Cap1 & CCA return

[un1boy]

Hi

 

Maybe the Original terms and conditions

 

 

y ask them for it? they will supply them and then not be brech. thye should know what they have to supply and when they dont, its easier to get them on the default route.

[shane5408]

Hi Uni,

 

Very rarely have I seen a creditor actually provide the original t&c's especially if they were pre 2002. It also demonstrates to them you are well aware of your rights under the Act & Regs. In any case it reduces the time frame as well, they would send the current t&c's, then you would send a letter back saying they ahvaen't complied you want the original then, if they have them they would send them. Might as well establish from the outset if they are able to comply or not.

 

kind regards,

shane

[car2403]

I can't see any point in pointing out what you want under a s.77/s.78 request. These sections are clear and the Creditor is EXPECTED to comply with them, regardless of whether you specifically ask for something covered by them or not.

 

On the other hand, if you want something that isn't covered you definately need to ask for it - which is probably better done under a DPA SAR, IMO, as you probably won't get it using the CCA to request it.

[un1boy]

I understand where you're coming from shane, but I personally don't aask them. I asked Egg for the terms and conditions an they were the only ones that gave me them.

 

Although, the terms and conditions were sent to me as about 20 pages printed from an online web page- these aren't a lawful repsonse under the act, are they?

[shane5408]

I understand where you're coming from shane, but I personally don't aask them. I asked Egg for the terms and conditions an they were the only ones that gave me them.

 

Although, the terms and conditions were sent to me as about 20 pages printed from an online web page- these aren't a lawful repsonse under the act, are they?

 

hiya,

 

sounds like they just printed the current t&c's not the ones applicable at the time you opened the account, in that case they wouldn't of complied, especially if there was any variation in the agreement they would need to prove you gave your consent to allow them to vary the agreement

 

regards,

shane

[un1boy]

hiya,

 

sounds like they just printed the current t&c's not the ones applicable at the time you opened the account, in that case they wouldn't of complied, especially if there was any variation in the agreement they would need to prove you gave your consent to allow them to vary the agreement

 

regards,

shane

 

Well, it says, "terms and conditions applying from" and the date covers the date of my agreement.

 

The agreement they sent me though says, I agree to be bound by the terms and conditions enclosed" I asked them and they said they don't send them out and they only online.

 

I said that the agreement doesn't say "I agree to be bound by the terms and conditions online" - they did not respond.

[shane5408]

one way to be sure is to check the fee for penalty charges, if your account was from a few years ago the fee would be higher than the £12 they have been reduced to now.

 

Regardless though, according to the Act & Regulations not just the prescribed terms but all terms in schedule 1 of the Agreement Regs should be within the agreement itself, nowhere does it state these can be found in another doc titled t&c's.

[ncf355]

Hi folks

 

some advice required

 

I have an application hearing due early December where I have a claim in against an unenforceable credit agreement

 

Court stayed the claim until April (obv believing it to be a charges claim)

 

Very confident I'll have no problem getting the stay lifted, but is there a way I can apply for the hearing to take place immediately after the application hearing?

 

If so, how do I do this?

[andrew1]

Can someone tell me if the CCA would apply to this:

 

I have a mortgage and a property with a lot of equity. In 2003 I was in trouble and requested a further advance on my mortgage of another 50k. I had a Directors guarantee 2nd charge on the property for £13k and a Caution on the property (won't bore you with why, but I was going to leave it there forever) for £22k.

 

My mortgage company after a long fight to get the additional loan insisted I cleared the two charges before they would lend any more so they had a clear 1st charge on all borrowing - not unreasonable I guess, but I had no choice. Now the funds were consolidated into my mortgage but pushing the loan up by £35k

 

My question is that under the CCA an advance to discharge a debt should be treated as a separate regulated agreement for provision of a fixed sum, restricted use debtor creditor credit falling under sections 11 (1)c of the Act.

 

Does anyone think this additional lending should have been treated likewise rather than just lumped into the mortgage when there were strict conditions on clearing these debts built into the terms of the transaction?

 

I have also started my own thread on the mortgage section, but this is a CCA issue combined with a mortgage and I know mortgages are not covered by the CCA generally. heres the link: http://www.consumeractiongroup.co.uk/forum/mortgage-companies/119904-additional-mortgage-loan-cca.html

 

 

Sarah

[make them aktiv runners]

I think it section 16(6C) makes it an exempt agreement. 16(6D) allows for any part of the act to be otherwise used but only enforceable by the court (126).

The other problem is that the actual loan taken out was 85K. Although elements are for items under 25K I think it is the total that counts.

[andrew1]

I think it section 16(6C) makes it an exempt agreement. 16(6D) allows for any part of the act to be otherwise used but only enforceable by the court (126).

The other problem is that the actual loan taken out was 85K. Although elements are for items under 25K I think it is the total that counts.

 

but doesn't the fact that there are 2 different areas here, restricted use and unrestricted use mean that it becomes a multiple agreement? I know that happens with loans and loan companies, but what I am not sure about is that it was an application to my 1st mortgage company (A high st bank in this case) to extend my mortgage, but they made restrictions stating I MUST clear the other charges and made it conditional. That makes part of the advance a restricted use of credit and the remainder unrestricted, therefore making it a multiple agreement ( if it applies to mortgages) if you see what I mean?

 

Sarah

[ses]

Hello i wonder if someone can help me please, i am sorry to hijack this thread but perhaps a mod can move this to a new thread for me. I am in dispute with ge money over a debenhams card. i sent them a cca request to which they replied they no longer have the cca (the card was taken out in 1984). i then wrote the normal "please go away then" letter to which they have replied tht as the card was used earlier in the year (it was) the debt is acknowledged. They are now threatening to default me for non payment (i stopped paying when they admitted they did not have the cca) Am i right in thinking that no cca = no agreement = no payment and ge money cannot go any further because they do not have the cca? Could someone suggest a letter to them that i can send telling them this? they do not appear to have got the hint from the standard "please go away" letter that i sent from the templates on this site.

[make them aktiv runners]

but doesn't the fact that there are 2 different areas here, restricted use and unrestricted use mean that it becomes a multiple agreement? I know that happens with loans and loan companies, but what I am not sure about is that it was an application to my 1st mortgage company (A high st bank in this case) to extend my mortgage, but they made restrictions stating I MUST clear the other charges and made it conditional. That makes part of the advance an restricted use of credit and the remainder unrestricted, therefore making it a multiple agreement ( if it applies to mortgages) if you see what I mean?

 

Sarah

 

The total restricted use is 35K. If they had created separate mortgages for each of the 2 charges then yes the court can decide to enforce section 11.

 

I can see that the bank would want first charge but I am a little concerned over what advice they gave? If you saw a customer advisor specialising in financial advice on the banks products, they should have covered all options. It appears they have left the original mortgage and created a charge for a secured loan. If they had simply re-financed the original mortgage which was a first charge then the 35K would neverhave needed financing?

[andrew1]

The total restricted use was £35k indeed, but could you not include their arrears too? (can't remember how much just now) I already had a mortgage of £100k, I had arrears and they were taking me to repossession at that time, but I argued on the equity basis and my potential income and it took me a long time but they agreed to increase my mortgage to cover the arrears so I could remain in the property. When they saw the charge (Lloyds) and the Caution (private) they demanded these were cleared in the offer letter. They Demanded solicitors advised me and my partner (joint Mtg) and that we cleared the 2 charges( understandable as I say) but they paid a cheque to my solicitor insisting payments were made to clear the caution and the charge, retained funds and allocated them to my mtg accounts to clear the arrears and paid the balance into my current account ( with the same bank as the mtg)

 

Now, the fixed sums restricted credit which were paying off the charges & caution were not separate Credit Agreements as they would or should have been if I'd just applied for a sub-prime loan, and the unrestricted credit amount paid into my current account + the amount to clear the arrears were not treated as a ' credit Agreement' at all, but were incorporated into my mtg. I say this was a 'multiple credit Agreement' of both restricted and unrestricted credit, but its the fact of it coming in the guise of an 'extended mortgage' that confuses but is so important to establish.

 

Thanks for the debate - I'll get there one way or tuther!

 

Sarah

[car2403]

Hello i wonder if someone can help me please, i am sorry to hijack this thread but perhaps a mod can move this to a new thread for me. I am in dispute with ge money over a debenhams card. i sent them a cca request to which they replied they no longer have the cca (the card was taken out in 1984). i then wrote the normal "please go away then" letter to which they have replied tht as the card was used earlier in the year (it was) the debt is acknowledged. They are now threatening to default me for non payment (i stopped paying when they admitted they did not have the cca) Am i right in thinking that no cca = no agreement = no payment and ge money cannot go any further because they do not have the cca? Could someone suggest a letter to them that i can send telling them this? they do not appear to have got the hint from the standard "please go away" letter that i sent from the templates on this site.

 

I don't think this is right, ses;

 

"no cca = no agreement = no payment"

 

It's more like;

 

"no cca = no enforceable agreement"

 

But this doesn't effect the outstanding debt - they can still pursue you to collect the outstanding balance, but you'll have a complete Defence to any Court action they decide to take.

 

You should also be aware that they can still Default you as well, even though they shouldn't, and you will have a major fight to get that removed.

[car2403]

I have another Claim against RBS - can some of you CCA experts take a look and tell me if I'm right about this one?

 

http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/110150-car2403-rbs-plc-default.html#post1227899

[Peterbard]

Hi recieved this response via my MP last week nothing particularrily new i am afraid.

It does however explain the responses i have been getting from Lacors just lately the one source of information that was fairly relyable which is now firmlly towing the OFT line.

 

Department of business enterprise and regulatory reform

Gareth Tomas MP

Parliamentary under secretary of State for the Trade and Consumer affairs

 

Dear James (My MP)

 

RE: consumer credit act 1974

Thank you for your letter of 26 June to Alistair Darling, enclosing correspundence from your constituent, Mr. Peter Bardsley of ************ ,about the consumer credit act 1974.

I am replying as this falls within my portfolio. I apologise for the delay in replying.

 

Mtr Bardsley is concerned that sections 77-79 of the act are being inadequately enforced. To recap, these sections are designed to assist debtors who need a copy of their credit agreement. The Act requires that the lender must comply with such request within the prescribed period of 12 working days. If a lender cannot comply with the request, they cannot enforce the agreement whilst this default continues.

 

My officials have spoken to their counterparts at the Office of Fair Trading (OFT) and in the local Authorities coordination of Regulatory reform Services (Lacors) to get their view on Mr Bardsley’s concern. Both bodies are aware of complaints that have been lodged in respect of these provisions and I am assured that both OFT and Lacors take individual complaints such as these complaints seriously.

However, this does not necessarily mean that enforcement action will automatically be taken. Any decision to prosecute would be have to be proportionate to any offence actually committed and be based on a number of factors, in particular the level of detriment suffered by the consumer. As a general rule it would not be considered a proportionate response to immediately prosecute for such a breach, but it may be appropriate for the enforcement office to provide advice to the creditor and to assess their processes and procedures.

 

I think a key point in the cases raised by Mr Bardsley is that if a lender is unable to satisfy their obligations in respect of a request made under sections 77 or 78 then, as mentioned above, the debt cannot be enforced through the courts until the default is remedied. It does not mean that the debt is automatically void or that the lender is unable to seek to recover legitimately owed debts. However, as with any debt recovery situation, lenders need to make sure they comply with OFT guidelines on debt collection. The guidance sets out what the OFT guidelines on debt collection. The guidance sets out what the OFT considers to be unfair practices in relation to debt collection and such practices include falsely implying or stating that action can or will be taken when it legally cannot.

Further details on the guidance can be found at WWW.oft .gov.uk/advice.

Should Mr Bardsley wish to make comment on non-compliance with the OFT’s guidance he can e-mail them at [email protected] or telephone on 020 7211 5823

 

Yours sincerely

 

Gareth Thomas

[JonCris]

Well Peter it's clear the legal 'advisor's' have not read the Wilson judgment or are choosing to ignore it in the hope no one will notice

 

Also how many times have creditors to flout the law before they consider it's worth prosecuting one. Such a prosecution would bring it home to the others that they cannot just ride roughshod over their statutory obligations.

 

We keep hearing from this government that we must obey the law. What a bunch of bleeding hypocrites.

 

I think it's time for the gloves off approach. Tell these legislators that their inadequate responses will now be exposed on public forums including the press in their own constituencies.

 

It's time the people who vote for them got to know their MP a little better & how they are willing to collude in letting big business escape the rule of law. Law's, I might add, that were in particular enacted to protect the ordinary citizen against the avarice of the money lenders

[lookinforinfo]

Thanks for that Peter. Revealing comment in the middle of the letter though.-

" It does not mean that the debt is automatically void or that the lender is unable to seek to recover legitimately owed debts."

I am assuming that he must be referring to other debts, since without an

executed agreement, who is to say that this debt is legitimately owed in the first place. And in the second place, even if it were legitimately owed, how

is the lender able to seek to recover it when legally forbidden to pursue it?

[car2403]

Hi recieved this response via my MP last week nothing particularrily new i am afraid.

 

This, IMHO, is a very closed minded statement;

 

Any decision to prosecute would be have to be proportionate to any offence actually committed and be based on a number of factors, in particular the level of detriment suffered by the consumer. As a general rule it would not be considered a proportionate response to immediately prosecute for such a breach, but it may be appropriate for the enforcement office to provide advice to the creditor and to assess their processes and procedures.

I think the key here is that it's the OFT's/TS's responsibility to take action when an offence is committed - they aren't like the ICO under the DPA where he can make assessments and recommendations for change before taking enforcement action.

 

This is like saying that the Police will no longer investigate Murders, as they get too many of them and don't have resources to do so.

 

If they aren't actioning each breach, then what did Parliament mean by introducing s.77(4) and s.78(6) offences?

It does not mean that the debt is automatically void or that the lender is unable to seek to recover legitimately owed debts. However, as with any debt recovery situation, lenders need to make sure they comply with OFT guidelines on debt collection. The guidance sets out what the OFT guidelines on debt collection. The guidance sets out what the OFT considers to be unfair practices in relation to debt collection and such practices include falsely implying or stating that action can or will be taken when it legally cannot.

 

These guidelines state no action should be taken where it's unlawful or likely to cause harassment, doesn't it?

 

Also agree with lookinforinfo - if there is no enforceable CCA, they can't rely on "other methods" (I'm assuming they mean the Common Law) to enforce the debt as an Act of Parliament is the ultimate authority and binding precedant.

 

Watch these sections for future reform, if this is the case...

[Peterbard]

Thanks for that Peter. Revealing comment in the middle of the letter though.-

" It does not mean that the debt is automatically void or that the lender is unable to seek to recover legitimately owed debts."

I am assuming that he must be referring to other debts, since without an

executed agreement, who is to say that this debt is legitimately owed in the first place. And in the second place, even if it were legitimately owed, how

is the lender able to seek to recover it when legally forbidden to pursue it?

 

Hi

Yes ther new response to these request and one that all the regulatory bodies seem to be briefed in giving is: these requests are not designed to aid the debtor in challenging the agreemnt but meerlyas a method of giving information about the terms and conditions of the loan.

 

We would of course say all we are requesting is a veryfiable copy of what we signed. If the creditor cannot comply or the copy reveals that the agreement was not properly executed in the first place then the reguations are quite clear in the sanctions. I would suggest that if the powers that be are not happy with the legislaltion they should try and alter it through parliamentarry process and not try to sidestep the law by limiting and distorting the power of the act.

 

Best regards

Peter

[andrew1]

Perhaps a copy of that letter from your MP to Lord Falconer asking for his comments might not go amiss? - Not a satisfactory reply at all really. Well done Peter good work.

[Peterbard]

Hi Car

 

"This, IMHO, is a very closed minded statement;"

 

From your prevous posting would you explain

 

Regards

Peter

[car2403]

Hi Car

 

"This, IMHO, is a very closed minded statement;"

 

From your prevous posting would you explain

 

Regards

Peter

 

Oh, Peter! I meant that your MP has a very closed mind... (Or at least he's pretending to by making this statement!)

 

[conar686]

Hi recieved this response via my MP last week nothing particularrily new i am afraid.

It does however explain the responses i have been getting from Lacors just lately the one source of information that was fairly relyable which is now firmlly towing the OFT line.

 

Department of business enterprise and regulatory reform

Gareth Tomas MP

Parliamentary under secretary of State for the Trade and Consumer affairs

 

Dear James (My MP)

 

RE: consumer credit act 1974

Thank you for your letter of 26 June to Alistair Darling, enclosing correspundence from your constituent, Mr. Peter Bardsley of ************ ,about the consumer credit act 1974.

I am replying as this falls within my portfolio. I apologise for the delay in replying.

 

Mtr Bardsley is concerned that sections 77-79 of the act are being inadequately enforced. To recap, these sections are designed to assist debtors who need a copy of their credit agreement. The Act requires that the lender must comply with such request within the prescribed period of 12 working days. If a lender cannot comply with the request, they cannot enforce the agreement whilst this default continues.

 

My officials have spoken to their counterparts at the Office of Fair Trading (OFT) and in the local Authorities coordination of Regulatory reform Services (Lacors) to get their view on Mr Bardsley’s concern. Both bodies are aware of complaints that have been lodged in respect of these provisions and I am assured that both OFT and Lacors take individual complaints such as these complaints seriously.

However, this does not necessarily mean that enforcement action will automatically be taken. Any decision to prosecute would be have to be proportionate to any offence actually committed and be based on a number of factors, in particular the level of detriment suffered by the consumer. As a general rule it would not be considered a proportionate response to immediately prosecute for such a breach, but it may be appropriate for the enforcement office to provide advice to the creditor and to assess their processes and procedures.

 

I think a key point in the cases raised by Mr Bardsley is that if a lender is unable to satisfy their obligations in respect of a request made under sections 77 or 78 then, as mentioned above, the debt cannot be enforced through the courts until the default is remedied. It does not mean that the debt is automatically void or that the lender is unable to seek to recover legitimately owed debts. However, as with any debt recovery situation, lenders need to make sure they comply with OFT guidelines on debt collection. The guidance sets out what the OFT guidelines on debt collection. The guidance sets out what the OFT considers to be unfair practices in relation to debt collection and such practices include falsely implying or stating that action can or will be taken when it legally cannot.

Further details on the guidance can be found at WWW.oft .gov.uk/advice.

Should Mr Bardsley wish to make comment on non-compliance with the OFT’s guidance he can e-mail them at [email protected] or telephone on 020 7211 5823

 

Yours sincerely

 

Gareth Thomas

 

This is precisely the advice I am getting from my local TS, though most of my creditors have committed a summary criminal offense any formal action must be 'proportionate' and 'value proposition for UK Tax payers money'.

 

No one seems to understand that the majority of CCA offenders persistently commit an offense and if local TS would just look at the metrics available to them they'd see that, whats wrong with 3 strikes & you lose your license rule.

 

At the moment all we have from TS/OFT/ICO is statements regarding why they cannot enforce the legislation they are set up to police.

 

Hands up anyone who has had a statement from the ICO that begins with 'the balance of probability' - what the chuffing 'eck as that got to do with anything.

 

Keep at them PB, Come the revolution!!!