Cap1 & CCA return

[Dave777]

I am simply a Consumer excerising my Rights and...

was reliably advised to report MS to TS who have been investigating my complaint about them which included CCA S78 (1) and mis-selling of PPI.

TS are the enforcement officers that handle this type of Offence.

As you are aware, my local TS Fair Trading Officer informed me via email and on the telephone that the alleged offence committed is a Criminal Offence.

As previoulsy stated, I cannot imagine that a TS local government official would advise thus, if that information was not correct...at the moment I am inclined to believe the TS officer, that is until I am informed as to the contrary!

 

Personally, I do not give a fig as to whether the offence is criminal or otherwise, as I will most likely end up taking a civil action against the bank in any case.

 

I have been a member of BAG/CAG for some considerable time, I have had an immense amount of assistance from this wonderful action group. Because I am mindful of the responsibility when adding a thought, or fact to a post, I do not, would not make a comment about an issue, unless it was based upon information obtained from a reliable source.

 

Guys, please do not think that I am being prickly...just putting the record straight. Hopefully, the info will assist others.

 

Lots of LOVE

 

Angry Cat

 

Hi Angry Cat. Would you please do me the privilege of PMing me the contact details of the officer that gave you this advice. I am in the possession of some written confirmation from insured professionals that conflicts with TS's opinions. I think that this may result in some interesting reading.

[elsinore]

It's very quiet on here today - are you all holiday:(

 

Pam, I would like to revisit your idea of organising some kind of joint complaint to TS. I've been thinking about this today, and if they're the enforcement officers then they must have some duty to at least listen to us?

 

It's extremely frustrating that we can get to the stage where CCP's have committed an offence - over & over again -and that's the end of the story. Doesn't seem right to me.

 

Anyone else want to add to this?

 

Yeah, on holiday, but hooked on CAG! Sad, or what!

 

I think one of the problems, ladybird, is the way TS is structured. Each of us is only supposed to complain to our local TS, no matter where the subject of our complaint is located. TS, in turn, are only obliged to consider complaints from within their own area. So, if 20 of us wrote and complained about one CCP, those complaints could conceivably be received at 20 different offices.

 

However, suppose each of us copied our complaint to the TS office covering the area in which the CCP's head office was located? Maybe that TS office would sit up and take notice when they recieved 20 (or more?) complaints about the same CCP.

 

Somewhere, recently, I've read posts by an ex-TS employee. I'll see if I can find him/her and ask for an opinion.

 

Happy Easter:-)

 

Els

[ian1969uk]

I sent CCA to Tesco Visa back on 12FEB07.

 

Today I received a letter from a Senior CRA Officer that states

 

"As I am unable to provide you with a copy agreement at the date the card agreement was made and a copy of the current terms of the card agreement, as an exceptional matter and in line with the Consumer Credit Act requirements, the current balance of £X has been discharged and is no longer obligatory."

 

I read this as we are writing off the balance? any comments

 

Yep, I would think the same.

 

Result!

[angela1606]

hi dave the calculations are for me and my troublesome credit agreement i think im just going to have to wait and seewhat the s.a.r brings me as to get to the same figures as they have it is actually 42.61588% doesnt matter how many times i look at it lol and ive used the dualcal from the oft website and they get it at that apr as well so we will see what they have on their records as to get to 48.5% it has to be 3.35% per month which means that i will be paying more than the state on the agreement lol am getting v confused so am going to leave it till they comply to that but i would love some feedback as to if you guys think the same as me with the apr

 

ang xxx

[davefirewalker]

still looking at it

 

Dave

[elsinore]

 

Somewhere, recently, I've read posts by an ex-TS employee. I'll see if I can find him/her and ask for an opinion.

 

It's SteveH2508, on this thread!

 

Els

[SteveH2508]

It's SteveH2508, on this thread!

 

Els

 

You rang?

 

This link LACORS - Static Pages

explains how the Home Authority Principle works.

Basically, from a consumer's point of view, you complain to your local TS, they investigate your complaint. If there is an issue which the Home Authority should know about or has dealt with in the past, they should be notified.

The Home Authority would be the one who has issued advice and guidance on matters legal to the trader. I did give advice on the form and content of agreements in the past (15 years ago!), however it was rare to unheard of for advice to be given regarding admin procedures. Any advice given would have been given with a disclaimer that 'only the courts could decide'.

 

There is a reference section on the LACORS website LACORS - Publication Search . (This one is for Consumer Credit). I PMed the link to BF a few days ago to put it up in the Statutes Library but I guess he is rather busy!

 

(All green, rep, clicky thingies gratefully received!)

[rinkydinkydoo]

Way to go, thats what we all want dropping through our letter box. Keep smiling, be happy in the knowledge that you did it.YIPPEEEE:D

[Dave777]

You rang?

 

This link LACORS - Static Pages

explains how the Home Authority Principle works.

Basically, from a consumer's point of view, you complain to your local TS, they investigate your complaint. If there is an issue which the Home Authority should know about or has dealt with in the past, they should be notified.

The Home Authority would be the one who has issued advice and guidance on matters legal to the trader. I did give advice on the form and content of agreements in the past (15 years ago!), however it was rare to unheard of for advice to be given regarding admin procedures. Any advice given would have been given with a disclaimer that 'only the courts could decide'.

 

There is a reference section on the LACORS website LACORS - Publication Search . (This one is for Consumer Credit). I PMed the link to BF a few days ago to put it up in the Statutes Library but I guess he is rather busy!

 

(All green, rep, clicky thingies gratefully received!)

 

This is interesting reading Steve, thanks.

 

What I find particularly interesting and relevant to my own cause is the section regarding the filing of unenforceable agreements on credit reference files.

 

Surely if their is no contract/agreement in place, nor is there any consent/permission given by the data subject to record/process his data, what part of the law says that they can?

 

They wouldn't be able to rely on any conditions of Schedule 2 of the DPA.

Directive 95/46/EC Article 2 gives the exact meaning of a data subject's consent.

 

I have already stated my intent to bring legal action against the company who have been recording my data without any consent and while still in default with my request for a credit agreement. Due to the fact one doesn't exist.

 

It seems by the ICO's reply, that they are unsure about this situation.

[Peterbard]

Hi

 

It refers to this:

 

Duty to supply copies of documents not to apply to certain kinds of documents

 

11. A duty imposed by the Act to supply a copy of a document referred to in an unexecuted agreement or an executed agreement shall not apply to a document of any of the following kinds:-

(a) a document obtained by the debtor or hirer from a person other than the creditor or owner and supplied by the debtor or hirer to the creditor or owner;

(b) a document, not being a security, which constitutes, evidences or relates to title to property of any kind or relates to the rights or duties of the debtor or hirer in respect of such property;

© a document kept, or to be kept, by the debtor or hirer under the terms of, or in consequence of, the agreement;

(d) an official or certified copy of any entry in a register maintained by, or on behalf of, a government department or other body charged with a public administrative or statutory function and open to public inspection (whether in the United Kingdom or elsewhere);

(e) an enactment, other than Schedule 3 to the Conveyancing and Feudal Reform (Scotland) Act 1 970(a);

(f) a document, other than an enactment, published by, or on behalf of, a government department or other body charged with a public administrative or statutory function (whether in the United Kingdom or elsewhere); or

(g) in the case of a modifying agreement, a document embodying the terms of the earlier agreement other than a document a copy of which is required to be given under section 77(1), 78(1), 79(1), 85(1), 105(5), 107(1), 108(1) or 109(1) of the Act.

 

Regards, Pam

Hi Pam

 

Thanks i new that there would be a list of the data refered to somewhere in the regulations.

I remember M55 having a query about Direct debit Mandates mentioned in agrement not being returned on a section 77 request and wondered if the clause pointed out by term was the reason but i cannot spot it in the list unless you can .

 

 

Regards

Peter

Peter

[Peterbard]

How did you know about the pins??!!

 

 

 

Don't mention the PINS!!!

[ladybird17]

no pins allowed on public holidays:D

[Peterbard]

Well AC that is great news, thank you!

 

Will you do me a favour and PM me the info they give you re it being a criminal offence as soon as you get it? That way I call my dad and the other sergeant and let them know.

 

If it is a criminal offence then the Police HAVE to investigate it......

Hi Uni

 

Just catching up yes it is a criminal offence and yes the police have to investigate but unfortunately they are not "required" to refer it to the cps.

 

Best

regards

Peter

[ladybird17]

I'm getting to you before anyone else does Peter otherwise you will get grief, and pre-empting the others....!!

 

Where is it documented that it is a "CRIMINAL" offence?

[Peterbard]

HI

 

I have ust read somewhere a posting about SI and stating that they cannot override legislation. As a point of interest there a many types of SI most have been through both houses of parliament and been approved and granted Royual accent before they are issued. There is one recent version that can indeed overturn a section of legislation and recieved quite a bit of coverage in the press when it was passed. It was dubbed the Henry the V111 SI presumably because of the way he altered the law every time he wanted to swap one of his wives(My Hero).

Here's a snippet

 

 

Statutory Instruments (SIs) come in three forms: those passed by affirmative resolution procedure, where they must be approved by the two Houses of Parliament before they can become law, and those passed by negative resolution procedure, where they are merely laid before Parliament, with Parliament able to annul them if it desires. The third form is those which are not laid before Parliament, but which Parliament can annul, usually within 40 days. The section of the Act of Parliament that grants the power will usually state whether the power is to be exercised by Statutory Instrument and which (if any) parliamentary procedure is to apply. Generally, if it is a potentially contentious power, the affirmative route will be used. A new, 'super-affirmative' procedure has been proposed for certain Statutory Instruments that could be made under the Legislative and Regulatory Reform Act 2006.

 

Regards

Peter

[Peterbard]

I'm getting to you before anyone else does Peter otherwise you will get grief, and pre-empting the others....!!

 

Where is it documented that it is a "CRIMINAL" offence?

 

HI

In the posting above yours L

 

Love Peter

 

serious answer to follow

[SteveH2508]

I'm getting to you before anyone else does Peter otherwise you will get grief, and pre-empting the others....!!

 

Where is it documented that it is a "CRIMINAL" offence?

 

Section 167 of the Act which implements/refers to Schedule 1 of the Act.

 

167 Penalties

(1) An offence under a provision of this Act specified in column 1 of Schedule 1 is triable in the mode or modes indicated in column 3, and on conviction is punishable as indicated in column 4 (where a period of time indicates the maximum term of imprisonment, and a monetary amount indicates the maximum fine, for the offence in question).

(2) A person who contravenes any regulations made under section 44, 52, 53, or 112, or made under section 26 by virtue of section 54, commits an offence.

[Peterbard]

HI

 

Is ther any such thing a civil Offence??

 

Except for in liable cases of course

 

Peter

[davefirewalker]

Not too sure on this ...I am sure that someone will correct me.

"civil" offences seem to come under TORT law. the most common being the tort of tresspass.

 

see link Tort - Wikipedia, the free encyclopedia

 

and also

 

Theories of Tort Law

for the more advanced version

 

 

Dave

[Dave777]

Perhaps a degree of clarification is required. This is not a offence of the type for which the police may be contacted, as previously suggested.

 

If the non compliance is an offence then it so because the 1974 Act makes it so. The fact that the penalty is determined by reference the Criminal Justice Act, on its own, does not make it a criminal offence.

 

As you have made it to section 167 of the 1974 Act, why not go a little further and look at section 170.

 

The link below provides some discussion on a similar point but is not related to the specific sections raised here.

 

http://www.publications.parliament.uk/pa/jt200506/jtselect/jtrights/48/4805.htm

[InKogneeToh]

no pins allowed on public holidays:D

Spoil sport!! :D

[InKogneeToh]

Perhaps a degree of clarification is required. This is not a offence of the type for which the police may be contacted, as previously suggested.

 

If the non compliance is an offence then it so because the 1974 Act makes it so. The fact that the penalty is determined by reference the Criminal Justice Act, on its own, does not make it a criminal offence.

 

As you have made it to section 167 of the 1974 Act, why not go a little further and look at section 170.

 

The link below provides some discussion on a similar point but is not related to the specific sections raised here.

 

http://www.publications.parliament.uk/pa/jt200506/jtselect/jtrights/48/4805.htm

 

Hi

 

The offences specified in the Act are 'summary offences' which are explained on a CAB website as follows:

 

Criminal cases in the magistrates’ court

 

All criminal cases start in the magistrates' court.

Some cases begin in the magistrates' court and then automatically go to the Crown Court for trial by jury.

Other cases are started and finished in the magistrates' court. These are where the defendant is not entitled to trial by jury. They are known as summary offences. Summary offences involve a maximum penalty of six months imprisonment and/or a fine of up to £5,000 (£2,000 in Northern Ireland).

 

 

 

Therefore they are criminal offences but not triable by jury.

 

 

 

Also, s170 of the CCA simply states that there are no civil or criminal penalties for any breaches of the Act EXCEPT for those expressly provided for - e.g. s77/78 s85 etc. These offences are expressly provided for by the wording of the relevant sections and by the S.I.'s that support them.

 

 

 

Regards, Pam

[InKogneeToh]

It's very quiet on here today - are you all holiday:(

 

Pam, I would like to revisit your idea of organising some kind of joint complaint to TS. I've been thinking about this today, and if they're the enforcement officers then they must have some duty to at least listen to us?

 

It's extremely frustrating that we can get to the stage where CCP's have committed an offence - over & over again -and that's the end of the story. Doesn't seem right to me.

 

Anyone else want to add to this?

 

Hi LB

 

My suggestion was actually a series of collective complaints (per creditor/DCA) to the OFT, because TS appear to be impotent!

 

The OFT does not look at single cases but will have to take notice of multiple complaints about any particular creditor as part of their duty to monitor the creditor's fitness to hold a credit licence. As mentioned before, I personally don't (as yet!) have any specific complaints but for the many of you that do, it's got to be worth a try.

 

Regards, Pam

[Peterbard]

Hi

 

The offences specified in the Act are 'summary offences' which are explained on a CAB website as follows:

 

Criminal cases in the magistrates’ court

 

All criminal cases start in the magistrates' court.

Some cases begin in the magistrates' court and then automatically go to the Crown Court for trial by jury.

Other cases are started and finished in the magistrates' court. These are where the defendant is not entitled to trial by jury. They are known as summary offences. Summary offences involve a maximum penalty of six months imprisonment and/or a fine of up to £5,000 (£2,000 in Northern Ireland).

 

 

 

Therefore they are criminal offences but not triable by jury.

 

 

 

Also, s170 of the CCA simply states that there are no civil or criminal penalties for any breaches of the Act EXCEPT for those expressly provided for - e.g. s77/78 s85 etc. These offences are expressly provided for by the wording of the relevant sections and by the S.I.'s that support them.

 

 

 

Regards, Pam

 

HI

Couldn't have put it better mysielf (well obviously i could but it's a holiday so i will be nice).

Except to say that Civil proceedings are about private rights and not about offences against the state.

So in this the secton 77 offence is a breach of the 1974 act which makes it a criminal offence( The crown verses Joe bloggs ), the failure to provide the documents initially is a breach of contract (Joe blogs verses some firm or other) which makes it a civil default. why because one is civil and one is criminal. And the act itself says which is which.

 

I take it all back Pam you did put it better

 

Peter

[un1boy]

No offence taken un1boy:-) :-)

 

Good!