Advice on 2 CCAs please

[car2403]

If the prescribed terms can be read on the T&C's, they will need to show they are part of the same document.

 

If they can't show that, the T&C's aren't part of the same document, which will include the presribed terms, meaning the agreement is irredeemably unenforceable. (As it doesn't contain the prescribed terms)

 

If they can show that, the agreement will be enforceable.

 

The only way to know is to get them to confirm in writing whether these 2 are part of the same document/agreement. From what I've seen, it's unlikely this will be confirmed in writing.

 

If that is the case, the only way to force their hand is to take proactive Court action to have the rights and obligations of the parties to the agreement declared by the Court, in that you can make an application, requesting the agreement to be declared unenforceable because of it's unlawful construction under the CCA, under s.142 CCA 1974.

 

The problem with doing that is that they **may** turn up with the agreement and the Judge determines it is part of the same document/agreement and enforces the debt. That could result in costs being added to the debt and having the whole lot enforced against you.

 

From experience on here (I don't have this issue with this company, but many others have, if you care to read the other threads on the forum) it seems very unlikely this would be the case, however. It would be worth reading the threads of others in the same position, though, as this company doesn't give up easily without putting up a formidable defence - only a claimant with sufficient experience and knowledge, with the support of CAG, would find themselves unpertubed by it all, IMHO.

[car2403]

I also find that if you google your particular problem with key words it comes up with all sorts of interesting sites and forums where it has been discussed previously or you get a legal perspective on it. You can then sift through this information and take out of it what you want which applies to your particualr situation. It's a curve of building knowledge that helps you understand what you are doing so you see how consumer law actually applies. It's also very interesting and a confidence booster. There is nothing now that any bank or DCA could throw at me that would make me turn a hair but that has taken hundreds of letters and hours and hours of scanning CAG and other sites - and I don't yet know it all and never will!

 

Most of which usually link you back to CAG....

 

;)

[car2403]

Consumer Credit Act 1974 This version of the Consumer Credit Act 1974 has simply been scanned in from a printed copy.

 

I think the poster wants the 1983 Agreement Regulations, but the document before the regs were amended.

 

I can't see these on the forums - maybe PT2537 (Paul) will have a copy?

[car2403]

That's lovely BRW, thanks for sharing:D One of the most informative things I've read on here:D

 

I thought exactly the same thing.

 

Hiccup...

 

;)

[car2403]

By paying you are acknowledging the debt so there seems little point in disputing it on the grounds of either default of a CCA request or unenforceability.

 

I can see your point, but another view is that you've made payments under the mistaken belief that the agreement has been enforceable all along.

 

Maintaining payments in those situations may amount to acknoewledgement of the debt, however.

[car2403]

Semantics.

 

Agreed.

 

While I can see Lexis' point of view, all too often such a point of view is distorted against lesser individuals that don't know their rights where a debt is enforceable however.

 

The DCA are not entitled to pursue me for payment whilst they are in default of my request for a true copy of the properly executed agreement and I am perfectly entitled not to pay them anything.

 

There's nothing to say they can't pursure you. In fact, even if the debt is enforceable, they can still require you to make payment - they just can't use legal remedies to reclaim the funds from you.

 

Paying them is acknowledging the debt and I don't know how that would look better in court if I am disputing the debt!!

 

If the Court was completely independant, paying an unenforceable debt shouldn't have any impact by acknowledging the debt - unenforceable is unenforceable.

 

The issue you may have here, is that the Court may decide your attempting to avoid the debt by questioning it's enforceability. If that happens, an unenforceable debt is likely to be enforced anyway - which results in grounds for appeal.

[car2403]

If they take you to court, it is up to them to prove you owe the debt, not for you to prove you don't - you cannot prove a negative.

 

My point is, the creditor will submit an argument that the debt is owed based on what they do produce, not what they can't.

 

If the Judge is so minded to accept that argument, you have to counter that with your Defence, in which case a Judgment is entered based on the arguments put forward.

 

You can't defend on the basis that there is no claim - your defence must state which allegations are denied and have supporting reasons why they are denied.

 

If you don't deny something in your defence, you're taking to admit it and not require proof of the allegations. (Or that proof to be tested)

 

This is all contained in CPR.