Cap1 & CCA return

[shane5408]

Looking around the site, I can't see much evidence of this. Generally it seems the DCA gives up when they realise they don't have the proverbial leg to stand on.

 

Legally, if the correct CCA is not produced as requested, this is a complete defence to any attempted court proceedings. Taking you to court without proof of the alleged debt is likely to be looked on quite unfavourably by the judge...

 

(someone please correct me if any of this is wrong, and point us to any court-related threads?)

 

 

 

Hi Oneofakind,

 

thanks for that, as you say judge is likely to take a dim view of the creditor if they try and get an enforcement order with no proof of cca. Then again, judge might turn around and ask the claimant if he used the card to buy goods, withdraw cash etc to which if true we will have to answer yes. Judge might then take a dim view of the claimant trying to get out of paying a debt that he/she has clearly had goods/credit from. I'm not saying this is what will happen, its just a possibility a very real posiblity. Which is why it would be nice to know how other people got on in court! If there really are no circumstances where this has taken place in court, i guess i'll be the guinea pig then!

[monopoly23]

Hi noomill, thanks. It is long! This is why I need help making it more snappy, I tend to waffle on a bit lol

[patrickq1]

. DOES A (BANK OVERDRAFT )come under the consumer credit agreements or where do people stand with regards to over the top charges ?

[ncf355]

Hi does anyone have any comments or suggestions for my letter in post 8307 please? Or know where the section of the law is that I need? Id like to send this off today if possible.

 

Hi,

 

dont have time to review all at the moment, but the rule regarding the sig position -

 

OFT 786 A Document -

 

2.6 How should the information be ordered?

The information, statements of protection and remedies, and signature and separate boxes, required to be included in documents embodying regulated consumer credit agreements, must be set out in the order prescribed by Reg 2(4) and under the headings specified.

The prescribed ordering of blocks of information etc is as follows:

• nature of agreement (Sch 1 para 1)

• parties to agreement (Sch 1 para 2)

• ‘Key Financial Information’ – key financial and related particulars (Sch 1 paras 6-8B, 11-14 and 15-17)

• ‘Other Financial Information’ – other financial and related particulars (Sch 1 paras 3-5, 9, 10, 14A and 18-19A)

• ‘Key Information’ – other information (Sch 1 paras 20-24) and statements of protection and remedies (Sch 2)

• signature box

In the OFT’s view, the Regulations do not prescribe the ordering of items within each block, save that within ‘Key Information’ the information in Sch 1 paras 20-24 must precede the statements of protection and remedies in Sch 2 – see Q4.2. However, given that the consequences of a court holding otherwise would be unenforceability without a court order, creditors may wish to ‘play safe’ by setting out the information in the strict numerical order given within each block.

[ncf355]

 

Apart from uniboy, no one I know has gone to law over this.

 

 

Really?

 

[patrickq1]

do you not reserve the right not to incrimanate yourself

[monopoly23]

Thanks ncf. I'll add that in.

[angry cat]

Hi Guy's,

Way back I requested a true copy of my alleged agreement from Morgan Stanley, who failed to comply. I reported them TS who began their investigations and...lo & behold MS suddenly came up with a cc Mailer, stating that by providing me with that doc. that they had complied. TS don't agree but will not prosecute!

 

I have just drafted out the following letter and I would appreciate your opinions and especially peterbards, please.

 

"Your Ref: XXXXXXX

 

Ms. Karla Kenny

Customer Liaison Team Manager

Morgan Stanley

PO Box 3598

Glasgow

G68 9YW

 

Dear Ms. Kenny,

 

LETTER OF NON COMPLIANCE FOR CREDIT AGREEMENT

 

Thank you for your letter dated 24 May 2007, which stated:-

“It has been brought to my attention that you did not receive a copy of our letter dated 30th April 2007. I am sorry for any inconvenience this has caused. Please find enclosed a copy of this letter for your records. I have also forwarded a copy to Sandra Thornton at East Sussex Trading Standards”.

Your letter dated 30th April 2007 states:-

 

“True copy of the executed agreement.

Because you are raising a technical point under the Act, the only way we can fully address your query is to set out some of the law on the way the Act operates. Section 78(1) of the Act states that, amongst other things, the creditor shall give the debtor a copy of the executed agreement.

How does the Act define an “executed agreement?

“Executed agreement” is defined in section 189 of the Act as, “a document, signed by or on behalf of the parties, embodying the terms of a regulated agreement…”

 

“What do the rules say about providing a copy?

The Consumer Credit (Cancellations and Copies of Documents) Regulations 1983 (“the Regulations”) made under the Act deal with how we are to provide a “copy” of an agreement.

These Regulations provide that any copy of the agreement supplied to a debtor should be a ‘true’ copy. Regulation 3(2) provided that a copy may omit certain information, including the signature box, signature and date of signature.

 

So, a “copy” of an agreement will satisfy the requirements even if the signature box and/or the signatures are not included.

What happens if the agreement has been varied since it was originally signed?

The Regulations also set out what should happen where the agreement has been varied since it was signed, which happened in your case.

Regulation 7 provides creditors with a choice of including in the copy of the executed agreement either a copy of the latest notice of variation relating to each discrete term which has been varied, or an easily legible statement of the terms varied.

Regulation 7 does NOT state that the copy of the agreement shall include a statement of the original terms as well as a statement of the varied terms. Regulation 7 allows us to provide you with a “true copy” which sets out the terms and conditions current at the time of provision of the copy.

 

Conclusions in relation to the document we have to provide.

• 1. a “copy” of an agreement will satisfy the requirements even if the signature box and/or the signatures are not included;

• 2. the definition of “executed agreement”. When this is read with Regulation 7 – for agreements that have been varied – a copy of the original agreement would not embody its terms. A copy of the agreement as varied would embody its terms;

• 3. we have provided you with a copy of the agreement as varied.

 

Default status

Due to the circumstances on your account at the time we issued the notice of default, we cannot agree that the filing of the default information was incorrect. We therefore cannot agree to your request that we remove the default applied and amend the payment history recorded on your credit file in relation to your Morgan Stanley account. This is because, as responsible lenders, we have a duty to record accurate information with the credit reference agencies we report to. As you were in arrears on your account, we were obliged to issue the notice of default and subsequently register the default with the credit reference agencies”.

 

I would reiterate to you that I do not accept the document that you have provided me, satisfies your obligations under S78 of the Consumer Credit Act 1974.

The Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (" the Regulations”)

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.

Both Trading Standards and I 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 view of both Trading Standards and I, again requiring that both the executed agreement plus any amendment docs are included.

 

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

Furthermore, I am of the opinion that the document that you have provided appears to be a conjectured re-construction, which could be viewed as an attempt to mislead me.

 

I would formally advise you (Morgan Stanley) that I do not acknowledge ANY debt to your company. You (Morgan Stanley) have failed to supply me with a ‘true’ copy of the original executed agreement for the alleged “debt” that you are attempting to enforce.

Therefore, I now consider the matter closed and no further correspondence regarding payment will be entered into.

I now await your letter of confirmation that the alleged debt has been written off, as you have been unable to produce the documents required by law.

Finally, I demand that you (Morgan Stanley) remove any negative entries that you have recorded on my credit reference agency (Experian, Equifax and Call Credit) files relating to the matter immediately, as they are unsubstantiated, else I will not hesitate to bring the full weight of the Data Protection Act 1998 against Morgan Stanley Bank as a Data Controller.

 

 

Yours sincerely,

 

AC"

 

Should I add anything, or remove anything?

or, should I just send the letter.

 

Thanks AC

[ian1969uk]

hi guys,

 

has anyone here actually taken these arguments to court, I know Uniboy is in the process of doing so, I too will shortly be filing an N1 for non compliance and unenforcable agreements. If anyone has already been through this in court or knows people that have please can you let me know how you/they got on!

 

At the end of the day we know the law is in on our side in the majority of these cases where prescribed terms are lacking, current t&c's etc etc. now we need to know the procedure when it does get taken to court and what kind of defence the banks put up and how judges generally look at cases like these.

 

 

kind regards,

shane

 

As long as the agreement is pre April 2007, it doesn't matter if the debtor wears a t-shirt to court emblazoned with "I spent the money...nah, nah, nah". If there is no agreement, the judge CANNOT make an enforcement order as per S127 of the CCA 1974.

 

This is providing, of course, that the debtor presents the facts properly and tells the judge that this section applies and therefore enforcement is not possible.

 

Having had the goods etc is irrelevant, the judges cannot just ignore the law and make orders they shouldn't, just because they have aproblem on moral grounds.

[shane5408]

As long as the agreement is pre April 2007, it doesn't matter if the debtor wears a t-shirt to court emblazoned with "I spent the money...nah, nah, nah". If there is no agreement, the judge CANNOT make an enforcement order as per S127 of the CCA 1974.

 

This is providing, of course, that the debtor presents the facts properly and tells the judge that this section applies and therefore enforcement is not possible.

 

Having had the goods etc is irrelevant, the judges cannot just ignore the law and make orders they shouldn't, just because they have aproblem on moral grounds.

 

Hi Ian,

 

I totally agree with you, just would of been nice to see some evidence of other people having done and suceeded at this. This entire thread, one of the longest i have seen on CAG is dedicated to this very topic and how in a court of law the creditors don't stand a chance with unenforcable agreements yet i cannot find even one case where the debtor has seen this through and won in court.

 

Keeping my fingers crossed for Uniboy, i hope to file my N1 on Monday!

[Peterbard]

hi guys,

 

has anyone here actually taken these arguments to court, I know Uniboy is in the process of doing so, I too will shortly be filing an N1 for non compliance and unenforcable agreements. If anyone has already been through this in court or knows people that have please can you let me know how you/they got on!

 

At the end of the day we know the law is in on our side in the majority of these cases where prescribed terms are lacking, current t&c's etc etc. now we need to know the procedure when it does get taken to court and what kind of defence the banks put up and how judges generally look at cases like these.

 

 

kind regards,

shane

 

IHi

I know of a number of people who are in the process of doing so we will have to wait and see what happens.

There is of course case law in wilson vs**** and one or two Caggers have successfuly had agreements modified or made unenforceable.

Of course Ian is right if the agreement is unenforceble then the court has very little to say in the matter.

It is only when it is enforceable by order of the court that they can invoke proprtionality into their judgments and either strike the application, make the agreement unenforceable or anywhere in between by varying the terms.

 

Regards

Peter.

[ian1969uk]

Because debtors generally don't instigate proceedings, they just stop paying.

 

Don't you think it's very telling that when debtors do stop paying, the creditor does not take them to court?

[shane5408]

Because debtors generally don't instigate proceedings, they just stop paying.

 

Don't you think it's very telling that when debtors do stop paying, the creditor does not take them to court?

 

 

Yeah, i see your point. you could stop paying, serve them with a section 10 notice to stop processing your data; but then they file a default against you regardless of whether they are allowed to or not. Getting that removed, from threads i've read so far is perhaps even more difficult which means you have to take it to court anyway. Might as well launch the claim yourself against them, show them you mean business and have them take you seriously.

[oneofakind]

i cannot find even one case where the debtor has seen this through and won in court.

 

 

You're looking at a half-empty glass, aren't you? Can you find one case where the DCA has gone to court on this issue and won? That's because they can't, because on this issue the law is clear.

 

This glass is half FULL.

[noomill060]

Of course, an engineer would tell you that the volumetric capacity of the glass was incorrect for the job to start with...

[shane5408]

You're looking at a half-empty glass, aren't you? Can you find one case where the DCA has gone to court on this issue and won? That's because they can't, because on this issue the law is clear.

 

This glass is half FULL.

 

 

Very true, and if that was the end result then it would indeed be me taking the pessimists view; the problem is that in the majority of cases i have seen so far what tends to happen is at the end when the creditor has no choice but to take it to court and as you rightly said they won't as they havn't a hope of suceeding they will default you. Trading standard, FOS, IFO are severely lacking in their ability to help you get the default removed even though it has been served unlawfully, you then have to take it to court to get it removed.

[oneofakind]

an engineer would tell you that the volumetric capacity of the glass was incorrect for the job to start with

 

True. Having worked with several engineers I can tell you that the only remedy for such pedantry is to pour the remaining contents of the glass over their head. then there is no doubt as to the state of the glass.

 

This attitude is why engineers only drink from shot glasses - only ever seen completely full or empty!!

 

[Jeff2000]

Hi Ian,

 

I totally agree with you, just would of been nice to see some evidence of other people having done and suceeded at this. This entire thread, one of the longest i have seen on CAG is dedicated to this very topic and how in a court of law the creditors don't stand a chance with unenforcable agreements yet i cannot find even one case where the debtor has seen this through and won in court.

 

Keeping my fingers crossed for Uniboy, i hope to file my N1 on Monday!

 

 

Hi,

 

 

Have a read of this thread!

 

It should give you a nice warm feeling!

 

 

http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/90012-just-been-court-cl.html

 

 

 

Regards, Jeff.

[noomill060]

True. Having worked with several engineers I can tell you that the only remedy for such pedantry is to pour the remaining contents of the glass over their head. then there is no doubt as to the state of the glass.

 

This attitude is why engineers only drink from shot glasses - only ever seen completely full or empty!!

 

 

 

Yup!

 

(Pours another wee dram of Irish firewater into his shot glass to keep the other wee drams company)

[shane5408]

Hi,

 

 

Have a read of this thread!

 

It should give you a nice warm feeling!

 

 

http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/90012-just-been-court-cl.html

 

 

 

Regards, Jeff.

 

Thanks Jeff for the link, EXACTLY what i am looking for, please if you or any others know of similar cases like these point me in their direction. Having read it the claimant was really lucky to have switched judges the 2nd time round, the 1st one actually accepted the statements as proof of debt in lieu of a credit agreement!

 

It seems that the key to success in these types of cases is ensuring the judge correctly understands your arguments and the law your are drawing from. Most DJ's i would wager arn't very knowledgable on consumer credit law. The precedent is set in Wilson V Sec. of State, it is up to you as the claimant to correctly portray it to the judge. My confidence of a win is definitely growing now!!

[rich2568]

[/left]

 

 

Yes Peter-this is an interesting post. Bearing in mind EGG state on their agreement "You are, by signing this agreement, legally bound by its terms."

However ,they state earlier in the agreement " You have read and accept the EGG CARD Credit Agreement Conditions, a copy of which we enclose, especially conditions 1.2 and 16 (Personal Information)"

 

Is this a similar argument whereby they are stating parts of the agreement within a seperate booklet?

 

 

Any replies?

[rich2568]

Hi Guy's,

Way back I requested a true copy of my alleged agreement from Morgan Stanley, who failed to comply. I reported them TS who began their investigations and...lo & behold MS suddenly came up with a cc Mailer, stating that by providing me with that doc. that they had complied. TS don't agree but will not prosecute!

 

I have just drafted out the following letter and I would appreciate your opinions and especially peterbards, please.

 

"Your Ref: XXXXXXX

 

Ms. Karla Kenny

Customer Liaison Team Manager

Morgan Stanley

PO Box 3598

Glasgow

G68 9YW

 

Dear Ms. Kenny,

 

LETTER OF NON COMPLIANCE FOR CREDIT AGREEMENT

 

Thank you for your letter dated 24 May 2007, which stated:-

“It has been brought to my attention that you did not receive a copy of our letter dated 30th April 2007. I am sorry for any inconvenience this has caused. Please find enclosed a copy of this letter for your records. I have also forwarded a copy to Sandra Thornton at East Sussex Trading Standards”.

Your letter dated 30th April 2007 states:-

 

“True copy of the executed agreement.

Because you are raising a technical point under the Act, the only way we can fully address your query is to set out some of the law on the way the Act operates. Section 78(1) of the Act states that, amongst other things, the creditor shall give the debtor a copy of the executed agreement.

How does the Act define an “executed agreement?

“Executed agreement” is defined in section 189 of the Act as, “a document, signed by or on behalf of the parties, embodying the terms of a regulated agreement…”

 

“What do the rules say about providing a copy?

The Consumer Credit (Cancellations and Copies of Documents) Regulations 1983 (“the Regulations”) made under the Act deal with how we are to provide a “copy” of an agreement.

These Regulations provide that any copy of the agreement supplied to a debtor should be a ‘true’ copy. Regulation 3(2) provided that a copy may omit certain information, including the signature box, signature and date of signature.

 

So, a “copy” of an agreement will satisfy the requirements even if the signature box and/or the signatures are not included.

What happens if the agreement has been varied since it was originally signed?

The Regulations also set out what should happen where the agreement has been varied since it was signed, which happened in your case.

Regulation 7 provides creditors with a choice of including in the copy of the executed agreement either a copy of the latest notice of variation relating to each discrete term which has been varied, or an easily legible statement of the terms varied.

Regulation 7 does NOT state that the copy of the agreement shall include a statement of the original terms as well as a statement of the varied terms. Regulation 7 allows us to provide you with a “true copy” which sets out the terms and conditions current at the time of provision of the copy.

 

Conclusions in relation to the document we have to provide.

• 1. a “copy” of an agreement will satisfy the requirements even if the signature box and/or the signatures are not included;

• 2. the definition of “executed agreement”. When this is read with Regulation 7 – for agreements that have been varied – a copy of the original agreement would not embody its terms. A copy of the agreement as varied would embody its terms;

• 3. we have provided you with a copy of the agreement as varied.

 

Default status

Due to the circumstances on your account at the time we issued the notice of default, we cannot agree that the filing of the default information was incorrect. We therefore cannot agree to your request that we remove the default applied and amend the payment history recorded on your credit file in relation to your Morgan Stanley account. This is because, as responsible lenders, we have a duty to record accurate information with the credit reference agencies we report to. As you were in arrears on your account, we were obliged to issue the notice of default and subsequently register the default with the credit reference agencies”.

 

I would reiterate to you that I do not accept the document that you have provided me, satisfies your obligations under S78 of the Consumer Credit Act 1974.

The Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (" the Regulations”)

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.

Both Trading Standards and I 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 view of both Trading Standards and I, again requiring that both the executed agreement plus any amendment docs are included.

 

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

Furthermore, I am of the opinion that the document that you have provided appears to be a conjectured re-construction, which could be viewed as an attempt to mislead me.

 

I would formally advise you (Morgan Stanley) that I do not acknowledge ANY debt to your company. You (Morgan Stanley) have failed to supply me with a ‘true’ copy of the original executed agreement for the alleged “debt” that you are attempting to enforce.

Therefore, I now consider the matter closed and no further correspondence regarding payment will be entered into.

I now await your letter of confirmation that the alleged debt has been written off, as you have been unable to produce the documents required by law.

Finally, I demand that you (Morgan Stanley) remove any negative entries that you have recorded on my credit reference agency (Experian, Equifax and Call Credit) files relating to the matter immediately, as they are unsubstantiated, else I will not hesitate to bring the full weight of the Data Protection Act 1998 against Morgan Stanley Bank as a Data Controller.

 

 

Yours sincerely,

 

AC"

 

Should I add anything, or remove anything?

or, should I just send the letter.

 

Thanks AC

 

 

I think that`s fine!

[lookinforinfo]

Shane, there have been several cases where Judges have stated unequivocally that in the absence of the original loan agreement the debt is

unenforceable. Unfortunately I am not at my own computer at the moment, but if you go to this site you should find cases that will convince you.

British and Irish Legal Information Institute

If you type in "unenforceable consumer credit contracts" and tick all sections,

you will be given a whole host of cases some of which will be not dissimilar

to your own. Look for McGinn v Grangewood Securities 2002 for one, where

the Judge lays it down about the non supply of the OA [paragraph 12].

 

The advantage of typing in what you are looking for rather than entering the case itself, is that the words you are looking for are highlighted.

[shane5408]

Shane, there have been several cases where Judges have stated unequivocally that in the absence of the original loan agreement the debt is

unenforceable. Unfortunately I am not at my own computer at the moment, but if you go to this site you should find cases that will convince you.

British and Irish Legal Information Institute

If you type in "unenforceable consumer credit contracts" and tick all sections,

you will be given a whole host of cases some of which will be not dissimilar

to your own. Look for McGinn v Grangewood Securities 2002 for one, where

the Judge lays it down about the non supply of the OA [paragraph 12].

 

The advantage of typing in what you are looking for rather than entering the case itself, is that the words you are looking for are highlighted.

 

 

thanks lookinforinfo, i'll take a look now:D

[shane5408]

Dimond v Lovell (2000) is a very interesting read, to quote part of it,

 

(c) Order of the court

 

Section 65(1) provides that an improperly executed agreement shall be enforceable only "on an order of the court." Section 127 gives the court power to make orders for the enforcement of agreements that are, for various reasons, improperly executed. But subsection (3) provides that a court shall not make an enforcement order for an agreement that does not comply with section 61(1)(a) unless the debtor signed a document containing "all the prescribed terms." The hiring agreement in this case did not and is therefore irredeemably unenforceable