Cap1 & CCA return

[Peterbard]

HI

I have been wondering about the above also it seems to me that the accuracy of the infromation provide by the TS is not what it should be.

If they are saying that the agreement is permanently in default after 12 days and the default affects both parties this means that their previous advice about the creditor being able to enforce at any time if they produce the document false.

I have had a number of rediculous pieces of information given to me from the TS and the oft over the last few month and now i am afraid i take averthing they say with a pinch of salt and then check it out myself.

I think a lot of the problem is that they are not used to answering questions that involve more complex issues.

Because of sites and forums like this one, people are becoming better informed and they are frankly having problems keeping up.

I was given one totally misleading pice of advice from the OFT a little while ago and was foolish enough to pass it on.

When i complained i got the sorry we are not allowed to give legal advice standard letter. I wrote them back and said that didn't stop you before.They didnt reply.

My advice now is that if you want to find something out read the regulations if you don't understand what you are reading get someone on here to help you(thats what i do) i am afraid their are no short cuts.

When you got to the TS or OFT with a complain and they come up with something like this you will know your ground and be able to say show me the regulation or case file.

 

Best regards

Peter

[joneshousehold]

In this case it might be worth some research into the words of Pofessor Goode of Queens Bench. QB is a division of the courts and I am not aware of professorships in QB (although I do admit my knowledge is very limited). Perhaps a little call or note to TS asking who, what, where and when etc to get more of a lowdown on this piece of advice. If it's in the public domain, ask to see it. If not ask why not and under what authority is it being used if not public

 

Just a few thoughts out loud

[maybelline]

okay, trying to sort out an agreement 'arrangement' my family member has, they are in a right state but looking at it, they have all the debt managed by a debt management company who send the payments on, these payments are all up to date and he has a record of them, however - Black Horse have continued to apply interest and make charges, on the back of every monthly letter is a what appears to be a charge of £575!? also this fee is appearing as a Supplemental Notice with Notice of Default x 3? I dont know if this is a running total for charges or a new charge every time. I am just trying to wade through it but it seems a dpa first then ask for the charges back?

[Jeff2000]

ian1969uk

 

 

"But they haven't complied with S77/78 according to TS, as anything given after the 12 working days isn't given under S77/78."

 

 

 

So, if they are not answering to a request under s77 or s78, what are they answering to?

 

They only know that you want a copy of your agreement, because they received a request under s 77 or s78!

 

They cannot possibly be answering to anything else!

 

Just my thoughts.

 

 

Regards, Jeff.

[zubo]

okay, trying to sort out an agreement 'arrangement' my family member has, they are in a right state but looking at it, they have all the debt managed by a debt management company who send the payments on, these payments are all up to date and he has a record of them, however - Black Horse have continued to apply interest and make charges, on the back of every monthly letter is a what appears to be a charge of £575!? also this fee is appearing as a Supplemental Notice with Notice of Default x 3? I dont know if this is a running total for charges or a new charge every time. I am just trying to wade through it but it seems a Data Protection Act first then ask for the charges back?

 

Maybelline

 

I would do both CCA and full SAR... hit them between the eyes and make sure they know you are looking at all aspects of the alleged debt, including whether it is enforceable... and before some smart person asks... an arrangement is not an acknowledgement of debt, particularly when you refer to Discovery of unenforceable agreement and consideration of Restitution.

 

Tell your family member to relax, they are in safe hands with you, just need a bit of work to unravel and assess the options....

 

Z

[zubo]

All

 

A couple of observations:

 

A ‘true copy’ of an agreement principally consists of the terms and conditions of the agreement and the statutory content of the agreement. The name, address and signature of the debtor do not have to be provided. Additionally, the creditor must supply the total sum paid under the agreement by the debtor; the total sum which has become payable under the agreement but remains unpaid; and the total sum which is to become payable under the agreement by the debtor (the latter two must include the various amounts comprised in that total sum and the date when each is/was due). However, the copy must be a copy. It need not be exact on immaterial points, but it cannot be a conjectured reconstruction. please note this: with the terrific software packages around it is very easy for me, never mind anyone else, to reconstruct your agreement. Doing so actually amounts to Fraud, and if MIB are reading this - you know who I am referring to. So PLEASE, check your 'agreement' carefully. If the trader has no original copy, the trader will have difficulty showing that he has complied with the regulation by supplying a ‘true copy’, since nobody would know what was in the original.

There is also a common tendency for Creditors to supply any old unsigned copy usually with current T&Cs - a failed CCA request if current T&Cs. The point is - it is easier for them to send you anything, rather than nothing and state that they have complied. ... in my case with one Creditor to say they have enclosed the agreement (and nothing was in enclosed!!). It is up to you to reject it and keep rejecting... you do not have to give a reason, let them use their legal budget to work it out.

When the trader comes to enforce the debt in court, he needs to have a signed copy of the agreement in order to enforce. As the law stands currently he cannot otherwise.

This is the key point - a request under cpr 4.6 makes it pretty difficult for them to procede without every i dotted and t crossed in accordance with CCA

 

Z

[maybelline]

thanks Zubo, it is infuriating to think the management co is chaging a fee for this service and somehow has managed to make matters worse, they are still receiving phonecalls, letters, charges, interest, defaults, whats the point? I have shot off some harrassment letters and CCA request today, plus doing the SAR as you suggest.

[un1boy]

Guys,

 

Can you check over the POCs I want to enter for a company who supplied an agreement with no prescribed terms and have not supplied terms and conditions or a statement of account in response to my sec 78 request sent august 2006 - yes, 2006.

 

I really need to get the defaults removed now....

 

http://www.consumeractiongroup.co.uk/forum/legalities/102075-please-check-pocs-breach-2.html

 

Cheers in advance.

[the main man]

CCA 1974 S.172

 

172 Statements by creditor or owner to be binding

 

(1) A statement by a creditor or owner is binding on him if given under—

section 77(1),

section 78(1),

section 79(1),

section 97(1),

section 107(1)©,

section 108(1)©, or

section 109(1)©.

 

(2) Where a trader—

 

(a) gives a customer a notice in compliance with section 103(1)(b), or

(b) gives a customer a notice under section 103(1) asserting that the customer is not indebted to him under an agreement,

 

the notice is binding on the trader.

 

(3) Where in proceedings before any court—

(a) it is sought to rely on a statement or notice given as mentioned in subsection (1) or (2), and

(b) the statement or notice is shown to be incorrect,

 

the court may direct such relief (if any) to be given to the creditor or owner from the operation of subsection (1) or (2) as appears to the court to be just.

 

(edited)

 

Hey PETER... you beat me to it this time

 

rgds

Dave

 

There's still one thing niggling me about section 172, and the whole TS thing and that is the last paragraph above.

 

Under what circumstances would they give relief to the creditor?

[wednesday1867]

All i know is, im on a DMP with Payplan, 6 creditors in total, thanks to the Consumer Credit Act and the creditors lack of holding onto important stuff, ive just emailed Payplan asking them to with hold Payment on all creditors as they are all in default

 

The biggest thanks goes to Cag and caggers who are here helping people like me and its ever so much appreciated, thanks

[angel49]

Hi good people,me again with yet another problem. could someone have a look at these agreement( s) The agreement checker is saying it's unenforceable and throwing the APR out as -1.9%

I've purposely left part of my signature in as it looks a little different on the copy they supplied, the 2nd document.

Thanks

 

[out of cash]

HI ZUBO

 

does the creditors sig need to be on the cca copy?

 

regards

 

out of cash

[un1boy]

cash,

 

to comply with a sec 77-79 request the creditor can send an agreement with no signatures at all.

 

that's why u should say you are questioning the validity of it and requeire the sigs.

[surprise]

Angela, who typed the date in under your signature - seems funny, usually its handwritten!!!!

[angel49]

Hi surprise

That, and my signature seem different. The initial D starts in different places.

What to do now/about it by way of responding is the question.

Thanks for your input

[surprise]

I'm in the same boat with one of my creditors, I have a meeting tomorrow with Trading Standards. I would get in touch with your local TS, especially if you think its not your signature.

[minky93]

In this case it might be worth some research into the words of Pofessor Goode of Queens Bench. QB is a division of the courts and I am not aware of professorships in QB (although I do admit my knowledge is very limited). Perhaps a little call or note to TS asking who, what, where and when etc to get more of a lowdown on this piece of advice. If it's in the public domain, ask to see it. If not ask why not and under what authority is it being used if not public

 

Just a few thoughts out loud

 

Found this on UEA Norwich (don't know if it is the same Prof Goode?)

 

Professor Sir Roy Goode is the pre-eminent academic commercial lawyer of his generation. During his long and distinguished career, he has been a solicitor and barrister (he was appointed a Queen's Council in 1990),

minky xxx

[angel49]

Signed this at powerhouse store. It could well be my signature but from another document as I've had other goods previous.

If this is a true copy, to my mind it should mirror the original signed?

[monopoly23]

A true copy should be just that. Looks a bit dodgy to me...

[hellhasnofury]

Hello guys,

 

Please please have a look at this thread and the letters that have been sent and received to this poor lady.

 

She has asked twice for help on this thread and nobody has responded.

I too would be very interested in your views.

 

This is the thread the letter are towards the end page.

 

Please have a look:D

 

NAT WEST will not return my PPI

[Peterbard]

Hi good people,me again with yet another problem. could someone have a look at these agreement( s) The agreement checker is saying it's unenforceable and throwing the APR out as -1.9%

I've purposely left part of my signature in as it looks a little different on the copy they supplied, the 2nd document.

Thanks

 

 

HI A

Yes the leeway for APR according to the regs is .1% under or 1 % over this would not make the agreement unenforceable via 127(3)as APR is not a prescribed term.

THe agreement could be said to be missleading and you could get a ruling as to unenforceability under subsection 2 of 127 or if it was a reflection of an incorrect interest rate, that is a pp and would make it so.

Best regards

Peter

[Peterbard]

In this case it might be worth some research into the words of Pofessor Goode of Queens Bench. QB is a division of the courts and I am not aware of professorships in QB (although I do admit my knowledge is very limited). Perhaps a little call or note to TS asking who, what, where and when etc to get more of a lowdown on this piece of advice. If it's in the public domain, ask to see it. If not ask why not and under what authority is it being used if not public

 

Just a few thoughts out loud

 

Hi J's

 

I have had a look on line and there are a lot of mentions of this chap so many in fact that it would take an age to find the reference that is being referred to howeer if there is someone out there that has the time it would be greatly appretiated .

 

best regards

Peter

[louiboy]

Hi Peter, can you help with my understanding of this agreement from Black Horse. (1998)

 

 

 

I believe it to be unenforceable under s127 CCA 1974. It's missing the prescribed term of interest.

 

S3.39 of the Consumer Credit Regulations 1983 state the interest rate must be stated as a Per Annum figure. APR is not a prescribed term. Only interest rate stated is a monthly figure of 1.87%

 

Think it's also unenforceable because the PPI payments are rolled into the total monthly payment and their was no separate breakdown on the costs of PPI. Making the monthly payment figure of this incorrect. Should be something like £44.69.

 

Louiboy

[BLADES65]

I am trying to have a default removed issued by Capital One in 2004. The account was settled by way a full & final offer which they accepted.

I have checked my CRA file and the account is showing as partially settled and has a default showing.

 

The thing is I genuinely never received a default notice or statement. The F&F was made and paid specifically in order to avoid a default.

I sent off a CCA request and requested a copy of the original default and proof of service to them and received a letter back along with a dubious Application, a set of recent T&C's and template print outs of their standard default notice and default statement.

 

They state in the letter they have no obligation to provide a copy of the default notice and statement of default but confirm the date of default issue as 23rd January 2004 and statement of default issue of 12th February 2004.

 

Can anyone tell me if they do have an obligation to supply the information regarding the default notices and what regulations I can make reference to in my next letter to them

[minky93]

Hi J's

 

I have had a look on line and there are a lot of mentions of this chap so many in fact that it would take an age to find the reference that is being referred to howeer if there is someone out there that has the time it would be greatly appretiated .

 

best regards

Peter

 

Hi! Peter

 

Is there anymore info as to what the reference is!

is it a specific refernece? or the whole Book? or case specific? that everyone is looking for?

 

In the meantime I found this that refers to judgement made

 

HOUSE OF LORDS

 

Lord Browne-Wilkinson Lord Nicholls of Birkenhead

Lord Hoffmann Lord Saville of Newdigate Lord Hobhouse of Wood- borough

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

 

IN THE CAUSE

 

DIMOND

(ORIGINAL APPELLANT AND CROSS-RESPONDENT)

v.

LOVELL

(ORIGINAL RESPONDENT AND CROSS-APPELLANT)

ON 11 MAY 2000

Judgments - Dimond (Original Appellant and Cross-Respondent) v. Lovell (Original Respondent and Cross-Appellant)

 

C.I.S. adopts Professor Goode's definition of credit (Goode, Consumer Credit Legislation, looseleaf ed., vol 1, para. 443) which was approved by the Court ...

 

If you can give me anymore info as what I am actually looking for I will see what else I can find..

 

Got more than enough time on my hands as I am disabled and at home all day.

minky xxx