CCAs post April 2007

[charlotty21]

Hi there, just looking for some clarification. I have a number of unsecured debts, most are three or more years old, a couple are from this year. What is the situation about requesting CCAs from recent lending?

Thanks

[pt2537]

the law changed in april 07 and the unenforcability element of the old consumer credit act have been removed.

 

new agreements are subject to a unfair relationships test

http://www.consumeractiongroup.co.uk/forum/general-debt/108467-basic-introduction-consumer-credit.html#post1048139

if you look here its offers an explanation

[PriorityOne]

A certain creditor is still asking its customers to sign a CCA 1974 though, so I assume this would override the new regs ?

 

[Belaflat]

So all agreements regardless of the date entered into, become subject to the new regulations.?

 

For Credit Agreements Made After April 2006, Or For All Credit Agreements After April 2008.

UNFAIR RELATIONSHIPS.

This is a completely incomplete body of law. It related to the new unfair relationships terms of the Consumer Credit Act 2006.

 

And it is broad.

 

In short, it includes anything done or not done by the creditor. At all times, the creditor is to behave fairly and reasonably. Exactly what is fair and reasonable is in question.

Did they breach, at any stage, any code of conduct?

What procedures did they put in place to check your credit worthiness before they entered the agreement?

What procedures did they use when you first informed them of the problems?

What procedures did they use to collect money

Was it fair and proportionate to take court action? Did they comply at all stages with the Pre-action protocols? Did they reject offers that you made in good faith, that were reasonable?

did they harass you, sending rafts of letters, fail to pass on details of your debt.

Did they fail to send a copy of the Credit Agreement within time limits?

Was there anything else that is unreasonable?

 

The burden of proof rests on the creditor in claims under the unfair relationships test.

 

What happens to those already disputed or those which have cases stayed, say because there may be some slight error in the agreement.

can they then be revisited under the new rules and enforced via that route?

 

I dont like the sound of this one bit, sounds like there could well be a few DCA's coming back for a second bite of the cherry.

[pt2537]

stirred up a hornets nest there eh, lets remember this is Toms interpretation of the law

 

i cant see this would be the case that an unenforceable debt will become enforcabile over night, what would the implications of mrs wilsons case be for example

[PriorityOne]

The new regs are not retrospective to CCA 1974 Agreements. Can't remember where I read it, but I did.

[pt2537]

The Consumer Credit Act 2006 (Commencement No. 2 and Transitional Provisions and Savings) Order 2007 (No. 123 (C. 6)) - Statute Law Database

 

this seems to clear it up though

[pt2537]

 

The repeal by this Act of— (a)

the words “(subject to subsections (3) and (4))” in subsection (1) of section 127 of the 1974 Act,

 

(b)

subsections (3) to (5) of that section, and

 

©

the words “or 127(3)” in subsection (3) of section 185 of that Act,

 

 

 

 

 

has no effect in relation to improperly-executed agreements made before the commencement of section 15 of this Act.

 

 

Gotcha

 

Consumer Credit Act 2006 (c. 14) - Statute Law Database

 

tehre we go it IS NOT RETROSPECTIVE IN ITS APPLICATION

[Belaflat]

I understand what you are saying in terms of the wilson case but suppose for example, a debt which currently may be deemed unenforceable in terms of the 1974 act but which hasnt been to Court, is revisited under the terms of the new act.

 

This is the bit which seems to me to give the DCAs that second chance and has me worried in case all those CCas requests and stayed judgements are suddenly reopened.

 

I might as well sell everything I own now before this comes in because if it does enable the DCAs to revisit, bankruptcy is going to be the only way I can ever get everyone off my back and keep the shirt on it.

 

Damnit sir ..or madam..ya typin' fingers are just too durned fast fer me.

[PriorityOne]

It's not retrospective, Belaflat.... which means that Agreements taken out under the 1974 Act won't be effected by the 2006 Act.

 

See Paul's link Consumer Credit Act 2006 (c. 14) - Statute Law Database

 

Section 11.

[pt2537]

I understand what you are saying in terms of the wilson case but suppose for example, a debt which currently may be deemed unenforceable in terms of the 1974 act but which hasnt been to Court, is revisited under the terms of the new act.

 

This is the bit which seems to me to give the DCAs that second chance and has me worried in case all those CCas requests and stayed judgements are suddenly reopened.

 

I might as well sell everything I own now before this comes in because if it does enable the DCAs to revisit, bankruptcy is going to be the only way I can ever get everyone off my back and keep the shirt on it.

 

Damnit sir ..or madam..ya typin' fingers are just too durned fast fer me.

hey i dont type too much,

 

 

i use C&P, much quicker and easier

[car2403]

This thread makes a decent point though, IMO, (not that I'm implying it doesn't anyway...) in that DCA's may pressurise debtors in to believing that the 2006 Act applies when it doesn't - some will probably even try to bring claims under it, if they can get away with it! I can see some of the scrupulous ones getting Judgment by Default or Admission under this if debtors aren't aware. (Surely a reason to have Judgment set aside though, IMO)

 

Every debtor with an agreement governed by the 1974 Act also needs to be aware of this as creditors are already, from what I've seen, trying to get debtors to sign a new agreement (consolidating, refinancing, whatever term they use) which will ultimately mean you lose the protection of the 1974 Act and will be under the mercy of the 2006 Act.

[pt2537]

Hey Chris

 

a truly valid point you've raised there mate

 

i have started including in my defences the fact that s15 does not repeal 127(3) for agreements entered into before the CCA 2006 came into force as ive seen creditors trying to claim the 2006 act applies to old credit agreements too

[PriorityOne]

This thread makes a decent point though, IMO, (not that I'm implying it doesn't anyway...) in that DCA's may pressurise debtors in to believing that the 2006 Act applies when it doesn't - some will probably even try to bring claims under it, if they can get away with it! I can see some of the scrupulous ones getting Judgment by Default or Admission under this if debtors aren't aware. (Surely a reason to have Judgment set aside though, IMO)

 

Every debtor with an agreement governed by the 1974 Act also needs to be aware of this as creditors are already, from what I've seen, trying to get debtors to sign a new agreement (consolidating, refinancing, whatever term they use) which will ultimately mean you lose the protection of the 1974 Act and will be under the mercy of the 2006 Act.

 

Excellent point, Car....

[charlotty21]

Thanks for all your help on that one guys, what a great bunch you are. Knowing about this site makes me feel as though I'm not alone.

[flash]

Absolutely fantastic news to know that the 2006 CCA is not retrospective in terms of S127 (3) of the 1974 Act. I have been trying to get a default removed via the Information Commissioners Office and their response was that the new 2006 Act negated S 127 (3) of the 74 Act. The office line has been as quoted by the Information Commissioners Office is that where an agreement is irrevocably unenforceable by virtue of S 127 (3) of the Act the CRAs are not allowed to record a default. I was asked by the Information Commissioners Office to show evidence that the 2006 Act was not retrospective and nowI have that evidence - thank you oh so much! i have been trying for ages to dig up some documentary evidence that this was in fact the case.

[Edz11]

Flash - what exactly did the Info Comm say about default notices in those cases? Can you scan and post their (edited) response?

[car2403]

Absolutely fantastic news to know that the 2006 CCA is not retrospective in terms of S127 (3) of the 1974 Act. I have been trying to get a default removed via the Information Commissioners Office and their response was that the new 2006 Act negated S 127 (3) of the 74 Act. The office line has been as quoted by the Information Commissioners Office is that where an agreement is irrevocably unenforceable by virtue of S 127 (3) of the Act the CRAs are not allowed to record a default. I was asked by the Information Commissioners Office to show evidence that the 2006 Act was not retrospective and nowI have that evidence - thank you oh so much! i have been trying for ages to dig up some documentary evidence that this was in fact the case.

 

Sounds like a circular argument to me, as only a Court can decide if s.127 applies to any agreement, even under s.127(3), as it's only when asked for an Enforcement Order under s.65 that this can be used.

 

Agree with Edz11, in that we need more information and background to this post please flash?

[flash]

Hi. here is "verbatum" what they wrote to me:

 

Recording Defaults in respect of improperly executed credit agreements

 

The office line, following the House of Lords decision in Wilson in 2003, has been that - where an agreement was not signed by the debtor or did not include the prescribed terms, the agreement is irredeemably unenforceable and details of the agreement should not be recorded with the credit reference agencies. This line applies only in cases where the improperly executed agreement is "irredeemably unenforceable" as a result of the effect of section 127 (3) CCA 74. Where the agreement could be made enforceable on order of the court the findings of the Court of Appeal in the case of R v Modupe should form the basis of our policy with regard to the recording of liabilities under such agreements with the credit reference agencies.

 

That's what they said. The second case referred to is R v Modupe 11 Feb 1991 [1999] GCCR.

 

What do you think?

[Edz11]

That will sort out a number of default removal problems that posters have had. If the IC has that view it will make life that much easier.

 

The second case rings a bell. But I don't think the details are right so I can't find it. Pt2357 has better access than I have to cases but if my memory serves me right I think Modupe was a Barrister. But it was an interesting case.

[pt2537]

yep, i have a copy of that case Edz11

[Edz11]

well, don't keep us in suspense! Is it any use Paul? And have you got a link to it?

[flash]

Hi pt2357. Do you have any idea where there might be information on the R v Modupe case? I can't see it in the case law section of the BAILLII database. it would be interesting to see a case that established a situation whereby the court had decided that an agreement was not irrevocably unenforceable and why.

[pt2537]

yeah i have the case, if you want to pm me an email address i will send it to you

[flash]

Good evening comrades. I have today emailed the Information Commissioners Office requesting a "second stage case review" in order to have a default removed. The story is that after having done a CCA request to RBS Card Srevices they could not produce the agreement. Consequently, after them trying to wiggle out of their contravention of the Act, they eventually discharged the balance of the credit card account! However, they would not remove the default that they put on my CRA file. I then went through the formal process with the Information Commissioners Office, basing my complaint on the total lack of a CCA, which, I considered barred RBS from processing my data.

 

The Information Commissioners Office, then after having stated that S127(3) of the Act did in their view prevent the CRA from registering the default, went on to state that the 2006 Act repealed s 127 (3), amongst other things, and that I could not challenge the data held on file.

 

As a result of the information gleaned from Paul, showing clearly that S 127 (3) had not been repealed, I submitted this to the Information Commissioners Office. So now I await a result and will keep you posted.

 

Something I have noticed is that when asking certain parties for a CCA they have referred to the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 SI 1557. they then state that they can supply a copy without certain information e.g. signature box etc as contained within S 3 (2a)....

 

My interpretation of this section is that it refers to pre-contractual aspects of the Act.

 

Any views or comments?