Cap1 & CCA return

[Josie8]

Thanks un1boy

 

Can I also ask you if i stop paying and then they do supply the agreement, they have to go to court to enforce it i understand, but do any payments missed and the interest accrue during that and must be paid once enforced.

 

Also, what is my course of action if they don't fulfill my request before 12+1 month has expired.

 

Thanks in advance

 

 

No interst and payments not due while they are in default do not have to be made if they rectify the default.

 

Notify them they are in criminal default.there are templates on site

[rich2568]

Sent me this as proof of me requesting PPi, doesnt prove i requested, proves to me "plus ppi" is added to all loans, more than i requested it.

 

 

This agreement is a laugh!!

 

Get ready to tackle them with your defence. Read the attached CCA 1974- if this agreement is tied to this- you have an awful lot to throw at them!!http://www.fisa.co.uk/downloads/CCA%201974.pdf

[BLADES65]

Quick question.

 

If an account has been defaulted and you then do a CCA request should they supply, as well as the agreement, a copy of the executed default notice.

 

Thanks

[un1boy]

Thanks un1boy

 

Can I also ask you if i stop paying and then they do supply the agreement, they have to go to court to enforce it i understand, but do any payments missed and the interest accrue during that and must be paid once enforced.

 

Also, what is my course of action if they don't fulfill my request before 12+1 month has expired.

 

Thanks in advance

 

Hiya, you don't need to wait the 12 days and a month - they have already answered and are bound by what they have sent: The "agrement" is completely unenforcable, even by a Judge and they would be very silly to take it anywhere near a court room.

 

If they do then the Judge can't do anything anyway.

 

If they did take it to court and supplied a differnet agreement then the Judge would want to know why they didn't supply it in the first place. Also, they are bound by what they have already given you in responjse to your sec 78 request, under the section mentioned in my last post.

 

you have nothing to lose and the law on your side - write to them and stop paying.

[un1boy]

No interst and payments not due while they are in default do not have to be made if they rectify the default.

 

Notify them they are in criminal default.there are templates on site

 

Absolutely - write to them now and tell them. they can't force you to pay and they cannot add interest or charges to the balance, if they do then they commit a criminal offence!!

[ian1969uk]

Quick question.

 

If an account has been defaulted and you then do a CCA request should they supply, as well as the agreement, a copy of the executed default notice.

 

Thanks

 

They have no responsibility to do this on a CCA request. They must supply a copy of anything referred to in the original agreement. As the default notice wouldn't be referred to in the original agreement, they don't need to supply it in response to a S77/78 request.

[un1boy]

Quick question.

 

If an account has been defaulted and you then do a CCA request should they supply, as well as the agreement, a copy of the executed default notice.

 

Thanks

 

Well I don't think so, but I am currently telling them that they can't prove it complied with sec 88 of the CCA. they have confirmed they don't have the default notice so I am gonna enter an N1 about it soon.

[BLADES65]

They have no responsibility to do this on a CCA request. They must supply a copy of anything referred to in the original agreement. As the default notice wouldn't be referred to in the original agreement, they don't need to supply it in response to a S77/78 request.

 

I asked the question after reading this:

 

Remove Default Notices on a Credit File - We show you how

 

Essentially if they can't supply the default notice they have to remove the default with the CRA

[Peterbard]

HI

no they don't as you say UNi

However it is up to them to prove they sent it not to you to prove they did not.

Also if default interest is mentioned in the agreement it could be used as inferring that if a default was issued and a copy of the notice would have to be sent with the section77 request.

 

Peter

 

Petr

[Sparkie1723]

Its fact that they can supplya copy of the default notice because 99% of them are "computer generated" what they can't prove unless they sent it recorded delivery....which most creditors don't.

 

They can't prove you received it.

 

sparkie

[Peterbard]

HI

Yes i have had one or two CCJs set asside for people on those very grounds it is as well to giv them chance to produce copies though the use of preaction protocol 4.1 with a note saying that in order to avoid wasting the time of the court it wouls be advantqgous to all concerened if a copy if one existed was produced,pre hearing.

Always looks good in court.

 

Best regards

Peter

[PERICLAN1]

thanks for the advice un1boy and josie

 

Will get my letter off asap. but just to continue with my education,if you don't mind that is.

 

I understand that while they cannot supply the CCA then the debt is unenforceable but doesn't go away.

 

Does this just continue as is forever or until they find the CCA and have it enforced?

 

Also I have read amongst these pages about all interst/payments ever made, being repaid. What are the circumstances of this and is this something we can request or is it just a possible course of action for the relevant authorities to deem?

 

Regards

[un1boy]

Its fact that they can supplya copy of the default notice because 99% of them are "computer generated" what they can't prove unless they sent it recorded delivery....which most creditors don't.

 

They can't prove you received it.

 

sparkie

 

I'm not sure they can Sparkie because they would have to provide the One that was actually sent to you, not just a template!

 

I ahve been advised by 2 banks that they can't provide them as they are computer genereated and a copy is not kept on file, only a note to say it was sent.

[un1boy]

thanks for the advice un1boy and josie

 

No probs, let us know when it's done!

 

I understand that while they cannot supply the CCA then the debt is unenforceable but doesn't go away.

 

Basically yes, they cannot enforce it at all, but the debt still exists - you could argue though that as they cannot enforce the agreement and the terms and conditions then they can't process your data, so it should all be removed (I've been arguing with a bank for a year now but I have to enter an N1 to get it all removed!).

 

Does this just continue as is forever or until they find the CCA and have it enforced?

 

Sort of, it would still exist as such and it would still exist on their profit and loss sheets as an outstanding liability, but they can't add interest and can't contact you to pay either, they should not be able to process your data either, so, although it continues it shouldn't show anywhere.

 

Also I have read amongst these pages about all interst/payments ever made, being repaid. What are the circumstances of this and is this something we can request or is it just a possible course of action for the relevant authorities to deem?

 

This is mainly in the case where an agreement cannot be supplied at all. It is very tricky and some cases it has not been granted at all. It all depends on what you want to achieve - I've not been greedy with mine, I've asked for the data to be removed from credit files and a refund of premiums since they "defaulted" as the default notices don't comply with sec 88 and are therefore unlawul.

 

I am all for the banks having to pay back and for cosumers to get their debts written off if the banks have not complied with the CCA, but just be careful about being too "greedy"

[Sparkie1723]

HI un1boy,

 

I agree with everything you say there, it is the agreement and how you were "supposed" to pay it back that is unenforceable, the debt still exists....but what people have to watch is ....being as you say a little greedy , because if they do the Creditor might look for other ways of getting their money back....say by going out of their way obtaining receipts for goods ,items etc to prove the debtor did have the money and take them to court under a normal claim for a debt under common law.

 

 

sparkie

[noomill060]

As the debt is under an agreement regulated by the Consumer Credit Act, they would still have to produce the original credit agreement to do this.

 

I think.

[PERICLAN1]

Hi Sparkie

I note your point about the debt, after all it was (alledgedly) borrowed and (morally) it should be repaid, however regarding interest charged;

 

If the credit card company cannot supply a copy of the executed agreement including the prescribed terms, then on what basis can they argue to charging a given rate of interest, or any interest for that matter, as they cannot prove that it was agreed to pay interest on any sum that may have been borrowed, hence would they not have to refund this interest?.

 

I know the law is often complex and I am just a layman, but what am I missing?

[out of cash]

hi periclan1,

 

there is something in the cca 1974 act section 85 that refers to interest being reclaimed something like that someone with more brains than me will point you in the correct direction with this.

 

regards

 

out of cash

[minky93]

Hiya I have a quandry for you!

 

My husband & I took out a loan in 1999, my husband declared bankruptcy in 2001 the loan was included in the bankruptcy which we later found out was wrong because it was in joint names. DCA came after me and I agreed to pay the OC £80 pm which I did up until March this year when I stopped the direct debit. I now have another DCA chasing me (I am currently awaiting my CCA agreement, req sent 4th June)

 

I have been informed in another thread ,that the loan being in joint names would not have been included in hubby's bankruptcy.

 

My husband came out of Banruptcy in 2004. Is it right that they should only be chasing me? it wasn't included in the bankruptcy and the debt is in both names and he is the first named as well.

 

any thoughts?

 

regards minky xxx

[Sparkie1723]

Hi everyone,

 

The final crunch would be down to the Judge in any claim brought in the courts for money anyone can apply to the court for interst to be paid on a debt, and the County Court set rate is 8% BUT and there is a big BUT here that is the MINIMUM, he can award more if he thinks it is right in his opinion .

 

A friend of mine got 13.5% interest when he made a claim in court it was a little complicated but because some one owed him money and he owed someone else, he had to borrow the money to pay his debt at 13.5%, and then took the other person to court for his money and, the judge awarded him the interest rate he had been charged on his loan,.... complicated isnt it? but that's what happened, .......he then got an EXTRA 8% interest for his trouble on the money he had been owed off the guy who owed him.

 

sparkie

[noomill060]

Did your friend hold a Consumer Credit Licence and was the agreement regulated by the Consumer Credit Act 1974?

[un1boy]

Hi Sparkie

I note your point about the debt, after all it was (alledgedly) borrowed and (morally) it should be repaid, however regarding interest charged;

 

If the credit card company cannot supply a copy of the executed agreement including the prescribed terms, then on what basis can they argue to charging a given rate of interest, or any interest for that matter, as they cannot prove that it was agreed to pay interest on any sum that may have been borrowed, hence would they not have to refund this interest?.

 

I know the law is often complex and I am just a layman, but what am I missing?

 

Peri, you are more likely able to claim for everything you have paid against it if they cannot provide an agreement (because they cannot prove it ever existed), if however (like in your case) they have provided the agreement but with no prescribed terms then the debt still exits it just can't be enforced.

 

As for any interest or charges from this point on - they cannot add anything to the balance because they cannot enforce the terms and conditions so would commit a criminal offence. If they do you're not paying them anyway, so they are increasing a debt balance which they can't recover.

 

What exactly are you looking to achieve Peri? It might be easier to talk you through what you need to do.

[rich2568]

see my edited post below-7658!

[Josie8]

HI un1boy,

 

I agree with everything you say there, it is the agreement and how you were "supposed" to pay it back that is unenforceable, the debt still exists....but what people have to watch is ....being as you say a little greedy , because if they do the Creditor might look for other ways of getting their money back....say by going out of their way obtaining receipts for goods ,items etc to prove the debtor did have the money and take them to court under a normal claim for a debt under common law.

 

 

sparkie

 

 

Unfortunately for the Creditor the HOL case Wilson v Minister of Trade & Industry stated that in the event of the CCA not being enforceable (or non existent) then the creditor has no recourse to ordinary contract law to recover losses.

 

So No CCA = No money to be repaid.

 

This is the financial penalty that Parliament has set out . They profit heavily from their powers under the CCA so it is only right that if they do not follow the letter of the law they should equally be penalised.

[ncf355]

Peri, you are more likely able to claim for everything you have paid against it if they cannot provide an agreement (because they cannot prove it ever existed), if however (like in your case) they have provided the agreement but with no prescribed terms then the debt still exits it just can't be enforced.

 

 

Un1,

 

not sure about your comment here - surely Wilson proves that even if they give an agreement copy and prove it exists, if the prescribed terms arent there (or wrong in the case of Wilson) then you can claim back all your payments?