Cap1 & CCA return

[the main man]

--

Edited December 17, 2009 by the main man
wrong

[diddydicky]

Hi All

 

Does anybody know of the top of there head what section of the CCA1974 does it say the Debt Collector has to provide the credit agreement not the Original collector

 

Cheers

 

HAK

 

anyone who is demanding payment from you has to provide proof of the debt

doesnt matter if it is the oc a dca or the dustman

[Bigdebtor]

The dustman is cleaner, smells less, has a higher IQ and would have more credibility!

 

BD

[B3rty]

Section 189

“ creditor “ means the person providing credit under a consumer credit agreement or

the person to whom his rights and duties under the agreement have passed by

assignment or operation of law, and in relation to a prospective consumer credit

agreement, includes the prospective creditor;

 

Section 77-79

78.—(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of 15 new pence, shall give the debtor a copy of the executed agreement

[diddydicky]

anyone acting "for" or "on behalf of" the creditor will, for the purpose be the person to whom the s77/79 request is sent

 

you should not bypass the creditors nominated representative

[Bigdebtor]

Does that mean any DCA writing to us on behalf of the OC - even if the debt is still with the OC?

[vint1954]

s77 - 78.

 

If the DCA is just collecting on behalf of the OC then the OC will have to provide.

 

If the DCA has purchaced the debt, then he has to provide the CCA.

[car2403]

s77 - 78.

 

If the DCA is just collecting on behalf of the OC then the OC will have to provide.

 

If the DCA has purchaced the debt, then he has to provide the CCA.

 

Correct, but even in the event that the DCA is collecting, they have a duty to their clients to pass on notices passed to them under the Act.

 

Personally, I don't buy it - I choose to send the CCA requests to the OC and tell the DCA what I've done, but that's a belts and braces approach.

[Peterbard]

Correct, but even in the event that the DCA is collecting, they have a duty to their clients to pass on notices passed to them under the Act.

 

Personally, I don't buy it - I choose to send the CCA requests to the OC and tell the DCA what I've done, but that's a belts and braces approach.

 

HI

 

Usually the they purchase the debt by assignment, that means that they are allowed to pursue the debt but not that they have any of the rights or duties under the orriginal agreement.

 

The agreement was made between you and the creditor and only one of you can legally enforce it.

 

This means that they can refuse to supply a 77 request but it also means that that they cannot pursue the debt through the courts despite what they may say for that they have to refer the debt back to the OC.

 

Cheers

Peter

[vint1954]

Correct, but even in the event that the DCA is collecting, they have a duty to their clients to pass on notices passed to them under the Act.

 

Personally, I don't buy it - I choose to send the CCA requests to the OC and tell the DCA what I've done, but that's a belts and braces approach.

Totally agree. It is best to deal with the OC wherever possible.

[johnerog]

HI

 

Usually the they purchase the debt by assignment, that means that they are allowed to pursue the debt but not that they have any of the rights or duties under the orriginal agreement.

 

The agreement was made between you and the creditor and only one of you can legally enforce it.

 

This means that they can refuse to supply a 77 request but it also means that that they cannot pursue the debt through the courts despite what they may say for that they have to refer the debt back to the OC.

 

Cheers

Peter

Hello Peter

That is very, very interesting. Does that mean that when these big companies have their own in house DCA's and they issue threats against a client they are in breach of OFT guidlines by using false information to gain payment? They threaten court action when they cannot actualy do it themselves?

John

[wot2do?]

HI

 

Usually the they purchase the debt by assignment, that means that they are allowed to pursue the debt but not that they have any of the rights or duties under the orriginal agreement.

 

The agreement was made between you and the creditor and only one of you can legally enforce it.

 

This means that they can refuse to supply a 77 request but it also means that that they cannot pursue the debt through the courts despite what they may say for that they have to refer the debt back to the OC.

 

Cheers

Peter

 

Hello Peter,

 

I take it this is when the assignment is equitable. When the assignment is absolute (legal) and compliant with s.136 of the Law of Property Act 1925, aren' the legal rights and the legal duties transfered (assigned) to the DCA ?

[car2403]

Hello Peter,

 

I take it this is when the assignment is equitable. When the assignment is absolute (legal) and compliant with s.136 of the Law of Property Act 1925, aren' the legal rights and the legal duties transfered (assigned) to the DCA ?

 

Not sure Peter is around to answer, so yes, that's right

[vint1954]

Hello Peter,

 

I take it this is when the assignment is equitable. When the assignment is absolute (legal) and compliant with s.136 of the Law of Property Act 1925, aren' the legal rights and the legal duties transfered (assigned) to the DCA ?

Yes, I beleive that is correct. It is the difference between simple and absolute assignment. If it is simple assignment, any court action has to be carried out in conjunction with the OC.

[wot2do?]

Many thanks guys,

 

I just wanted to make sure my understanding was correct. I have been closely following a debate on another thread about assignment. Some strange and wonderful theories have been posted there.

[diddydicky]

if the debt is sold to a third party who is not licenced to lend money and is still "live" (that is to say that it has not been effectively terminated under the terms of the CCA) it would be about as useful as a chocolate fireguard to him since he cannot "perform" his side of the contract. he would have "bought a pup"

 

If the debt has already been effectively terminated by the OC prior to being sold to the third party then the third party can (try to) legally enforce it

 

if the debt has been unlawfully rescinded by the OC and the OC then sells the debt to a third party then the third party buys the debt "warts and all" and therefore has to take the debt as a total entity (i:e:- he cannot leave behind the bits he doesn't like or which the OC got wrong) he has to "carry on" where the OC left off- in other words he is just as much in the doo doo with it as the OC was!! if the debtor accepted the unlawful rescission then what the OC sold the DCA was .... well.... nothing

[Bigdebtor]

I had a DN and a Termination Notice issued by Goldfish ON THE SAME DAY. 1st crud then had the debt assigned 2 years later. I take it that what 1st crud had actually assigned to them only amounts to the right to chase up the arrears at the time the DN was issued?

 

Ifv I'm right can someone please point me to the bit of law which supports my theory?

 

BD

[diddydicky]

well if the DN and TN were issued on the same day this would amount to an unlawful rescission so if you accepted that rescission, what was assigned would have been an agreement which no longer exists

 

there would be the genuine arrears that were due at the time of the unlawful recission (against which presumably you would counterclaim )

[diddydicky]

get your mince pies around this and see if it helps (courtesy of X20)

 

May be it was my doing or we've just hung on to this word 'termination' like Rotweillers. The thing is, at least as I see it is, that where a creditor seeks early repayment or the return of goods following service of an ineffective DN, he is by his words and conduct expressing in clear terms that he is no longer willing to perform the essential obligations he promised to provide under the credit agreement. True, these words and conduct ride on the back of the debtor's failure to perform the debtor's essential obligations. But in this event the creditor has only to follow the procedure laid out in the Act and Regulations. And the Act says unless and until he has met the requirements of the Act and the Regulations, he acquires no such entitlement. Accordingly, to withdraw from the debtor the right to pay sums due by instalments or withdraw the right to continue with possession of the goods is to withdraw in breach of the statutory code which regulates the agreement.

 

The withdrawal of the debtor's rights may in one person's parlance be the same as the creditor's termination of the agreement. Just like 'default' in the words of one person may amount to 'breach' in the words of another. Or 'repudiatory breach' in the language of lawyer A is 'renunciation' in the language of lawyer B. Let's say though, for the purpose of the stream of thinking which follows, that strictly and legally speaking, withdrawal of these rights in default (or breach) isn't a termination of the agreement and that for termination strictly so called to have occured, the creditor miut have served a notice of termination. Does that mean therefore that the creditor's withdrawal and demand for early payment and/or return of goods is something the court can waive? Something the debtor can be expected to have understood was a mistake and unintended? That it is of no consequence?

 

I've got Chitty on Contracts General Principles (26th Edition) (1991). A bit out of date but good enough on General Principles I would have thought. And I'd thought I'd open it. Always a good idea when examining the contractual relationship of parties. Interestingly, 'termination' does not have an entry of its own in the umpteen page index at the back. It says in relation to Renunciation (and if you look up Repudiatory Breach it refers to to the same page number) that:

 

A renunciation of a contract occurs when one party by words or conduct evinces an intention not to perform, or expressly declares that he is or will be unable to perform, his obligastions under the contract in some essential respect. An absolute refusal by one party to perform his side of the contract will entitle the other party to treat himself as discharged, as will also a clear and unambiguous assertion by one party that he will be unable to perform when the time for performance should arrive. Short of such an express refusal or declaration however, the test is to ascertain whether the action or actions of the party in default are such as to lead a reasonable person to conclude that he no longer intends to be bound by its provisions. The renunciation is then evidenced by conduct. Also, the party in default 'may intend in fact to fulfil (the contract) but may be determined to do so only in a manner substantially inconsistent with his obligations' [Federal Commerce & Navigation Co Limited v Molena Alpha Inc (1979)] or may refuse to perform the contract unless the other party complies with certain conditions not required by its terms. In such a case, there is little difficulty in holding that the contract has been renounced.

 

If one party evinces an intention not to perform or declares his inability to perform some but not all of his obligations under the contract, then the right of the other party to treat himself as discharged depends upon whether the non-performance of those obligations will amount to a breach of a condition of the contract or deprive him of substantially the whole benefit which it was the intention of the parties that he should obtain from the obligations of the parties under the contract then remaining unperformed.

 

The renunciation must be made quite plain. In particular where there is a genuine dispute as to the construction of a contract, the courts may be unwilling to hold that an expression of intentino by one party to carry out the contract only in accordance with his own erroneous interpretation of it amounts to a repudiation and the same is truew of a genuine mistake of fact or law.

 

The demanding of early payment is to my way of thinking the immediate withdrawal of consent to all the remaining credit provided for under the agreement. Further, that it substantially deprives the debtor of the prime benefit he was to derive under it. Such a demand constitutes a breach of the regulated agreement save where it is demanded in compliance with the Act. If the demanding of such things is not tantamount to the creditor terminating the agreement, it is, nonetheless in my opinion, the creditor's renunciation of it. in consequence and in my opinion, the debtor may fairly regard himself as discharged from the agreement.

 

Chitty has this to say:

 

Consequences of Discharge - Effect on Contract

It has become usual to speak of the exercise by one party to treat himself as discharged as a 'recission' of the contract but as Lord Porter pointed out in Heymans v Darwin limited (1942):

 

'To say that the contract is rescinded or has come to an end or ceased to exist may in individual cases convey the truth with sufficient accuracy, but the fuller expresion that ther injured party is thereby absolved from future performance of his obligations under the contract is a more exact description of the position. Strictly speaking, to say that on acceptance of the renunciation of a contract the contract is rescinded is incorrect.'

 

This statement was unanimously approved by The House of Lords in Johnson v Agnew (1980) where Lord Wilberforce emphasised that this so-called 'recission' is quite different from recission ab initio as may arise for example in cases of mistake, fraud or lack of consent. It has also become usual to speak of the contract as having been 'terminated' or 'discharged' by the breach. Again however, these expressions may be somewhat misleading for they might suggest that the contract ceases forv all purposes to exist in that event. Such an approach was indeed adopted by the Court of Appeal in Harbutt's Plastercine Limited v Wayne Tank & Pymp Co (1970) so as to prevent the party in default from relying on an expemtion clause inserted in a contract which had been 'terminated' by breach. But this case was overruled by the House of Lords in Photo Production limited v Securicor Transport limited (1980). The true position was there stated to be, where the innocent party elects to terminate the contrsct, ie to put an end to all primary obligations of both parties remaining unperformed - that (per Lord Diplock) '(a) there is substituted by implication of law for the primary obligations of the party in default which remain unperformed a secondary obligation to pay money compensation to the other party for the loss sustained by him in consequence of their non-performance in the future and (b) the unperformed primary obligations of that other party are discharged.'

 

Given Diplock's statement of the position, may be to describe the agreement as 'terminated' following the events we are describing is, to adopt the words of Lord Porter, '..*to convey the truth with sufficient accuracy.'

[Bigdebtor]

Diddy

 

Thanks for your last two posts.

 

I understood the earlier post - but not that last one I'm afraid!

 

I take it that is the "bit of law" I asked for? I'll copy and paste this into my Goldfish file for future use if required.

 

Thanks again

 

BD

[diddydicky]

Diddy

 

Thanks for your last two posts.

 

I understood the earlier post - but not that last one I'm afraid!

 

I take it that is the "bit of law" I asked for? I'll copy and paste this into my Goldfish file for future use if required.

 

Thanks again

 

BD

 

its the personal opinion of the law from a poster (surfaceagent x20) who i believe is legally trained.

 

he usually knows what he is talking about!!

 

try reading and understanding it one para at a time- it does eventually sink in

[Peterbard]

Not sure Peter is around to answer, so yes, that's right

 

Hi

 

Yes thanks Car

 

Absolute assignments are rare and should usually require the agreement of both parties,(unless special permission is granted by the court) to the orriginal agreement unless there are special circumstances,ie the death of one party.

 

Really the fact that the agreement was made between two parties is a fundamental definition of the contract and can not ealily be avoided.

 

Take the point of the current trend wher debt "advice" companies offer to by an unenforceable agreement off a debtor, ie they will handle a debt and handle the creditors or dca's demand for payment in return for a fee or so they say.

 

In effect they say they are taking over the indebtedness of the debtor for a fee.

 

There is no legal framework whatsover for this and th MOJ have recently issued a statement to creditors saying that they should ignore any such claims made by thes companies and pursue the debtor so you see it works both ways.

 

Cheers Peter

[Josie8]

Judgment in Manchester cases formally handed down yesterday afternoon.

 

The case To be known as Carey v Hsbc was mainly over what a creditor needs to do in order to comply with s. 78 request. They are to be allowed to reconstitute agreements. This is also in accordance with the OFT draft guidance which was introduced into evidence. They do not have to provide a photocopy of the application at all.

 

In addition prescribed terms can be overleaf or referred to as attached for agreements pre 2005. This will be a matter of evidence individual to each case

[gaz2006]

Judgment in Manchester cases formally handed down yesterday afternoon.

 

The case To be known as Carey v Hsbc was mainly over what a creditor needs to do in order to comply with s. 78 request. They are to be allowed to reconstitute agreements. This is also in accordance with the OFT draft guidance which was introduced into evidence. They do not have to provide a photocopy of the application at all.

 

In addition prescribed terms can be overleaf or referred to as attached for agreements pre 2005. This will be a matter of evidence individual to each case

 

So if they havent got one or lost it they can make one up sounds 100% fair to the creditor uggghhh

[IainHL]

In addition prescribed terms can be overleaf or referred to as attached for agreements pre 2005. This will be a matter of evidence individual to each case

I don't think I like that bit in red. Is there some more detail somewhere (I have tried Google without success)?