Cap1 & CCA return

[caro]

Can you post the link again. I'm no expert on these things, but the link isn't working anyway.

[pt2537]

http://www.consumeractiongroup.co.uk/forum/general-debt/113530-advice-comments-needed-please-2.html#post1270723

 

try that one Caro

[Slartibartfast]

Thanks, should know better really.

[postggj]

can anyone supply a link to the consumer credit act 1974

seem to have lost mine

many thanks

[Slartibartfast]

Here: Consumer Credit Act 1974

[Vulture_Bank]

SECTION 3: MANIFESTO AIMS

 

3.1 To establish a level playing field

 

A rebalancing policy approach

The focus of recent regulation has been on protecting the debtor from undue persecution and hardship.

The Association fully supports the importance of protection for those who cannot pay their debts.

However, the current regulatory environment fails to adequately distinguish between the ‘can’t pays’ and the

‘won’t pays’.

• For those who can’t pay, there should be measures in place which seek to prevent them getting into

excessive and unaffordable debt.

• For those who can pay but won’t, Government should ensure efficient channels to help facilitate the

recovery of monies and not prevent collection of those monies through restrictive and undue legislation.

Given that the normal process of lending and borrowing is an integral part of a free market economy, it is

essential that lenders have the confidence to provide finance to borrowers knowing that there are the

means to enforce repayment should this be necessary. Equally, those in debt should expect to be treated in

a professional and reasonable manner. It is the task of Regulators and Government to ensure that this

balance is maintained.

The Credit Services Industry plays a vital role in providing the means to recover monies in a professional

and caring manner. The vast majority of debts are settled in pre-legal stages, reducing the burden on the

courts.

There are of course some consumers whose financial fortunes have taken a downturn after taking out

credit and these matters need to be sensitively handled. However, a distinction has to be made between

those consumers that cannot pay and those consumers that will not pay. It is the Industry’s task to

determine this distinction and act accordingly.

It is the view of the Industry that Government and Regulators need to take into account these factors and

be supportive of the legitimate right of the creditors to recover their monies.

 

The Consumer Credit Act 1974 & 2006

The CSA and DBSG strongly support the Consumer Credit Act (CCA) in principle as protection is

required for consumers. However, certain parts of it are being used by some consumers to evade

responsibility of debt, and this certainly was not the intention of the legislation. This debt evasion is seen by

Members of the Association even though debtors have previously accepted they owe the debt and they

may even have the ability to pay.

 

• Financial Ombudsman Service

Since April 2007 the industry has become subject to the Dispute Resolution Service provided by the

Financial Ombudsman Service (FOS). The Association is concerned about the proliferation of complaints

to the FOS and the potential of ‘blackmail’ type situations. A major issue faced by Members is the case fee

issued by FOS when a case is referred for investigation. Currently the case fee stands at £400 per

investigated case; due to the difficult nature of a complaint, together with relationship issues between

debtor and collection agency, the Association estimates a high number of complaints will be referred to

the FOS, which will not warrant investigation but still involve the agency incurring the case fee. For small

businesses these case fees may impact severely on their business causing them to fold.

 

 

http://www.csa-uk.com/UserFiles/File/upload-here/manifesto%20all%20pages.pdf

[Vulture_Bank]

Appendix 2:

 

Regulatory & Legislative Issues

 

 

The Association feels it is essential that current Legislation and Regulation is

reviewed in order to bring clarity to the Industry for those working within it as well

as for consumers and debtors who are affected by it. The Legislation and

Regulation the Association considers most in need of review:

 

• Consumer Credit Act 1974 & 2006 - currently the Act is being used by debtors to avoid making

payments on their credit agreements. Bad advice, offered within consumer action websites, is misleading those genuine debtors in financial difficulty. Sections 77 & 78 of the Act are being misinterpreted by these

‘advisors’ causing further distress and frustration to genuine debtors. The number of trace accounts has increased substantially in recent years. The Act should introduce a penalty to those debtors who fail to

advise their creditors they have moved (either unintentionally or not).

 

 

• Companies Act 2006 - members have raised concern regarding the maintenance of the Register of Barred

Directors. Processes are required to keep information up to date to avoid further indebtedness by barred

directors as well as being able to locate those directors responsible for business debts which must be

recovered.

 

 

• Limitations Act 1980 - it is essential that the Statute of Limitations remains at 6 years. Reducing this term

would cause an increase in court cases as creditors will take legal action far earlier during their collection

activity in order to recoup their money. This will have a detrimental effect not only on the debtor as they

will ultimately have a County Court Judgment, but also the court system as more cases will be generated

which will increase costs and thereby compounding the issue of overindebtedness.

 

 

• Enterprise Act 2002 - the intention of this act has failed. Consumers are using the act as an easy option

out of paying their debts by going into bankruptcy.

 

 

• Security Industry Authority - the licensing of investigators by the SIA has not been carefully considered.

Tracing agencies used to locate absconded debtors may fall under this category - the consequences of

licensing tracing agents would be enormous as most tracing is office based. Each individual ‘tracer’ would

have to be separately licensed which will have huge financial implications for creditors, clients and agencies.

[Having_A_Knightmare]

Consumer Credit Act 1974 & 2006 - currently the Act is being used by debtors to avoid making

payments on their credit agreements. Bad advice, offered within consumer action websites, is misleading those genuine debtors in financial difficulty. Sections 77 & 78 of the Act are being misinterpreted by these

‘advisors’ causing further distress and frustration to genuine debtors. The number of trace accounts has increased substantially in recent years. The Act should introduce a penalty to those debtors who fail to

advise their creditors they have moved (either unintentionally or not).

 

Bad advice by consumer sites!!!!

 

Who do you think you are kidding:)

 

The Act should introduce a penalty to those debtors who fail to

advise their creditors they have moved

 

I cant stop laughing:D

[paulwlton]

 

Also I've seen few references to S85 in recent posts in this thread - did this bear any fruit in anyones claims?

 

Yes, Barclaycard settled out of court with a sec 85 claim.

 

Paul

[Having_A_Knightmare]

The Association feels it is essential that current Legislation and Regulation is

reviewed in order to bring clarity

 

How much clarity do you want..No agreement, Unenforcable debt!!!!

[andrew1]

I think this has been posted up before about 'The Association' This is the Credit Services Association (CSA) who's members are DCA's generally and dear Mr Najib Nathoo is trying to save the industry's face by going on the offensive. It's a load of tosh and he knows it. Just look at who's on the board to know why he says what he does....CSA Website just keep up the pressure for them to abide by the law ...it's like garlic to Dracula

[Vulture_Bank]

another "potentially" interesting thread here

 

 

http://www.consumeractiongroup.co.uk/forum/general-debt/123090-how-top-up-mortgage.html

[FANTASY CHARGES]

just spotted arrow global tricks of the trade

 

http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/123101-arrow-global.html

 

anybody any idea this has been going on

 

please post replies on the other thread thanks

[FANTASY CHARGES]

http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/123190-barclays-sales-monument.html

[blencathra]

Hi Help and info needed I have posted letters requesting CCA from 4 companies enclosing the fee ( £1) the 12 days are now up and i have not recieved a reply from any of them What should my next step be PLEASE ..

Cheers Dave

[JonCris]

You could write & tell them that as they are in default the debt is now unenforceable.

 

Should their default continue for a further 30 days (total 42) they will have committed a criminal offence

[FANTASY CHARGES]

RE:

 

THE monument !!! SALE EXPOSURE NOTE:--

 

“Unenforceability Allegation” means an express written notice received by the Purchasers or Raphael Bank from a Cardholder within two years of the date of this Agreement containing an allegation that his or her Cardholder Agreement is unenforceable pursuant to the CCA due to any fact, matter or circumstances arising prior to the date of this Agreement;

 

SUGGEST WE CHEW over each and every word above so we come up with "an exact phrase" in the letter so their is no doubt that the above criteria is met !! some of you will say we already do ......

[car2403]

RE:

 

THE monument !!! SALE EXPOSURE NOTE:--

 

“Unenforceability Allegation” means an express written notice received by the Purchasers or Raphael Bank from a Cardholder within two years of the date of this Agreement containing an allegation that his or her Cardholder Agreement is unenforceable pursuant to the CCA due to any fact, matter or circumstances arising prior to the date of this Agreement;

 

SUGGEST WE CHEW over each and every word above so we come up with "an exact phrase" in the letter so their is no doubt that the above criteria is met !! some of you will say we already do ......

 

"Your agreement is poo {I had to change that word!} - now put up or shut up!"

 

Hows that for an express written notice?

 

Please note: This statement is not endorsed by CAG and reflects my personal opinion. Any use of it in letters to your creditors comes with a disclaimer from me - "it wasn't me, Guv!"

 

:grin:

[blencathra]

Thanks for your help Johcris. I shall do that . But what i am asking about what is the long term action to take . Can you reclaim all your interest charges. demand a withdrawal of all Credit file records or refuse to pay the outstanding debt . demand all payments be repaid or simply write the debt off. Its all very well going down this road but needs to know where the road takes you. There isn't a Sat Nav for this journey. Cheers Dave

[car2403]

Can you take a look at this thread;

 

http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/113297-knox-blair-oliver-scott.html

 

I've had a look at the agreement posted, but would appreciate some views to confirm or add to what I've said.

 

Peter - I've worked the APR out, but it's a tricky one, so can you pop in and offer some help with that one?

[car2403]

Thanks for your help Johcris. I shall do that . But what i am asking about what is the long term action to take . Can you reclaim all your interest charges. demand a withdrawal of all Credit file records or refuse to pay the outstanding debt . demand all payments be repaid or simply write the debt off. Its all very well going down this road but needs to know where the road takes you. There isn't a Sat Nav for this journey. Cheers Dave

 

What you are referring to there, (reclaiming interest and payments already made) blencathra, is restitution. This is a difficult area as there is no real law to rely on for precedant. (Although there are some key cases in the pipeline, I believe)

 

You can refuse to pay the debt, as they can't enforce it against you as long as they are in Default. Note, I said "enforce" not "collect" - they will still pester you for payment, but they can't technically take Court action against you. (They can take Court action, but you'll have a complete Defence to such action)

 

Whether or not they write off the debt is a lottery - they should, but they don't have to.

 

You can challenge the records on your Credit File, as they can't back them up with factual evidence - they can't prove you "agreed" to make repayments, for example. There's more information on this here;

 

http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/111211-defaults-background-removal-methods.html

 

BTW - if you get the longtitude/latitude GPS location on that Sat Nav for this road, can you PM them to me as I want to get there quickly!

[SteveH2508]

Whether or not they write off the debt is a lottery - they should, but they don't have to.

 

I have been mulling over the Fundamental Accounting Concepts for some time in relation to this scenario. My understanding is (and it is fairly low level) is that if you have a reasonable anticipation that a debt/receivable or whatever is not going to be paid, you MUST bring it to account immediately. (Prudence concept). The Prudence concept basically states that you cannot recognise a profit until it actually occurs but you must recognise a loss as soon as it is foreseeable. (SSAP2 as was).

 

As to the legal enforceability/enforcement authority for this, I am out of my depth. Sheer SWAG (Scientific Wild A*se Guess) - would it be Companies House and possibility the HMRC?

 

Any accountants out there with any thoughts on this?

[car2403]

I have been mulling over the Fundamental Accounting Concepts for some time in relation to this scenario. My understanding is (and it is fairly low level) is that if you have a reasonable anticipation that a debt/receivable or whatever is not going to be paid, you MUST bring it to account immediately. (Prudence concept). The Prudence concept basically states that you cannot recognise a profit until it actually occurs but you must recognise a loss as soon as it is foreseeable. (SSAP2 as was).

 

As to the legal enforceability/enforcement authority for this, I am out of my depth. Sheer SWAG (Scientific Wild A*se Guess) - would it be Companies House and possibility the HMRC?

 

Any accountants out there with any thoughts on this?

 

Er, take your word for that one, SteveH2508!

 

As for the actual Debt, remember that "unenforceable agreement" does not equal "no debt". Rather, "unenforceable agreement" equals "unenforceable debt", but that doesn't mean they can't still collect on that debt as it still exists. (Not sure how this applies to what you mentioned, but would seem that there is still a chance they can "profit" under the debt, so don't write it off)

 

My post referred to the inconsistency in application of write off of the outstanding balance on the agreement being unenforceable - some companies have done it in the past, others haven't and never will, hence the lottery effect.

[FANTASY CHARGES]

can someone please explain on the thread below

 

this statement made by a "rep for mbna" in the house of commons treasury minutes of evidence that

 

In the United Kingdom, the consumer sees the terms and conditions twice before they receive the plastic and then once when they receive the plastic itself.

 

 

 

http://www.consumeractiongroup.co.uk/forum/mbna/123283-mbna-say-consumer-receives.html

[PriorityOne]

Er, take your word for that one, SteveH2508!

 

As for the actual Debt, remember that "unenforceable agreement" does not equal "no debt". Rather, "unenforceable agreement" equals "unenforceable debt", but that doesn't mean they can't still collect on that debt as it still exists. (Not sure how this applies to what you mentioned, but would seem that there is still a chance they can "profit" under the debt, so don't write it off)

 

My post referred to the inconsistency in application of write off of the outstanding balance on the agreement being unenforceable - some companies have done it in the past, others haven't and never will, hence the lottery effect.

 

Hiya Car...

 

They would still be piddling in the wind though by not writing it off.... as without complying with a legal request (CCA), payment cannot be enforced at all and if a creditor/DCA tries, they can be reported for it (not that it does any good in reality ).

 

I understand what you're saying though.... hence why CCA defaulted accounts still get passed/sold from pillar to post, in the hope of selling it to some dopey outfit waiting in the wings to make a fast buck, based on public ignorance of how CCA law works.... and in the hope of them getting the "debtor" to make 'phone contact to intimidate the life out of him/her.