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Yeh, from the determination issued by the OFT under sec 74 of the CCA - the determination was issued in the 1980's

 

Right understand it now.

 

Have you or has anybody got a copy of this, would be really handy.

 

Got to nail these DC:)

 

HAK

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Dear Mr Philip Collins

 

I have some serious concerns about the lack of training given to your key managers in relation to CCA 1974. Since you are a trained lawyer I would assume that you are aware of the same, if for any reason you had missed this during the course of you career I have attached it with this correspondence.

 

My question to your department was ........................................................

 

your departments answer was .............................................................................

 

it should be.................................................................................................

 

please ensure that this is a standard template you use when questioned in relation to the requirements of CCA 1974

 

I await your prompt rely.

 

 

cc. prime Minister, The Queen and all the papers.

 

Thanks. If I don't get a satisfactory response to my tel call, will give this a try. They took around six months to answer my email, so not holding my breath. Not sure if Liz will be too interested though! Magda

Edited by MAGDA
typo
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IS this info frm the CCA1 1974?

 

It's from the OFT determination of 1 February 1990 in respect of credit agreements for an overdraft. The bank get exemption from Part V in form and content, but still have to send a letter detailing the info.

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Right understand it now.

 

Have you or has anybody got a copy of this, would be really handy.

 

Got to nail these DC:)

 

HAK

 

Copy of the Determination? Depends which part you need;

 

34. To help clarify these matters, this is an extract from a Court case (Coutts & Co v Gabriel Oscar Alan Sebestyen [2005] EWCA Civ 473.) and is part of the summing up by the Judge in relation to the effect on overdrafts and the function of the CCA in such circumstances;

 

“The Defendant provided an overdraft on the account;

 

 

The agreement was a regulated debtor-creditor agreement within the meaning of s.8 and s.13© of the Consumer Credit Act 1974, providing for 'running-account credit' within the meaning of s.10(1)(a) of the Act (in effect, a revolving credit within an agreed credit limit); and

That, as such, it was subject to the requirements of Part V of the Act (including the requirements as to documentation set out in sections 57 to 63 of the Act) save and in so far as it was excluded or exempted from such requirements.

 

Section 65 in Part V of the Act provides that an "improperly executed" regulated agreement is unenforceable by the creditor without a court order. It is common ground that a regulated agreement is "improperly executed" for this purpose if the requirements of sections 57 to 63 have not been complied with.

 

Section 74 of the Act provides for the exclusion of certain agreements from Part V. It provides as follows (so far as material):

"74. – (1) This part …. does not apply to –

(b) a debtor-creditor agreement enabling the debtor to overdraw on a current account, …

(3) Subsection 1(b) … applies only where the OFT so determines, and such a determination –

(a) may be made subject to such conditions as the OFT thinks fit …

(3A) …. in relation to a debtor-creditor agreement under which the creditor is …. a bank …. the OFT shall make a determination that subsection 1(b) above applies unless it considers that it would be against the public interest to do so.

 

THE DETERMINATION:

 

The Determination (which is signed by the Director of Fair Trading) is made under section 74(3) of the Act. I set it out in full:

 

"1. Under the powers conferred upon me by s.74(3) and (3A) and s.133 of the Consumer Credit Act 1974, I, the Director General, being satisfied that it would not be against the public interest to do so, hereby revoke with effect from 1st February 1990 the Determination made by me in respect of Section 74(1)(b) and dated 3 November 1983 and now determine that with effect from 1st February 1990 Section 74(1)(b) shall apply to every debtor-creditor agreement enabling the debtor to overdraw on a current account, under which the creditor is a bank.

 

2. This Determination is made subject to the following conditions:-

(a) that the creditor shall have informed my Office in writing of his general intention to enter into agreements to which the Determination will apply;

(b) that where there is an agreement between a creditor and a debtor for the granting of credit in the form of an advance on a current account, the debtor shall be informed at the time or before the agreement is concluded:

- of the credit limit, if any,

- of the annual rate of interest and the charges applicable from the time the agreement is concluded and the conditions under which these may be amended,

- of the procedure for terminating the agreement;

and this information shall be confirmed in writing.

© that where a debtor overdraws his current account with the tacit agreement of the creditor and that account remains overdrawn for more than 3 months, the creditor must inform the debtor in writing not later than 7 days after the end of that 3 month period of the annual rate of interest and charges applicable.

 

3. In this Determination the terms 'creditor' and 'debtor' shall have the meanings assigned to them respectively by Section 189 of [the Act]. The term 'bank' includes the Bank of England and banks within the meaning of the Bankers' Books Evidence Act 1879 as amended."

  • Haha 1

 

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Just to let you know, I requested in my amended defence that the claimant be ordered to provide the original agreement in court (quoting cpr pd 16 7.3) and the judge has taken note of this and has ordered that "the original documents shall be brought to the hearing" Magda

Edited by MAGDA
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Just to let you know, I requested in my amended defence that the claimant be ordered to provide the original agreement in court (quoting cpr pd 16 7.3) and the judge has taken note of this and has ordered that "the original documents shall be brought to the hearing" Magda

 

 

 

 

Brilliant!

 

I think I'll try that!

 

 

Jeff.

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Hi, was reading on another thread that if a NOA includes unlawful charges in the stated balance, then this renders it invalid. I knew this applied to default notices, but wasn't aware that it also applied to NOAs as well. Also, with both the Default notice and Notice of assignment, does it make any difference if the amount of unlawful charges actually included is for a relatively small amount in proportion to the overall debt? Finally, who should the NOA be issued by, as I have read conflicting information on this - some people say it should be issued by the OC, others say it doesn't make any difference, thanks, Magda

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Copy of the Determination

Sorry to appear stupid (maybe I am ) but I cant get my head around this are you saying they have to send some copy of letter re original overdraft or am i thinking wrog please explain a little bit more how this helps regards Gaz

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Copy of the Determination

Sorry to appear stupid (maybe I am ) but I cant get my head around this are you saying they have to send some copy of letter re original overdraft or am i thinking wrog please explain a little bit more how this helps regards Gaz

 

You've got it right - if they can't show they have complied with the terms of the Determination when you took the OD out, the debt is unenforceable;

 

http://www.consumeractiongroup.co.uk/forum/barclays-bank/110184-car2403-barclays-bank-default.html ;)

 

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You've got it right - if they can't show they have complied with the terms of the Determination when you took the OD out, the debt is unenforceable;

 

http://www.consumeractiongroup.co.uk/forum/barclays-bank/110184-car2403-barclays-bank-default.html ;)

 

sorry about my typing I can spell !!! So the letter you sent in your barclays case still holds good ? Regards Gaz

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Just to let you know, I requested in my amended defence that the claimant be ordered to provide the original agreement in court (quoting cpr pd 16 7.3) and the judge has taken note of this and has ordered that "the original documents shall be brought to the hearing" Magda

 

Well let's hope he enforces it icon12.gif !

 

jax

icon6.gif

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Well let's hope he enforces it icon12.gif !

 

jax

icon6.gif

 

Yes, hope so, seems like he will hopefully - although it depends which judge you actually get on the day as well. At least it proves though that some judges are willing to take notice of cpr pd 16 7.3 and will agree that the original docs should be provided, not just the copy. My court has been ok so far, as they agreed my draft directions as well.

 

Magda

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Blue Squirrel, it SHOULD be game over - but now that more & more people are challenging this in court - it seems the judges are interpreting the CCA mostly in favour of the CCP's (THERE'S a surprise) - we have seen re-constructed agreements get through - current T & C's accepted, so it's not quite so simple. It's a shame the very Act that was brought in to protect the consumer has now turned to protecting the financial institutions to some degree.

It really doesn't help that the FOS & OFT etc., so often rule in favour of the banks, because they don't understand the Act.

 

I guess it depends how far your CCP wants to raise it's head above the parapet if they really don't have the original agreement.

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Blue Squirrel, it SHOULD be game over - but now that more & more people are challenging this in court - it seems the judges are interpreting the CCA mostly in favour of the CCP's (THERE'S a surprise) - we have seen re-constructed agreements get through - current T & C's accepted, so it's not quite so simple. It's a shame the very Act that was brought in to protect the consumer has now turned to protecting the financial institutions to some degree.

It really doesn't help that the FOS & OFT etc., so often rule in favour of the banks, because they don't understand the Act.

 

I agree with this Ladybird17,

Sadly this seems to be the case, some very knowledgeable members are having agreements enforced in the cc.

Still its always worth giving it your best shot but its certainly not as simple as some people think.

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I agree with this Ladybird17,

Sadly this seems to be the case, some very knowledgeable members are having agreements enforced in the cc.

Still its always worth giving it your best shot but its certainly not as simple as some people think.

 

 

In small claims I think it is more of a lottery as to the judge you get

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Hi Kathleen G, there has been a lot of discussion recently on whether the DCA (to whom a debt has been assigned absolutely) is regarded in law as the owner of the debt only, or also as the creditor, with the responsibilities as such. It would be interesting to hear your opinion (if any) on this. Hope you don't mind me asking. Thanks, Magda

Edited by MAGDA
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I agree with this Ladybird17,

Sadly this seems to be the case, some very knowledgeable members are having agreements enforced in the cc.

Still its always worth giving it your best shot but its certainly not as simple as some people think.

 

Absolutely.

 

What you need to remember is that most County Court Small Claims are heard by District Judges - or worse, Deputy District Judges. My experience with these show that these Judges, who are not legally trained in consumer law nor do they understand the Act or the regs (in the main) in a way that means they apply it consistently. Having said that, I have seen several DJ's - and even one DDJ - that knew the Act inside, out. Which is where the lottery begins.

 

The only way you can avoid the wrong judgment is to know your case in side, out and be prepared to argue your case on a legal and moral basis. The trick is to convince the Judge you know more than them, you are right and any bias they feel they should be applying (as you have had benefit of credit under an agreement) should be put to one side. The best way to do this is with legal precedence, which is where CAG and the likes come in.

 

If you don't know your own case and appear to lack confidence, or you aren't prepared to put the time in to prepare properly so you appear that you do, you may as well not bother starting out, IMHO.

 

What I find so interesting is that our opponents, being officers of the Court, are so willing to mislead, downright lie and pervert the course of Justice in such a way that this sort of result comes around. Anyone that suffers as a result of that, should seriously consider making a formal complaint to the Solicitors Regulation Authority and to their MP's. Those with formal training, (which we and these Judges are not) should bear their responsibilities more appropriately, IMHO.

Edited by car2403
Thanks Paul

 

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