Cap1 & CCA return

[tifo]

The overdraught however being a running account credit agreement is.

The determination however together with section 74 of the act says that these are exempt from part V of the act.

This means that all of the regulations involved in drafting and producing the agreements do not apply. The bank cannot send an agreement simply because one was never made and did not have to be.

 

To take advantage of the OFT determination, the bank still needs to send the 'overdraft agreement' in the form of a letter stating the limit, APR etc? I understand it as the exemption means prescribed terms etc. need not be included in the 'four corners' of the signature document but there is still an overdraft agreement letter.

 

We agree there is an agreement and it is regulated by the CCA. Can the bank state this at court on its POC, as it did mine, even though there is no 'agreement' as such to be sent to me?

 

I'm confused, there seems to be an agreement to be sent and no agreement so cannot be sent. The bank has said there is an agreement regulated by the CCA 1974 but that there is no agreement to be sent to me.

[BlueSquirrel]

I have been trying to read this thread all day and my head is well and truly boggled! I just wondered if anyone had had any luck with an S85 claim?

 

Also would I be right in saying that sections 59 to 61 only came into being on 19th May 1985 so an agreement prior to that could be an application form and have no signature and still be enforceable? Am a bit concerned about S61 - should I be??

 

Also can someone tell me if S127 (3) has gone completely or only for contracts after 2006?

 

Finally, if you took out a 0% credit card deal and it suggested a normal APR of 14.9% and it is now 29.9% could you challenge that under sections i or j of the UTT Regulations 1999?

Edited August 7, 2008 by BlueSquirrel
Wrong section quoted

[banker_rhymes_with]

Hello BlueSquirrel!

 

Also would I be right in saying that sections 59 to 61 only came into being on 19th May 1985 so an agreement prior to that could be an application form and have no signature and still be enforceable?

 

I don't know, but would think it would still have to have the Prescribed Terms to be Enforceable. I would also like to know, as I have one from just before 1983!

 

Also can someone tell me if S127 (3) has gone completely or only for contracts after 2006?

 

No, s127(3) still applies to Agreements made before the CCA 2006 amendments, the repeal of 127(3) was not retrospective. If you need confirmation of that, I'll try to dig out the references, but I know many of PT's Defences specifically mention this to keep duffer Judges on their toes.

 

Cheers,

BRW

[BlueSquirrel]

General

13

Sections 57 to 59, 61 to 65 and 67 to 73 come into operation on [19th May 1985].

14

Section 66 comes into operation on [19th May 1985].

 

 

Odd that 60 would apply but not the others??

[BlueSquirrel]

And S127 was in there from 1974 but refers to sections 61 and 65 which did not apply until 1985. How does that work? My head has gone bang!

[foolishgirl]

Perhaps you're looking at the version of the 1974 act that includes the updates & amendments?

[BlueSquirrel]

Perhaps you're looking at the version of the 1974 act that includes the updates & amendments?

 

Where should I be looking?

[Peterbard]

HI

A bank account without overdraft facility is not covered by the CCA,as it is not offering credit

The overdraft hwever does and is in fact as i said earlier a running account credit agreememnt. Section 74 of the act removes the liability for the bank to draw up an agreement each time an overdraft is issued so it can not of course respond to a request for a copy of one, however an "agreement" does exist on the overdraft as indeed it must on any commercial agreement involving the issuance of credit so the cca can be applied to it except for the bits included within part V.

 

Section 1273-4 were recinded on April 7th 2007 any agreememnts made after this date still have to have all the terms and conditions within the signature document but it is up to the court to decide whether the ommission of any of these would make the agreemement unenforceable.

Agreememnt made prior to April 7th which breached 127 were automatically unenforceable.

 

It is perhaps simpler to say that prescribed terms no longer exist after this date as they are only there to service section 127 3, and would be regarded by the court as just missing information, a judgmemtn would be made depending on the amount of predudice cause, to the debtor by there ommission.

 

THe timescale for the introduction of the various parts of the CCA 2006 are contained within the 2006 itself under transitional provisions(at the end.

 

Agreememnts made before May 1983 were actionable in the same way as any private agreement. The CCA laid down the format for the protection of commertial agreememnts after this date.

 

Regards

Peter

[BlueSquirrel]

Thank you Peter, just trying to establish the date when sections 59 and 61 came in as I have an agreement from Feb 1985. I thought the relevent date was May 85 not 83 or have I got that wrong?

[banker_rhymes_with]

Hello Peter!

 

Agreememnts made before May 1983 were actionable in the same way as any private agreement. The CCA laid down the format for the protection of commertial agreememnts after this date.

 

Could you possibly clarify that for me, as I have one "Agreement" for a Credit Card that was made in late 1982.

 

All I have been sent is a Microfiche Copy of an Application Form. There are no Prescribed Terms, indeed, I cannot even see any mention of the CCA-1974. It only mentions Terms by saying "overleaf". However, there is no overleaf. They have sent me some Terms on another Scan that seem to contain at least 2 of the usual Card Prescribed Terms. But the latter is clearly unrelated in Physical Terms to the Agreement Copy, i.e. size/shape is not the same, so it's not a Copy of anything that was on the rear/back of the Signature Page. It's clearly a Copy of another Document.

 

Broadly, is my position weakened by being so old, or is an Agreement made in 1982 still covered by, say, CCA-1974 s127(3)?

 

Sorry to hassle you with this.

 

Cheers,

BRW

Edited August 7, 2008 by banker_rhymes_with
Clarification of Rear

[Peterbard]

Thank you Peter, just trying to establish the date when sections 59 and 61 came in as I have an agreement from Feb 1985. I thought the relevent date was May 85 not 83 or have I got that wrong?

 

HI

Various bits of the act come into opperation at different times thes are shown in scedule 3 of the act.

 

THe requiememnts for form and content (SI 1983 1553 )came into force in may 1985 sorry.

 

Peter

[maybelline]

hello Peter, welcome back:)

[debhen]

Hi

I have just joined and this is my first post so hope I am in the right place - if not sorry!

 

I have a number of debts for credit cards and loans dating from 2003 (major house fire, lost everything, lost the plot for a while, same old story and know it was my fault that I let it all go) and these have been defaulted by the companies concerned (one is a CCJ) and passed down from them to different DCAs.

 

My understanding is these debts won't become statute barred (correct me if I am wrong) for a long time as I have been in communication with all of them at some point since they defaulted in 2003 and had been trying to make some form of payment as and when I could. This has not been possible for some months now and the debts have been passed on again. Companies that are now contacting me are the likes of Robinson Way, Moorcroft and Westcot and the letters are becoming increasingly unpleasant and threatening. I have also received a letter from Nelson Guest and Partners in behalf of Westcot threatening court proceedings. To be honest I have lost touch with what the balances on all of these are as they have been passed from one DCA to another so often. I am also unsure if the monies being demanded include any charges etc.

 

Is it possible for me to make a CCA request from each of the DCAs or will the fact that I have made some form of payment over the years mean they will just state that I know the debt exists as I have made some payment towards it?

 

Also one of the debts that always used to come just in my name has suddently started being sent to the joint names of my husband and I - this has never happened before and I cannot recall if his income and details were asked for on the application form (loan with Halifax).

 

This is really getting me confused and distressed so any advice would be greatly appreciated. Many thanks

 

Deb

[tinkerbell20]

HI

Various bits of the act come into opperation at different times thes are shown in scedule 3 of the act.

 

THe requiememnts for form and content (SI 1983 1553 )came into force in may 1985 sorry.

 

Peter

 

 

So pre 1985 there is no unenforceability? What if the Creditor can't produce the agreement at all??

[citizenB]

Hi

I have just joined and this is my first post so hope I am in the right place - if not sorry!

 

I have a number of debts for credit cards and loans dating from 2003 (major house fire, lost everything, lost the plot for a while, same old story and know it was my fault that I let it all go) and these have been defaulted by the companies concerned (one is a CCJ) and passed down from them to different DCAs.

 

My understanding is these debts won't become statute barred (correct me if I am wrong) for a long time as I have been in communication with all of them at some point since they defaulted in 2003 and had been trying to make some form of payment as and when I could. This has not been possible for some months now and the debts have been passed on again. Companies that are now contacting me are the likes of Robinson Way, Moorcroft and Westcot and the letters are becoming increasingly unpleasant and threatening. I have also received a letter from Nelson Guest and Partners in behalf of Westcot threatening court proceedings. To be honest I have lost touch with what the balances on all of these are as they have been passed from one DCA to another so often. I am also unsure if the monies being demanded include any charges etc.

 

Is it possible for me to make a CCA request from each of the DCAs or will the fact that I have made some form of payment over the years mean they will just state that I know the debt exists as I have made some payment towards it?

 

Also one of the debts that always used to come just in my name has suddently started being sent to the joint names of my husband and I - this has never happened before and I cannot recall if his income and details were asked for on the application form (loan with Halifax).

 

This is really getting me confused and distressed so any advice would be greatly appreciated. Many thanks

 

Deb

 

Deb, it will be in your interests to start your own thread rather than tag on to an established one. You can start a new thread by clicking on the following link and hitting the button "new thread". Once you have posted some idea of your sitation, people will pop in and help out with advice.

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/

 

 

The answer to your question is, yes, you can CCA any of the DCAs who are asking you for payment, regardless of whether you have made a payment or not. .

[debhen]

Hi Citizen B

 

I have just started a new thread - thanks for your reply.

 

Deb

[MAGDA]

Quote:

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

 

(2) any general conditions of sale incorporated in the contract should also be attached (but where the contract is or the documents constituting the agreement are bulky this practice direction is complied with by attaching or serving only the relevant parts of the contract or documents).

 

According to CPR Practice Direction 16 7.3, the original agreement should be available at a court hearing. Has anyone had any actual experience though of asking to see the original document where the claimant has just provided a copy, which could, of course, be a reconstructed copy with the signatures scanned in. I have some hearings coming up soon and would be interested to know whether a court is likely to take any request to see the original seriously, as in theory they should (according to CPR Practice Direction) thanks, Magda

[banker_rhymes_with]

Hello Magda!

 

I think the main problem to date has been a complete lack of awareness of CPR Practice Direction 16 7.3.

 

Had this come to light on CAG earlier, I'm sure many more people would've been able to question the validity of crabby Prints, Electronic Scans, Microfiche Scans and cobbled-together-via-Photoshop "Agreements"!

 

Mentioning CPR Practice Direction 16 7.3 should've been a knock-out blow to floor any bankers waving a Copy Agreement around but, sadly, many Consumers hauled into Court just did not know about it...and many paid the price too!

 

The task now is to make sure everyone on CAG is aware of this, and adds it to any Defence, as indeed Paul/PT2537 is now doing.

 

The Agreement is a Statutory Document, and should not be scanned and shredded while the Agreement is still Live. The banks will bleat on about how they could not be expected to keep all Agreements, but don't let them get away with this. The only ones they need to keep are the Live ones and, even then, only for 6 Years after the Agreement expires. Once past that, they can Scan and Shred till their little banking hearts are content. But not before that.

 

After all, how hard can it be to store a Sheet or two of Paper, given the importantence of that key Document?

 

The bankers and their lawyers would rather sweep this little issue under the carpet, as 99% of them have shredded their live Agreements, despite CPR Practice Direction 16 7.3.

 

Likewise, might be worth mentioning the Anti-Money Laundering issues too, as I believe they are required to retain the Original Agreements for 6 Years after the Agreement ends.

 

Finally, don't forget the Civil Evidence Act 1995. This is not really aimed at important Documents such as Statutory Agreements, but does cover most other things, such as routine business paperwork, correspondence and documents.

 

In a nutshell, Original Documents are Evidence, any copies are just Hearsay Evidence and carry a significantly lower weight because they are no longer regarded as primary Evidence.

 

If the bankers want to produce any Copies of routine bumf, then they have to give you and the Court prior notice in view of CEA-1995. Likewise, if they want these copies to be taken seriously, then they better have a complete Audit Trail of their Document Management Procedures, i.e. something that is Independently Verified and Certified!

 

Who here trusts the word of a banker? Not me for sure! So I would not be happy to rely on a banker's word that what they have produced is a copy of the real Document. I'm not referring to Agreements here, just copies of routine bumf. Agreements are already covered by CPR Practice Direction 16 7.3 so should not need to come under CEA-1995.

 

In summary, that's two new strings to your bow:

 

(1) Original Agreements are required in Court because of:

 

CPR Practice Direction 16 7.3

 

(2) Any other Paperwork needed in Court needs to be Original if it is to be considered as Evidence, otherwise, it's Hearsay Evidence, and if they want that to be taken seriously, they'll need to comply with:

 

Civil Evidence Act 1995

 

...and have some back-up details to show how they manage these copies.

 

Repeat after me...only the Original Agreement will do!

 

I do hope this helps.

 

Cheers,

BRW

[Peterbard]

So pre 1985 there is no unenforceability? What if the Creditor can't produce the agreement at all??

 

HI

In my view if there is no agreememnt then it is game over.

 

It is rarely as simple as that in practice though as the creditor will invariabley try to fudge the issue by producing statemements or application forms.

 

I have found that the best course is not to deny the debt but to deny that you were given the statutory rights and protection that a properly formated agrement affords you and therefore unenforceable and void.

After all that was in order to garrentee that protection that the act was deigned in the first place.

 

Usually (not always) the creditor will not go to court if they do not have any agreemement no matter what they say.

 

Regards

 

Petr

[citizenB]

Hi Citizen B

 

I have just started a new thread - thanks for your reply.

 

Deb

 

 

Here is the link to Deb's thread.

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/154876-cca-advice-debts-please.html#post1650028

[citizenB]

Hello Magda!

 

I think the main problem to date has been a complete lack of awareness of CPR Practice Direction 16 7.3.

 

Had this come to light on CAG earlier, I'm sure many more people would've been able to question the validity of crabby Prints, Electronic Scans, Microfiche Scans and cobbled-together-via-Photoshop "Agreements"!

 

Mentioning CPR Practice Direction 16 7.3 should've been a knock-out blow to floor any bankers waving a Copy Agreement around but, sadly, many Consumers hauled into Court just did not know about it...and many paid the price too!

 

The task now is to make sure everyone on CAG is aware of this, and adds it to any Defence, as indeed Paul/PT2537 is now doing.

 

The Agreement is a Statutory Document, and should not be scanned and shredded while the Agreement is still Live. The banks will bleat on about how they could not be expected to keep all Agreements, but don't let them get away with this. The only ones they need to keep are the Live ones and, even then, only for 6 Years after the Agreement expires. Once past that, they can Scan and Shred till their little banking hearts are content. But not before that.

 

After all, how hard can it be to store a Sheet or two of Paper, given the importantence of that key Document?

 

The bankers and their lawyers would rather sweep this little issue under the carpet, as 99% of them have shredded their live Agreements, despite CPR Practice Direction 16 7.3.

 

Likewise, might be worth mentioning the Anti-Money Laundering issues too, as I believe they are required to retain the Original Agreements for 6 Years after the Agreement ends.

 

Finally, don't forget the Civil Evidence Act 1995. This is not really aimed at important Documents such as Statutory Agreements, but does cover most other things, such as routine business paperwork, correspondence and documents.

 

In a nutshell, Original Documents are Evidence, any copies are just Hearsay Evidence and carry a significantly lower weight because they are no longer regarded as primary Evidence.

 

If the bankers want to produce any Copies of routine bumf, then they have to give you and the Court prior notice in view of CEA-1995. Likewise, if they want these copies to be taken seriously, then they better have a complete Audit Trail of their Document Management Procedures, i.e. something that is Independently Verified and Certified!

 

Who here trusts the word of a banker? Not me for sure! So I would not be happy to rely on a banker's word that what they have produced is a copy of the real Document. I'm not referring to Agreements here, just copies of routine bumf. Agreements are already covered by CPR Practice Direction 16 7.3 so should not need to come under CEA-1995.

 

In summary, that's two new strings to your bow:

 

(1) Original Agreements are required in Court because of:

 

CPR Practice Direction 16 7.3

 

(2) Any other Paperwork needed in Court needs to be Original if it is to be considered as Evidence, otherwise, it's Hearsay Evidence, and if they want that to be taken seriously, they'll need to comply with:

 

Civil Evidence Act 1995

 

...and have some back-up details to show how they manage these copies.

 

Repeat after me...only the Original Agreement will do!

 

I do hope this helps.

 

Cheers,

BRW

 

HI

In my view if there is no agreememnt then it is game over.

 

It is rarely as simple as that in practice though as the creditor will invariabley try to fudge the issue by producing statemements or application forms.

 

I have found that the best course is not to deny the debt but to deny that you were given the statutory rights and protection that a properly formated agrement affords you and therefore unenforceable and void.

After all that was in order to garrentee that protection that the act was deigned in the first place.

 

Usually (not always) the creditor will not go to court if they do not have any agreemement no matter what they say.

 

Regards

 

Petr

 

Information squirrelled away for future use. Many thanks both.

[banker_rhymes_with]

Hello Peter!

 

It is rarely as simple as that in practice though as the creditor will invariabley try to fudge the issue by producing statemements or application forms.

 

Regarding my 1982 Application Form...any advice you can give on how to tackle that would be greatly appreciated.

 

I just do not know how an Application Form with no Prescribed Terms relates to the CCA 1974, i.e. a lot of amendments to the Act came after 1982, so what protection do I have do you think?

 

IOW, how much of the 1974 Act covers me in 1982...if at all!

 

Thanks in advance.

 

Cheers,

BRW

[Peterbard]

So pre 1985 there is no unenforceability? What if the Creditor can't produce the agreement at all??

 

Hi

Just double checked in the CCA Sched 3(Sub40)

 

sections 123 were not active untill may 1985 so the automatic unenforrceablity of agreements would not apply before then.

 

Regards

Peter

[Peterbard]

Hello Peter!

 

 

 

Regarding my 1982 Application Form...any advice you can give on how to tackle that would be greatly appreciated.

 

I just do not know how an Application Form with no Prescribed Terms relates to the CCA 1974, i.e. a lot of amendments to the Act came after 1982, so what protection do I have do you think?

 

IOW, how much of the 1974 Act covers me in 1982...if at all!

Edited August 7, 2008 by Dodgeball
Hollihocks

[Peterbard]

HI

Please ignore the last post having a blonde day

 

I saw 1982 and read 1992.

 

To all intents and purposes the aggreememtn would be unregulated if made before 1985