Cap1 & CCA return

[B3rty]

Mrs X knows something we do not, then the judgement is a legal judgement. This is because Mrs X had admitted liability for the debt

 

Is admitting liability a legal argument with no CCA !....I think maybe the judge is saying by not defending the liability is admitted...

 

The debt is not the challange but the creditors legal right to enforce it through the courts?

[MAGDA]

Hi Maybelline, if the judgement was made by default, because the paperwork went to an old address, then I think you should be able to request the judgement is set aside and that will mean (according to the advice I was given - so you'll need to check) that everything then more or less starts at the beginning. In other words your friend would then have a chance to defend the claim on the grounds that there isn't a CCA. Or as you said, you could ask for a variation or redetermination to ask for a more affordable amount. As your friend didn't get the chance to defend in the first place though and hasn't admitted liability, she probably should ask for it to be set aside IMO. Magda

[car2403]

Hi Maybelline, if the judgement was made by default, because the paperwork went to an old address, then I think you should be able to request the judgement is set aside and that will mean (according to the advice I was given - so you'll need to check) that everything then more or less starts at the beginning. In other words your friend would then have a chance to defend the claim on the grounds that there isn't a CCA. Or as you said, you could ask for a variation or redetermination to ask for a more affordable amount. As your friend didn't get the chance to defend in the first place though and hasn't admitted liability, she probably should ask for it to be set aside IMO. Magda

 

Agree, Magda.

[MAGDA]

Is admitting liability a legal argument with no CCA !....I think maybe the judge is saying by not defending the liability is admitted...

 

The debt is not the challange but the creditors legal right to enforce it through the courts?

 

I think the judge was sayng that as a judgement had already been made (legally as far as he was concerned) then whether the creditor had a CCA or not was not the issue, although I agree with your comment that the debt is not the issue but the creditor's legal right to enforce it. The court must have been aware at the outset that there wasn't a CCA, as it was a local court and not a bulk handling centre - I don't think they seem particularly bothered unless you defend it at the beginning. At this particular hearing (the third one) the judge following redetermination granted an instalment order (the creditor had previously been granted a forthwith and right to apply for a charge), but also gave the claimant the right to appeal. However, the claimant has not so far gone back to the court, because (I suspect) there isn't a CCA and they now realise that we are aware of the unenforceability element, which we weren't before.

[manicblonde]

Please can somebody help me. This thread is HUGE and I have got lost trying to keep up with it!

 

I am trying to sort the financial mess my Mam & Dad have gotten themselves into. Requested Copy CCA from Barclaycard. They sent me back two credit card application forms that my parents had completed. One of tehm does mention the Credit agreement regulated by the CCA 1974 (which they took out in 1995).

 

the other is just an application for from 1977! No reference to the CCA whatsoever in the conditions of use section or the application itself. Should I write back to them? If so what shall I say?

 

They also have a loan and CC with the CO-OP from about 1992 that I have CCA requested on over 14 days ago, plus my parents have requested copies of the agreements on numerous occassions over the phone. THey have not responded. WHat is my next step please? I just want to make sure I get this one right for them.

 

Neither of them work, they are both retired and in ill health and you would not beleive the lenders that have let them keep borrowing and they now have no way to pay it all back! Any other suggestions on how to help them gratefully received!!

[ncf355]

Hi MB,

 

can you start your own thread and post a link back here to it - makes it easier if you have a seperate thread

 

Also - do you have the ability to scan the documents and post them here (via photobucket.com or similar) ?

 

That way we can properly advise you having seen the actual agreements

[ncf355]

Just go here:

 

BARCLAYS BANK FORUM

 

And click the "new thread" button at the bottom left of the page

 

Then copy a link from the new thread and paste it back here

[manicblonde]

OK, I will gove it a go!

[manicblonde]

I have copied it to that thread but I dont know how to go about doing a link?

[manicblonde]

I can e mail the docs via our copier in work to myself. How do I get them on the screen them please?

[Chalkitup]

I have copied it to that thread but I dont know how to go about doing a link?

 

 

Here you go:--

 

http://www.consumeractiongroup.co.uk/forum/barclays-bank/139728-my-mum-barclaycard-x.html

 

 

Onwards and Upwards

 

Chalkitup

[manicblonde]

AWWWW thank you

[MilkTrayMan]

...I dont know how to go about doing a link?

A link to show manicblonde 'How to do links etc'...

...

[manicblonde]

Thanks Milky!!

[MilkTrayMan]

NO need to Thank ME mancicblonde...

...Thank Bookworm instead...

 

Although, she STILL hasn't forgiven lickle ol' me for my comments in THIS Thread yet!...

 

 

...

[Having_A_Knightmare]

I have just been informed by Trading Standards that under the Magistrates Act 1980 section 127 if the creditor is not reported within 6 months of the offence happening to T/S they can not take the creditor to Court and do no more to help.

127.

Limitation of time.

— (1) Except as otherwise expressly provided by any enactment and subject to subsection (2) below, a magistrates’ court shall not try an information or hear a complaint unless the information was laid, or the complaint made, within 6 months from the time when the offence was committed, or the matter of complaint arose.

 

[MAGDA]

Quote:

Originally Posted by Curlyben

Under SI 1983/1553 the prescribed terms MUST be within the signature document to be valid, having them on a seperate sheet headed T&C or similar ISN'T acceptable.

Quote:

SI 1983/1553 (6 Signing of agreement) which states that the prescribed terms MUST be within the signature document. (Column 2 schedule 6)

This applies to all agreements pre May 2005.

So basically this is unenforceable, under 127(3).

 

Just to add to my comments re terms witin signature doc.

This was covered off in Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

 

Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated

consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting

the provisions of the two schedules the Judge said

Quote:

33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the

agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and

backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be

orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated.

As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and

the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which

are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the

minimum terms) are to be found in Schedule 1.

 

I have noticed that a lot of crediors are sending application forms without the prescribed terms (Barclays, I believe, sold a lot of their debts on for the very reason that their old agreements are basically applications and poor quality applications at that) together with terms and conditions attached which they then pass off as enforceable agreements. Even if the terms and conditions are those in force at that time, surely the fact that the prescribed terms aren't in the signature doc,should make the 'agreement' unenforceable. Some of the applications do refer to an overleaf supposedly containing the terms, but there is no absolute way of knowing whether the additional documents sent by the creditor do in fact form part of the original agreement and even if they do, if you are signing a document, for example in a store, you tend to notice the facts contained within the actual page you are signing, but not necessarily those contained (often in small print) on the reverse. I know this subject has been discussed a lot on this thread, but I think there is still a lot of confusion about it, especially now, when more and more creditors are adamant that an application, as long as it has the terms attached, is an enforceable agreement. Magda

[manicblonde]

Hi MB,

 

can you start your own thread and post a link back here to it - makes it easier if you have a seperate thread

 

Also - do you have the ability to scan the documents and post them here (via photobucket.com or similar) ?

 

That way we can properly advise you having seen the actual agreements

 

 

I have the documents here but cant get them online as per my thread. Can I PM them to somebody to see if its worth me writing back to Barclays please?:-?

[MAGDA]

Re: post 11709 above , I now have a problem with an Agreement from GE Money and would be grateful if someone could have a look.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/139782-ge-money-problem.html#post1487934

 

Thanks, Magda

[un1boy]

I have just been informed by Trading Standards that under the Magistrates Act 1980 section 127 if the creditor is not reported within 6 months of the offence happening to T/S they can not take the creditor to Court and do no more to help.

 

 

127.

Limitation of time.

— (1) Except as otherwise expressly provided by any enactment and subject to subsection (2) below, a magistrates’ court shall not try an information or hear a complaint unless the information was laid, or the complaint made, within 6 months from the time when the offence was committed, or the matter of complaint arose.

 

 

I'm surprised - surely it's 6 months after it being known?

 

or the matter of complaint arose.

 

Also, is it definitely the magistrates court they'd get taken to? Surely it's the commercial court?

[Having_A_Knightmare]

Uni

 

They just dont care and totally not interested.

HAK

[SteveH2508]

I'm surprised - surely it's 6 months after it being known?

 

 

 

Also, is it definitely the magistrates court they'd get taken to? Surely it's the commercial court?

 

Definitely the magistrate's court - it is a summary criminal offence.

[gh2008]

I have just been informed by Trading Standards that under the Magistrates Act 1980 section 127 if the creditor is not reported within 6 months of the offence happening to T/S they can not take the creditor to Court and do no more to help.

127.

Limitation of time.

— (1) Except as otherwise expressly provided by any enactment and subject to subsection (2) below, a magistrates’ court shall not try an information or hear a complaint unless the information was laid, or the complaint made, within 6 months from the time when the offence was committed, or the matter of complaint arose.

 

 

Not that TS seem to do a lot anyway, but if the 6 months is up, just send another request and the DCA or OC will commit a further offence

[car2403]

Not that TS seem to do a lot anyway, but if the 6 months is up, just send another request and the DCA or OC will commit a further offence

 

To be fair, I can't see that working, as there is no break in the line of causality between the actus reus and the mens rea of the offence - the limitiation clause is clearly aimed at both, (otherwise it wouldn't be a criminal offence) so the Magistrates' Court is likely to find that the original default (the actus reus) still existed at the point of the subsequent request - and the mens rea of the office is no different in either case anyway, so its arguably one offence, not two.

 

There is an argument that they commit a second, concurrent offence, under the Act, but that's probably also irrelevant for the same reasons.

 

Unless we see the OFT bringing public prosecutions, or we find someone so eccentric and rich that they do it themselves, this is all a moot and very theoretical area of discussion anyway.

 

Just as a civil Judge doesn't fully understand the Consumer Credit area of law, a Magistrate (or, rather, a Magistrates' Clerk) is also going to suffer the same challenges. This is why bringing this action is so dangerous, as the outcome is less than certain, the evidential burden is so much higher and the potential costs involved make it all an inconcievable practise. (I may have just explained why the OFT won't take action, but that wasn't my intention - honest!)

 

[MilkTrayMan]

I have just been informed by Trading Standards that under the Magistrates Act 1980 section 127 if the creditor is not reported within 6 months of the offence happening to T/S they can not take the creditor to Court and do no more to help.

 

 

127.

Limitation of time.

— (1) Except as otherwise expressly provided by any enactment and subject to subsection (2) below, a magistrates’ court shall not try an information or hear a complaint unless the information was laid, or the complaint made, within 6 months from the time when the offence was committed, or the matter of complaint arose.

I'm surprised - surely it's 6 months after it being known?...

MY initial thoughts about s127 exactly un1boy (...without much previous in depth research, of my own, on the criminal aspect of the failure to comply with a CCA 1974 Request I might add!... ).

 

However HAK...

 

Could NOT the Limitations Act 1980 ALSO said to apply??

...With special attention drawn to s32...

32.

Postponement of limitation period in case of fraud, concealment or mistake.

— (1) Subject to [F1 subsection (3)] [ F1 subsections (3) and (4A)] below, where in the case of any action for which a period of limitation is prescribed by this Act, either—

(a)

the action is based upon the fraud of the defendant; or

 

(b)

any fact relevant to the plaintiff’s right of action has been deliberately concealed from him by the defendant; or

 

©

the action is for relief from the consequences of a mistake;

 

 

the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it.

 

References in this subsection to the defendant include references to the defendant’s agent and to any person through whom the defendant claims and his agent.

 

(2) For the purposes of subsection (1) above, deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty.

 

(3) Nothing in this section shall enable any action—

(a)

to recover, or recover the value of, any property; or

 

(b)

to enforce any charge against, or set aside any transaction affecting, any property;

 

 

to be brought against the purchaser of the property or any person claiming through him in any case where the property has been purchased for valuable consideration by an innocent third party since the fraud or concealment or (as the case may be) the transaction in which the mistake was made took place.

 

(4) A purchaser is an innocent third party for the purposes of this section—

(a)

in the case of fraud or concealment of any fact relevant to the plaintiff’s right of action, if he was not a party to the fraud or (as the case may be) to the concealment of that fact and did not at the time of the purchase know or have reason to believe that the fraud or concealment had taken place; and

 

(b)

in the case of mistake, if he did not at that time of the purchase know or have reason to believe that the mistake had been made.

 

 

[F2 (4A) Subsection (1) above shall not apply in relation to the time limit prescribed by section 11A(3) of this Act or in relation to that time limit as applied by virtue of section 12(1) of this Act.]

 

[F3 (5) Sections 14A and 14B of this Act shall not apply to any action to which subsection (1)(b) above applies (and accordingly the period of limitation referred to in that subsection, in any case to which either of those sections would otherwise apply, is the period applicable under section 2 of this Act).]

...Or is the Magistrates Act 1980 specifically designed for Criminal Offences + the Limitations Act 1980 ONLY applicable for County Courts??...Methinks NOT.

 

 

...