Cap1 & CCA return

[ncf355]

Thanks Liz,

 

may gave me the link further back!

[ian1969uk]

Thanks for clarifying that Peter. Is this why in pre 2004 agreements the prescribed terms don't specifically have to be on the signature document itself?

 

kind regards,

shane

 

The prescribed terms must be within the signature document regardless of the date of the agreement.

[pt2537]

Ian1969uk

 

can you clarify what regs this comes under please as im curious?

[shane5408]

The prescribed terms must be within the signature document regardless of the date of the agreement.

 

Ian,

 

Believe me I would love nothing more for that to be the case but from what I can make out from the Regs nowhere does it state the terms must be on the signature document itself (pre 2005) They must be within the agreement and they must be shown clear, as a whole and not interspersed with any other details. Also, nowhere does it state the creditor is allowed to have any terms on a seperate document titled t&c's.

 

The reason i mentioned the ammendment is because it required the signature box to be under Key information and contained together as a whole with the schedule 1 info including the prescribed terms. So effectively as a result all agreements after this ammendment must have the prescribed terms as well as all other terms in sch1 on the signature document.

 

So to sum up, Imo agreements before 2005 must have all the prescribed terms within the agreement but they don't have to be on the signature document itself. Having said that they do have to be shown along with the rest of terms in sch 1 as a whole, not interspersed with any other terms. Having them in a separate document such as t&c's is not acceptable.

 

I have yet to challenge a creditor on these grounds in court, it will be a very technical argument and the biggest obstacle of all will be relaying the info to the judge. Contrary to the above though is the Wilson v Hurstanger Case:

 

 

 

33. In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under section 61 singlthat all the terms should be in a single document, and backed up by the provisions of section 127 (3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the minimum terms) are to be found in Schedule 1.

 

I have a few cases that are in this situation, when i free up my schedule a bit I'll file a claim on these grounds and see what a judges interpretation is.

 

kind regards,

shane

[katiec]

Hi,

 

Sorry to gate crash this thread but just wanted clarification please from any experts.

 

Is it correct that a CCA request on a closed credit account with a default and a satisfied CCJ on back in 2003 does not have to be fully complied with by the company?

 

I have received a response to my CCA request from Next directory with an empty signature box and incorrect name details on?! Unforunately I dont have access to a scanner so cant scan on here.

 

 

Next state in their covering letter:

 

"The correct interpretation as to "copy" requires reference to Section 189 (for definition of copy) and secondly to Section 180 relating to the Consumer Credit (cancellation Notices and Copies of Documents) Regulations 1983. (the Regulation) Looking at section 3(1) of the Regulations is it clear that "...every copy of an executed agreement...shall be a true copy thereof..." Section 3(2) confirms that a "true copy" need not include the items listed at sub-sections (a) to (d) as applicable.

 

Of particular relevance are subsections (a) and (b). These two sections confirm that (i) non-statutory information included for the creditor's own benefit and (ii) signature boxes need not be included in the true copy. Based on this analysis, it is accepted as a matter of good law that a "copy" for the purposes of Section 78 need not be an exact copy of photocopy, as long as the true copy provided contains every material provision of the agreement signed.

 

 

Is this correct what they state, that they do not have to provide an original true copy that is signed?

 

 

Many thanks in advance for any advice.

[make them aktiv runners]

Unfortunately as the agreement is settled, they do not have to comply at all:

 

77(3) Subsection (1) does not apply to—

(a) an agreement under which no sum is, or will or may become, payable by the debtor

[car2403]

Unfortunately as the agreement is settled, they do not have to comply at all:

 

77(3) Subsection (1) does not apply to—

 

(a) an agreement under which no sum is, or will or may become, payable by the debtor

 

Agreed, but that doesn't mean you can't bring an action against unlawful Default/Termination - which you're in your rights to do, as they've offered no evidence that they have done this right - and ask the Court for full standard disclosure at the AQ stage, which will mean that they have to find a properly executed (and signed!) agreement and a true signed certified copy of the original Default Notice during the trial.

[car2403]

Peter, another clarification question;

 

Overdrafts?

 

They are covered by s.10 CCA as "running account credit", but are exempt (right terminology?) from having a properly constructed agreement with all the prescribed terms, right?

 

But I've read here that they would have to have made the customer informed of the limits/interest rates when they provided the overdraft - which part of the Act/Regs covers these and does the effect of not complying with those mean that the overdraft could be, or definately is, unenforceable?

 

Also, is the s.88 Default Notice and subsequent Termination Notices compulsory on overdrafts? Again, which part of the Act/Regs cover it?

 

Is there anything else - in relation to overdrafts - that I should be asking and if so, what should/would the answer(s) to those questions be?

[paulwlton]

Peter, another clarification question;

 

Overdrafts?

 

They are covered by s.10 CCA as "running account credit", but are exempt (right terminology?) from having a properly constructed agreement with all the prescribed terms, right?

 

But I've read here that they would have to have made the customer informed of the limits/interest rates when they provided the overdraft - which part of the Act/Regs covers these and does the effect of not complying with those mean that the overdraft could be, or definately is, unenforceable?

 

Also, is the s.88 Default Notice and subsequent Termination Notices compulsory on overdrafts? Again, which part of the Act/Regs cover it?

 

Is there anything else - in relation to overdrafts - that I should be asking and if so, what should/would the answer(s) to those questions be?

 

 

A sec 76 Termination notice must be served on an overdraft balance before taking any further action.

 

Paul

[car2403]

Thanks Paul - do you think it's fair to say that a failure under a s.76 Termination Notice in line with that in Woodchester Lease Management Services Ltd v Swain & Co (which was a failure under a s.88 Default Notice to be accurate) would apply here? The reason I ask is that a s.88 Notice isn't required for an overdraft, but - at least arguably - a s.76 Notice should contain the same level of accuracy?

 

I won my claim for charges against Barclays, without them defending the case despite turning up. I'm now trying to argue that the s.76 Notice was inaccurate as it contained the value of the charges, rendering it an unlawful termination - and I'll argue that Woodchester Lease Management Services Ltd v Swain & Co applies. But what are the chances?

 

Still interested in hearing about prescribed terms for overdrafts too, as I haven't had any but need to construct some POC before issuing?

[paulwlton]

Thanks Paul - do you think it's fair to say that a failure under a s.76 Termination Notice in line with that in Woodchester Lease Management Services Ltd v Swain & Co (which was a failure under a s.88 Default Notice to be accurate) would apply here? The reason I ask is that a s.88 Notice isn't required for an overdraft, but - at least arguably - a s.76 Notice should contain the same level of accuracy?

 

I won my claim for charges against Barclays, without them defending the case despite turning up. I'm not trying to argue that the s.76 Notice was inaccurate as it contained the value of the charges, rendering it an unlawful termination - and I'll argue that Woodchester Lease Management Services Ltd v Swain & Co applies. But what are the chances?

 

Still interested in hearing about prescribed terms for overdrafts too, as I haven't had any but need to construct some POC before issuing?

 

Yes the principle is the same the figure must be accurate if it isn't the notice is invalid imo.

 

Have you read my Draft defence?

 

Paul

[car2403]

Yes the principle is the same the figure must be accurate if it isn't the notice is invalid imo.

 

Have you read my Draft defence?

 

Paul

 

Your RBS defence? Just read it - I'll apply the same principles of Default balances being correct against Termination notices as being correct in that case.

 

Is it just me, or are all Default/Termination notices now questionable since the Bank charges fiasco? What I don't understand is why they insist on non-removal without a Court case when the law is substantive and comes from primary legislation! They don't have a leg to stand on and are hoping we are so stupid that we can't even read!

 

(Rant over, but this is relevant to a CCA thread as well...)

[paulwlton]

Your RBS defence? Just read it - I'll apply the same principles of Default balances being correct against Termination notices as being correct in that case.

 

Is it just me, or are all Default/Termination notices now questionable since the Bank charges fiasco? What I don't understand is why they insist on non-removal without a Court case when the law is substantive and comes from primary legislation! They don't have a leg to stand on and are hoping we are so stupid that we can't even read!

 

(Rant over, but this is relevant to a CCA thread as well...)

 

Any notice that requires an amount to be specified to remedy a breach will be incorrect if it contains an unlawful element. This also applies to a money judgment. imo.

 

I cannot see the bank charges issue being resolved in court, the implications for the banking industry would be catastophic if they lost. I think they will cut a deal.

 

Paul

[car2403]

Peter, another clarification question;

 

Overdrafts?

 

They are covered by s.10 CCA as "running account credit", but are exempt (right terminology?) from having a properly constructed agreement with all the prescribed terms, right?

 

But I've read here that they would have to have made the customer informed of the limits/interest rates when they provided the overdraft - which part of the Act/Regs covers these and does the effect of not complying with those mean that the overdraft could be, or definately is, unenforceable?

 

I think I've just answered (or, rather, Peter has!) my own question;

 

HI

Bank current accounts are not covered by the CCA 1974 they are regulated by the FSA.

The overdraught is a running credit account and is. however due to section 74 of the act and a ruling made by the regualtor no sepperate agreement is required for it.

There should have been notification made available the debtor at the beginging of the overdraft however of the credit limit and the interest to be charged on it.

Best regards

Peter

 

Hi

 

Overdrafts are normally not subject to those elements of the Act governing form and content of an agreement(sectionV). This is because the OFT has issued a Determination under Section 74(3) of the Act excluding overdraft agreements from the need to comply. As a result of this there is usually no written agreement that a consumer can request under Section 78 of the Act. However, I should note that any Bank wishing to avail itself of the benefit of the Determination must notify the OFT of its intention to do so and is required to provide information to the prospective debtor. Specifically, the creditor must provide, in writing, at the time the agreement is concluded or before details of the credit limit if any, the annual rate of interest and any charges available, and the process for terminating the agreement.

Typically banks make such information readily available via a variety of media on an ongoing basis.

I went through all this with my sons student account,.Bank accounts of course are not covered by the cca as they are regulated by the FSA and there fore do not have to produce documents asked for under that act, the overdraft however is unfortunately due to it's exception from part V their is no agreement made so none can be provided .

 

Best regards

Peter

[ian1969uk]

Ian1969uk

 

can you clarify what regs this comes under please as im curious?

 

It's inherent in Section 127 of the CCA 1974. I think people are confusing signature document with signature page. The document can go over several pages as long as these are linked in some way. The signature does not have to be on the same page as the prescribed terms, but these terms must be in the signature document and not in another document referred to in it.

 

Section 127 (3):

 

(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).

 

If the terms are not in the signature document, how would they ever prove you agreed to them with that signature?

[Peterbard]

Peter, another clarification question;

 

Overdrafts?

 

They are covered by s.10 CCA as "running account credit", but are exempt (right terminology?) from having a properly constructed agreement with all the prescribed terms, right?

 

But I've read here that they would have to have made the customer informed of the limits/interest rates when they provided the overdraft - which part of the Act/Regs covers these and does the effect of not complying with those mean that the overdraft could be, or definately is, unenforceable?

 

Also, is the s.88 Default Notice and subsequent Termination Notices compulsory on overdrafts? Again, which part of the Act/Regs cover it?

 

Is there anything else - in relation to overdrafts - that I should be asking and if so, what should/would the answer(s) to those questions be?

 

Hi All

 

An overdraft is a running credit agreement and is covered by the cca just the same as any other the only differnce is that anything witin Part V of the legislation does not apply.so everything else does just the same as if it were a normal rca.

Yes their still seems a little confusion over the term document as mentioned by Ian a document can run over several pages a pamphlet or a book is a document the signature box has to be within the agreement or to put it another way the terms and conditions have to be contained within the signature document, but they do not have to be on the same page on an agreement prior2005.

Best regards

Peter

[pt2537]

Hi Peter,

 

Did you get a chance to look atthe agreement from Great universal in this thread http://www.consumeractiongroup.co.uk/forum/general-debt/117270-alf-great-universal-stores-3.html#post1202708 ?

 

Alf has been asking for help and it would be helpful if you could give us your views if the agreement was enforcable, in your opinion

 

Regards

paul

[shane5408]

It's inherent in Section 127 of the CCA 1974. I think people are confusing signature document with signature page. The document can go over several pages as long as these are linked in some way. The signature does not have to be on the same page as the prescribed terms, but these terms must be in the signature document and not in another document referred to in it.

 

Section 127 (3):

 

(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).

 

If the terms are not in the signature document, how would they ever prove you agreed to them with that signature?

 

Agreed,

 

I thought you were implying they need be on the exact page of the signature itself, this is only applicable to post 2005 agreements after the ammendment to the Regs came into force.

 

regards,

shane

[mfpa]

Hi. Can somebody please point me to letters to send when MBNA have "assigned" a debt to Link Financial while they are in default of a CCA request?

 

This has just happened with two of my MBNA credit cards, as detailed on my thread,which is called MFPA vs MBNA.

 

[Peterbard]

Hi Uni

 

Regarding the agreement earlier in this thread if the T and cs are not identifyable as being part of the agreement then it would be unenforceablr as the prescribed terms would not be within the signature document this is clear within the regs and even the OFT agree this is from their guidlines

 

1. 2.4 Can I include cross references?

Reg 2(4) provides that the information specified may be interspersed with cross references to the terms of the agreement – see Q2.3.

It is not however permissible in the OFT’s view to include cross references to information appearing otherwise than as part of the terms of the agreement – for example, in a separate information sheet or booklet or an accompanying letter.

 

Best regards

peter

[mamatemi1]

Why do the DCAs then think that sending you a poor copy of an application form together with generic T & c's (current!) constitutes satisfying the request? I have a bloody DCA instituting proceedings even though they are in default of my CCA having previously returning my £1.00(after three months). Did they think I would forget or they are that ignorant truly? Sorry if you have covered this but resubscribing after a break.

[andrew1]

Jumping in a bit on this thread, but thought some might be interested in something posted by EDz11 on another thread ( Thank you Edz11)

Might help some on CCA's and agreements generally:

 

 

 

I was never quite sure what the term "if any" actually meant (copies of agreements). So I contacted the man who actually wrote the Consumer Credit Act 1974 and asked if he could explain what "if any" meant.

 

He said that that some of the terms of the "executed agreement" (definition at the end of the Act) may not be in writing. They may be verbal (or implied?) terms. So there can't be written copy of a verbal agreement.

 

Upshot of that is that if you're dealing with a Bank/Credit Card Issuer/loan company then you can delete "if any" when reading ss77 etc as there won't be anything agreed verbally with that type of company as far as an executed agreement is concerned.

 

 

.

[lookinforinfo]

Would I be right in thinking then that the "if any"would apply to overdrafts?

 

Blodwyn:D

[un1boy]

Hi,

 

can someone tell me if s127(3) applies to non cancellable agreements or is it just cancellable ones

 

Any agreement regulated under the act as faras i am aware matey!

[ncf355]

Hi all,

 

 

can someone check the following for me

 

Alliance and leicester car loan

 

Has a deferred option, where after 36 months you can pay a lump sum, or carry on paying monthly

 

I believe the APR is incorrect

 

I have used the OFT's dual calc application but I need to check with you folks as well before I start getting excited

 

Loan amount 11,000

35 payments of 240.14

36th Payment (to include final lump) 4,640.14

 

APR given on document: 8.9%

 

I make it 9.1% via Dual Calc, anyone?

 

(if this is correct, is 0.2 enough to make it incorrectly stated and therefore unenforceable??)