Cap1 & CCA return

[adarling2006]

so i just write back to them saying that it's an improperly executed agreement and til such a time that it becomes a properly executed agreement then all collection activity should stop, am i right at this point?

[joneshousehold]

ncf355, I thought the text in the middle of the first schedule breached the no interspersing rule. I based this on the OFT guidelines I linked to earlier. This says financial and related particulars must be shown together as a whole and not interspersed with any other information(page 8).

[joneshousehold]

adarling2006, no it is in fact an unenforceable agreement. Improperly executed means it's not signed properly or copies have not been sent on correctly.

 

Oh hey, my last post (No 6267) should refer to page 8 - didn't know I could do piccies like that!

[adarling2006]

so it's unenforceable, right, so enlighten me as to now how i would word it, in particular about the threat to continue to enforce it and pass it on to a DCA

[davefirewalker]

A CCA request means that they have to send you a copy of the agreement

 

any terms and conditions

 

They should have also sent you a statement of account

 

There should be a section on default charges etc. these are not on the doc so these would probably be on the t&c

 

until these conditions are met they have not complied with your request.

 

and I would certainley tell them as much

 

might give you a few days more grace to try and find an answer to this

 

Dave

[adarling2006]

ok fair enough, i've got some writing to do, is there a template to use as to their failure to comply with the CCA request?

[davefirewalker]

maybe something like this........

 

edit it to your own case

 

-----------------------

I refer to my letters dated XXXXXXXX which was delivered via recorded delivery to your offices on XXXXXXXX, and my follow up letter dated XXXXXXXX.

 

In my letter xxxxxxI made a formal request for a copy of the signed, executed credit agreement for the above numbered XXXXXXXX account under section 77(1) and section 78(1) of the Consumer Credit Act. In addition a statement of my account should have been sent along with any other document mentioned in the credit agreement.

 

The Consumer Credit Act allows 12 working days for this request to be carried out before your company enter into a default situation. If the request is not satisfied after a further 30 calendar days, Your company commit an offence. These time limits expired on XXXXXXXX and XXXXXXXX respectively.

 

As you are no doubt aware subsection (6) states:

 

If the creditor under an agreement fails to comply with subsection (1)—

 

(a) He is not entitled, while the default continues, to enforce the agreement; and

(b) If the default continues for one month he commits an offence.

 

Therefore as at XXXXXXXX this account became unenforceable at law and it is now my intention to refer this matter to the enforcement authorities.

 

Any default notices or adverse comments your company have recorded on my credit reference file should be immediately removed.

 

Failure to respond favourably to this letter within seven (7) days of receipt will result in immediate litigation being commenced against your company without further notice.

 

I await your rapid response.

 

---------------------

 

Dave

[davefirewalker]

I dont know at what stage you are upto.....or ifthey have breached the 30 day limit, so you def need to edit it

 

or prehaps someone can suggest something else ?

 

Dave

[joneshousehold]

adarling, is this the same one as on your other thread? Shall I reply there?

 

Scratch that - davefirewalker's looks great to me

[adarling2006]

this is for black horse and the CCA, and at the mo they have gone past the 12 days, after the 19th of may they will commit an offence, i shall edit the letter accordingly and many thanks.

[adarling2006]

how does this sound??

 

 

I refer to my letters dated 05/04/07 which was delivered via recorded delivery to your offices on 08/04/07.

In my letter 05/04/07 I made a formal request for a copy of the signed, executed credit agreement for the above numbered xxxxxxx account under section 77(1) and section 78(1) of the Consumer Credit Act. In addition a statement of my account and terms and conditions should have been sent along with any other document mentioned in the credit agreement.

The Consumer Credit Act allows 12 working days for this request to be carried out before your company enter into a default situation. If the request is not satisfied after a further 30 calendar days, Your company commit an offence. These time limits expired on 19/04/07 and 19/05/07 respectively.

As you are no doubt aware subsection (6) states:

If the creditor under an agreement fails to comply with subsection (1)—

(a) He is not entitled, while the default continues, to enforce the agreement; and

(b) If the default continues for one month he commits an offence.

Any enforcement action that you undertake while not complying with my request is unenforceable and may even be an offence.

Any default notices or adverse comments your company have recorded on my credit reference file should be immediately removed.

 

I await your rapid response.

[joneshousehold]

I left mine until after the date of offence. Can you perhaps just write to them a more general letter and hit them with Dave's after the 19th May? You know the sort of thing

 

- your reply wasn't a response to what I asked.

- the wording of S77 says.....(I cut and paste it from a copy of the Act - I didn't want them to think I was bluffing) you seem to have not fully complied and I am drawing this to your attention (don't specify what part they have not complied with though, I like to make them work for it and they may miss something else along the way)

- time is ticking and deadlines set in legislation. I want to give you every opportunity to respond before the deadline set in S77(4)(b) which I calculate is 19 May

 

How does that sound?

[davefirewalker]

how does this sound??

 

 

I refer to my letter dated 05/04/07 which was delivered via recorded delivery to your offices on 08/04/07.

In my letter 05/04/07 I made a formal request for a copy of the signed, executed credit agreement for the above numbered xxxxxxx account under section 77(1) and section 78(1) of the Consumer Credit Act. In addition a statement of my account and terms and conditions should have been sent along with any other document mentioned in the credit agreement.

 

This request was not met in full and I am missing important information

 

The Consumer Credit Act allows 12 working days for this request to be carried out before your company enter into a default situation. If the request is not satisfied after a further 30 calendar days, Your company commit an offence. These time limits will expire on 19/04/07 and 19/05/07 respectively.

 

As you are no doubt aware subsection (6) states:

If the creditor under an agreement fails to comply with subsection (1)—

(a) He is not entitled, while the default continues, to enforce the agreement; and

(b) If the default continues for one month he commits an offence.

 

Any enforcement action that you undertake while not complying with my request is unenforceable and may even be an offence.

 

you now appear to be in default and as such, any action regarding enforcement of this account must cease. including but not limited to processing of data.

 

Any default notices or adverse comments your company have recorded on my credit reference file should be immediately removed.

 

I await your rapid response.

 

try this one

 

Dave

[davefirewalker]

intersting problem on the other cca thread.

 

prescibed terms.........what are they and how should they be presented.

ok I think we all know what they are, but presentation?

 

specifically the term "repayments".

 

I have an agreement and it does not mention repayments anywhere.

 

neither is there a heading repayments.

 

it does mention installments, payments, but not SPECIFICALLY "repayments"

 

any thoughts

 

Dave

 

 

Any thoughts on this?

Dave

[joneshousehold]

Sorry adarling, I didn't see your post until after I had posted my reply. I think my first bullet point is wrong as it relates to your other thread (sorry again!) Apart from that you have said pretty much the same as I have. How you word it is up to you, both your and my letters convey the right meaning so I will leave you to decide. You do need to add the bits about enforcement from your draft though

[adarling2006]

i've just copied and pasted dave's suggested lay out and going to send that to them, see what happens after that.

[InKogneeToh]

Hi

 

If your agreement was made prior to 31/05/05 you must read and apply the requirements as set out in the OFT docs of 2003 for cancellable or non-cancellable agreements.

 

If the agreement was made after that date then the 2004 agreement regs amendments also apply and can be found in the OFT FAQS doc of April 2005 but these amendments do not apply before 31/05/05.

 

Everyone should read these documents and check their own agreements carefully against all the different requirements.

 

There are variations in what is required for different types of agreements entered into in different circumstances and so it is NOT a case of 'one size fits all'!

 

Please, please don't PM me for help with agreements before you have checked all this yourself. I am getting loads of requests to look at agreements and all I am actually doing is using the OFT docs and the CCA to check them against!!

 

Of course I am happy to help if anyone is really stuck or confused but I don't know anything but what is there for all to see!

 

Regards, Pam

[InKogneeToh]

so i just write back to them saying that it's an improperly executed agreement and til such a time that it becomes a properly executed agreement then all collection activity should stop, am i right at this point?

 

Hi

 

Firstly an improperly executed agreement can NEVER become a properly executed one - it can't be changed after it has been made and signed!

 

 

Secondly, an agreement is only UNenforceable if any of the 'prescribed terms' are missing or incorrect or if the debtor has not signed it. - and in any case only an agreement made before April 2007 can be totally unenforceable because of amendments now made to the CCA.

 

Any other omission/error would only make the agreement 'improperly executed', NOT UNenforceable and it would be enforceable at the discretion of the court.

 

Thirdly, the 'no interspersing' rules are from the 2004 amendments and are therefore not applicable to agreements prior to May 2005.

 

It is very important that people check that they are using the correct version of the regs, read all of the applicable OFT docs, re-read them and re-read them and then check their own particular agreements against the various requirements for the type of agreement they have.

 

Regards, Pam

[InKogneeToh]

adarling2006, no it is in fact an unenforceable agreement. Improperly executed means it's not signed properly or copies have not been sent on correctly.

 

Oh hey, my last post (No 6267) should refer to page 8 - didn't know I could do piccies like that!

 

Hi

 

Sorry Jones, but that is not correct. The only circumstances in which an agreement would be UNenforceable is if it did not contain all of the 'prescribed terms' or was not signed by the debtor, or if a cancellation notice was not sent to the debtor after a cancellable agreement was made.

 

If there is any other omission or error the agreement is 'improperly executed' and enforceable at the court's discretion.

 

Regards, Pam

[paulwlton]

A creditor to comply with sec 77/78 must supply not only the true copy of the agreement but any other document referred to in it.

 

This is interesting has in my case the creditor is pleading compliance when in fact to comply a copy of the PPI document referred to in the agreement must also be sent.

 

I think people should be aware when making CCA requests the creditors obligation extends beyond not only supplying the original agreement but any other document referred in it.

 

Paul

[cankster]

Need some help from anyone of a legal bent on here please.

 

I'm in small claims court this friday against Legal & Trade ove a CCA non-compliance.

They have admitted they have not got the CCA agreement and have offered to waive the debt. I'm sueing them for all payments made against this alledged debt.

 

They have just send me a schedule of costs totalling 11K.

 

Can they claim costs in the small claims court and can they claim this much??

[davefirewalker]

Cankster

 

Personally speaking.....I think if youve got them to waive the debt that is a win.

 

Going after them for any money you have given them I think is a bit of a no brainer. It depends on everyone's circumstances and how the company have treated you, and how good you feel your chances are!

 

but you've had the money...spent it...enjoyed it, and dont have to pay it back. thats a win. I dont presume to know what a judge will say, but can imagine he may not look too favourably on it.

 

if you do go to court and lose...............?

 

My opinion is its a step too far. you've won ...let it go

 

Dave

[adarling2006]

first off, thanks for the advice, i'm writing to black horse to say that they haven't complied with my CCA request and time is running out on them. the loan dates back to 16/8/04 so a link to the OFT doc 2003 would be nice so i can look them over while the clock is ticking.

[paulwlton]

Need some help from anyone of a legal bent on here please.

 

I'm in small claims court this friday against Legal & Trade ove a CCA non-compliance.

They have admitted they have not got the CCA agreement and have offered to waive the debt. I'm sueing them for all payments made against this alledged debt.

 

 

Can they claim costs in the small claims court and can they claim this much??

 

 

This is hard to call and it's at the sole discretion of the judge. The court may award costs if one of the partys behaviour has been unreasonable, the defence may argue that to pursue a case which is both speculative and unsupportable amounts to unreasonable behaviour, on the other hand pursuing a week case does not automatically atract an order for costs.

 

I've no legal training but in my view you would have to plead the debt as never existed and if the creditor can prove otherwise then i'm afraid your claim will come unstuck.

 

The 11k seems a bit extravagant.

[Peterbard]

Hi

 

"Thirdly, the 'no interspersing' rules are from the 2004 amendments and are therefore not applicable to agreements prior to May 2005."

 

 

 

If there is any other omission or error the agreement is 'improperly executed' and enforceable at the court's discretion.

 

Regards, Pam

Hi Pam

 

This thread goes so quickly it is hard to keep up so i may have missunderstood but the no intersapacing rule also applies as far as i know on the 1983/1553 regs althugh it doesn't include the sig box i nbelieve

 

(4) Subject to paragraph (5) below, the information about financial and

related particulars set out in paragraphs 3 to 19 of Schedule I to these

Regulations, and also the statements of the protection and remedies available

to debtors under the Act specified in Forms 5 to 10of Part I of Schedule 2, shall

be shown together as a whole in documents embodying regulated consumer

credit agreements and not interspersed with other information apart from

subtotals of total amounts and cross-references to terms of the agreement:

 

Best regards

peter