Cap1 & CCA return

[reallymadwoman]

Could someone knowledgeable have a look at the agreement on this thread please, I don't feel qualified to comment.

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/151880-scampjet-blair-oliver-scott.html

[MAGDA]

Where a debt has been assigned (I believe it's absolute), in my case a First National debt assigned to Link, I was under the impression that the OC should still retain information regarding the account for a minimum of six years, and therefore a SAR's could be sent to them if information was not forthcoming from the new owner of the debt. However, First National say that they don't hold any info at all, even though one of the debts is from 2004, and that I need to contact Link. They claim that all documents are now held elsewhere and that they are unable to access the account on their computer. I did ask if the assignment was absolute or equitable, but the person I spoke to didn't know what that meant. Could this actually be the case and are they legally able to destroy or pass on all documents/information relating to the account once it has been assigned, or are they just trying to avoid getting involved. Many thanks, Magda

[Chalkitup]

Hello Magda,

 

First National might well have shot themselves in the foot there as it is my understanding that by not keeping the relevant paperwork for a minimum of six years after the account is paid up or assigned they are breaking various anti money laundering regulations which is VERY serious stuff.

 

Not dealt too much with this myself but good thread here...

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/93884-wescot-rbofs-oh-dear.html

(especially posts 32 and 67) .... .by Rory32 ..... where he actually got the balance discharged by bringing this point to creditors attention. (However they did not have agreement).

 

As Rory says ....

"The relevant Acts and regulations relating to money laundering (and record keeping accordingly) are along the lines of The Money Laundering Regulations 2003, The Proceeds of Crime Act and The Anti Terrorism Act. I think it's also in one of the drug enforcement acts as well and probably a few others. Each of the offences can lead to up to a 2 year jail sentence and/or a fine. The exception being the anti terrorism act which can lead to a four year sentence and/or a fine (a little more serious than not providing an agreement).

Also please be aware that The Financial Crime Branch of HM Treasury are the gestapo of the regulatory world."

 

Posts 9239 / 9246 in this thread might help also.

 

I hope this is of help or at least points you towards more ammo for your battle.

 

Onwards and Upwards

 

Chalkitup

Edited July 17, 2008 by Chalkitup
Broken link .... getting too old for all this!!

[MAGDA]

Thanks Chalkitup, that's a great help. Will have a look at the posts you suggest and see what I come up with. I thought it was strange that they claim not to have anything at all relating to the debt and claim they cannot even access the account because I know from reading threads on here that sometimes people send the SAR's to the OC, as they tend to hold the information such as statements, etc. Thanks again, good luck with your own battles! Magda

[Having_A_Knightmare]

Hi All

 

Just a quck one.

Sainsburys alas Blair Oliver and Scott have issued Court papers to me.

I have done the CPR Letter given them 14 days.

What happens if they dont reply within the 14 days. What do I do?

 

HAK

[MAGDA]

Hi Hak, if they don't respond within fourteen days (and they probably won't) then you can actually use that as part of your (holding) defence in that you don't have sufficient information to be able to prepare your actual defence. I have found in my own case that although they ignored the CPR, they suddenly provided Agreements for two accounts for which there previously weren't any. If you don't get the info you need, it would then be up to the court to order compliance with your CPR request I believe. Magda

[Having_A_Knightmare]

Thanks Magda

 

So basically if the dont comply I tell the Courts I cant file a defence and the case goes on hold...is that right

 

HAK

[MAGDA]

Well, in my own case I submitted a holding defence initially as I didn't have anything from the claimant that I had asked for, and I entered a clause requesting the court's permission to change my defence at a later date. Basically, I have found the court don't even look at what you submit until way down the line. They just acknowledge that you have submitted your defence. You will then receive an allocation questionnaire and when you complete it you have a section headed directions, and it is here that you can state the claimant has not responded to your CPR request and ask that they be ordered to provide a copy of the agreement, default notices etc. It is at this point that it then goes before a judge and he will decide whether or not to agree to your requests and also on which track to place the claim. There are some good holding defences on the site, if I can remember where, will post one up for you.

[MAGDA]

My claim was issued at the end of March and it's still up in the air, the judge hasn't even looked at the AQ's yet, and they were due back on June 27th, so you should have plenty of time to do a bit of research in the meantime!

[MAGDA]

this might be useful if they don't respond to your CPR request, the bit you need is post no. 54 - not sure whether you have already CCA'd this company in the past or not, but you can obviously amend it to suit your particular case.

http://www.consumeractiongroup.co.uk/forum/legal-issues/135558-help-court-summons-restons-3.html?highlight=holding+defence

 

Good luck, Magda

[Having_A_Knightmare]

Thanks Magda

 

I have CCA them and got an application form back (No terms )

 

Not sure why they have sent Court papers unless they have something up there sleves...

 

HAK

[Having_A_Knightmare]

Just another thing thats been playing on my mind..

 

If it goes to Court and a judge says "Have you spent the money on the credit card" or "do you admit th debt as you have used it" what do you say to the judge:confused:

HAK

[tifo]

If it goes to Court and a judge says "Have you spent the money on the credit card" or "do you admit th debt as you have used it" what do you say to the judge

 

You say, we're here to judge the facts.

 

If there is no credit agreement then the money can be seen as a unrepayable gift from the bank as cited in Wilson vs .... as the money was spent as such.

[Having_A_Knightmare]

Good point Tifo... It been worrying me for ages.

[Jeff2000]

Just another thing that's been playing on my mind..

 

If it goes to Court and a judge says "Have you spent the money on the credit card" or "do you admit the debt as you have used it" what do you say to the judge:confused:

HAK

 

 

 

 

Hi,

 

 

Personally, I would tell him/her that it is completely irrelevant whether any money was spent or whether the card was used. It is not the issue whether the debt exists, but whether the agreement is enforceable!

 

JMO!

 

 

Regards, Jeff.

[Having_A_Knightmare]

Jeff do you think it would get his back up:)

[Jeff2000]

Jeff do you think it would get his back up:)

 

 

 

It may well, but you have to fight your corner!

 

Some of these judges are not all that clued up on the CCA.

 

You are only putting your point across, which is your right!

 

 

Regards, Jeff.

[star_scream]

Thankyou

[Goldlady]

HAK another one that I have had ready for my various aborted court appearances is that if they haven't got a CCA then they did not have the right to charge interest or make any charges. In my case that would have worked as I had actually paid off the capital, if you see where I am coming from, and I would have felt quite OK about saying that in the court.

[davefirewalker]

HAK another one that I have had ready for my various aborted court appearances is that if they haven't got a CCA then they did not have the right to charge interest or make any charges. In my case that would have worked as I had actually paid off the capital, if you see where I am coming from, and I would have felt quite OK about saying that in the court.

 

As you know, I am already treading this path. I am about to start turning the screw a little, as they havent moved from their last offer (writing the debt off circa 4000 pounds).

 

Getting just a little weary of playing these games with no movement now.

 

on a different tack Equidebt who own my mbna debt have offered me a substantial reduction.......(wonder why )

 

Dave

[Vulture_Bank]

see

 

Wilson v First County Trust Ltd [2001] EWCA Civ 633 (2 May 2001)

 

paragrap 26 says

 

The recognition that there is nothing in the 1974 Act which prevents an improperly executed regulated agreement from giving rise to contractual rights, nor which prevents the right to possess goods pawned as security passing on delivery of the goods, provides the answer, as it seems to us, to the principal argument advanced on behalf of the Secretary of State in support of his submission that there is nothing in section 127(3) of the Act which is incompatible with Convention rights. It was said, in effect, in relation to article 1 of the First Protocol, that, where there was no document signed by the debtor – or where the document signed by the debtor did not contain all the prescribed terms of the agreement – neither the agreement, nor the delivery of the pawn, conferred any enforceable rights on the creditor. So, in the present case, the creditor had no relevant "possessions" to the peaceful enjoyment of which it was entitled, or of which it was deprived by section 127(3) of the 1974 Act. In effect, the creditor – by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms – must (in the light of the provisions in sections 65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid; so there is nothing to engage the rights guaranteed by article 1 of the First Protocol. Nor, on that analysis, does the creditor have any civil rights in respect of which it is entitled to a fair and public hearing by an independent and impartial tribunal. Article 6 of the Convention is not in point.

 

============

paragraph 51 says

 

 

 

 

1. We allow the appeal against the order made on 24 September 1999 for the reasons given in our interim judgments of 23 November 2000.
   
2. ORDER: Appeal allowed; declaration of incompatibility made; Judgment for claimant in the sum of £6,900.00. Defendant to pay applicants costs assessed at £1,354.36; Appeal to the House of Lords refused.
   
3. (Order does not form part of approved Judgment)
   

===============================================

on the human rights aspect this case appeared in the house of lords of appeal

 

 

Wilson & Ors v. Secretary of State for Trade and Industry [2003] UKHL 40 (10 July 2003)

 

paragraph 1 says

 

In January 1999 Penelope Wilson borrowed £5,000 from a pawnbroker for a period of six months. The pawned property was her car, a BMW 318 Convertible. She did not repay the loan. The pawnbroker sought repayment, failing which the car would be sold. Mrs Wilson's response was to commence proceedings in the Kingston upon Thames County Court. She claimed the agreement was unenforceable because it did not contain all the prescribed terms. She sought on order for the return of her car. Alternatively she sought to reopen the agreement as grossly exorbitant. At the trial Mrs Wilson appeared in person. The pawnbroker was a two-man company, First County Trust Ltd. The company was represented in court by its finance director.

================================

paragraph 4 says

 

The agreement was a regulated agreement for the purposes of section 8 of the Consumer Credit Act 1974. A regulated agreement is not properly executed unless the document signed contains all the prescribed terms: section 61(1)(a). One of the prescribed terms is the 'amount of the credit': see the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553), regulation 6 and Schedule 6, para 2. The consequence of failure to state all the prescribed terms of the agreement is that the court is precluded, by section 127(3), from enforcing the agreement. In the absence of enforcement by the court the agreement is altogether unenforceable: section 65(1).

==================================

paragraph 6 says

 

The appeal was heard in November 2000, shortly after the Human Rights Act 1998 came into force. The Court of Appeal, comprising Sir Andrew Morritt V-C, and Chadwick and Rix LJJ, allowed Mrs Wilson's appeal: see [2001] QB 407. Sir Andrew Morritt V-C recognised there was considerable force in First County Trust's submissions in support of the judge's view. But having analysed the statutory provisions, the court held that the £250 added to the loan to enable Mrs Wilson to pay the document fee was not 'credit' for the purposes of the Consumer Credit Act. So one of the prescribed terms was not correctly stated. In consequence the agreement was unenforceable. So also was the security. First County Trust was ordered to repay the amount of £6,900 Mrs Wilson had paid the company after Judge Hull's judgment together with interest amounting to £662. The overall result was that Mrs Wilson was entitled to keep the amount of her loan, pay no interest and recover her car.

 

==================

 

paragraph 49 says

 

I consider, however, that there is no relevant restitutionary remedy generally available to a lender in the circumstances now under consideration. The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan. That being the consequence intended by Parliament, the lender cannot assert at common law that the borrower has been unjustly enriched. That would be inconsistent with the parliamentary intention in rendering the entire agreement unenforceable. True, the Consumer Credit Act does not expressly negative any other remedy available to the lender, nor does it render an improperly executed agreement unlawful. But when legislation renders the entire agreement inoperative, to use a neutral word, for failure to comply with prescribed formalities the legislation itself is the primary source of guidance on what are the legal consequences. Here the intention of Parliament is clear

================================

paragraph 50 says

 

This interpretation of the Consumer Credit Act accords with the approach adopted by the House in Orakpo v Manson Investments Ltd [1978] AC 95, regarding section 6 of the Moneylenders Act 1927 and, more recently, in Dimond v Lovell [2002] 1 AC 384, another case where section 127(3) precluded the making of an enforcement order. In Dimond's case the restitutionary remedy sought was payment of the hire charge for a replacement car used by Mrs Dimond. The House rejected a claim advanced on the basis of unjust enrichment. Lord Hoffmann observed that Parliament contemplated that a debtor might be enriched consequential upon non-enforcement of an agreement pursuant to the statutory provisions. It was not open to the court to say this consequence is unjust and should be reversed by a remedy at common law: [2002] 1 AC 384, 397-398.

 

===================================

paragraph 100 says

 

But the consequence of reading section 127(3) of the 1974 Act in a way that is compatible with FCT's Convention rights cannot be looked at without taking account of the effects of doing so on the other party to the transaction, Mrs Wilson. She too acquired rights as a result of the transaction, as well as FCT. The set of provisions of which it forms part, and on which she relies, were enacted for the protection of consumers. Section 61(1) provides that a regulated agreement is not properly executed unless it satisfies certain requirements. It must include a statement of all the prescribed terms, which include a term stating the amount of the credit: paragraph 2 of Schedule 6 to the Consumer Credit (Agreements) Regulations 1983. Section 65(1) provides that an improperly executed agreement is enforceable against the debtor or the hirer on an order of the court only. The amount of the credit in this agreement was incorrectly stated, so Mrs Wilson became entitled to the protection of section 65(1) as soon as it was entered into. What this right meant in her case was spelled out in section 127(3), which provides:

"The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner)."

==================================

paragraph 220 summing up says

 

The present action was in progress when the 1998 Act came into force on 2 October 2000. So, for the purposes of article 1, the operative provisions of the 1998 Act, including sections 3 to 5, do not apply to this action. I am content to rest my decision on that narrow ground. It follows that the Court of Appeal had no power to make the declaration of incompatibility that they did - and, indeed, that the Secretary of State had no right to be joined as a party under section 5(3). Despite this technical quirk,

I would allow her appeal and make the order proposed by Lord Nicholls of

Birkenhead

.

=======================================

 

print this lot out read it and then read it and put it under your pillow

 

 

Just another thing thats been playing on my mind..

 

If it goes to Court and a judge says "Have you spent the money on the credit card" or "do you admit th debt as you have used it" what do you say to the judge:confused:

HAK

 

conclusion

no more nightmares

Edited July 18, 2008 by Vulture_Bank
updated

[la2006]

(Barclays - really getting on my nerves right now)

 

I have the orginally agreement and terms and conditions (loan) which has error (point 6 and 7 are missing i only recently noticed this ) and is two pages long.(page 1 signature, page 2 terms and conditions) I did a CCA request on 16/06 and

 

First they sent me only the first page - so i wrote back complaining.

 

Now Barclays sent me a completely different terms and condition, they are completely different three page long. The terms and conditions do not match the copy which i gladly kept from 2004.

 

They only have just over a week, i have already wrote to them again as they did not comply, should i write to them again telling them i have kept the orginally and know what they sent me does not match.

 

I don't believe they have the real agreement - as before they only sent me the first signuature page, and the orginally has a mistake. What they have sent is twice as long. and the reference number at the footnote is different ( the one i should have end in 03 the one they have sent ends in 05)

 

Or have they still complied?

 

 

(i'm not sure what the dealine is?)

Edited July 18, 2008 by la2006

[MAGDA]

HELP!

I have just received a copy of my CCA with Black Horse for a car. The figure they have put in the total amount payable is incorrect.

They have added my part exchange deposit too the total amount payable. Also in the termination bit the calculation is wrong.

Hi Star, looking at the repayment amounts on the agreement, I think the figures do add up, as you would be paying back £6155.50, plus the total charge for credit which makes a total repayable of £9787.40, which I think is correct. I think the figure they have shown of £12,630.90 is the amount you would pay before the part exchange deposit is deducted. It is a very confusing layout though, so I am probably completely wrong! I'm sure someone else will give an opinion, Have you checked the interest and APR by the way? Magda

[Jeff2000]

see

 

Wilson v First County Trust Ltd [2001] EWCA Civ 633 (2 May 2001)

 

In effect, the creditor – by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms – must (in the light of the provisions in sections 65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid; so there is nothing to engage the rights guaranteed by article 1 of the First Protocol.

 

 

 

 

 

Hi,

 

 

Most of us have been under the assumption that most of our accounts were just unenforceable and that the debt still existed. But reading this, without a properly executed agreement, or an agreement without any of the prescribed terms, the money made available was gifted.

 

Therefore, if it is a gift there is no indebtedness and so the debt does not exist at all!

 

In fact it never existed!

 

Any thoughts?

 

 

 

Regards, Jeff.

Edited July 18, 2008 by pt2537
added forward slash to the quote

[car2403]

Hi,

 

 

Most of us have been under the assumption that most of our accounts were just unenforceable and that the debt still existed. But reading this, without a properly executed agreement, or an agreement without any of the prescribed terms, the money made available was gifted.

 

Therefore, if it is a gift there is no indebtedness and so the debt does not exist at all!

 

In fact it never existed!

 

Any thoughts?

 

 

 

Regards, Jeff.

 

Hmmm... See what you mean.

 

IMHO, it doesn't mean it didn't exist, but it means that it doesn't exist once declared unenforceable.

 

"Tomato" and "tomato", if you ask me!