Cap1 & CCA return

[car2403]

Oh, and so the SI is irrelevant?

 

I'm serious here, I've had CCP's misquote the SI and I was wondering what the borg on this thread thought?

 

If you ask a question that will allow me to know what you are asking, I might be able to help?

[ian1969uk]

LOL, the BBC reporter passed it to him and I've been asking him some questions so I don't mind that he has it.

 

I'm not offering any settlement, he has nothing on me for me to worry about. His gripe is with CAG and the posts that were here, but my recent post has been CAGBotted so I guess this is the CAG admin dealing with the situation.

[BigBadCAGBagger]

If you ask a question that will allow me to know what you are asking, I might be able to help?

 

Has anyone had any CCP or a DCA stating that current terms and conditions fulfill a s78 request (ignoring the signed SoA for a moment)?

 

I have, from Next and by others too.

 

This is, of course, a misquote from SI 1983/1553.

[patrickq1]

since the bank have a legal mortgage over me and have not responded to the dispute i had with them in 1993 would it be possible to have this charge removed from the land registry for failure to act and also limitations act also i need someone to check wether it is worded correctly (the legal mortgage)http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/123193-patrickq1-hfo-morgan-stanley.html?highlight=patrick+v+morgan+stanley

would appreciate someone check the wording as to its status as being in conformity to the 1974 cca act thanks

patrickq1

[BigBadCAGBagger]

The debt (if you haven't made any payments) would be statute barred after 12 years. Unfortunately I am not experienced in this matter (other than the 12 years rule )

[tifo]

LOL, the BBC reporter passed it to him and I've been asking him some questions so I don't mind that he has it.

 

Well, my post asking you this has been CAGbotted! Did i say anything wrong?

[ian1969uk]

I can only assume it's because you quoted some of my original post.

[gizmo111]

T&I I have PM'd you both

[paulwlton]

We've discussed in detail the creditor recreating CCA Agreements on this thread, and also the legalities of it. There will be a piece on the subject in the Guardian on Tuesday.

Paul

[car2403]

Has anyone had any CCP or a DCA stating that current terms and conditions fulfill a s78 request (ignoring the signed SoA for a moment)?

 

I have, from Next and by others too.

 

This is, of course, a misquote from SI 1983/1553.

 

Yes we have seen it before, but they are wrong. They'd have to show that the original terms and conditions allowed for the variation at a future point in time, which they can only legitimately do by providing the originals, then showing the latest variations, to rely on them.

 

This is definately a misunderstanding of the regulations.

[Josie8]

Yes we have seen it before, but they are wrong. They'd have to show that the original terms and conditions allowed for the variation at a future point in time, which they can only legitimately do by providing the originals, then showing the latest variations, to rely on them.

 

This is definately a misunderstanding of the regulations.

 

 

A ....DELIBERATE misunderstanding of the regulations.........:o :o :o

[celebrity debtor]

A ....DELIBERATE misunderstanding of the regulations.........:o :o :o

 

 

 

 

173 Contracting-out forbidden

 

(1) A term contained in a regulated agreement or linked transaction, or in any other agreement relating to an actual or prospective ( meaning unexecuted) regulated agreement or linked transaction, is void if, and to the extent that, it is inconsistent with a provision for the protection of the debtor or hirer or his relative or any surety contained in this Act or in any regulation made under this Act.

 

(2) Where a provision specifies the duty or liability of the debtor or hirer or his relative or any surety in certain circumstances, a term is inconsistent with that provision if it purports to impose, directly or indirectly, an additional duty or liability on him in those circumstances.

 

(3) Notwithstanding subsection (1), a provision of this Act under which a thing may be done in relation to any person on an order of the court or the Director only shall not be taken to prevent its being done at any time with that person’s consent given at that time, but the refusal of such consent shall not give rise to any liability

 

========================

now we have two definitions

 

“unexecuted agreement” means a document embodying the terms of a prospective regulated agreement, or such of them as it is intended to reduce to writing;

 

“executed agreement” means a document, signed by or on behalf of the parties, embodying the terms of a regulated agreement, or such of them as have been reduced to writing;

 

it is suggested that so long as a statement such as ..... we may vary the terms and conditions from time to time ....... is not included in the “unexecuted agreement” [time=t0] then it cannot suddenly appear in the “executed agreement”.[time=t1]

 

consequently on the next renewal of the agreement [time=t2] then the terms and conditions must be the same as [time=t1]

 

meaning the terms and conditions cannot change as described in section 173

[paulwlton]

Another misquote of the regs is that- the creditor may omit the debtors address.

The Act or the regs does not allow the debtor's address to be omitted. Imo the logic behind this misstatement is that, if the debt goes back a number of years it would be fatal for the creditor to include the their address simply because they wouldn't be 100% sure of it, and that would give the game away. The copy then would not be recreated it would be conjectured.

 

I have argued this point with the OFT who are obviously siding with the finance industry. The OFTs position on this is: it would be up to a court to decide.

 

Paul

[B3rty]

In the CCA regulations Schedule 7.1 it states how APR must be shown where the credit limit isn't known at the time the agreement is signed.

 

Does anyone know how this effects running account credit where the credit limit is known ?

 

I have my thread here http://www.consumeractiongroup.co.uk/forum/general-debt/118878-help-court-ccj-letter-5.html

 

And my defence is will be based on 127(3) but I am looking at other aspects and the signature copy they have sent shows a credit limit (I have blanked for confidentiality) but the prescribed terms in another document are the usual CC ones.....I am trying to build a case for the 2 documents not to be linked...

[celebrity debtor]

173 Contracting-out forbidden

 

(1) A term contained in a regulated agreement or linked transaction, or in any other agreement relating to an actual or prospective ( meaning unexecuted) regulated agreement or linked transaction, is void if, and to the extent that, it is inconsistent with a provision for the protection of the debtor or hirer or his relative or any surety contained in this Act or in any regulation made under this Act.

 

(2) Where a provision specifies the duty or liability of the debtor or hirer or his relative or any surety in certain circumstances, a term is inconsistent with that provision if it purports to impose, directly or indirectly, an additional duty or liability on him in those circumstances.

 

(3) Notwithstanding subsection (1), a provision of this Act under which a thing may be done in relation to any person on an order of the court or the Director only shall not be taken to prevent its being done at any time with that person’s consent given at that time, but the refusal of such consent shall not give rise to any liability

 

========================

now we have two definitions

 

“unexecuted agreement” means a document embodying the terms of a prospective regulated agreement, or such of them as it is intended to reduce to writing;

 

“executed agreement” means a document, signed by or on behalf of the parties, embodying the terms of a regulated agreement, or such of them as have been reduced to writing;

 

it is suggested that so long as a statement such as ..... we may vary the terms and conditions from time to time ....... is not included in the “unexecuted agreement” [time=t0] then it cannot suddenly appear in the “executed agreement”.[time=t1]

 

consequently on the next renewal of the agreement [time=t2] then the terms and conditions must be the same as [time=t1]

 

meaning the terms and conditions cannot change as described in section 173

 

as has earlier been highlighted

 

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

[B3rty]

Thanks for this but it doesn't answer the question clearly.....the act allows for assumptions on the way the APR is quoted in the case of running account credit agreements where the credit limit is unknown.....I am just wondering where the credit limit be known as in my signature doc would this mean that the assumptive APR presecribed terms are not the right ones to use?

[car2403]

There's no need for the interest rate, (which includes APR) to appear on the agreement, but to be properly executed it should state how that information will be disclosed to you.

 

For example, "we will vary the interest rate/APR on your agreement and give you notice of this information on your monthly statement", would suffice.

 

If there is no mention of interest/APR on the agreement, it's missing the prescribed term and is unenforceable under s.127(3).

 

It sounds like the assumptive APR is the one that is charged regardless of the balance, but the balance will decide how much you are actually charged. That's fine, as long as that (APR applicable and the credit limit) is shown on the agreement.

 

It would be worth checking what the actual APR you're being charged is. If they've given a APR figure on the agreement, not allowing for it to be varied at a future point in time on your statement, and are charging you a different rate, (or, more precisely, one outside the tolerances of a rate which exceed the APR by not more than one or a rate which falls short of the APR by not more than 0.1) that would give rise to an unenforceable agreement, IMHO.

[Peterbard]

Hi

The assumptions used in caculating APR on Running acount credit are the ones that the creditor must always use in caculating the APR wheather the credit limit is known or not.

Because the term sf the repayment would normally effect the APR as well as other factors that would influence the total charge for credit there would be no other way of giving a reliable figure to enable comparison with other products.

The formualas for thes are contained within the 1983/1553 regs and where updated inthe total charge for credit regulations Section4 and most lately within the ammended agreement regulations 2004/1482.

 

Best regards

Peter

[car2403]

Hi

The assumptions used in caculating APR on Running acount credit are the ones that the creditor must always use in caculating the APR wheather the credit limit is known or not.

Because the term sf the repayment would normally effect the APR as well as other factors that would influence the total charge for credit there would be no other way of giving a reliable figure to enable comparison with other products.

The formualas for thes are contained within the 1983/1553 regs and where updated inthe total charge for credit regulations Section4 and most lately within the ammended agreement regulations 2004/1482.

 

Best regards

Peter

 

Hi Peter - nice to see you back! Had us worried for a minute there!

[humbleman]

A lot of creditors are insisting that the application forms they supply are agreements. That being the case then on renewal of credit cards they should have sent a copy of the application form. The debtor can then argue that since they did not provide the copy of the application form with a subsequent credit card, they are in default. If the debtor has saved the generic mailer it would be quite easy to prove this. Either way the creditor would be a loser.

[Peterbard]

hi

 

The FSA has just fined the HFC bank over £1m for misseling PPI insurance HFC is part of HSBC.

The criterea for correctly selling insurance is on the FSA website and is well worth a look at. If you feel that you are a candidate for a refund, I think that now would be the time to put in your complaint, as i am sure they will be much more willing to settle rather than risk further noteriety.

 

Best regards

Peter

[un1boy]

hi

 

The FSA has just fined the HFC bank over £1m for misseling PPI insurance HFC is part of HSBC.

The criterea for correctly selling insurance is on the FSA website and is well worth a look at. If you feel that you are a candidate for a refund, I think that now would be the time to put in your complaint, as i am sure they will be much more willing to settle rather than risk further noteriety.

 

Best regards

Peter

 

You're great Peter - thanks!

[paulwlton]

A lot of creditors are insisting that the application forms they supply are agreements. That being the case then on renewal of credit cards they should have sent a copy of the application form. The debtor can then argue that since they did not provide the copy of the application form with a subsequent credit card, they are in default. If the debtor has saved the generic mailer it would be quite easy to prove this. Either way the creditor would be a loser.

 

Spot on mate.

[humbleman]

Hi Paul

 

I think this could be the next big thing after bank charges

[paulwlton]

Hi Paul

 

I think this could be the next big thing after bank charges

 

I agree, i've had a payout under sec 85. Barclaycard bottled it.

 

 

Paul