Cap1 & CCA return

[un1boy]

Thought auto dialers were against OFT guidelines?

 

I thought trying to enforce unenforcable credit agreements was against OFT guidelines?

[angry cat]

Suscribing again.

 

I have just received the following email from TS today 22/05/07 which is self explanatory! the email relates to this:-

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-795373.html

 

plus the following post 6617 on page 331

http://www.consumeractiongroup.co.uk/forum/general/33174-consumer-credit-act-agreements-331.html?highlight=angry+cat#post798744

 

Dear AC

 

Re; Morgan Stanley

 

As discussed, please find below a written explanation as to my opinion regarding Sec 7 of the Consumer Credit Cancellation Notices and Copies of Documents Regulations 1983. I hope this will clarify things for you.

 

 

 

In respect of regulation 7 which states;

 

7(1) Where an agreement has been varied in accordance with section 82(1) of the Act, every copy of the executed agreement given to a debtor, hirer or surety under any provision of the Act other than section 85(1) shall include either -

 

a) an easily legible copy of the latest notice of variation given in accordance with section 82(1) of the Act relating to each discrete term of the agreement which has been varied;

 

or

 

b) an easily legible statement of the terms of the agreement as varied in accordance with section 82(1) of the Act.

 

We are of the opinion that reg 7 refers to a copy of the executed agreement and that sub sections a) or b) are in addition to this and not any alternative to sending the actual executed agreement.

 

In respect of regulation 8 which states;

 

Every copy of an executed credit token agreement given to the debtor under section 85(1) of the Act where the agreement may be varied under a power contained in it shall comprise an easily legible statement of the current terms of the agreement (whether or not varied in accordance with section 82(1) of the Act).

 

Reg 7 does appear to be consistent with reg 8, but in our view again requiring that both the executed agreement plus any amendment docs are included.

 

 

 

As there appears to be no case law which I am aware of to offer specific guidance in this area, the information above is an opinion based on our interpretation of the regulations.

 

I have called Morgan Stanley again to find out when they will be sending a letter out to you, explaining their view of the Regs. Unfortunately I had to leave a message as Chincia Biondi was not available.

 

When I receive a call back from them I will let you know what they have said.

 

Trading Standards".

 

Love AC

[jalex_uk]

In respect of regulation 8 which states;

 

Every copy of an executed credit token agreement given to the debtor under section 85(1) of the Act where the agreement may be varied under a power contained in it shall comprise an easily legible statement of the current terms of the agreement (whether or not varied in accordance with section 82(1) of the Act).

 

Reg 7 does appear to be consistent with reg 8, but in our view again requiring that both the executed agreement plus any amendment docs are included.

 

While I love their opinion, I have to say that to me, Reg 8 seems vastly different from Reg 7, and seems to actively suggest that ONLY a copy of the CURRENT executed agreement AS VARIED (or not) need be supplied, and NOT the "original executed agreement" + variations/current agreement as required in Reg 7.

 

Curious.

 

Any chance of a scan of the whole letter (with your personal info blacked out of course )?

[un1boy]

Suscribing again.

 

I have just received the following email from TS today 22/05/07 which is self explanatory! the email relates to this:-

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-795373.html

 

plus the following post 6617 on page 331

http://www.consumeractiongroup.co.uk/forum/general/33174-consumer-credit-act-agreements-331.html?highlight=angry+cat#post798744

 

Dear AC

 

Re; Morgan Stanley

 

As discussed, please find below a written explanation as to my opinion regarding Sec 7 of the Consumer Credit Cancellation Notices and Copies of Documents Regulations 1983. I hope this will clarify things for you.

 

 

 

In respect of regulation 7 which states;

 

7(1) Where an agreement has been varied in accordance with section 82(1) of the Act, every copy of the executed agreement given to a debtor, hirer or surety under any provision of the Act other than section 85(1) shall include either -

 

a) an easily legible copy of the latest notice of variation given in accordance with section 82(1) of the Act relating to each discrete term of the agreement which has been varied;

 

or

 

b) an easily legible statement of the terms of the agreement as varied in accordance with section 82(1) of the Act.

 

We are of the opinion that reg 7 refers to a copy of the executed agreement and that sub sections a) or b) are in addition to this and not any alternative to sending the actual executed agreement.

 

In respect of regulation 8 which states;

 

Every copy of an executed credit token agreement given to the debtor under section 85(1) of the Act where the agreement may be varied under a power contained in it shall comprise an easily legible statement of the current terms of the agreement (whether or not varied in accordance with section 82(1) of the Act).

 

Reg 7 does appear to be consistent with reg 8, but in our view again requiring that both the executed agreement plus any amendment docs are included.

 

 

 

As there appears to be no case law which I am aware of to offer specific guidance in this area, the information above is an opinion based on our interpretation of the regulations.

 

I have called Morgan Stanley again to find out when they will be sending a letter out to you, explaining their view of the Regs. Unfortunately I had to leave a message as Chincia Biondi was not available.

 

When I receive a call back from them I will let you know what they have said.

 

Trading Standards".

 

Love AC

 

Glad you're back AC!

 

I am very confused by this - is all this in response to a sec 78 request you made?

 

Why have they brought sec 7 and 8 of the regs into it?

[angry cat]

While I love their opinion

 

Curious.

 

Any chance of a scan of the whole letter (with your personal info blacked out of course )?

 

jalex, I have copied & pasted the email exactly in the above post.

 

I have been waiting for the TS opinion for some time but in the meantime MS remain silent.

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-798744.html

 

You will see from the link that MS consider that they have complied due to reg3, TS do not agree due to reg7.

 

However, I know that MS do not have a copy of the true executed agreement, what they sent me was a 'Frankenstein' crisp white brand new mailer.

 

It gets curiouser & curiouser!?

 

Love AC

[un1boy]

jalex, I have copied & pasted the email exactly in the above post.

 

I have been waiting for the TS opinion for some time but in the meantime MS remain silent.

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-798744.html

 

You will see from the link that MS consider that they have complied due to reg3, TS do not agree due to reg7.

 

However, I know that MS do not have a copy of the true executed agreement, what they sent me was a 'Frankenstein' crisp white brand new mailer.

 

It gets curiouser & curiouser!?

 

Love AC

 

Does it bloody matter - they haven't complied due to Sec 78 which takes precidence over the regs anyway!!

 

Sheesh!!!

 

Why do these regulatory bodies need us to tell them what the law is?

[angry cat]

Glad you're back AC!

 

I am very confused by this - is all this in response to a sec 78 request you made?

 

Why have they brought sec 7 and 8 of the regs into it?

 

 

Thanks un1boy

 

I reported MS to TS some months ago as they had not complied iwth my S78 CCA request, by thet time they had already committed a criminal offence.

 

Then all of a sudden MS sent me the above generic mailer and then informed TS that they had complied due to them sending the doc. MS are of the opinion that because of the 1983 regs reg 3 that they had complied.

 

TS informed me that they do not agree with MS due to the 1983 regs reg 7.

 

I asked my fair trading officer to email me the TS opinion that differs to MS and that it what I have posted above.

 

Love AC

[iconoclash]

Hiya - wow, what a web (spiders) - why on earth are TS asking these guys for their interpretation, so they say we think we're fine on this stuff and TS say...........

[angry cat]

Does it bloody matter - they haven't complied due to Sec 78 which takes precidence over the regs anyway!!

 

Sheesh!!!

 

Why do these regulatory bodies need us to tell them what the law is?

 

I think it is because of this-

Trading Standards

"As there appears to be no case law which I am aware of to offer specific guidance in this area, the information above is an opinion based on our interpretation of the regulations".

 

All along I have been told that TS may not prosecute due to:

Lack of funds, or

No established case law and remember that because the offence is criminal any action would be in a Magistrates Court!

 

So, at the end of the day, after reporting the offence to the enforcement agents TS months ago, I am right back were I started.

Any action against MS will have to brought by liitle ole me.

One thing for sure though they do not have the alleged true executed agreement.

 

AC

[pford]

So, at the end of the day, after reporting the offence to the enforcement agents TS months ago, I am right back were I started.

Any action against MS will have to brought by liitle ole me.

One thing for sure though they do not have the alleged true executed agreement.

 

AC

been told the same of my TS as well.

[Sparkie1723]

HOw can ever be any case law if the B%"**!¬ TS don't take any action??

They do my head in, jobs for the boys ...as long as they don't have to tax their brains & get off their backsides and do what they are paid to do help the consumer and general public

 

sparkie1723

[pford]

HOw can ever be any case law if the B%"**!¬ TS don't take any action??

They do my head in, jobs for the boys ...as long as they don't have to tax their brains & get off their backsides and do what they are paid to do help the consumer and general public

 

sparkie1723

ye but then they woun't be able to go round the car boot looking for dodgy dvds and all that stuth. do a bit of shopping at the same time erm

[Cornucopia]

jalex, I have copied & pasted the email exactly in the above post.

 

I have been waiting for the TS opinion for some time but in the meantime MS remain silent.

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-798744.html

 

You will see from the link that MS consider that they have complied due to reg3, TS do not agree due to reg7.

 

However, I know that MS do not have a copy of the true executed agreement, what they sent me was a 'Frankenstein' crisp white brand new mailer.

 

It gets curiouser & curiouser!?

 

Love AC

 

Hi AC, sorry I haven't been in touch for a while, will catch up later in week when I am at home!

 

This is bizarre with this MS thing, you know that I have a Goldfish/MS problem, so far, they have sent me 457, er yes, four hundred and fifty seven crisp new sequentially numbered and dated credit agreements. Therefore, are TS going to tell me that this is OK, well they can bog off if they do, it is not OK, you know it's not OK and so does everybody else. This does not conform with a true copy of your executed agreement.

 

I hope you've defaulted them!!!! xxx

[TideTurner]

I would let TS know that you are keeping a full record of all occurences. Also, that the ICO and OFT have been focussed and appear to have received more staff!

 

Get them to LOOK AT IT AGAIN.

 

Tide

[lookinforinfo]

I am surprised that TS think there is no case law to support our actions re

breaches of the delivering of the executed agreement in response to a CCA

request.

 

Under s77 and 78, the Act states quite clearly that the creditor must supply the debtor within the specified time with a copy of the "Executed Agreement".

 

If we then go to s189 [definitions] under executed agreement it states it is

"a document signed by or on behalf of the parties, embodying the terms of

a regulated agreement.

For further clarification s61 [1] assists

A regulated agreement is not properly executed unless

(a) a document in the prescribed form itself containing all the prescribed terms

and conforming to regulations under section 60(1) is signed in the prescribed

manner both by the debtor or hirer and by or on behalf of the creditor or owner,

and

(b) the document embodies all the terms of the agreement, other than implied terms,

 

In addition s65[1] states

An improperly-executed regulated agreement is enforceable against the

debtor or hirer on an order of the court only.

 

And then s127 [3]carries on to state

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).

 

 

Furthermore, Lord Justice Chadwick and Lord Justice Rix in Wilson v First County Trust in the Royal Court of Justice Strand May 2nd 2001 had this to say

 

Section 127(1) of the 1974 Act is subject to the restrictions imposed by sections 127(3) and (4). Those subsections set out circumstances in which the court shall not make an enforcement order under section 65(1) of the Act. In particular, section 127(3) is in these terms:

 

"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)."

It follows that in a case where there is no document signed by the debtor – or no document signed by the debtor which contains all the prescribed terms of the agreement – the court has no power to make an enforcement order. In such a case, the effect of sections 65(1) and 127(3) of the Act is that the agreement is not enforceable against the debtor.

 

I think the Judges spelt matters out quite clearly. One would have

thought that TS should find their argument compelling enough to take

action.

[un1boy]

AC, Can you PM please?

[angry cat]

Okay Guys-

Now I will change the subject over to MBNA!

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-842481.html

 

You will see from the above link that MBNA have also failed to comply with my CCA request, thus have committed a Criminal Offence.

The link will show you a letter dated 29 March 2007 sent by special delivery to Stuart Johnson and copies to Stephen Bailey and S McEnvoy (Compliance) by Recorded Delivery, all were received, but there has been no response until Monday 21/05/07 and...you will again see from the above link what the response contained!!!

 

Yes, it really was-

"Under section 7 of the Data Protection Act 1998 as per your request for STATEMENT information, please find this information enclosed".

 

What should I make of this, number 1, I didn't make an SAR!

However, surely if MBNA are complying with an S7 DPA request, one would not just be sent copies of ledgers with all the amounts in USD$ ??? To comply with an SAR request then MBNA would have had to send me everything that they hold about me.

 

Do I smell a rat?

Curious

 

AC

[un1boy]

Okay Guys-

Now I will change the subject over to MBNA!

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-842481.html

 

You will see from the above link that MBNA have also failed to comply with my CCA request, thus have committed a Criminal Offence.

The link will show you a letter dated 29 March 2007 sent by special delivery to Stuart Johnson and copies to Stephen Bailey and S McEnvoy (Compliance) by Recorded Delivery, all were received, but there has been no response until Monday 21/05/07 and...you will again see from the above link what the response contained!!!

 

Yes, it really was-

"Under section 7 of the Data Protection Act 1998 as per your request for STATEMENT information, please find this information enclosed".

 

What should I make of this, number 1, I didn't make an SAR!

However, surely if MBNA are complying with an S7 DPA request, one would not just be sent copies of ledgers with all the amounts in USD$ ??? To comply with an SAR request then MBNA would have had to send me everything that they hold about me.

 

Do I smell a rat?

Curious

 

AC

 

They clerly either don't know what you're doing, or hope that you are thick!

 

I would write back and tell them they have completely ignored your sec 78 request and ask them for the written request you made which prompted their disclosure under the DPA as they can only send info under a sar with a written request!

 

Not entirely true that they have to send everything though - they only have to send what you ask for really!

[un1boy]

That woman claiming against Halifax for harassment won, didn't she?

[humbleman]

AC

we all know that this is p... take. But as long as they are comfortable in the knowledge that the statutory bodies are unlikely to take any action, I am afraid they won't change.

 

I almost feel that there should be a petition to stop them from renewing their credit licence, signed by everyone that they failed to supply the information under s77-79 of CCA 1974, and bring this to the attention of OFT and the minister in charge. most of the lenders have commited 100's of offences and for them to be let free is frankly not on.

[joesoap]

That woman claiming against Halifax for harassment won, didn't she?

 

Yep, Front page of Daily Mirror

[Cornucopia]

AC

we all know that this is p... take. But as long as they are comfortable in the knowledge that the statutory bodies are unlikely to take any action, I am afraid they won't change.

 

I almost feel that there should be a petition to stop them from renewing their credit licence, signed by everyone that they failed to supply the information under s77-79 of CCA 1974, and bring this to the attention of OFT and the minister in charge. most of the lenders have commited 100's of offences and for them to be let free is frankly not on.

 

Hi Humbleman, we have already done this over on the MBNA forum. The mass complaint was forwarded to FOS, OFT, TS and the FSA. We are eagerly awaiting a response.................

 

 

Regards,

 

Corn x:)

[Perseus]

Looking forward to the responses on that one Corn!

x

[un1boy]

Looking forward to the responses on that one Corn!

x

 

Yes, definitely!

 

Make sure you let us know what happens!

[Cornucopia]

Yes, definitely!

 

Make sure you let us know what happens!

 

Of course!!!!

 

:grin: