Cap1 & CCA return

[Josie8]

ALSO

The Fraud Act 2006. The Act creates a new general offence of fraud with three ways of committing it:

• Fraud by false representation
  
• Fraud by failing to disclose information, and
  
• Fraud by abuse of position
  
• Fraud must give a gain of money or property

Fraud by false representation

 

 

1 Fraud

(1) A person is guilty of fraud if he is in breach of any of the sections listed in subsection (2) (which provide for different ways of committing the offence).

(2) The sections are-

(a) section 2 (fraud by false representation),

(b) section 3 (fraud by failing to disclose information), and

© section 4 (fraud by abuse of position).

(3) A person who is guilty of fraud is liable-

(a) on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum (or to both);

(b) on conviction on indictment, to imprisonment for a term not exceeding 10 years or to a fine (or to both).

 

2 Fraud by false representation

(1) A person is in breach of this section if he-

(a) dishonestly makes a false representation, and

(b) intends, by making the representation-

(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.

(2) A representation is false if-

(a) it is untrue or misleading, and

(b) the person making it knows that it is, or might be, untrue or misleading.

(3) "Representation" means any representation as to fact or law, including a representation as to the state of mind of-

(a) the person making the representation, or

(b) any other person.

(4) A representation may be express or implied.

(5) For the purposes of this section a representation may be regarded as made if it (or anything implying it) is submitted in any form to any system or device designed to receive, convey or respond to communications (with or without human intervention).

 

[Josie8]

If they mislead you into paying a debt which the know is unenforceable they could be guilty of the criminal offence of fraud as follows:

 

The Fraud Act is small as it contains only 16 sections plus 3 schedules.

 

All Theft Act deception offences are abolished to be replaced by 3 new fraud offences: fraud by misrepresentation.......f raud by failing to disclose information and fraud by abuse of position..

 

Under section 1 a person is guilty of fraud if they are in breach of any offences in sections 2,3,4.

 

Under Section 2 representation must be made dishonestly which is established under the two-stage test as set out in Rv Gosh (1982) QB 1053, 75 Cr App R 154 in which the defendant was dishonest by the standards of ordinary people

 

Subsection (1)(b) requires that the representation is made with the intention of making a gain for himself or causing a loss or risk of loss to another. Loss and gain are defined in section 5 as being money or property

 

Section 3: Fraud by failing to disclose information

18. Section 3 makes it an offence to commit fraud by failing to disclose information to another person where there is a legal duty to disclose the information. A legal duty to disclose information may include duties under oral contracts as well as written contracts. The concept of "legal duty" is explained in the Law Commission's Report on Fraud, which said at paragraphs 7.28 and 7.29:

• "7.28 ..Such a duty may derive from statute (such as the provisions governing company prospectuses), from the fact that the transaction in question is one of the utmost good faith (such as a contract of insurance), from the express or implied terms of a contract, from the custom of a particular trade or market, or from the existence of a fiduciary relationship between the parties (such as that of agent and principal).

7.29 For this purpose there is a legal duty to disclose information not only if the defendant's failure to disclose it gives the victim a cause of action for damages, but also if the law gives the victim a right to set aside any change in his or her legal position to which he or she may consent as a result of the non-disclosure. For example, a person in a fiduciary position has a duty to disclose material information when entering into a contract with his or her beneficiary, in the sense that a failure to make such disclosure will entitle the beneficiary to rescind the contract and to reclaim any property transferred under it."

• More specifically, section 3 states:
  
• 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

Gain and Loss Specified

 

5 "Gain" and "loss"

(1) The references to gain and loss in sections 2 to 4 are to be read in accordance with this section.

(2) "Gain" and "loss"-

• (a) extend only to gain or loss in money or other property;

• (b) include any such gain or loss whether temporary or permanent;

Also a 'true' copy is only 'true' if it's signed

[davey77]

I have quoted the fraud act to creditors of late. Athough of course they haven't responded to the sentence

 

"18. Section 3 makes it an offence to commit fraud by failing to disclose information to another person where there is a legal duty to disclose the information."

 

It was still nice to be able to quote the law to them!

[patrickq1]

i think a letter to the solicitors and ask them to unequivocly state THIS IS A STATEMENT OF THE TRUTH AND A TRUE COPY OF THE AGREEMENT...

[Having_A_Knightmare]

Hi all

 

Quick Question that has been bugging me all day.

 

If The CCA has no prescribe terms on (APR etc) but it is in the T&C is this OK.

 

Cheers

 

HAK

[ncf355]

If its in a seperate sheet (as in not in the sig doc, not on the back of it) that wouldnt be allowed

 

Also SI1553 Reg 2(4) prescribes a credtain order for the prescribed terms and they mus be "show together as a whole"

[Having_A_Knightmare]

HI ncf

 

It was on a seperate sheet of paper.

http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/110445-hsbc-cca-responce-help.html

 

But it does say where I signed for the credit card that I have read and agree to the terms.

But thinking about it they could have put them T&C in afterwards....

 

CThanks

 

HAK

[ncf355]

Exactly

 

The way to put it is to say they could create terms with 1. "I agree to pay 99.99 % APR" and claim you agreed

 

The CCA 1974 state all terms must be laid down in the original agreement (Section 61 (1) (b))

[willy2006]

can anyone help with this one,Yorkshire Bank have just supplied very dissappointedly at the very last minute of time allowed a CCA for a loan and aCCA for a visa card.I know this is bazarre but the loan application signitures dont look right and the credit card is an application form but looks to have the correct legal wording on,but the details of myself are not in my writing and they are not correct like someones just guessed.

Also i had asked for a full SARS request previous and this form did not come with it.I could swear that i never signed these documents,has any one had a similar experience and what do i do next!!

[Goldlady]

Are you saying that it is not your signature on the application form? What you do next is wait for more important people than me to read your posting:p I think the word is fraud. If it wasn't with your SAR then that backs it up too.

[TideTurner]

can anyone help with this one,Yorkshire Bank have just supplied very dissappointedly at the very last minute of time allowed a CCA for a loan and aCCA for a visa card.I know this is bazarre but the loan application signitures dont look right and the credit card is an application form but looks to have the correct legal wording on,but the details of myself are not in my writing and they are not correct like someones just guessed.

Also i had asked for a full SARS request previous and this form did not come with it.I could swear that i never signed these documents,has any one had a similar experience and what do i do next!!

 

Willy,

 

You need to request a copy of the TRUE original. Make it known to the other side that you do not believe that the copy provided is a true copy and that you will expect a true copy to be made available prior to any proceedings to enable you to check its validity.

 

Make it known to the Court that you have never signed any such contract and request the other side provide the original.

 

Tide

[andrew1]

Tide is right Willy. Also take a look here: http://www.consumeractiongroup.co.uk/forum/general-debt/113941-creditor-recreating-cca.html

 

if this is recreated they could be in for some trouble.

[Peterbard]

Hi all

 

Quick Question that has been bugging me all day.

 

If The CCA has no prescribe terms on (APR etc) but it is in the T&C is this OK.

 

Cheers

 

HAK

 

Hi as N says

 

The APR is not a prescribed term, however the interest rate is and refers soley to the inerest to be repaid on the loan and does not include any of the total charges for credit in it's calculation.

The value of the APR should be included within the ssme block of information as the prescribed terms.The regulations state that sections 3 to 19 of shedule 1 of the agreement regulation 1983 should be shown together as a whole the APR is covered in section 15 of that schedule.

In post May 2005 Agrements the APR should be shown within the key finantial information section of the agreement.

 

Just as a point of information the word document can be refer to several sheets of information so when we say that the APR for example must be withn the signature document it does not mean it has to be on the same sheet.

 

Best regards

Peter

[patrickq1]

is it possibly the counterfitting of documents /contracts...

it trully cannot be acceptable that a document/contract can be re-constructed as the origional contract

A false representation can be a verbal, written, or implied statement. If a statement suggests that the writer or person who constructed such contract as a copy of the origional and they have the authority, power, or ability to perform what is represented, but the other person does not have that authority, power, or ability, would nt the implication be a false representation,where there is a fiduciary or confidential relationship between both parties,would,nt the eqitable doctrine of construtive fraud be applied

my opinions only

[tomterm8]

HI

Thanks for all the work Mthe information i was working from did not contain point 5 or 6 it wa s a bit dated and i take your point.

However i still think that the prerequisite for sharing data is the consent of the data subject and as pont 6 says exceopt wher it predjudices the rights of the DS and i thinjk that recording data without consent would.

Yes she had the offer to renmove the record in a letter from their recovery team.

 

Best regards

peter

 

It's interesting that the relevant EU Directive which is binding on the court, is wider and more specific than the Data Protection Act 1998

 

Article 7

 

Member States shall provide that personal data may be processed only if:

(a) the data subject has unambiguously given his consent; or

(b) processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract; or

...

or

(f) processing is necessary for the purposes of the legitimate interests pursued by the controller or by the third party or parties to whom the data are disclosed, except where such interests are overridden by the interests for fundamental rights and freedoms of the data subject which require protection under Article 1

 

 

Article 1 Object of the Directive

1. In accordance with this Directive, Member States shall protect the fundamental rights and freedoms of natural persons, and in particular their right to privacy with respect to the processing of personal data.
   
2. Member States shall neither restrict nor prohibit the free flow of personal data between Member States for reasons connected with the protection afforded under paragraph 1.

European Conventions Rights and Freedoms ( as listed in the human rights act 1998 8)

 

Article 8 Right to respect for private and family life

 

1 Everyone has the right to respect for his private and family life, his home and his correspondence.

2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

[Peterbard]

Many thanks for tha tomt

 

I will look it up and have a good read tonight i am waiting at the moment to get the reply from both British Gas who have a modified section 10 and a suitably adjusted copy of curlybans excelent letter and the CRA to whomi sent a section 159. The information you have given me gives me yet another string to my bow .

 

Thanks again

 

Peter

[Peterbard]

HI this is just a thought and peraps to be used as an interim measure i put it on her to invite comment.

 

Dear creditor

 

Thank you for your recent correspondence regarding my request for a true copy of my agreement.

I note that you do not have the original agreement and cannot therefore are considering sending a reconstructed document. I understand that this reconstruction will be made by using other information available relating to accounts of the same nature as mine and of the same age.

I am sure you realise that in such a case all source data must be capable of being validated by myself and must be mentioned within the reconstructed agreement.

Also in order to comply copies of all the above must be enclose with the aforesaid “agreement” together with a sworn statement to indicate that it is in fact a recreation of a true copy of my agreement.

Anything less will be unacceptable as compliance.

I am sure that I need not add that any attempt to guess at the contents of my missing agreement would be ill conceived as it could be construed as issuing false information.

If this proved to be the case I would have no option but to report you to the trading standards under section25 of the act and question your right to be a fit person to hold a credit licence.

 

Best regards

Petr

[tomterm8]

Many thanks for tha tomt

 

I will look it up and have a good read tonight i am waiting at the moment to get the reply from both British Gas who have a modified section 10 and a suitably adjusted copy of curlybans excelent letter and the CRA to whomi sent a section 159. The information you have given me gives me yet another string to my bow .

 

Thanks again

 

Peter

 

Hi, Peter,

 

I also forgot some other interesting case law:

In von Hannover v Germany (24 June 2004), the ECtHR gave judgment in respect of a series of complaints by Princess Caroline of Monaco. They all related to press photographs of her that had been taken in public places. She contended that these infringed her [/url]privacy and had sought a remedy in a series of actions in the German courts, which had been unsuccessful. She alleged that these decisions of the German courts infringed her Article 8 right to respect for her private and family life. The ECtHR agreed:

"The Court reiterates that although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (see, mutatis mutandis, X and Y v the Netherlands, judgment of 26 March 1985, Series A no. 91, p 11, ss 23; Stjerna v Finland, judgment of 25 November 1994, Series A no. 299-B, p61, ss38; and Verliere v Switzerland (dec.), no. 41953/98, ECHR 2001-VII). That also applies to the protection of a person's picture against abuse by others " .

In Campbell v MGN [2004] 2 WLR 1232 Lord Nicholls of Birkenhead observed at paragraph 11 that:

1. "In this country, unlike the United States of America, there is no over-arching, all-embracing, cause of action for "invasion of privacy "…But protection of various aspects of privacy is a fast developing area of the law, here and in some other common law jurisdictions."
1. Lord Nicholls went on to describe the way in which the law of breach of confidence has been adapted to embrace one aspect of invasion of privacy , the wrongful disclosure of private information, commenting at paragraph 14:

"The essence of the tort is better encapsulated now as misuse of private information."

A little later in his speech he said this:

"17.The time has come to recognise that the values enshrined in articles 8 and 10 are now part of the cause of action for breach of confidence. As Lord Woolf CJ has said, the courts have been able to achieve this result by absorbing the rights protected by articles 8 and 10 into this cause of action: A v B plc [2003] QB 195, 202, paragraph 4. Further, it should now be recognised that for this purpose these values are of general application. The values embodied in articles 8 and 10 are as much applicable in disputes between individuals or between an individual and a non-governmental body such as a newspaper as they are in disputes between individuals and a public authority.

18. In reaching this conclusion it is not necessary to pursue the controversial question whether the European Convention itself has this wider effect. Nor is it necessary to decide whether the duty imposed on courts by section 6 of the Human Rights Act 1998 extends to questions of substantive law as distinct from questions of practice and procedures. It is sufficient to recognise that the values underlying articles 8 and 10 are not confined to disputes between individuals and public authorities. This approach has been adopted by the courts in several recent decisions, reported and unreported, where individuals have complained of press intrusion."

Lord Hope in his speech (at paragraphs 99-100) emphasised the objective nature of the test by contrast to the position taken by the Court of Appeal:

"99 The approach which the Court of Appeal took to this issue seems to me, with great respect, to be quite unreal. I do not think that they had a sound basis for differing from the conclusion reached by the trial judge as to whether the information was private. They were also in error, in my opinion, when they were asking themselves whether the disclosure would have offended the reasonable man of ordinary susceptibilities. The mind that they examined was the mind of the reader: para 54. This is wrong. It greatly reduces the level of protection that is afforded to the right of privacy . The mind that has to be examined is that, not of the reader in general, but of the person who is affected by the publicity. The question is what a reasonable person of ordinary sensibilities would feel if she was placed in the same position as the claimant and faced with the same publicity.

100 In P v D [2000] 2 NZLR 591 the claimant was a public figure who was told that publicity was about to be given to that fact that he had been treated at a psychiatric hospital. In my opinion the objective test was correctly described and applied by Nicholson J, at p 601, para 39, when he said:

"The factor that the matter must be one which would be highly offensive and objectionable to a reasonable person of ordinary sensibilities prescribes an objective test. But this is on the basis of what a reasonable person of ordinary sensibilities would feel if they were in the same position, that is, in the context of the particular circumstances. I accept that P has the stated feelings and consider that a reasonable person of ordinary sensibilities would in the circumstances also find publication of information that they had been a patient in a psychiatric hospital highly offensive and objectionable."

That this is the correct approach is confirmed by the Restatement, p 387, which states at the end of its comment on clause (a) of section 652D: "It is only when the publicity given to him is such that a reasonable person would feel justified in feeling seriously aggrieved by it, that the cause of action arises." (Emphasis added.)"

In Venables and Thompson v New Group Newspapers Ltd and others [2001] Fam 430 Dame Elizabeth Butler-Sloss P granted injunctions against the whole world restraining the disclosure of any information that might lead to the identification of the murderers of James Bulger after their release from prison. The President held that, taking into account the Convention, the law of confidence could extend to cover the injunctions sought. Disclosure of the information in question might lead to grave, and possibly fatal, consequences for the claimants. This factor not merely rendered the information confidential, but outweighed the freedom of expression that would otherwise have underpinned the right of the press to publish the information.

A remarkable feature of this decision was that the nature of the information alone gave rise to the duty of confidence regardless of the circumstances in which the information might come to the knowledge of a person who might wish to publish it.

there have been persuasive dicta in Hellewell v. Chief Constable of Derbyshire [1995] 1 WLR 804, 807 and Attorney General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109, 281 cited by Sedley LJ in his judgment in these proceedings, to the effect that a pre-existing confidential relationship between the parties is not required for a breach of confidence suit. The nature of the subject matter or the circumstances of the defendant’s activities may suffice in some instances to give rise to liability for breach of confidence. That approach must now be informed by the jurisprudence of the Convention in respect of article 8. Whether the resulting liability I described as being for breach of confidence or for breach of a right to privacy may be little more than deciding what label is to be attached to the cause of action, but there would seem to be merit in recognising that the original concept of breach of confidence has in this particular category of cases now developed into something different from the commercial and employment relationships with which confidentiality is mainly concerned.

[patrickq1]

Article 8 Right to respect for private and family life

 

1 Everyone has the right to respect for his private and family life, his home and his correspondence.

2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others

 

i have been to preston uni today and also to sign an agreement for my daughters acomadation through an estate agent,on the second from last page there it was the right to waiver our DPA i crossed it out and wrote my data may be shared with the neccessary goverment authorities,but shall be shared with no other party unless a written request to me asking for my authority and i signed this part,i also made sure she gave me a photo copy their and then...she thought it strange but had to accept my request.

as you know peter i hate this being anywere near a contract it should be a seperate contract it is offensive even being in a contract...and a clasic example is look at the LOANS.CO.UK all their customers and even non customers have now found their data being used without their express permission...they should have their licence revoked..and what have the ICO done about it,they should be in their and closed their doors to business just to let people know just how serious this is,also what about those who are now open to identity theft because of loanns.co.uk...it is as i have always said REPUGNANT their can be no other word for it....gggggrrrrrr DATA PROTECTION ACT is a complete load of bo***cks and not worth the paper it is wrotten on and the only ones to blame are the ICO AND OFT for allowing this to enter contracts

[patrickq1]

i know terrible spelling and grammar ...but i am a simple man with limited education but i do try

[TideTurner]

Patrick,

 

Am I reading this correctly, that the lendor is now writing disclaimers into contracts so the borrower waives any rights they have (or protection) under the DPA?

 

This law was put in place to protect the consumer from any unfair or unlawful provision of their personal information.

 

The OFT must step in here.

 

This is disgraceful - nobody should sign one of these agreements.

 

Tide

 

BTW - Does anybody have a copy of a Halifax contract containing one of these waivers?

[patrickq1]

lol tide i thought you knew this already,if you look at any contract for the past two years it has I WAIVER MY RIGHTS TO THE SHARING OF MY DATA,in other words it is and i repeat for PETERS EARS(must be burning by now lol)THE REPUGNANCY RULE must come into being because it is objectionable and is a contradiction to the data protection act....any waiver is a contradiction of your rights to privacy

[tomterm8]

lol tide i thought you knew this already,if you look at any contract for the past two years it has I WAIVER MY RIGHTS TO THE SHARING OF MY DATA,in other words it is and i repeat for PETERS EARS(must be burning by now lol)THE REPUGNANCY RULE must come into being because it is objectionable and is a contradiction to the data protection act....any waiver is a contradiction of your rights to privacy

 

I would be very interested if you were to post a scan of the exact format of the words. the statement of protection under the Data protection Act 1998 requires a very specific format, and any attempt to require you to waiver its protections would be both illegal and unlawful.

 

Further, any attempt to waiver rights convention rights, which the data protection act incorportates into law, would be void. it would also, de facto, establish an unfair relationship under the Consumer Credit Act 2006.

 

It is more likely that the document is actually attempting to inform you that your data may be lodged with credit reference agencies.

[un1boy]

Have u seen the latest response I got from a TEAM MANAGER in TS? since when are the government decriminalising offences under the act?:

 

I know you have already had information from two of my colleagues concerning your complaint about Arc Collections Management but I wanted to contact you to fully explain our position in this matter.

As I understand it your father made a request under s78 of the Consumer Credit Act 1974 (CCA) to Arc Collections Management for a copy of his original agreement for an Egg card account which Arc are managing, ie the terms and conditions which were relevant at the time and a statement of account. As I further understand it your father received some, but not all, of the requested information from Arc.

As a result of this you feel that the agreement is unenforceable against your father and that Arc have committed a criminal offence.

I would agree that there is an issue about the enforceability of the agreement but that is a civil matter between your father and either Egg or Arc, whichever is the creditor in this agreement.

As for the criminal offence, s78(6) does state that if the creditor under an agreement fails to comply with subsection (1) " if the default continues for one month he commits an offence."

As my colleague has advised it is not clear whether Arc would be considered to be the "creditor" in this matter for the purposes of s78. He has also advised that this section is being de-criminalized which strongly indicates that parliament does not consider this activity to be of a criminal nature.

Given the lack of legal clarity and the imminent changes in the legislation I do not think that it is an appropriate use of our resources to mount a criminal investigation in this case.

What would be appropriate would be for this to be reported to our colleagues at the Office of Fair Trading (OFT). The OFT do not investigate individual complaints but, as the licensing authority for all consumer credit licences (which Arc must have to operate their business), they are in a position to determine whether Arc operate in a fit and proper manner. If the OFT receive sufficient complaints about Arc they have the power to suspend or revoke Arc's credit licence.

If you would like this reported to the OFT please provide us with a copy of all of the paperwork that you have and a covering letter. Alternatively you can send this directly to the OFT at Head of Credit Licensing, Office of Fair Trading, Fleetbank House, 2-6 Salisbury Square, London EC4Y 8JX

I hope that fully explains our position. I am about to go on leave so if you have any questions please contact my colleague xxxx in the first instance.

Regards

[Mike220359]

Have u seen the latest response I got from a TEAM MANAGER in TS? since when are the government decriminalising offences under the act?:

 

I would agree I have not seen anything about any decriminalisation.

 

Mike