Cap1 & CCA return

[Guest The Terminator]

Just been contacted by the S unday Mirror regarding the bank charges and our fight with A & L, MBNA..Tam and Terminator will love this. photographer coming at 4pm. CAG is going to be well publicised by me. I also mentioned Section 85 so we can fire a shot across the bows of these banks. Story hasn't been written yet....are we ready for the next chapter boys? Can we use this opportunity?

 

Hi BA I suggest we get as much publicity as possible without giving too much away.You could say that there are certain members on CAG that are ripping the CCA to shreds and that they have reaserched many sections of the Act which are going to put the banks into shock in the upcoming weeks/months.

[andrew1]

I just had a copy of a credit Agreement duly signed by both parties ( T&C's omitted) but referred to as 'on the back' relating to a rather large debt sold by a bank to a DCA. I cca'd them in July 2006 - I received the copy today 31st Jan 07. Now the agreement looks bone fide enough, but what do you think I should do with it now it's 6 mnths late? I know they will need a court order to enforce it but what actually happens when it's a dca?

[m55dlc]

I'm kind of hoping that (as I'm in the same boat - waiting for a DCA to supply an agreement) they are still required to do so (i.e. comply with the 12 + 1 month) and still require a court order due to the breach. I'm sure someone with more clout than myself will concur?

[InKogneeToh]

Hi Peter

 

The OFT doc. has an explanation of definitions of some terms in the Act and agreement is defined as:

 

the agreement is the document embodying the credit agreement.

 

‘Embodying’ is defined in the Consumer Credit Act:

 

‘A document embodies a provision if the provision is set

out either in the document itself or in another document

referred to in it’.

 

Regards, Pam

[Smoothy]

I just had a copy of a credit Agreement duly signed by both parties ( T&C's omitted) but referred to as 'on the back'

 

Surely as the T&C's are referred to in the document, they make up the executed agreement and the fact the have been omitted means they have not yet complied with your request?!

Somebody correct me!!Please!

[Guest The Terminator]

Enforcement of certain regulated agreements and securities

127 Enforcement orders in cases of infringement

(1) In the case of an application for an enforcement order under—

(a) section 65(1) (improperly executed agreements), or

(b) section 105(7)(a) or (b) (improperly executed security instruments), or

© section 111(2) (failure to serve copy of notice on surety), or

(d) section 124(1) or (2) (taking of negotiable instrument in contravention of section 123),

the court shall dismiss the application if, but (subject to subsections (3) and (4)) only if, it considers it just to do so having regard to—

(i) prejudice caused to any person by the contravention in question, and the degree of culpability for it; and

(ii) the powers conferred on the court by subsection (2) and sections 135 and 136.

(2) If it appears to the court just to do so, it may in an enforcement order reduce or discharge any sum payable by the debtor or hirer, or any surety, so as to compensate him for prejudice suffered as a result of the contravention in question.

(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

(4) The court shall not make an enforcement order under section 65(1) in the case of a cancellable agreement if—

(a) a provision of section 62 or 63 was not complied with, and the creditor or owner did not give a copy of the executed agreement, and of any other document referred to in it, to the debtor or hirer before the commencement of the proceedings in which the order is sought, or

(b) section 64(1) was not complied with.

(5) Where an enforcement order is made in a case to which subsection (3) applies, the order may direct that the regulated agreement is to have effect as if it did not include a term omitted from the document signed by the debtor or hirer.

Now this is what really makes an agreement unenforceable.If you read the parts in blue that will answer many of the questions.But that is not all there is also a twist here as well but in our favour.This section is not compatible with the HRA and quoting from Wilson vs First County Trust,

For those reasons we are satisfied that (subject to the application of section 3(1) of the 1998 Act) the provisions in section 127(3) of the 1974 Act are incompatible with the rights guaranteed by article 6(1) of the Convention and article 1 of the First Protocol.

The submission, as we understand it, is that, notwithstanding that Parliament may have intended that the debtor should not have to pay in certain circumstances, a finding that that intention is incompatible with Convention rights would enable the creditor to say that that consequence is unjust

Conclusion

We invite further submissions from the Secretary of State on the form of the declaration of incompatibility to be made. It may be of assistance, however, if we indicate our present view. We think that it would be appropriate to declare that, having regard to the terms prescribed by regulation 6(1) of, and schedule 6 to, the 1983 Regulations (S.I. 1983/1553), the provisions of section 127(3) of the 1974 Act, in so far as they prevent the court from making an enforcement order under section 65(1) of that Act unless a document containing all the prescribed terms of the agreement has been signed by the debtor or hirer, are incompatible with the rights guaranteed to the creditor or hirer by article 6(1) of the Convention and article 1 of the First Protocol.

 

We allow the appeal against the order made on 24 September 1999 for the reasons given in our interim judgments of 23 November 2000.

 

The story continues

[InKogneeToh]

As far as s59 is concerned, I don't think that would apply to an application form for a credit card in the sense that you are suggesting.

 

An application for a card involves the issuer doing a credit check before accepting the application but in my opinion this is no different than a scenario where a customer signs an agreement in a trader's store (for example) and the agreement is then sent to a separate finance provider. The lender will still do a credit check etc. so the agreement will still be dependant on the lender's acceptance.

 

The main issue I see with application forms is whether or not they contain (or refer to) all of the prescribed terms and whether copies have been given in accordance with s63:

 

63 Duty to supply copy of executed agreement

(1) If the unexecuted agreement is presented personally to the debtor or hirer for his signature, and on the occasion when he signs it the document becomes an executed agreement, a copy of the executed agreement, and of any other document referred to in it, must be there and then delivered to him.

(2) A copy of the executed agreement, and of any other document referred to in it, must be given to the debtor or hirer within the seven days following the making of the agreement unless—

(a) subsection (1) applies, or

(b) the unexecuted agreement was sent to the debtor or hirer for his signature and, on the occasion of his signing it, the document became an executed agreement.

 

I can't remember if any of my application forms where pre-signed by the creditor or not so I'm not sure which part of this applies.

 

Regards, Pam

[InKogneeToh]

 

Conclusion

 

We invite further submissions from the Secretary of State on the form of the declaration of incompatibility to be made. It may be of assistance, however, if we indicate our present view. We think that it would be appropriate to declare that, having regard to the terms prescribed by regulation 6(1) of, and schedule 6 to, the 1983 Regulations (S.I. 1983/1553), the provisions of section 127(3) of the 1974 Act, in so far as they prevent the court from making an enforcement order under section 65(1) of that Act unless a document containing all the prescribed terms of the agreement has been signed by the debtor or hirer, are incompatible with the rights guaranteed to the creditor or hirer by article 6(1) of the Convention and article 1 of the First Protocol.

 

 

 

We allow the appeal against the order made on 24 September 1999 for the reasons given in our interim judgments of 23 November 2000.

 

The story continues

 

Hi Terminator

 

The judgement you have just quoted is that of the Court of Appeal in relation to Wilson v FCT. This was later overturned by the House of Lords where it was declared that the relevant sections of the Act are not incompatible to the HRA and remain in force at present. This is why the new CCA 2006 has repealed some of s127 because it was nevertheless felt to be unjust in some circumstances. This comes into effect in 2008 I believe.

 

Regards, Pam

[Guest The Terminator]

Hi Terminator

 

The judgement you have just quoted is that of the Court of Appeal in relation to Wilson v FCT. This was later overturned by the House of Lords where it was declared that the relevant sections of the Act are not incompatible to the HRA and remain in force at present. This is why the new CCA 2006 has repealed some of s127 because it was nevertheless felt to be unjust in some circumstances. This comes into effect in 2008 I believe.

 

Regards, Pam

 

Hi Pam

 

I'm aware that it was overturned by the House of Lords in 2003 on appeal by the SOS.It was brought back to the COA in 2005 and again they allowed Wilson's appeal.I personally think that Lords decesion was wrong because it would have started an uprising similar to what's happening now.Taking out the HRA s127 CCA can still render an agreement unenforceable if the act hasn't been followed and this was stated by the SOS in the Lords Appeal.

 

Regards

 

The Terminator

[Peterbard]

I know they will need a court order to enforce it but what actually happens when it's a dca?

 

Hi

I Have heard the above a few times perhaps it is right but

could someone point me to the part of the cca that says you need a court order to enforce a late(44 Days) cca request. As far as i can see once it has been produced the default is lifted and the agreement stands.I know that they have commited an offence but isn't that a different issue?

 

Peter

[Peterbard]

This comes into effect in 2008 I believe.

 

Hi Pam

 

April 6th 2007 but this does not apply to any agreements made before this date.

 

Peter

[maybelline]

The Terminator didn't state it was unenforceable just unexecuted.

 

(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)

(signing of agreements) was not complied with unless a document (whether or not in the

prescribed form and complying with regulations under section 60(1)) itself containing all the

prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the

prescribed manner).

 

This reads to me that if a document has all the terms included and i have signed it then a court can enfiorce it without the creditors signature.

 

I have a copy of an agreement not properly executed (they did not sign) but I (the debtor) have signed.

[Peterbard]

Hi

An application for a card involves the issuer doing a credit check before accepting the application but in my opinion this is no different than a scenario where a customer signs an agreement in a trader's store (for example) and the agreement is then sent to a separate finance provider. The lender will still do a credit check etc. so the agreement will still be dependant on the lender's acceptance.

The difference is th creditor does the credit check then you sign at the momoent you sign it, it becomes executed The credit card scenario is the wrong way round the agreement is not executed until or if the credit is aproved.

As far as in store agreements are concerned the signature has to be the last thing on the agreement. Section 55 cca. It may be differnt for distance agreements.

 

Peter

[InKogneeToh]

 

The difference is th creditor does the credit check then you sign at the momoent you sign it, it becomes executed

 

I have signed agreements on trade premises in the past where the agreement was not pre-signed by the creditor. It was then sent to the credit provider for approval who signed it after me. This is when those agreements became 'executed' which is similar to the credit card application process.

 

Regards, Pam

[Guest Battleaxe]

Peter,

 

Given what you have said, but we signed, sent it back but at no stage has the creditor signed it and we never got a copy back until I did the SAR. There is no signature of the creditor on the credit card agreement.

 

Is it unexecuted?

[InKogneeToh]

 

I'm aware that it was overturned by the House of Lords in 2003 on appeal by the SOS.It was brought back to the COA in 2005 and again they allowed Wilson's appeal.I personally think that Lords decesion was wrong because it would have started an uprising similar to what's happening now.

 

Hi again

 

I think you may have got your wires crossed here a little.

 

The COA initially allowed Wilson's appeal but made a declaration that the part of the CCA that had allowed her to win was incompatible with the Human Rights of the Lender because a small technicality had taken all his rights under the agreement away.

 

This then went to the HL in 2003 who declared that the requirements of the CCA did not impinge on the lender's human rights and that the CCA regulations (s127, s61) that had protected Mrs Wilson were necessary (albeit harsh on the lender) in order to give borrower's protection against unscrupulous lenders.

 

The HL judgement was the end of the matter and was in favour of the borrower.

 

The COA cannot override a HL decision.

 

However, the repeal of some of s127 in the 2006 version of the CCA has now removed that perceived 'harshness' to the lender and has given the court's the power to allow (in some circumstances) enforcement of an improperly executed agreement.

 

The HL judgement did however bind the courts to interpreting the legislation within the main objective of the CCA, which is the protection of borrowers not the lenders.

 

Regards, Pam

[InKogneeToh]

Surely as the T&C's are referred to in the document, they make up the executed agreement and the fact the have been omitted means they have not yet complied with your request?!

 

Hi

 

If the T&Cs are a separate document but make up part of the agreement then they must be sent as well. This should be the T&Cs that were in force at the time the agreement was executed.

 

Regards, Pam

[andrew1]

Hi

 

If the T&Cs are a separate document but make up part of the agreement then they must be sent as well. This should be the T&Cs that were in force at the time the agreement was executed.

 

Regards, Pam

 

They were on the back of the original customer copy we had at the time ( unsigned)( It was arranged over the phone) but I only got a photocopy of the document face not the t & C's on the back.

[InKogneeToh]

Well the CCA states in s78

 

78 Duty to give information to debtor under running-account credit agreement

 

(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 £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it.

 

So if the agreement refers to T&Cs then they are required to send that part too!

 

Regards, Pam

[ladybird17]

I wonder if this applies to internet only accounts - because they have their T & C's on the site, so could they just "alert" you to the site in the agreement?

[un1boy]

I wonder if this applies to internet only accounts - because they have their T & C's on the site, so could they just "alert" you to the site in the agreement?

 

I'm sure that you should apply online then they should send you the stuff to sign with a copy of the terms and conditions, not sure though!

[Peterbard]

hi

The agreement is enforceable albeit with a court order with only the debtors signature and the prescribed term. Section 127(3)

[InKogneeToh]

hi

The agreement is enforceable albeit with a court order with only the debtors signature and the prescribed term. Section 127(3)

 

 

Yes, this is yet another grey area that needs clarifying!

 

Regards, Pam

[Guest The Terminator]

Hi again

 

I think you may have got your wires crossed here a little.

 

The COA initially allowed Wilson's appeal but made a declaration that the part of the CCA that had allowed her to win was incompatible with the Human Rights of the Lender because a small technicality had taken all his rights under the agreement away.

 

This then went to the HL in 2003 who declared that the requirements of the CCA did not impinge on the lender's human rights and that the CCA regulations (s127, s61) that had protected Mrs Wilson were necessary (albeit harsh on the lender) in order to give borrower's protection against unscrupulous lenders.

 

The HL judgement was the end of the matter and was in favour of the borrower.

 

The COA cannot override a HL decision.

 

However, the repeal of some of s127 in the 2006 version of the CCA has now removed that perceived 'harshness' to the lender and has given the court's the power to allow (in some circumstances) enforcement of an improperly executed agreement.

 

The HL judgement did however bind the courts to interpreting the legislation within the main objective of the CCA, which is the protection of borrowers not the lenders.

 

Regards, Pam

 

Thanks for correcting me there this is what happen's when you have four windows open at once

[Peterbard]

I have signed agreements on trade premises in the past where the agreement was not pre-signed by the creditor. It was then sent to the credit provider for approval who signed it after me. This is when those agreements became 'executed' which is similar to the credit card application process.

Section 55

55 Disclosure of information

 

(1) Regulations may require specified information to be disclosed in the

prescribed manner to the debtor or hirer before a regulated agreement is made.

 

(2) A regulated agreement is not properly executed unless regulations under

subsection (1) were complied with before the making of the agreement

 

Makes sense realy otherwise they could legaly alter the document after you had signed it.

This is also mentioned in the oft regs quoted earlier

Regards

Peter

 

Peter