Cap1 & CCA return

[davefirewalker]

GOSH..........

 

just noticed

 

this is my 1000th post

 

 

Dave

[Peterbard]

Hi

regarding the section 189 definition it must be remembered that this reffers to execuution of the agreement as required by the cca and is in effect the same as the term properly executed used in section 61.

The second part of the definition illustrates this;

" embodying the terms of a regulated agreement, or such of them as have been reduced to writing"

 

Regards

Peter

[car2403]

Hi

regarding the section 189 definition it must be remembered that this reffers to execuution of the agreement as required by the cca and is in effect the same as the term properly executed used in section 61.

The second part of the definition illustrates this;

" embodying the terms of a regulated agreement, or such of them as have been reduced to writing"

 

Regards

Peter

 

Peter,

 

Sorry for trying to read between the lines - but can you clarify this?

 

Are you saying that the agreement can be executed within the terms of the the contractual agreement (ie, I promise to loan you money on these terms if you promise to pay it back on these terms) but not within the definition provided by the Act? (ie, this agreement is unenforceable under the CCA because it wasn't correctly executed within the definition of "execution" in the Act alone)

 

I personally think this is incompatible with the whole argument, as surely (due to rule of Statutory Interpretation - which was covered in the Wilson case quite appropriately) that an agreement that is unexecuted under the Act can't be enforce by the Court, regardless of the action/claim brought?

 

They can't rely on the definition of "executed" within the Act but not without reference to also relying on s.59(1) and the terms "improperly executed"?

 

As I say, I may be reading something between the lines that doesn't exist, but I wanted some clarification on that please?

[shane5408]

Hi

regarding the section 189 definition it must be remembered that this reffers to execuution of the agreement as required by the cca and is in effect the same as the term properly executed used in section 61.

The second part of the definition illustrates this;

" embodying the terms of a regulated agreement, or such of them as have been reduced to writing"

 

Regards

Peter

Hi Peter,

 

Yeah I agree which is why in relation to 127(3) non execution doesn't really have much bearing on overall enforcability as it simply renders the agreement imporperly executed therefore enforcable only on a court order.

 

But when combined with s59(1) If it can be shown without a shadow of a doubt the creditor never executed the agreement then it can be argued by the same definitions it remained a prospective agreement,

 

kind regards,

shane

[Peterbard]

HI

Sorry didn''t finish the last post.

 

Section 59 refers to an agreement to enter into a prospective regulated agreement.

I am not sure that you could call an unexecuted regulated agreement an"agreement".

On researching section 59 it seems that it's orriginal intention was to enable quotaions to be given on propective credit arraqangements without the debtor being obligated to enter into the regulated agreement.

This reasoning can IMO be also applied to the application form scenario wher an "agreement" is made for information about the regulated agreement.

The use of the aplication "agreement" as a regulated agreement is prohibeted under section 59.

 

Best reagards

Peter

[Peterbard]

Peter,

 

Sorry for trying to read between the lines - but can you clarify this?

 

Are you saying that the agreement can be executed within the terms of the the contractual agreement (ie, I promise to loan you money on these terms if you promise to pay it back on these terms) but not within the definition provided by the Act? (ie, this agreement is unenforceable under the CCA because it wasn't correctly executed within the definition of "execution" in the Act alone)

 

I personally think this is incompatible with the whole argument, as surely (due to rule of Statutory Interpretation - which was covered in the Wilson case quite appropriately) that an agreement that is unexecuted under the Act can't be enforce by the Court, regardless of the action/claim brought?

 

They can't rely on the definition of "executed" within the Act but not without reference to also relying on s.59(1) and the terms "improperly executed"?

 

As I say, I may be reading something between the lines that doesn't exist, but I wanted some clarification on that please?

 

Hi Car

Any commertial credit agreement made has to be coverred by the CCA1974 if it is not it cannot be enforced throughtthe court.

 

The definition in section 189 applies to the cca 1974

 

The definitin of executed and unexecuted in the wider sense may say that an agreement was executed but not enforceable because it was not a regulated agreement.

Is this what you mean

 

 

Best regards

peter

[Peterbard]

Hi Peter,

 

Yeah I agree which is why in relation to 127(3) non execution doesn't really have much bearing on overall enforcability as it simply renders the agreement imporperly executed therefore enforcable only on a court order.

 

But when combined with s59(1) If it can be shown without a shadow of a doubt the creditor never executed the agreement then it can be argued by the same definitions it remained a prospective agreement,

 

kind regards,

shane

 

Hi Shane

 

Exactly which is why section 127 (3)picks out the debtors signature as being a requirement, without which the agreement cannot be enforced. If the the criterea for unenforceability was simply that it was unexecuted because it was not signed there would be no nessesity.

 

Best reagrds

peter

[shane5408]

HI

Sorry didn''t finish the last post.

 

Section 59 refers to an agreement to enter into a prospective regulated agreement.

I am not sure that you could call an unexecuted regulated agreement an"agreement".

On researching section 59 it seems that it's orriginal intention was to enable quotaions to be given on propective credit arraqangements without the debtor being obligated to enter into the regulated agreement.

This reasoning can IMO be also applied to the application form scenario wher an "agreement" is made for information about the regulated agreement.

The use of the aplication "agreement" as a regulated agreement is prohibeted under section 59.

 

Best reagards

Peter

 

Hi Peter,

 

Ahh, now i see what you mean. In all honesty though it is the creditors who make the claim what they have provided is an agreement when it is clearly not, in that situation I'm not sure if a DJ would really be able to differentiate between the two but we won't really know until someone tried it i suppose! I think that it can serve two purposes then, if a case ever goes to court on these grounds we should be mentioning the S59(1) argument first, then if the judge stipulates it is not an agreement it adds weight to the debtors argument and goes to show what they have sent is clearly pre and not post contractual, I realize this doesn't have a bearing on enforcability subject to 127(3) but it will play to the debtors strenghts

 

 

 

Hi Shane

 

Exactly which is why section 127 (3)picks out the debtors signature as being a requirement, without which the agreement cannot be enforced. If the the criterea for unenforceability was simply that it was unexecuted because it was not signed there would be no nessesity.

 

Best reagrds

peter

 

I completely agree, but if the alleged agreement was not executed by creditor we wouldn't be arguing unenforcability but that it was void.

 

kind regards,

shane

[Peterbard]

Hi Peter,

 

Ahh, now i see what you mean. In all honesty though it is the creditors who make the claim what they have provided is an agreement when it is clearly not, in that situation I'm not sure if a DJ would really be able to differentiate between the two but we won't really know until someone tried it i suppose! I think that it can serve two purposes then, if a case ever goes to court on these grounds we should be mentioning the S59(1) argument first, then if the judge stipulates it is not an agreement it adds weight to the debtors argument and goes to show what they have sent is clearly pre and not post contractual, I realize this doesn't have a bearing on enforcability subject to 127(3) but it will play to the debtors strenghts

 

 

 

 

I completely agree, but if the alleged agreement was not executed by creditor we wouldn't be arguing unenforcability but that it was void.

 

kind regards,

shane

 

Hi Shane

 

Other than in a pre-contractual sence and as far as the CCA is concerned there is no differnce between unexecuted and improperly executed as far as i can see when refering to an agreement that is functioning, so if by unexecuted you mean unsigned by the creditor or debtor the agreement is improperly executed and thereby enforceable albeit by a court order.

*(currently)

 

Best regards

Peter

[Scrappy01]

A bit off topic here.... I've spent days searching the forum for answers to this......

 

I have defaults on my credit file. I want to get them removed. I've paid some of the accounts off so they are settled. I took advice off here Remove Default Notices on a Credit File - We show you how and sent the 1st template letter. Now I have some of them coming back and saying because there is no money owing on the account they have no obligation to provide me with the documents. Surely then the whole process on the Learn Money site is a little flawed as they say this was done on a settled account.

 

Would a SAR do the trick if they refuse? I ask this because it seems they send whatever they want to send with the SAR. I did a SAR on HFC and they didn't send me the default notice but then I did a CCA and they sent me a template letter default notice.

 

How else can I get the defaults removed?!?! Particularly in cases where they have been able to send me an agreement....

[Peterbard]

Hi

The crditor does not have to provide a copy under the cca if their is nothing outstanding on the account.The best thing to make a request under the DPA.

What you are looking for is your consent to share data in the terms and conditions of the contract if this is not there than they should not have entered any information with the CRA.

 

 

Best regards

Peter

[Scrappy01]

Hi

The crditor does not have to provide a copy under the cca if their is nothing outstanding on the account.The best thing to make a request under the Data Protection Act.

What you are looking for is your consent to share data in the terms and conditions of the contract if this is not there than they should not have entered any information with the CRA.

 

 

Best regards

Peter

 

Hi Peter

 

Thanks. It makes sense now why GE sent me my application form but no T&C's. There's nothing owing on the account. BUT can I ask them for the T&C's seeing as the application form they sent me (but they stated that they have no obligations to send me anything) refers to the T&C's.

[Scrappy01]

Hi Peter

 

Thanks. It makes sense now why GE sent me my application form but no T&C's. There's nothing owing on the account. BUT can I ask them for the T&C's seeing as the application form they sent me (but they stated that they have no obligations to send me anything) refers to the T&C's.

 

Just checked the small boxes on the application form and it states on there that I'm agreeing to have my details passed to the CRA's. So I guess the GE ones might be futile after all! They have defaulted me just put adverse information on my credit file.

 

Its more the ones that have defaults that I've settled and they haven't sent me the CCA info. I guess I'll have to splash out on loads of SAR's!

[maybelline]

Hi Fernack

 

I would also S.A.R - (Subject Access Request) a copy af al statements regarding the accounts and calculate how much of the debt is interest and how much is the remains of the credit.

I have had a coulple of successful outcomes from casess where agreements were found to be incorrectly executed and have claimed the interest on those agreements to be void and refundable.

The advantge of this is that the creditor can no longer say that a debt is due, as he can if the agreement is simply found to be unenforceable. because the amount loaned has been paid and the interest and charges where never due in the first place because the agreement was not executed uder secion 61(a).

You also would have a good case for getting any adverse crdit report removed from you file .

What I do is simply add all the payments made into the account and deduct all the advances for the entire period it was active, if the resultant figure is a positive one then that is the amount of interest they owe you if negative then that is the amount of cash owed to them .This depends of cousre on establishing that the agreement is inncorrectly executed.

 

Best regards

Peter

 

well done Peter!

[car2403]

Just checked the small boxes on the application form and it states on there that I'm agreeing to have my details passed to the CRA's. So I guess the GE ones might be futile after all! They have defaulted me just put adverse information on my credit file.

 

Its more the ones that have defaults that I've settled and they haven't sent me the CCA info. I guess I'll have to splash out on loads of S.A.R - (Subject Access Request)'s!

 

This isn't so, anitaparrott - you can argue against this for 2 reasons;

• If the contract has ended, so has the consent to share information - they can't continue to share data after the termination/cancellation/closure of your account without having your express, written permission to do so under s.35 of the DPA. I suggest you re-read the wording of these terms to see if this is the case, as I reckon it probably doesn't contain such terms.
  
• Even if the argument above fails and the terms do state (or are taken to state) process can continue, you can still argue that continued processing after the contract ends the terms effect should be cancelled under the UTCCR's.

There are loads of threads on this argument, some of my CCA's contain POC that cover this as well, so you can take a look at those.

 

You are right though, this is VERY off subject so I suggest you read the threads mentioned and start your own thread on this second issue so you can get the right advice in the right place.

 

Hijack over...

[Having_A_Knightmare]

Hi all

 

Ive got a question not sure if its been discused before.

 

When you originally signed up for say a credit card are the banks supposed to send you a copy for your records of the agreement. I am asing this because I can not remember ever been sent a copy of an application form agreement.

 

HAK

[Having_A_Knightmare]

Also

 

have you read this thread

http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/121245-non-compliance-cca-advice.html

very intresting point by Edz11.

 

HAK

[davefirewalker]

Hi HAK

 

cca1974

 

S.62,63

 

 

62 Duty to supply copy of unexecuted agreement

 

(1) If the unexecuted agreement is presented personally to the debtor or hirer for his signature, but on the occasion when he signs it the document does not become an executed agreement, a copy of it, and of any other document referred to in it, must be there and then delivered to him.

 

(2) If the unexecuted agreement is sent to the debtor or hirer for his signature, a copy of it, and of any other document referred to in it, must be sent to him at the same time.

 

(3) A regulated agreement is not properly executed if the requirements of this section are not observed.

 

 

63 Duty to supply copy of executed agreement

 

(1) If the unexecuted agreement is presented personally to the debtor or hirer for his signature, and on the occasion when he signs it the document becomes an executed agreement, a copy of the executed agreement, and of any other document referred to in it, must be there and then delivered to him.

 

(2) A copy of the executed agreement, and of any other document referred to in it, must be given to the debtor or hirer within the seven days following the making of the agreement unless—

 

(a) subsection (1) applies, or

 

(b) the unexecuted agreement was sent to the debtor or hirer for his signature and, on the occasion of his signing it, the document became an executed agreement.

 

 

(3) In the case of a cancellable agreement, a copy under subsection (2) must be sent by post.

 

(4) In the case of a credit-token agreement, a copy under subsection (2) need not be given within the seven days following the making of the agreement if it is given before or at the time when the credit-token is given to the debtor.

 

(5) A regulated agreement is not properly executed if the requirements of this section are not observed.

 

 

Dave

[shane5408]

Also

 

have you read this thread

http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/121245-non-compliance-cca-advice.html

very intresting point by Edz11.

 

HAK

 

Hi All,

 

I think you need to exercise extreme caution when looking into the notion propounded in the above thread, the severity of the magistrates court coupled with the possiblity of costs being awarded against you can be severe. Keep in mind the original claimant who took this action against the DCA decided to 'pull out' half way through, regardless at the end the DCA's solicitors still tried to apply for costs which were over £2k

 

I'm afraid that members will see this as just another means of fighting back without realizing the potential consequences of the action should it go against you, at the very least anyone contemplating it should seek legal advice first

 

regards,

shane

[pt2537]

IMHO Shane the implications will be servere if you take this course of action and lose

 

quite possibly it could lead to Bankruptcy if you get it wrong and costs get awarded against you

[Peterbard]

This isn't so, anitaparrott - you can argue against this for 2 reasons;

• If the contract has ended, so has the consent to share information - they can't continue to share data after the termination/cancellation/closure of your account without having your express, written permission to do so under s.35 of the Data Protection Act. I suggest you re-read the wording of these terms to see if this is the case, as I reckon it probably doesn't contain such terms.
  
• Even if the argument above fails and the terms do state (or are taken to state) process can continue, you can still argue that continued processing after the contract ends the terms effect should be cancelled under the UTCCR's.

There are loads of threads on this argument, some of my CCA's contain POC that cover this as well, so you can take a look at those.

 

You are right though, this is VERY off subject so I suggest you read the threads mentioned and start your own thread on this second issue so you can get the right advice in the right place.

 

Hijack over...

 

HI Car

 

I have used this argument myself several times since it was first brought to the fore by surlybonds many moons ago and it does in theory make sense,but to date i have never actually had any success with it,the entries i have had removed have been through other means. Maybee others have had different experiances.

 

Best regards

Peter

[Peterbard]

Also

 

have you read this thread

http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/121245-non-compliance-cca-advice.html

very intresting point by Edz11.

 

HAK

 

HI This is indeed very interesting,instinctually i must say i agree with curly on this although i would be very interested in reading any case law on successfully privately prossecuted criminal actions in the cca arena.

 

Best regards

Peter

[Having_A_Knightmare]

Goining back to the application form. Not very bright when understanding the 1974 act.

 

If they send you an application form to the house and they then use it as an agreement should they send you a copy back.

 

HAK

[shane5408]

Goining back to the application form. Not very bright when understanding the 1974 act.

 

If they send you an application form to the house and they then use it as an agreement should they send you a copy back.

 

HAK

Hi HAK,

 

Have a read of the following Post by Peter, sums it up perfectly

http://www.consumeractiongroup.co.uk/forum/show-post/post-981443.html

 

kind regards,

shane

[Having_A_Knightmare]

Shane will read it know

 

Cheers

 

HAK