Cap1 & CCA return

[Peterbard]

Hi Peter

 

a. Charges payable under the credit agreement

 

The interest on the credit and any other charges payable under the

agreement, such as documentation or administration fees or an option to

purchase fee under a hire-purchase agreement.

 

It reads to me that interest is charged on the credit only, a document fee cannot be classed has credit, so is included in TAP.

 

 

Hi no paul interst can be charged on any item contained withn the tcc look at compulsarry PPI for example but it has to be listed in the agreement.

 

Berst regards

Peter

[paulwlton]

Hi no paul interst can be charged on any item contained withn the tcc look at compulsarry PPI for example but it has to be listed in the agreement.

 

Berst regards

Peter

 

I think interest can only be applied on optional ppi if interest is applied when the ppi has been made compulsary it renders the agreement unenforceable.

 

I recall Zootscoot posting something regarding this

[Peterbard]

HI Paul this from the TCC regs

 

Sorry it's right at the bottom

 

Credit brokerage charges

Where the borrower uses a credit broker to arrange the loan, any charges

payable under the credit brokerage contract.

f. Charges for payment protection insurance

Lenders sometimes require borrowers or their relatives to take out or

maintain an insurance contract which will make sure that the credit and other

charges in the TCC due under the agreement are paid if the borrower dies,

falls ill, or becomes invalided or unemployed. This is generally known as

payment protection insurance (PPI) or accident, sickness and unemployment

(ASU) insurance. Where this is the only purpose of the insurance contract, the

premiums payable under it are included in the TCC.

Notes:

1. Charges which arise under ‘optional’ arrangements, ie those the borrower can

choose to take out but which are not required under the transaction or as a

condition of getting the credit, will not form part of the TCC.

However, it is important to consider whether the arrangement is genuinely

optional in relation to the transaction in question. For example, if a lender

indicates that PPI is optional (for example, by providing a box on the

application form that must be ticked to select PPI), but refuses applications

from those who do not choose to take it, it is not really optional.

Similarly, if a lender offers credit on different contractual terms to customers

who do, or do not, select a particular option then, when calculating the APR

for an agreement the terms of which apply only where the option is selected,

any charges made as a result of selecting the option will be included in the

TCC for that agreement.

2. The term ‘payable’ is wider than ‘paid’. In addition to charges which are

certain to be paid under the transaction, items which may be payable are

included in the TCC. For example, an option to purchase fee under a hirepurchase

agreement is only paid if the borrower opts to buy the goods, but it

is part of the TCC. Charges are also included where they are paid when the

assumptions described in Part III of this booklet are applied.

3. The TCC includes interest and other charges, even if they are not specifically

for the credit and if there are other benefits in return for the charge.

 

Best regards

Peter

[Peterbard]

Hi

There is no reason i am aware of that compulsarry pPI can not be paid for in installments and thus incur credit charges even if this is classed as a linked agreement it would still appear within the Total charge for credit.

I don't see how this would make an agreement unenforceable as this would not effect the total credit since it would be contained within the TCC and i cant think of any other precribed terms it would breach.

Everything payable on the agreement is included within the Total amount payable.

 

Best regards

Peter

 

Pete

[Peterbard]

Hi Peter

 

Do you have a link to that letterplease?

 

Thanks

 

Hi

It is definately on the letters from. thread i will look through it when i get a moment.

 

Best regards

peter

[the main man]

Hi,

 

 

Does anyone know the current stance of the OFT in regards to a creditor providing current T&C along with an application/agreement in a CCA section 78 request?

 

In my case TS are awaiting legal advice from the OFT on this, and just wondered if anyone has had a positive response?

[Peterbard]

Hi

 

The creditor can provide current Tand c's but only in addition to the t and Cs that were orriginally contained in your agreement.

They may tell you otherwise but the act is quite clear that agreements must contain within them all terms and conditions required by the agrement regulations 1983/1553.and to be a true copy so must any copy.

 

A current copy will apart from anything else contain variations on the orriginal whether it be default charges or interest rates etc. the ability to vary an agreement has to be stated in the original agreement t and c's.

 

Best regards

Peter

[ncf355]

Dont forget that there must also be a clear connection between the T and C's and the signature

 

It would not be enough to send the terms they allege to be the original in a seperate booklet - sigs and terms must all be within the same document (be wary of the only connection being that someone has stapled the sig page to the alleged t and c's)

 

Many of my CCP's have tried this one on me

 

[the main man]

Many Thanks,

 

I must admit a bit of doubt was creeping in, but I will see what response I get. This is part of what I was sent.

 

 

"You have been given the new terms and a True Copy. The Office of Fair Trading are being formally asked if this satisfies the requirements of regulation 7(b) . I am inclined to think that on reflection the OFT may well consider that it does.

 

Section 82(1) of the CCAct 74 allows agreements to be varied if a term of the original agreement so allows.

It is this last area, that of Regulation 7 that is the most importance. Where an agreement is varied in accordance with section 82(1) of the Act, every copy of the executed agreement given to the debtor, hirer or surety under any provision of the Act except s85 (re-issue of credit tokens aka credit cards) shall either include:

(a) an easily legible copy of the latest notice of variation given in accordance with s82(1) of the Act relating to each discrete term of the agreement which has been varied; or

(b) an easily legible statement of the terms of the agreement as varied in accordance with s82(1) of the Act."

[Peterbard]

The regulations state:

(2) There may be omitted from any such copy-

(a) any information included in an executed agreement, security instru­ment or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations thereunder as to the form and content of the document of which it is a copy;

And the agreement regulations state

Form and content of regulated consumer credit agreements

 

2.-{1)

Subject to paragraph (2) below, documents embodying regulated consumer credit agreements (other than modifying agreements) shall contain the information set out in Column 2 of Schedule 1to these Regulations in so far

as it relates to the type of agreement referred to in Column 1.

In other words apart from the signature box all other information that is required to be in the agreement should also be in the copy.

This includes all the original t and cs (schedule 1 info +).

Regards

Peter

[ncf355]

 

 

"You have been given the new terms and a True Copy. The Office of Fair Trading are being formally asked if this satisfies the requirements of regulation 7(b) . I am inclined to think that on reflection the OFT may well consider that it does."

 

Section 82(1) of the CCAct 74 allows agreements to be varied if a term of the original agreement so allows.

It is this last area, that of Regulation 7 that is the most importance. Where an agreement is varied in accordance with section 82(1) of the Act, every copy of the executed agreement given to the debtor, hirer or surety under any provision of the Act except s85 (re-issue of credit tokens aka credit cards) shall either include:

(a) an easily legible copy of the latest notice of variation given in accordance with s82(1) of the Act relating to each discrete term of the agreement which has been varied; or

(b) an easily legible statement of the terms of the agreement as varied in accordance with s82(1) of the Act."

 

 

 

 

 

In addition to Peters points above, we have been through this elsewhere, the key word is INCLUDE this effectively means in addition to the original agreement

 

 

Yet another case of TS having a 'rse 'lbow issue

 

I dont state the above lightly, I have argued this exact point in court recently and succesfully

 

Basically, I truly believe (and yes, I appreciate what a said state of affairs this is) TS - with a few notable exceptions - are a waste of the office space they occupy and the only way you will make progress is via (self instigated) court action - you 'just' need to do your homework and seek advice from people such as PB and TT8 and made damn sure of your case before you hit the "start" button

[MoonHawk]

If you also read that slowly, it does not make sense unless the original terms are included. Otherwise you will not know if the original terms allowed any of the terms to be varied.

 

allows agreements to be varied if a term of the original agreement so allows

 

So there is no proof that the new terms are permitted at all, without reference to the original terms.

 

Best Wishes

MoonHawk

[the main man]

Hi,

 

Many thanks for all the advice, TS have stated that the enforceability of the agreement (no prescribed terms) is a civil mater, and that they wont get involved. So I am quite keen to keep it in dispute via section 78, until I gain enough confidence to take them on.

 

Regards

MM

[Having_A_Knightmare]

is a civil mater

 

What planet are T/S on.

 

They are begining to get om ny nerves my end.

 

Got another email today of them saying, still waiting for the other T/S to respond about my RBS (been nearly a month) .

Also she says the complaint abount Sainsburys has been put on my desk.

 

i feel like saying thats why I pay Council Tax at nearly £1500 year and also thats YOUR JOB.

 

Hak

[noomill060]

An unenforceable agreement with no prescribed terms IS a civil matter.

 

If finance companies want to build a scaffold, make a noose, put their neck in it and ask you to pull the lever, that is their business.

 

Its not TS's role to say "Thats not a good idea"

[the main man]

I wish I could post all of what I was sent, but when you receive statements like "If you intend to challenge the bank's right to any payment because no agreement exists between you, then this is a very risky move" and "you used the card so there must have been some form of agreement" it does tend to put doubts in your mind and put into question TS role in all this:mad:

[Curlyben]

Sorry but if this agreement was signed under CCA 74 then s127 and s61 come into effect.

Basically No CCA = No ENFORCEABLE debt !

[PriorityOne]

I have lost faith in all of them...

 

TS were a waste of space, OFT much the same, Information Commissioners Office do not seem to "get" CCA law, and as for the FOS... they are giving one of mine "another chance" to respond to my complaint, even though they are 16 weeks past even sending me a copy of their complaints procedure, let alone dealt with it and are well past the legal timeframe for ANY compliance with the S.A.R - (Subject Access Request) !

 

[shane5408]

lets not forget to add the judges to the pile as well. It's shocking how little they know about CCA Law (atleast, the ones in my experiences). Often its up to the debtor to explain to the judge why s127(3) applies or why creditor has not in fact provided true copy etc etc

[ncf355]

Shane,

 

I think with the judges you need to cut them a bit of slack though as they have to deal with hundreds of cases across a very wide variety of claim types so you cant honestly expect them to fit it all in their heads! (I might add the ujdges I've had so far have been reasonably well informed)

 

In TS case there is no excuse, cos' apart from checking pub measures and bad guarantees on washing machines this is prob their bread and butter (especially lately)

 

We must find some way of bringing TS to book over their lack of action

[noomill060]

It just boils down to the fact that no one is going to fight your battles for you.

 

You just have to make sure you go into your battle armed to the teeth.

 

You have just entered The Armoury, main man.

 

Write back them and ask them to state what in the Consumer Credit Act 1974 leads them to believe that:

 

"If you intend to challenge the bank's right to any payment because no agreement exists between you, then this is a very risky move"

 

and

 

 

"you used the card so there must have been some form of agreement"

 

[noomill060]

"you used the card so there must have been some form of agreement"

 

So make them prove it. Then make them prove its enforceable.

[PriorityOne]

Dear TS,

 

Without sight of the original Agreement, I remain unable to confirm the precise terms and conditions that I allegedly signed.

[the main man]

Don't worry I intend to fight them, but just wish TS had not taken nearly five months:mad: to come out with this.

[Goldlady]

I think many of us would accept that we borrowed the money but, as in my case, we have repaid the capital and if there is no agreement to confirm what interest (if any) was applicable then we no longer owe anything.