Cap1 & CCA return

[ncf355]

I just had to share this, 5 minutes effort has produced this on just 1 of my so called 'executed agreements' -

 

Falls over on

 

 

SI1553 of CCR 1983 -

 

Schedule 6

 

No credit limit (3.)

No rate of interest, as in nothing, not even 'may vary,bla'(4.)

No repayment information (5.)

 

Oooh - whats that? is that a couple of loose bricks at the foundation of that ivory tower?

 

Whats happens if I........

 

Oops! sorry about that

 

[ncf355]

Oh, just like to add that my criteria for court action is now based on how many times the ingorant gits call me in the space of one weekend - at the moment we have a clear winner so a rather nice POC is being drawn up as I speak and I feel it's one that not a judge in the land would have any issues with, whilst giving them NOWHERE to run and hide

 

MIB, come in please, your time is up!

[The Lantana]

As I understand it CCA74 is PRIMARY legislation. SI's are SECONDARY legislation. That implies a pecking order. Where these conflict, if a Statutory Instrument exceeds the powers granted for it in the relevant primary legislation it can be found to be ultra vires by a court, and therefore invalid.

 

This to my untrained mind means that to be effective the CCA74 must state somewhere that compliance with s77/78/any or whatever may be determined by SI. Or if there is ambiguity, SI's can clear it up.

 

I find it hard to accept that the CCA74 says specifically one thing and SI's are being passed to undermine it's effectiveness.

 

As an example of proper use of the SI procedure, I think the act is not clear that default notices should be sent by recorded delivery. I undersand SI's state recorded delivery is not required. This SI is compatible with the act as it serves to clarify and not contradict.

 

If anybody knows a solicitor this could be fleshed out over a pint, perhaps.

 

Read about SI's here: Statutory Instrument - Wikipedia, the free encyclopedia

 

 

Regards

 

 

 

Lantana

[Guest The Terminator]

60 Form and content of agreements

(1) The Secretary of State shall make regulations as to the form and content of documents embodying regulated agreements, and the regulations shall contain such provisions as appear to him appropriate with a view to ensuring that the debtor or hirer is made aware of—

(a) the rights and duties conferred or imposed on him by the agreement,

(b) the amount and rate of the total charge for credit (in the case of a consumer credit agreement),

© the protection and remedies available to him under this Act, and

(d) any other matters which, in the opinion of the Secretary of State, it is desirable for him to know about in connection with the agreement.

(2) Regulations under subsection (1) may in particular—

(a) require specified information to be included in the prescribed manner in documents, and other specified material to be excluded;

(b) contain requirements to ensure that specified information is clearly brought to the attention of the debtor or hirer, and that one part of a document is not given insufficient or excessive prominence compared with another.

(3) If, on an application made to the Director by a person carrying on a consumer credit business or a consumer hire business, it appears to the Director impracticable for the applicant to comply with any requirement of regulations under subsection (1) in a particular case, he may, by notice to the applicant, direct that the requirement be waived or varied in relation to such agreements, and subject to such conditions (if any), as he may specify, and this Act and the regulations shall have effect accordingly.

(4) The Director shall give a notice under subsection (3) only if he is satisfied that to do so would not prejudice the interests of debtors or hirers.

Just had a quick flick through the CCA and the bit about the SOS making regulations comes up a few times.

[zubo]

60 Form and content of agreements

 

(1) The Secretary of State shall make regulations as to the form and content of documents embodying regulated agreements, and the regulations shall contain such provisions as appear to him appropriate with a view to ensuring that the debtor or hirer is made aware of—

 

(a) the rights and duties conferred or imposed on him by the agreement,

 

(b) the amount and rate of the total charge for credit (in the case of a consumer credit agreement),

 

© the protection and remedies available to him under this Act, and

 

(d) any other matters which, in the opinion of the Secretary of State, it is desirable for him to know about in connection with the agreement.

 

 

(2) Regulations under subsection (1) may in particular—

 

(a) require specified information to be included in the prescribed manner in documents, and other specified material to be excluded;

 

(b) contain requirements to ensure that specified information is clearly brought to the attention of the debtor or hirer, and that one part of a document is not given insufficient or excessive prominence compared with another.

 

 

(3) If, on an application made to the Director by a person carrying on a consumer credit business or a consumer hire business, it appears to the Director impracticable for the applicant to comply with any requirement of regulations under subsection (1) in a particular case, he may, by notice to the applicant, direct that the requirement be waived or varied in relation to such agreements, and subject to such conditions (if any), as he may specify, and this Act and the regulations shall have effect accordingly.

 

(4) The Director shall give a notice under subsection (3) only if he is satisfied that to do so would not prejudice the interests of debtors or hirers.

 

Just had a quick flick through the CCA and the bit about the SOS making regulations comes up a few times.

 

Seems a pretty powerful section allowing the SOS to completely vary any provision by means of an SI.

The interesting point the Latina makes is that the SI is secondary legislation used to clarify primary legislation, and imho the CCA 1974 is the primary legislation we should always reference.

[Peterbard]

when you request a copy of your agreement, they have 12 days to supply it. If after a further calendar month (or is 30 days - can't remember which applies to which!) they still haven't supplied it, the debt becomes unenforceable. It's still a debt, and it's not voided, but only the courts can overturn and make it unforceable.

 

That's a very basic summary!!

Hi Ladybird UNFOREABLE TU TUT

Don't think anyone answered this for you.You are correct except that if the creditor turns up the agreement even after the44 days they are quite at liberty to enforce. The criminal breach is a sepperte matter and would have to be persued by the CPS if your lucky.

 

Peter

[Guest The Terminator]

Seems a pretty powerful section allowing the SOS to completely vary any provision by means of an SI.

The interesting point the Latina makes is that the SI is secondary legislation used to clarify primary legislation, and imho the CCA 1974 is the primary legislation we should always reference.

 

Latina is correct SI are secondary legislation and we should always refer back to the Act.It seems to me that the finiancial institutions have been hiding behind the regs for too long and it is only now that they are getting exposed.

[un1boy]

Hi Ladybird UNFOREABLE TU TUT

 

Don't think anyone answered this for you.You are correct except that if the creditor turns up the agreement even after the44 days they are quite at liberty to enforce. The criminal breach is a sepperte matter and would have to be persued by the CPS if your lucky.

 

Peter

 

Peter,

 

Am I right in thinking that once they committed an offence, if they produce the agreement afterwards they can only enforce it with a court order?

 

I hope this makes sense....

[The Lantana]

If the act is explicit on some points, SI's cannot vary them. s60 allows SoS to determine the form and content, but if the act elsewhere states an agreement MUST contain blah, then this cannot be revoked by SI. The Minister could specify additional requirements only.

 

Whats interesting about s60 (2)(a), what happens if SoS fails to specify inclusion OR exclusion? I better sart reading the act!

 

Regards

 

Lantana

[The Lantana]

un1boy, once they have an agreement they can enforce without first getting a court order. No if's or but's on this I'm afraid.

 

Regards

 

Lantana

[un1boy]

If the act is explicit on some points, SI's cannot vary them. s60 allows SoS to determine the form and content, but if the act elsewhere states an agreement MUST contain blah, then this cannot be revoked by SI. The Minister could specify additional requirements only.

 

Whats interesting about s60 (2)(a), what happens if SoS fails to specify inclusion OR exclusion? I better sart reading the act!

 

Regards

 

Lantana

 

Hi,

 

What does SoS mean?

[The Lantana]

Secretary of State (the Government Minister)

[un1boy]

un1boy, once they have an agreement they can enforce without first getting a court order. No if's or but's on this I'm afraid.

 

Regards

 

Lantana

 

Oh dear,

 

I have always been told that if they don't provide the agreement after the statutory time and commit an offence, they can only then enforce it with a court order....I believe you though....

[Peterbard]

Peter,

 

Am I right in thinking that once they committed an offence, if they produce the agreement afterwards they can only enforce it with a court order?

 

I hope this makes sense....

 

NO i am afraid once they produce the doc even though they have commited a criminal offence they are free to persue.

 

Peter

[zubo]

un1boy, once they have an agreement they can enforce without first getting a court order. No if's or but's on this I'm afraid.

 

Regards

 

Lantana

 

Providing of course two things:

 

that it is a true copy of the executed agreement with all the prescribed terms and

they have complied with your s77-79 request

 

He is however liable to be prosecuted for the failure to comply within the agreed timescales.

 

However, if we are talking about Credit Cards, and your original Credit Card was issued pre Chip n Pin then you will need to issue a default under S85 to place the whole agreement back into a state of unenforcement. THAT is the really big issue they are facing.

 

In fact I have had enough pointers within this thread to see sufficient mileage to issue (for CC) both S77-79 AND S85 at the same time.

[Peterbard]

hi Uni

 

I queerid this with the OFT at one point and posted the reply on here.

 

Peter

[un1boy]

Ok Peter, I'll go look.....

[m55dlc]

I think you cannot hide behind the 1983 regs about signatures on copies with s63.4 or s85. If you don't have something, you cannot say what one would look like. The whole 1983 regs and signature thing states copies, not original. I still state that saying you have complied with either s63.4 or s85 when you are not in posession of a signed agreement is impossible and is conjecture. Don't we have something on here from the OFT disallowing conjecture as to what an agreement would have looked like?

 

You cannot have it both ways. Irrespective of the 1983 regs, you have no executed agreement, you are in default from the point the card was issued, or from when the card was first renewed.

[paulwlton]

So it's a toss up between stature and the regs.If anybody has a copy of the regs or a link please let me know then I can pull them apart.By the way the 83 regs were amended in 2004.There also seems to be a contridiction over S77/78.The law says you are entitled to a copy of the agreement, the banks,ccp are saying we don't have to give you a copy(hiding behind the regs) but in order to enforce any debt they have to present to the judge a signed copy with signitures.They can't have it both ways.

 

T this is part of the Regs. Not sure what the meaning in (g) relates to.

 

Paul

 

 

 

 

 

Consumer Credit

 

Surety's copy of enforcement, default and termination notices

10. Every copy of a default notice or a notice under section 76(1) or 98(1) of the Act served on any surety under section 111(1) of the Act shall contain a prominent heading in one of the following forms of words:-

"Surety's copy of notice served on debtor" or

"Surety's copy of notice served on hirer",

as the case may require.

Duty to supply copies of documents not to apply to certain kinds of documents 11. A duty imposed by the Act to supply a copy of a document referred to in an unexecuted agreement or an executed agreement shall not apply to a document of any of the following kinds:-

(a) a document obtained by the debtor or hirer from a person other than the creditor or owner and supplied by the debtor or hirer to the creditor or owner;

(b) a document, not being a security, which constitutes, evidences or relates to title to property of any kind or relates to the rights or duties of the debtor or hirer in respect of such property;

© a document kept, or to be kept, by the debtor or hirer under the terms of, or in consequence of, the agreement;

(d) an official or certified copy of any entry in a register maintained by, or on behalf of, a government department or other body charged with a public administrative or statutory function and open to public inspection (whether in the United Kingdom or elsewhere);

(e) an enactment, other than Schedule 3 to the Conveyancing and Feudal Reform (Scotland) Act 1 970(a);

(f) a document, other than an enactment, published by, or on behalf of, a government department or other body charged with a public administrative or statutory function (whether in the United Kingdom or elsewhere); or

(g) in the case of a modifying agreement, a document embodying the terms of the earlier agreement other than a document a copy of which is required to be given under section 77(1), 78(1), 79(1), 85(1), 105(5), 107(1), 108(1) or 109(1) of the Act.

 

 

24th October 1983.

 

 

 

Alexander Fletcher, Parliamentary Under-Secretary of State, Department of Trade and Industry.

[m55dlc]

T(g) in the case of a modifying agreement, a document embodying the terms of the earlier agreement other than a document a copy of which is required to be given under section 77(1), 78(1), 79(1), 85(1), 105(5), 107(1), 108(1) or 109(1) of the Act.

 

It's slide rule time, but I don't see this excuses them from production. I think it means you can provide the current T&C's with the agreement... any other interpretations?

[The Lantana]

My quick read of (g) suggests good news. The regs do not excuse failures by the creditor under s85.

[The Lantana]

..or 78 etc.

[Peterbard]

Below is a leter i recieved back in december it may clarify it may not

 

Below is a copy of the letter sent from Ian Mcartney after a arepresentation made by me to my MP, sorry about the delay in posting but I was awaiting my MP OK.

 

It is not complete as ihave removed refernce to certain issues not relavant to this thread. I have underlined some interesting points and have added some comments at the end.

 

dti

 

21 December 2006

 

Re consumer credit act 1974

 

Thank you for your letter of the 7th of December on behalf of your constituent Mr Peter Bardsley of******************* about a possible irregularity in the Consumer Credit act 1974.

 

The Consumer Credit (Prescribed Periods for Giving Information) Regulations apply to all the situations that ate listed in the Schedule to the Regulations and this include Sections 77 and 78 of the Act, which are about copies of the executed agreement and not pre contractual information

 

The Cancellation Notices and copies of Documents Regulations are made under Section 180 of the Act ) power to prescribe the form etc of documents) and Section 180 enables Regulations to be made to provide for including/excluding certain information from copies sent out under the Act. The Regulations apply to all copies sent our under the Act unless specifically excluded in the Regulations themselves.

 

Mr Bardsley describes a situation in which he was sent a copy of a company’s standard Terms and Conditions when requesting a copy of a signed agreement form. Just sending the Terms and Conditions is a breach of the Act and Regulations as, apart from the information that the Regulations provide that you may exclude, the copy must be a “true copy” of the agreement**

 

If Mr Bardsley feels that the rules are being flouted he should report the companies concerned to Trading standards and the Office of Fair Trading. It is also a breach of the Act and the Regulations to send the application form rather that a “true copy” of the Agreement.

On the point that Mr Bardsley makes about unscrupulous companies adjusting agreements, If there were a dispute about an agreement, the lender would need to prove to a court that there was an agreement and, it is highly likely that the lender would have to produce the original signed document to prove they had and agreement with the consumer to start with,

The lender should need to prove to a court that there was and agreement **and, it is highly likely that the lender would have to produce the original signed document to prove they had an agreement with the consumer to start with. If the lender can’t prove the existence of the agreement, winning any court case would prove difficult.

 

 

Approved By the Minister and signed in His presence

 

Pp Ian Mc Cartney

 

 

**This confirms that the burden of proof is on the creditor to provide proof of the existance of an agreement and not on the debtor to prove it's none existance.

 

My response to this letter is posted earlier in the Consumer Credit thread.

 

Peter

[bfb]

But, lets say I have an A4 page of completely illegible smallprint (less that 5% readable) and covering up one quarter of that is another piece of paper containing the signatures. I cannot see a quarter of the T&C's therefore this copy of the agreement is incomplete - I can't (and never will) be able to read all of the terms.

 

appears to be an exception to a list of omissions so s77 and 78 originals must be supplied

[paulwlton]

Looking at the Act and Regs to comply with sec 85 a copy of the original agreement along with the terms and conditions must be sent.

 

Paul