CCA 1974 not in force until 1977

[luckysandpiper]

A much-discussed DCA is telling me that Barclaycard contend that the Consumer Credit Act 1974 did not become law until 1977 (conveniently one year after my application for a card), and therefore they are not bound to comply with the Act.

 

I am aware of a number of Statutory Instruments early in 1977, but have not been able to find details anywhere.

 

Help and advice required from those knowledgeable people on here.

 

LSP

[Bazooka Boo]

Well Having only doen a very quick search it would appear that your DCA is ...................... deluded!

Consumer Credit Act 1974 - Wikipedia, the free encyclopedia

[luckysandpiper]

Well Having only doen a very quick search it would appear that your DCA is ...................... deluded!

Consumer Credit Act 1974 - Wikipedia, the free encyclopedia

 

Bazooka Boo, I owe you a pint ( or whatever is your poison). Thanks very much - I will enjoy quoting that to them.

 

LSP

[Bazooka Boo]

And the evidence grows!

House of Lords - European Union - Thirty-Sixth Report

 

House of Lords - Office of Fair Trading (Respondents) v. Lloyds TSB Bank plc and others (Appellants) and others (Respondents)

 

Crowther Committee on Consumer Credit (Hansard, 24 March 1971)

 

Tell em to put a sock in it, and you'll see them argue this point in court!

[Bazooka Boo]

Bazooka Boo, I owe you a pint ( or whatever is your poison). Thanks very much - I will enjoy quoting that to them.

 

LSP

 

 

My typo suggests that I don't require any more poison:lol:

 

I'll continue drinking to that:D

[luckysandpiper]

My typo suggests that I don't require any more poison:lol:

 

I'll continue drinking to that:D

 

I'm slightly bothered by this bit though

 

"Some elements of the Act came into force on 31 July 1974, the day it was passed, but many were left to be brought in later at the discretion of the government. This process was "painfully slow", with almost nothing apart from the licensing system being active in 1979.[11] Section 141, which requires enforcement actions of a regulated credit or linked transaction to be pursued in the county courts, came into force on 19 May 1985 through the Statutory Instrument "Consumer Credit Act 1974 (Commencement No. 8) Order 1983".[65]"

 

LSP

[Bazooka Boo]

I wouldn't be concerned at all..if the rest of the financial constitutions can and do, abide by this piece of legislation then there is absolutely zero reason why this outfit should do otherwise, after all, if they know something the rest of them don't I am 100% certain that they will all 'try it on' as we know from experience, they like to find the 'legal loopholes' as they call it, in order to further wring us dry of our hard earned cash!

Who is the reprobate anyway?

[luckysandpiper]

I wouldn't be concerned at all..if the rest of the financial constitutions can and do, abide by this piece of legislation then there is absolutely zero reason why this outfit should do otherwise, after all, if they know something the rest of them don't I am 100% certain that they will all 'try it on' as we know from experience, they like to find the 'legal loopholes' as they call it, in order to further wring us dry of our hard earned cash!

Who is the reprobate anyway?

 

I thought you might like to see this, received from Trading Standards today

 

"Dear (Luckysandpiper)

 

Thanks for your e mail.

 

According to our Encyclopedia of Consumer Credit Law the Consumer Credit Act 1974 came into force on 31/7/74.

 

However different sections of the Act were phased in over a number of years & under the Consumer Credit Act 1974 (Commencement No.2) Order 1977, credit agreements made before 1/4/77 were not regulated agreements under the Act.

 

Hope this helps but if you need further advice please let me know.

 

Regards

 

Nigel Rowland

 

Fair Trading Officer"

 

Looks like they've got me

 

LSP

[Bazooka Boo]

Don't worry I'll alert the team to have a look into this for you. And see where you go from here, new one on me that? Still every day is a school day!

[Bazooka Boo]

Ah Bum! Is this something you have been paying off for a while or have recently used and got into bother with?

 

I'm inclined to think that as you took this out prior to the act coming into force, then, and bear with me on this, so you took the card out in 76? Then 12 months later the act came into force.....

 

So from 77 onwards your card will have come under the CCA 74, that only leaves 12 months of unregulated agreement, surely whatever you had borrowed in that first year, you would have paid off??

 

I still believe that from 77 to date your card will come under that act (CCA74) The fact that you never signed an agreement in 76, means sweet FA IMO, after all are they still charging you 76 interest rates? No doubt it.

 

I'm trying to think the exact terms, but over the course of the years there will have been ammendments and variations, as there are now, I think they are up the creek without a paddle with this one, and reading between the lines, if they say it falls outside of the act due to it's age, I would be rubbing my hands.

[luckysandpiper]

Ah Bum! Is this something you have been paying off for a while or have recently used and got into bother with?

 

I'm inclined to think that as you took this out prior to the act coming into force, then, and bear with me on this, so you took the card out in 76? Then 12 months later the act came into force.....

 

So from 77 onwards your card will have come under the CCA 74, that only leaves 12 months of unregulated agreement, surely whatever you had borrowed in that first year, you would have paid off??

 

I still believe that from 77 to date your card will come under that act (CCA74) The fact that you never signed an agreement in 76, means sweet FA IMO, after all are they still charging you 76 interest rates? No doubt it.

 

I'm trying to think the exact terms, but over the course of the years there will have been ammendments and variations, as there are now, I think they are up the creek without a paddle with this one, and reading between the lines, if they say it falls outside of the act due to it's age, I would be rubbing my hands.

 

Thanks B/Boo for your vote of confidence. The card was applied for in July 1976 and has been renewed at intervals since then. The pre-1977 expenses have been paid long ago, and the T&C's supplied are the current ones. I find your arguements interesing.

I have already copied the email to [email protected] for their comments.

I am in correspondence with Nigel Rowland (TS) who has asked me for a 'potted history' of the matter in order for him to understand the implications.

Trust Barclays to know all the loopholes

I will keep you posted

 

LSP

[citizenB]

I thought you might like to see this, received from Trading Standards today

 

"Dear (Luckysandpiper)

 

Thanks for your e mail.

 

According to our Encyclopedia of Consumer Credit Law the Consumer Credit Act 1974 came into force on 31/7/74.

 

However different sections of the Act were phased in over a number of years & under the Consumer Credit Act 1974 (Commencement No.2) Order 1977, credit agreements made before 1/4/77 were not regulated agreements under the Act.

 

Hope this helps but if you need further advice please let me know.

 

Regards

 

Nigel Rowland

 

Fair Trading Officer"

 

Looks like they've got me

 

LSP

 

Apparently it is one of the few Acts that IS retrospective, so your card would have been protected under the Act

[noomill060]

CCA74 did indeed come in over a number of years, in fact it wasnt fully enacted until 12 May 1985.

[luckysandpiper]

Apparently it is one of the few Acts that IS retrospective, so your card would have been protected under the Act

 

Thank you for that CitizenB - I was hating the prospect of having to succumb to either 1st Credit or Barclays - I hate the two of them. I am currently in correspondence with Nigel Rowland (TS) who has asked me for a precis of the case, which I have supplied, and I am waiting for his reply.

 

thanks again

 

LSP

[Bazooka Boo]

Apparently it is one of the few Acts that IS retrospective, so your card would have been protected under the Act

 

So trying to pull a flanker then??

 

I will be interested to see what TS have to say about this, definitely food for thought LSP...

 

Boo;)

[luckysandpiper]

So trying to pull a flanker then??

 

I will be interested to see what TS have to say about this, definitely food for thought LSP...

 

Boo;)

 

Got this reply today - it's what I call service

 

"

Dear Mr (Lucksandpiper)

 

Thanks for the info.

 

We do have an independent consultant we use to answer complex credit

questions.Is it ok if i refer your e mails to him as hopefully he'll give

us a definitive answer?

 

Regards

 

Nigel Rowland

 

Fair Trading Officer"

 

LSP

[Bazooka Boo]

Got this reply today - it's what I call service

 

"

Dear Mr (Lucksandpiper)

 

Thanks for the info.

 

We do have an independent consultant we use to answer complex credit

questions.Is it ok if i refer your e mails to him as hopefully he'll give

us a definitive answer?

 

Regards

 

Nigel Rowland

 

Fair Trading Officer"

 

LSP

 

Agh! Mai Oui Mai oui, monsieur!

 

That is a damn fine answer!

Let us all know how you get on, re-arrange these words to describe how i feel,

Cat A Cheshire Like Grinning...

 

 

Slowly Slowly catchy monkey!

 

Boo;)

[luckysandpiper]

Agh! Mai Oui Mai oui, monsieur!

 

That is a damn fine answer!

Let us all know how you get on, re-arrange these words to describe how i feel,

Cat A Cheshire Like Grinning...

 

Slowly Slowly catchy monkey!

 

Boo;)

 

Jeez that's a tough one

 

LSP

[luckysandpiper]

Got this reply today - it's what I call service

 

"

Dear Mr (Lucksandpiper)

 

Thanks for the info.

 

We do have an independent consultant we use to answer complex credit

questions.Is it ok if i refer your e mails to him as hopefully he'll give

us a definitive answer?

 

Regards

 

Nigel Rowland

 

Fair Trading Officer"

 

LSP

 

I have received this reply today, which I am still digesting - seems to call into question 'simple assignment' vs 'absolute assignment' and I would welcome the opinion of a site team member on this. Here is Nigel's reply:

 

"I referred your enquiry to a credit law consultant & he has sent me the

following response:

 

Agreements Regs didn't come in until 1985 but quite likely that

B/card would have reissued a regulated agreement after that date, since

they keep updating terms, but strictly this would not be a regulated

agreement. A lot of consumers are misled, often by internet forums, into

confusing assignment of the debt with assignment of the agreement. Only the creditor has a duty to provide a copy of the regulated agreement, and as per the McGuffick decision, on my website, a failure only prevents a court order method of enforcement.

 

I have also attached the summary of the McGuffick case referred to:

 

McGuffick v Royal Bank of Scotland plc

QBD Commercial Court 06/10/09 [2009] EWHC 2386

 

This case arose from the activities of a claims management company, Cartal Client Review, in Manchester.

The consumer took a £17,034 loan out with the bank in 2005. It was taken as fact that the agreement was properly executed, so ss 61, 65 and 127 of the Consumer Credit Act 1974 were not in issue. In 2006 and 2007 his payments ceased, although some help was provided by a payment protection insurance policy which he had taken out.

By May 2007, he was over £2000 in arrears and the bank issued a default letter, which was accompanied by a form letter headed "Formal notice of intention to file a default and to take action to recover debt".

In February 2009 MJP solicitors, acting for the consumer, made a s.77

request for a true copy of the agreement. In their letter they stated that they regarded the agreement as in dispute, and that no credit reference agency was to be sent information until the matter was resolved. The bank could not comply with the request within the statutory 12 working days, and wrote to the consumer stating that they knew they could not enforce repayment, but that the consumer should continue to meet his obligations under the agreement, bearing in mind that it was not void but valid, and that any continuing default would be reported to a credit reference agency.

The bank's normal strategy was not to pursue legal action and to put a stop to all collection activity.Correspondence ensued, and MJP threatened proceedings for a declaration of unenforceability and for an injunction if the consumer's credit rating was affected.

On 11 May 2009, the bank sent a copy of the agreement, which it had now located, and stated that enforcement action would re-start. Inadvertently, the bank failed to include a statement of account.

The bank found out about the launch of these proceedings and suspended enforcement action. Although it could easily have made the loan enforceable by serving the statement, it agreed with MJP that it would not do so enabling the court to examine the issues raised.

The court differentiated between absolute unenforceability under s.127(3) and "redeemable" unenforceability under ss.77-79, which can be resolved by the creditor's compliance.

It then stated that taking enforcement action did not include precursors to enforcement action, such as credit reference agency referrals or the

bringing of enforcement proceedings. It accepted the bank's argument that otherwise it would be unable to request a court order under s.127(3) because this would be barred by s.65.

 

I hope this information helps explain the legal position but if you have

any questions please let me know.

 

Regards

 

Nigel Rowland

Fair Trading Officer"

 

All opinions welcomed

 

LSP

[banker_rhymes_with]

Hello LSP!

 

If Barclays have been relying upon the Act, such as sending you s87(1) Default Notices, or quoting any part of the Act at you, then that confirms they regarded it as being a Regulated Agreement.

 

If so, then ask them if they can provide a copy of the Agreement that made it Regulated.

 

You may have an angle via s51 in addition, i.e. unsolicited Credit Card tokens.

 

Did Barclaycard change the Card at any time, i.e. to a Gold Card, or a Platinum Card? Anything that suggests it became Regulated at some stage.

 

If so, then where is that naughty little Regulated Agreement! Is it really the same Debt from 1977, or did Barclays move you over to something else, i.e. fully Regulated!

 

I think they are pushing things to claim the Agreement is unregulated, and will not want you to start asking too many questions about that.

 

WRT the above letter, it comes across as being a bit naff. Who exactly is this Credit Law Consultant?

 

What it should have clarified is the issue of the Absolute v Equitable Assignment. It's all tied up with the Law of Property Act 1925, and what it boils down to is the Title of something can be split between the Legal Rights and the Equitable Rights.

 

An Original Creditor (OC) would hang on to the Legal Rights if they simply instructed, say, a DCA to collect the money (the Equitable Rights). The DCA could not take you to Court, as they have no right of action.

 

If the OC sells the Debt to the DCA, it is still only an Equitable Assignment (or acting in equity only), until such time as the OC notifies you of the Sale, i.e. the Assignment Notice. Once you have been told, then the transfer is complete, and the Sale to the DCA is then Absolute, i.e. they have acquired both the Legal Rights and the Equitable Rights.

 

The above consultant is confusing things I think, by calling the Equitable Rights the Debt, and the Legal Rights the Agreement. But, I think that is what they mean, although it wasn't very clear.

 

This is just a quick response, please feel free to ignore or discuss!

 

Cheers,

BRW

Edited December 17, 2009 by banker_rhymes_with
Typo

[luckysandpiper]

Hello LSP!

 

 

This is just a quick response, please feel free to ignore or discuss!

 

Cheers,

BRW

 

Thanks BRW - I will think about that. Have a look at this from BabyBear39 who seems to have been in the same position 12 months ago. I have gone back to my TS guy as a result of this.

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/147392-cca-dcas-unfair-commercial.html

 

LSP

[babybear39]

See my reply on SLP's other thread

[babybear39]

lol...SNAP

[luckysandpiper]

See my reply on SLP's other thread

 

You have me ass about face BabyBear (SLP)

LSP

[babybear39]

*hugs*