Cap1 & CCA return

[pt2537]

the general rule of thumb is once 12 working days pass and no agreement then they are in default and not entitled to enforce the debt while the default continues

 

put basically

 

NO CCA = NO PAY

 

its up to you , you can still pay them if you like

[andrew1]

bumping this.....Re: Consumer Credit Act Agreements

so stop the payments?and dont send them another letter?sorry if im being abit stupid,but im not entirely sure what im doing....and what happens when they contact me again?

 

What this means cateroo, is that the DCA' is as has been mentioned above trying to opt out of it's responsibility. It all gets a bit confusing and that's what they rely on. WHether they are the original creditor or not, if they are chasing you for money on an alledged debt, then they have to supply you, within 12 days (+2 )for postage a copy of the credit agreement you originally signed when taking out the credit. Now they have a habit of a)sending nothing, b) sending you that letter they did denying responsibility c) writing and saying they will apply to the original creditor to get the copy. Whatever they do, they should supply you with it in the time of 14 days from when your CCA request was sent in. If they don't, as is likely, then they cannot enforce the debt ( ask you to pay it) without a court order, which means they will have to go to court and ask the court to enforce the debt, but they'd have to supply the Judge with a copy of the original agreement first, so if they don't send it to you they are hardly likely to supply it to a judge.

 

They then have a further one month to supply this document to you and if the don't then they have committed a criminal offense and you can report them to Trading Standards. The more people do that the more trouble they'll get into. HOWEVER, this does not mean the debt is dead. If the DCA or the finance company come up with document in the future, they can still get the court order to ask you to pay. If you feel you wish to continue paying something and you acknowledge the debt by all means carry on, but to enforce it they will need that court order.

 

There is a letter in the templates library for non compliance or your request I believe so you can send them that.

 

Mr Lunn, the Director of Thames Credit is the one to write to and you just mention the Consumer Action Group and Cabot Fan Club and he'll know what to do.. he has been warned!

[pt2537]

What this means cateroo, is that the DCA' is as has been mentioned above trying to opt out of it's responsibility. It all gets a bit confusing and that's what they rely on. WHether they are the original creditor or not, if they are chasing you for money on an alledged debt, then they have to supply you, within 12 Working days;) (+2 )for postage a copy of the credit agreement you originally signed when taking out the credit. Now they have a habit of a)sending nothing, b) sending you that letter they did denying responsibility c) writing and saying they will apply to the original creditor to get the copy. Whatever they do, they should supply you with it in the time of 12 working days plus 2 days for postage from when your CCA request was sent in. If they don't, as is likely, then they cannot enforce the debt ( ask you to pay it) without a court order, which means they will have to go to court and ask the court to enforce the debt, but they'd have to supply the Judge with a copy of the original agreement first, so if they don't send it to you they are hardly likely to supply it to a judge.

 

They then have a further one month to supply this document to you and if the don't then they have committed a criminal offense and you can report them to Trading Standards. The more people do that the more trouble they'll get into. HOWEVER, this does not mean the debt is dead. If the DCA or the finance company come up with document in the future, they can still get the court order to ask you to pay. If you feel you wish to continue paying something and you acknowledge the debt by all means carry on, but to enforce it they will need that court order.

 

There is a letter in the templates library for non compliance or your request I believe so you can send them that.

 

Mr Lunn, the Director of Thames Credit is the one to write to and you just mention the Consumer Action Group and Cabot Fan Club and he'll know what to do.. he has been warned!

Hi Sarah (andrew1)

 

sorry but i had to correct that as it was slightly wrong

 

regards

paul

[carteroo]

There is a letter in the templates library for non compliance or your request I believe so you can send them that.

 

where can i find this,or do you have a link?

[pt2537]

http://www.consumeractiongroup.co.uk/forum/general-debt/20758-creditors-dcas-letter-templates.html

[Peterbard]

FAO peterbard

 

would you please be so kind as to take a look at a conditional sale agreement for us

 

the thread is here http://www.consumeractiongroup.co.uk/forum/general-debt/118853-creditor-failed-provide-cca-2.html#post1231849

 

its the figures which we wanted checked

 

thanks

 

Kind Regards

paul

 

HI I am having a problem making sence of the TAP

probaqbly not reading the figures correctly.

Could you print the installment details and the total charge for credit for me

 

Regards

Peter

[pt2537]

Hi Peter,

 

im having difficulty myself, i will get the op to post up the info and come straight back to you when i have it

 

thanks

 

 

 

kind regards

paul

[pt2537]

 

1. Total Cash price: £10,999.00

2. Finance Deposit: £0

3. Amount Financed (1+2): £10,999.00

4. Total Charge for Credit: £4,839.58

 

 

Made up of:

 

Finance Charges £4,674.58

Credit Facility Fee: £105.00

Title Discharge Fee: £60.00

 

5. Balance Payable (3+4): £ 15838.58

 

6. total Amount Payable (2+5): £ 15838.56

 

7. APR 16.62%

 

You will pay:

 

A first vehicle instalment of £366.23

Followed by 58 Monthly vehicle instalments of £261.23

Followed by a final vehicle instalment of £321.01

 

 

Hi peter

 

thats what he came up with

 

regards

paul

[Peterbard]

What this means cateroo, is that the DCA' is as has been mentioned above trying to opt out of it's responsibility. It all gets a bit confusing and that's what they rely on. WHether they are the original creditor or not, if they are chasing you for money on an alledged debt, then they have to supply you, within 12 days (+2 )for postage a copy of the credit agreement you originally signed when taking out the credit. Now they have a habit of a)sending nothing, b) sending you that letter they did denying responsibility c) writing and saying they will apply to the original creditor to get the copy. Whatever they do, they should supply you with it in the time of 14 days from when your CCA request was sent in. If they don't, as is likely, then they cannot enforce the debt ( ask you to pay it) without a court order, which means they will have to go to court and ask the court to enforce the debt, but they'd have to supply the Judge with a copy of the original agreement first, so if they don't send it to you they are hardly likely to supply it to a judge.

 

They then have a further one month to supply this document to you and if the don't then they have committed a criminal offense and you can report them to Trading Standards. The more people do that the more trouble they'll get into. HOWEVER, this does not mean the debt is dead. If the DCA or the finance company come up with document in the future, they can still get the court order to ask you to pay. If you feel you wish to continue paying something and you acknowledge the debt by all means carry on, but to enforce it they will need that court order.

 

There is a letter in the templates library for non compliance or your request I believe so you can send them that.

 

Mr Lunn, the Director of Thames Credit is the one to write to and you just mention the Consumer Action Group and Cabot Fan Club and he'll know what to do.. he has been warned!

 

Hi

Not wishing to confuse matters but i think it is important to get this correct.

If the request for a copy document is not complied with the creditor is not allowed to enforce the agreement(through the courts ) he is still entitlled however to pursue the debt. He cannot threaten court action to aid this process and it would be against OFT gudlines and breach the act if he did so, they are however allowed to ask for you to repay.

The 12 working days to my knowledge include the two days allowed for postage in other words 12 working days=14 days this is problay what is meant but just for clarity.

 

I believe that it is possible for a DCA to buy a debt from a creditor without the agreement being assigned so in this case it is usually better to apply straight to the creditor with the cca.

 

If the DCA say they have not aquired the agreement but just the debt and are not liable to conform to the CCA then they cannot use it to pursue the debt.

 

You really need to find out whether the agreement hass benn assigned to the DCA or just the debt sold if the latter is true the Barclays are still your creditor as far as the CCA is concerned. and all matters regarding your agreement should be addressed to them.

 

Best regards

Peter

[Peterbard]

 

Hi peter

 

thats what he came up with

 

regards

paul

 

HI

I am affraid that the figures all check out including the APR which is 16.1561%

 

The various charte include within the TCC are also correct .

 

This i presume would have been signed on the dealers premises so would be uncancellable.

 

Best reagrds

peter

[pt2537]

Thank you so much for that peter

 

it was worth a shot but it looks like we are going to have to concede defeat on this one

 

Regards

paul

[andrew1]

Hi

Not wishing to confuse matters but i think it is important to get this correct.

If the request for a copy document is not complied with the creditor is not allowed to enforce the agreement(through the courts ) he is still entitlled however to pursue the debt. He cannot threaten court action to aid this process and it would be against OFT gudlines and breach the act if he did so, they are however allowed to ask for you to repay.

The 12 working days to my knowledge include the two days allowed for postage in other words 12 working days=14 days this is problay what is meant but just for clarity.

 

I believe that it is possible for a DCA to buy a debt from a creditor without the agreement being assigned so in this case it is usually better to apply straight to the creditor with the cca.

If the DCA say they have not aquired the agreement but just the debt and are not liable to conform to the CCA then they cannot use it to pursue the debt.

 

You really need to find out whether the agreement hass benn assigned to the DCA or just the debt sold if the latter is true the Barclays are still your creditor as far as the CCA is concerned. and all matters regarding your agreement should be addressed to them.

 

Best regards

Peter

 

 

Peter, how are you differentiating a debt 'assigned' from being 'sold' to a dca?

 

Sarah

[pt2537]

Hi Peter

 

The OP has just said that it wasnt signed a the lenders premises, it was signed at the op's office with a finance broker who arranged the deal

 

also hte creditor has repo'd the car and sold it for 2000 less than its current value

 

so in view of the fact that it wasnt signed on premises is there anything we can do here?

 

regards

paul

[Peterbard]

HI Andrew

This is something that we looked at some time ago but from memory and i will look it up to confirm, the debt element of the loan can be sold as a seperate entity to the agreement. This means that the agreement itself remains with the orriginal creditor as does all the responsibilities that go with it.

THis is a way of the DCA not having to comply with the cca as he is not the creditor.

Section 189 of the act defines this as;

creditor” means the person providing credit under a consumer credit agreement or the person to whom his rights and duties under the agreement have passed by assignment or operation of law, and in relation to a prospective consumer credit agreement, includes the prospective creditor;

 

The way i understand it is this

As the OFT are always telling us just because an agreement is unenforceable under the cca 1974 does not mean that the contract is void it just cannot be enforced through the courts because it is either in default or improperly executed.

The same applies to this, the debt(as sold to the DCA) is part of the contract that was made but is not part of the agreement covered by the cca this is why iMO it is a double edged sword because they cannot enforce a comercial contract though the courts unless it is covered by the CCA, the DCA can only ask for payment or pass the debt back to the creditor in order to start court proceedings.

 

Best regards

Peter

[shane5408]

Hi Peter,

 

if you have a spare moment could you please have a look at the following thread, not sure if the agreement is cancellable or not

 

http://www.consumeractiongroup.co.uk/forum/general-debt/118853-creditor-failed-provide-cca-3.html#post1232201

 

kind regards,

shane

[MAGDA]

Hi, Can anyone help. I have requested a CCA from my bank for an overdraft, as I believe there should be a letter detailing the terms and conditions of the overdraft at the time. However, the bank have written back stating that they no longer have a copy of this letter as their computer system was changed. They seem to think that the copy statments and printouts of the day to day activity on the account at that time are sufficient (the statments do show (at the bottom) the interest rate being charged on the overdraft during that period.

 

Is this correct and is the debt still enforceable without the letter, as the bank have been particularly unpleasant and threatening recently, prior to my request for the CCA.

 

Many thanks,

 

Magda

[Peterbard]

Hi Peter

 

The OP has just said that it wasnt signed a the lenders premises, it was signed at the op's office with a finance broker who arranged the deal

 

also hte creditor has repo'd the car and sold it for 2000 less than its current value

 

so in view of the fact that it wasnt signed on premises is there anything we can do here?

 

regards

paul

 

HI

If the agreement was signed away from the crditor or his agents premises and with prior anticedant negotiations then there should have been a cancellation period applied to the agreement.

The presence of the agent at the home of the detor prior to signing would seem to confirm the negotiations part so i would say that he should have been sent the cancellation details as per section 63-64 of the act and if he wasn't he could say that the agreement was improperly executed and unenforceable under section 127(4) it might be worth a shot.

 

I think his first move would be to send a letter to the finance pcompany asking why he was not given any cancellation rights as per section 63(2) 64(b).

They will probbly say it was none cancelable he can then say that it was signed ******** and therefore cancellable.

 

Best regagrds

peter

[car2403]

Hi, Can anyone help. I have requested a CCA from my bank for an overdraft, as I believe there should be a letter detailing the terms and conditions of the overdraft at the time. However, the bank have written back stating that they no longer have a copy of this letter as their computer system was changed. They seem to think that the copy statments and printouts of the day to day activity on the account at that time are sufficient (the statments do show (at the bottom) the interest rate being charged on the overdraft during that period.

 

Is this correct and is the debt still enforceable without the letter, as the bank have been particularly unpleasant and threatening recently, prior to my request for the CCA.

 

Many thanks,

 

Magda

 

Overdrafts are regulated agreements under s.10 CCA 1974 - however they are exempt from the form/content of the Act due to an OFT Determination.

 

The issue is that, as part of the OFT Determination, the bank must be able to show that they told you what your overdraft limit is, the interest rates applicable and any associated charges at the time you took it out.

 

This is only my opinion, but unless the Bank can provide evidence of this, they can't enforce the agreement as it can only be exempt under the Determination - in effect, they can't ignore the CCA unless they can prove you were supplied with this information when you took out the overdraft.

[MAGDA]

Hi, thanks for that, I have been making regular payments and wasn't trying to ignore the debt, but as they have been so threatening recently, just wanted to know what my position is with regard to the bank being able to legally enforce the debt so thanks for your comments and I would be grateful for any other opinions/comments on this.

 

thanks,

Magda

[Peterbard]

Hi Magda

It Always hs been a tricky one this.

The section 74 deternination as Car says undicates that the creditor does' nt have to make a sepperate agreement for the overdraft even though it is coverred by the cca as a runing credit agreement. It also says that the creditor does not have to comply with anything in part V of the act.

The determination does say that the creditor should advise the debtor of the interest and so forth to be applied to the account but it is not clear what mechanixm would be used if this instruction was breached.

It could not be because of improper execution because that would mean the involvement of section 65 which is in part V.

It cannot say that the agtreement would be in default because i am unaware of anything wihthin the act that says it would, i suppose the only recousre would be to use section 1271(i) to say that your decision making process was prejudiced by the lack of information given ,then it would be up to the court to decide on the amount of that prejudice and find accordingly.

 

Best regards

Peter

[shane5408]

Hi,

 

I am aware of the exemption of overdrafts from certain parts of the CCA 1974 and that when SAR 'ed they should be able to provide a 'loose letter' to prove they made the debtor aware of the terms of the overdraft, what I'm not aware of is where it states be it statue law or OFT guidance or anywhere the consequences if they are not able to do so, can anyone elighten me?

I suppose you could argue the unfair terms argument in UTTC's?

 

kind regards,

shane

[MAGDA]

Hi, yes, it does seem pretty complicated compared to other consumer credit agreements, but the bank do seem to have gone very quiet since writing to say they don't have a copy of the letter sent at the time of the overdraft being granted, I'm sure it won't be too long before they are back in touch again though! Many thanks for your comments.

 

Magda

[Peterbard]

Hi

Shane

are you a mind reader

 

"Mystic Shane"

 

Peter

[shane5408]

lol i just might be!

[andrew1]

HI Andrew

This is something that we looked at some time ago but from memory and i will look it up to confirm, the debt element of the loan can be sold as a seperate entity to the agreement. This means that the agreement itself remains with the orriginal creditor as does all the responsibilities that go with it.

THis is a way of the DCA not having to comply with the cca as he is not the creditor.

Section 189 of the act defines this as;

creditor” means the person providing credit under a consumer credit agreement or the person to whom his rights and duties under the agreement have passed by assignment or operation of law, and in relation to a prospective consumer credit agreement, includes the prospective creditor;

 

The way i understand it is this

As the OFT are always telling us just because an agreement is unenforceable under the cca 1974 does not mean that the contract is void it just cannot be enforced through the courts because it is either in default or improperly executed.

The same applies to this, the debt(as sold to the DCA) is part of the contract that was made but is not part of the agreement covered by the cca this is why iMO it is a double edged sword because they cannot enforce a comercial contract though the courts unless it is covered by the CCA, the DCA can only ask for payment or pass the debt back to the creditor in order to start court proceedings.

 

Best regards

Peter

 

 

Yes, This goes with the likes of Cabot and others who purport to buy the debts under the Law of Property Act 1925 and they buy the rights but not the duties. Fat lot of good it does them too. Most on the DCA threads agree this is a nonsense - they can't buy the rights but not the duties as the debts are bought 'in total'. People are getting the OC in on the court actions when this is argued - that soon sorts them all out - you soon find out who thinks who owns what

 

Twits..

 

Thanks Peter, informed as usual. Good man.

 

Sarah