Cap1 & CCA return

[steven4064]

AC

 

THe 2004 regs which came into force at the end of Decemenber 2004 allow an online application to use a ticked box instead of a signature. A screen printout of the form showing the ticked box is a copy of an exeecutable agreement.

[angry cat]

AC

 

THe 2004 regs which came into force at the end of Decemenber 2004 allow an online application to use a ticked box instead of a signature. A screen printout of the form showing the ticked box is a copy of an exeecutable agreement.

 

Thank You!

 

I thought that is what you meant, just needed clarification on the issue.

 

AC

x

[Sparkie1723]

Thank You!

 

I thought that is what you meant, just needed clarification on the issue.

 

AC

x

 

 

I think you will find that the CCR's came into force on the 31st May 2005...it's implementation was delayed untill that date.

 

 

 

2004 No. 1482

 

CONSUMER CREDIT

 

The Consumer Credit (Agreements) (Amendment) Regulations 2004

Made5th June 2004 Laid before Parliament9th June 2004 Coming into force31st May 2005

 

 

sparkie

[Missy Allen]

I have a NatWest credit card that was taken out in 2001 and the copy CCA NatWest sent me does not contain a signature - is this enforceable? If not, how do I respond to NatWest who are stating that they will pursue me for the debt as they consider the debt to be enforceable?

 

Thanks

 

Missy Allen

[Josie8]

Did you request it under s.78 CCA or under s.7(1) DPA?

[Missy Allen]

S.78

[Josie8]

Send a Subject access request because what they have sent you is all they have to under s.78.

 

 

Subject Access Request under the Data Protection Act 1998.

 

 

 

I require all information you hold on me including the following:

 

1. a complete list of transactions and charges relating to my credit card history with xxxxxx . Alternatively, a complete set of statements that include all transactions, late payment fees, over limit fees, all interest & charges for that period will be acceptable.

 

2. a copy of my original signed consumer credit agreement and copies of any default notices issued in this period & any other documentation or information pertaining to me that you hold in your records.

 

3. Additionally, where there has been any event in my account history over this period which has required manual intervention by any member of your staff, or any other person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my business with your company.

 

If you are unable to supply this data because there has been no such manual intervention, then please be so kind as to confirm this in your response.

 

 

4. If this account has been sold or otherwise transferred to another organisation for administration or recovery please supply details of the sums notified by xxxx to any such organisation & a signed true copy of the Notice of Assignment. Please state whether this was absolute or equitable.

 

I enclose the statutory maximum fee of £10. You have 40 days in which to comply.

 

Yours Faithfully

[citizenB]

I have a NatWest credit card that was taken out in 2001 and the copy CCA NatWest sent me does not contain a signature - is this enforceable? If not, how do I respond to NatWest who are stating that they will pursue me for the debt as they consider the debt to be enforceable?

 

Thanks

 

Missy Allen

 

Missy Allen, whose signature is missing.. yours or theirs ? If it is your signature missing then it wouldnt be enforceable.

[underdog13]

Natwest seem to be very fond of supplying just T&Cs and the latest statement on the account when replying to a s78 request. They send out rude, dismissive letters if you dare to query their response and refuse point blank to discuss the matter further with you.

[Ryjinski]

Hi all,

 

I asked for my credit agreement from Vanquis, it took 2 months before I heard from them and they sent a letter saying that I applied on-line and that acts as a digital signature so they don't have a hard copy of a Credit agreement.

 

I was under the impression that they had to have paperwork with my signature on to make the agreement enforceable. I was hoping someone could point me in the right direction and if a digital signature is a substitute for a written signature.

 

Many Thanks

[steven4064]

Look at the Consumer Credit Agreement link in my signature - it is all expained there

[Ryjinski]

So they cant argue in court that they have a digital signature am I right in thinking.

[steven4064]

I think they can - the 2004 order allows that option

[Ryjinski]

Could anyone not have put my details on-line then, ticking a box surely cant prove that is was me can it

[steven4064]

They are supposed to keep details of IP addresses, etc to 'prove' it was you

 

Personaly, I think that is nonesense, but that is what the order allows The Consumer Credit Act 1974 (Electronic Communications) Order 2004

[car2403]

Could anyone not have put my details on-line then, ticking a box surely cant prove that is was me can it

 

The onus would be on you to contact them regarding Fraud if that is the case. The fact you've used the credit and made repayments would probably suffice as evidence of the agreement existing to your knowledge?

[Ryjinski]

What if it was a work IP address, that would be hard to link to me especially as I was self employed, would I have grounds on the fact that it took nearly 2 months to reply to a credit agreement request, on the letter I sent it stated it was a criminal offence if they never responded within a certain period, would I have grounds on that front.

[davefirewalker]

What if it was a work IP address, that would be hard to link to me especially as I was self employed, would I have grounds on the fact that it took nearly 2 months to reply to a credit agreement request, on the letter I sent it stated it was a criminal offence if they never responded within a certain period, would I have grounds on that front.

 

The criminal offence aspect was repealed a while back and does not apply.

 

What I think everyone on here is saying is that it can be proved that you had the credit and spent it, you have made repayments, and they have an agreement (of sorts). By servicing the contract you must have accepted that a contract exists, I think you would findit hard to get a judge to declare any sort of unenforceability / improper execution.

 

put simply you could argue all the technical points you want but a judge would most likely find against you.

 

I'm sorry for being so pragmatic,and it isnt a personal attack, but I just dont believe you stand a chance.

 

I would love to be proved wrong though

 

Dave

[steven4064]

The criminal offence aspect was repealed a while back and does not apply.

You are right that s78(6) was repeaed (it never was a criminal offence though)

What I think everyone on here is saying is that it can be proved that you had the credit and spent it, you have made repayments, and they have an agreement (of sorts). By servicing the contract you must have accepted that a contract exists, I think you would findit hard to get a judge to declare any sort of unenforceability / improper execution.

Loan companies have tried to argue that by spending the money and making repayments you acknowledge that you had an agreement. The case law, however, does not support this. Various Lords and Appeal Court rulings make absolutely clear that, if there is no valid agreement, tough.

 

In the case of Dimond v Lovell [2000] UKHL 27, Lord Hoffmann said,

1131:- “Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay.”

 

Sir Andrew Morritt, Vice Chancellor in Wilson v First County Trust Ltd [2001] EWCA Civ 633 said that in the case of an unenforceable agreement:-

26:- “The creditor must…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;”

When this case was appealed to the House of Lords on a matter regarding the Human Rights Act (Wilson & Ors v Secretary of State for Trade and Industry [2003] UKHL 40), Lord Nicholls of Birkenhead said:-

 

49:- 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. "

put simply you could argue all the technical points you want but a judge would most likely find against you.

That might still be the case, but if the (county) court gets it wrong by saying you had the money therfore you must have had an agreement, then the case would be open to appeal and the higher court would certainly take notice of these authorities. Edited January 5, 2009 by steven4064
formating

[davefirewalker]

 

Loan companies have tried to argue that by spending the money and making repayments you acknowledge that you had an agreement. The case law, however, does not support this. Various Lords and Appeal Court rulings make absolutely clear that, if there is no valid agreement, tough.

 

Hi Steven

 

The point I was trying to make was that the OP has admitted he applied online and that he had and has used the credit facility. the creditor has sent him an agreement which purports to be an agreement regulated by the CCA1974 as amended by 2004 electronic signing etc.

 

It is my opinion and only my opinion that he would most likely fail unless he could show that the agreement did not contain the prescribed terms. An electronic signature is acceptable and they could most likely prove it.

 

So that only leaves the agreement. Unless there is a fault with the prescribed terms I would put his chances of succeeding very low

 

I for one would hope that the agreement is crap.....but I also live in the real world (sometimes anyway)

 

best rgds

 

Dave

[steven4064]

The point I was trying to make was that the OP has admitted he applied online and that he had and has used the credit facility. the creditor has sent him an agreement which purports to be an agreement regulated by the CCA1974 as amended by 2004 electronic signing etc.

 

It is my opinion and only my opinion that he would most likely fail unless he could show that the agreement did not contain the prescribed terms. An electronic signature is acceptable and they could most likely prove it.

 

So that only leaves the agreement. Unless there is a fault with the prescribed terms I would put his chances of succeeding very low

Sorry Dave, I misunderstood - I absolutely agree.

 

The point I was making was that applying for and using the credit facility is not enough to prove a valid agreement or to make the debtor liable to pay up. There must also be an agreement with signature (albeit electronic) and the prescribed terms.

[loopyloopy]

Hi I have posted my query in the legal actions forum previously, only just found this thread!! sat all night reading it.

 

Anyway, On Friday my husband is due to attend a directions hearing. Natwest bank are claiming he owes them in the region of 28,000 from a loan taken out in 2004.

 

My husband took a loan out prior to 2002 and later refinanced it. I requested a cca from them in feb 2008 after receiving a claim form and received a letter putting all court action on hold for a period of 8 weeks whilst they obtain the docuentation.

 

We are due to go to court on Friday and I spoke to NW solicitors today who have informed me that they are unable to locate the document and will be asking for a stay of 3 months on Friday.

 

What advice would you give me on what to ask the judge, do I ask them to order them to provide the cca or it gets thrown out kind of thing??

Do you have a list of previous cases/sections of law etc that would be relevant. (I have already copied the s127 (3) for him to take)

 

Also the district judge is a dragon!! I have met her on a previous un-credit related case against me and she is all about moral obligations and not the law... so bad start already.

 

Also what if they forge a copy of a cca... how will I know.

 

The orignial loan has been financed on a couple of occasions and my husband was under the impression that the loan amount each time just increased not that he was taking out further loans.

 

So 14000 of what they are claiming for is interest. Also they are claiming for the whole interest and capital account.

 

Solicitor said that she was under the impression that he took a loan out in 2004 for a period of 10 years?? and does not know anything about previous loans. Can they claim all the intrest they would have earnt on the loan had he continued paying??

 

So many questions. We are debating if to get a solicitor to represent us at the court as dh has learning difficulties with reading writing and me being about to drop baby number 3 am in no fit state to attend.

 

Any help would be great or else this baby could be making an early appearance with all the stress this is causing me.

[Goldlady]

If Natwest are going to ask for a stay then they know they are stuffed without a copy of the agreement to back up what they are claiming.

 

All you need to say to the judge is that you do not agree with the amount they are claiming and that you are waiting for them to prove how the debt arose. If you were feeling really cheeky you could ask for an 'unless' order which basically means that the court tells them that unless they comply with an order to produce the documents the claim will be struck out.

 

Best of luck - and hang onto that baby;)

[loopyloopy]

It just been going on forever now, the solicitor has as much confirmed that they do not have an agreement.

 

The judge is a bit of a fragon as previously metioned, do you know of anywhere I can get a skeleton type argument I can basically give to my husband and just get him to read from as to not complicate things too much for him, he is struggling to understand the ins and outs as it is.

 

I do have a thread in the legal action/advice forum named help needed re:natwest going to court. (dont know how to link) which is basically from day one til now.

[car2403]

The judge is a bit of a fragon as previously metioned, do you know of anywhere I can get a skeleton type argument I can basically give to my husband and just get him to read from as to not complicate things too much for him, he is struggling to understand the ins and outs as it is.

 

Which Court is this?

 

You're unlikely to get the same District Judge that you've had previously - I've been to Court loads of times, for myself and accompanying others in various other Court locations, and am yet to get the same DJ on 2 different occasions.

 

A link to a thread that you have on this claim would also be useful, loopy.