Cap1 & CCA return

[tomterm8]

 

Thus I feel it is inappropriate for this Service to comment on the validity

of the copy document referred to by 1st Credit Ltd as being your executed loan agreement. Who can state whether the agreement is enforceable or not then you pillock?

 

 

Actually, what TS says seems to be basically correct. They can send a document to you that is reconstituted / removes sig etc and not be in criminal breach.

 

Ultimatly, TS told you the agency that CAN definitively state whether a credit agreement is enforceable. That agency is the court.

 

i would suggest rather that wasting your time further complaining to TS, you should issue an application for disclosure via the court. Expensive, but the court is the only agency that can require them to hand over the original copy of the credit agreement you require.

[conar686]

Actually, what TS says seems to be basically correct. They can send a document to you that is reconstituted / removes sig etc and not be in criminal breach.

 

Ultimatly, TS told you the agency that CAN definitively state whether a credit agreement is enforceable. That agency is the court.

 

i would suggest rather that wasing your time further complaining to TS, you should issue an application for disclosure via the court. Expensive, but the court is the only agency that can require them to hand over the original copy of the credit agreement you require.

 

Thanx for the clarification Tom:) , I can't financially afford to initiate courts action:( . The only options are to keep plugging away until I get someone to take notice:x or stop paying and wait for them to take me to court and with the help of CAG neatly put them back in their box so far no one has taken this option.

 

Surrey TS seem to think missing statutory timelines is not an offence worth investigating

[car2403]

Quick question - is a CCA that is signed but neither signature (mine, or their Agents) is dated. Does this mean the agreement is unenforceable, or enforceable with a Court order only?

 

In this position with GE Money;

 

http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/110148-car2403-ge-capial-bank.html[url=http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/110148-car2403-ge-capial-bank.html][/url]

[tomterm8]

Thanx for the clarification Tom:) , I can't financially afford to initiate courts action:( . The only options are to keep plugging away until I get someone to take notice:x or stop paying and wait for them to take me to court and with the help of CAG neatly put them back in their box so far no one has taken this option.

 

Surrey TS seem to think missing statutory timelines is not an offence worth investigating

 

Are you in receipt of benefit, etc? some people are exempt from some court costs.

 

Otherwise, simply send them a letter asking them to take you to court.

 

As i said, if they've sent you a unsigned copy of the agreement, this probably fulfills the criminal requirements of s77-79 of the CCA 1974. In these circumstances, TS has investigated, and found that what the creditor has sent you complies with these sections of the act.

 

doesn't mean the agreement is enforceable, however.

[conar686]

Are you in receipt of benefit, etc? some people are exempt from some court costs. In a DMP

 

Otherwise, simply send them a letter asking them to take you to court. Might just do this at the moment its in stalemate, IMHO the account isn't large enough for them to bother

 

As i said, if they've sent you a unsigned copy of the agreement, this probably fulfills the criminal requirements of s77-79 of the CCA 1974. In these circumstances, TS has investigated, and found that what the creditor has sent you complies with these sections of the act.

 

doesn't mean the agreement is enforceable, however.

 

Thanx again Tom, however TS have not taken action either against NR or 1C despite their being a clear case (missed timelines) for them to do so.

 

I've attached the agreement for opinion - Enforceable or not. They (NR & 1C) have also failed to provide any T&CS despite numerous requests.

 

http://i189.photobucket.com/albums/z61/conar686/NthRockagreementv2.jpg

[tomterm8]

Thanx again Tom, however TS have not taken action either against NR or 1C despite their being a clear case (missed timelines) for them to do so.

 

I've attached the agreement for opinion - Enforceable or not. They (NR & 1C) have also failed to provide any T&CS despite numerous requests.

 

http://i189.photobucket.com/albums/z61/conar686/NthRockagreementv2.jpg

 

 

it seems to me that it is improperly executed but enforceable by the court at its discretion (assuming you signed it). However, I haven't done any maths.

[noomill060]

This guy needs some urgent advice. I asked him to come to this thread.

 

Barclaycard are in breach of his CCA request, owe the guy a fortune in charges and have made the mistake of starting enforcement action against him.

 

http://www.consumeractiongroup.co.uk/forum/legalities/116897-ccj-barclaycard-advice-please.html#post1179140

[Peterbard]

Thanx again Tom, however TS have not taken action either against NR or 1C despite their being a clear case (missed timelines) for them to do so.

 

I've attached the agreement for opinion - Enforceable or not. They (NR & 1C) have also failed to provide any T&CS despite numerous requests.

 

http://i189.photobucket.com/albums/z61/conar686/NthRockagreementv2.jpg

 

 

Hi

 

All the prescribed terms are theree the APR is correct at 9.106% rounded the tap and tcc ar also correct

 

Regards

Peter

[shane5408]

http://i189.photobucket.com/albums/z61/conar686/NthRockagreementv2.jpg

 

 

Is this a non cancellable agreement? Can't see any cancellation details on there?

 

regards,

shane

[car2403]

Thanx again Tom, however TS have not taken action either against NR or 1C despite their being a clear case (missed timelines) for them to do so.

 

I've attached the agreement for opinion - Enforceable or not. They (NR & 1C) have also failed to provide any T&CS despite numerous requests.

 

http://i189.photobucket.com/albums/z61/conar686/NthRockagreementv2.jpg

 

 

I can't see any statements of the debtors right of cancellation as required by s.64(1) and Reg.2(3) of the Consumer Credit (Agreements) Regulations 1983. (SI1983/1553), so it's improperly executed under s.64(5). Any application for an Enforcement Order - s.65(1) - as a result of this improper execution under s.64(1), must therefore be dismissed by the Court by virtue of s.127(4)(b). If it's a cancellable agreement.

Also can't see any details of the protection and remedies available under the Act, as prescribed in s.60(1) and the regulations. (SI1983/1553) They can get a s.65(1) Enforcement Order here, but you can argue you are prejudiced under s.127(1)(i).

Peter is our resident expert, so I'm sure he'll confirm all this for you. (and me, hopefully!)

[shane5408]

Quick question - is a CCA that is signed but neither signature (mine, or their Agents) is dated. Does this mean the agreement is unenforceable, or enforceable with a Court order only?

 

In this position with GE Money;

 

http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/110148-car2403-ge-capial-bank.html

 

I think this would make the agreement improperly executed rendering enforcment only possible via court order. However, having read your thread and see the alleged agreement it would seem the creditor has covered their bases with regards to providing prescribed terms. For this type of agreement prescribed terms are Repayments, Rate of Interest & Credit limit. The Regs also say a statement to the effect stating how these terms are to be determined should they not be stated already will suffice. For eg it says on the agreement 'we will determine your credit limit and give you notice of it.''

[wobbles1914]

Hi folks,

 

I have updated my thread with the POC details.

 

Thanks again for your help. I have to step out for a few hours this afternoon but will answer any questions later.

 

My thread is: HERE

 

Wobbles

[Peterbard]

Quick question - is a CCA that is signed but neither signature (mine, or their Agents) is dated. Does this mean the agreement is unenforceable, or enforceable with a Court order only?

 

In this position with GE Money;

 

http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/110148-car2403-ge-capial-bank.html

 

Hi

Yes a cancelable agreement should be signed and dated by both prties i it is to be properly executed if it is not it is enforceable only by order of the court section 65.

 

1983/1553

(3) The signature of the said document shall be made in the following

manner-

 

(a)

by the debtor or hirer, or by or on behalf of the debtor or hirer in the

case of a partnership or an unincorporated body of persons, in the

space in the document indicated for the purpose, and, subject to sub·

paragraph (e) below, the date of the signature shall be inserted in the

space in the document indicated for the purpose;

(b)

by the creditor or owner, or by a person on his behalf, outside any

signature box in which the debtor or hirer may sign and, subject to

sub-paragraph (e) below, the date of the signature shall be inserted

outside any such signature box;

(e)

in the case of a regulated agreement which is not a cancellable

agreement, the date on which the unexecuted agreement becomes an

executed agreement may be inserted in the document and in such a

case any other date specified in paragraphs (a) and (b) above need not

be inserted; and

Ill/Ix

 

Bet regards

Peter

[Peterbard]

I can't see any statements of the debtors right of cancellation as required by s.64(1) and Reg.2(3) of the Consumer Credit (Agreements) Regulations 1983. (SI1983/1553), so it's improperly executed under s.64(5). Any application for an Enforcement Order - s.65(1) - as a result of this improper execution under s.64(1), must therefore be dismissed by the Court by virtue of s.127(4)(b). If it's a cancellable agreement.

 

Also can't see any details of the protection and remedies available under the Act, as prescribed in s.60(1) and the regulations. (SI1983/1553) They can get a s.65(1) Enforcement Order here, but you can argue you are prejudiced under s.127(1)(i).

 

Peter is our resident expert, so I'm sure he'll confirm all this for you. (and me, hopefully!)

 

Hi

 

It really depends on weather ther was any face to face contact between debtor and creditor bofore the execution of the agreement.If there was then yes the agremeent should be cancellable and you should have recived information as per secton 64 if you didnt then i am afraid in those pre ditance marketing contract days the agrement would be. uncancellable.

 

best reagrds

Peter

[conar686]

Hi

 

It really depends on weather ther was any face to face contact between debtor and creditor bofore the execution of the agreement.If there was then yes the agremeent should be cancellable and you should have recived information as per secton 64 if you didnt then i am afraid in those pre ditance marketing contract days the agrement would be. uncancellable.

 

best reagrds

Peter

 

Peter is correct in his assumption that there was no face to face, this loan was applied for after receiving a flyer through the post. However there is no remedies statement on the signature page and I think this makes it unenforceable without an order from the court. The remedies disclaimer is more than likely in the T&Cs that they've never sent.

 

Any further comments welcome.

 

rgds

 

Mac

[car2403]

Peter is correct in his assumption that there was no face to face, this loan was applied for after receiving a flyer through the post. However there is no remedies statement on the signature page and I think this makes it unenforceable without an order from the court. The remedies disclaimer is more than likely in the T&Cs that they've never sent.

 

Any further comments welcome.

 

rgds

 

Mac

 

If they've failed to provide the T&C's, they can't now rely on them to request an enforcement order, can they? Hardly seems fair if they can.

[conar686]

Hi

 

It really depends on weather ther was any face to face contact between debtor and creditor bofore the execution of the agreement.If there was then yes the agremeent should be cancellable and you should have recived information as per secton 64 if you didnt then i am afraid in those pre ditance marketing contract days the agrement would be. uncancellable.

 

best reagrds

Peter

 

Peter

 

I seem recall you (or another SME) stating, at just having the APR rather than the rate of interest, stated was cause for an agreement to be unenforceable unless through a courts order, is this still the case?

[shane5408]

Peter

 

I seem recall you (or another SME) stating, at just having the APR rather than the rate of interest, stated was cause for an agreement to be unenforceable unless through a courts order, is this still the case?

 

 

Hi,

 

I think you're referring to In Running Credit Agreements where the above would apply, as far as I'm aware prescribed terms for fixed sum agreements are Repayments and Amount of Cedit.

 

Since your agreement was pre 2004 and there was no antecedant contact prior to the agreement being signed it would seem this is a Cancellable agreement. However, I did notice it said it said ''by signing the agreement you confirm that the information is correct.....etc and you agree to the terms above and overleaf.'' Cancellation rights may well have been on the flip side of the document.

 

regards,

shane

[car2403]

Hi,

 

I think you're referring to In Running Credit Agreements where the above would apply, as far as I'm aware prescribed terms for fixed sum agreements are Repayments and Amount of Cedit.

 

Since your agreement was pre 2004 and there was no antecedant contact prior to the agreement being signed it would seem this is a Cancellable agreement. However, I did notice it said it said ''by signing the agreement you confirm that the information is correct.....etc and you agree to the terms above and overleaf.'' Cancellation rights may well have been on the flip side of the document.

 

regards,

shane

 

But...

 

If they've failed to provide the T&C's, they can't now rely on them to request an enforcement order, can they? Hardly seems fair if they can.

 

I wonder what a Judge would say? Inadmissible evidence as not provided as part of the CCA request? Absence of T&C's provided have prejudiced, so refuse an Enforcement Order?

 

Sounds like a lottery to me...

[Peterbard]

Hi,

 

I think you're referring to In Running Credit Agreements where the above would apply, as far as I'm aware prescribed terms for fixed sum agreements are Repayments and Amount of Cedit.

 

Since your agreement was pre 2004 and there was no antecedant contact prior to the agreement being signed it would seem this is a Cancellable agreement. However, I did notice it said it said ''by signing the agreement you confirm that the information is correct.....etc and you agree to the terms above and overleaf.'' Cancellation rights may well have been on the flip side of the document.

 

regards,

shane

 

Hi yes Shane is corred tthe intest rat is not a prescribed term on a fixed sum agreement in fact it is not even a required term on pre 2005 agreements.

In order to conform with the format requirments of the regs a notice of the cancellation rights should be next to the signature box.

If there is no terms and conditions then i would think it would be difficult to enforce as ,as you say none of the remedies or protection information was present and sction 127(1) would be an appropriate option.

 

Best regards

Peter

[Fred_Funk]

Apologies for butting in, and for posting this a second time, but it's like this...

 

On April 5, I sent a CCA request to Honours Student Loans with regard to my student loan account (two loans dating from the early 90s).

 

On April 27, they replied with an illegible copy of one of the two loan agreements - I could read bits but not the small print and could see, clearly, that it hadn't been signed at their end - and no terms and conditions for either.

 

A little later, on July 25, I wrote back clarifying that I expected legible copies of both loan agreements, together with terms and conditions, and a statement of account. I also pointed out that by now, HSL were in default and had committed a criminal offence.

 

Yesterday, almost six months after my original request, HSL finally managed to send me copies of both loan agreements and 'a standard copy of the terms and conditions that would have been applicable at the time of your loans'.

 

Now this is where the fun begins!

 

One of the loan agreements, HSL sent me a copy of has, clearly, been doctored since they first sent it to me back in April. Where it was unsigned by them it is now signed and where I'd inadvertently dated it incorrectly the date has now been altered to the correct one.

 

Of course, it would be difficult for me to prove this had the idiots not already sent me a rather different copy of the same loan agreement.

 

I can only assume that this time around someone spotted the errors/omissions, guessed that I would do the same and thought they'd put them right while forgetting they'd already sent me a copy of the loan agreement which, while not entirely legible, is very different to this one.

 

Surely, this kind of underhand behaviour ought not to be tolerated and, with this in mind, I'd like to do what I can to ensure HSL have the proverbial book thrown at them.

 

To this end, how do you guys think I should proceed from here?!

 

Thanks in anticipation

Fred_Funk

[shane5408]

Hi Fred

 

can upload both agreements so we can take a look.

 

 

regards,

shane

[reallymadwoman]

Can I please have an opinion on this from one of the many CCA experts on this thread?

 

If you are sold something that is most definitely a credit card and should therefore be subject to the CCA, what is the likely effect of the agreement being 'disguised' as a bank account and so not subject to the CCA?

 

I'm thinking along the lines of loss of protection offered by the CCA in terms of how the credit was sold, terms and conditions, rules about termination etc. What would be the real advantage of this to a creditor?

 

Not surprisingly the CCA doesn't seem to mention agreements which should be subject to the Act but are not.

[shane5408]

Hiya,

 

not entirely sure how the creditor would go about disguising it but I would think a SAR would furnish you with all the information you need from them. Is this something you believe a credior is trying to do, could you give us some more details

 

 

kind regards,

shane

[reallymadwoman]

Hi,

I originally did a CCA request as I thought the account was for a credit card. Bearing in mind it was originally issued before debit cards were around, I had a plastic card, I got a monthly statement showing a minimum payment and 'available to spend' and it is described as a credit/store card on my credit file.

I've not had an official response to my CCA request, I just happened to get a copy of the agreement as it was on the same piece of paper as a loan. An S.A.R - (Subject Access Request) has just produced some, not all, of the statements.

However the agreement is actually for a bank account. There is no apparent means of making regular credits to the account, e.g. a salary, or paying standing orders or DDs from the account, and there was no paying in book, but it's definitely an agreement for a bank account with an overdraft.

Obviously it is actually a credit card, so why do it as a bank account? There must be some reason, good or otherwise.