Cap1 & CCA return

[AnimalMagic]

Hi

I know that without issuing a default no further litigation can take place as the default has to include the remedy to negate the need for further action.

I have used the lack of a default to set asside CCJs in the past .

Don't know if that helps

 

Petr

 

Thanks again Peter,

 

They already have a judgement by default, so hopefully a set aside will happen. I am hoping that the additional fees and interest accrued after judgement will be dismissed, at least. But I do feel there should be some form of sanction against the bank for failing their duty under the Act.

[Peterbard]

Thanks again Peter,

 

They already have a judgement by default, so hopefully a set aside will happen. I am hoping that the additional fees and interest accrued after judgement will be dismissed, at least. But I do feel there should be some form of sanction against the bank for failing their duty under the Act.

Hi

It is certainly worth mentioning that you recieved no default notice and he credtitor has not ben able to provide a copy on request.

Also they are not allowed to charge post default interest unlessi it is on the agreement .

You could so course always apply for aset aside prior to court it will cost you 65 quid though.

 

Best of luck

Petr

[TANZARELLI]

Following a CCA request to Lowell re them stating the now own my partners Capital One debt, my partner has just recieved a letter from Lowell Financial which is music to my ears. It reads:

 

Dear Bloc,

 

Original Creditor: Capital One (Oh I thought you owned it now, had a change of heart have you?)

Balance Outstanding: £976.19

 

Following your recent request to be provided with a copy of the original credit agreement in respect of the Consumer Credit Act

 

After liaising with our client in an effort to obtain this document we have been advised that it is no longer available. (Oh well unenforcable debt then ha ha) Under the circumstances, we have closed our files in relation to this account which has now been returned to our client. We can confirm that no further contact will be made by us regarding this account.

 

We trust that the above clarifies matters for you. (It most certainly does)

 

Yours sincerely

 

Alison Sheherd

Customer Services

 

 

Game on now Capital One, with out the original agreement we owe you jack, and will also be reclaiming the charges and CI. This is going to get filed asap.

 

Happy days

 

Tanz

[Peterbard]

hi peter could you please comment on post 1336 please

 

thanks voyager9

 

HI I am a bit unsure of what type of credit they are offering, running credit fixed term ?? The term flexible credit arrangemnt is not to my knowledge mentioned in the act.

 

It might be worth asking them to clarify which section of the act covers the agreement .

 

Regards

Peter

[voyager9]

hi peter yes sorry about that yes it was 7336 not 1336 deh

 

its running credit very similar to a credit card you have the funds on account and draw what you like up to maximum limit!

 

hope that helps

 

voyager9

[ian1969uk]

"The agreement will only be binding on us when you have signed and returned the agreement to us and we have completed our final credit checks"

 

S59 - Agreement to enter future agreement void? Peter?

 

(also the fact that it doesnt state the credit limit for the flex loan and mentions the credit checks - pre contractual, as opposed to executed?)

 

Not sure if the statements of protection are correct

 

Cancellation rights?

 

Any thoughts on this anyone? I have the same wording on my Cahoot agreement, and am wondering if this makes it a pre-contractual agreement?

[Peterbard]

hI

 

I have spent a great deal of time looking into section 59 and have had a great deal of conflicting advice from the OFT on the matter.

On the face of it the only agreements that are exempt from section 59 are (SI552) fixed sum agreements for the purchase of work tools and that comply with the quotaion regulations SI55 which are similar to the agreememt regulations.

However i have had it in writing that they apply to cancellable agreemnts that do not give recourse to excersise that option.

I get the feeling there is a big can of worms here that no one wants us to open.

 

Anyway whichever way you look at section 59 i can not see how it would not apply to the above and make the agreement void.

It is an agreement that porprts to bind a person to enter as

debtor or hirer into a prospective regulated agreement.This in itself would make the agreement void and i for one would be very greatful if someone would test this.

As for credit limit they are alowed to issue just a statement that that will be aplied at a future date on a running agreement.

As for being pre-contractual i am not quite sure what is meant probalbly just me being thick but arn't all agreements going to look precontractual because of the lack of the debtors signature.

 

Best regards

Peter

[ian1969uk]

Thanks Peter, by pre-contractual I was meaning like an application form, in that the creditor is still reserving the right to refuse it using the wording above.

 

So you think the fact that they are binding the debtor to enter into a future regulated agreement in this way means it MAY be unenforceable?

[voyager9]

peter if so, with your immense talent could you possibly please please please sugest a letter for us and we or at least i will gladly test the water so to speak but would need help lol

 

voyager9

[Peterbard]

Hi

I think it may be void. This means never existed the creditor has no rights whatsoever under the contract.

No rights to share data to pursue monies under it's terms nada.

 

Regards

Peter

[Peterbard]

peter if so, with your immense talent could you possibly please please please sugest a letter for us and we or at least i will gladly test the water so to speak but would need help lol

 

voyager9

Hi

Would you email me on

[email protected]

 

There may be bigger issues and it would be as well to sort them out and get the facts straight before posting. (MIB)

 

Best regards

 

Peter

[voyager9]

email on its way peter although not sure what you wanted me to put in it lol

 

voyager9

[Peterbard]

hI

Just your address so i can email your letter back

 

Peter

[ian1969uk]

I've emailed you as well Peter, happy to test this out in any way we can.

[voyager9]

lol i figured that i was just kidding lol

[Peterbard]

lol i figured that i was just kidding lol

 

Hi

Sorry better have a rest seem to have been on here all day need liquid refreshment..

 

Cheers

 

Peter

[angel49]

RippedOff,

 

the statements of protection are not prescribed terms

 

However, they do make it improperly executed and only enforceable by a court order, which to my way of thinking means it has been improperly executed from the start, and as the improper execution part is the protection statements, its been improperly execuiuted in a way that prejudices Monopoloy

 

I would be inclined to push for the debt being wiped out and if they dont play ball, take them to court (but I do like taking CCA's to court, whereas I can appreciate some might find that daunting)

 

Also loads of crap in there between the title ("CCA regulated by CCA 1974") and the sig that doesnt belong and should be after the sigs - this breaks the 'no interspersing' rule at Consumer Credit Regulations 1983 SI 1553, Regulation 2(4)

 

There is probably loads more there but I'm a tad busy at the mo!

 

Fact is, by gaining the license to offer credit from the OFT, they are obliged to construct an agreement in the manner parliament dictates, and this example aint right!

 

Apologies for the intrusion, but I'm still trying to understand what if anything is/isn't missing from this reply to CCA. (I'm probably just thick) I sent back a letter stating it is an application and their response was to issue a court claim. Just when I think I've managed to understand it all,I get completely thrown on reading something else.

Is it unenforceable? if so ....why? (simple answers please)

 

Thank you

 

[ian1969uk]

It does contain the prescribed terms, and it is signed by you and themso could come under this bit of the CCA 1974:

 

(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

I would say that this is 'a document containing all of the prescribed terms'and it is signed by you. However, it's complicated by the fact that it is certainly an application, and one that they reserve the right to reject. This could make it void as it is an agreement to enter a future agreement. I'm no expert on that bit and am exploring that (with Peter's help) for my Cahoot agreement.

[Peterbard]

HI

This is an executed agreement and as far as i can see contains all the prescribed terms for a running credit account so section 127(3) is of no use to you . As you say it does not even pretend to adhere to the regulations in SI1553 regarding form so that would render it enforceable only with the order of a court. The only other thing that could make it unenforceable is section 127(4) if no cancellation details were sent as per secton 64. Or if there was some missrepresentation of tems on the agreement that was to prejuduce the debtors ability to make an informed decision to purchase.127(1 - 2)

 

Best regards

Peter

[ian1969uk]

Hi Peter, as an application form, couldn't this be void then as per discussions further up the page?

[angel49]

Thank you Ian for your response. I've had some helpful replies on my original posting but I got so tangled (no pun) trying to understand regs,sections,etc

 

I certainly appreciate your input and.........I understand it thanks.

 

Wishing yourself and Peter the very best.

I Have nothing of any value to contribute to this huge thread, and I for one, as I'm sure many many people do, appreciate the time and effort you all put in to help with your good advice and research into being able to do just that.

Many many thanks to you all.

[zubo]

It does contain the prescribed terms, and it is signed by you and themso could come under this bit of the CCA 1974:

 

(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

I would say that this is 'a document containing all of the prescribed terms'and it is signed by you. However, it's complicated by the fact that it is certainly an application, and one that they reserve the right to reject. This could make it void as it is an agreement to enter a future agreement. I'm no expert on that bit and am exploring that (with Peter's help) for my Cahoot agreement.

 

I always have a big issue with a document which states Application.

It is NOT an agreement it is an application - a pre-contractual request to take up the Creditors offer of credit on those prescribed terms. ONCE they have completed their investigations and determined what money you can have THEN they must issue a formal agreement which complies with all the conditions and you must sign THAT document as acceptance.

 

All this business about whether or not its in the prescribed manner etc misses the essence of this legislation and I will argue my way through court. It is this final document we are all seeking and if CCPs think they can bluster their way through all this, then WE have to stand strong and insist that they comply to the letter of the law.

 

My Amex thread is a very good example of where they have sent me a signed Application form, then when pushed have sent me the agreement which is unsigned by me and them AND I have never seen.

 

Sorry Peter, you know my views re Application forms pretending to be agreements: pure rubbish!!

 

Z

[rory32]

Sorry Peter, you know my views re Application forms pretending to be agreements: pure rubbish!!

 

I'm afraid I also hold the same viewpoint as Zubo.

[the main man]

Hi,

My Wife has one of these from GE money / Debenhams these are the ones that are signed in store which gave you an instant credit limit, but it is an application form and they reserve the right to refuse it.

GE Money have just wrote back to me saying they have supplied the True Copy of the Agreement and only have to send me the T&C if they can't provided the agreement!!

[Dave777]

This would be allowed under the Electronic Communications Order 2004. What is the date of your agreement?

 

Thanks for the reply.

 

It's dated 21st January 2006.