Cap1 & CCA return

[PriorityOne]

Yes, Moonhawk... but Mr. Thomas wouldn't have worded it like that, would he ?....lol. Non-compliance of a CCA request means there's nothing to enforce, so why prattle on about "legitimately owed" debts" in the next para ?...

 

[Peterbard]

Hi

 

As moonhawk says there is nothing to stop the creditor from pursuing you for the debt.

If this were just a private arrangement,say you mate leant you a 100 quid it would not be covered by the cca but he wuld stil be legally entitled to ask for repayment even through the courts, the same would apply to any debt, but the cca says that any commertial loan must be coverecd by the act in order to be legally enforced.

THe lender is still intitled to ask for his money although if he has breached the act and is in default he cannot use the act to help him.

 

Best regards

Peter

[Vulture_Bank]

more secrets revealed here

 

although strictly the information relates to storecards a lot of "trade secrets" and trade beliefs and uncertainty regarding the current legal situation is revealed

 

 

 

 

Switching provider of a store card programme:

 

 

providers’ approach and customers’ rights

 

 

1. This appendix presents the conclusions of the CC’s scrutiny of the legal requirements and the industrial practices relating to the transfer of a store card programme to a new provider. The CC drew these conclusions from the responses to questionnaires it sent to store card providers and the Consumer and Competition Policy Directorate of the DTI relating to the assignment of customers’ contractual rights and providers’ contractual obligations when a portfolio of store card receivables is transferred to a new provider. Store card providers were also asked about the different ways in which the switch of a store card programme from one provider to another can take place.

 

 

Assignment of customers’ contractual rights and providers’ (including in-house providers’) contractual obligations when a portfolio of store card receivables is transferred to a new provider

 

 

2. The questions were based on the premise that the identity of the person/corporate entity with whom the customer contracts changes as a result of the transfer (and not a situation where a customer has a contractual relationship with a corporate entity and it is only the ultimate ownership of that entity which changes).

 

 

Question 1: Is each customer required to sign a new credit agreement with the new provider or is this unnecessary in certain circumstances (eg, if the original credit agreement includes clauses on the right of the incumbent provider to transfer the rights to a third party)?

 

 

Summary of responses

 

• The CCA does not prohibit assignments of regulated consumer credit agreements. However, uncertainty exists on whether a customer is required to sign a new credit agreement with the new provider.

 

• The uncertainty stems from the law of contracts and revolves around the effectiveness of consent to assignment, in fact, at common law, rights under a contract can be assigned, but duties under the contract can only be assigned with consent. Generally, consent can be given via a clause in the original contract or at a later date in which case a signature is usually required.

 

• Two schools of thought exist on whether, in the case of Regulated CCA agreements, consent for the transfer of obligations to a third party can be given via a clause in the original contract or must be given in writing (ie, by signing a new agreement), failing which the agreements may become unenforceable against the borrower.

 

• All providers have included in the terms and conditions of their credit agreements with customers’ clauses on their ability to transfer rights and obligations. Therefore, according to the view that consent can be given via a clause in the original contract, by signing the credit agreement, a customer gives his or her consent to the transfer of his/her duties to the new provider and there should be no need to sign a new agreement.

 

 

However, if a provider agrees with the opinion that consent for the transfer of obligations to a third party for Regulated CCA agreements can only be given in writing, to avoid the risk that the agreements with the customers become unenforceable, the contract between providers may be structured so that the new provider acts as an agent for the incumbent.

 

• Furthermore, ’clauses in agreements permitting the assignment of rights and obligations (like those in providers’ terms and conditions) may also be subject to challenge as falling within the ‘grey list’ of the Unfair Terms in Consumer Contracts Regulations 1999 (Schedule 2, paragraph 2(1)(p)) which states that a term which has the object or effect of ‘giving the seller or supplier the possibility of transferring his rights and obligations under the contract, where this may serve to reduce the guarantees for the consumer, without the latter’s agreement’ is deemed unfair and will therefore not be binding on the consumer’.

 

• This risk, however, can be mitigated by wording such clauses in a way that clearly indicates that the transfer would not have a detrimental effect on the customer’s rights.

 

 

Question 2: Is there any legal requirement for the customer to receive any notification of the transfer of their contract to a third party? If so, please specify.

 

 

Summary of responses

 

• Industry practice is to send customers notification of the transfer of a portfolio.

 

 

Question 3: Are there any constraints/limitations imposed by the Data Protection Act or the Consumer Credit Act on the ability of the incumbent provider to transfer the portfolio to a new provider? If so, please give details.

 

 

Question 4: Does either of the statutes in © affect the way in which the transfer is carried out? If so, please explain.

 

 

Summary of responses

 

• Neither the Data Protection Act nor the Credit Consumer Act impact on the ability to transfer portfolios of receivables between providers. However, providers must ensure that their data protection notifications permit the transfer and receipt of the cardholder’s personal data.1

 

 

Different ways in which the switch of a store card programme from one provider to another can take place

 

 

Question 5: How does the process differ when the existing portfolio at the termination of the contract is not transferred to the new provider, who instead launches a new store card programme?

 

 

Summary of responses

 

 

Transfer of a portfolio:

 

1All providers’ credit agreements with customers analysed by the CC include such clauses.

 

 

 

2

This would not be the case if the retailer decides to continue accepting the cards issued by the incumbent provider as well as offering the cards of the new programme. This scenario, however, is unlikely to occur as current market practice is for providers to have exclusivity for the supply of a store card programme.

The new programme needs to offer customers terms identical to, or more favourable than, the ones of the previous programme, otherwise customers must be issued with a new credit agreement and their written consent must be sought.

 

• New provider does not commence recruitment of customers from scratch but instead sends customers a ‘notice of assignment’ informing them that the company servicing the account has changed.

New programme without transfer of existing portfolio of receivables:

• The new provider can design the product from scratch without concern as to whether changes could be described as having an adverse impact on customers and can issue entirely new product types.

 

• New provider commences recruitment of customers from scratch either at point of sale or through mailing customers based on the previous use of a customer list, if available. This means that customers will be given/sent a new credit agreement to sign.

 

• Incumbent provider usually2 ceases actively promoting the old programme soon after the launch of the new store card programme but retains the rights to collect outstanding debt and continues to service accounts in the same manner until balances outstanding are paid.

 

• Incumbent provider gives adequate notice to customers that the facility to make further purchases using the card would be terminated from a given date.

The new provider issues new cards to customers whether it acquires the existing portfolio or not.

Question 6: On a change of provider, which is the more common occurrence, the acquisition of the existing portfolio or the launch of a new programme by the new provider? How would you account for this?

 

 

Summary of responses

 

 

• According to providers the more common occurrence is the acquisition of the existing portfolio. The advantages of this approach include:

 

— a more seamless transfer from the retailer’s and the customers’ perspective;

 

— enabling the incumbent to realize the value of the asset in advance; and

 

— providing the new provider with an income-generating asset.

 

• Providers have submitted that restrictive clauses in contracts can make the transfer of portfolios difficult. The CC’s analysis of contracts shows that older contracts tend to be silent on what happens to the existing portfolio when the contract expires. Lack of contract clauses on retailers’ or third parties’ right to purchase the portfolio, together with confidentiality clauses on customers’ credit data, might create issues for the transfer of a portfolio to a new provider.

 

 

2This would not be the case if the retailer decides to continue accepting the cards issued by the incumbent provider as well as offering the cards of the new programme. This scenario, however, is unlikely to occur as current market practice is for providers to have exclusivity for the supply of a store card programme.

 

 

 

3

 

 

 

Excluding receivables sold to debt collection agencies because considered uncollectible.

 

 

 

More recent contracts, however, include clauses on the rights of retailers or third parties to purchase the portfolio of receivables.

 

 

Question 7: Are receivables transferred only when a new provider is brought in? Or do transfers of receivables occur in other circumstances (eg securitisations)? If so, please describe these circumstances and provide an indication of the frequency of such transfers.

 

Summary of responses

• According to all providers receivables3 are only transferred when a new provider is brought in (be it an external provider or the retailer). Only one provider seems to have direct experience of securitization, having securitized its debt in the past.

 

Overall conclusions

3. Switching between providers of store card programmes can take place in two ways:

 

• by transferring the portfolio of receivables from the incumbent to the new providers; and

 

• by launching a new programme without transferring the portfolio of receivables.

 

4. The first approach tends to be the most common and presents the following advantages:

 

• it allows a more seamless transfer form the retailer’s and the customer’s’ perspective;

 

• it enables the incumbent to realise the value of the asset in advance; and

 

• it provides the new provider with an income generating asset.

 

5. Recent contracts between retailers and providers include clauses on transfer of portfolios that aim at facilitating the sale and purchase of the portfolio of receivables when a contract expires. Older contracts are often silent on this matter and that might have created problems in transferring portfolios.

 

6. Neither the CCA nor the Data Protection Act impact on the ability to transfer portfolios of receivables between providers.

 

7. Where a portfolio of receivables is transferred to a new provider, and the original credit agreement with the customers includes clauses allowing the incumbent provider to transfer/assign their rights and obligations under the contract, customers need to sign a new credit agreement only if the new store card programme reduces their guarantees and rights or they are offered a completely new product.

 

8. Where a new programme is launched and the portfolio of receivables is not transferred to the new provider, customers are notified that the old programme would be terminated at a certain date (after which it would not be possible to make purchases on the old card) and that only the accounts with outstanding balances would continue to be serviced by the incumbent provider until the balances are paid

 

off. The new provider would start marketing the new store card to customers from scratch.

 

 

9. In all cases customers must be notified of the change in provider.

 

 

source

 

 

Store Card Credit Services

 

 

 

[Vulture_Bank]

may it be suggested that one considers whether the above could realate to MBNA effectively taking over accounts from abbey halifax alliance and leicester halifax etc etc ........

[Peterbard]

Hi VB

 

Thanks for that it is very illuminating i shall be copying it to my DB.

Best regards

petr

[Vulture_Bank]

Hi VB

 

Thanks for that it is very illuminating i shall be copying it to my DB.

Best regards

petr

 

 

if any one of the like minded has an enquiring mind there are almost certainly many more trade secrets yet to be revealed at

 

Store Card Credit Services

 

just click on every link

[B3rty]

Could someone explain how Abolition of automatic unenforceability in the new changes effects exisiting agreements?

[ncf355]

Hi,

 

the basic facts are that if your agreement was made before April 2007 you are NOT effected by the changes

 

For any agreement April 2007 on the unenforceable elements of S127 3-5 are abolished, though a judge can still take it upon himself to throw the agreement out:

 

CCA 2006

 

Schedule 4

 

Repeals

 

In section 127—

(a)

in subsection (1) the words “(subject to subsections (3) and (4))”; and

 

(b)

subsections (3) to (5).

 

 

 

BUT:

 

 

 

 

 

Schedule 3

 

Para 11:

 

The repeal by this Act of— (a) the words “(subject to subsections (3) and (4))” in subsection (1) of section 127 of the 1974 Act,

(b) subsections (3) to (5) of that section, and

© the words “or 127(3)” in subsection (3) of section 185 of that Act,

has no effect in relation to improperly-executed agreements made before the commencement of section 15 of this Act.

 

Hope this helps,

 

NcF

[lookinforinfo]

Thankyou for that post Vulture Bank. I am sure that I once read in the CCA

that the debtor had a right to object about the Company to whom his debt

had been assigned. But have never been able to find it since. Your post does

seem to confirm that there is a right to refuse the new creditor especially

when it is presented to one as a fait accompli, and where the new creditor

is noted for their heavy handed tactics -1st Credit spring to mind here as they appear to be much quicker off the mark than most to apply for possession orders etc. It would be interesting to see how possible it is to

have assignments of contracts cancelled in such circumstances.

[Vulture_Bank]

Thankyou for that post Vulture Bank. I am sure that I once read in the CCA

that the debtor had a right to object about the Company to whom his debt

had been assigned. But have never been able to find it since. Your post does

seem to confirm that there is a right to refuse the new creditor especially

when it is presented to one as a fait accompli, and where the new creditor

is noted for their heavy handed tactics -1st Credit spring to mind here as they appear to be much quicker off the mark than most to apply for possession orders etc. It would be interesting to see how possible it is to

have assignments of contracts cancelled in such circumstances.

must stress that the responses (opinions) were from a variety of companies that in reality are behind these store-cards

 

Note it is believed on the evidence of appendix 3.1 on the link

 

That there is a very high probability that non of the responses can be attributed to MBNA Europe (it is believed at 2005 they were not active in the store-card market)

 

The contributors as per appendix 3.1 on the link

Appear to be

 

ARGOS ( 3 STORECARDS)

AUSTIN REED ( 1 STORECARD)

BEALES( 1 STORECARDS)

CREATION( 16 STORECARDS)

FENWICKS ( 1 STORECARD)

FORTNUM & MASON ( 1 STORECARDS)

GECF -- GE MONEY TO YOU & ME ( 24 STORECARDS)

HSBC ( 3 STORECARDS)

IKANO ( 5 STORECARDS)

JENNERS ( 1 STORECARD)

LLOYDS TSB ( 2 STORECARDS)

STYLE ( 13 STORECARDS)

 

so without any need to do any statistical analysis it is suggested that on the balance of probabilities the actual source of the comments can fairly easily guesstimated

[Goldlady]

My favourite company. Streets ahead of the rest:mad:.

[ian1969uk]

There have been lots of questions within this thread about whether a copy agreement will suffice in Court or whether the original must be available. There have been views on both sides but no actual facts presented.

 

I was today pointed in the direction of CPR 16 Practice Directions, which appears to clarify this issue once and for all. I quote:

 

PRACTICE DIRECTION – STATEMENTS OF CASE

 

THIS PRACTICE DIRECTION SUPPLEMENTS CPR PART 16

 

 

 

7.3 Where a claim is based upon a written agreement:

 

(1)a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing, and

 

PRACTICE DIRECTION – STATEMENTS OF CASE - This practice direction supplements CPR Part 16

 

 

Now credit agreements are clearly written agreements and so this must apply. The original IS required in Court and I would suggest anyone faced with a copy agreement in Court points this out to the Judge.

[car2403]

The problem being, ian1969uk, is exactly that - what the Judge chooses to accept in his opinion may not correspond with directions.

 

As an example, under the part you've quoted, no claim should go ahead without a copy of a correctly executed and properly constructed credit agreement being attached to the claim form. If that was the case, most of these claims where the documentation isn't right shoudn't even see the light of day in Court. But, alas, they do.

 

As most of these end up in the small claims track, you'll find that most of CPR can't be enforced anyway. I believe that CPR Part 18, for example, (formal requests for more information during disclosure) isn't usually ordered by the Court for costs reasons.

 

Sadly, this is a sort of lottery if you aren't prepared to argue - and back up - your own opinion. Every case that comes to Court is under dispute, otherwise it wouldn't be there, so the Judge is asked to adjudicate - all you can do is argue your case, doing it well, hoping they will see it your way. (Or, rather, see it more your way than the other partys point of view!)

 

Luckily, most County Court Judges aren't experts in Consumer Law and neither are the Solicitors sent to represent the other side on the day. If you're switched on enough to prepare your argument and counters to their arguments, it's relatively easy to put doubt on their version - and, on balance of probablities, have a decent chance of winning. Sadly not all claimants are this prepared, so get "overrun" by the Judge/other side. For me, it's about confidence - if you appear to know what you are talking about, have a more than half decent argument and can challenge the other side, you are there or there abouts in the end.

[JonCris]

In any matter before the Court both of the litigants MUST bring the originals of those documents they intend to rely on.

 

car your correct that in the past the courts have not had to consider these matters & it was just a question of them rubber stamping the applications followed by judgment.

 

The principal reason being that debtors have on many occasions failed to offer a defence.

 

A prime example is MCOL The court clearly assumes that all claims made by the lenders are valid & enforcable because if you intend to defend a MCOL there is very little space for you to enter a detailed defence

[sequenci]

There have been lots of questions within this thread about whether a copy agreement will suffice in Court or whether the original must be available. There have been views on both sides but no actual facts presented.

 

I was today pointed in the direction of CPR 16 Practice Directions, which appears to clarify this issue once and for all. I quote:

 

PRACTICE DIRECTION – STATEMENTS OF CASE

 

THIS PRACTICE DIRECTION SUPPLEMENTS CPR PART 16

 

 

 

7.3 Where a claim is based upon a written agreement:

 

(1)a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing, and

 

PRACTICE DIRECTION – STATEMENTS OF CASE - This practice direction supplements CPR Part 16

 

 

Now credit agreements are clearly written agreements and so this must apply. The original IS required in Court and I would suggest anyone faced with a copy agreement in Court points this out to the Judge.

 

This doesn't apply for Northampton Bulk Centre where the vast majority of CCA claims are started.

 

Take a look at Part 7C Practice Direction 1.4

 

It is, however, stated that the agreements *should* be available on request.

[maybelline]

In my view there is no contradiction if you consider the definition of "enforce". They can not force you or pressure you into paying, nor can they use the courts to seek a remedy. They can keep sending you reminders that there is a debt, and they can keep asking you if you would like to pay anything. It is a matter of how they go about this and what wording they use that makes it an attempt to enforce or not.

 

The law does not say they are not able to contact you nor does it say they can not ask if you would like to pay. You can in return just say no and ask that they only deal with you in writing. You can then choose to ignore the letters or treat them as a pen pal.

 

Best Wishes

MoonHawk

 

does enforce also mean record a default 8 on your file and keep udating this even though the agreement is unenforceable through a court via s127?

[JonCris]

Whilst a creditor can 'ask' you to pay an unenforceable debt from time to time if they persistently press you by constantly phoning or writing this could be considered as harassment.

 

Registering a default against an enforceable debt is considered by some as being an attempt at enforcing such a debt.

 

However if after demanding it's removal & their refusal you would certainly have to seek a court ruling to have the default removed

[JonCris]

Whilst a creditor can 'ask' you to pay an unenforceable debt from time to time if they persistently press you by constantly phoning or writing this could be considered as harassment.

 

Registering a default against an unenforceable debt is considered by some as being an attempt at enforcing such a debt.

 

However if after demanding it's removal & their refusal you would certainly have to seek a court ruling to have the default removed

[maybelline]

if I were in court I would hope to argue that if an agreement is found to have been always unenforceable then any defaults recorded in its name should be removed, and surely would be incorrect if an agreement it is founded on is factually incorrect (apr would be wrong if tcc incorrect for example).

[spiritgirl59]

This doesn't apply for Northampton Bulk Centre where the vast majority of CCA claims are started.

 

Take a look at Part 7C Practice Direction 1.4

 

It is, however, stated that the agreements *should* be available on request.

 

Oooh Sequenci this has alarmed me more than a bit My Defence in a claim against me taken out in the Northampton Bulk Centre rests mainly on the fact that no agreement has ever been provided in relation to the alleged debt, and CPR procedures have been breached by the Claimant's Solicitors.

 

Interesting what Joncris has said about MCOL and there not being much room for a Defence as well. My Defence has gone by post as it was several pages long.

 

All I can do is pray now that things go in my favour, I have certainly done all I can to show how the Claimant has breached Consumer Law.

 

Love SG x

[patrickq1]

if my case was raised at Northampton Bulk Centre where the vast majority of CCA claims are started.could nt i ask for the case to be transfered to a local court because of my disabillity ?

[car2403]

if my case was raised at Northampton Bulk Centre where the vast majority of CCA claims are started.could nt i ask for the case to be transfered to a local court because of my disabillity ?

 

The Bulk Centre at Northampton would transfer these sorts of cases to the Defendants local County Court automatically as part of the Allocation process.

 

What sequenci is referring to CPR Part 7C and Practise Direction 1.4(4);

 

(4)Paragraph 7.3 of the practice direction supplementing CPR Part 16 (statements of case), which requires documentation to be attached to the particulars of contract claims, does not apply to claims to be issued by the Centre

 

Once the case comes to trial, they would need to produce the documentation as they are relying on it for enforcement and would have to disclose it as part of disclosure ordered by the Court. (Whether or not it's assigned to a small claims track)

 

I feel this is being abused, as claims are being issued against debtors in the hope of getting Judgment before trial. (by Default or Admission) It is obviously up to the debtor to Defend appropriately, to force their hand, but how many people feel they can do that without legal representation?

[FANTASY CHARGES]

 

SOME good information revealed here in a complex thread

 

 

THE CITY OF LONDON LAW SOCIETY FINANCIAL LAW SUB-COMMITTEE

DIRECTIVE ON FINANCIAL COLLATERAL ARRANGEMENTS:

 

 

 

REPLIES TO QUESTIONS FROM H.M. TREASURY CONTAINED IN NOTE OF

APRIL 2003 SETTING OUT INITIAL POLICY AND LEGAL QUESTIONS

 

 

 

 

http://www.fmlc.org/papers/fmlc1may2.pdf

[blencathra]

Update on my thread Recent applications for CCAs from Littlewoods, Capital One and TSB have resulted in only one reply. that being from Capital One, who have very kindly sent me a copy of the current terms and conditions of my credit card agreement.no signature though. Which still took them 17 days to arrive at my door. I have sent all three a second letter by recorded delivery informing them, that the account is uncollectable. I suppose now i have to wait for the 32 days to pass before they are acting illegally 1 QUESTION should i continue to make payments during this 32 day period. or just tell them they cant enforce the payments and see what happens

[blencathra]

INFO ONLY.

If any of you are getting telephone calls about your store card account. Please check with them as to who it is that is calling you. They will always use the name of the store your card is with But insists on them telling you the truth. You will find it could be a company based in Claypit Lane in Leeds called VENTURA. They will put the phone down on you if you insists they tell you who they are. They also use the call 4 times a day every day method. It could even be a call from the office in India. It is worth asking questions of the company they say they are . You will quickly find most debt collecting companies hate to be questioned and they soon lose their tempers with you and put the phone down.