Cap1 & CCA return

[Peterbard]

I agree un1boy and..

 

instead of saying "this was discussed in March 1901, somewhere at the begining of the thread"

 

put a referring link on the post, that way it will be easier for others to locate a particular issue.

 

Love

AC

Hi Act and Uni

 

I have come across instances where i can remember working on some issue or other and gone to look for the post in order to put a link in but have been unable to find my orriginal post. My histories only seem to go back so far unless i am doing something wrong.

I also agree with uni in that we must welcome all contributions to the forum as long as they are intended to be of help or well meant. Somtimes you may have an idea and you really just wan't a sounding board in order to draw on other peoples experiances, lately i feel that the amount of fresh ideas is dwindleing because people are afraid of getting shot down.

Of course i agree that it is important that people are given the correct advice but lets not get carried away this is not a difinative guide to law we are on. At the end of the day we only learn by good natured constructive exchange of ideas and experiances, nit picking and point scoring is not exceptable in my opinion.

 

Regards

 

Peter

[Guest The Terminator]

Hi Corn,

 

It's no problem - as far as I am aware only agreements from that date will be covered - although, I think some parts of the act will cover current agreements.

 

Don't take my word on that - I am sure Pam, Peter or someone else can clarify further.

 

The only part I can see that covers current agreements is S140a which covers disputes.

[Cornucopia]

THANK YOU FOR ALL YOUR HELP!!!

 

Regards,

 

Corn x:)

[Peterbard]

Pers! Nice to see you here hun!! x

 

I am sorry, I am probably being a right pain in the butt given the current dicussion, but Rhia and I have been having an email convo this morning and we wondered if somebody could clarify that when the amendments are made to the CCA on 6 April, the will affect agreements made after this date, not older agreements or ones in dispute.

 

Please don't shout if I am wrong! I know this has been discussed on here before but I am at work and shouldn't be doing this at all! It's just that it is vital to our current cases and we could do with some clarification!

 

Thank you!

 

Hi

 

Just to echo Term the transition details for the new act are at the end of the CCa 2006.

It might be worth pointing out that their are some parts of the act that will be enforced retrospectively but these are not ammendments that will have a negative effect on the debtor /hirer and are things like issuing statements and default notinfication,Anything to do with the revoking of section 127(3-5)etc will as said only effect agreements made on or after April 6th.

 

regards

 

Peter

[JonCris]

Section 127 of the CCA has been swept away at the instigation of the money lenders because of the Wilson v Secretary of State ruling & because they are fully aware that due to their cavalier attitude over the years towards the consumer & their never ending pursuit of profit at the cost of good oversight there are many many agreements out there which are unforceable

 

However provided the agreement has not been entered into online a court still needs a signature before it can make an order against the debtor.

 

The moral is never ever enter into an agreement on line. Having said that it's only a matter of time before fraudster companies start making such fraudulent agreements on line

 

Like chip & pin another great advance for the crooks

[InKogneeToh]

Hi all can you check this is what CRAP1 sent me as my agreement under CCA request.

 

http://i156.photobucket.com/albums/t8/dpick1947/Crap1agreement.jpg

 

I believe this is just application, they sent this page only no copy of reverse side or leaflet for PPI

 

dpick:p

 

Hi

 

In the small print at the bottom does it have any mention of the credit limit, interest rate or rate/frequency of repayments? If not it will be unenforceable whatever they want to call it.

 

I advise sending back one of the letter's in Zubo's earlier link - Consumer credit resources workshop.

 

Regards, Pam

[Dave777]

Hi all

 

I don't know - I go out for a few hours and come back to find my monitor heat damaged!!

 

Anyway, Dave777 has picked up on one very important issue that I keep having to clarify (and it's not just you Zubo!)

 

An agreement that does not contain all the required information is NOT UNexecuted - it is IMPROPERLY executed - and there is a HUGE difference!!

 

The only time that an agreement would be UNexecuted is if it has not been signed by BOTH parties - in which case it has not actually been made!!

 

An agreement that has been signed by BOTH parties is, and always has been EXECUTED. However, if that EXECUTED agreement does not comply with the form and content requirements of the CCA then it is IMPROPERLY executed.

 

It's VERY important that people do not confuse the 2 definitions, particularly if they are actively challenging the enforceability of their agreements.

 

Regards, Pam

 

Thank you Pam for confirming what I was trying to explain.

 

Both Zubo and Terminator were slightly confused with this issue, sometimes further clarification from a different source can make things easier to understand.

[Guest The Terminator]

Thank you Pam for confirming what I was trying to explain.

 

Both Zubo and Terminator were slightly confused with this issue, .

 

Somehow I don't think so.

[Guest The Terminator]

Suppression, etc. of documents.

 

20.-(1) A person who dishonestly, with a view to gain for himself or another or with intent to cause loss to another, destroys, defaces or conceals any valuable security, any will or other testamentary document or any original document of or belonging to, or filed or deposited in, any court of justice or any government department shall on conviction on indictment be liable to imprisonment for a term not exceeding seven years.

 

Just taken this from the Theft Act(1968) just wondering if it relates to 95% of agreements.

[Peterbard]

The only time that an agreement would be UNexecuted is if it has not been signed by BOTH parties - in which case it has not actually been made!!

 

HI Pam

 

How can the above unmade agreement be enforceable as we know an agreement with all the pts and one sig (the debtors) can be.

 

Just being mischievous i know what you mean.

 

Peter

[Rhia]

OK brainstormers. S85 if we start action to recover under this is it correct to apply for consolidation or restitution? I ask as I caught a thread a couple of days ago (dammit didn't note it) which told of a case for consolidation being lost as it was the incorrect wording.

[paulwlton]

At last Terminator!!!

 

After two hours of debate!!

 

Somebody has finally agreed that a person cannot be imprisoned due to the offence under sections 77-79.

 

Thank you. I rest my case for now.

 

If a creditor is fined by summary judgement for not complying with sec 77-79 and then refuses to pay the fine, he will be imprisoned.

 

Paul

[angry cat]

I am reliably informed by my TS Fair Trading Officer that the penalty is £2,500 and/or up to 6 months in prison

 

http://www.consumeractiongroup.co.uk/forum/other-institutions/10900-loan-company-cannot-supply-68.html?highlight=angry+cat#post515330

 

 

 

AC

[un1boy]

THIS IS URGENT:

 

I've just had a call from my local police sargeant saying that he is investigating my complaint re sec 78 breach and needs info stating that an offence of the cca is a criminal offence, not civil. He has looked in books and the act itself but can't find anything stating that it's criminal - any ideas anyone?

[un1boy]

Does this mean that it is only trading standards that can prosecute?:

 

161 Enforcement authorities

 

(1) The following authorities (“enforcement authorities”) have a duty to enforce this Act and regulations made under it—

 

(a) the Director,

 

 

(b) in Great Britain, the local weights and measures authority,

 

 

© in Northern Ireland, the Department of Commerce for Northern Ireland.

 

 

(2) Where a local weights and measures authority in England or Wales propose to institute proceedings for an offence under this Act (other than an offence under section 162(6), 165(1) or (2) or 174(5)) it shall, as between the authority and the Director, be the duty of the authority to give the Director notice of the intended proceedings, together with a summary of the facts on which the charges are to be founded, and postpone institution of the proceedings until either—

 

(a) 28 days have expired since that notice was given, or

 

 

(b) the Director has notified them of receipt of the notice and summary.

 

 

(3) Every local weights and measures authority shall, whenever the Director requires, report to him in such form and with such particulars as he requires on the exercise of their functions under this Act.

 

(4)–(6) . . .

 

 

That is crazy!!

 

And, what does "(4)–(6) . . . " mean?

[un1boy]

I've also found this on the OFT's site:

 

From 6 April 2007, the OFT is responsible for collecting the industry levy which will fund the Financial Ombudsman Service’s extended role in considering complaints about consumer credit products and services

 

Now, does this mean that the FOS have a responsibility to investigate and prosecute breaches of the CCA?

[angry cat]

Yup!

 

It is Trading Standards that are supposed to prosecute...!

that is if you can get them to-

TS will plead insufficient funds.

 

However, according to my TS Fair Trading Officer, there is nothing to stop a consumer from takin civil action against the offending creditor.

Now, how on earth are mere consumers going to obtain the funds, to take action. Looks like a 'Human Rights' issue now and of course the banks are not government bodies. Therefore, one will not apply for legal funding re Human Rights.

 

What a long and winding road...maybe it's off to Strasbourg for a bargain break.

 

Anyhow Guys, my TS lady has been away for the last 2 weeks having a lovely time in singapore and I hope that she is fully rested!!

 

Because tomorrow I will be writing, phoning and emailing her my ongoing concerns regarding ENFORCEMENT.

 

What an ingenioulsy written document...The Consumer Credit Act 1974 is and...is it really to protect the consumer?

 

Rant over

 

Love AC

[ladybird17]

According to Schedule I of CCA, failing to supply etc. etc.... is a summary offence. Not an indictable one. This is from CPS site

 

The Crown Court and summary offences

 

By definition, a summary offence is dealt with in the magistrates' court. However, the Crown Court may deal with a summary offence in the following circumstances:

On committal for sentence

When an alternative verdict is returned under the Road Traffic Offenders Act 1988 section 24

It may try certain summary offences if Criminal Justice Act 1988 s.40 applies (Archbold 1-17)

It may take a guilty plea and sentence for a summary offence if the Criminal Justice Act 1988 s.41 or Crime and Disorder Act 1998 s.51 and Sch.3 para.6 apply (Archbold 1-22, 1-12)

It may dismiss the summary offence if the prosecution offer no evidence under CJA 1988 s.41 or the CDA 1998 s.51

When preparing a case for the Crown Court, you will thus need to consider how to deal with any summary offences.

Link to CPS is The CPS : Summary offences and the Crown Court

where there is more info.

[angry cat]

I've also found this on the OFT's site:

 

 

 

Now, does this mean that the FOS have a responsibility to investigate and prosecute breaches of the CCA?

 

No, I do not think that FOS could ever have any rights to investigate CCA breaches. The FOS is a private limited company which was set up by the FSA (quango) The FOS is funded by levy's from the Financial institutions, thereby it can state that it is independant...huh conflict of interest!

 

I guess, that by the OFT holding the funds (levies) then it (FOS) would appear to be less biased (FOS) and significantly more consumer friendly...which of course we all know, it is not.

 

AC

[un1boy]

No, I do not think that FOS could ever have any rights to investigate CCA breaches. The FOS is a private limited company which was set up by the FSA (quango) The FOS is funded by levy's from the Financial institutions, thereby it can state that it is independant...huh conflict of interest!

 

I guess, that by the OFT holding the funds (levies) then it (FOS) would appear to be less biased (FOS) and significantly more consumer friendly...which of course we all know, it is not.

 

AC

 

Ths FSA is a limited company and gets its 600million pound a year budget from all the companies it regulates......

[un1boy]

According to Schedule I of CCA, failing to supply etc. etc.... is a summary offence. Not an indictable one.

 

What's the difference?

[SteveH2508]

THIS IS URGENT:

 

I've just had a call from my local police sargeant saying that he is investigating my complaint re sec 78 breach and needs info stating that an offence of the cca is a criminal offence, not civil. He has looked in books and the act itself but can't find anything stating that it's criminal - any ideas anyone?

 

167 Penalties

(1) An offence under a provision of this Act specified in column 1 of Schedule 1 is triable in the mode or modes indicated in column 3, and on conviction is punishable as indicated in column 4 (where a period of time indicates the maximum term of imprisonment, and a monetary amount indicates the maximum fine, for the offence in question).

(2) A person who contravenes any regulations made under section 44, 52, 53, or 112, or made under section 26 by virtue of section 54, commits an offence.

 

Section 167 and Schedule 1 of the CCA74.

I'm not 100% convinced that the Police/CPS are necessarily the competent authority to prosecute however. It would be a shame if the MIB managed to wriggle out of a S78 offence by bamboozling a magistrate.

[ladybird17]

As I understand it - so do not take this as gospel, please:)

 

An indictable offence is one that is tried by jury, and may carry severe sentences and/or fines.

 

A summary offence is a "lesser" offence than an indictable offence. The maximum penalties are up to 6 months imprisonment, and/or a fine up to a maximum of £5000.

 

They are tried in different courts.

 

Notwithstanding this, the CCA says an "offence" ...as far as I'm aware there is no such thing as a "civil" offence, so by definition it must mean "criminal".

 

But as I say this just my understanding as a layman.

[Dave777]

If a creditor is fined by summary judgement for not complying with sec 77-79 and then refuses to pay the fine, he will be imprisoned.

 

Paul

 

Agreed Paul.

 

....but imprisoned for a different offence than the one discussed.

 

Anyone who defaults a summarily fine may be imprisoned for the prescribed term.

 

Imprisonment however, cannot be a direct punishment for failing to comply with a cca request within 12 days + 1 month.

 

A further offence has to be committed for the offender to be at risk of imprisonment.

 

for eg, it's the same as saying faillure to disclose relevant information to another party before a tribunal/court hearing may result in imprisonment.

It won't ..... I think it is a level 3 summarily fine ..... but failure to pay or acknowledge this fine, without any attempt to make proposals to pay, may result in a term of imprisonment.

 

This is why, with regards to the aforesaid issue at hand, imprisonment should not be mentioned at all. It is not a penalty of this offence.

[Dave777]

167 Penalties

 

(1) An offence under a provision of this Act specified in column 1 of Schedule 1 is triable in the mode or modes indicated in column 3, and on conviction is punishable as indicated in column 4 (where a period of time indicates the maximum term of imprisonment, and a monetary amount indicates the maximum fine, for the offence in question).

(2) A person who contravenes any regulations made under section 44, 52, 53, or 112, or made under section 26 by virtue of section 54, commits an offence.

 

Section 167 and Schedule 1 of the CCA74.

I'm not 100% convinced that the Police/CPS are necessarily the competent authority to prosecute however. It would be a shame if the MIB managed to wriggle out of a S78 offence by bamboozling a magistrate.

 

I would agree with you Steve. I would suggest the relevant statute authority to report to, would be the Office of Fair Trading.