Cap1 & CCA return

[Guest The Terminator]

I wonder if this applies to internet only accounts - because they have their T & C's on the site, so could they just "alert" you to the site in the agreement?

 

I'm sure I read or heard somewhere that Cahoot tried this and it was struck out of court.I'll have a look and see if I can find it.

[InKogneeToh]

Yeah, I know what you mean.

 

The only worrying thing stemming from this judgement in my opinion is the fact that it took so much judicial input to interpret just one aspect of the CCA!

 

If the judicial system has to comb through it like a forensic investigation then what chance do we poor mortals have of understanding what it really means!

 

Regards, Pam

[ladybird17]

Terminator - I'd love to find the info on Cahoot -I just had a claim blocked as I quoted from the printed T & C's they sent me when I first started the loan - but these had been superceded by loads of amendments which they inform you about via "secure messaging" on your Account page online. I do read these messages, but quite frankly,I don't remember a lot of them.

[InKogneeToh]

ISection 55

55 Disclosure of information

 

(1) Regulations may require specified information to be disclosed in the

prescribed manner to the debtor or hirer before a regulated agreement is made.

 

(2) A regulated agreement is not properly executed unless regulations under

subsection (1) were complied with before the making of the agreement

 

Makes sense realy otherwise they could legaly alter the document after you had signed it.

This is also mentioned in the oft regs quoted earlier

Regards

Peter

 

Peter

 

I think this refers to prescribed information that may (for one reason or another) not be included in the main document. It doesn't say that the creditor must sign it before the borrower does. Different situations dictate who gets to sign it first and either way is okay.

 

I think section 62 was included to cover the risk of tampering:

 

62 Duty to supply copy of unexecuted agreement

 

(1) If the unexecuted agreement is presented personally to the debtor or hirer for his signature, but on the occasion when he signs it the document does not become an executed agreement, (i.e. creditor has not yet signed) a copy of it, and of any other document referred to in it, must be there and then delivered to him.

 

(2) If the unexecuted agreement (not yet signed by creditor)is sent to the debtor or hirer for his signature, a copy of it, and of any other document referred to in it, must be sent to him at the same time.

 

(3) A regulated agreement is not properly executed if the requirements of this section are not observed.

 

Regards, Pam

[Peterbard]

The COA cannot override a HL decision.

 

Hi Pam

 

Sorry the ternminator was right the COA did overturn the judjes decision.

 

The judge rejected Wilson’s first claim but reopened the agreement and

substituted a lower rate of interest, and Wilson subsequently redeemed her car on payment of £6,900. However, she then successfully appealed against the judge’s decision as to the enforceability of the agreement, the Court of Appeal holding that s 127(3) clearly and undoubtedly had the effect of preventing the enforcement of the

original agreement and Wilson was entitled to the repayment of the money she had paid to redeem her car

 

Sorry Pam

 

The debtor must be the last to sign otherwise how can he/she be sure what they are agreeing to. It's all there in the act and the regulations.

 

Also

Section127(3) stops enforcement of agreements not signed or not containg prescribed terms that is all it does.

 

 

Regards

Peter

[Peterbard]

The OFT doc. has an explanation of definitions of some terms in the Act and agreement is defined as:

 

the agreement is the document embodying the credit agreement.

 

‘Embodying’ is defined in the Consumer Credit Act:

 

‘A document embodies a provision if the provision is set

out either in the document itself or in another document

referred to in it’.???

"A document in the prescrbed form containing all the prescibed tems" Look up prescribed form and see if it refers to sepperate docs

Peter

 

Peter

[joneshousehold]

Right now can I just have a little recap (no not a night cap - it's too early).

 

If the creditor defaults under S77 to S79 that default only exists until the agreement in a form allowed by the Act is supplied. A default under S63 and S85 is the same.

 

If however there is an improperly executed agreement a court order is required to enforce the agreement under S65(1). If the agreement is a cancellable one and S62 or S63 (that's the requirement to send copies at the beginning) is not complied with then the courts are barred from granting an enforcement order. In all other cases the court will dismiss the application for an enforcement order (ie not grant the order) if they consider it just to do so.

 

(Incidentally a cancellable agreement seems to be very limited and I am not sure why most agreements say we have 7 days or a short period to cancel. I might need to research that bit further yet)

 

I think I may have misunderstood parts of the Act here. What in fact we are talking about is that if the creditor tries to recover a debt through the usual channels eg default notices and then attempt a CCJ, they run the risk of us challenging the action in view of the creditors offence. If they cannot supply a copy of the agreement the creditor will probably have trouble proving the debt in the first place and is likely to have remained in default under various sections that require a copy to be provided. A creditor with an agreement that can prove the existence would have to admit to an offence.

 

We are then relying on the fact that the default means that many of the creditors have not been able to charge interest and charges for some time and this amount will reduce or even wipe out the debt. Have I got that right?

[Mike220359]

Right now can I just have a little recap (no not a night cap - it's too early).

 

If the creditor defaults under S77 to S79 that default only exists until the agreement in a form allowed by the Act is supplied. A default under S63 and S85 is the same.

 

A default under 77, 78 & 85 exists after 14 days, after a further month they commit an offence even if the bank produces the documentation they have to go to court to enforce the original agreement.

 

If however there is an improperly executed agreement a court order is required to enforce the agreement under S65(1). If the agreement is a cancellable one and S62 or S63 (that's the requirement to send copies at the beginning) is not complied with then the courts are barred from granting an enforcement order. In all other cases the court will dismiss the application for an enforcement order (ie not grant the order) if they consider it just to do so.

 

(Incidentally a cancellable agreement seems to be very limited and I am not sure why most agreements say we have 7 days or a short period to cancel. I might need to research that bit further yet).

 

If I remember correctlly this was brought in to offset hard selling

 

I think I may have misunderstood parts of the Act here. What in fact we are talking about is that if the creditor tries to recover a debt through the usual channels eg default notices and then attempt a CCJ, they run the risk of us challenging the action in view of the creditors offence. If they cannot supply a copy of the agreement the creditor will probably have trouble proving the debt in the first place and is likely to have remained in default under various sections that require a copy to be provided. A creditor with an agreement that can prove the existence would have to admit to an offence.

 

Agreed

 

We are then relying on the fact that the default means that many of the creditors have not been able to charge interest and charges for some time and this amount will reduce or even wipe out the debt. Have I got that right?

 

Agreed

 

But remember all we are ensuring is that the Banks conform to the law, if that means that debt is cancelled so be it

Mike

[joneshousehold]

A default under 77, 78 & 85 exists after 14 days, after a further month they commit an offence even if the bank produces the documentation they have to go to court to enforce the original agreement.

 

Thanks for the quick reply Mike. What I can't find is the bit that says the creditor has to go to court to enforce an agreement in these circumstances. Can you help me?

[Mike220359]

Hi Somebody asked about section 59

 

I brought the subject up eralier but i have been busy with the Tribnunals and court bill issue.

Yes it reads to me like you cannot have a prospective aggreement so all those credit card appliations that are just agreements but are not considered to be executed when signed (because the creditor has not done your credit score) are void. Also it is not possibe to include the prescribed terms in the agreement so it is unenforceable anyway since they wil not have allocated your credit limit.

In other words treating an agreement as a appliation form is just as unacceptable as using an appliction form as an agreement.

 

Food for thought?

Needs more research but that is the idea.

Peter

 

I totally agree and this is a path that I am going down with three accounts that have been settled. The 1988 regulations on th content of agreements and the OFT guidlines are very prescriptive in what needs to be included in the content of agreements. Just because the sheet of paper that you sign is headed ''Agreement'' doesn't mean Jack if it doesn't contain the prescribed terms.

 

Three of my old creditors in accounts now closed and settled are squirming

because not only have they charged interest when they shouldn't have, added fees when they shouldn't have, but of equal importance disseminated my data and undertaken searches when they shouldn't have.

 

I think that this is the ticking time bomb that Tam & Term are thinking about, am I wrong lads!

 

Mike

[Mike220359]

Thanks for the quick reply Mike. What I can't find is the bit that says the creditor has to go to court to enforce an agreement in these circumstances. Can you help me?

 

No problem, it all centres around section 127 of the 1974 Act

 

Mike

[joneshousehold]

But doesn't S127 only apply to an improperly executed agreement under S65(1) and S61(1)?

[paulwlton]

But doesn't S127 only apply to an improperly executed agreement under S65(1) and S61(1)?

 

Worth a look it relates to the above sections.

 

House of Lords - Dimond (Original Appellant and Cross-Respondent) v. Lovell (Original Respondent and Cross-Appellant)

[paulwlton]

Barclaycard have sent a standard copy of their terms and conditions with an application form that is signed by myself only, i've had a good look through them both and as yet i can't see a credit limit, now as i understand it the omission of a prescribed term would make this agreement unenforceable.

[nuttybutty]

I've probably posted this in completely the wrong thread but here goes anyway...and it's yet another gripe over Intelligent Finance and all associated companies.

 

I took out a loan with IF over two years ago, making the required repayments through direct debit. Since then, though, I started to face financial difficulty and contacted IF about the possibility of reducing my payments by stopping the monthly insurance premium. They said they couldn't do that but suggested rescheduling my loan would be a good option, to which I agreed. They then cancelled my original agreement, along with the direct debit (although they later insisted that I was the one who'd cancelled. My bank confirmed that it was actually them who'd cancelled - IF later admitting they had stopped the direct debits). IF then started the process of setting up the new loan agreement. After a little bit of thought I decided this wasn't actually the option I needed so phoned them back and came to an agreement to pay £250 per month for the next three months, after which time another department would contact me and we'd set up a more permanent repayment scheme.

 

Three months came and went and as I'd heard nothing I wrote a letter asking for clarification of where I stood, whether it was possible to carry on paying £250 per month, how much I owed and could I have a written agreement. I heard nothing for two weeks so I sent another letter asking for a response. Still nothing so I managed to track down a number and phoned them. They said they'd be back in touch...but you've guessed it NOTHING.

 

So another letter went off, but this time I sent a cheque for £100 instead of £250 as my financial situation was becoming even harder. Yet again I explained my situation and asked if this was acceptable. I noticed that a few days later the cheque had been cashed but still no return correspondence from them.

 

Over a period of 3-4 months I've been bombarded with an 0870 number (which after doing a Google search seems to relate to IF/HBOS), a number of which I've answered and they've all been silent. I now refuse to answer them, partially because if I did speak to someone then what proof would I have of what might be said in a conversation. I've indicated this in a couple of the letters I've sent. If you try to ring this number back it gives you absolutely no indication of who has called because it's a pretty basic answering machine message.

 

Then I got a letter from J & J Collections saying that I'd defaulted. A while later I received another letter - this time a litigation one from Blair, Oliver & Scott saying unless I made contact with them they'd take me to court. They said I owed just under £12,000 and that I either need to pay that amount in full or come to an agreement on repayments.

 

I sent a return letter to BOS over two weeks ago explaining my position, and mentioned that I'd sent a complaint letter to IF/HBOS stating that I had made efforts to sort out my situation but that the result was one way communication and that they'd treated me with utter disrespect.

 

Then a few days ago I actually received a letter from IF/HBOS asking me to provide more detail of my complaint as the only thing they'd received from me was a covering letter I'd just sent them (which I hasten to add was sent recorded delivery). That means they've lost duplicates of the 19 previous pieces of correspondence which were included in the envelope, and supposedly they have no record of any of the original correspondence I'd sent.

 

So last Friday I sent another full set of duplicates by recorded delivery and none of it has arrived (even though it should have done by now).

 

Just to add to the confusion I contacted the NatWest last week as my original direct debits were paid out of the bank account I have with them and the bloke I spoke to could find no reference to any loan repayments to IF/HBOS. This may have just been an oversight on his part but it is something I will need to check up on.

 

Sorry this has become a long winded posting and tends to jump around a bit but I am becoming so infuriated by the whole fiasco and just don't know what to do next. I would be grateful for any advice or information from others who may have been in a similar situation.

 

Cheers,

 

Jon

[zubo]

Nutty

 

Its kinda in the right thread for now I'm sure a moderator will move it so that you can start your own thread.

 

You will find umpteen examples where people are in exact same situation. First step is to send them IF a recorded letter stating that you are requesting a copy of your executed agreement as specified in Section 78 of the Consumer Credit Act 1974. They have 12 days to respond then they are in default, cannot charge interest - do nothing really.

Its late otherwise I would find a good example - look through this thread. Begin to understand what you expect. Insist also that all communications need to be in writing. oh - you need to send £1.

 

Next research other threads so that you can also submit a request for a SAR - a request under the Data Protection Act which for £10 entitles you to check for unlawful charges.

 

Get yourself organized, look at the FAQ and follow exactly the procedures layed down. Do not rush, research nobody can do anything whilst you are following due process.

 

gotta go, keep reading....

[InKogneeToh]

The COA cannot override a HL decision.

 

 

 

Sorry the ternminator was right the COA did overturn the judjes decision.

 

The judge rejected Wilson’s first claim but reopened the agreement and

substituted a lower rate of interest, and Wilson subsequently redeemed her car on payment of £6,900. However, she then successfully appealed against the judge’s decision as to the enforceability of the agreement, the Court of Appeal holding that s 127(3) clearly and undoubtedly had the effect of preventing the enforcement of the

original agreement and Wilson was entitled to the repayment of the money she had paid to redeem her car

 

 

Hi Peter

 

The COA allowed Wilson's appeal against the judgement of the 1st instance judge (who had declared the agreement enforceable).

 

However, the COA also made a Declaration of Incompatabiity between s127(3) and the Human Rights Act because the lenders rights were effectively extinguished by the application of that section.

 

This then went to the House of Lords where the Secretary of State was joined to the proceedings. The House of Lords declared that s127(3) was not incompatible with the HRA and that Wilson was entitled to the judgment made by the COA.

 

The Terminator said:

 

I'm aware that it was overturned by the House of Lords in 2003 on appeal by the SOS.It was brought back to the COA in 2005 and again they allowed Wilson's appeal.

 

This is not correct. The HL did not overturn the COA judgement. It dealt with the HRA issue and decided this in Wilson's favour.

 

The HL is the highest judicial court in the UK and could never be overruled by the COA.

 

 

The debtor must be the last to sign otherwise how can he/she be sure what they are agreeing to. It's all there in the act and the regulations.

 

Regards

Peter

 

The debtor does not have to be the last to sign -many agreements are signed by the debtor first. This is why s62 was included - so that a debtor is always given a copy of the unexecuted agreement before it is signed by the creditor. This is to ensure the debtor holds a copy of the actual agreement he signed.

 

S63, on the other hand, deals with the situation where a creditor has signed first.

 

Regards, Pam

[joneshousehold]

Can anyone help me with post #1675 above please?

[Mike220359]

Barclaycard have sent a standard copy of their terms and conditions with an application form that is signed by myself only, i've had a good look through them both and as yet i can't see a credit limit, now as i understand it the omission of a prescribed term would make this agreement unenforceable.

 

spot on

[Mike220359]

Can anyone help me with post #1675 above please?

 

Sorry mate you are absolutley right about 127, trying to concentrate on this whilst my daughter is shouting in my luggole that she wants to get her car insurance sorted out!

 

SEctions 77, 78 & 85 all tell you that an agreemnet is unenforceable when banks are in default. By extension, and my experience, when an agreement is not in existance the factors that the banks are allowed to apply, interst, charges and sending your data to CRAs are all voided also.

 

It takes a judge to turn it around, simply as that really.

 

Mike

[paulwlton]

As anyone got a link to the Consumer Credit Act Regulations 1983.

[m55dlc]

Nutty

 

Its kinda in the right thread for now I'm sure a moderator will move it so that you can start your own thread.

 

You will find umpteen examples where people are in exact same situation. First step is to send them IF a recorded letter stating that you are requesting a copy of your executed agreement as specified in Section 78 of the Consumer Credit Act 1974. They have 12 days to respond then they are in default, cannot charge interest - do nothing really.

Its late otherwise I would find a good example - look through this thread. Begin to understand what you expect. Insist also that all communications need to be in writing. oh - you need to send £1.

 

Next research other threads so that you can also submit a request for a S.A.R - (Subject Access Request) - a request under the Data Protection Act which for £10 entitles you to check for unlawful charges.

 

Get yourself organized, look at the FAQ and follow exactly the procedures layed down. Do not rush, research nobody can do anything whilst you are following due process.

 

gotta go, keep reading....

 

Nutty / Zubo

 

If this is a loan, shouldn't the request be under s77 and not s78? Section 77 is for loans and 78 is revolving credit agreements (i.e. credit / store cards?)

[Peterbard]

default under 77, 78 & 85 exists after 14 days, after a further month they commit an offence even if the bank produces the documentation they have to go to court to enforce the original agreement

Hi

Again where does it say that a bank needs an has to go to court to be able to enforce the doc when it is produced late.In the 77 it just says the agreement cannot be persued whilst the account is in default once it is presented there is no default.

 

Peter

[FANTASY CHARGES]

As anyone got a link to the Consumer Credit Act Regulations 1983.

 

please ignore me the link is back thanks tamadus

[Peterbard]

As anyone got a link to the Consumer Credit Act Regulations 1983.

 

HI Paul

 

Tam has a copy .I have a copy of 1557 but i would have to email yu with it.

 

Peter