Cap1 & CCA return

[pudsey7]

Thanks Peter. Sorry for asking so many questions on this. When they provide the the S.A.R this will detail all letters, phone calls etc?

 

Would it not be up to them to prove that they did supply me with a copy 7 days before signing as opposed to me proving that I did not get a copy before signing?

 

Thanks

[MAGDA]

Hi, if an additional loan amount is borrowed and the amount includes settlement of the exisiting loan amount still outstanding, should the credit agreement show the details relating to the settlement part of the loan, e.g., if you are borrowing a total amount of £10,000, clearing the existing loan of say £8,000, with an actaul advance of £2,000, should there be a full break down to show this. Or, is it acceptable for a loan agreement to state amount of loan, i.e., £10,000, interest for example, £2053 and total amount payable figure only, with no actual details of the settlement and would this make the agreement unenforceable. Many thanks, Magda

[Redletter]

Did this argument ever get settled/proven?

Is section 85 reference to replacement cards and new agreements enough to render an agreement unenforceable????

[pudsey7]

Hi,

 

Good question Magda. I would love to know the answer to this one also. Also, can anyone advise if you get a copy of your CCA when you do a SAR or do you have to put this in a different request?

 

Thanks

[MAGDA]

Hi,

 

Good question Magda. I would love to know the answer to this one also. Also, can anyone advise if you get a copy of your CCA when you do a SAR or do you have to put this in a different request?

 

Thanks

 

Hi Pudsey, I think you should get a copy of your CCA when you do a SAR, as they should send everything that they have relating to the account, including letters, telephone calls, etc. Most people tend to do the CCA request first as the SAR costs £10, which if you have a lot of creditors, works out to be pretty expensive doesn't it. Magda

[pudsey7]

Thanks Magda. That's what I thought but just wanted to double check. I really have no clue when it comes to this sort of thing.

[lexis200]

You really want to make sure that you specifically request it though (ie - any and all original contracts, including any historic terms relating to said contracts) otherwise they may well choose not to include it.

 

I've started SAR'ing first now, as you end up having to do it anyway for the most part. My thinking is that if you ask for the agreement within an SAR it's not so likely to raise too many red flags - after all, usually the SAR is used for getting charges back, so they are more likely to assume that's what you're up to. As such, you're more likely (in my mind anyway) to be sent what they actually have for an agreement.

 

My issue with doing it the other way around is that if they are so inclined, they are more likely/able to doctor an agreement for a CCA. If you ask for this first, you may find you just get a copy of the same dodgy thing for your SAR, which is what I think has happened with MBNA. It looks like they've pasted on terms, but copied the same thing for the SAR (very big no-no if they have, but I'd have to prove it).

 

So, I've requested the agreement within a load of other stuff in an SAR. I'll give them until the end of the 40 days, or when it arrives, then CCA them if what I have doesn't have prescribed terms or a sig. If one then turns up that is different to the SAR they're in a bit of a pickle.

 

Well that's how I'm hoping it'll work anyway!

[basa48]

Did this argument ever get settled/proven?

Is section 85 reference to replacement cards and new agreements enough to render an agreement unenforceable????

 

Even though s85 specifically states that a new CCA is required every time a new card is issued, I cannot ever remember seeing one. Unless the usual cardboard/paper folder they come in counts.

 

If not I can't imagine there is a card agreement out there that IS enforceable !!

[Muffintop]

creditor=lender - I'm a bit confused by teh question. But, no, no-one has to give a copy of an agreement 7 days before signing.

 

Under the CCA 1974, if a request for a copy of the agreement, etc, is not complied with within the statutory period (12 days), then the creditor is in default and "he is not entitled, while the default continues, to enforce the agreement". For fixed-sum loans it is in s77(4) and for rolling-credit accounts, it is s78(6).

 

In both of those sections, it also says that, if the default continues for a month, the creditor commits an offence. However, this only applies to agreements signed before January 2007 when the Consumer Credit Act 2006 came in to force which repealed that provision.

 

Steven, what offence has been committed? I thought the offence part was dropped in May 08 with new legislation... (this is what I was advised by trading standards who are investigating my complaint re not receiving cca)

This is the problem I am going round and round with.. if the creditor THINKS he has complied with sec 77/78 in sending what he BELIEVES is a true copy (even though its tutt and sometimes just t & c's, not even from when acc was opened) then the creditor will not accept that the account is in their eyes in DISPUTE. If you then want to get your credit file sorted out the cra will not change the entry without say so of the creditor who are prob in cahoots with them anywayz, infact as experienced cagger did whole sticky on defaults and how to get them removed, he stated that one was owned by a well known creditor. Anyway it seems to me that the only way to really get a bad mark on your file taken off is to go to court and hope you win with getting the default removed.

The best I managed was to place a notice of correction on my file for the moment.. I am exactly in this frustrating position and am complaining to fos for all it will do. Saw there had been a good letter re this a while back by Car who appears to be very knowledgeable on this area.

[basa48]

...........Saw there had been a good letter re this a while back by Car who appears to be very knowledgeable on this area.

 

I wish you could find that letter. Might be very useful.

[Needabreak]

Possible alternative angle where the Agreement, Default Notice and Termination are all OK?

 

Under section 85 of the CCA, the creditor has to send out a copy of the executed agreement and associated terms and conditions upon the issue of a new credit token or they go into default until this is rectified.

 

Assuming they did not rectify it, they then go ahead some months later to issue a default notice and terminate the account, issue court papers etc.

Assuming the DN issued was a valid one (correct in every detail and 14 clear days allowed) and they have terminated the account, this would have been done whilst the account was still in default as per the section 85 breach.

 

This would constitute an unlawful rescission of contract? And as it had been terminated whilst in default, could only be reinstated by agreement of both parties.

 

Even if they had an enforceable agreement in the first place, but did not sent a copy out with the issue of the replacement credit card.

 

If the agreement was an on-line agreement, I put the argument forward that it would be easy to prove the fact whether the agreement was sent with the card re issue to satisfy section 85, as the security systems in place to protect the integrity of the data would have shown an access to the data and print out of the agreement to send with the card.

 

If the creditor uses the argument that the agreement was sent but could not prove any record of it, we could challenge the whole point of the online process being flawed as to it’s integrity, and then how could they prove the tick in the box was indeed who’s they say it is.

 

Just some thoughts but Can anyone build upon or comment on this.

[Needabreak]

Before I go to bed, I remember reading somewhere in here or the various versions of the CCA and OFT documents...

 

...that in the prescribed terms, where an APR is to vary in the first 3 years of the agreement, then the highest APR should then be shown.

 

If I'm correct, say you took out a Balance transfer for 0% for say 9 Months, then you would go onto say 15.9% (where 15.9% would be the APR in the terms) What about if before the first 3 years were up, the Creditor put you on say 34.9% (as certain companies do as we all know!)

 

Surely the 34.9% should have been in the original prescribed terms. I would say this would be very important, as who would have taken the card out knowing this!!

 

This would make the prescribed terms incorrect and possibly render the whole agreement unenforceable??

 

Please somebody check this, my mind has been working overtime and may have burn't out:|

[car2403]

Even though s85 specifically states that a new CCA is required every time a new card is issued, I cannot ever remember seeing one. Unless the usual cardboard/paper folder they come in counts.

 

If not I can't imagine there is a card agreement out there that IS enforceable !!

 

It does state that and the debt is unenforceable if they didn't comply until they do. There are plenty of threads around (admittedly older than most, as already pointed out before) showing this process in action.

 

The issue is that creditors don't take this obligation seriously and consumers don't know their rights, so can't look out for themselves. In comes CAG to educate all - creditors included...

[pudsey7]

Bumping Magda and my last question's

 

Thanks

[pussycatdoll]

Clarification on Invalid Default notices

 

I have several default notices all invalid in different ways.

 

What I need to know is where does the creditor stand legally with an invalid default notice and what position of strength do I have.

 

I haven't come across a thread that goes through this in detail - if there is one can somebody point me to it please.

[Number6]

There's an awful lot of information to assimilate and cross reference as a result of this thread.

 

Maybe we could do with some sort of sticky that lays out all of the salient points relating to agreements and CCA requests, etc? Or maybe there is one already?

 

Any thoughts?

[underdog13]

Clarification on Invalid Default notices

 

I have several default notices all invalid in different ways.

 

What I need to know is where does the creditor stand legally with an invalid default notice and what position of strength do I have.

 

I haven't come across a thread that goes through this in detail - if there is one can somebody point me to it please.

 

Have you read x20's thread - The tale of a dodgy DN?

[willy2006]

I got three defaults removed just by persistance and making a nuisance of myself the last one from MBNA has took 3years of arguing.I feel you are very much on your own and are usually refered to ICO who i feel wont answer your questions directly even if you know your right ICO wont agree.

[Peterbard]

Steven, what offence has been committed? I thought the offence part was dropped in May 08 with new legislation

... (this is what I was advised by trading standards who are investigating my complaint re not receiving cca)

This is the problem I am going round and round with.. if the creditor THINKS he has complied with sec 77/78 in sending what he BELIEVES is a true copy (even though its tutt and sometimes just t & c's, not even from when acc was opened) then the creditor will not accept that the account is in their eyes in DISPUTE. If you then want to get your credit file sorted out the cra will not change the entry without say so of the creditor who are prob in cahoots with them anywayz, infact as experienced cagger did whole sticky on defaults and how to get them removed, he stated that one was owned by a well known creditor. Anyway it seems to me that the only way to really get a bad mark on your file taken off is to go to court and hope you win with getting the default removed.

The best I managed was to place a notice of correction on my file for the moment.. I am exactly in this frustrating position and am complaining to fos for all it will do. Saw there had been a good letter re this a while back by Car who appears to be very knowledgeable on this area.

 

 

Hi see my earlier post 14359

Edited March 11, 2009 by Dodgeball

[Peterbard]

Clarification on Invalid Default notices

 

I have several default notices all invalid in different ways.

 

What I need to know is where does the creditor stand legally with an invalid default notice and what position of strength do I have.

 

I haven't come across a thread that goes through this in detail - if there is one can somebody point me to it please.

 

 

Hi

 

Bassicaly the act says that a default notice is required to be given in the prescribed form in a prescribeed period(14 says i think now)before any further action can be taken.

 

I have used the noe isuance of a valid notice in the past in order to get judgements set asside and i know many on here that have used this to great effect.

 

 

Regards

Peter

[MAGDA]

Bumping Magda and my last question's

 

Thanks

 

Thanks Pudsey, doesn't look as if there are many takers on this one:)

 

Magda

[pudsey7]

Peterbard is online. I am sure that he will have some helpful advice for us??

[underdog13]

"yes" it would be enforceable in court.

 

Errm, wouldn't the application form also need to contain all the prescribed terms to be enforceable, not just the debtor's signature?

[MAGDA]

Peterbard is online. I am sure that he will have some helpful advice for us??

 

Hi Pudsey, I'm sure they must need to show the details of the previous loan settlement which is then incorporated into the new loan, otherwise how could you possibly agree with the figure they have put foward. Will try to find out a bit more about this and let you know if I find anything definite out. Magda

[cab1ne]

Errm, wouldn't the application form also need to contain all the prescribed terms to be enforceable, not just the debtor's signature?

with the debtors signature a court could enforce

without the debtors signature a court could not enforce