HELP PLEASE - DCA saying CCA is enforceable

[focus243]

I have received a reply from my letter, to a DCA stating that the CCA was enforceable. They sent the attachment below with a pile of statments and T and C's

 

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I sent them a letter saying not enforceable under Section 61 of the Consumer Credit Act 1974 and is therefore unenforceable by virtue of Section 127 of the act. (as advised on here) and this is what they have sent me back

 

 

 

Dear Focus

 

 

I, with respect refer you to Section 61 of the consumer Credit Act, which deals with the "signing of document" and states

 

"A regulated agreement is not properly executed unless

a) A document in the prescribed form itself containing all the presribed terms and conforming to the regulations (Consumer Credit(Agreement) Regulations 1983) under section60(1) is signed in the prescribed manner both by the debtor...

b)The document embodies all the terms of lthe agreement, other than the implied terms..."

 

Please be advised that the word "embodies" does not mean "contain". The word "embody" (in contrast to "contain" which is set out is subsection (a) of section 61) means that the document need not set out all the terms itself, but may refer to another document setting out the terms under section 189(4). In this instance on the application form it is clear that the Terms and Conditions are mentioned in the Declaration box and therefore you are incorrect in stating that the agreement is breech of section61 and therefore unenforceable by virture of Section 127 of the act.

 

As a result the information we have provided to ou clearly complies with section 78 of the Consumer Credit Act 1974.

 

With regards to your subject notice under section of the Data Protection Act 1998 (DPA) section10(1) of the DPA states

 

"subject ot subsection (2) an individual is entitled at any time by notice in writing to a data controller to require the data controller at the end of such period as is reasonable in the circumstances to cease, or not to begin, processing or processing for a specified purpose or in a speicfied manner, any personal date in respect of which he is the date subject, on the gound, for specified reason-

a) the processing of those data or theri processing for that purpose or in that manner is causing or is likely to cause substantial damage or substatial distress to him or to another, and

b) that damage or distres is or would be unwarranted."

 

Section 10(2) of the DPA states:

"Subsection (1) sowa not apply

a) in a case where any of the conditions in paragraphs 1 to 4 of Schedule 2 is met, or

b) in such other cases as may be prescribed by the Sectetary of State by order"

 

I refer your attention to paragraphs 1 to 4 of the DPA, which states

 

Conditions Relevant for purposes of the First Pinciple: Processing of any Personal Data

1) The data subject has given his consent to the processing

2) The processing is necessary

a. For the performance of a contract to which the data subject is party, or

b. For taking steps at the request of the data subject with a view to entering into a contract

3)The processing is necessary for compliance with any legal obligation to which the data controller is subject, other than an obligation imposed by contract

4) The processing in order to protect the bital interests of the data subject"

 

You will notice that section 10(2)(a) of the DPA the words "any of the conditions" and paragraph 1 and 2 of Schedule 2 of the DPA are entirely relevant to your case, As you signed a credit ageement which has been assigned to cabot, of which the terms we are entitled to enforce, section 10(1) of the DPA does not apply to your circumstances.

 

I trust I have set out our position clearly.

 

Yours Cabot

 

I have not got a scanner so I hope this is okay and can somebody give me advice, what I should do next please. They keep ringing several times a day, every day, but I have not spoken to them.

 

Thanks Focus

[ScarletPimpernel]

Attachment not seen.

 

We really do need to see what they've sent.

[focus243]

 

Sorry, I hope this helps

[wilko999]

exactly the same as mine - and mine was enforceable

[baileyboy]

Beg to differ Wilko, cannot see any prescribed terms, how is it enforceable?

[wilko999]

mine were on the reverse, I chanced it, went to court - I lost. Up to the poster to decide how they wish to go with it but just letting you know that's what happened to me.

[lickthewallfatboy]

let them try to enforce it if they are so confident......

[wilko999]

have a look at my thread - my cca was the same - the prescribed terms were on the reverse - if yours has the same on the reverse I would suggest it's enforceable.

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/176296-could-anyone-tell-me.html

[baileyboy]

On the basis of whats been posted, its not enforceable. If the prescribed terms happen to be on the reverse, then a copy of the reverse should have been sent with the CCA request. They haven't fully complied with the request. This isn't enforceable as it stands. IMHO.

[focus243]

Hi

 

 

The T & C's are not showing on the reverse of what they have sent me. They have sent them on a seperate peices of paper. Do you think the original document would have them on the back?

[focus243]

Please can somebody advise me, if this is enforceable.

 

The DCA have called numerous times already today it seems to be every hour.

 

Thanks Focus

[Enron]

If the DCA are phoning you every hour they are breaking the law, its clear harassment.

 

Even a couple of times a week could be considerred harassment.

 

I would suggest that you request for them to contact you only in writing, you will be contacting your local trading standards department to report their harassing behaviour who can prosecute them under the Administration Of Justice Act.

 

AND DO CONTACT TRADING STANDARDS, you can get the address of your local one by enterring your postcode below.

 

Trading Standards Institute - Home page

 

In the meantime get a definative answer as to whether this is enforceable.

[focus243]

Thanks Enron

 

I will get a letter off to them.

 

Thanks Focus

[Helenatroy]

I'm not an expert - but one day I hope to be

 

I always thought that the prescribed terms did not have to be within the

four corners of the signatory page.

 

However if they (the prescribed terms) didn't appear within the four corners of the signatory page, then there should be some sort of link

mentioning that.

 

ie I have seen a copy of a consumer credit agreement (not disimilar to the one above) where there are no prescribed terms on the signatory page,

however it mentions in small print at the bottom of the page, that the

terms and conditions etc are on the reverse of the form.

[Desperate Daniella]

You are right, 'the four corners' refers to the whole document not just the front page with the signature. The prescribed terms must be in the document, and this means they can't be on attached leaflets, brochures, attached by staples, etc.

 

If the T & Cs were genuinely on the back, and the prescribed terms are there, and accurate, then it will be enforceable. However, as we all know the companies are not above playing around with the photocopier.

 

The question for Wilko is when you went to Court, did they actually produce the original agreement so you could see that the T & Cs were on the back of it?

 

I have just looked at your thread and on the front page it says, "I have received a copy of and agree to be bound by the Conditions of Use." In other words you got those on a separate document.

 

Secondly, if you photocopied both copies in 'real size', then clearly those Financial Information details wouldn't have been on the back. Why would anyone print a document like that? They don't fit the page, it looks silly, and also someone on your thread refers to various conditions missing. I think what they copied on your back was the first column of a leaflet of terms and conditions.

 

They really are devious sods.

 

DD

[focus243]

Hi DD

Unlike Wilko, the T & C's on my CCA are on a completely different peice of paper. It doesn't refer to T & C's being overleaf or on reverse either on mine.

 

Although the front is exactly the same as Wilko's. I think his CCA came direct from Halifax, where mine has been sold on to a DCA, who maybe havn't photocopied it on to the back.

 

Unless it isn't an exact copy of the original agreement, and in court they will pull out a copy with T & C's on the back.

 

Thanks Focus

[babydoll0141917]

hi

 

there are loads of us with these halifax CCA,,i have conditions of use printed on the back of mine..but others have different stuff ..but it doesnt tell me that they are overleaf on the reverse or pto..i have a faulty DN so if these agreements are enforcable then i can defend with the DN..

 

subbing

[wilko999]

When I was in court the documents produced were the original documents, the T's&C's were on a seperate page but they deemed them to be acceptable and part of the agreement as the agreement refered to them. I tried the angles but the judge in the case viewed it in a way in which it was made clear I was trying to avoid a debt by nit picking. I was actually treated quite harshly by the judge and although I brought case law into it it was a very quick decision in their favour. The actual law may well be on your side but ultimately it comes down to the Judges decision. Of course you can appeal if needed but that's when it will become more expensive as by that point you will need legal assistance IMHO.

 

The problem with these forums, and I do mean this as a problem is that there is a lot of quite bad advice on here as well some excellent advice. I just don't want to see someone who maybe somewhat inexperienced or naive taking a bunch of peoples advice on the internet as gospel if they haven't been through the court process before. It isn't easy when infront of the judge I can promise you that. I could afford to pay the debt in full on this one and the CCJ wasn't an issue as my credit rating is knackered anyway so I used this one for experience, mainly because like most on here this is not the only debt I have but this was actually one of the lesser expensive ones so in the end I paid up in full at the end of it all.

 

I have many more CCA's sitting in my file and I know that the rest of them truly are not enforceable and they are missing practically every prescribed term out there, these I am confident that if taken to court will get thrown out and I also believe that the chances of them taking me there are slim because they know they havent a leg to stand on either. It's just the ones that are very vey borderline I would be more wary about.

 

THis is just my advice, take it or leave it but I've had a lot of help on here, I've donated to the site and I really appreciate all the help I've received but I always try and be as honest about things as possible and I wouldn't want someone to get their hopes up to fail later on something that may be more costly to them. I don't know the OP or their situation as a whole but my advice on this one, take a big chance or try and arrange a payment plan with this particular one.

 

The one thing I can say though in a more positive way is that I CCA'd 12 credit card companies all more than a year ago and out of that only 2 have come up with the correct goods. HBOS and EGG. I should add that all my agreements are pre 2002 wioth the majority even earlier than that, it seems in my particular case that the older the agreement the less chance of them having it.

 

Hope this gives you a balanced viewpoint. I will take the time over the weekend to post my whole court experience on these forums for the benefit of others. I will post all copies of documents and the case law used etc. It will be a very long post and I just don't have time to do it until then.

 

Regards

 

Wilko

[Helenatroy]

Thank you for that Wilko - very informative.

 

Helenatroy

[focus243]

Thanks Wilko for your honest advice

 

Cheers Focus

[Desperate Daniella]

Hi Wilko,

 

Unfortunately as you have made very clear so many judges are not at all competent when it comes to CCA 1974. It wasn't an enforceable agreement because the prescribed terms were not within the four corners, but if you get an ignorant judge you can be stuffed.

 

Personally, I am trying to get them to back down before going to court.

 

DD

[diddydicky]

wilko did you CPR for the orignal documents before you went into court or did you only see them at court- in which case perahps you were not sufficient prepared

 

for instance in applying for proof of how they were produced etc

 

it is one thing saying you might have suffered from bad advice but it would be helplful for the rest of us to know what preparation went into your defrence before the court date