Cap1 & CCA return

[banker_rhymes_with]

Sorry, added to this Thread in error, now deleted.

[banker_rhymes_with]

Hello All!

 

Is there any way that you can ask a banker if they actually have the Original Hard Copy of a Consumer Credit Agreement (CCA)?

 

By that, I don't mean the usual s77-79 Consumer Credit Act 1974 request for a True Copy, but something much more direct, along the lines of...

 

BRW: "Look, banker, to save messing around, do you actually have the Paper Document? You know, the real, actual, physical thing that you claim I have signed and that binds me to your nasty Loan/Card."

 

Banker: "Yes."

 

BRW: "What, the real thing, with my actual Signature, the bit of Paper that you say has all of that micro-Font Prescribed Terms on the back as well?

 

Banker: "Yes."

 

BRW: "Can I come and see it then?"

 

Banker: "No."

 

But, seriously, this seems to be a simple enough request.

 

I get the feeling that a lot of horse trading could be avoided if we could get that simple answer out of them at a much earlier stage.

 

At the moment, we send off s77-79 requests, they send us back anything from a black photo-copied smudge, to an Application form, to something the Office Duty Baldrick made up with Photoshop, Scissors and Glue, to some Poison Pill Document that appears to stitch us up like a Kipper (even though we've never seen it before).

 

We argue over that Copy of a Document for a while, agonise if that blob is a Tea Stain or a Prescribed Term, call each others Bluff, sometimes fight Debt Collectors along the way, sometimes agree to disagree, sometimes Pay, sometimes get Paid or, if none of that works out, we do sometimes end up in our very best Dancing Gear standing in front of a Judge...when we finally get to see what they really have (leaving Court with either a Fat Cheque or a booking at the Centre for the Homeless)!

 

Sorry to ask something obvious that may've been asked before, but it would help us all I'm sure to know if they really still have the actual Document in the first place.

 

Has anyone asked this, and been given a sensible answer?

 

Or, put another way, asked them to please confirm if they still have the Physical Document and, if required, would they be able to produce this for inspection.

 

I suspect this would be too easy, and too obvious, and would just spoil all the fun!

 

Cheers,

BRW

[banker_rhymes_with]

Hello Chris!

 

Yes, I thought it might be worth asking this. I think this issue is mainly one that affects two-sided Consumer Credit Agreement (CCA) Documents (or any two-sided thing a banker is trying to say is a CCA), but it is also important for one-sided Documents where the quality is suspect and/or the Document looks "made up" with odd crease lines and Text alignment issues.

 

I like to be direct, and it just made me wonder if this question should not be added by all when submitting s77-79 requests anyway. Or, better still, wait to see what the bankers produce from your s77-79 request and only THEN ask them if they still have the Original.

 

Indeed, almost certainly better to wait until they produce something, as then you can ask if what they have produced is based on an actual Copy taken within the last few Days from the Original, or how exactly was it produced.

 

From Microfiche?

 

From a PDF Scan?

 

From a Photocopy?

 

From a Fax Copy?

 

In my view, if they say anything other than it's a recent Copy taken from the Original, then that raises a big doubt that the Document is valid. Where is the proof that this is really a Copy of the original (you know, the one that I signed in real ink).

 

If it's a two-sided Document, then how can they prove the two sides are Scans/Copies of the two sides of the Original? I'm certainly not interested in taking a bankers word for this.

 

I do appreciate asking this Question is not covered by any Legislation, so the bankers can ignore it, fudge the answer, or hide behind the limit of their obligations. But, it cannot do any harm to ask.

 

If they respond at all in any way that tells you what they have got in terms of a Copy of Original or the Original, then press them further to explain the nature of the Copy or ask where the Original is kept...is it hole-punched?...(remember to look for signs of filing holes in the Copy)! Is it kept in a nice Plastic A4 Pouch? Where exactly are you keeping my fine Agreement?

 

Then, if/when it is time to get the Dancing Shoes on for the Judge, you'll have that all in Writing and it may be very useful if they then fail to bring the Original CCA along.

 

I think this is a vital issue when any Terms are supposed to be on the back of the Document. There has to be some proof that a two-sided Copy is the same as the Original two-sided CCA.

 

There are too many pre-2006 two-sided Credit/Card Application Forms being considered as CCAs under s127 just because they are supposed to have the Prescribed Terms on the back.

 

Without the Original, then how can anyone know the "Back" they produce is the "Back" that was on the Original? Where are the References Numbers that link the two Sides? Matching Date Codes? Printers/Press Printing Codes?

 

Failing that, can they produce Evidence from their Printers who carried out the Press Run that produced this two-sided Document. When was the Press Run carried out? Date? Purchase Order with Press? Who Designed the Document? Can the bankers produce their Artwork Files? Show us the evidence of the Printing Films or Printing Plates...that sort of thing.

 

If a CCA appears in Court that is a Copy, then I feel that has to be a serious flaw in the bankers case. Especially in terms of two-sided Application Forms that are being considered as Agreements just because the banker says the Prescribed Terms on the back were there on the Original.

 

Prove it banker.

 

Only the Original will do, a Copy will need additional evidence to confirm the two sides match the Original CCA if that is no longer available. If it is available, then why have you not brought it along in Court, and why did you not send a Crisp Copy of that in response to the s77-79 CCA request?

 

Hope this helps.

 

Cheers,

BRW

[banker_rhymes_with]

Hello pt2537!

 

Erm yeah it is, its covered by the Civil Evidence Act 1995 for starters and further to this, document retention is covered extensively in the Law of Evidence. I am currently carrying out research in this area and its certainly eye opening

 

Very interested to read this, as I felt there had to be something more in this.

 

Put it this way, any banker trying to fob me off with some nasty Copy will be asked to explain this Copy in full detail from a Physical Document point of view.

 

Cheers,

BRW

[banker_rhymes_with]

Hello All!

 

What is the position when an initial pre-Contractual Consumer Credit Agreement (CCA) arrives that is already Signed by the Creditor/Lender?

 

I feel that would make the Agreement Void under s59:

 

Consumer Credit Act 1974 Section 59

 

(1) An agreement is void if, and to the extent that, it purports to bind a person to enter as debtor or hirer into a prospective regulated agreement.

 

(2) Regulations may exclude from the operation of subsection (1) agreements such as are described in the regulations.

 

If I then Signed such an Agreement and sent it back, the Loan then went ahead, any Copy of that Agreement would clearly show that my Signature post-Dates that of the Creditor/Lender. In turn, that theirs pre-Dates mine. So, would s59 Void such an otherwise "executed" Agreement?

 

Or, rather, what "agreements such as are described in the regulations" would not then be covered by s59?

 

I feel that an Agreement should not arrive already Signed by a Lender, as then it is pre-executed as far as their Signature is concerned. When I send that back, what is left for them to Authorise? The moment I sign, I am bound to it, so would s59 apply here?

 

Thanks in advance for any thoughts.

 

Cheers,

BRW

[banker_rhymes_with]

Hello All!

 

So the advice that you can 'legally stop paying' given on here does seem to have serious consequences if and when a creditor complies with a valid CCA request in that someone who has followed that advice may find themselves with a vastly increased debt due to the addition of interest in the period of the CCA default by the creditor.

 

 

It's worth pointing out that once you question a banker's Authority to make you Pay via a s77-79 CCA Request, it's usually the case that you will end up with a "vastly increased debt" in any event.

 

Most of the Card Companies increase your Interest Rate once you submit a CCA, so it's a no-win issue on trying to stop them doing this. Indeed, if you've had any trouble paying because of earlier Interest Rate increases, they won't make it any easier for you, as they'll just increase them again for good measure.

 

It must be remembered that they want the Debt to inflate at that stage, as they are already looking at it from a Tax Loss Write Off or Sale to a DCA point of view...having more or less convinced themselves that you have come to the end of the road as far as milking you for money is concerned. In either case, they need the end stage Debt to be as high as possible. Increasing Interest Rates at the end can push most Debts up by perhaps 10%-20%, at no actual Cash cost to them.

 

In my view, you need to be aware that once a CCA Request goes off, you may need to forget ever using that Account again as you once did. The bankers that don't ramp up your Rates during the CCA Agreement Request Default stage, will ramp them up later, as many have reported.

 

You've crossed the Rubicon as far as they are concered, so before submitting a s77-79, I think people need to be quite prepared to go all the way. For many, the choice has already been made by the banker's behaviour prior to submitting that Request.

 

In practice, they enforce the balance, not the payments missed, once you're in default, so that probably won't work.

 

Since s77-79 Request submission, all mine seem to be trying to enforce the "missed Payments" that I have witheld because they have failed to produce Enforceable Agreements within the 42 or so Days. They are mostly using those as an excuse to issue a Default Notice, after that, they'll be coming for the vastly inflated end balance, or will settle on the Tax Write Off and/or percentage Payment from a DCA (if they feel unable to Enforce in Court). I fully expect the rest will either take me to Court, or will leave that for their DCA.

 

From what I have seen so far, it is a one-way trip. Making Payments or witholding Payments has to be down to your own circumstances and willingness to follow through what should be your Legal Rights. Either way, if you elect to submit a s77-79 Request, things will never be the same as far as that Account is concerned.

 

Cheers,

BRW

[banker_rhymes_with]

Hello Blamethebank!

 

Just to let people know that Blamethebank has their own Thread on this here:

 

Blamethebank MBNA and Data Protection Issues

 

It may be wise to respond there than for any help to get swamped in this huge CCA Thread!

 

Cheers,

BRW

[banker_rhymes_with]

Hello Sharkie!

 

Question

 

If the total of your drawings & purchases, is less than the total of all credits made, can you claim that you owe nothing, based on you have paid for everything you have either purchased, and or been advanced, plus a bit more.

 

That is a very valid issue, and one I keep trying to get people to look at when examining their so called debts.

 

My own argument is along the lines of: adding it all up, I can see that I have Paid them more than they ever let me Spend. Thus, the argument over the Debt is now down to them having an Enforceable Agreement to make me pay all of their Charges and Interest.

 

I do think knowing that, and having that firmly in your mind should you end up in Court, is a very strong mental position to argue from.

 

I stress mental, but knowing you are in the right on the morals of it all, is half the battle won.

 

No Enforceable Agreement = No Right to make you Pay for all of their total Interest and Charges.

 

For example, on one of my Cards, they are chasing me for 18k and climbing. But over the life of the Card, I have Paid them back around 5k more than I ever spent. The 18k they now want, is therefore made up of Interest and Charges.

 

If they can't Enforce, I have not got away without Paying 18k, they have simply lost out on 18k of Charges/Interest that they had no right to anyway, as they were stupid enough not to arrange a suitable Agreement.

 

The debt is not a bag of 18k in Cash that I have gone out and spent.

 

Indeed, you can say I have Paid them 5k of that anyway, so they are only missing out on around 13k of Charges/Interest, of which around 2k were Unlawful anyway, and at least 4k derived from very, very excessive Interest.

 

It's sadly ironic that they will write it off against Tax anyway, so you cannot feel sorry for them in any way at all.

 

I urge everyone when faced with claims to Pay Card or similar Debt, to take a good look at the make up of the alleged Debt. You may be very surprised what the true picture is, and feel much keener to fight back!

 

Cheers,

BRW

Edited July 31, 2008 by banker_rhymes_with
Can't Type!

[banker_rhymes_with]

Hello BlueSquirrel!

 

Also would I be right in saying that sections 59 to 61 only came into being on 19th May 1985 so an agreement prior to that could be an application form and have no signature and still be enforceable?

 

I don't know, but would think it would still have to have the Prescribed Terms to be Enforceable. I would also like to know, as I have one from just before 1983!

 

Also can someone tell me if S127 (3) has gone completely or only for contracts after 2006?

 

No, s127(3) still applies to Agreements made before the CCA 2006 amendments, the repeal of 127(3) was not retrospective. If you need confirmation of that, I'll try to dig out the references, but I know many of PT's Defences specifically mention this to keep duffer Judges on their toes.

 

Cheers,

BRW

[banker_rhymes_with]

Hello Peter!

 

Agreememnts made before May 1983 were actionable in the same way as any private agreement. The CCA laid down the format for the protection of commertial agreememnts after this date.

 

Could you possibly clarify that for me, as I have one "Agreement" for a Credit Card that was made in late 1982.

 

All I have been sent is a Microfiche Copy of an Application Form. There are no Prescribed Terms, indeed, I cannot even see any mention of the CCA-1974. It only mentions Terms by saying "overleaf". However, there is no overleaf. They have sent me some Terms on another Scan that seem to contain at least 2 of the usual Card Prescribed Terms. But the latter is clearly unrelated in Physical Terms to the Agreement Copy, i.e. size/shape is not the same, so it's not a Copy of anything that was on the rear/back of the Signature Page. It's clearly a Copy of another Document.

 

Broadly, is my position weakened by being so old, or is an Agreement made in 1982 still covered by, say, CCA-1974 s127(3)?

 

Sorry to hassle you with this.

 

Cheers,

BRW

Edited August 7, 2008 by banker_rhymes_with
Clarification of Rear

[banker_rhymes_with]

Hello Magda!

 

I think the main problem to date has been a complete lack of awareness of CPR Practice Direction 16 7.3.

 

Had this come to light on CAG earlier, I'm sure many more people would've been able to question the validity of crabby Prints, Electronic Scans, Microfiche Scans and cobbled-together-via-Photoshop "Agreements"!

 

Mentioning CPR Practice Direction 16 7.3 should've been a knock-out blow to floor any bankers waving a Copy Agreement around but, sadly, many Consumers hauled into Court just did not know about it...and many paid the price too!

 

The task now is to make sure everyone on CAG is aware of this, and adds it to any Defence, as indeed Paul/PT2537 is now doing.

 

The Agreement is a Statutory Document, and should not be scanned and shredded while the Agreement is still Live. The banks will bleat on about how they could not be expected to keep all Agreements, but don't let them get away with this. The only ones they need to keep are the Live ones and, even then, only for 6 Years after the Agreement expires. Once past that, they can Scan and Shred till their little banking hearts are content. But not before that.

 

After all, how hard can it be to store a Sheet or two of Paper, given the importantence of that key Document?

 

The bankers and their lawyers would rather sweep this little issue under the carpet, as 99% of them have shredded their live Agreements, despite CPR Practice Direction 16 7.3.

 

Likewise, might be worth mentioning the Anti-Money Laundering issues too, as I believe they are required to retain the Original Agreements for 6 Years after the Agreement ends.

 

Finally, don't forget the Civil Evidence Act 1995. This is not really aimed at important Documents such as Statutory Agreements, but does cover most other things, such as routine business paperwork, correspondence and documents.

 

In a nutshell, Original Documents are Evidence, any copies are just Hearsay Evidence and carry a significantly lower weight because they are no longer regarded as primary Evidence.

 

If the bankers want to produce any Copies of routine bumf, then they have to give you and the Court prior notice in view of CEA-1995. Likewise, if they want these copies to be taken seriously, then they better have a complete Audit Trail of their Document Management Procedures, i.e. something that is Independently Verified and Certified!

 

Who here trusts the word of a banker? Not me for sure! So I would not be happy to rely on a banker's word that what they have produced is a copy of the real Document. I'm not referring to Agreements here, just copies of routine bumf. Agreements are already covered by CPR Practice Direction 16 7.3 so should not need to come under CEA-1995.

 

In summary, that's two new strings to your bow:

 

(1) Original Agreements are required in Court because of:

 

CPR Practice Direction 16 7.3

 

(2) Any other Paperwork needed in Court needs to be Original if it is to be considered as Evidence, otherwise, it's Hearsay Evidence, and if they want that to be taken seriously, they'll need to comply with:

 

Civil Evidence Act 1995

 

...and have some back-up details to show how they manage these copies.

 

Repeat after me...only the Original Agreement will do!

 

I do hope this helps.

 

Cheers,

BRW

[banker_rhymes_with]

Hello Peter!

 

It is rarely as simple as that in practice though as the creditor will invariabley try to fudge the issue by producing statemements or application forms.

 

Regarding my 1982 Application Form...any advice you can give on how to tackle that would be greatly appreciated.

 

I just do not know how an Application Form with no Prescribed Terms relates to the CCA 1974, i.e. a lot of amendments to the Act came after 1982, so what protection do I have do you think?

 

IOW, how much of the 1974 Act covers me in 1982...if at all!

 

Thanks in advance.

 

Cheers,

BRW

[banker_rhymes_with]

Hello Peter!

 

I saw 1982 and read 1992.

 

No problem!

 

To all intents and purposes the aggreememtn would be unregulated if made before 1985

 

Sadly, that moves me well out any knowledge I have. Does pre 1985 mean I'm in a world of hurt, i.e. does that make the issue easier for the Creditor to enforce if they have a Signed (Copy) of an Application Form?

 

If 1982 means Unregulated, then what would be my best line of Defence?

 

If s127(3) does not apply, I assume their strategy would be to seek Enforcement via Transaction History to prove the "agreement".

 

Do I have any counter to that?

 

There are Unlawful Charges, but not enough to cover the alleged Debt of 12k+.

 

Thanks for any thoughts.

 

Cheers,

BRW

[banker_rhymes_with]

Hello Magda!

 

I've just posted something over on Davefirewalker's Thread which is along the same lines, which may also help. This will take you straight to the Post:

 

CCA's and Dave against the world !!!

 

I absolutely do not trust bankers.

 

Cheers,

BRW

[banker_rhymes_with]

Hello BlueSquirrel!

 

Since I have ye olde agreement also, I am interested to know if it can be enforced or not.

 

That makes two of us then!

 

Now trying to read up on Pre-1985 issues to see where I stand on this.

 

Being a loyal Customer for nearly three decades counted for nothing.

 

Unregulated is a whole new and exciting subject for me!

 

 

Cheers,

BRW

[banker_rhymes_with]

There can't be that many Judges out there, so why don't we start to compile a CAG List of Judges, based on CAG Members direct experiences in Court, after all, we must've seen them all by now!

 

Something along the lines of:

 

Fair and Reasonable Judges

 

Judge Smith

Judge Jones

 

CCA Clueless Judges

 

Judge Green

Judge Red

Judge Blue

 

Bank Biased Judges

 

Judge Brown

 

Something like this could give people a Heads Up on the Judge Lottery before they step into Court. Indeed, it might even force a change that could remove or reduce the Lottery aspect. Some Judges may start to do their job a little better if they realised their conduct and performance were being watched and ranked, and their bias and/or incompetence made public.

 

Cheers,

BRW

[banker_rhymes_with]

Hello Jax007!

 

Please can you have a look and let me know whether you consider it enforceable or not? Also it would be helpful if you gave the reasons either way

 

Peter's comments are quite valid, assuming what we are looking at is a (poor) copy of a real two-sided Document.

 

However, I feel it is worth mentioning that what they have sent appears to be two copies of two Microfiche Copies. Note the dark black areas around both pages...you don't normally get that via a Photocopier.

 

These appear to be copies of copies in that case. These do not look like someone has copied a two sided Document by simply flipping the thing over on a Photocopier. The quality would be better for a start, as banks have more than enough money to afford the very best Photocopiers.

 

A poor copy should ring alarm bells the moment you see it. Why is the copy poor?

 

Furthermore, I can't see anything concrete that links the two Pages. I think these are two Scans, so two Documents if that is all they now have, neither of which can ever be the Original once saved to plastic. The Signature Page has many Printer's Marks or Document References and a Barcode, whereas the Terms and Conditions Page is very plain and has almost nothing other than Text. Is this really the back of the Signature Page?

 

These could just be two documents brought together in one envelope and sent to you, just to satisfy a s78 CCA Request. I regret that I do not trust banks not to try to give the impression they have an Enforceable Agreement, when in fact that may not be the case.

 

Peter is quite right that the Prescribed Terms appear to be all there if these are two sides of the same Original Agreement and if the Original is more readable than the crabby thing(s) they have sent.

 

But, have they got the Original Agreement, that is the question. That would be the only thing that could prove these two Pages were ever part of the same properly executed Regulated Consumer Credit Agreement.

 

If they wished to enforce a Written Agreement in Court, they would need to bring the Original Agreement to the hearing see:

 

CPR Practice Direction 16 7.3

 

I feel you must ask to see the Original, or make sure you request that they must bring this to Court if it comes to Court.

 

Finally, can you read all of this? If anything important cannot be read, then you can argue that they have not even satisfied your s78 CCA Request, as the documents must be legible to comply with:

 

Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983.

 

Sorry, can't find the link to this, but the part you need to refer to is below:

 

2

(1) The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the .

 

Cheers,

BRW

Edited August 28, 2008 by banker_rhymes_with
Can't spell or type!

[banker_rhymes_with]

Hello jax007!

 

Peter is very experienced with the CCA, so his comments are accurate based on the document(s) we have seen. If the bankers have the Original, then it would appear to be Enforceable.

 

However, Peter's comments are based on the assumption that what we have seen are two sides of the same Written Agreement.

 

I'm saying you need to ask if that is really the case. If the bankers have destroyed the Original, then CPR PD 16 7.3 gives them something of a problem. If they no longer have the Original, they cannot bring it to a hearing as required.

 

In the past, I feel that a lack of awareness of CPR PD 16 7.3 has resulted in many people being treated very unfairly when in Court. I'm well aware that many banks have managed to get away with bringing dubious copies of alleged Agreements to Court. In each case, had the Judge at the time been made aware of CPR PD 16 7.3, then the outcome should've been in the alleged Debtor's favour. Indeed, some Judges are well aware of this, and have thrown out bank claims when no Original Agreement could be produced in Court.

 

After all, how far would you get in life with a poor Copy of your Exam Certificates, a poor Copy of your Birth Certificate, a poor Copy of your Driving Licence, a poor Copy of your Marriage Certificate, a poor Copy of a Utility Bill, a poor Copy of a Tennant's Agreement (if you are the landlord), a poor Copy of your Shotgun Certificate, a poor Copy of a winning Lottery Ticket?

 

You'd get precisely nowhere, of course.

 

So, why should a bank get away with arriving in Court with a poor copy of a Written Agreement?

 

In your case, at least from what we have seen, it does not look like the bank are holding an Original Agreement. The copies they have sent have tell-tale clues that suggest they did not simply walk up to a modern well maintained Photocopier, and copy an Original two-sided Agreement.

 

Otherwise, had they done so, your two pages would've been more or less crystal clear, instead of being blurred, smudged and crabby looking with a thick black background evident around the edges.

 

The point you must understand is that many banks never held Enforceable Original Agreements in the first place. Thus, if given the chance to dispense with the need to produce the Original, many bankers will be only too pleased to generate copies, as this gives them the opportunity to include all of the Prescribed Terms they neglected to include the first time around.

 

I do not trust banks, and I do not trust copies because it's all too easy to manipulate copies to say what ever you want them to say.

 

Put another way, if you wanted to generate a copy of something that you knew was highly dubious, would you make that copy crystal clear or would you attempt to blurr it to hide the evidence of your handywork?

 

Alarm bells should ring the moment you see a poor Copy of an Agreement.

 

Cheers,

BRW

[banker_rhymes_with]

Hello AC!

 

As I understand it, if the Account was Terminated on the back of an invalid Default Notice, then it's a case of Unlawful Rescission of Contract.

 

In effect, the OC has denied themselves, or any DCA following on thereafter, the Right to take you to Court to Enforce the Debt.

 

The DCA is just making up new Rules as it goes along!

 

If the OC has blown the requirements of s87(1), but still went ahead and Terminated the Account irrespective of this, then that's it. Game over.

 

They have lost the Right to Enforce. They can't go back to fix this error once the Account is ended, as there is no longer a live Account to Default. They have failed to close it in the lawfully prescribed manner, but close it they have. Tough beans.

 

To Enforce, they need a Default Notice. Except they no longer have a valid one to wave at you! The one they did create may as well be a Banana for all the use it will be to them, that's if it is invalid/defective.

 

Once an Account is Terminated, it can't be un-Terminated without your Consent. In theory, to re-activate it, would mean a new Credit Agreement. I doubt you would want to agree to that.

 

They can't just open and close and open and close Accounts willy nilly, as the Consumer Credit Act 1974 is there for a reason to control this. The CCA Regulates the Opening and Closing of Agreements. They have to be set-up/Opened correctly, and they have to be closed/Terminated correctly.

 

The Unlawful Rescission of Contract also then opens up the scope to seek compensation from them...see below:

 

EFFECT OF FAILURE TO DEFAULT AND TERMINATE AN AGREEMENT CORRECTLY

 

Failure of a Default or Termination Notice to be accurate not only invalidates such Notice, (Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1998 ) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, (Wilson v First County Trust Ltd [2003] UKHL 40, Wilson v Robertsons (London) Ltd [2006] EWCA Civ 1088, Wilson v Pawnbrokers [2005] EWCA Civ 147) but would also give the Claimant a claim for damages in the sum of £1,000. (Kpohraror v Woolwich Building Society [1996] 4 All ER 119)

 

I hope this helps.

 

Cheers,

BRW

[banker_rhymes_with]

Hello HHNF!

 

At the moment, it's really a case of quoting what is already in the CCA, and then researching existing Cases to quote in order to back this up.

 

Indeed, this is my understanding, so it would be good to discuss it here and I hope that some of those more experienced in the CCA and Court will add their comments.

 

To stress, the above is my understanding of the position, and I feel it is valid if you think it through. The cases I mention from another CAGGER's Thread seem to support this.

 

The battle, as ever, is then making sure a Judge follows the logic and comes to the same conclusion.

 

The Judge Lottery still has a lot to answer for! Likewise, you may have to push this past a slippery Barrister working hard for the enemy! Sometimes Victory or Defeat can come down to your luck on the day.

 

Thanks for the click BTW, I just hope the above helps.

 

Cheers,

BRW

[banker_rhymes_with]

Hello AC!

 

It sounds like the usual DCA fun and games, disinformation and invented rules to suit their desired end result...irrespective of the Law.

 

Firstly, I think it's wise to remember that an Agreement, if properly executed and Regulated by the Consumer Credit Act 1974, is a binding Contract between both sides.

 

A lot of the discussion in this Thread does, correctly, concentrate on the Consumer side of this. However, we must also remember that there is another side to this. The other side, namely the Lender or Original Creditor (OC), that side is very tightly governed by how it can, and cannot, act.

 

If you or I want to end an Agreement, the main issue that matters is to close it leaving no Debt. If a Credit Card, you Pay the Balance, send the Card back, and say Bye, Bye, it was nice doing Business with you.

 

However, if the OC wants to end the Agreement, then they can't just wake up one morning having a Bad Hair Day, and say, that's it, Terminated, now Pay us the Balance. They would probably have to compensate you for the gross inconvenience this would cause, and the compensation could be to wipe the Balance.

 

Now, if you Breach your side of the Agreement, then the CCA via s87(1) sets out what they need to do to warn you via a valid Default Notice, and then, if you do not remedy that Breach within the Statutory timescale advised via the lawful Default Notice, thereafter, they acquire the Right to Terminate the Agreement and seek early Payment of the whole Balance. This can be via Court if you won't or can't Pay it.

 

What they now have is an Enforceable Lump Sum Debt. It is no longer an Agreement, so there is no point Defaulting it. It's just a lump sum Debt backed up by sufficient evidence to allow a Court to Enforce it. They can either make you Pay, or they can Sell it on fast for a fast buck, and let someone else make you Pay. The wise OC will work out their Court Costs, work out the time it will take, work out the loss of income (or opportunity cost) if they did not have the cash to re-lend now, and then deduct all of that from the Debt Total and then find a dull DCA to sell it to for around that figure.

 

Now, if they didn't abide by the Rules, specifically s87(1), then they can't seek early Payment of the whole Balance. Indeed, as I understand it, they can't seek anything, as they've blown their side of the Agreement once they unlawfully Terminate the Account. Whatever Breach you made no longer matters, as they've chopped off the end prematurely. They've made it Unenforceable by not following the rules. They've left themselves with an Unenforceable Debt. They can sell that, but selling it does not make it Enforceable, and does not re-activate it back like magic into a properly executed Regulated Credit Agreement. It's just a stale Debt going nowhere...unless a crafty DCA can bully someone into Paying that is!

 

Going back to your MBNA Card, if your Agreement is irredeemably unenforceable, i.e. has no Prescribed Terms and is an Agreement before CCA 2006, then that should be that. Nobody should be able to Enforce the original Debt. They cannot lawfully Default you either, as there is no properly executed Regulated Credit Agreement to Default. There's also nothing to Terminate.

 

Thus, if the MBNA Defaulted you, but had no evidence of ever having an Agreement, then I think that is where you must first direct your attention. Write to the Credit Reference Agencies, and make it clear that the MBNA never had any Right to Default you. Get that Default removed first, and then start on any DCA that came thereafter.

 

If the MBNA's Default Notice was also invalid as a Notice, even better. But attack the MBNA issues first.

 

Once you have nailed the MBNA and any detritus they have left on your Credit History, then turn your attention to the DCA.

 

Once you have shown that the MBNA either never had an Agreement, or Defaulted and Terminated unlawfully, then you are on your way to proving that there is no Enforceable Debt, and certainly no Debt that could be passed on carrying with it any Rights at all, irrespective of the type of Assignment.

 

To be blunt, they may as well be passing on a Turnip.

 

The DCA now has a nice Turnip, and he now wants to Default you and Terminate the Turnip. Whatever he has, it is not a Live Agreement, and it is not an Enforceable Debt. He can't Default if the thing he has is not subject to the Consumer Credit Act. Using s87(1) implies that there is a Live properly executed Regulated Agreement to Default.

 

If the Agreement has already been Terminated, then it's dead as far as Defaulting via s87(1) of the CCA goes. The question then remains, is it a Debt that can be Enforced. Do they have an Enforceable Agreement, did the OC Default it lawfully, did the OC Terminate it on the back of that lawful Default, and did the OC then Sell the Debt lawfully to the DCA.

 

If the DCA thinks the Debt is Enforceable, then he should take you straight to Court without passing Go.

 

If not, then anything he does do can be contested by you, especially if you have, by then, already nailed the MBNA by clarifying No Agreement and/or Unlawful Rescission of Contract etc.

 

The DCA is just messing around, but I do appreciate that they will be causing short term damage if they are littering your Credit Files with adverse Data. Tackle them after the MBNA, and then bring all your guns to bear at the same time: CRA complaint, Information Commissioners Office Complaint, TS Complaint, FOS Complaint etc etc.

 

Pick off your targets one by one, starting with the biggest fattest one first, namely the MBNA. Don't let them slink into the background having dumped on your Credit File and then sold on an Unenforceable Debt.

 

If I were you, I would invest £1 and send the DCA a s78(1) CCA Request, just to pin them down. Wait 12+2 Working Days and, while you are waiting, bone up on the Consumer Protection from Unfair Trading Regulations 2008, that came into force on 26 May 2008. Then wait to see what the DCA does after the 12+2 Working Days...then add that to your above Complaints.

 

I hope this helps.

 

Cheers,

BRW

[banker_rhymes_with]

Hello Magda!

 

I am given to understand by BRW that a debt that has been sold/ assigned to a DCA cannot be rectified by re-serving a NOD; BRW correct me if am I wrong.

 

That's not quite what I meant. As I see it, the issue hinges on the Termination of the Agreement. The Assignment is a later issue, and doesn't in itself say anything about the Enforceability of whatever is being Assigned.

 

Termination = something that existed, but that has now been brought to an end.

 

The CCA requires that before an Agreement (i.e. that is in default by the Debtor for whatever reason) can be Terminated, and in turn early repayment demanded, a lawful Default Notice must be sent.

 

87.

Need for default notice.

 

(1) Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice ”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,—

 

(a) to terminate the agreement, or

 

(b) to demand earlier payment of any sum, or

 

© to recover possession of any goods or land, or

 

(d) to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or

 

(e) to enforce any security.

 

My point is that Termination is Termination. Once the Agreement is brought to an end, it has ended. It's like being Pregnant and giving birth, you can't just reverse that, become un-Pregnant and pop the baby back in!

 

I'm quite sure that when Francis Bennion was drafting the CCA, he didn't just select the word Terminate at random because he liked the sound of it. If he really intended this to mean sortof ended, easily reversed, a definite maybe end, he'd have chosen another word entirely or left it out. No, he chose Terminated and he absolutely meant Terminated.

 

If a Creditor wants to Terminate an Agreement and make the end final, then they must Default you beforehand, and that Default must be lawful and valid. It is a critical step and s88 outlines what is needed for that required Notice to be valid.

 

Again, s88 wasn't added just to pad out the middle bit of the Act.

 

If they get it right, then they can end the Agreement, and drag you into Court to have a chat about the early repayment issues. That's assuming they have the other paperwork in order, such as having to hand the Original properly executed Regulated Credit Agreement.

 

However, if they have messed up the Default Notice, and then gone on to Terminate the Agreement, it should be a one way trip. I cannot see anything in the Act that allows them to reverse a Termination, re-activate the Agreement and then go back to fix an invalid Default Notice.

 

Otherwise, how far back can they go to fix other issues, such as going back to fix an invalid Agreement! Look M'Lud, here's a nice new Agreement we knocked up last week, to fix the one we messed up 10 years ago. And here's the nice new Default Notice we knocked up yesterday, to fix the one we messed up last Christmas.

 

I do fully appreciate that this won't stop the creative banker from trying, and I'm sure it won't stop their creative Barrister from trying to smooth a brand new post-Termination Default Notice past a half awake Judge.

 

But, if you think about this, and are prepared to stand up and point out the clear logic to a Judge, then the lack of a valid Default Notice where they have also Terminated the Agreement, should be a knock out blow to any case they bring.

 

The original Default Notice must be set out in the Prescribed way, must allow the Statutory timescale from date of Service, and must be accurate in terms of the figures.

 

It's arguably no less important than the Agreement itself. Indeed, it should render any Agreement invalid if they mess up the Default and go on to Terminate, because that is an Unlawful Rescission of Contract. An Agreement is a Contract, it just happens to be one that is also Regulated by the CCA Act.

 

Rescission = annul or revoke, as if it never existed.

 

If the bankers send you a letter saying they have Defaulted and Terminated the Agreement, then it has ended. There can be no going back once they put the Termination in writing.

 

If the Default Notice was unlawful and invalid, that should present something of a major problem for them. I feel that they must produce a valid Default Notice in Court as much as they must produce a valid Agreement.

 

I think it can get messy when they Default but don't Terminate. Then the Agreement is in limbo, and I think they could, in theory, just trot out another Default Notice and then Terminate. But, by Court, they must show that the Agreement has ended, or else you can just say please can I have my Credit Card back, and I'd like to carry on making the minimum Payment, what's all the fuss about M'Lud.

 

So IMHO, the act of Terminating the Agreement is quite important, as it marks the cut-off point. The end of the Agreement. Beyond that, there is no Agreement to Default, just a Debt. The Court then must decide if that Debt is Enforceable...or not, but based on what came before the ending of the Agreement. The bankers should not be allowed to go back and fiddle the paperwork to fix errors.

 

Cheers,

BRW

[banker_rhymes_with]

Hello Magda!

 

Yes, the biggest problem by far is the Judge Lottery issue.

 

The best defence to that is to try and have a crystal clear understanding of the points you are making to stop the Judge from making a poor decision...especially if he/she is so biased that they want to make a poor decision!

 

I think the CCA does say all that you need to see off a Court Claim based upon an invalid Default Notice and unlawful Termination but, it's not as clear as we would like. So, it's vital to know what points you are presenting, and make sure you state them very clearly and with as much supporting case history to back you up as you can find.

 

However, as we move steadily into the next banking engineered Recession, my greatest concern now is the political pressure that is inevitably being applied to the Judiciary to support the lame bankers who have caused this global financial mess in the first place. Please be in no doubt that this is not a Business Recession, much as the bankers would like to shift the blame elsewhere. What we are seeing is the inevitable banking boom/bust cycle because most major economies are now based on Debt Finance.

 

The banking bubble has to burst every few years, because that is how their system works. The problem for us, is the banking bubble gets bigger each time and, when it does go pop, the deflation gets worse each time. One day, the banking bubble may swell so large that, when it pops, it may not re-inflate. By then, the UK will just be one big Retail Park with nothing to sell, and everyone in so much Debt they couldn't buy anything even if they wanted to. We'll also by then have forgotten how to make anything...but at least we'll still have our own high quality Coal!

 

But, right here, right now, I fear we are going to see bank biased Judges being even more biased over the coming few years as the bursting banking bubble blows a big raspberry at us. Sadly, the odds are being stacked against the Consumer even more than they were.

 

When this next Recession is over, we'll see yet another huge transfer of assets to the banks. It is no accident that steps are already nearly in place to allow easier Charging Orders on Property. That didn't happen just by accident, it's part of a wider plan to shift even more of the housing stock over to the banks.

 

I urge everyone to sign FunkyFox's No 10 Petition to try and stop this wicked move from being enacted:

 

Charging Orders Petition - Sign it NOW!

 

At the last count, something like 50% of all Property is now bank owned. However, I think that will jump to perhaps 65% over the next few years. The bankers won't be happy until they get to 100%. Then they can lend and lend number-money far in excess of the build-cost or land value. The silly numbers will just get even more silly.

 

There was a large transfer of assets from Consumer to banker during the last Recession, this next transfer will be much bigger. The banks can't lose and won't be allowed to lose. After all, they are pulling all of the strings at the moment.

 

Sure, the bankers will sacrifice a few big sounding banks, and a shed load of bank employees will get a P45, but the core will do very well, and are no doubt already planning how to start re-inflating the banking bubble in a 3-4 years time.

 

Cheers,

BRW

[banker_rhymes_with]

Hello Viscount Stair!

Still very new here, so if I am in the wrong place, I won't take it astray if directed to the right one.

 

No problem, and welcome to CAG.

 

It's probably wise to start your own Thread, as this Consumer Credit Act Thread is a huge, huge Thread, so your above Post will soon get lost in amongst the daily Posts that will soon appear...and so because of that, you may not receive the best attention.

 

However, CAG does have a dedicated Amex Forum, please see below:

 

Amex

 

The best tip is to start your own Thread, and then edit your above Post to add a Link to your own Amex Thread. That way, people Today can see your Post, and then click straight to your New Thread over in the Amex Forum. All being well, you'll catch the attention of enough people here to get things started over in the Amex Forum.

 

I'll watch out for it, and will gladly help out there however I can.

 

Cheers,

BRW

[banker_rhymes_with]

Hello AC!

 

Any failure on the part of the creditor to serve a DN can be rectified by stopping the proceedings, serving a default notice and re-issuing the claim.

 

I do not think that is supported by anything in the Consumer Credit Act, i.e. if they have by then already gone ahead and Terminated the Agreement.

 

A Terminated Agreement is just that, Terminated.

 

IMHO there is nothing left to Default. All that is left is a Debt, and the size and enforceability of that Debt must then be evaluated based on the Original Agreement, Original Terms, Varied Terms if so allowed, related Documentation and all Notices that were created before and during the lifetime of the Agreement.

 

Were this not the case, then the banker could go right back and re-create a better Agreement than the one they first created.

 

There has to be a cut-off point, and that cut-off point is the Termination.

 

Cheers,

BRW