Cap1 & CCA return

[B3rty]

Magda

 

I am taking on LSC (1st Credit) right now and have put in a defence based on lack of production of a CCA....we wait to see what they can produce and have 28 days to do so......knowing that they are just processing court claims because 99% of these dont get challenged makes me feel good because they won't want to go to court unless they have the CCA but will bluff me along the way

 

Its a poker game where the more they bluff the less likely it is they will produce a CCA and last one to back down wins

[B3rty]

Could someone explain how Abolition of automatic unenforceability in the new changes effects exisiting agreements?

[B3rty]

I would think you need to brush up on the Wilson case and also print out the PDF posted for the comment on the Francis Bennion site

http://www.francisbennion.com/pdfs/fb/2003/2003-061-consumer-credit-1974-s127-3.pdf

Good Luck

Berty

[B3rty]

Can a DCA/OC turn up in court with an alleged agreement with out first providing a copy......surely this woud be part of the AQ?

[B3rty]

Any thoughts on this

My defaulted First Direct credit card debt was cleared by FD when they created a new savings account and transferred the amount to the credit agreement to clear the debt, they then defaulted the new account on the same day and have since sold this to a DCA.

I have CCA’d the DCA who say this is a bank account and not covered by section 77 CCA as the agreement was terminated, looking through the CCA I can’t see anything that’s relevant to this as technically the debt is clear

However since I did not agree to the new account, did not sign anything I wonder how this would stand up in court and whether FD are in breach of any rules as the “ if any” rule only applies to non written agreements, and I haven’t agreed so this can’t be a non written agreement.

I am going to need help on this and will start a new thread at the appropriate time but read this great debate and understand that there are knowledgeable folk here so just need pointing in the right direction re legal aspects i.e CCA/ LOP ect so I can go and do my research

Thanks

Berty

[B3rty]

Thanks for the replies

 

As it happens when they sold the debt they sold a current account that I didn’t use that had a .76p balance so the DCA is actually bought an account to which I can prove has never been in default I have written a pretty strong letter to them with copies of the account showing the status asking them to acknowledge their error and quoting the usual unlawful and vexatious stuff plus data protection regs ect and advising them that I will report them if they don’t deal with this with in 14days so I will wait and see what comes back before taking further action but I don’t want to draw too much attention to this with the bank as they may see their error and try and rectify it…..

 

However its frightening to think that banks are dealing with CC debt in this way and anyone with a bank issued credit card needs to be prepared…its interesting that they used a savings account rather then a current account and I wondered if there were something in the terms that gave them a loop hole, when I spoke to the bank they said they always use savings accounts

 

Just looking at something Rory32 posted in the thread link above, I cant see how this type of transaction can be legal and form part of any agreement without the debtors agreeing to it

 

THE DETERMINATION

 

]The Determination (which is signed by the Director of Fair Trading) is made under section 74(3) of the Act. I set it out in full:

 

1. Under the powers conferred upon me by Sections 74(3) and (3A) and 133 of the Consumer Credit 1974, I, the Director General, being satisfied that it would not be against the public interest to do so, hereby revoke with effect from 1st February 1990 the Determination made by me in respect of Section 74(1)(b) and dated 3 November 1983 and now determine that with effect from 1st February 1990 Section 74(1)(b) shall apply to every debtor-creditor agreement enabling the debtor to overdraw on a current account, under which the creditor is a bank.

 

2. This Determination is made subject to the following conditions:-

(a) that the creditor shall have informed my Office in writing of his general intention to enter into agreements to which the Determination will apply;

(b) that where there is an agreement between a creditor and a debtor for the granting of credit in the form of an advance on a current account, the debtor shall be informed at the time or before the agreement is concluded:

of the credit limit, if any,

- of the annual rate of interest and the charges applicable from the time the agreement is concluded and the conditions under which these may be amended,of the procedure for terminating the agreement;and this information shall be confirmed in writing.

© that where a debtor overdraws his current account with the tacit agreement of the creditor and that account remains overdrawn for more than 3 months, the creditor must inform the debtor in writing not later than 7 days after the end of that 3 month period of the annual rate of interest and charges applicable.

 

3. In this Determination the terms 'creditor' and 'debtor' shall have the meanings assigned to them respectively by Section 189 of [the Act]. The term 'bank' includes the Bank of England and banks within the meaning of the Bankers' Books Evidence Act 1879 as amended.

[B3rty]

However the original debt was a credit card covered by the CCA 1974...I didn't request the use of an unauthorised overdraft to clear that account, or the setting up of a new account for this purpose and its a crafty way of setting aside their obligations under the CCA......

[B3rty]

For copies under sect77/78 they may omit sigs however for 127(3) this probably wouldn't stand up in (sigs and prescribed terms)

 

Look at me I'm sounding like an expert now...lol...slap me down if I'm getting too bold....

 

Jokes aside.... I have looked at this for my own purposes and have come to the conclusion that some copies are OK for the section 77/78 copy but not for 127(3) purposes , however IMHO... if you want to get to the court stage you need to be pretty confident of your abilty to convince the Judge thats its not an executed agreement.

[B3rty]

CCA 1974 agreements ....Can someone tell me the difference between prescribed and implied terms ?

[B3rty]

I have uploaded a copy of my CCA recieved from the DCA pending court action and would appreciate any comments

 

My thread is here http://www.consumeractiongroup.co.uk/forum/general-debt/118878-help-court-ccj-letter-6.html#post1320587

 

Berty

[B3rty]

They say they are IFA's but they are not on the FSA register, Amanda shows as an ex director of a mortgage company but her old registration is CF8 and to be an authorised adviser it needs to CF21 or now is CF30, so thats a lie..

 

I think the website says it all....tacky and cheep

[B3rty]

Hi Basil...

How come you say you are IFAs yet do not appear on the FSA register?

[B3rty]

We are qualified IFA's not working as IFA's under a regulated company

 

The register goes back to 2001 and you do not show as previously registered Amanda shows as CF1 & CF8 so not regulated adviser status...this would appear to be a dubious claim...care to expand?

[B3rty]

Ok so in actual fact you only gave advice on mortgage and related protection products...so holding full FPC only means you passed the qualifcations but how do you train to be IFAs ? this is gained through expereince and ongoing CPD....I would drop the reference if I were you as you are not IFAs only ex Mortgage advisers that hold FPC who are not regulated.

[B3rty]

gaz....independant mortgages advisers...no problem however you can't give holistic financial planning so not true IFA in the sense of the word and and to advertise this could be misleading also you have a different set of terms of business.....a little bit like a DCA legal dept calling thems selves Solicitors!

 

My real concern is there are genuine folk out there in real need that can't afford 20% and this may be a [problem]......They promote them selves as IFA's could be misleading...thats all

[B3rty]

In the CCA regulations Schedule 7.1 it states how APR must be shown where the credit limit isn't known at the time the agreement is signed.

 

Does anyone know how this effects running account credit where the credit limit is known ?

 

I have my thread here http://www.consumeractiongroup.co.uk/forum/general-debt/118878-help-court-ccj-letter-5.html

 

And my defence is will be based on 127(3) but I am looking at other aspects and the signature copy they have sent shows a credit limit (I have blanked for confidentiality) but the prescribed terms in another document are the usual CC ones.....I am trying to build a case for the 2 documents not to be linked...

[B3rty]

Thanks for this but it doesn't answer the question clearly.....the act allows for assumptions on the way the APR is quoted in the case of running account credit agreements where the credit limit is unknown.....I am just wondering where the credit limit be known as in my signature doc would this mean that the assumptive APR presecribed terms are not the right ones to use?

[B3rty]

I am just poping into this thread to ask for any extra info on DCA's adding costs/charges, I have found CCA s.93 and OFT guidlines and just wondered if anyone had more reference material they could point me to

 

Mythread is here

http://www.consumeractiongroup.co.uk/forum/general-debt/130231-berty-needs-help-re.html#post1371298

[B3rty]

....and the DCA may sent these on separate sheets because thats how they receive them from the OC archives but they will need to prove that they are all contained in the same document...the only way is to show the original in court which is very doubtful and CPR 16 says

 

7.3 Where a claim is based upon a written agreement:

 

(1)a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing

[B3rty]

This stuff about the original being needed is not as clear cut as we might like to think, and I know of one case recently where a judge allowed enforcement on a copy document simply because the creditors swore it was a true copy of the original.

 

The CPRs seem to suggest that the original is needed in Court but look at Section 8 of the Civil Evidence Act 1995:

 

Proof of statements contained in documents

 

(1) Where a statement contained in a document is admissible as evidence in civil proceedings, it may be proved—

 

(a) by the production of that document, or

 

(b) whether or not that document is still in existence, by the production of a copy of that document or of the material part of it, authenticated in such manner as the court may approve.

 

(2) It is immaterial for this purpose how many removes there are between a copy and the original.

 

 

Now, what this means is that a Court may accept a copy for enforcement as long as it is satisfied as to the creditor's methods of archiving.Today 18:38

 

Ian....I have looked at this....and its a grey area.....I would still argue that an agreement isn't a statement contained in a document at the end of the day its one more thing to hit the opposing lawyer with and suggest to the judge.....

[B3rty]

I believe he’s right about the application form becoming the agreement, however this needs to contain the prescribed terms set out in the manner set out in SI 1553 s.4 Consumer Credit (Agreements) Regulations 1983

 

What you have isn’t remotely close so therefore you could argue for 127(3) in court, which brings up an interesting point where this could fail in court on presenting it as an application form which cant be used as an agreement for credit or won where as the defence is no prescribed terms in the order and layout as shown below, you need to clarify what your argument is....

Just write back and thank him for pointing out the useful information however where are the prescribed terms as per SI 1553 and point out that with out those its not enforceable by the court under 127(3)....

 

 

4) Subject to paragraphs (5) and (9) below, the information, statements of the protection and remedies, signature and separate boxes which this regulation requires documents embodying regulated consumer credit agreements to contain,shall be set out in the order given by paragraphs (a) to (f) below under, where applicable, the headings specified below--

 

(a) the nature of the agreement as set out in paragraph 1 of Schedule 1 to these Regulations;

 

(b) the parties to the agreement as set out in paragraph 2 of Schedule 1 to these Regulations;

[

© under the heading "Key Financial Information", the financial and related particulars set out in paragraphs 6 to 8B, 11 to 14 and 15 to 17 of Schedule 1 to these Regulations;]

 

(d) under the heading "Other Financial Information", the financial and related particulars set out in paragraphs 3 to 5, 9, 10, 14A and 18 to 19A of Schedule 1 to these regulations;

 

(e) under the heading "Key Information"--

 

(i) the information set out in paragraphs 20 to 24 of Schedule 1 to these Regulations; and

(ii) the statements of protection and remedies set out in Schedule 2 to these Regulations; and

 

(f) the signature box and, where applicable, the separate box required by paragraph (7)(b) below; and such information, statements of protection and remedies, signature and separate boxes shall be shown together as a

whole and shall not be preceded by any information apart from trade names, logos or the reference number of the agreement or interspersed with any other information or wording apart from subtotals of total amounts and cross references to the terms of the agreement

[B3rty]

All this is in SI 1553, however here's a link for the OFT 786pdf which explains it in easier to undertand terms

 

http://www.oft.gov.uk/shared_oft/reports/consumer_credit/oft786a.pdf

 

For example the way the document has to be laid out is explained here and its interesting to note the OFT comment at the bottom

 

 

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 (and any separate box, see Q5.3).

 

 

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.

[B3rty]

ncf355 wrote

 

the layout you quote from the OFT pdf relates to post 2006 docs - if you look at the para's referred to they arent in SI 1553

 

The only order required for pre 2006 is that the financial particulars and statements of protection must be "show together as a whole" and not interspersed with any other information (with the exception of cross references to the terms)

 

This is stated within SI 1553 Reg 2(4)

 

This is from SI 1553> My understanding is they have to be set out in the order stated.....the element are contained in the schedules at the end of SI1553....this is pre 2006.....correct me if I am wrong as I am still learning but its how I read it..

 

(4) Subject to paragraphs (5) and (9) below, the information, statements of the protection and remedies, signature and

separate boxes which this regulation requires documents embodying regulated consumer credit agreements to contain,

shall be set out in the order given by paragraphs (a) to (f) below under, where applicable, the headings specified below--

(a) the nature of the agreement as set out in paragraph 1 of Schedule 1 to these Regulations;

(b) the parties to the agreement as set out in paragraph 2 of Schedule 1 to these Regulations;

[© under the heading "Key Financial Information", the financial and related particulars set out in paragraphs 6 to

8B, 11 to 14 and 15 to 17 of Schedule 1 to these Regulations;]

(d) under the heading "Other Financial Information", the financial and related particulars set out in paragraphs 3 to 5,

9, 10, 14A and 18 to 19A of Schedule 1 to these regulations;

(e) under the heading "Key Information"--

(i) the information set out in paragraphs 20 to 24 of Schedule 1 to these Regulations; and

(ii) the statements of protection and remedies set out in Schedule 2 to these Regulations; and

(f) the signature box and, where applicable, the separate box required by paragraph (7)(b) below;

and such information, statements of protection and remedies, signature and separate boxes shall be shown together as a

whole and shall not be preceded by any information apart from trade names, logos or the reference number of the

agreement or interspersed with any other information or wording apart from subtotals of total amounts and cross

references to the terms of the agreement.

[B3rty]

mpfa

Don't worry because they will need to produce an agreement when it gets to your local county court stage so acknowledge the claim unsing MCOL, this gives you 28 days to submit your defence which will be no default notice , no agreement e.t.c, it will then be transfered to your county court and they will have to produce these to get a hearing.....you need to start your own thread and get help to prepare your defence as the first stage.

[B3rty]

HAK.....its in CPR 16- 7.3 about producing the original if its an agreement in writing.