Cap1 & CCA return

[alanalana]

hello brw,

 

then it leaves me wondering what is the correct approach to force a DCA to prove they have a Right to seek Payment on a lump sum Debt.

 

You have already shown the correct approach when one called on you:D

 

aa

 

keep up the stirling work.

[banker_rhymes_with]

Hello aa!

 

You have already shown the correct approach when one called on you...

 

:grin:

 

Cheers,

BRW

[ncf355]

BRW,

 

thanks for such a detailed response to my question, very helpful indeed!

 

[make them aktiv runners]

Hello ncf355!

 

 

 

As I understand it, what we are talking about at this stage is a straight lump sum Debt as opposed to a Regulated Agreement.

 

If the Agreement is still live, then it can be Sold whilst still live, provided the Buyer holds a Consumer Credit Licence and is able and willing to carry on with the Agreement and offer the same service to the Consumer in line with the Terms that bind the Original Creditor (OC).

 

If not, i.e. if that which is being sold is just a lump sum Debt, then it suggests the Agreement hit the buffers at some point, and must now be at an end. If so, and if there is now a lump sum Debt, then the Debtor had to be lawfully Defaulted and the Agreement lawfully Terminated if anyone now wants to seek Payment of the whole Balance.

 

Once Terminated, then the OC can Sell or Assign that Debt to whoever they like (provided the Buyer has the necessary licences to handle such things). But, the thing they are Selling or Assigning, is no longer an Agreement, as the Debtor has lost all Rights to any of the benefits once the Agreement has been lawfully Defaulted/Terminated. It is no longer a two-sided issue, it is a one-sided issue wholly in favour of the Original Creditor or who ever they sell that Debt to.

 

The only Rights the Debtor has at this stage, is the Right not to be Harassed or intimidated, in line with other Laws and assuming the group chasing this Debt follows OFT Debt Collection Guidelines.

 

I think this suggests there is no point, say, in sending a DCA a s77-79 Request. This is because what they have now is not an Agreement, but a Right to seek Payment of an Enforceable lump sum Debt. That's assuming they have all the Paperwork, i.e. Original properly executed Regulated Credit Agreement to confirm the Debt stemmed from an Enforceable Agreement, provided they also have proof that the Debtor who defaulted on payments in relation to the Agreement was lawfully Defaulted, initially via a compliant Notice and then followed by a lawful Default/Termination.

 

Without at the very least having firm evidence of an Enforceable Agreement having existed and a lawful Default Notice issued in relation to that Agreement, I think the majority of the Debt will not be Enforceable, or at best, only the Arrears can be Enforceable. No lawful Default and Termination means the OC has blown their Right to seek early Payment of the full Balance. They've also blown that Right for anybody else who later Buys that lump sum Debt.

 

The lump sum is just the Arrears plus the Total that was not due for Payment at the time of the Default Notice and Termination. If they want early Payment of any sum otherwise not due before Termination, the Act requires the OC to Default and Terminate lawfully. Fail to do that, and they do not have what the act requires them to have before they can seek early Payment. Once they Terminate, then they immediately place themselves outside of the protection of the Act as well. Their ability to Default via s87/s88 went out of the window at the point of Termination, as that was the exact turning point when the Agreement ended and the lump sum Debt came into being.

 

I feel the most suitable thing to send a DCA is a S.A.R - (Subject Access Request) rather than a s77-79 Request. We have seen on CAG examples when a banker refuses to respond to a s77-79 Request once an Agreement has been Terminated, claiming (correctly I think) that they are no longer obliged to respond, as the Agreement is Terminated/Closed so they are no longer bound by the Act. That rather confirms that if they can't do that, then s87 no longer applies either. It cuts both ways.

 

If a DCA wishes to chase Payment for a lump sum Debt, then it is reasonable that the Consumer should be able to ask for proof that they are entitled to seek Payment. A s77-79 Request seems to be accepted by many DCAs that they have to respond, but I wonder if they really do, as I do not think they are really bound by the Act at this point.

 

I am not clear what is the correct approach in such circumstances. A S.A.R - (Subject Access Request) should reveal some of this, but if a s77-79 is not applicable, then it leaves me wondering what is the correct approach to force a DCA to prove they have a Right to seek Payment on a lump sum Debt.

 

The acid test is Court, and if a DCA is quite convinced they have their paperwork in Order (i.e. the Original properly executed Regulated Credit Agreement, clear evidence of lawful Default and lawful Termination), then the only proper thing for them to do is to proceed to Court and obtain Payment or Judgement.

 

But, what ever they have, it is no longer an Agreement regulated by the Act. The Debtor cannot ask for their Credit Cards back, and say they'll Pay the minimum again and nip off to the Shops to buy some bits and bobs. All of that ended when the Agreement ended. Both Debtor and OC/DCA are, by then, outside of the Act. An OC can't just nip back in whenever it takes their fancy to have another crack at being compliant with s87/s88.

 

Well, that's until this Government waters that down as well. You heard it here first folks, I bet s87/s88 will be erased in CCA 2009!

 

Section 87 to be replaced by:

 

s87 (1) bankers are wonderful creatures, so it's only sensible and tidy that they should be allowed to end an Agreement whenever they like, and un-Terminate it at random to have as many goes as they like to get their paperwork right.

 

Section 88 to be replaced by:

 

s88 (1) bankers just need to tread on a Frog, at any time, and an agreement is made enforceable again. The merest whisper from a bankers backside is quite enough.

 

Comments all welcome.

 

Cheers,

BRW

 

Interersting theory. If I am reading this right the debtor has no rights (other than in court) to use the CCA as proof of the debt being enforceable, however using the same token, no debt actually exists once the CCA is wiped out via termination. Which comes first the chicken or the egg?

[banker_rhymes_with]

Hello MTAR!

 

Interersting theory. If I am reading this right the debtor has no rights (other than in court) to use the CCA as proof of the debt being enforceable, however using the same token, no debt actually exists once the CCA is wiped out via termination. Which comes first the chicken or the egg?

 

I'm not quite sure I understand what you mean.

 

A Debt can exist after Termination, but the size and enforceability of that Debt then depends on three things:

 

(A) An original copy of the Enforceable Agreement still in existence.

 

(B) Lawful Default/Termination.

 

© Lawful Assignment (if anyone else wishes to Enforce).

 

All bets are off if there is no (A)!

 

Assuming there still exists an (A), then the size of the lump sum Debt that may exist at Termination depends on (B).

 

If (B) is Lawful, then everything is due, i.e. Arrears and any future Balance that was otherwise Payable after the Date of Termination [even this can be undermined if before Termination there were present Unlawful Charges, as the size of these could render (B) unlawful].

 

If (B) was unlawful, then only Debts due before Termination can be due. Any Debts otherwise Payable after the Date of Termination are then lost forever.

 

The Assignment issue is simply concerned with passing on the lump sum Debt Parcel to the next group in the game. They can only Enforce if they have (A) and (B) and ©. If they don't have (B), then all they may be able to Enforce is the Arrears, just like the Original Creditor.

 

The Debtor has full Rights from the CCA up until the moment of Termination, provided that Termination is lawful. After lawful Termination, then protection via the CCA is gone, but the Debtor is then protected by other Laws to ensure any subsequent Debt Collection or Enforcement activities are lawful (in effect, any activity must follow OFT Debt Collection Guidelines, and avoid falling foul of Harassment Laws and/or CPUTR 2008 ).

 

If the Termination was unlawful, then the Consumer is still protected by the CCA. It is the OC who is then in trouble, as they've extracted themselves from their side of the Agreement unlawfully.

 

Let us not forget what Agreement means...it means two sides agreeing to something. The CCA is there to Regulate the two sides, supposedly giving greater protection to the weaker side, namely the Consumer. The Original Creditor is the one needing most Regulation, but they have Rights if the Debtor does not keep to their side of the Agreement, via s87/88.

 

The Original Creditor is profoundly bound to the Agreement, and cannot just jump out when the mood takes them. To extract themselves from an Agreement that has gone sour on them, the CCA requires that they must follow explicit steps, namely s87 and s88.

 

If they do not, but instead go ahead to bang out of the Agreement anyway, then the Act intended that they must suffer a penalty for this, and that penalty is the complete inability to seek early Payment of any future Debt that was not otherwise Payable before Termination.

 

Once the OC Terminates, then they have jumped out of the Agreement once and for all, there is no provision in the Act for going back. To Terminate means to Terminate, it is not a revolving door allowing them to keep popping back in.

 

More fool them if they jump out and Terminate forgetting to take their s87/s88 Parachute with them.

 

I hope this explains things better.

 

Cheers,

BRW

[spiritgirl59]

Hi BRW & everyone

 

This thread is one of the best for help and advice.

 

BRW - Thank you for some extremely helpful posts recently on this thread regarding default notices. I did try to click you but was told to spread my clicks around a bit first

 

I've received 2 very iffy default notices from Link Financial recently and your posts have given me food for thought and a lot of very useful info for the future. Thanks again.

 

Love SG x

[tinkerbell20]

Regulatory Risk at RBS/Natwest Group are now saying they don't have to provide a copy of the consumer credit agreement under the data protection Act because it doesn't form part of a relevant filing system...............guess it beats having to either

a) produce an unenforceable one

b) admit they don't have it or

c) admit they destroyed it!

 

Guess now the Government effectively owns them the ICO will roll over too...............

[pt2537]

Regulatory Risk at RBS/NatWest Group are now saying they don't have to provide a copy of the consumer credit agreement under the data protection Act because it doesn't form part of a relevant filing system...............guess it beats having to either

a) produce an unenforceable one

b) admit they don't have it or

c) admit they destroyed it!

 

Guess now the Government effectively owns them the Information Commissioners Office will roll over too...............

well time for the good ol'e Pre action discovery application then

[johndeevoy]

I am disputing a CCA with one of my creditors as they never signed the agreement! However, they have went ahead and issued a default and termination even though I had notified them of the dispute via recorded delivery prior to the default and termination.

 

Have they terminated the agreement correctly? Are they entitled to terminate while not complying with a s78 request and not having a fully executed agreement?

 

What other implications might there be regarding this termination?

 

As far as Im concerned the termination is a good thing as they have stopped adding interest and charges onto the account. I care little if they take me to Court as I'll argue my case and even if I lose I don't have any money to pay them anyway!

[alanalana]

AS posted by tinkerbell

 

Regulatory Risk at RBS/NatWest Group are now saying they don't have to provide a copy of the consumer credit agreement under the data protection Act because it doesn't form part of a relevant filing system...............gues s it beats having to either Ok so they are now in contravention of the Data Protection Act 1998, Consumer Credit Act 1974. They are probably trying to stave off massive claims and complaints to prevent and even bigger fine than Alliance and Leicesters.

a) produce an unenforceable one

b) admit they don't have it or

c) admit they destroyed it!

 

Guess now the Government effectively owns them the Information Commissioners Office will roll over too...............

 

The Information Commissioners Office have taken 160 days so far from my original complaint in March they acknowledged in May and despite several phone calls my case has not yet been allocated to a case officer:eek:

 

On the brighter side I am hopefully going to receive a settlement from the RBS on behalf of Direct Line Financial Services after referring the case to the FOS. FOS called me today and said their initial offer had been increased. FOS words they have rolled over and offered a settlement. I refused their first derisory offer.

 

Stay the Course and do not be put off by misleading information.

 

aa

 

PS.

well time for the good ol'e Pre action discovery application then

 

 

What is this please PT?

 

aa

[Jeff2000]

I think he is referring to the pre action protocols regarding disclosure of documents when a claim as been instigated!

 

Jeff.

[car2403]

I am disputing a CCA with one of my creditors as they never signed the agreement! However, they have went ahead and issued a default and termination even though I had notified them of the dispute via recorded delivery prior to the default and termination.

 

A missing creditors signature won't prevent enforcement - s.127(3) only requires a debtor, not a creditor, signature to allow the enforcement by Court order at least.

 

Have they terminated the agreement correctly?

 

Given the above, yes, probably.

 

Are they entitled to terminate while not complying with a s78 request and not having a fully executed agreement?

 

Yes. Terminating an agreement isn't a form of enforcement, which is open to interpretation, but this seems to be the way the Court interprets it.

 

What other implications might there be regarding this termination?

 

Not sure what you mean there?

 

As far as Im concerned the termination is a good thing as they have stopped adding interest and charges onto the account. I care little if they take me to Court as I'll argue my case and even if I lose I don't have any money to pay them anyway!

 

They may still be able to add interest and charges - depends what the agreement says.

 

If they take you to Court and win, which the above suggests, you will have to pay court fees and costs on top of the debt.

[pt2537]

I think he is referring to the pre action protocols regarding disclosure of documents when a claim as been instigated!

 

Jeff.

no not at all, i am refering to the point where the other side refuses to disclose docs that you need to assess if you have a legitimate claim

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/147432-high-court-judgement-rankines-7.html#post1766169

 

check this post, it explains a little better

[BlueSquirrel]

I thought an agreement needed to be signed by both parties to be considered executed? Or have I got that wrong?

[lexis200]

I think it does, but if it goes to court and it's only missing the creditors sig it will be quickly remedied by the Judge ordering it to be signed?

[BlueSquirrel]

So how would it work if there was no original to sign, would them signing a copy suffice. There is no time frame, then, during which both parties have to sign?

[lexis200]

No, they do have to have your signature.

 

My understanding is that if they have a form that is complete and correct in every way, but doesn't bear your signature, then it is entirely unenforceable.

 

If they have one that has everything compliant on it, plus your signature, but they haven't signed it, the courts would not have any issue with just telling them to sign thus enforceing the agreement.

 

If they just turn up in court with a blank form, they should be stuffed, as all they have then is their word that you did sign the form - and we all know that may well not have happened.

 

At least that's how I've inferred the info on here!

 

Lexis:)

[banker_rhymes_with]

If they have one that has everything compliant on it, plus your signature, but they haven't signed it, the courts would not have any issue with just telling them to sign thus enforcing the agreement.

 

I think a good Defence Barrister could well rip that plan to shreds, i.e. if the Agreement has been Defaulted and Terminated. IOW, there's clear evidence that the Agreement was never executed by the bank, and clear evidence that whatever the Agreement was, it has now been Terminated.

 

This would also be a major problem for them if they try to pitch up in Court with a Copy! Apart from all of the Original Agreement being needed in Court issues, how can they Sign a Copy? If the Original has been destroyed, what good would it do them to try and Sign a Microfiche or Printed Copy of that.

 

Any fair minded Judge should have a major problem with any attempt to remedy this by Signing a Copy. Executing something after Terminaton makes no logical sense even if you had the Original, but trying to Execute a Copy after Termination is just deeply suspect.

 

It is one of those minor points, but it would be wrong IMHO to allow them to Sign a Copy, or an Original after Termination.

 

Judge Lottery kicks in again, so on the day, it would all boil down to that, and how well you argue the issue.

 

Cheers,

BRW

[lexis200]

Hi BRW

 

Excuse my ignorance - what's IOW (the only use I have for that abbreiviation is Isle of Wight, and I'm fairly sure that's not what you mean:D)

 

I think I may not have read far enough back on this one. I thought we were just talking about a standard non-compliant CCA, as opposed to something that's been defaulted/terminated. My fault for not reading back properly!

 

When I said if everything is compliant and has your sig, I meant if it's all correct and the original document - sorry I wasn't clear on that. Obviously there's going to be issues if they turn up with an unsigned by them/you/both copy (or a copy at all, I would hope), as it could be Blue Petered superbly before hitting the court room.

 

Does that make any difference to what I said, or am I still talking pants:confused:

 

Lexis:)

[banker_rhymes_with]

Excuse my ignorance - what's IOW

 

Sorry, I try not to use abbreviations, but some slip out.

 

IOW = In Other Words.

 

What you are saying is fine, I was just adding to your comments. This is a great Thread, but it has grown so large that it is now hard to read it all.

 

I think it would be good if someone could sit down, read it all, then start a new Thread with the key points raised. But that is one hell of a task for someone!

 

It also explains why Sir Roy Goode's book on the issue costs £1,000 a copy!

 

Cheers,

BRW

[andrew1]

 

It also explains why Sir Roy Goode's book on the issue costs £1,000 a copy!

 

Cheers,

BRW

 

Wonder how much Prof. Bennion picked up for his original? Seeing as he disagrees with just about everything Goode says about his Act it should be twice that!

[banker_rhymes_with]

Wonder how much Prof. Bennion picked up for his original? Seeing as he disagrees with just about everything Goode says about his Act it should be twice that!

 

It could help us all if Francis Bennion could write a big book of his own to explain his Act for the bankers! I bet he is not happy at the way this pro-bank Government have pulled the original Act apart, bit by bit.

 

That's assuming he has not written a big book! If he has, do tell me!

 

Cheers,

BRW

[lexis200]

Sorry, I try not to use abbreviations, but some slip out.

 

IOW = In Other Words. Thanks:D

 

 

 

It also explains why Sir Roy Goode's book on the issue costs £1,000 a copy!

 

Cheers,

BRW

 

Seriously????? And I thought £55 for my belgian chocolates book was a lot!

[banker_rhymes_with]

And I thought £55 for my belgian chocolates book was a lot!

 

Spooky, and this is totally off topic, but owing to a past Business I used to have, I'm a fully trained Chocolatier would you believe. I suspect the book you have was by Roger Greet? Better not go into that on this Thread however!

 

Cheers,

BRW

[lexis200]

Spooky, and this is totally off topic, but owing to a past Business I used to have, I'm a fully trained Chocolatier would you believe. I suspect the book you have was by Roger Greet? Better not go into that on this Thread however!

 

Cheers,

BRW

 

Very spooky, yes it is:eek: And how cool are you?!! - mine's only a hobby (time/space/money constraints!)

 

And thank god I don't live with you, I'd be the size of a house:D

 

I'll leave that one now as you're right, it's not exactly CCA's...

 

Certainly more fun though:D