Non-compliance with CCA - Advice now please

[Edz11]

Strangely enough I don't think they'll bother much. There are no Civil sanctions for not supplying a copy of the executed agreement. All it does is stop them from taking you to court until they ind the agreement.

 

On the other hand there are criminal sanctions. You toddle along to the Magistrates Court and say "I want to lay information to obtain a summons". When you tell them what it is about they'll say it is a County Court matter - you are in the wrong Court. You'll explain it isn't. Having sorted theselves out (very rare that they get this type of case) they will get you a Clerk. You will say to the Clerk that "Moorcroft (plc/ltd - whatever of whatever address) - has committed an offence by failing to provide me with a copy of the excuted agreement as required by Section 77/78 of the CCA 1974 (must specify which one).

 

The Clerk will go away and check the rule books. They will then issue the summons. It doesn't cost you a penny. Moorcroft are then in court. There's a fine against them if found guilty. Need the facts to get the right offence (section 77/78).

[Edz11]

can't edit that sunglassed smilely...

[Edz11]

No - Trading Standards and the OFT have a duty to enforce the legislation. There is nothing stopping any indivdual from doing so - and that includes proceedings for non compliance with CCA requests.

 

Certain things can only be done by the Director - where it refers to the Director of the OFT. But otherwise - but if it isn't listed as a task of the Director and if it's an offence then anyone can...

[Edz11]

Well someone did do it on another site. Pannone and Co were the defendants Solicitors. (They are a very astute firm). But that case was quite embarrassing. He was saying that they had refused to forward a CCA but a CCA was not appropriate. Pannone could not raise any objection to the private prosecution per se. but they kindly (under the circumstances) beat him round the head for getting muddled up.

 

And there's a review of enforcement of European Credit Law here; FIS Money Advice - All Archives

Individuals can enforce. You can lay information to get a summons in respect of any law in this country - unless you are restricted from doing so by the legislation. The CCA says some of the enforcement functions are the prerogative of the Director, but most are not.

[Edz11]

The defence to non providing an agreement would get quite interesting. They could say to the Magistrates "we aren't the creditor as defined by the Act". Well, that buggers up any subsequent action in the County Court they try to take as they can't say they aren't in the Magistrates Court and shortly after say "we are the creditor as defined by the Act" in the County Court. Mmmm. The Justices will take a very dim view of that. You get a finger wagging in the County Court for confusing the issue (well, it's part of the game for them). Do that in the Magistrates and if you get a bunch of bad tempered Justices you'll be asking your relatives to bring you soap on a rope as soon as possible...

[Edz11]

Curly ben - you're wrong! Your's crossed with mine curly - read the post above...

[Edz11]

I don't think it was. I'm very much in favour of using private prosecution against the DCA's but it should be done very carefully. It must be right, no guesswork or similar.

[Edz11]

No - it is more straightforward (and in some ways more complicated) than that.

 

The information has been laid before Magistrate/Clerk. They then decide if a summons is appropriate. The defendant then has to appear in Court and answer the charge.

 

Abuse of process is a complicated principle - but basically that the case should not be brought to Court as the defendant won't get a fair hearing. The argument that only Trading Standards can enforce the legislation is wrong so could not be considered an abuse.

 

When saying that people should be careful, I mean that they should be absolutely precise aboout the section of the act (ss 77, 78 etc) and the total absence of the agreement. "we haven't got any to give you ". That's not to say that some of the others I've seen which are semi executed wouldn't be excluded.

 

Costs only arise as an issue if there is the prospect of an action for malicious prosecution. In a case where a DCA has said "we are the creditor" or "we own the debt" - there can be no maliciousness if they have been asked to provide the executed agreement and they have failed to do so. I think that a five minute chat with the Clerk before applying for a summons would be time well spent.

[Edz11]

No - I've got it already thanks. Private prosecution applies in this law - and any other - if there is an offence and that private prosecution is not specifically prohibited by the legislation. That is distinct from "Enforcement" viz a viz the CCA.

 

The OFT and the TS Departments have duties prescribed in the Act - that does not remove the right of an individual's right to commence prosecution.

 

If it did, you can bet your bottom dollar that Pannone & Co would have said so.

[Edz11]

Three options.

1) Contact your local Councillor and say "there is a law that has been broken and TS are refusing to prosecute". Tell him/her that you've spoken to a former Councillor (me) and that this happens a lot as TS depts don't fully understand their role. "Could you have a look at it".

2) Tell TS that you are not happy with their decision - could they look at it again before you contact a Councillor.

3) Go to your nearest magistrates court and ask to speak to a Clerk as you wish to lay information to obtain a summons. You need to be clear as to what section of the act has been offended - s77 or 78 etc. You need to take copies of the letter you sent asking for the CCA and proof that they received it. I would also take a print out of the section of the CCA that has been contravened (they won't have one).

 

Explain that the TS has refused to prosecute and you wish to. You don't have to put it all in writing, but it helps if you do so simply. The Clerk will explain how you ask the CPS to take over the case and at what stage you should do so.

 

You'll find the staff are much more helpful than in the County Court and I've no idea why that is always the case!

[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.

[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.

[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.

[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.

[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...

[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.

[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...