

I have a credit card with HSBC where they have failed to deliver agreement in statutory timescales and have now admitted in writing that they cant find the agreement. They are refusing to stop pursuing the debt as they say that there is enough evidence to prove that I incurred the debt through using the card. I am also now receiving letters from DCAs chasing the debt. I have written to my trading standards about the issue but if they dont / cant help then I will seriously consider the private prosecution.

[Edz11]

Stornoway - the only way that they can prevent an action in the Magistrates from starting is by writing to you and terminating the agreement and saying that there is nothing further payable under it.

 

There are no grounds for starting a prosecution if there is no agreement and there is nothing payable under one.

 

If a summons is issued prior to the date of that notice then it's too late for them no matter what they do. I would try a letter to HSBC telling them that without the confirmation of "termination and nothing payable" then you'll consider commencing private prosecution in the Magistrates Courts if Trading Standards decide not to. It can't hurt and the reply from HSBC would be ever so interesting!

[Edz11]

And again - A DCA could defend theselves by saying that "we aren't the creditor as defined by the act so we don't need to provide the agreement". Well, that's not quite the effective get out it may seem. A DCA using this in a Barclays agreement is then saying "it isn't us it's Barclays that's guilty". The agent provisions in the Act then kick in and the DCA will be assumed to have passed the CCA request to the OC who will in turn then fall under the spell of s77 etc instantly. I can't see the OC being chuffed if they are dragged into court because they were grassed up by their partner DCA.

 

I can't see that business relationship lasting long...

[Aspirante]

I have just got a copy of cca from halifax card services, I would like to know if they a valid - methinks they are. Please have a look date of signing was 14/07/05

Halifax 2549 application form & cca 1.doc

Halifax 2549 aplication form & cca 2.doc

Halifax 2549 application form & cca 3.doc

Edited May 24, 2008 by Aspirante
personal info not deleted

[Aspirante]

What do you think, do they comply? (third attachment I think is the important one)