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    • This is more than helpful. Thank you so much. I will get the cca done tomorrow and post the reply from them for what to do next. Thank you all again. 
    • 12+2 working days.   a dca can't hurt you credit file any more anyway.   only the original creditor can issue and register a default, on or before the sale of the debt.   what the dca put in the calendar section is immaterial as only you and them can see it it does not extend the 6yrs period whereby the debt shows on your file and after which the 6th defaulted date's birthday causes the whole file to removed regardless to paid or not, paying or not......makes no odds. it still goes, but might still be owed mind, depending upon the contents of the CCA return.   dx  
    • Hello   I agree with dx100uk.   Send them a CCA request which is a request for them to produce the original agreement that gives rise to the debt.  They have a limited amount of time (I think around fifteen days) to send you the document.   Here are the possible follow-ons from that:   1. They don't respond within 15 days and so you are legally entitled to stop paying until they do send a response. 2. They send a letter saying they have gone back to the original creditor to ask for the document and they need more time.  You (legally) stop paying after fifteen days and don't pay them again until they send proof. (This is the most likely first response as they wont have any of your documentation as they bought your debt as part of 1000 others on a spreadsheet on a CD ROM or USB stick). 3. They send you something that looks like a contract or which might be something else that they want you to think is the contract within the time frame.   After either of the above  whatever they send you should be referred back here for an assessment as they will often send you unsigned documents or made up bits of nonsense.  Even if the contract turns out to be the genuine one it still might not be enforceable due to errors made by the creditor at the time of signing.   The only potential downside to the above is that they could try to damage your credit record but probably it is as much damaged as it can be by this debt already so nothing else they can do will make it worse.   Following on from the above you can continue to not pay them.  I would setup an on-line savings account and pay yourself the money instead which has the advantage of creating a resource in case you need to resume payments in the future.   They may send you further letters either inducing you to resume payments by threat or by offering you a deal.  If the document is not valid then the only deal you need to take is the one you unilaterally entered into at T plus 15 days when you agreed with yourself not to pay them another penny.   It is not impossible that they will send you a letter saying the debt is unenforceable (miraculously I have actually seen one!) and asking you to pay anyway which you will of course ignore as you should not be giving any member of this low life industry any encouragement.  
    • I agree and I've no doubt that will happen in the future, but if a court claim is issued and a ccj successfully registered against the debtor then it will never be sb anyway, so are we more likely to see more court claims in the future ?      Can it not work both way though, if the sb date is ultimately aligned to the date of the default notice, essentially giving the creditor 6 years to collect or issue a court claim then regardless of when the debt was last acknowledged / payment made, a debtor could just tell the creditor to eff off after the 6 years is up, figuratively speaking     
    • Received acknowledgement of defence submission from court. VCS now have the option of continuing their claim or not. Watch this space !!!!
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seriously fed up

Consumer Credit Act Regs 1983/1553

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First of all I want to own up that this is a development of part of PT2537's thread on Egg (http://www.consumeractiongroup.co.uk/forum/legal-issues/188093-egg-credit-agreements-what.html),

 

it seems to me that one of his observations there re the Consumer Credit Act Regs (SI 1983/1553) - copy attached - is of wider application.

 

My point concerns,

in the first instance,

section 2 (Form and content of regulated consumer credit agreements),

which as I read these regs is the template for a properly regulated consumer credit agreement.

 

This section sets out a number of subject headings

- key financial information and key information for instance

- and specifies what should appear under these headings

(some being contingent on the nature of the agreement - for instance clearly what would be there for a fixed credit agreement would differ in some respects from a running credit - credit card - agreement).

 

We could take any particular requirement, but mainly because I was working this through with someone else, lets take default charges.

 

To find where they come in you need to go down to 4e in section 2, where you will find a reference to Key Information. There you will see a reference to paragraphs 20-24 of Schedule 1 of the same document.

 

So you find Schedule 1

(INFORMATION TO BE CONTAINED IN DOCUMENTS EMBODYING REGULATED CONSUMER CREDIT AGREEMENTS OTHER THAN MODIFYING AGREEMENTS)

and then find paragraph 22,

which says there should be

"A list of any charges payable under the agreement to the creditor upon failure by the debtor or a relative of his to do or refrain from doing anything which he is required to do or refrain from doing, as the case may be."

 

Now I dont know about you, but that sounds to me like default fees? :confused:.

 

Before going back to section 2,

note that the reference to the sig box is in paragraph 24,

 

I would have thought this would have to precede the signature box? Wouldnt you? This is confirmed when you get back to section 2 by paragraph 2(f).

 

my view would be that the 1983 regs in SI 1983/1553 requires the default fees to be stated in "regulated consumer credit agreements" and should precede the signature box. In fact to be consistent with section 2/ schedule 1, there is a whole lot of stuff that should precede the signature box.

 

my take on this,

is that what was intended by these Regulations, was that debtors would be sent an agreement by the creditor,

with all these detail (credit limits, repayment details etc) that they would have to read through before signing up

- or chose not to read

- before signing up.

 

That, to my mind,

is what a properly constituted agreement would look like

- all the detail preceding the signature, and not "sign this and oh,

here are the T&Cs later on". That would be a sort of "sentence first, verdict afterwards" approach.

 

So why did the banks not follow this process? Probably several reasons

 

  1. how well did the banks understand these regs? Probably pretty well I would have thought, so I dont see that as important
     
  2. did they think it would get to how things are just now with consumers not just fighting back, but fighting back from a position of knowledge? No I dont suppose they did and if it did they thought they would be ok
     
  3. it would increase costs - make them less competitive - to follow a route where a customer signs an application, they do due diligence on them and, if the applicant "passes", then they send them off an agreement to sign and return. Besides, they might decide not to go on with it? Or, they might just not send the completed agreement back
     
  4. it would be a distraction from the major aim which was to "increase market share", which is code for to increase the number of THEIR cards and thus the money that they were lending out.
     

I have CCAd more cards than I am prepared to admit to here and I have NOT had ONE example that meets the criteria of the 1983 regs.

 

I have had application forms, some with T&Cs and some without.

I have had plainly current T&Cs and perhaps contemporary T&Cs

- but none with a signature.

At this point Bennion's quote in relation to the Wilson v First Trust case comes to mind

" I included the provision in question (section 127(3)) entirely on my own initiative.

It seemed right to me that if the creditor company couldn't be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable."

 

We are,

I think,

all familiar with s127 of the Consumer Credit Act 1974 which says

 

"(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a) signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner)."

 

we need to look at 61.

This says (in its entirety)

 

"61.—(1) A regulated agreement is not properly executed unless

(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner,and

 

(b) the document embodies all the terms of the agreement, other than implied terms, and

 

© the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible."

 

Attention, as far as I can see ahs tended to focus on "containing all the prescribed terms", which is clearly correct. But what about the bit preceding that it requires to be "a document in the prescribed form" - for instance with all the details preceding the signature box as set out in the 1983 regulations as set out in the first part of this thread?

 

On the other hand,

I have to admit to some concern about the second half of 127

- "unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

" At worst though, this would mean that a Court could make an enforcement order, but, it would seem arguable that it could be pointed out to the Court that there was no regulated Consumer Credit Agreement as what the debtor had presented did not conform to the requirements of either section 2 or schedule 1 of the 1983 regs.

Comments?

 

I know replying to your own post can get you locked up :lol:, but I came across this on the Liberty Claims site (yes, I know - to be avoided, but still interesting info).

 

They report on the case of Bank of Scotland v Mitchell. The details are as follows

3rd June 2009

 

A Wetherby man has had over £15,000 of credit card debt written off after Bank of Scotland backed down minutes before the case was due to be heard in a Leeds court.

 

Judge Langham at Leeds County Court believes that the bank didnt fight the case because it feared highlighting failings and opening the floodgates to further claims.

 

Self-employed Mr Mitchell, 60, had a judgement against him after delaying payments to his credit card while he waited for the bank to supply specific information that he had requested on a number of occasions.

His case was won on an appeal that his credit card application didn't contain the prescribed terms and conditions and therefore didnt comply with the Consumer Credit Act.

 

The Bank of Scotland argued that the terms and conditions had been given as a separate document when Mr Mitchell applied for the card at the Wetherby branch of Halifax, but he denies ever receiving them.

 

However, under the law, a credit agreement is only binding if it is a single document that has been signed by both parties and contains all the prescribed terms.

 

Although the Bank of Scotland gave up its fight and agreed to write off Mr Mitchells debt, amazingly they refused to pay his costs.

 

However, as a final blow to the lender Judge Langham ruled that the bank needed to pay all the costs in full and said that the bank was trying to shy away from highlighting this issue.

 

The part I am interested in has been highlighted, and my interpretation is that

 

  1. an agreement is only enforceable if it includes the prescribed terms
  2. if it has been signed by BOTH parties
  3. it is within a single document.

 

what I am suggesting

- following PT 2537 is that that document should follow the structural outline in Schedule 1 of the 1983 regs - ie the sig box is last, with the other terms (payment, default fees, etc) coming beforehand.

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