Cap1 & CCA return

[Mike220359]

THey also haven't provided a copy of the original agrremnet under section 85 which allows them to vary the terms , or a copy of the CCA 1974, which is referred to

 

Mike

[Mike220359]

Paying off lower interest sumd before higher interest sums

[Mike220359]

Passing personal information outside the country without safeguard

[meagain]

Mike, there is a very good reason why this button appears below every one of your posts.

 

[Guest The Terminator]

On a separate matter presumably this

 

 

 

means that this was printed in Sept 2006 and is not your t&c's at all!

 

These are the ones from 2006 and as I said in my post there are at least 10 unfair terms and 10 breaches of the CCA.All im highlighting is that these t&c only work one way in favour of the lender.The T&C im after are the ones from 1998 when the account was opened.

[Peterbard]

Folowing the letter i recieved from the DTI regarding the 77-79 CCa request and the mater of how to validate an unsigned agreement as a true copy I have sent the folloing reply which has been forwarded to them via my MP.

RE Consumer Credit Act 1974

 

Thank you for your response to my query regarding the Sections 77-79 of the consumer Credit Act 2006.

 

I have read the reply and have the following comments

 

Perhaps I was not clear in my original correspondence; I am aware that Sections77-79 applies to executed agreements and is therefore post contractual. My point was this: I can understand why the production of unsigned copies of a contract might be understandable on a pre-executed document; the prospective client may want to examine the terms and conditions before signing.

 

When a debtor requests a copy of executed agreement it is usually to, check on the amount owed on the account, or to facilitate a voluntary termination settlement, or to check an early settlement penalty’s, interest rates applied to the accounts etc. Therefore it is essential that the copy he/she receives is a true copy of the original.

 

The question is: how the creditor to validate the agreement as a true copy without a signature?

 

The agreement may have been made some years ago realistically there is no telling haw many changes have been made on it due to changes in company policies or interest rates etc. As we all know just a word or even a punctuation mark in a contract can alter the meaning completely. It seems a little unlikely that the normal person would be able to authenticate what could be a five page document as being a true copy of the original.

 

 

 

 

The answer from the DTI is that, if you disagree with that a true copy has been sent then it will be up to the court to judge whether to enforce without a signed agreement. I am sure that the judge would not be impressed with an action being brought when it could have been resolved by the inclusion of a signature on a duplicate document.

 

The facts of the matter are that most people do not want to go to court to prove the existence of a contract they would just leave it at that and accept the creditor’s word , is this good enough?

 

Realistically and with the best will in the world is the creditor going to send a copy of an agreement that may be 6 years old, is it suggested that creditors keep copies of all unsigned agreements even though they are out of date? What will be sent is a copy of the current documenting which undoubtedly will have been altered over the interceding period.

 

If the creditor was going to send an unsigned copy of the original he would have to cover the signature box and again why he would bother as a complete document would prove its validity.

 

I am worried that this will impact on the less well off in our society mostly, the ones who have to deal with high interest rate or doorstep lenders where the CCA is already being flaunted outrageously and remove one of the few legal recourses that they have to ensure that they are being treated fairly.

 

The position is made worse by the rescinding of section 127 sections 3-5 of the CCA when the CCA2006 comes into force; these sections prohibited the courts from enforcing an incorrectly or unexecuted agreement. This was a safety net and prohibited the enforcement of incorrectly executed documents which include those that were not signed.

 

Also with the removal of the £25000 limit on the agreements being regulated by the act I would have thought that total accuracy of financial information was more than ever required due to the sums involved.

 

I would welcome your comments and recommendations

 

 

Peter

The correspodance recieved form my MP indicates that I should have a reply within a month.

I will Keep you posted.

Cheers Peter

[meagain]

... where the CCA is already being flaunted outrageously ...

 

The word is flouted.

[Peterbard]

You know meagain your abloloutly right.

 

Still I think they might get the idea

 

Rears

 

Peter

[meagain]

I hope so - it is otherwise a very good letter.

[Peterbard]

Thanks we will see if it does any good.

 

Regs

Peter

[TideTurner]

Passing personal information outside the country without safeguard

 

Mike, is this with respect to the DPA? If so, it should state outside the EC.

[Guest The Terminator]

Mike, is this with respect to the Data Protection Act? If so, it should state outside the EC.

Not only the DPA and im sure HRA. I did find something in the CCA:

 

174 Restrictions on disclosure of information

(1) No information obtained under or by virtue of this Act about any individual shall be disclosed without his consent.

(2) No information obtained under or by virtue of this Act about any business shall be disclosed except, so long as the business continues to be carried on, with the consent of the person for the time being carrying it on.

(3) Subsections (1) and (2) do not apply to any disclosure of information made—

(a) for the purpose of facilitating the performance of any functions, under this Act, the Trade Descriptions Act 1968 or Part II or III or section 125 (annual and other reports of Director) of the Fair Trading Act 1973 or the Estate Agents Act 1979 or the Competition Act 1980 or the Telecommunications Act 1984 or the Gas Act 1986 or the Airports Act 1986 or the Consumer Protection Act 1987 or Part II of the Consumer Protection (Northern Ireland) Order 1987 or the Control of Misleading Advertisements Regulations 1988 or the Courts and Legal Services Act 1990 or the Railways Act 1993 or the Coal Industry Act 1994 or the Water Act 1989 the Water Act 1991 or any of the other consolidation Acts (within the meaning of section 206 of that Act of 1991) or the Electricity Act 1989 or the Electricity (Northern Ireland) Order 1992 or the Gas (Northern Ireland) Order 1996 or Part I of the Transport Act 2000 or Part IV of the Airports (Northern Ireland) Order 1994 of the Secretary of State, any other Minister, the Director General of Telecommunications, the Gas and Electricity Markets Authority the Civil Aviation Authority the Director General of Water Services, or the Director General of Electricity Supply for Northern Ireland or the Director General of Gas for Northern Ireland the Rail Regulator the Authorised Conveyancing Practitioners board, the Coal Authority any enforcement authority or any Northern Ireland department, or

(b) in connection with the investigation of any criminal offence or for the purposes of any criminal proceedings, or

© for the purposes of any civil proceedings brought under or by virtue of this Act or under Part III of the Fair Trading Act 1973 or under the Control of Misleading Advertisements Regulations 1988.

(3A) Subsections (1) and (2) do not apply to any disclosure of information by the Director to the Financial Services Authority for the purpose of—

(a) enabling or assisting the Authority to discharge any of its functions;

(b) enabling or assisting the Director to discharge any of his functions under this Act or the Financial Services and Markets Act 2000.

(4) Nothing in subsections (1) and (2) shall be construed—

(a) as limiting the particulars which may be entered in the register; or

(b) as applying to any information which has been made public as part of the register.

(5) Any person who discloses information in contravention of this section commits an offence.

[rosierose]

S174 was repealed by the Enterprise Act 2002, Terminator - which when you actually read it passes the buck to the DPA.

Cheers

Rosie

[Number6]

Just received this reply from Ian McCartney, via my MP

 

Page 1

 

Page 2

 

Page 3

 

I've underlined interesting bits.

 

The final paragraph on page 2 is interesting because it's ambiguous; does it mean that all agreements will come under it's remit, or only new agreements entered into following enactment? I'm writing back for clarification.

 

Pete

[un1boy]

Thanks Number 6 - very informative.

 

That bit on page is ambiguous and worry, if it does mean that!

[Guest The Terminator]

S174 was repealed by the Enterprise Act 2002, Terminator - which when you actually read it passes the buck to the Data Protection Act.

Cheers

Rosie

 

Thanks for pointing that out repealed under 247(d) of the Enterprise Act(2002)

[Guest The Terminator]

Just received this reply from Ian McCartney, via my MP

 

Page 1

 

Page 2

 

Page 3

 

I've underlined interesting bits.

 

The final paragraph on page 2 is interesting because it's ambiguous; does it mean that all agreements will come under it's remit, or only new agreements entered into following enactment? I'm writing back for clarification.

 

Pete

 

Pete I could only just make out the print but I'm sure it's only new agreements after April when the amendments kick in.

[meagain]

It would have to be. In general, laws are not retrospective, so surely the provisions of the Act which apply are those as were in force at the time the agreement was originally formed.

[Peterbard]

Hi

The letter is pretty similar to the one i recieved earlier the reply to which is posted in this thread.

It does seem that there seems to be a difference of opinion between the transitional arrangments in the CCA 2006(Below) and the response in your letter.

ODD

 

"1 The repeal by this Act of—

 

(a) the words “(subject to subsections (3) and (4))” in subsection (1) of

section 127 of the 1974 Act,

(b) subsections (3) to (5) of that section, and

© the words “or 127(3)” in subsection (3) of section 185 of that Act,

has no effect in relation to improperly-executed agreements made before the commencement of section 15 of this Act. "

 

In other words all agreement improperly execued and unsigned prior to April 6th are unenforceable even after the act is introduced

[Number6]

Pete I could only just make out the print but I'm sure it's only new agreements after April when the amendments kick in.

 

Logically would have assumed so, however that's not what the letter says. It says it will apply to all agreements; this may be a misprint or a deliberate attempt at obfuscation.

 

I've written back to my MP requesting urgent clarification.

 

Pete

[Number6]

Pete I could only just make out the print but I'm sure it's only new agreements after April when the amendments kick in.

 

Here's the OCR'd text for you - hope it's clearer:

 

Re: Consumer Credit Act 1974

 

I thank you for your further letter of 24 November, enclosing

correspondence from your constituent about the Consumer Credit Act

1974 (CCA) and its operation in conjunction with the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (CCR).

 

What constitutes a copy under the Consumer Credit Act 1974 (CCA

1974) is construed in accordance with section 180 of the CCA. Section

180 states, amongst other things, that Regulations may be made as to

the form and content of copy documents and also says that the duty to

provide a copy of the executed agreement is not infringed by the omission of material that is authorised to be omitted by Regulations. The relevant regulations are the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983.

 

Regulation 3 states that subject to the following provisions every copy

shall be a ‘true copy’. It then goes on to set out what may be omitted

from a copy. As I mentioned in my previous reply, section 3(2)(a) states that “any signature box, signature or date of signature” (apart from in a

copy agreement sent under 63(1) of the Act) may be omitted. In every other sense the copy must be a ‘true copy’.

 

 

Apart from the things that the Regulations say can be omitted from the copy, the copy must be a ‘true’ copy of the executed agreement. To be an executed agreement, it would have had to have been signed originally and contain all the terms of the agreement. All the Regulations allow is some things to be omitted from copies, not from the original executed agreement which still have to comply with section 61 of the Act. The rationale for allowing signatures to be omitted on copies is that they may not be essential for the borrower’s purpose at that stage, and it may be quicker and less costly for lenders to access unsigned copies of the agreement on computer than hard copies of the original, signed agreement.

In the case of a dispute the lender would need to produce the original, signed agreement in order to be able to enforce it.

 

Section 15 of the Consumer Credit Act 2006 (CCA 2006) provides that subsections (3) to (5) of section 127 of the CCA 1974 shall cease to have effect. The CCA 1974 provides that, in certain circumstances, where the requirements of the Act in relation to regulated agreements are not complied with, the agreement is only enforceable by an order of the Court. Prior to the CCA 2006, the section also provided that the Court could not make an enforcement order under section 65(1) if section 6 1(1) was not fully complied with. What this meant in practice was that the Court could not make an order enforcing an agreement where there was a very minor, technical problem with the agreement and therefore it didn’t strictly comply with section 61(1) - the agreement could be unenforceable on a very minor technicality even when the lender has acted in good faith and there was nothing of substance wrong with the agreement.

All the deletion of section 127(3) - (5) does is mean that the court will have the power to determine, in its discretion, whether agreements are enforceable in accordance with section 127(1) and (2) regardless of the breach in question. It does not mean, as has been suggested by your constituent, that the court will allow the enforcement of debts without evidence of a credit agreement.

 

The 2006 Act is being commenced in stages, some provisions have already come into force and others will not be commenced until April 2008. The provisions relating to section 127 will apply to all agreements from the moment the section is commenced, which is due to occur on 6 April 2007.

 

The Office of Fair Trading is responsible for the enforcement of consumer credit legislation. If your constituent has any concrete examples of where business is engaging in abuse of the rules, I am sure they would be happy to receive details in order to resolve the matter.

 

IAN McCARTNEY

 

 

Pete

[Peterbard]

Yep

Pretty much word for word only the one i recieved had a bit in it about a application form not being accepatable as an agreement.

By the way if you want to look it up the transitional provision i quoted above is Schedule 3 section 11 of the 2006.

It is worth looking at some of the other transitional arrangements there as not all commence at the inception of the section of the act.

 

Peter

[tamadus]

I have to laugh at the very last paragraph, we have been telling them for months about lenders abusing the rules, Why does Ian McCartney think he is getting so many questions all of a sudden?

 

Very much like all the other replies we have seen, says a lot while saying very little.

[angry cat]

Re: the last paragraph-

"The Office of Fair Trading is responsible for the enforcement of consumer credit legislation. If your constituent has any concrete examples of where business is engaging in abuse of the rules, I am sure they would be happy to receive details in order to resolve the matter".

 

Yup, thats all very well and good but...

How does one put pressure on TS (consumer arm or the OFT) to prosecute the offending firm?

 

I, as you know reported MS to TS prior to Christmas, TS are still at the 'Intelligence Purposes Only' stage - meaning they have not yet contacted MS.

Apparently, there ar other issues that have to be taken into consideration, prior to TS taking action-

1. Budget

2. Consumer Safety

3. Proportionality

4. What is in the Publics Interest

 

I am informed that even if TS/OFT discover that a breach has indeed occured, resulting in the 'Criminal Offence', it may well be that the only result will be a...Warning!!!

 

We will see!?

 

However, I am informed that I can still proceed with a civil action against the offender.

 

To be honest Guys, I am kind of sitting on the fence here waiting to see what action TS will take, if any...time will tell.

 

Has there been a successful action regarding this matter which would provide case law?

 

AC

[Number6]

 

Very much like all the other replies we have seen, says a lot while saying very little.

 

Hi Tam, I think it actually says quite a lot:

 

It confirms once and for all that an application form cannot be construed as an agreement.

 

It confirms that the courts cannot currently enforce any agreement that does not comply in totality with CCA 1974 S61(1)

 

It confirms that a copy agreement has to be a true copy, i.e. identical to the original with only the signatures and boxes removed - i.e. a "generic" T&C type document simply will not do.

 

I think it's a very useful piece of back-up data that could be put under a judges nose.

 

Pete