Cap1 & CCA return

[fleeced_by_rbos]

I think you will find that it was one of either two Judges in recent High Court cases who said that rather than the OFT. Indeed the OFT appear to have reiterated that they will take a dim view of financial institutions who pursue debtors while in default, regardless of the recent cases.

 

I do agree with you though on your earlier point about contracts. It almost beggars belief that banks deliberately don't retain their

contracts then go bleating to the Courts to rectify the situation or expect us to believe what they say was in the contract.

 

You may be right, but I could've swore that I saw something about OFT siding more with creditors, but I can't remember where which is a bit annoying!

 

Regarding the contracts, does anyone know if there is contract law which acts as a precedent underlying laws such as the unfair terms in consumer contracts and CCA? I would've thought some law somewhere would cover the basic principle that a contract can only exist if it can be proven by the original documents and that any reconstruction is merely heresey and cannot be used in court. Now that would be nice!

 

FBR

[fleeced_by_rbos]

Oh yes, and I recall Francis Bennion writing on his web site that the CCA was intended to be fairly easy to follow by creditors but provide full protection for consumers such that they (likely being lay people) would not have any confusion whatsoever as to the contract terms and that if creditors fail in that regard then, basically, tough luck for the creditor.

 

At the moment, it seems that the recent court cases, and possibly the OFT if I am right in what I said previously about them, are ignoring that very important point.

 

Does anyone have a copy of Francis Bennion's article from his site. It seems that after it was quoted a bit about a year ago, it suddenly disappeared from his site......hmmmmm.

[captain2]

That bankers conference/training day posted by Smartchick sounds like a worthwhile investment - could easily spend that sum on useless claims handlers - if go and especially if i get any handouts and notes i will post on here ......

[diddydicky]

The man who wrote the Consumer Credit Act 1974 explains all;

 

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.

[humbleman]

I wonder if anyone could look at my thread, I have a trial coming up next week.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/130101-humbleman-hfc-weightmans-court-14.html

[Kamira]

If enough actual and signed agreements are posted on here covering as much of a time span as possible then it could present a resource to use in challenging reconstituted agreements to show evidence that they were often defective -

 

This could open up a way forward in demolishing any agruments they were likely to get them right !

I have dug out

1) the 5 page Egg card agreement and credit agreement from April 2003

2) Abbey credit cgreement that was issued with the credit card attached to it in I think Sept 2003

I am starting to take on Egg and Abbey and if what I have can be of any help to others I feelI would be putting something back until I get some money back and can donate to the forum.

[Having_A_Knightmare]

Hi All

 

Been off the site for a bit and come back to see this post is still going!!!

 

Cant believe the judges are still shafting the debitors with there stupid rulings!!

 

HAK

[patrickq1]

welcome back HAK nice to see your still around

patrickq1

[car2403]

Hi All

 

Been off the site for a bit and come back to see this post is still going!!!

 

Cant believe the judges are still shafting the debitors with there stupid rulings!!

 

HAK

 

Have they, though? I'm yet to see a Judgment that says anything that would relate to enforcement of an agreement

[Having_A_Knightmare]

I know where you are coimng form car!!!

 

HAK

[Peterbard]

Got a message from enron about a response to the judgement thie is a draft of part one of it i ould appretiate any comments

 

One might ask what exactly is the function of the sanctions imposed by section 78 subsection(6).

If a creditor does not comply with the request then he cannot enforce, but enforcement is defined as taking place only when the matter is taken to the court.

If a creditor chose for what ever reason not to comply the what penalty is incurred?

“Whilst in breach the creditor may not enforce the agreement”, but he does not need to enforce all the actions he wishes to take against the debtor are still permitted, the debtor can do nothing but continue adhering to the agreement if he does not the creditor is quite within his rights to report any default to a DCA ,charge interest and default.

This point is referred to in section 132 of the judgement where the applicant says that this represents an unfair relationship under section 140.

The reply to this assertion is that the applicant takes a gamble on whether the creditor has the agreement and it is not the fault of the creditor that parliament decreed that the breach can be remedied by its production . For what it is worth I disagree. In my opinion the act was drafted in a way that the creditor was sanctioned for the breach, it was the re- interpretation of the term “enforcement” in McGuffic and re iterated in this judgment that has altered the intent of the section

The only action open to the creditor is to stop payment and wait for the section 89 default notice in order to receive the information he requested.

This is surely not the situation that was envisaged when the act was created.

I notice it is stated that a credit card terms and conditions can be reproduced from records

I would take issue with this I have a number of credit cards myself and like to change them when one becomes available with a special transfer deal or lower APR. these deals are often short lived and may only available for a matter of weeks I do not believe that a generic agreement from the era of when a card is executed would reflect these transitory agreements. The APR and there fore the interest are of course prescribed terms and should be available on a copy of an executed agreement.

These short term introductory rates are usually on the original agreement and do not qualify for an additional copy under reg 7.This is further complicated by the seemingly contradictory statement in section 119 where the judge says that the terms do not necessarily have to come from the actual document that was executed the reason is here he is talking general terms ( I suspect he infers to default charges) not prescribed terms which must, if not copied from the original must be identical to it

It may be said and I think it is in the judgement that these considerations are taken into account by the fact that a copy was provided under section 62etc. But then what purpose section 78?

I read that it is considered unfair to expect the creditor to keep an actual copy of the agreement and what about the consequences if the copy is destroyed by fire and the creditor cannot produce and therefore cannot enforce.

To my mind the business of creditors is to lend money .Agreements are there stock in trade shouldn’t we expect that they can at least keep them safe, every other business has goods or commodities which have to be protected, why should creditors be any different.

I agree that the function of the section 78 request is not to provide proof positive of correct execution, but to say that it cannot provide proof positive . If for example you request a copy of a fixed sum agreement and on examination you find that the TCC has been miscalculated(this has happened many times) thus making the total credit incorrect and the agreement unenforceable under section 127(3) would that not be acceptable as proof positive. After all the judgement says in an earlier paragraph that the copy must be an exact copy of all terms and conditions and not just an approximation so incorrect copy incorrect agreement

I believe that the section 18 argument in regards to PPI on regulated agreements was touched on in section 59 of the judgement although it was not pursued with any vigour reading between the lines and the judge did not press for further information in my humble opinion just as well..

 

Regards

peter

[tedney]

Not withstnading the above, remember that before c.May 2008, non-copliance with section 77-79 after the prescribed period they committed an offence, if they added interest to the account when in default, proceeds of crime - unlawful enrichment. And (I would argue) a good item to bring up in an unfair relationship argumen

Taken from Mike220359's post number 16410 on page 821

Does this mean that under the CCA it is unlawful for a DCA to add interest when an account is in default? I am confused:confused::o

[car2403]

Taken from Mike220359's post number 16410 on page 821

Does this mean that under the CCA it is unlawful for a DCA to add interest when an account is in default? I am confused:confused::o

 

IMHO, it's not unlawful (proceeds of crime? ) but the interest applied would not be enforceable because of their Default in replying to the request.

[Peterbard]

Hi Car

 

Yes it is perfectly legal for creditors to add iterest and default charges whilst they are indefault of section 78 see my earlier post. If and when the breach is remedied by production of a copy then all sums charged during the breach wil be due and payable.

 

Best regards

Peter

[Mike220359]

IMHO, it's not unlawful (proceeds of crime? ) but the interest applied would not be enforceable because of their Default in replying to the request.

 

removed the reply

reason for removal to much information given and prying eyes.

[davefirewalker]

Just for you "woefull willies" out there...just started to read the "carey v HSBC" judgment which was touted by the media as the end to claims etc...

 

this section at paras 15 - 16 struck me......hard

 

at last another piece for the puzzle, and from a mercantile court... this bears out the Tuckey ruling in wilson v hurstanger

 

--------------

 

15.Then, by Regulation 6 and Schedule 6 the following terms had to be contained in a regulated agreement for running account credit if it was not to be an IEA, and were prescribed for the purposes of s61 (1) (a):

"A term stating the credit limit or the manner in which it will be determined or that there is no credit limit" (paragraph 3 of Schedule 6);

"A term stating the rate of any interest on the credit to be provided under the agreement" (paragraph 4 of Schedule 6);

"A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of

the following:

number of repayments;

amount of repayments;

frequency and timing of repayments;

dates of repayments;

the manner in which any of the above may be determined;

or in any other way, and any power of the creditor to vary what is payable." (paragraph 5 of Schedule 6).

I shall refer to these as "the Prescribed Terms".

 

 

16.Accordingly, the document which is signed by the parties (and which forms all or part of the executed agreement) must itself contain the Prescribed Terms and the name and address of the debtor. Other terms may be incorporated by reference but not the Prescribed Terms.

there's bound to be more good news there somewhere

 

Dave

[Peterbard]

IMHO, it's not unlawful (proceeds of crime? ) but the interest applied would not be enforceable because of their Default in replying to the request.

 

Car is correct i am affraid scyion170

 

 

(1) A breach of any requirement made (otherwise than by any court) by or under this Act

shall incur no civil or criminal sanction as being such a breach, except to the extent (if any)expressly provided by or under this Act.

[lookinforinfo]

Excellent post [16427] as usual Peter.

I can understand that the Courts were chafing at having to handle so many debtors attempting to renege on their contracts. Even allowing for the ineptiude of the banks, Judges do not like that kind of behaviour. However, I feel that the OFT as overseers of the CCA have, by allowing these cases to be heard in the High Court let down the very consumers the Act was designed to protect.

 

The majority who are requesting a S77, 78 or 79 are under pressure from their creditors. And certain rulings by the High Court Judges far from clarifying the situation, have not only given rise to new arguments but

appear to have strengthened the power of the financial institutions to the detriment of the consumer.

 

I am thinking of a company who know that their agreements are either drafted incorrectly originally or as Peter alluded, filled out incorrectly by the clerk.

Before these judgements, both types of agreement would be totally unenforceable in Court. Obviously, in those situations, companies, perhaps as a result of earlier losing cases, knowing that their agreements

were unenforceable, would state that the agreement could not be found.

While they would still not be able to receive payment, the debt would not be classed as totally unenforceable which would allow them to continue to report to the CRAs and be able to sell on the debt.

 

Now, in that same situation, these companies are legally allowed to pursue and issue Default Notices and threaten Court proceedings. This must mean that some unfortnate people who do no access the internet, or cannot find such forums as ours will end up paying an unenforceable contract. And these people will be the most vulnerable. The very ones that

the Consumer Credit Act was designed to protect.

 

If the OFT fail to challenge some of these decisions, is it not time that they consider their position and hand over the task of regulating the Act to a more capable organisation.

[Peterbard]

HI

In My Haste i forgot to put the concluion to the last post if you follow my logic then i cannot see how the court justifies adding chrges and interest to an agreement that is unenforceable. If a non compliant copy is sent by the creditor the agreemeny cannot be enforced of a compliant sgreement is presened at the court the agreement can not be enforced retrospectively even though the breach is remedied the enforcement can only start at that point

 

Peter

[haggis1984]

Hey guys,

 

Some knowledgable input here would be awesome:

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/241335-media-failing-accurately-report.html#post2689218

[willy2006]

Im a bit stuck on my dads creditors here,three of them have hassled us since July with no proof of any agreements.Ok i report them to FOS will the telephone harassment stop i dont know,they have now got his mobile and are phoning him in hospital 3-4times a day.He has seen the article in the paper and wonders wether to negotiate with them.Bear in mind he lost £25,000 when Bradford and Bingley went bust surely he doesnt trust banks now,if they had the agreements we would have had a summons by now.If they cant produce a document saying what we owe wheres the proof that we owe anything.What happens next?can anybody tell me,i will put complaints into FOS but where do we go now and i mean probably thousands in the same position go now.Any advice would be appreciated thanks:mad:

[Enron]

Get in touch with Trading Standards, if they are phoning 3-4 times a day thats clear harassment..... they should be able to take action under the administration of justice act.

 

Trading Standards Institute - Home page

 

A lot of DCAs work on the basis of making a persons life a living hell in the hope that they'll crumble and pay up under pressure, they very rarely proceed to court action.

 

If he has credit cards and loans I would suggest first applying for copies of the "executed agreements", you should then receive a copy of the applications which were completed along with his signatures at the time in return. Someone on here should be able to point you in the right direction of the templates.

[vint1954]

Here is the first letter to send, requesting your agreement.

 

Dear Sir/Madam

 

Re account no xxxxxxxxxxxxx

 

With reference to the alleged debt to your company, this letter is a formal request of a true copy of a signed and dated credit agreement for the above account number, under the terms and conditions of section 78(1) of the CCA act 1974. I enclose the statutory maximum fee of £1.00

 

I expect you to comply fully and properly with this request, within the statutory time limit.

I enclose a postal order no xxxxxxxxxxxx in the sum of £1.00, which is the statutory fee. Note that these funds are not to be used for any other purpose.

 

If you are unable to comply fully and properly with this request, you should confirm this in writing at the earliest opportunity, and certainly within the statutory time limit for compliance, and return the fee.

 

I look forward to hearing from you.

 

Yours faithfully

 

[patrickq1]

I know where you are coimng form car!!!

 

HAK

 

where north south east west ?

[coolchris]

Im a bit stuck on my dads creditors here,three of them have hassled us since July with no proof of any agreements.Ok i report them to FOS will the telephone harassment stop i dont know,they have now got his mobile and are phoning him in hospital 3-4times a day.He has seen the article in the paper and wonders wether to negotiate with them.Bear in mind he lost £25,000 when Bradford and Bingley went bust surely he doesnt trust banks now,if they had the agreements we would have had a summons by now.If they cant produce a document saying what we owe wheres the proof that we owe anything.What happens next?can anybody tell me,i will put complaints into FOS but where do we go now and i mean probably thousands in the same position go now.Any advice would be appreciated thanks:mad:

 

You need to tell them that they are clearly in contravention of the abuse of telecommunications act. (Google it for more info, sorry I dont have all the facts to memory).Take note of every call, who it is from, times etc. Also I strongly suggest you get your phone provider to get you the call barring service and, what I did, buy the Call Blocker system that effectively puts a barrier between you and the idiots phoning. If its not on your list of allowed callers it gets blocked. I know its extra expense but believe me its WELL worth it. Also get a CAB appointment. That in itself is a burden reliever.