Cap1 & CCA return

[davefirewalker]

As peter will tell you (I hope) this would only apply if the agreement had all the prescribed terms on it.

 

basically this would allow them to enforce an agreement written on the back of a bus ticket...if it had all the terms.

 

if the agreement doesnt have all the prescribed terms, it would be uneforceable

 

However if all the terms were there and the creditor hadn't signed then they would have to go to court to enforce it

 

Dave

[shane5408]

As peter will tell you (I hope) this would only apply if the agreement had all the prescribed terms on it.

 

basically this would allow them to enforce an agreement written on the back of a bus ticket...if it had all the terms.

 

if the agreement doesnt have all the prescribed terms, it would be uneforceable

 

However if all the terms were there and the creditor hadn't signed then they would have to go to court to enforce it

 

Dave

 

Hi Dave,

 

nice to see you're subscribed to this thread as well. I think you're right, Upon closer inspection according to S.127 (3) of CCA the court, at the very least requires an agreement that contans the debtors signature AND the prescribed terms prevalent in Statutory instruments 1983/1553 Schedule 6 directed by section 60 of the act namely being the Interest Rate, Credit Limit and Repayments to even think about granting an enforcement order. If these prescribed terms are not included in the agreement then subsection 5 does not apply.

[Peterbard]

Hi Shane and Dave

What i did when i first saw this clause 127(3) is remove all the brackets(and information contained therin) and then read it and add them back in by one. If you do that the meaning becomes clearer and it is that, An Agreement must have the prescribed terms and the debtors signature contained within it in order to be enforceable or conversely without them it is totally unenforceable.

 

If the agreement has not complied with other matters of form and content made under section 60 of the act and laid down in regulations1983/1553 then it is only enforceable with a court order.

 

on the 6th April 2007 the unenforceability afforded to section 127 via subsections (3-5) was rescinded this means that any agreements made on or after that date even if the do not have the prescribed terms cannot be unenforceable but fall back on section 60 which would make them enforceable only by order of the court.

 

The second red bit IMO refers to the enforcement orders that can be made ie those with the prescribed terms and signed but with some other term( notice it doesn’t say prescribed term) missing and gives the court the power to consider that they are OK and to continue to enforce(this is to stop claims for unenforceability on minor breaches of section 60.)

 

There is no way that an agreement that is unsigned by the debtor can be considered properly executed in fact you could argue that because of section 61 the agreement was not executed at all.

 

Hope this helps

 

Just to add a comment on a completely different subject.

I think we are going to have to alter our thinking on the way we pursue these unenforceability issues.

We seem to be looking at agreements and if they contain the prescribed terms and a signature saying OK. there is nothing we can do it's enforceable.

Often this is not the case, i am thinking about the credit card agreements that are cropping up that do not even attempt to conform to the regulations on forms and content ,we should be making the creditors go to court for permission to enforce. Let’s face it that’s what we are going to after do with post 2007 agreements anyway. What is there to loose, send them a letter saying this agreement is unenforceable without a court order because it does not conform to regulations in that.... The worst that can happen is you get a repayment holiday and no interest added to your account whilst it is in dispute. Then we will see what the courts will and will not stand for in the respect of compliance.

 

Best Regards

 

Peter

[shane5408]

Hi Shane and Dave

What i did when i first saw this clause 127(3) is remove all the brackets and then read it and add them back in by one. If you do that the meaning becomes clearer and it is that, An Agreement must have the prescribed terms and the debtors signature contained within it in order to be enforceable or conversely without them it is totally unenforceable.

 

If the agreement has not complied with other matters of form and content made under section 60 of the act and laid down in regulations1983/1553 then it is only enforceable with a court order.

 

on the 6th April 2007 the unenforceability afforded to section 127 via subsections (3-5) was rescinded this means that any agreements made on or after that date even if the do not have the prescribed terms cannot be unenforceable but fall back on section 60 which would make them enforceable only by order of the court.

 

The second red bit IMO refers to the enforcement orders that can be made ie those with the prescribed terms and signed but with some other term( notice it doesn’t say prescribed term) missing and gives the court the power to consider that they are OK and to continue to enforce(this is to stop claims for unenforceability on minor breaches of section 60.)

 

There is no way that an agreement that is unsigned by the debtor can be considered properly executed in fact you could argue that because of section 61 the agreement was not executed at all.

 

Hope this helps

 

Just to add a comment on a completely different subject.

I think we are going to have to alter our thinking on the way we pursue these unenforceability issues.

We seem to be looking at agreements and if they contain the prescribed terms and a signature saying OK. there is nothing we can do it's enforceable.

Often this is not the case, i am thinking about the credit card agreements that are cropping up that do not even attempt to conform to the regulations on forms and content ,we should be making the creditors go to court for permission to enforce. Let’s face it that’s what we are going to after do with post 2007 agreements anyway. What is there to loose, send them a letter saying this agreement is unenforceable without a court order because it does not conform to regulations in that.... The worst that can happen is you get a repayment holiday and no interest added to your account whilst it is in dispute. Then we will see what the courts will and will not stand for in the respect of compliance.

 

Best Regards

 

Peter

 

Hello Peter,

 

Thanks for clarifying that for me. I do plan of challenging the enforcability of the supposed agreements my creditors have sent me in court. I was wondering though, if the judge was to grant the enforcement order (highly unlikely i know) would that then mean that i would be liable for costs?

 

Another concern i had was if, during the court proceedings the enforcable agreement (containing all prescribed terms) was to suddenly turn up. As far as i understand it the creditor has a duty to provide a true copy of the agreement which as we know subject to the REgs can omit certain info. What happens if we challenge the enforcability of the agreement and then when it is heard before the judge the creditor simply produces the original agreement (that we all thought didn't exist!). Is there a way, a means of forcing the creditor to produce the original agreement (if they have it) which is enforcable beforehand, ie either they show it now or later on if it mysteriously appears it is inadmissable, something along those lines?

 

Another point worth mentioning is the possibility of making a substantially reduced full and final offer the creditor once you have made them aware the agreement is unenforcable. my thinking is that, in normal circumstances with 'bad debt' accounts they would sell them on to DCA's for reduced fee anyway but as the account is in dispute they don't have that option. Also, the last thing they want is for it to become public knowledge that they cannot enforce their agreements in court. if you offer them a reduced full and final offer settlement normally around 10% of the total debt (amount depends on how probable it is it can be classed as enforcable by court order) you may find they will accept

[Peterbard]

Hi

 

 

When you make the creditor go to court to enforce you are mearly using your stutory rights as laid down by the act.

The only way things could go against you is if you got your facts wrong but i think it is quite clear what is required within the regulations.

In cases where the agreement is enforceable the judge will make an order amending the tems of the agreement as the act allows him to do.

 

If the creditor was to produce ana greement within the hearing the judge would not be best pleased and would want to know why the creditor had wasted the courts time.

You can send the creditor a request claiming pre action protocol 4.1 which would require them to produce the documentation prior to the hearing.

If they didn't and it subsiquenty turned up you could produce this and they would be in very hot water.

 

Best regards

Peter

[Peterbard]

Hi

 

 

When you make the creditor go to court to enforce you are mearly using your stutory rights as laid down by the act.

The only way things could go against you is if you got your facts wrong but i think it is quite clear what is required within the regulations.

In cases where the agreement is enforceable the judge will make an order amending the tems of the agreement as the act allows him to do.

 

If the creditor was to produce ana greement within the hearing the judge would not be best pleased and would want to know why the creditor had wasted the courts time.

You can send the creditor a request claiming pre action protocol 4.1 which would require them to produce the documentation prior to the hearing.

If they didn't and it subsiquenty turned up you could produce this and they would be in very hot water.

 

Best regards

Peter

[shane5408]

Hi

 

 

When you make the creditor go to court to enforce you are mearly using your stutory rights as laid down by the act.

The only way things could go against you is if you got your facts wrong but i think it is quite clear what is required within the regulations.

In cases where the agreement is enforceable the judge will make an order amending the tems of the agreement as the act allows him to do.

 

If the creditor was to produce ana greement within the hearing the judge would not be best pleased and would want to know why the creditor had wasted the courts time.

You can send the creditor a request claiming pre action protocol 4.1 which would require them to produce the documentation prior to the hearing.

If they didn't and it subsiquenty turned up you could produce this and they would be in very hot water.

 

Best regards

Peter

 

Hi Peter,

 

Pre action protocol 4.1, interesting must admit i'm not familiar with it; is it in the CCA or some other instrument? It's sounds like its exactly what i'm looking for!

 

I'm glad there isn't much risk of having costs awarded against me, as you say the facts are quite clear about what is required in the regulations. I was under the impression that having a creditor take you to court to try and get an enforcement order was similar to a moneyclaim case where the loosing party is liable for costs, how glad i am to be wrong!

 

kind regards,

Shane

[patrickq1]

Hi Shane and Dave

What i did when i first saw this clause 127(3) is remove all the brackets(and information contained therin) and then read it and add them back in by one. If you do that the meaning becomes clearer and it is that, An Agreement must have the prescribed terms and the debtors signature contained within it in order to be enforceable or conversely without them it is totally unenforceable.

 

If the agreement has not complied with other matters of form and content made under section 60 of the act and laid down in regulations1983/1553 then it is only enforceable with a court order.

 

on the 6th April 2007 the unenforceability afforded to section 127 via subsections (3-5) was rescinded this means that any agreements made on or after that date even if the do not have the prescribed terms cannot be unenforceable but fall back on section 60 which would make them enforceable only by order of the court.

 

The second red bit IMO refers to the enforcement orders that can be made ie those with the prescribed terms and signed but with some other term( notice it doesn’t say prescribed term) missing and gives the court the power to consider that they are OK and to continue to enforce(this is to stop claims for unenforceability on minor breaches of section 60.)

 

There is no way that an agreement that is unsigned by the debtor can be considered properly executed in fact you could argue that because of section 61 the agreement was not executed at all.

 

Hope this helps

 

Just to add a comment on a completely different subject.

I think we are going to have to alter our thinking on the way we pursue these unenforceability issues.

We seem to be looking at agreements and if they contain the prescribed terms and a signature saying OK. there is nothing we can do it's enforceable.

Often this is not the case, i am thinking about the credit card agreements that are cropping up that do not even attempt to conform to the regulations on forms and content ,we should be making the creditors go to court for permission to enforce. Let’s face it that’s what we are going to after do with post 2007 agreements anyway. What is there to loose, send them a letter saying this agreement is unenforceable without a court order because it does not conform to regulations in that.... The worst that can happen is you get a repayment holiday and no interest added to your account whilst it is in dispute. Then we will see what the courts will and will not stand for in the respect of compliance.

 

Best Regards

 

Peter

would it also be fair to think where the credit card company has entered a default against you to another company ie experian etc (who also would be in breach for receiving and publishing info) without going to court be a breach of contract/aggreement without useing the court procedures to comply with defaults

just a thought cause i have three defaults entered when the payment where being met by the PPI insurance

patrickq1

[elsinore]

 

Pre action protocol 4.1, interesting must admit i'm not familiar with it; is it in the CCA or some other instrument? It's sounds like its exactly what i'm looking for!

 

 

It's in the Civil Procedure Rules, Shane.

 

PRACTICE DIRECTION – PROTOCOLS -

 

HTH

 

Els

[shane5408]

It's in the Civil Procedure Rules, Shane.

 

PRACTICE DIRECTION – PROTOCOLS -

 

HTH

 

Els

 

ah, that would be why I coudn't find it then! Thankyou very much

[noomill060]

patrick- Im in a similar position, credit card co defaulted me for amount 2/3rds of which is penalty charges and interest.

 

S.A.R - (Subject Access Request)'d and CCA'd them, turns out the agreement isnt actually enforceable due to Prescribed Terms being incorrect and s.127(3), but they beleive the default notice and processing to CRAs is quite legal and lawful due to their T&Cs.

 

(No doubt in the same way as they believe that penalty charges are also lawful.)

[Peterbard]

ah, that would be why I coudn't find it then! Thankyou very much

 

Hi

 

Yes sorry thanks els

 

Peter

[ncf355]

patrick- Im in a similar position, credit card co defaulted me for amount 2/3rds of which is penalty charges and interest.

 

S.A.R - (Subject Access Request)'d and CCA'd them, turns out the agreement isnt actually enforceable due to Prescribed Terms being incorrect and s.127(3), but they beleive the default notice and processing to CRAs is quite legal and lawful due to their T&Cs.

 

(No doubt in the same way as they believe that penalty charges are also lawful.)

 

 

(I'm sure PB will back me up here)

 

I've heard some rubbish from CCP's before now, but that one just takes the ....

 

If the agreement is unenforceable, they have added interest to the account without legal right to do so

 

Consequently any info they have passed to the CRA's is inacurate and therefore unlawful under the DPA 1998

 

Nail em'!

[noomill060]

Would love to, but no idea where to start.

 

(Only started all this to get the charges removed to reduce my liability to them- turns out the agreement has been unenforceable from the start, back in 1999. Credit limit given is not that as stated in the T&Cs)

 

[JonCris]

If an agreement is unenforceable then you CANNOT be defaulted because defaulting you IS in fact just another form of enforcement:rolleyes:

[shane5408]

Would love to, but no idea where to start.

 

(Only started all this to get the charges removed to reduce my liability to them- turns out the agreement has been unenforceable from the start, back in 1999. Credit limit given is not that as stated in the T&Cs)

 

 

Hiya,

 

you join the evergrowing list of us with unenforcable agreements. I know CAG doesn't encourage debt avoidance but I am at a loss at how unprofessional some of these financial companies can be. From the minute you express your civil rights and begin questioning their ethics and methodology customer service goes staight out the window. they issue charges and defaults while an account is in dispute and claim they are completely justified to do so not to mention the fact that many of them keep no record at all of agreements, upon requesting them you get send standard templates containing very few of the required prescribed terms if in fact any.

 

I say screw em, if companies of their stature cannot get these things right they have no business holding a Consumer Credit License, force them all to pathetically attempt to enforce the agreement in court, why should we standby and allow them to get away with it.

 

Here ends my rant!!

[un1boy]

Hiya,

 

you join the evergrowing list of us with unenforcable agreements. I know CAG doesn't encourage debt avoidance but I am at a loss at how unprofessional some of these financial companies can be. From the minute you express your civil rights and begin questioning their ethics and methodology customer service goes staight out the window. they issue charges and defaults while an account is in dispute and claim they are completely justified to do so not to mention the fact that many of them keep no record at all of agreements, upon requesting them you get send standard templates containing very few of the required prescribed terms if in fact any.

 

I say screw em, if companies of their stature cannot get these things right they have no business holding a Consumer Credit License, force them all to pathetically attempt to enforce the agreement in court, why should we standby and allow them to get away with it.

 

Here ends my rant!!

 

Oh, tell me about it. I hav enot paid to an unenforcable agreement since august last year and they have ignored all of my letters. I got a final demand the other day threatening legal action.

 

The funny thing is I had actually issued my N1 the day I received their letter, but the post had come whilst I was out - I told them that I would be more than happy to see them in court and that all legal costs they incur would be for them to pay, not me. Especially as I hd been writing to them telling them exactly how/why the agreement was unenforcable and asking for them to contact me to discuss settlement.

 

Silly silly companies. Now they have to pay what I am claiming in full with interest AND court costs......I would not be happy if I was one of their shareholders!!!

 

You can tell when people have more money than sense.

[noomill060]

If an agreement is unenforceable then you CANNOT be defaulted because defaulting you IS in fact just another form of enforcement:rolleyes:

 

 

Been done to death this one hasnt it?

 

Application for claim to return charges, interest levied theron and removal of default?

 

**Greed mode**

 

If agreement is unenforceable, I take it they didnt have any legal right to charge interest in the first place...?

[noomill060]

If agreement is unenforceable, I take it they didnt have any legal right to charge interest in the first place...?

 

In which case, there is no debt, as Ive paid back every penny I borrowed, the alledged debt is maup up entirely of:

 

1) Unlawful charges

 

2)Interest levied thereon

 

3)Contractual interest which they had no agreement from me to levy.

 

 

We know its not right, they know its not right and that its all down to their own incompetance.

 

Can the Courts or the FOS be trusted to see us right, though...?

[shane5408]

Been done to death this one hasnt it?

 

Application for claim to return charges, interest levied theron and removal of default?

 

**Greed mode**

 

If agreement is unenforceable, I take it they didnt have any legal right to charge interest in the first place...?

 

do you even have to ask! If agreement is unenforcable they have no right to charge interest, get it all back

[noomill060]

Absolutely.

 

We need a template!

 

Or a good solicitor, or even simply a moderately competant one!

 

Looking at the CCA, this part is as made as clear as daylight, unlike most of the rest of that monstrous epic.

[noomill060]

Defaulted for £8400 odd

 

After first letter wanting charges removed £8170 odd

 

Total of charges, interest levied on charges £7000 odd.

[noomill060]

Ive had three final demands from two different DCAs, the first one one vanished into thin air as soon as I CCAd and SARd them

 

It took 6 months and court action to get them to comply with my SAR.

 

Its taken 8 months to get them to comply with my s.78 request, finally including an email to Barclay's CEO at [email protected]

 

In the mean time, Ive had three final demands, and as soon as let them know that its blindingly obvious that the agreement is unenforceable, they back off and suspend recovery action.

 

Hmmmmm - does this sound like they know they are on a sticky wicket?

[shane5408]

Ive had three final demands from two different DCAs, the first one one vanished into thin air as soon as I CCAd and SARd them

 

It took 6 months and court action to get them to comply with my S.A.R - (Subject Access Request).

 

Its taken 8 months to get them to comply with my s.78 request, finally including an email to Barclay's CEO at [email protected]

 

In the mean time, Ive had three final demands, and as soon as let them know that its blindingly obvious that the agreement is unenforceable, they back off and suspend recovery action.

 

Hmmmmm - does this sound like they know they are on a sticky wicket?

 

Now that's what we wanna hear! Did John Varley reply to your email? Might try that tactic, currently fighting monument an Solution Finance who are all under the Barclays umbrella

[ian1969uk]

If an agreement is unenforceable then you CANNOT be defaulted because defaulting you IS in fact just another form of enforcement:rolleyes:

 

Quite right, how can you ever be defaulted on an agreement you did not make?