Cap1 & CCA return

[un1boy]

I don't think this is right - if the agreement is unenforceable that doesn't mean that the debt doesn't exist? If you haven't drawn on the card, or used the credit, or even applied for the card yourself you may be able to use that argument against enforceability.

 

Remember - "no CCA=unenforceable debt", not "no CCA=no debt"

 

If you're in dispute with them, they shoudn't be hounding you like that - company policy or not!

 

Car, there is no agreement!

 

This is an application form of some sort.

 

Even if it was an agreement, the whole whole agreement becomes unenforcbale even with a court order if the prescribed terms are not on the sig doc, therefore they cannot make any attempts to enforce the agreement.

[car2403]

Car, there is no agreement!

 

This is an application form of some sort.

 

Even if it was an agreement, the whole whole agreement becomes unenforcbale even with a court order if the prescribed terms are not on the sig doc, therefore they cannot make any attempts to enforce the agreement.

 

I think you're confusing "enforcement" with "collection", personally? As you have had some funds from them (presumably!) they will probably have an "equitable right" to attempt collection within the law - i.e., not to harrass you for payment.

 

They can't enforce the debt if the agreement isn't regulated, but that won't stop them attempting collection as the "debt" still exists regardless of it's legal basis.

[pt2537]

I think you're confusing "enforcement" with "collection", personally? As you have had some funds from them (presumably!) they will probably have an "equitable right" to attempt collection within the law - i.e., not to harrass you for payment.

 

They can't enforce the debt if the agreement isn't regulated, but that won't stop them attempting collection as the "debt" still exists regardless of it's legal basis.

 

 

i must say this has left me a little confused by that statement.

 

statute says not enforcable full stop, equity will not override a statute surely.

 

regards

paul

[tomterm8]

i must say this has left me a little confused by that statement.

 

statute says not enforcable full stop, equity will not override a statute surely.

 

regards

paul

 

Not enforceable means they cannot seek to enforce it, but it doesn't stop them asking for the money. However, if they keep on asking after you say no, pretend that legal action can be taken etc, they are breaking the law.

 

There is a (implied) provision in CCA allowing voluntary enforcement, that is enforcement where the debtor agrees to it.

 

You'd have to be a real mcmuffin to do that, but... it amounts to the fact, if you want to pay, it is legal to do so. shrug.

[pt2537]

oh,sorry, heads a bit of a mush this morning,

 

i misunderstood what was posted thats all

 

i understand now

 

regards

paul

[shane5408]

I don't think this is right - if the agreement is unenforceable that doesn't mean that the debt doesn't exist? If you haven't drawn on the card, or used the credit, or even applied for the card yourself you may be able to use that argument against enforceability.

 

Remember - "no CCA=unenforceable debt", not "no CCA=no debt"

 

If you're in dispute with them, they shoudn't be hounding you like that - company policy or not!

 

This is the Information Commissioners Office's stance as well, the debt stipulates a valid contract allowing the creditor to continue processing your data by virtue of Section 2(A) of Schedule 2 of the Data protection act regardless if an agreement exists or not!!!

 

regards,

shane

[shane5408]

There is a (implied) provision in CCA allowing voluntary enforcement, that is enforcement where the debtor agrees to it.

 

 

 

Hi Tom,

 

Is this s173(3) you're referring to? My understanding is that even if the agreement was unenforcable and a judge ruled in that favour the debtor can voluntarily choose to resume making payments or make a lump sum in exchange for having adverse credit data / defaults removed.

 

kind regards,

shane

[car2403]

i must say this has left me a little confused by that statement.

 

statute says not enforcable full stop, equity will not override a statute surely.

 

regards

paul

 

No, you're right - it won't - but this is why I brought it up in response to the question asked. Equity will (arguably, and I completely propose we don't even go there!) state that they can collect on an outstanding debt, while the law will say they can't enforce it against the debtor.

 

oh,sorry, heads a bit of a mush this morning,

 

i misunderstood what was posted thats all

 

i understand now

 

regards

paul

 

Don't worry Paul, that could be because I'm being a McMuffin, as TomTerm words it, (which is a brilliant phase that I've now coined as my own!) in introducing equitable arguments on a thread that is about the legality, or otherwise, of an agreement.

 

I'll get back in my basket, now.

[pt2537]

Hi Chris

 

no its total chaos here at the mo, preparing 3 x claims this morning as im having a crack at a catalogue to get a default removed, its a long story.

 

basically i quickly glanced over what you said and misunderstood it or interpreted it wrongly.

 

like i said its mayhem

 

regards

paul

[car2403]

This is the Information Commissioners Office's stance as well, the debt stipulates a valid contract allowing the creditor to continue processing your data by virtue of Section 2(A) of Schedule 2 of the Data protection act regardless if an agreement exists or not!!!

 

regards,

shane

 

This is a whole thread on it's own - and I believe some even exist - because where a contract is void in that it doesn't meet the basics of the CCA, doesn't automatically mean that the consent to process within that contract ceases to exist.

 

Not my opinion, before I get anyone's back up, but this is the way the ICO seems to want to play it.

[car2403]

Only 108 posts (well, 107 now!) to go to 10,000 posts!

 

World Record?

 

 

Blimey! I just got the 10,000th post to this thread! That is purely coincidence and I, in no way, admit to spending my life reading/replying to this thread!

 

Is there a prize, mods?

[kennyparkroad]

no cca = unenforceable debt, but doesnt mean they get rid of defaults

[pt2537]

depends, if the default contains incorrect information ie incorrect figures then it would be void, confirmed by the Court of Appeal and as such must be removed

 

regards

paul

[Having_A_Knightmare]

Hi

 

I am afraid that "the not in the public interst to pusrue", is a fact that we are going to have to live with in regards to section 77 requests i have just recieved a lettere from the undersecretary on state regardsing this after a long drawn out debate which i argued strenuously to the contrarry.

He also says within the letter that creditors are allowed to to pusrsue a debt whilst the default continues but they are not allowd to threaten action which they cannot take (through the courts) i am seeking clarification that this means they cannot enter defaults or use the permission granted under the agreement to share data with credit agencies,which would seem to be the logical conclusion.

With regards to your letter to the TS have you considered using my letter of a few posts back

 

Consumer Credit Act Agreements

 

it states the regulations that point to the requirements that the creditor must meet in ordr to comply with the request and especialluy in sending sepperate terms and conditions.

 

Best regards

peter

 

Hi Peter

 

Cant believe whats going on with T/S they are not doing the job they are paid to do.

 

HAK

[un1boy]

I think you're confusing "enforcement" with "collection", personally? As you have had some funds from them (presumably!) they will probably have an "equitable right" to attempt collection within the law - i.e., not to harrass you for payment.

 

They can't enforce the debt if the agreement isn't regulated, but that won't stop them attempting collection as the "debt" still exists regardless of it's legal basis.

 

I understand, but sec 59(1) says that's the case!

[Having_A_Knightmare]

Hi

 

Just to clarify in pre 2005 agreements the prescribed terms do not have to be on the same page as the signature they do have to be within the same document but the signature box can be anywhere within the agreement.

 

The terms and conditions that are specified within schedule one of the regulations and contain the prescribed terms shoud be contained within the agreement and not on a seperrat document labled terms and conditions.

 

The agreement together with the terms itemised within the agreement regulations should be the ones that were current when the agreement was signed . Section 7 of the 1983/1557 copy of document regulations state that if their has been any varyation of the agreement these should be enclosed together with the agreement in the form of itemised information or a copy of the varied t and c;s but this is in addition to the ones contained within the agreement not in place of.

 

Best regards

Peter

 

just thinking about this one.

 

When you say with in the same document can it be in the T&C if they are on a separate piece of paper but allegedly sent out at the same time.

 

HAK

[pt2537]

with regards your agreement, arent they possibly printed on the back of the Document they sent you HAK? not on a seperate sheet

 

 

regards

paul

[un1boy]

with regards your agreement, arent they possibly printed on the back of the Document they sent you HAK? not on a seperate sheet

 

 

regards

paul

 

That's exactly what we need to find out.

 

I have to ask another lender this. I will be reminding them that they will have to provide the original in court, so any statement they make will be corroborated and if it's wrong, they would be prosocuted under the Fraud Act.

[Having_A_Knightmare]

Hi Paul

 

Its got me thinking about another CCA request i did to HSBC.

 

No prescribed terms but on the last page in the T&C there is the prescribed terms.

 

As you can see it is a seperate peice of paper and after the signature.

 

What do you think?

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

[Having_A_Knightmare]

I have to ask another lender this. I will be reminding them that they will have to provide the original in court, so any statement they make will be corroborated and if it's wrong, they would be prosocuted under the Fraud Act.

 

good on you Uni!!!

[car2403]

I understand, but sec 59(1) says that's the case!

 

I don't understand your point, un1boy?

 

59.—(1) An agreement is void if, and to the extent that, it purports to bind a person to

enter as debtor or hirer into a prospective regulated agreement.

(2) Regulations may exclude from the operation of subsection (1) agreements such

as are described in the regulations

[ncf355]

Car and PT,

 

when wondering about enforceability, equity and the like Wilson v First County Trust (in particular the case as heard at Court of Appeal, as the House of lords case just re iterates this) is the bigh one to keep in mind

 

Because of a technicality in a incorrectly stated prescribed term, Mrs Wilson's agreement with FCT (Pawnbroker) was deemed unenforceable under S127(3)

 

 

Result:

 

Mrs Wilson put in:

 

BMW Car (pawn security)

£6900 (ordered at the first hearing, following the judge re opening the agreement and reducing interest that was 94.9% by half)

 

Mrs Wilson got out:

 

BMW Car

£5000 (originally loaned by FCT)

£6900 (that she paid following the original hearing)

£662 (Interest on the £6900 paid originally)

 

(FCT also found responsible for costs at Court of Appeal, totalling £662)

 

Now even the most jaded and biased of us can see there is nothing 'fair and equitable' about this, however (for any agreement made prior to April of this year) that (as far as both Court Of Appeal and House of Lords are concerned) is the law of the land

 

If ANY of the prescribed terms are missing or in the slightest way mistated, BIG BANG, game over for the Bank/CCP and Mardi Gras for the claimant

 

As pointed out many times on here TS, OFT, Et Al are the proverbial "chocolate fireguard"

 

Many on here (myself included) have had enough and are taking action personally

 

We will prove cases, and when we do we will ensure higher authoiry is brought to bear on those blatantly failing in there duty to protect the consumer who has neither the time or money needed to vest into taking these people on

 

I myself have spent many a night going through statute, case law and the fantastic contributions of the collective minds here an elsewhere

 

This time will NOT go to waste

[maybelline]

(this iis not my post but pinched it from earlier in this thread)

 

HI

Some time ago i sent a request to Lacors regarding their letter suggesting that in there view the practice of creditors passing data relating to agreements that were unenforceable was inapropriate.

They said they would pursue the matter with Information Commissioners Office and publish the response.

I recieved the following response earlier this week it was sent fom the Information Commissioners Office to Lacors and forwarded to me.

 

From: Carol Hufton [mailto:Carol.Hufton@Information Commissioners Office.g si.gov.uk]

Sent: 17 August 2007 11:11

To: Robert Kidd, LACORS

Subject: RE: unenforceable credit agreements

 

 

Dear Robert,

I am sorry for the delay in answering your email.

 

The current position is that I am waiting for a response from the OFT. They took the matter to their policy committee twice and it was clear that they were supportive of LACORS view. My understanding is that they intended to raise the matter with the mail order industry in particular, although others may of course be involved. Reporting defaults to credit reference agencies is a matter that lies with us. Nevertheless we returned to the OFT to ask for an approximate timetable for their negotiations because we thought that it needed a co-ordinated approach. This was in April if my memory serves and I have chased a response recently. Unfortunately I have not yet had a response – but will contact them again. We are ready to initiate negotiations – which will have to involve those who file information as well as the agencies who receive it. There will be implications for the rest of the business community who share information with the credit reference agencies. It is the knock on effect that makes us feel that the practice as a whole should first be raised directly with those who continue not to get a properly executed agreement before we try to deal with the consequences – otherwise we are continually fighting against the odds and it could have undesirable consequences to raise the matter with a wider audience before the core problem is resolved.

 

Like you I am anxious that we make progress and I will contact the OFT again.

 

Carol

 

It would seem from this that Information Commissioners Office suport Lacors and our contention however there seems to be a bit of buck passing as they still have not made a possitive statement to the affect that creditors should not pass on information relating to agreements that are unenforceable.

I will continue to pursue and keep all informed

 

Regards

Peter

 

 

(this is from an original post by Peter, many thanks, hope you dont mind me bringing it back to here re: defaults on unenforceable agreements)

[Bilgeman]

Hello, all. PriorityOne suggests I post the CCA signed agreements I've received here. I haven't read this thread yet so I hope I'm not hijacking. It's a bit of a monster thread, isn't it? Will go back and have a trawl through when I've finished work today.

 

Anyway, these two are from Moorcroft with regard to an Egg Card

 

http://i187.photobucket.com/albums/x...Agreement2.jpg

 

http://i187.photobucket.com/albums/x...Agreement3.jpg

 

and this is from Logic Group re loan from Bank of Scotland

 

http://i187.photobucket.com/albums/x...Agreement1.jpg

 

Thanks from Bilgeman

[Having_A_Knightmare]

Hi Bilegeman

 

I can only view no2