Cap1 & CCA return

[Smoothy]

I couldn't find a template for requesting the original CCA so following advice, I bashed this up; is it ok to send?

 

Dear Sir/Madam

 

Account No:

 

Ref:

 

Re: American Express Services Europe Ltd

 

Thank you very much for your enclosure regarding the above. However, with the greatest respect, this cannot be construed as the original Credit Agreement under the Consumer Credit Act 1974. As it stands, this document is improperly executed; it does not contain the statutory statements nor is it signed by the creditor. The document will be filed and retained in the event of any litigation and if you would be so kind, please forward the fully executed agreement with ALL the prescribed items as specified by the Consumer Credit Act 1974.

 

I understand that under the Consumer Credit Act, creditors are unable to enforce an agreement if they fail to comply with a request for a copy of the agreement under these sections of the Act.

 

I am sure that you will be aware that until such time as I do receive the fully executed agreement I am well within my rights to cease further payments.

 

I look forward to hearing from you within the stipulated time limits.

 

 

The letter you seek is here!

[joesoap]

Thanks smoothy but this is a request for the proper CCA, not what they've already sent me, which was slightly more than a bit of paper.

[InKogneeToh]

Only problem here Pam ia that I actually cannot remember ever getting a 2nd copy. I seem to remember sending the application form in and getting a card back on the standard card carrier.

 

Hi

 

Did you do a full SAR on the creditor, and if so does it show any entry regarding sending of a 2nd copy? I they have no documented evidence of having sent it out then I guess you could try court action to have the entire agreement declared unenforceable.

 

One other thought - you would also need to check the date of the 1st payment in relation to the signing of the agreement - more than a month MAY indicate that the cancellation period was included in this timespan.

 

Regards, Pam

[Peterbard]

But what about the effects of S59? I know we are going back over old ground but how does the application form get over the impact of S59?

Section 58 and 59 do not apply this is i presume a distance contract.If they did it wouldn't work and you can't do a secured loan by distance means.

 

Peter

[m55dlc]

But then we're back in circles as the card carrier ageement 2nd copy of agreement, termination notice, s63.4, s85 complance via card carriers, no need for sigs & personal info 'copy' arguement again.

 

I can see a them and us gulf appearing that isn't going to be spanned until we get this into court and infront of a judge.

 

You are never going to get less than a month between signing an application form and making the first payment so the cancellation timeframe issue is a non-starter (IMO).

 

The CCP will not have a separate notice on their systems for s63 compliance or cancellation compliance as they will hide behind the copies without sigs arguement.

 

IMO the non-signature of T&C docs is very valid regarding the prescribed items, but you sign the agreement saying you've read them and then you use the card, which also deems you to have read them, so you've got to convince a judge that you didn't twice. I'm not going to second guess what a judge would say to that.

 

We need to solidify the arguement against these application agreements, solidify the arguements against the card carriers being 'true executed' copies and get the whole thing infront of a judge. Lets not forget who has the financial resources here and who can pay for the best representation. This is going to go to appeal whatever happens, so lets look at this more retrospectively:

 

Do we need the unfair contract terms (1999) to beat their T&Cs?

Can we also use the regs from 1994 on unfair contract terms?

 

Peter and Pam, niggling arguements, you're agreeing on 99% and you're both on the same side (and thats coming from ME:D ). (I could have gone further along with the heading 'CCA Agreement', as all of the card carriers I have seen have the heading below the personal bits and below where the card is, more on that if anyone is interested).

 

Thanks

[m55dlc]

Section 58 and 59 do not apply this is i presume a distance contract.If they did it wouldn't work and you can't do a secured loan by distance means.

 

Peter

 

That's interesting Peter, could you tell that to Ocean, Welcome etc? Oh, and our mortgage was signed in our house too...

[Peterbard]

did you do a secured loan or remortgage on a distance contract. I think not.

 

Peter

[m55dlc]

did you do a secured loan or remortgage on a distance contract. I think not.

 

Peter

 

I'm not being argumentative. We applied for a loan, over the phone, the paperwork arrived, we signed it (at home) and it was done. If that isn't a distant contract, could you explain how it isn't?

 

Also, an independant financial advisor visits your home, you fill in the details, the mortgage is approved, again, how is that not a distance contract?

[InKogneeToh]

Hi

 

s59 CCA:

 

59 Agreement to enter future agreement void

(1) An agreement is void if, and to the extent that, it purports to bind a person to enter as debtor or hirer into a prospective regulated agreement.

 

My interpretation of this is that any clause in an agreement that suggests that by signing the agreement you have agreed to enter into a future regulated agreement is void in that respect.

 

What it says is that an agreement is void TO THE EXTENT THAT it purports to bind etc. It doesn't say the whole agreement is void.

 

Regards, Pam

[Guest Battleaxe]

 

Thought I would share this with you, if you haven't already seen it.

 

Arrangement Fees..unlawful charges by another name

[Peterbard]

Sorry but if yuo had contact with the creditor then he would have invoked section 58 you would have been given the statutory cooling off period and then you would have been sent the executable contract to sign.

Not a doistance contract i'm afraid.

 

Peter

[InKogneeToh]

I'm not being argumentative. We applied for a loan, over the phone, the paperwork arrived, we signed it (at home) and it was done. If that isn't a distant contract, could you explain how it isn't?

 

Also, an independant financial advisor visits your home, you fill in the details, the mortgage is approved, again, how is that not a distance contract?

Hi

 

My mortgage was also applied for and signed from home. No visits to lenders premises and no visit to our home by them. Also many lenders advertise their secured loans in newspapers etc. and all are arranged at a distance.

 

Regards, Pam

[Peterbard]

I'm not being argumentative. We applied for a loan, over the phone, the paperwork arrived, we signed it (at home) and it was done. If that isn't a distant contract, could you explain how it isn't?

 

Also, an independant financial advisor visits your home, you fill in the details, the mortgage is approved, again, how is that not a distance contract?

 

Hi just to clarify

 

1. 17.5 Does it matter what stage the contact takes place?

An agreement will not be a ‘distance contract’ if the marketing stage involved communication between the parties not involving a ‘means of distance communication’ – see Q17.3. This must arise:

1. • in relation to the marketing of the agreement; and
    
   
2. • for the purpose of that agreement – see Q17.6.
   

3. Hope that clears it up

   Peter

   
   

[m55dlc]

Sorry but if yuo had contact with the creditor then he would have invoked section 58 you would have been given the statutory cooling off period and then you would have been sent the executable contract to sign.

Not a doistance contract i'm afraid.

 

Peter

 

I'm interested in this now Peter....

 

"distance contract" means any contract concerning goods or services concluded between a supplier and a consumer under an organised distance sales or service provision scheme run by the supplier who, for the purpose of the contract, makes exclusive use of one or more means of distance communication up to and including the moment at which the contract is concluded;

 

If what you're saying, this isn't a distance contract as they sent me a copy of the agreement via the post, I looked at it and went through the cooling off period, they sent me another contract for me to sign via the post, which we signed and returned via the post, and they sent an executed copy, via the post. No face to face contact, and you are stating that as they sent something through the post and then concluded the loan via the post it isn't a distance contract?

 

OK, explain.....

[Peterbard]

Hi

 

My mortgage was also applied for and signed from home. No visits to lenders premises and no visit to our home by them. Also many lenders advertise their secured loans in newspapers etc. and all are arranged at a distance.

 

Regards, Pam

 

You know i started to look that up but i can't be bothered .

If you take out a secured loan or mortgage there has by legislation to be a face to face interview where all the pitfalls are pointed out this is an industry requirment and is usually recorded by the person selling the sesrvice it therfore cannot be a distance agreement also section 58 read it.

Peter

[m55dlc]

Having gone through the rest of the SI 2000 2334 any financial product seems to be excluded. So how do distance contract regs apply to anything to do with loans and credit cards?

 

Excepted contracts

5. - (1) The following are excepted contracts, namely any contract -

 

© relating to financial services, a non-exhaustive list of which is contained in Schedule 2;

 

SCHEDULE 2Regulation 5(1)©

 

 

 

Non-exhaustive list of financial services

 

1. Investment services.

 

2. Insurance and reinsurance operations.

 

3. Banking services.

 

Surely any reference to distance contracts is a red herring?

[InKogneeToh]

Peter

 

I think you are confusing many people with your constant references to distant contracts - as I have said previously on this thread.

 

These regulations were made primarily to give protection to consumers buying products from suppliers via mail, phone etc. and are normally simple contracts, NOT consumer credit agreements.

 

As m55 as quoted:

 

"distance contract" means any contract concerning goods or services concluded between a supplier and a consumer under an organised distance sales or service provision scheme run by the supplier who, for the purpose of the contract, makes exclusive use of one or more means of distance communication up to and including the moment at which the contract is concluded;

 

You are confusing this with regulated credit agreements that may be entered into at a distance. The CCA is the primary legislation governing these agreements and any overlap with distance selling regs. does not override the CCA.

 

Section 58 CCA is the cooling off period that a lender must give for a mortgage contract to be cancelled. If the agreement has been entered into entirely by distance means (as mine was) then the lender has to give (or send) the debtor an unexecuted copy of the agreement containing his cancellation rights before sending the signature copy for execution.

 

I don't want to fall out with you but I am becoming very frustrated with your confusing input.

 

Regards, Pam

[Peterbard]

I'm not being argumentative. We applied for a loan, over the phone, the paperwork arrived, we signed it (at home) and it was done. If that isn't a distant contract, could you explain how it isn't?

 

Also, an independant financial advisor visits your home, you fill in the details, the mortgage is approved, again, how is that not a distance contract?

 

Thats known as contact

 

(1) Before sending to the debtor or hirer, for his signature, an unexecuted agreement in a

case where the prospective regulated agreement is to be secured on land (the “mortgaged

land”), the creditor or owner shall give the debtor or hirer a copy of the unexecuted

agreement which contains a notice in the prescribed form indicating the right of the debtor

or hirer to withdraw from the prospective agreement, and how and when the right is

exercisable, together with a copy of any other document referred to in the unexecuted

 

OK

 

As fpror Pam sory you didn't

 

Peter

[Peterbard]

Peter

 

I think you are confusing many people with your constant references to distant contracts - as I have said previously on this thread.

 

These regulations were made primarily to give protection to consumers buying products from suppliers via mail, phone etc. and are normally simple contracts, NOT consumer credit agreements.

 

As m55 as quoted:

 

"distance contract" means any contract concerning goods or services concluded between a supplier and a consumer under an organised distance sales or service provision scheme run by the supplier who, for the purpose of the contract, makes exclusive use of one or more means of distance communication up to and including the moment at which the contract is concluded;

 

You are confusing this with regulated credit agreements that may be entered into at a distance. The CCA is the primary legislation governing these agreements and any overlap with distance selling regs. does not override the CCA.

 

Section 58 CCA is the cooling off period that a lender must give for a mortgage contract to be cancelled. If the agreement has been entered into entirely by distance means (as mine was) then the lender has to give (or send) the debtor an unexecuted copy of the agreement containing his cancellation rights before sending the signature copy for execution.

 

I don't want to fall out with you but I am becoming very frustrated with your confusing input.

 

Regards, Pam

It is insistance in not choosing to recognise the changes in the act thatis damaging i meerly seek to enlighten.

 

Peter

[Peterbard]

You are confusing this with regulated credit agreements that may be entered into at a distance. The CCA is the primary legislation governing these agreements and any overlap with distance selling regs. does not override the CCA.

There are agreements that can be made from home agreements secured on property are not one of them.

 

Peter

Peter

[Peterbard]

Section 58 CCA is the cooling off period that a lender must give for a mortgage contract to be cancelled. If the agreement has been entered into entirely by distance means (as mine was) then the lender has to give (or send) the debtor an unexecuted copy of the agreement containing his cancellation rights before sending the signature copy for execution.

 

Wrong again section 58 is a period before the agreement is signed.

 

Peter

[InKogneeToh]

It is insistance in not choosing to recognise the changes in the act thatis damaging i meerly seek to enlighten.

 

Peter

 

Okay - I presume that you are talking about the Financial Services Distance marketing Regs, which came into force on 31/10/2004 and are not retrospective.

 

Please explain how and where these regs. change the CCA.

 

Regards, Pam

[InKogneeToh]

Section 58 CCA is the cooling off period that a lender must give for a mortgage contract to be cancelled. If the agreement has been entered into entirely by distance means (as mine was) then the lender has to give (or send) the debtor an unexecuted copy of the agreement containing his cancellation rights before sending the signature copy for execution.

 

Wrong again section 58 is a period before the agreement is signed.

 

Peter

 

That's what I said!! See above.

[m55dlc]

Section 58 CCA is the cooling off period that a lender must give for a mortgage contract to be cancelled. If the agreement has been entered into entirely by distance means (as mine was) then the lender has to give (or send) the debtor an unexecuted copy of the agreement containing his cancellation rights before sending the signature copy for execution.

 

Wrong again section 58 is a period before the agreement is signed.

 

Peter

 

Just thought I'd highlight the discrepancy in the last post there

 

Oh bugger, page refresh again!

[InKogneeToh]

As fpror Pam sory you didn't

 

Peter

 

Didn't what? apply for and sign my mortgage agreement entirely at a distance with no face to face contact? YES I DID!!