Enforceability of CCA and Cancellation Rights

[Trudy B]

Hello

 

I have received copies of the application forms which the OC and DCA believe are properly executed credit agreements. one was a charge card account the other was a "personal reserve account" where you wrote cheques.

 

CCA1 dated 1997 - charge card account later they changed it of their own will to a credit card

 

There is no credit limit, no loan amount, no interest rate on the form. i.e. four corners of the form

 

There is a box with the title "Your right to cancel"

 

This box then states "Once you have signed this agreement you will have a short time to cancel it. Exact details of how and when you can do this will be sent to you by post by the Company"

 

CCA 2 1998 This is a personal reserve account where you wrote cheques as and when to pay for whatever

 

There is no credit limit, no loan amount, no interest rate on the form. i.e. four corners of the form

 

Again there is a box with the title "Your right to cancel"

 

This box then states "Once you have signed this agreement you will have a short time to cancel it. Exact details of how and when you can do this will be sent to you by post by the Company"

 

Plus these debts seem to be passed around various DCA's and i already wrote to one this time last year confirming the accounts were in dispute as they had failed to provide properly executed CCA's.

 

I need to write back to the new DCA

 

Any ideas on this anyone and especially the cancellation rights bit?

 

T

[Bazooka Boo]

Without having sight of them it would be hard to give accurate correct advice, but on what you have described IMO they would be unenforceable, however I haven't had sight of them.

 

Regards to the new DCA and the constant passing around of alleged debts, you should send them the 'Letter when account has been passed on whilst in dispute' template from here http://www.consumeractiongroup.co.uk/resources/templates-library

For some reason I can't access the templates under Debt collectors, where it is.

And fianlly you should make a complaint to the OFT&TS via http://www.consumerdirect.gov.uk/contact

[Trudy B]

Hi there!

 

That's great - thanks

 

The cancellation rights has been puzzling me. I have been looking at this today. http://www.johnantell.co.uk/CCA1974.htm

 

this seems to day that the should have given details of how to cancel and whom to write to on this application form which they want to say is a properly executed agreement? All the box states is that cancellation details will be sent in the post. is that acceptable and compliant?

 

This document has also alerted me to section 63 and 63

 

Am i right in reading this to mean that once i had signed and sent off the application form that they should have sent me another letter or form to sign which should have been a properly executed agreement with all the right credit amounts and other prescribed terms and the cancellation rights again?

 

many thanks

 

T still a bit

 

ps - yes, thank you, i shall write to the OFT or they will all just get away with it!

[Halibutt]

Trudy, the application form that you signed becomes a properly constituted agreement once the creditor has also signed. They may or may not have sent you a copy of this - my assumption is not, though I don't think that makes the agreement any less enforceable.

 

However, the application (which becomes an agreement under the CCA once signed by both parties) should have the prescribed essential terms, clearly stated within that one page of the document - so, APR, cancellation period, credit limit (if applicable) etc. I think you'd have to post a scan or photo of the document (all personal details, ref. numbers and bar codes removed) and see what people think as to the enforceability of the agreement.

 

Good luck!

 

H.

[Trudy B]

Hi Halibutt

 

This is what i am referring to from that document link

 

 

62 Duty to supply copy of unexecuted agreement

 

(1) If the unexecuted agreement is presented personally to the debtor or hirer for his signature, but on the occasion when he signs it the document does not become an executed agreement, a copy of it, and of any other document referred to in it, must be there and then delivered to him.

 

(2) If the unexecuted agreement is sent to the debtor or hirer for his signature, a copy of it, and of any other document referred to in it, must be sent to him at the same time.

 

(3) A regulated agreement is not properly executed if the requirements of this section are not observed.

 

 

63 Duty to supply copy of executed agreement

 

(1) If the unexecuted agreement is presented personally to the debtor or hirer for his signature, and on the occasion when he signs it the document becomes an executed agreement, a copy of the executed agreement, and of any other document referred to in it, must be there and then delivered to him.

 

(2) A copy of the executed agreement, and of any other document referred to in it, must be given to the debtor or hirer within the seven days following the making of the agreement unless—

 

(a) subsection (1) applies, or

 

(b) the unexecuted agreement was sent to the debtor or hirer for his signature and, on the occasion of his signing it, the document became an executed agreement.

 

 

(3) In the case of a cancellable agreement, a copy under subsection (2) must be sent by post.

 

(4) In the case of a credit-token agreement, a copy under subsection (2) need not be given within the seven days following the making of the agreement if it is given before or at the time when the credit-token is given to the debtor.

 

(5) A regulated agreement is not properly executed if the requirements of this section are not observed.

 

 

64 Duty to give notice of cancellation rights

 

(1) In the case of a cancellable agreement, a notice in the prescribed form indicating the right of the debtor or hirer to cancel the agreement, how and when that right is exercisable, and the name and address of a person to whom notice of cancellation may be given,—

 

(a) must be included in every copy given to the debtor or hirer under section 62 or 63, and

 

(b) except where section 63(2) applied, must also be sent by post to the debtor or hirer within the seven days following the making of the agreement.

 

 

(2) In the case of a credit-token agreement, a notice under subsection (1)(b) need not be sent by post within the seven days following the making of the agreement if either—

 

(a) it is sent by post to the debtor or hirer before the credit-token is given to him, or

 

(b) it is sent by post to him together with the credit-token.

 

 

(3) Regulations may provide that except where section 63(2) applied a notice sent under subsection (1)(b) shall be accompanied by a further copy of the executed agreement, and of any other document referred to in it.

 

(4) Regulations may provide that subsection (1)(b) is not to apply in the case of agreements such as are described in the regulations, being agreements made by a particular person, if—

 

(a) on an application by that person to the Director, the Director has determined that, having regard to—

 

(i) the manner in which antecedent negotiations for agreements with the applicant of that description are conducted, and

 

(ii) the information provided to debtors or hirers before such agreements are made,

 

 

the requirement imposed by subsection (1)(b) can be dispensed with without prejudicing the interests of debtors or hirers; and

 

(b) any conditions imposed by the Director in making the determination are complied with.

 

 

(5) A cancellable agreement is not properly executed if the requirements of this section are not observed.

 

If no creditors had to send customer copies of anything, and I never had copes back from any of mine, what is the above about then?

 

I am confused?

 

T