Cap1 & CCA return

[m55dlc]

Who's talking jibberish??

 

This is what I said, now with further explanation!! -

 

A CCA agreement becomes unenforceable in some situations were it has been improperly executed not unexecuted! (i.e. the term for an agreement that does not contain all that it should is 'improperly executed' NOT 'unexecuted' ...... 'unexecuted' means not made)

 

If it is unenforceable then the lender cannot force you to pay but the debt still exists and so does your consent to sharing data - the agreement is not void or unlawful - it is still an agreement. If the creditor has a copy of this agreement then he can lawfully say he has a legitimate interest in it. (i.e. If the creditor has a copy of an 'improperly executed' agreement - it may be unenforceable but it is still valid and lawful and so the creditor has a legitimate interest in it).

 

Is that a bit clearer. :grin:

 

Regards, Pam

 

And that is exactly what I have been argueing since Friday Pam! Thanks for the eloquance. Unfortunately my arguement style can be abrupt and a little bit arrogant and uses a bit of bullying - but I'm kind of hoping that will be a plus in court

[ladybird17]

oh dear m55, abrupt...? aggressive....? bully....? you've shattered my illusions! But the rapping makes sense now.;-)

[Guest Battleaxe]

Has anyone seen a mailer yet? I am still chomping at the bit to get my letter off to MBNA regarding this.

 

M55 have you cleaned up your letter yet? LOL.

[m55dlc]

M55 have you cleaned up your letter yet? LOL.

 

No, but I will do today at work and I'll let you see it then

[joneshousehold]

From an accounting point of view a debt that is not recoverable is not an asset and has to be written off in the accounts. That means then that the creditor has to take some action to remove the debt from the books. If they no longer have the debt on the books would they be in a position to process the data irrespective of whether thay have the right? I am just thinking that the banks are often large organisations and to take a debt off the books but keep the information notified to a CRA may take a bit of organising

[Smoothy]

Ok the weekends over, I shall try to put my thinking head on.

I agree with you Pam and M55dlc..in that if they had documented proof that there is a debt, then they have the right to disclose data as they have a legitimate interest in doing so.

My scenario is that I have an alleged creditor who has registered a default and continually updates the CRA with an amount they say I owe. But they have failed to provide proof of this debt, despite repeated requests.

They have since written and confirmed that they are no longer persuing this matter. So what right have they to process my data!

Its their word against mine that I owe them money. They cant prove it or provide evidence that I gave my consent to share data.

Im not trying to defraud anyone, but unless they can prove that this debt exists, surely they have no right to process my data or chase me for a debt which I refute?

[m55dlc]

Ok the weekends over, I shall try to put my thinking head on.

I agree with you Pam and M55dlc..in that if they had documented proof that there is a debt, then they have the right to disclose data as they have a legitimate interest in doing so.

My scenario is that I have an alleged creditor who has registered a default and continually updates the CRA with an amount they say I owe. But they have failed to provide proof of this debt, despite repeated requests.

 

Have they failed to fulfil s77/8 requests and a SAR? If so, go get em!

 

 

They have since written and confirmed that they are no longer persuing this matter. So what right have they to process my data!

 

They have the right as previously argued (to death) if they can prove it! We've already stated what they would need to do.

 

Its their word against mine that I owe them money. They cant prove it or provide evidence that I gave my consent to share data.

 

If that is the case the law would be on your side (that's MY opinion, though, OK?)

 

Im not trying to defraud anyone, but unless they can prove that this debt exists, surely they have no right to process my data or chase me for a debt which I refute?

 

Very true. You need to remember that there does need to be a sobering influence on the CAG and that if this thing was all one sided, we would be guilty of inciting many people from undertaking ill-conceived legal arguements to court. All I was trying to do was throw a large spanner into the works to make people slow down and take stock.

[Smoothy]

Have they failed to fulfil s77/8 requests and a SAR? If so, go get em!

Yes they did fail. Infact, they sent a letter back stating as they do not have an agreement, they will not persue the matter.

 

They have the right as previously argued (to death) if they can prove it! We've already stated what they would need to do.

So far they havnt proved a thing to me except their ability to screw up my credit with this default and amount owing.

 

If that is the case the law would be on your side (that's MY opinion, though, OK?)

 

I do appreciate and value your opinion, but seeing as they are refusing my request to stop processing and the default removal, I have to pray that a judge sees it the same way.

 

Very true. You need to remember that there does need to be a sobering influence on the CAG and that if this thing was all one sided, we would be guilty of inciting many people from undertaking ill-conceived legal arguements to court. All I was trying to do was throw a large spanner into the works to make people slow down and take stock.

I agree totally.

[Guest Battleaxe]

Smoothy, Have your reported to the ICO? They have the power to stop this.

[Peterbard]

Do you pay for it up front? I thought it was in arrears? I make a phone call and am billed for it?

 

HI Uni

Must admit iwas thinking of prepay sims.

But

 

Sime in phones that are on contrct use the sills as identifiers and have no intrinsic credit value inbuilt. Thay tell the phone company who to bill for the phone calls. They i don't think are crdit tokens in themselves the phone calls made are taken from the credit at the source (the phone company and you usually pay for that in advance anyway.

Phone contracts being a consumer hire product are covered by the distance selling regs which do not come under the ospices of the CCa.

This is why they give you a free phone because if they sold it you on credit then they would have to regulated by cca1974.

 

Peter

[Smoothy]

AHHH...that would be my next question!!!

I take it the cauldron is working today then!!!

My next stage was to ask who do i complain to and in what manner quoting legal refs etc!

[Peterbard]

i.e. If the creditor has a copy of an 'improperly executed' agreement - it may be unenforceable but it is still valid and lawful and so the creditor has a legitimate interest in it).

 

NO It is not.

 

Peter

[JonCris]

m55 So what! If the money lenders lose money because they haven't played with the rules sobeit. They don't have any consideration of fair play when it comes to ripping off their customers.

 

Pam & the rest please forgive me but I think your ALL missing the point

 

What happened to Wilson was a result of the judgement & not the cause.

Your reading the consequences & not what their Lordships said which is much farther reaching than just this one case.

 

What they are saying is that a controlled agreement is unenforceable if the lender fails to comply IN ANY WAY with the CCA 1974 & that includes the many technicalities which may be breached.

 

They not only have to comply with the spirit of the law but also to the letter of the law. They have no wriggle room & that is why this government, to their everlasting shame, are removing s127 from the 2006 act

[Guest Battleaxe]

AHHH...that would be my next question!!!

I take it the cauldron is working today then!!!

My next stage was to ask who do i complain to and in what manner quoting legal refs etc!

 

 

Smoothy,

 

You can do this on line. You just fill the form in, you don't need to quote any legislation. If you have everything stored on your computer, just zipo it up and you can attach the lot to you compliant. You might be asked to provide your credit file, this is not a biggy at £2.00 a throw, but the ICo will ask for this if they want it. If you have all your letters from the alleged creditor and DCA and whatever else these will need to be provided also, scan them in to your computer and zip them up or alternatively pohotocopy the lot and post it off. So simple.

[bally35]

Am reclaiming PPI which was missold to me and got the blah de blah (no we

Now I know this thread should really be about PPI, but noone seems able to answer this question.

I received final response yesterday, 19/02/07 (after being assured that final response would be forwarded by 14/02/07).

However on Saturday I was taking a wee look over the original loan agreement which states frst payment will begin on 13th Feb 2003"being at least one month after the loan has been drawn down".Payment did START ON 13TH Feb 03 and has continued in line with that date.

My point here is that the loan was only drawn down on 21st January 03 and the agreement signed by myself and husband on 16/01/03.

By my estimation this has broken the Consumer Credit Act which allows me to cancel the agreement within 30days without having to pay interest.

I feel that further contravenes the Acts method of calculating interest i.e on a monthly basis as I was still in Month 0 .

I just want to know if I am correct in this and if that will give me much of a sway when I can prove in court that the entire loan was mis managed from the start

Have just found the relevant section on the CCA, Does this mean that all of my loan is uneforceable ?(have always paid and on time)

71 Cancellation: repayment of credit

 

(1) Notwithstanding the cancellation of a regulated consumer credit agreement, other than a debtor-creditor-supplier agreement for restricted-use credit, the agreement shall continue in force so far as it relates to repayment of credit and payment of interest.

 

(2) If, following the cancellation of a regulated consumer credit agreement, the debtor repays the whole or a portion of a credit—

 

(a) before the expiry of one month following service of the notice of cancellation, or

 

(b) in the case of a credit repayable by instalments, before the date on which the first instalment is due,

 

no interest shall be payable on the amount repaid.

 

(3) If the whole of a credit repayable by instalments is not repaid on or before the date specified in subsection (2) (b), the debtor shall not be liable to repay any of the credit except on receipt of a request in writing in the prescribed form, signed by or on behalf of the creditor, stating the amounts of the remaining instalments (recalculated by the creditor as nearly as may be in accordance with the agreement and without extending the repayment period), but excluding any sum other than principal and interest

[Peterbard]

.e. If the creditor has a copy of an 'improperly executed' agreement - it may be unenforceable but it is still valid and lawful and so the creditor has a legitimate interest in it).

 

I can't believe i am arguing this but

 

If an agreement is not signedit is not properly executed are yu saying that various parts of that agreement are stil valid.

 

 

Peter

[Peterbard]

HI Bally

 

Did you sign the agreenment on or off the traders premisses.

Peter

[Peterbard]

Methinks you need less!! -and a good read of Wilson v FCT

Reaf it difference is i understand it.

Peter

[m55dlc]

.e. If the creditor has a copy of an 'improperly executed' agreement - it may be unenforceable but it is still valid and lawful and so the creditor has a legitimate interest in it).

 

I can't believe i am arguing this but

 

If an agreement is not signedit is not properly executed are yu saying that various parts of that agreement are stil valid.

 

 

Peter

 

Lets not go over this again Peter, but you're wrong. An agreement does not become unlawful just because it is not executed...

 

Do you agree?

 

If a card is issued against an unexecuted agreement and you use it, there is a contract..... (don't state ANYTHING that says AGREEMENT in your attempt to refute this bit. If you do you AUTOMATICALLY lose the arguement as you have MISSED the point).

 

Do you agree?

 

The lender has an interest then, OK? He is not, and I repeat NOT, referring to the AGREEMENT or ANY TERMS AND CONDITIONS when states that you owe him money and that the balance is outstanding.

 

That is as clear as it can be, nothing more, nothing less, no arguement. As you will see with my posts to Smoothy today, I am not being a stick in the mud and different circumstances will provoke different outcomes. Please, can everyone just accept this? It is not a CCA point, it is a DPA and is slightly off topic.

[Guest The Terminator]

Consumers hit by credit squeeze as debt spirals-Business-Industry Sectors-Banking & Finance-TimesOnline

 

Interesting article

[ladybird17]

ok guys, I am getting mighty confused now :-?

 

I sent off my CCA to a catalogue company, (part of JD Williams - I know Battleaxe is familiar with them!) This is what I got back

 

Thank you for your letter datedxxxxxxx

In relation to your request for a copy of the executed agreement under S78 of CCA, I would refer you to regulation 3 (2)(b) of the Consumer Credit (Cancellation Notices & Copies of Documents) Regulations 1983. In it you will see that there is no requirement to provide a photocopy of the agreement bearing your signature; it is sufficient that we supply details of the Terms & Conditions to which you have agreed. We are therefore enclsoing a copy of the type of Credit Agrement sent to you when you opened your account in February 2004. I also enclose a detailed staement of your account.

etc.

Now I picked holes in this left right & centre, but now I'm so confused with all the posts over the last few days that I can't think straight!

I think the debt I have to them still stands but is unenforceable - if I dispute it they can't do anything (default etc)because it's in dispute.

But now I don't know!

If, as I have requested, they refund my charges, then the debt is negligible (about £40 I think), but I would like to get this straight in my own mind before I embark on one with more at stake. So any comments greatfully received.

[bally35]

Hi Peter,

Off premises.

My huband was the only one who would have benfitted from PPI, and they made us take that in order to get loan.

.

[m55dlc]

Do you pay for it up front? I thought it was in arrears? I make a phone call and am billed for it?

 

HI Uni

Must admit iwas thinking of prepay sims.

But

 

Sime in phones that are on contrct use the sills as identifiers and have no intrinsic credit value inbuilt. Thay tell the phone company who to bill for the phone calls. They i don't think are crdit tokens in themselves the phone calls made are taken from the credit at the source (the phone company and you usually pay for that in advance anyway.

Phone contracts being a consumer hire product are covered by the distance selling regs which do not come under the ospices of the CCa.

This is why they give you a free phone because if they sold it you on credit then they would have to regulated by cca1974.

 

Peter

 

Right, lets clear things up. Sims are only an ID and it is the billing system behind it that calculates what you have used. The phone does not in any way shape or form physically use credit stored on any sim card. When you apply a credit to a pay as you talk / go phone, all you are doing is increasing the balance of your account on a centralised billing system. When you make a call, or send a text message, the information (duration, who you called, the SIM number, the IMEI (equipment used) etc) is sent via the cell, to something known as a PAM, the PAM routes the information dependant on the provider to the relevant companies system, which is then processed, a price attributed to it and that value is taken from your PAYT/G minutes you paid for previously. If you don't have sufficient credit, the call is not allowed. Now, I'm a little bit hazy as to how this verification takes place, but I believe it is part of the cell sign on process that informs you of how much credit you have left, but don't quote me on that bit.

 

For contract phones, the process is exactly the same, but the billing system is more complicated and contains alot more information (like who you are!).

 

A credit token (i.e. a credit card) is just a number, that is sent along with the merchant ID and cost to a centralised processing system, that checks to see if the transaction is valid, and then either accepts or rejects the call. I don't see a difference at all in how they operate.

 

Now, if you purchase a PAYG/T phone from a shop, you pay a certain amount against the phone, and depending on the amount of usage you make, the value of each transaction you make used to pay off the cost of the handset changes. If you make loads of calls, you pay off a smaller unit cost against the phone. There are certain tariffs that penalise you with higher call charges if you do not make enought calls / texts.

 

Now, with a contract phone, for say 18 months, I may pay £100 for a handset. The actual cost of the handset is say £400, so there is effectively a contract to repay the difference of £300 to the operator. Therefore my monthly bill, including the rate I pay for calls (both peak and off peak) and SMS, MMS, data browsing, downloads etc vary according to the deal I get. If I try to break this contract (other than in the first couple of weeks), I am liable for the whole whack I would pay for what's left of the 18 months of the contract.

 

The point I am making here (and I am not expressing an opinion this time, just prompting for discussion ) is how they can circumvent the CCA with their contracts?

 

Oh, please don't question my knowledge on this in open forum, if you want to know how I know, just take it as read that I do and I really, really don't want to explain how I know, but be confident in knowing that I really do know what I'm talking about with regards to mobiles!

[Guest The Terminator]

ok guys, I am getting mighty confused now :-?

 

I sent off my CCA to a catalogue company, (part of JD Williams - I know Battleaxe is familiar with them!) This is what I got back

 

Thank you for your letter datedxxxxxxx

 

In relation to your request for a copy of the executed agreement under S78 of CCA, I would refer you to regulation 3 (2)(b) of the Consumer Credit (Cancellation Notices & Copies of Documents) Regulations 1983. In it you will see that there is no requirement to provide a photocopy of the agreement bearing your signature; it is sufficient that we supply details of the Terms & Conditions to which you have agreed. We are therefore enclsoing a copy of the type of Credit Agrement sent to you when you opened your account in February 2004. I also enclose a detailed staement of your account.

etc.

 

Now I picked holes in this left right & centre, but now I'm so confused with all the posts over the last few days that I can't think straight!

I think the debt I have to them still stands but is unenforceable - if I dispute it they can't do anything (default etc)because it's in dispute.

But now I don't know!

If, as I have requested, they refund my charges, then the debt is negligible (about £40 I think), but I would like to get this straight in my own mind before I embark on one with more at stake. So any comments greatfully received.

 

Looks as if there making the rules up as they go along.

[paulwlton]

I had a similar response from Littlewoods they too sent a copy of the T and Cs that they assumed had been signed when the agreement was took out.

 

I binned it,