Cap1 & CCA return

[un1boy]

I think the original Act was designed to protect the borrower from the lender

because of the imbalance in the relationship.

 

The repeal of s127 [3] is probably to redress the balance a bit by making it more difficult to make the debt unenforceable.

. It is very difficult to make legislation retrospective.

The opinion of the Law Lords in the Wilson case was based on their reading

of the Act by Parliament. And Parliament did not alter that aspect of the Act when it was amended. Which is pretty much what you said, or what you said

Josie said.

 

I think the reason they removed section 127 is because the new act has not upper limit (ie, 25,000) so it was deemed that it would not be fair for a creditor be automatically lose more than that - they have still kept in the seciton that makes an agreement unenforcable without acourt order!!

[un1boy]

Only works if you can afford to take these bu88ers to court. If I had spare cash I'd stop complaining to the regulators and bring court proceedings from the onset

 

Me too, and that's what I am doing now....

[un1boy]

It wouldnt need to go to court,, it would be sorted out quietly.

 

But TS really do need to make an effort.

 

No, I mean in order to prosecute them for the criminal aspect -it would have to be heard in the Crown Court, and the CPS would never let that happen.

 

My TS have questioned a bank under caution for not supplying the terms and conditions as part of my secc 78 (they won't touch the fact it had no presribed terms) but I have not heard an update now for weeks.

 

This is what makes me laugh, how one TS area can say they have committed an offence and even question them under caution, yet another says they have not!!

[MoonHawk]

This is what makes me laugh, how one TS area can say they have committed an offence and even question them under caution, yet another says they have not!!

It is not even one TS compared to another. In some cases it is different staff in the same TS. It feels like lottery.

 

Against Aktiv Kapital I had my local TS saying they would follow up but it is not their call and has to go to Chester TS. She then said, she can not guarantee if Chster TS will follow this up or just file it until they have enough complaints. She could not even guarantee they would contact me to confirm one way or the other, although she did make the request. I am waiting for a while before contacting Chester direct.

 

Best Wishes

MoonHawk

[Peterbard]

HI

I think we are overlooking something here regarding the reason behind applying for a section 77- copy.

It may be that the debtor requires details of default charges applicable to the agreement or the early settlement details cancellation details or a hundred other items that are required to be in the orriginal ageement.

If the creditor does not or cannot supply a copy of these as required by the act then why should he be able to apply them to the account.

 

I believe it is quite appropriate that the agreement should be held unenforceable until this information is sent.

 

We are not talking about the agrement being unenforceable via section 127 we are saying that the creditor has a legal duty to comply with the regulations as per section 77. The regulations dont not say they have to supply a properly executed agreement just a copy of the executed agreement the only requirement of which is a signature from both parties.

 

The problem arrise when the creditor looks at the agreement and sees it is incomplete so he has and decides to doctor it by including T and Cs that were not part of the agreement or made subsiquentially to it.

 

It may well be that when the agreement is forthcoming we discover that it has been improperly executed and invoke section 127 but in the first instance we are simply asking for information to confirm the validity of any actions taking place on our account.

 

As far as i can see the TS are avoiding there obligations in this respect and forceing debtors to use section 127 as the unly means to get creitors to admit they do not have the correct information in the form of a correctly executed agreement.

 

If the creditor was to suppy the copy as requested correctly executed or not they would have complied withthe request under section 77.

It is then up to us to decide whether the information within it is the same as when we singed. If it is not they have not complied.

If we think that the information may be as it was when we signed they have.

 

If we wish we can then look at it as regards to whether it was properly executed as per section 65 /127 but that is adifferent process.

 

Regards

Peter

[Peterbard]

hI

Yes the LImitation act is the one i mentioned earlier and i think you are right it does form the basiss of the pressident that all documentation should be held for 6 years if only because the creditor may be required to produce within that time period.

 

I was after something that said "all agreement /documentaion regarding accounts should be held for 6 years."

 

Perhaps as uni says it is within the money laundering regs. Still looking.

 

 

Best regards

Peter

[ncf355]

 

It is one thing for them to crack down on companies who are flouting the

law, but there is considerable unease at taking finance companies to task

for non compliance with a CCA request when the debtor is already electing not to pay anything further. A double punishment.

 

 

Not often I disagree with you LFI, as you have placed a lot of very valid posts on this site

 

But, I disagree entirely with this statement

 

The law is quite clearly set up in such a way as to punish lenders for flouting the law, if you just stop paying and do nothing to take action against them, they will just hound you relentlessly and destroy your credit rating

 

I am in the situation where I have a claim in against a lender for an unenforceable agreement yet they continue to call morning and night every day of the week

 

I have pointed out by both letter and telephone that we have an ongoing case , yet I still get asked to give them the details of the claim whenever I tell them they should not be calling - something I would expect their legal department to do

 

It is TS and OFT's job to sort out this kind of c**p and they just arent doing it

 

The people that are supposed to protect the consumer arent

 

And for people with a weaker atttitude to the whole thing than me and a lot on here, that is just bl**dy dangerous and plain wrong

 

These companies hide behind the "incompetence" veil and constantly come out with stuff like "oh, you wrote to the X office, you need to write to X, not X"

 

My view is this outright harassment designed in such a manner as to get people to cave in

 

Well, not this one

 

They had better get the KY ready, because I'm going to take them through civil and criminal, report them to HMRC and Treasury and when I'm through with all of them I'll find a way to get the "consumer non protection" bodies to task for their lack of effort in doing what is their job

 

If I carried out my job in the manner they do theirs, I'd be sacked, plain and simple

 

Normal service shall now be resumed!

[MoonHawk]

I wholeheartedly agree NCF. You should change your name to ED-209 match your avatar

 

"Please put down your unexecuted agreement. You have 20 seconds to comply."

 

LAMO

 

Best Wishes

MoonHawk

[ncf355]

Go to The UK Statute Law Database, search for Consumer Credit Act, 1974 and go to Schedule 1 (near the bottom of the index).

 

You can also search for Criminal Justice Act, 1982 to find the other part.

 

Best Wishes

MoonHawk

 

Moonhawk,

 

thanks for that, why havent I seen that database before!, would have been soooo handy

 

Very interesting stuff

 

[patrickq1]

i am thinking myself that whenever i write asking for information concerning dca and finance banks etc i shall ask them to confirm that their reply is a STATEMENT OF TRUTH,now that should set the cat amongst the pigeons because if they refuse to sign a statement of truth then i ask why not..they should be required to do this on any final statement you have written and leaving them no alternative or room for doubt concerning the account...

[patrickq1]

In the money laundering act the six year rule is valid

Part 11

Retention of Communications Data

1. 102. Codes and agreements about the retention of communications data
   
2. 103. Procedure for codes of practice
   
3. 104. Directions about retention of communications data
   
4. 105. Lapsing of powers in section 104
   
5. 106. Arrangements for payments
   
6. 107. Interpretation of Part 11
   

[patrickq1]

i think i put in the wrong shedule peter

Search Results - money laundering act

[patrickq1]

moon you already put it in sorry guy an gals doh

[Peterbard]

Hi Many thanks guys

 

I am attempting to help someone who is having problems with Brithish gas.They have entered a default on her credit file on what looks like being a distance executed DS contract.

She says she has never recieved any pre-contractual information. In an off hand reply to my request for proof of contract they saaid that they would not be able to get hold of any contract and sent a set of current T and Cs. pointing out section11.7 as the one giving them the right to share her data.

 

11.7 We will check your details with one or more credit-reference and fraud-prevention agencies to help us make decisions about your ability to make payments and the goods and services we can offer you. We have given a brief guide to how we, the credit-reference and fraud-prevention agencies will use your information below.

 

(a) We will search at credit-reference and fraud-prevention agencies for information about you and all the people you are applying with - if you are providing information about others on a joint application, you must make sure they agreed that we can use their information to do this. If you provide false or inaccurate information and we suspect fraud, we will pass your details to credit-reference and fraud-prevention agencies. Law enforcement agencies may access and use this information.

 

(b) We will use the information provided to us by credit-reference and fraud-prevention agencies to:

 

- help make decisions about credit or credit-related services for you and anyone applying with you;

 

- check your identity;

 

- prevent and detect fraud and money laundering; and

 

- manage your account

 

© When credit reference agencies receive a search from us they will record this on your credit file whether your application is successful or not.

 

(d) We and other organisations may also use this information to prevent fraud and money laundering, for example when:

 

• checking details on applications for credit and credit-related services

• managing credit and credit-related accounts and services;

• recovering debt;

• checking details on applications and claims for insurance; and

• checking details of employees and people applying for jobs.

 

Organisations from other countries may use the information recorded by fraud-prevention agencies.

 

(e) If you want to see what information credit-reference agencies hold about you, you can contact the following three credit-reference agencies currently operating in the UK. The information they hold may not be the same, so it is worth contacting them all. They will charge you a small fee.

This is not a credit agreement so does not come under the CCA (it willl probably be under the Distance selling regulations 2000 )and i put it here merely as a matter of interest and hope that someone out there has more experiance in dealing with these than I.

To me the above does not give the creditor to share data with the CRA merely to search for existing data would anybody concur.

I will start a different thread with this shortly.

Best regards

Peter

[MoonHawk]

Peter,

 

As far as I can see the above only allows them to use your data to make sure you are who you say you are, prevent fraud and check credit worthiness. Also of course to manage the account, which is expected. But there is nothing there that I can see that allows them to give your data to a third party that is not involved in helping manage the account.

 

The only one which sound a little vague is:

• managing credit and credit-related accounts and services;

But even that start with "managing". And I can not see how sharing data with CRA can be seen as helping manage an account/service.

 

Best Wishes

MoonHawk

[Having_A_Knightmare]

Hi all

 

Could do with some advice on this issue..

 

Bottom line... Citi have got a CCJ/CO on me for a CC debt.

 

I requested a CCA , they are well over 12+2+30 days and nothing back.

 

I have read the below form reply from oft for non commpliance.

 

Do you think I am right in saying I do not have to pay even tho they have a CCJ (its in red)

 

Cheers

The letter below is a from OFT regarding non compliance of CCA (Thanks Rory)

 

Highlighted in red is a phase saying with or without a court order..

 

Am I right in thinking I can stop paying..

 

RO

 

 

 

For your information, the general effects of sections 77-79 requires the creditor/owner

(in the case of a hire agreement) under an agreement for (fixed-sum credit, running

account credit and hire agreement) to provide the debtor/hirer with a copy of the executed

agreement and a statement of account on request.

 

If a creditor/owner fails to comply with a valid request within a period of 12 days

(not including the date of receipt of the request) he may not enforce the agreement at all.

This prevents enforcement with or without a court order. If a default lasts for a month

(for example a calendar month) it constitutes an offence. We understand your concerns in

this matter but please do remember however that once the creditor/owner complies with

the request albeit out of time, he may once again enforce the agreement.

 

A ‘true copy’ of an agreement principally consists of the terms and conditions of the agreement

and the statutory content of the agreement. The name, address and signature of the debtor do

not have to be provided. Additionally, the creditor must supply the total sum paid under the

agreement by the debtor; the total sum which has become payable under the agreement but

remains unpaid; and the total sum which is to become payable under the agreement by the debtor

(the latter two must include the various amounts comprised in that total sum and the date when

each is/was due). However, the copy must be a copy. It need not be exact on immaterial points,

but it cannot be a conjectured reconstruction. If the trader has no original copy, the trader will have

difficulty showing that he has complied with the regulation by supplying a ‘true copy’, since nobody

would know what was in the original. When the trader comes to enforce the debt in court, he needs

to have a signed copy of the agreement in order to enforce. As the law stands currently he cannot

otherwise.

 

In the absence of a copy of the original agreement someone's liability for a debt can only lead to

further query. However in circumstances like this we would view it is as unfair practice under

section 25(2) (d) of the Act and relevant to licence fitness if a trader failed to investigate and/or

provide details as appropriate when a debt is queried or disputed

[Peterbard]

HI thanks M

I am on unfamiliar teritoty here the lady in question closed her account with BG and moved to power gen two weks later she recieveda bill for £75 for gas used before the switch. on comparing readings she found that the final reading supplied by british gas was incorrect and queried the bill she then heard nothing untill she got an alert on her Credit Check to say that BG had registerred a default against her. She phoned BG and the said they woul remove the default as long as she paid,she has this in writing. Being a stubborn old boot (salt of the earth)she refused on principle to being coerced in this way this is when i got involved.

I contacted energywatch and compained they then sent the usual letter saying they would contact BG and gave them 28 days to reply. BG replied basically saying yes we did enter a default what are you going to do about it.

So much for another regulatory body.

The thing is that in their reply to one of my letters they admitted that they had closed the account a month before they declared the default which begs the question of .if the account was closed then what was defaulted?and also if the agreement had ended then so did any apparent consent to share data. I have writion to ICO but i am running out of patience with these so called comsumer watchdogs and want to get all my facts together and take them to court.

 

I can see me getting told off by the mods so i will start another thread shortly but anyway it makes a change from the CCA althugh it is a bit scary.

 

Best regards

Peter

[Peterbard]

Hi

The problem is that it is not the creditor that is ordering you to pay it is the court.

What i think you should do is aply to have the CCJ set asside the reason will depend on your curcumstances it could be because ou didn't recieve a default notice for instance, Then either put in your cca or use the excellent letter to demand production of the agreement under the pre action regulations.

Then when the case is tried again you can contest it on either none production of the agreement or a 127 breach.

 

The only drawback is that it costts you £65 to get the case set asside.

Regards

Peter

[lookinforinfo]

NCF, I am not sure that you get the point I was making. It is not my point of view I am giving, it is what I think their point of view is. And they do view with some disquiet the tactic of using the CCA request as a means of evading

paying a debt which you know you owe.

Even in the Wilson case, I think all five Law Lords commented on the loss

suffered by the pawnbroker for an incorrectly drawn up contract but where the company had done nothing else wrong. The pawnee had been advanced

the money and she took advantage of the situation. Which though legal,

which is why the Judges allowed it, reading between the lines of some of their

statements, it was not something they were happy with since it went against

their ideas of dealing with cases in an equitable manner.

 

With TS however, their ability to take people is limited both by their remit

and their lack of budget. So to get some form of redress for the kind of treatment you have been getting, and yours was not the kind of example I

was alluding to,your only recourse would appear to be to take them to Court yourself, win the case and then report them to the OFT as unsuitable to

hold a Consumer Credit licence.

 

It may be the Law, Moonhawk, but TS may also feel that some people who

complain to them are in need of more help than others, and if they get the

notion that you are pretty well equipped to deal with the situation on your

own, they may take the view that they will concentrate on the more

vulnerable who come to them given that they have more work than staff can

cope with.

 

I said it before, but I cannot see that TS will pursue companies to any great

extent when the debtor who is complaining has already elected not to repay

the debt since the original agreement is missing. The Law does take these

things into consideration.

 

As a different example, there is a case at the moment where a grandmother

is in Court because her dog killed the granddaughter. I have no doubt that

when the Judge comes to sentence her, that it will be taken into

consideration that she lost her granddaughter, so the sentence will be less

than if her dog had killed an unrelated child. And if you cannot accept that that is the reality in both situations, then I am wasting my time trying to

explain.

[patrickq1]

Hi

The problem is that it is not the creditor that is ordering you to pay it is the court.

What i think you should do is aply to have the CCJ set asside the reason will depend on your curcumstances it could be because ou didn't recieve a default notice for instance, Then either put in your cca or use the excellent letter to demand production of the agreement under the pre action regulations.

Then when the case is tried again you can contest it on either none production of the agreement or a 127 breach.

 

The only drawback is that it costts you £65 to get the case set asside.

Regards

Peter

looks like a breach of her DPA peter and just on principle alone would make a good test case but i think using the DPA ,in the state it is in it would probably prove in effectual ,since the ico and ts have or must be under some sort of (keep off) or something because i cant even remember a case coming to court at anytime..so on princple its a good reason to go to court(but who knows how a judge thinks)but in reality its pay up cut their losses and hope the default gets removed...

[MoonHawk]

Peter,

 

Does she have a record of her informing them of the incorrect reading? If not, does she have a record of the readings when she started with the new supplier (she should be able to get that from her current supplier). Is the £75 an overcharge? If so then she can drop them in a lot of trouble if she can say they were informed. She can get the TS involved.

 

Unfortunately whether or not there is still an account open makes no difference in my experience. They view it as money owed for an old account and will still put it on the record. I'll take a look at the DPA guidelines to see if there is anything in there that you can use.

 

Best Wishes

MoonHawk

[patrickq1]

CONSUMER AND COMPETITION POLICY

 

 

 

 

a good read of this peter ,this is one of the reasons why i have lost complete faith in these so called goverment bodies,trading names and data has now become the norm and is acceptable in otherwords the institution who are to protect our privacy are now selling it

[patrickq1]

BERR - Search results

that link did not work look at the first pdf file

[conar686]

All they see are some debtors not only getting out of paying a debt that they know is theirs, but some of them are also expecting TS to punish the creditor/DCA for breaching the Act. They fail to understand the pressure applied by some DCAs and the unlawful tactics they use in pursuit of recovering debts they have bought.

 

Agreed sport - I'm not at all interested in TS punishing DCAS though that would be great, all I want is for them to make a decision, any decision based on the eveidence I provide them.

 

I'm almost at the stage now where I've given up complaining to ICO, OFT & TS as none seem to take any complaints seriously.

 

I concur with an earlier comment that all these bodies are content just to let the courts sort it out - is this not a sad indictment, no wonder people who can afford to are leaving this country in droves.

[davey77]

Wish i could leave this rotten country conar! New Zealand would be my first choice followed by NY State (My brother lives there already lucky devil!).

 

As for the OFTs failure towards consumers i have sent this letter off to them yesterday and thought it might be useful to post on this thread also. So we'll see what comes back (if anything?).

 

Re: Complaint of creditors actions to CCA requests

 

 

Dear Sir/Madam,

I would like to raise some serious issues and bring to the attention of the OFT several criminal offences committed by creditors and also to question several points in relation to how the OFT and Trading Standards are supposed to react to, and enforce, such offences as laid down in law under the Consumer Credit Act 1974.

 

It is my understanding that the OFT do not involve themselves directly in personal matters regarding consumers individual cases and am not asking for advice in this respect but i do wish some clarification and explanation of why many creditors and Debt Collection Agencies seem to act outside the law and OFT guidelines with impunity and are given carte blanche towards the legal obligations they are expected to adhere to regarding financial dealings with consumers.

 

The points I wish to raise are:

 

1. Why Trading Standards seem to ignore offences committed by creditors in respect to a Consumer Credit Act 1974 (section 77-79) request and why they fail prosecute any criminal offence committed.

I would like to ask how many prosecutions Trading Standards have instigated in the last couple of years due to failure to supply a properly executed agreement after complaints by consumers?

 

2. That creditors and Debt Collection Agencies completely flout OFT guidelines in respect to pursuing a debt while the account is in reasonable dispute and/or CCA non-compliance and that creditors continue to ask for payment, threaten court action and visits by field agents and why these actions are permitted.

 

3. That creditors and especially Debt Collection Agencies communicate constantly in an unclear, threatening and evasive manner to consumers in that they often do not reply to specific requests and detail within correspondence sent by the consumer and reply with automated letters and in some cases tele messages simply stating “please call Lee on 0870 *** ***” and that this practice seems to be allowed to go unchecked and without direct or active enforcement.

 

4, Why application forms and incorrect documentation non-compliant to a Consumer Credit Act 1974 (s77-79) request are being sent, and belligerently defended, by creditors when OFT regulations clearly set out the prescribed terms and state that an improperly executed agreement is not enforceable, yet many creditors insist the prescribed terms laid down in the regulation do not apply to them.

 

I am sure that the OFT would suggest that my first point of call in any complaint regarding a creditors failure to produce a properly executed agreement would be Trading Standards and this i have done. TS have been sent a written complaint regarding these matters on 6 separate occasions regarding 5 individual creditors and to date, i am not aware of any action that has been taken by them to enforce the law and would like to know very much why Trading Standards give creditors the benefit of the doubt even when there is documented evidence of a criminal offence being committed in failing to supply a agreement?

 

It is my understanding after examining OFT regulations, the new Fraud Act 2006 and the Consumer Credit Act that:

 

...“If the creditor under an agreement fails to comply with subsection (1)—

 

(a) He is not entitled, while the default continues, to enforce the agreement; and

(b) If the default continues for one month he commits an offence.”...

 

...“It is an unfair practice for a creditor to continue collection activity on a debt which is being disputed.”...

 

...“(3) Fraud by failing to disclose information

A person is in breach of this section if he—

 

(a) dishonestly fails to disclose to another person information which he is

under a legal duty to disclose, and

 

(b) intends, by failing to disclose the information—

(i) to make a gain for himself or another, or

(ii) to cause loss to another or to expose another to a risk of loss.”...

 

... “ignoring and/or disregarding claims that debts have been settled or are

disputed and continuing to make unjustified demands for payment...

 

...”not ceasing collection activity whilst investigating a reasonably queried or

disputed debt.”...

 

I also understand that a statement by RT Hon Ian McCartney MP - Minister for Trade Investment and Foreign Affairs has indicated that an application form sent in response to a Consumer Credit Act request cannot be considered to be a properly executed agreement.

 

These are just a few points that i have based my actions in relation to creditor requests upon, and in doing so, i have reminded several creditors in my correspondence of these and many other facts contained within in the Consumer Credit Act 1974, OFT Debt Collection Guidance and the Fraud Act 2006.

Unfortunately, on the whole, these reminders of the law and guidelines have been utterly ignored by creditors and DCAs.

 

The documents that i have been sent in reply to my requests (if any) have been.

 

*Application forms

*Terms and Conditions not relevant to the original application date

*Incomplete statements

*Reconstructed and inaccurate documents

*No documents or response to request

 

To conclude i would like to give a brief summery of events and correspondence in relation to my CCA requests to creditors:

 

HFC Bank:

CCA request 21 March 2007. Documentation received 25 April 2007 (Non-compliant). Trading Standards informed 31 May 2007. Account in dispute. End of May passed to DLRS (debt collectors). CCA request 2 July 2007. 10 July documentation received (again non-compliant.)

 

MBNA:

CCA requests for two accounts 19 April 2007. May 2007 - Accounts sold to Link Financial (debt collectors) while in dispute. Documentation received 18 May 2007 (Non-compliant). Trading Standards informed 21 June 2007. CCA request to Link Financial 28 June 2007. Documentation received 25 July 2007 (Non-compliant). Link Financial threaten to add collection charges to overall debt.

 

Halifax:

CCA request 21 March 2007. No response. Trading Standards informed 30 May 2007. Account passed to Blair, Oliver & Scott ((debt collectors) June 2007. CCA request to Blair, Oliver & Scott 28 June 2007. No response. Still continue to receive demands for payment and threats of court action and visits to premises by field agents.

 

MINT:

CCA request 21 March 2007. Documentation received 26 April 2007 (Non-compliant).

Account in dispute. Trading Standards informed 31 May 2007. Still continue to receive demands for payment.

 

Capital One:

CCA request 11 April 2007. Documentation received 26 April 2007 (Non-compliant). Trading Standards informed 31 May 2007. Account in dispute. Still continue to receive demands for payment.

 

Please be aware i can corroborate the detail of this letter with copies of correspondence, proof of posting/receipts and bank statements showing cashed cheques should this be required.

 

I would appreciate an answer mainly to the 4 points raised in this letter as currently i feel extremely let down and demoralised by the actions that are allowed to go unchecked by Creditors and Debt Collection Agencies and as a full time carer for my elderly mother feel deeply let down by the authorities that are supposed to stand up for my rights as a consumer yet seem to allow the unlawful, threatening and misleading tactics of certain large companies to continue, acting outside of the law and without penalty or justification.

 

 

Yours sincerely, me