Cap1 & CCA return

[funkychicken]

subbing

[Cristal]

Think thats your local trading standards, and not your local office of fair trading for enforcement of the administration of justice act etc.

 

 

Haha!! I thank the discerning conduit! X

[johnerog]

Think thats your local trading standards, and not your local office of fair trading for enforcement of the administration of justice act etc.

 

 

Thanks enron, my mistake.

[Stubie]

Anyone seen this from the MoJ?

 

Government seeks views on personal debt management schemes - Ministry of Justice

[FlyboyAgain]

Anyone seen this from the MoJ?

 

Government seeks views on personal debt management schemes - Ministry of Justice

 

 

yeh, the Beeb commented on it this morning, too!

 

BBC NEWS | Business | Debt management may be regulated

 

Next stop - DCAs!!!! :grin:

[alisindebt]

Although it makes interesting reading, looking at what DCAs and banks get away with now in term of harassment, lying, being unlawful in conducting their collections, etc, means that existing laws and regulations are not being adhered to. I therefore wonder if another set of new rules will make that much difference.

[vint1954]

Although it makes interesting reading, looking at what DCAs and banks get away with now in term of harassment, lying, being unlawful in conducting their collections, etc, means that existing laws and regulations are not being adhered to. I therefore wonder if another set of new rules will make that much difference.

This is about debt management companies. Might be the right time to lobby your MP though regarding banks and DCA's, while their minds are focussed.

[FlyboyAgain]

The DCA's are surely the next in line for a shake-up, for how they get away with their behaviour in this day and age is beyond me! It's Dickensian, they way they operate and I shudder when I think of the poeple out there who sit in fear of them and don't know how to stand up to them or deal with them.

 

I have reported Blair, Oliver & Useless and Moorcrap to the OFT and the relevant T&S divisions of local authorities. Anyway, this deviating from the thread.

[vint1954]

Again, the regulators do not regulate.

[enoughisenough]

Suppose you had an improperly executed CCA with a credit card provider. At point X the provider offers you a loan to clear the card, close the card account and you accept that loan. The loan however is properly executed. Where does that leave you?

[vint1954]

Suppose you had an improperly executed CCA with a credit card provider. At point X the provider offers you a loan to clear the card, close the card account and you accept that loan. The loan however is properly executed. Where does that leave you?

Whether or not a CC or loan agreement, if it is improperly executed it is just that.

[enoughisenough]

Sorry should have explained myself more clearly. I had an egg card which I then got into difficulties paying. I haven't checked but I have a strong feeling it was an improperly executed agreement as it was quite a long time ago. They then offered me a loan to clear and close the card. I had little choice at the time.

 

Anyway the loan agreement looks to be properly executed. Now What exactly would I be challenging? Would it be that the loan was improperly brought by virtue of paying off an unenforceable credit card agreement, even if the loan itself 'on paper' is above board for the purposes of the Act?

 

Slightly confused on this one.

[vint1954]

Well, the origonal CC agreement is now closed, so they have probably replaced a non complient CC agreement with a complient loan agreement.

 

OFT guidelines say that creditors must not offer new credit to replace problem credit.

[car2403]

Suppose you had an improperly executed CCA with a credit card provider. At point X the provider offers you a loan to clear the card, close the card account and you accept that loan. The loan however is properly executed. Where does that leave you?

 

Well, the origonal CC agreement is now closed, so they have probably replaced a non complient CC agreement with a complient loan agreement.

 

OFT guidelines say that creditors must not offer new credit to replace problem credit.

 

It's exactly that - if you've signed a new agreement, that is enforceable, you've made somewhat of a mistake.

 

I've seen some unscrupulous finance companies using these tactics to overcome erroneous agreements. Usually, this is done under the guise of "restructuring finance" to reduce payments to a more affordable level.

 

Buyer beware, again...

[pt2537]

unfair relationship anyone?

[enoughisenough]

Ok. Looks like they got clever before I got wise. Might dig out the loan agreement to see if there is anything up with it. As I say it looks enforceable but may not be absolutely watertight. This comes under distance selling as it was concluded on line. I'll post it later.

 

Interesting angle PT. The loan was concluded after April 2007 so I'll have a look there as well.

 

Thanks peeps. What a fantastic site. Mrs enough thinks I'm mad, but this is better than watching telly I can tell you.

[vint1954]

When was the new loan taken out?

[vint1954]

Ok. Looks like they got clever before I got wise. Might dig out the loan agreement to see if there is anything up with it. As I say it looks enforceable but may not be absolutely watertight. This comes under distance selling as it was concluded on line. I'll post it later.

 

Interesting angle PT. The loan was concluded after April 2007 so I'll have a look there as well.

 

Thanks peeps. What a fantastic site. Mrs enough thinks I'm mad, but this is better than watching telly I can tell you.

Check for cancellation rights and cooling off period.

[car2403]

unfair relationship anyone?

 

Not tonight, dear. I'm washing my hair.

 

[Lampies]

Hi

 

I wonder if someone can help me?

 

I have sent of my 12+2 letters stating that the account is now in dispute as none of my creditors sent a true copy of my agreements, however I spoke with one of my credit card providers today and they told me a default was about to be applied to my account and when I stated the account was now in dispute as they failed to supply an copy of the agreement they stated that as it is a credit card and not a personal loan they do not have to provide a signed agreement. They did send me T&Cs and cashed the cheque that was sent.

 

Can someone advise me of the next step I need to take as I thought they now had to cease applying all charges to my account.

 

Sorry to sound dim but I am getting a little confused.

 

TIA for any help.

Lamps

[vint1954]

Not tonight, dear. I'm washing my hair.

 

:D:D:D:D

[vint1954]

Hi

 

I wonder if someone can help me?

 

I have sent of my 12+2 letters stating that the account is now in dispute as none of my creditors sent a true copy of my agreements, however I spoke with one of my credit card providers today and they told me a default was about to be applied to my account and when I stated the account was now in dispute as they failed to supply an copy of the agreement they stated that as it is a credit card and not a personal loan they do not have to provide a signed agreement. They did send me T&Cs and cashed the cheque that was sent.

 

Can someone advise me of the next step I need to take as I thought they now had to cease applying all charges to my account.

 

Sorry to sound dim but I am getting a little confused.

 

TIA for any help.

Lamps

They need to supply a true opy for both Loan and credit card agreements.

 

If you realy want to confuse them:

 

xxxxxx 2009.

Dear xxxxxxxxx,

ACCOUNT IN DISPUTE

Re account no xxxxxxxxxxxxxxxxxxxxxxxxxxx

I write regarding recent communication regarding the above account.

Further to my request under the above act, your attention is drawn to the fact that this account remains subject to a lawful serious dispute. On xxxxxxxx, by recorded delivery, I requested that you supply me a copy of the executed credit agreement covering this account pursuant to the Consumer Credit Act 1974 section 78, a copy of this request is enclosed. To date you have failed to comply with my request, supplying only a generic agreement and terms & conditions, which cannot be linked to any agreement which you claim that I have signed and a set of again unrelated terms and conditions. Without production of the said agreement I am unable to assess if I am indeed liable for any alleged debt to you, nor does it give me any chance to evaluate whether any original agreement was ‘properly executed’ as required by the Consumer Credit Act 1974.

Contrary to your assertion, xxxxxxxx have not complied with the terms of CCA 1974 s78. The documents that you have supplied, do not comply with your duties to supply a “True Copy” of any agreement you claim to have been signed by me, for pre 2007 agreements. As you will be further aware, an agreement is not executed, until signed by both parties, so the document that you have supplied, being a reconstruction, cannot be a True Copy of an Executed Agreement.

While this account remains in serious dispute, the relevant main points of the Law and OFT regulations while the account is in this state and xxxxxx remain in default are:

• You may not ask for payment against this account.
  
• I am not obliged to offer any payment against this account.
  
• You cannot register any data with a third party.
  
• You cannot take any enforcement action, including registering Defaults.
  
• You cannot pass the account on to a third party for collection.
  
• You cannot sell the account.
  

What is a true copy:

In a recent letter from the enforcement department of the OFT, the text below was quoted, explaining what is required.

“The copy of the executed agreement need not be an exact copy but it must be a ‘true copy’ and not some reconstruction of what the original might have been and it must contain the same terms as the original. Where the terms have been varied as provided for within the agreement, the copy of the original agreement must be accompanied by a document setting out the current terms, as varied. Certain details may be omitted from the original agreement eg the signature but the debtor must be in no doubt as to the true nature of his obligations under the loan.

 

Should no original agreement be in existence it is very hard to say that the copy the creditor offers to the debtor is, in fact, a true copy as there would be no original with which to compare it. In our view the onus of proof would be on the creditor to show that the copy is a true one and where none existed he may have difficulty discharging this. Neither should creditors suggest that a consumer has signed a credit agreement where they are unable to provide evidence to support this — to do so is likely to be a misleading action under Regulation 5 of the Consumer Protection from Unfair Trading Regulations 2008 (the CPRs) and would also constitute an unfair or improper business practice.”

 

I also refer you to the information below.

1. A valid credit agreement must contain certain terms within the signature document (s.60(1)(2) CCA 1974). These core terms are the credit limit, repayment terms and the rate of interest (SI 1983/1553 (6 Signing of agreement) which states that the prescribed terms must be within the signature document. (Column 2 schedule 6). s.61(1)(a) states the agreement must contain all the prescribed terms and be signed by both the debtor and on behalf of the creditor.

 

 

2. Further, s.127(3) CCA 1974 makes the account unenforceable if it is not in the proper form and content or improperly executed.

 

In Wilson and another v Hurstanger Ltd (2007) it was stated “In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties … and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s.61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement”.

 

2. The need for prescribed terms to be contained in the credit agreement is confirmed by the Author of the CCA1974 act, I quote ““As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97.

 

Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn’t be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I’m glad the House of Lords has now vindicated my reasoning and confirmed that nobody’s human rights were infringed.” - 167 Justice of the Peace (2003) 773.”

I am now granting to you a further 7 days to produce a copy of an executable agreement. After that I will consider that the above matter is closed and that you will no longer pursue the alleged debt. If you are insisting that the non enforceable document, that you have supplied, is the only alleged agreement in your possession, then I would suggest that the best course of action would be to immediately set the balance of the above account number to zero.

I look forward to your response.

 

 

 

I take it that you are currently unable to make payments.

[Lampies]

They need to supply a true opy for both Loan and credit card agreements.

 

If you realy want to confuse them:

 

xxxxxx 2009.

 

Dear xxxxxxxxx,

 

ACCOUNT IN DISPUTE

 

Re account no xxxxxxxxxxxxxxxxxxxxxxxxxxx

 

I write regarding recent communication regarding the above account.

 

Further to my request under the above act, your attention is drawn to the fact that this account remains subject to a lawful serious dispute. On xxxxxxxx, by recorded delivery, I requested that you supply me a copy of the executed credit agreement covering this account pursuant to the Consumer Credit Act 1974 section 78, a copy of this request is enclosed. To date you have failed to comply with my request, supplying only a generic agreement and terms & conditions, which cannot be linked to any agreement which you claim that I have signed and a set of again unrelated terms and conditions. Without production of the said agreement I am unable to assess if I am indeed liable for any alleged debt to you, nor does it give me any chance to evaluate whether any original agreement was ‘properly executed’ as required by the Consumer Credit Act 1974.

 

Contrary to your assertion, xxxxxxxx have not complied with the terms of CCA 1974 s78. The documents that you have supplied, do not comply with your duties to supply a “True Copy” of any agreement you claim to have been signed by me, for pre 2007 agreements. As you will be further aware, an agreement is not executed, until signed by both parties, so the document that you have supplied, being a reconstruction, cannot be a True Copy of an Executed Agreement.

 

While this account remains in serious dispute, the relevant main points of the Law and OFT regulations while the account is in this state and xxxxxx remain in default are:

 

• You may not ask for payment against this account.
  
• I am not obliged to offer any payment against this account.
  
• You cannot register any data with a third party.
  
• You cannot take any enforcement action, including registering Defaults.
  
• You cannot pass the account on to a third party for collection.
  
• You cannot sell the account.
  

What is a true copy:

 

In a recent letter from the enforcement department of the OFT, the text below was quoted, explaining what is required.

 

“The copy of the executed agreement need not be an exact copy but it must be a ‘true copy’ and not some reconstruction of what the original might have been and it must contain the same terms as the original. Where the terms have been varied as provided for within the agreement, the copy of the original agreement must be accompanied by a document setting out the current terms, as varied. Certain details may be omitted from the original agreement eg the signature but the debtor must be in no doubt as to the true nature of his obligations under the loan.

 

Should no original agreement be in existence it is very hard to say that the copy the creditor offers to the debtor is, in fact, a true copy as there would be no original with which to compare it. In our view the onus of proof would be on the creditor to show that the copy is a true one and where none existed he may have difficulty discharging this. Neither should creditors suggest that a consumer has signed a credit agreement where they are unable to provide evidence to support this — to do so is likely to be a misleading action under Regulation 5 of the Consumer Protection from Unfair Trading Regulations 2008 (the CPRs) and would also constitute an unfair or improper business practice.”

 

 

I also refer you to the information below.

 

1. A valid credit agreement must contain certain terms within the signature document (s.60(1)(2) CCA 1974). These core terms are the credit limit, repayment terms and the rate of interest (SI 1983/1553 (6 Signing of agreement) which states that the prescribed terms must be within the signature document. (Column 2 schedule 6). s.61(1)(a) states the agreement must contain all the prescribed terms and be signed by both the debtor and on behalf of the creditor.

 

 

 

2. Further, s.127(3) CCA 1974 makes the account unenforceable if it is not in the proper form and content or improperly executed.

 

In Wilson and another v Hurstanger Ltd (2007) it was stated “In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties … and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s.61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement”.

 

2. The need for prescribed terms to be contained in the credit agreement is confirmed by the Author of the CCA1974 act, I quote ““As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97.

 

 

Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn’t be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I’m glad the House of Lords has now vindicated my reasoning and confirmed that nobody’s human rights were infringed.” - 167 Justice of the Peace (2003) 773.”

 

 

I am now granting to you a further 7 days to produce a copy of an executableagreement.After that I will consider that the above matter is closed and that you will no longer pursue the alleged debt.If you are insisting that the non enforceable document, that you have supplied, is the only alleged agreement in your possession, then I would suggest that the best course of action would be to immediately set the balance of the above account number to zero.

 

I look forward to your response.

 

 

 

I take it that you are currently unable to make payments.

 

Hi

 

I am doing a self managed DMP and one creditor is being a complete pain in the a$$.

 

I did send the account in dispute letter - not as comprehensive as yours above though. Do you think I should send your letter now? I only sent the other 12+2 on Monday.

 

What's the next step if the creditors do not cease to add charges etc?

 

Thanks for your help

Lamps

[vint1954]

Give them until next wednesday, then send the above but add, further to my letter dated xxxxx, i note that to date I have not received a response.

 

They all carry on regardless with charges etc. Complaint to OFT and trading standards.

[Lampies]

Give them until next wednesday, then send the above but add, further to my letter dated xxxxx, i note that to date I have not received a response.

 

They all carry on regardless with charges etc. Complaint to OFT and trading standards.

 

Thanks - will do.