Cap1 & CCA return

[The Lantana]

Pam, I see your point. However s8. says 'shall comprise' and s9. says 'may comprise'. My interpretation: 'must include' and 'may consist of'.

 

This is only my interpretation and as I said in my earlier post, I think it's a matter ultimately for their Lordships to decide.

 

Regards

 

Lantana

[Guest The Terminator]

Hi

 

No they do not over-ride the CCA but they do explain and clarify the legislation and are supplementary to all sections where it states that the Secretary of State shall make regulations regarding...... blah, blah, e.g. copies.

 

The regs. explain what a copy should be in given circumstances.

 

Following on from my concerns about the use of the word 'comprise' in reg. 8 about what sort of copy should be sent under s85 - I have quoted below reg. 9, which although not applicable to this issue, also uses the word 'comprise' -

 

9. Any copy of an executed agreement made before 19th May 1985 or of a security instrument relating to security provided before that date which is given to the debtor, hirer or surety under any provision of the Act on or after that date may comprise an easily legible statement of the current terms of the agreement or security as the case may be insofar as they are known to the creditor or owner where, due to an accident or some other cause beyond his control, the creditor or owner does not have in his possession the executed agreement or security instrument or any copy thereof.

 

The way I read this is that where an old agreement (pre 19/05/85) has been lost, the creditor can instead send a statement of the current terms of the agreement and that this will constitute a copy of the executed agreement.

 

This seems to me to be the same sort of 'copy' that can be sent under s85!

 

Please please tell me I'm wrong!! :o

 

Regards, Pam

 

No!! .What the act says is what is written in stature and this is what my contact tells me( and I won't go down MC55 route if you know what I mean) but as she says you've got to read the law not the regs as they are secondrey to the primary legitation.Although the regs say you have to do this and that which is really a red herring as it as already been stated in peters reply from the SOS.

[InKogneeToh]

Pam, I see your point. However s8. says 'shall comprise' and s9. says 'may comprise'. My interpretation: 'must include' and 'may consist of'.

 

This is only my interpretation and as I said in my earlier post, I think it's a matter ultimately for their Lordships to decide.

 

Regards

 

Lantana

 

Hi

 

Yes, I too have now done several searches for the definition of the word 'comprise' and all seem to give the alternative meanings of 'consist of' or 'contain' or 'include'. So we just have to hope (and to argue if necessary) that the correct interpretation is not 'consist of'!

 

As you rightly say, we'll have to wait for a judge's interpretation of this and whoever gets the 'pleasure' of being the guinea pig for this issue must remind the judge that the CCA should be read and applied to the benefit of the debtor, not the creditor.

 

Regards, Pam

[JonCris]

No!! .What the act says is what is written in stature and this is what my contact tells me( and I won't go down MC55 route if you know what I mean) but as she says you've got to read the law not the regs as they are secondrey to the primary legitation.Although the regs say you have to do this and that which is really a red herring as it as already been stated in peters reply from the SOS.

 

Ive lost track Terminator can you give me a link to peter's reply from SOS you mention

[FANTASY CHARGES]

Hi

 

No they do not over-ride the CCA but they do explain and clarify the legislation and are supplementary to all sections where it states that the Secretary of State shall make regulations regarding...... blah, blah, e.g. copies.

 

The regs. explain what a copy should be in given circumstances.

 

Following on from my concerns about the use of the word 'comprise' in reg. 8 about what sort of copy should be sent under s85 - I have quoted below reg. 9, which although not applicable to this issue, also uses the word 'comprise' -

 

9. Any copy of an executed agreement made before 19th May 1985 or of a security instrument relating to security provided before that date which is given to the debtor, hirer or surety under any provision of the Act on or after that date may comprise an easily legible statement of the current terms of the agreement or security as the case may be insofar as they are known to the creditor or owner where, due to an accident or some other cause beyond his control, the creditor or owner does not have in his possession the executed agreement or security instrument or any copy thereof.

 

The way I read this is that where an old agreement (pre 19/05/85) has been lost, the creditor can instead send a statement of the current terms of the agreement and that this will constitute a copy of the executed agreement.

 

This seems to me to be the same sort of 'copy' that can be sent under s85!

 

Please please tell me I'm wrong!! :o

 

Regards, Pam

 

 

 

PAM .......

ONE CREDIT CARD COMPANY HAS PRODUCED an application form from 1980 -- which they are trying tp "pass off" as an agreement the only GLARING MISTAKE ??? (amongst a long line of faults) is that the application form

FRONT DOES NOT REFER AT ALL TOTHE CONSUMER CREDIT ACT 1974 ........

 

 

even the form says "xxxxx application " as opposed to "xxxxx application form " and for extra information it was one of those ..... detach here type of applications which i believe might be classed as circulars or advertisements ???

 

so pam what is the situation if the application form does not refer to the cca 1974 ???

 

ps there were not a lot of credit card companies around in 1980 ?

AND THEY ALL MADE LOSSES THEN

.... SOME OF US HAVE VERY LONG MEMORIES

[InKogneeToh]

Hi

 

Have you got a copy of the OFT doc from 2003 detailing all that should be in a cancellable agreement. One of the many requirements is this:

 

What the agreement must contain

 

1 A heading in one of the following forms of words shown prominently on the first

page:

Hire-Purchase Agreement regulated by the Consumer Credit Act 1974

or

Conditional Sale Agreement regulated by the Consumer Credit Act 1974

or, in any other case,

Credit Agreement regulated by the Consumer Credit Act 1974.

 

If not it is improperly executed

 

Regards, Pam

[The Lantana]

Joncris, try post 3638 for Peter's letter from SoS.

 

Regards

 

Lantana

[JonCris]

Thanks had a CRAFT moment.........now I realise I have read it

[m55dlc]

With the (probable) prevalence of the word 'consist' in acts, I would very much expect this has already arisen in case law somewhere, and I don't believe you'll get to argue it. Is there any case law search engine out there that someone has access to?

[Mike220359]

We are running around in circles on this one and literally tying ourselves up with the knot of doubt. Take the regulations at face value. We already have a definition of 'executed agreement' so we know that that has to be included with a new card. It makes common sense to include a copy of the new terms and conditions with the original agreement since they will probably be the ones that apply to the account.

 

But the two documents go hand in hand, you cant have new T & Cs without a copy of the original agreement that allows them to be varied otherwise you could alter everything to the detriment of the consumer (eg raising the interest rate dramatically and/or increasing repayment rates)which is exactly what the CCA was established for - to protect the consumer.

 

The definition of 'comprise' is open to debate but in the OED it is defined as 'include', whreas 'comprise wholly' means what it says on the tin.

 

The MIB will never let a section 85 claim get to mercantile court to set legal precidence, think of the tidal wave of claims if they lose.

 

Be strong, they're wrong.

 

Mike

[Guest Battleaxe]

The original creditor then appoints a new DCA, who gets another Sec 78 request that is then passed back to the original creditor, who appoints another DCA , who gets another Sec 78 request.............!

 

 

ICO told me categorically, that no matter who send the CCA request to, they have the legal duty to forward it to the original creditor or department who MUST act on the request. Any one or firm not doing this has the ICO to answer to. NO if's or buts. So if you have been given the mery go round by these companies, you report it IMMEDIATELY to the ICO.

 

I need the information for Defence I am prepareing for someone else. The three companies concerned are breaching the DPA and will be soon brought back into line.

 

If you don't complain to the ICO, these shylocks are getting away with it.

[Guest Battleaxe]

Mike220359,

 

We are getting the chance to plead Section 85 on May 9.

 

Who is going to run the book on the bank and the DCA backing off on this on? The Judge wants to hear their argument.

[m55dlc]

BA, I think the court may be busy that day if it goes ahead? Maybe you should inform the bank that they need to arrange refreshments to keep the hordes happy....

 

I'd like to be there.

 

Mike

 

I agree on that. They can hide and run and argue loads of different points under the act and how the regs affect it, but the fact remains (in mine and probably all of MBNA customers cases, along with many others) is that if they do not hold an executed agreement, they are in default of s85. That's the killer blow IMO.

[Peterbard]

My appologies for crashing this thread but pleas read this it is vitally important

 

http://www.consumeractiongroup.co.uk/forum/bailiffs/61524-baliff-petition-stop-them-6.html#post615196

[gaz2006]

they did send to mbna but said cheque for £1 should be made payable to mbna and not the debt collectors so have they done anything wrong or should they have banked cheque and sent a cheque to mbna themselves asking them to forward info regards G

[Guest Battleaxe]

BA, I think the court may be busy that day if it goes ahead? Maybe you should inform the bank that they need to arrange refreshments to keep the hordes happy....

 

I'd like to be there.

 

Mike

 

I agree on that. They can hide and run and argue loads of different points under the act and how the regs affect it, but the fact remains (in mine and probably all of MBNA customers cases, along with many others) is that if they do not hold an executed agreement, they are in default of s85. That's the killer blow IMO.

 

It is going to be held at Huntingdon in front of Judge Blomfield. I am sure the more people who turn up to hear the pleading the more exposure this will get. At least we have a date.

 

When I get my date regarding the CCJ I will post this up also, but I have to wait until the 12 March before I file. Capital One had better look to their laurels because two CCJ's under Section 85. I have written to them and so far they have gone quiet again.

[Guest Battleaxe]

My appologies for crashing this thread but pleas read this it is vitally important

 

http://www.consumeractiongroup.co.uk/forum/bailiffs/61524-baliff-petition-stop-them-6.html#post615196

 

 

Did anyone see Jamie Waller from JBW on ITV1 this morning? He was saying they need a regulated industry and trying to sound reasonable. The lady from CAB was also interviewed.

Why is it all Bailiffs have shaved heads?

[Guest Battleaxe]

Anothr news flash, in the Finanacial Mail yesterday, FOS has reported to High Street banks to the FSA for breaches of the CCA. Shame they did not name the banks concerned.

[Peterbard]

Peter I understand the S59 point within CCA but having looked at the distance marketing regs I am confused. Can you help? I can see that S59(2) allows regs to exclude S59(1) but I cannot see that the Distance Marketing Regs specifically do that. As I read it the CCA will remain in force and any later regs can only add to the main Act. Although there is a lot in the Regs about the provision of information and cancellation rights I cannot see that this stops the effects of CCA. I thought it would only add to them so in distance marketing cases the creditor would need to do both ie provide information per regs and still adhere to CCA as it is written.

 

Can you show me where the Regs indicates that S59(1) is excluded.

 

Hi I am sorry i have taken so song to get back to you.Things hotting up on the baiiff front

 

The regulations can and do sometimes cintradict or revoke parts of the act they can do this because the regulations themselves say that the director has the right to do so . In each part of the legisation whether it be the information regs section 55 or the agreement regs section 60 the notice of copies of docs section 180 etc.

 

In the case of the new 2004 regs that came into force in 2005 there are many alteratins in all these areas due to the major overall of the act.

 

The main changes are in the information regulations which are introduced courtessy of section 55 these contain information given prior to the contract being made and differ in content and form from the orriginal 1983 ones although not negating most of them but as you say adding and rearranging the content and form on the agreement.

 

As far as the informaton regulations go for distance contracts they are totally rewriten within the distance contract itself and the ones relating to the none dixtance contracts are not used.

 

The cicrcumstances of taking a loan out by distance involves quite a lot of different information for instance if you are taking a none distance loan you are usually walking into a bank or dealing with a person with id with a distance contract yu do not have this so you need information confirming the validity of the Creditor this is all in schedule 1 of the did and should be made available at the begining of the contract.

There are also changes to the agreement sections mainly because distance marketing would not work without them, such as the arrangements for issuing copy docs pre contractualy,the fact that the schedule one information copy can be provided with the agreement or even after it has been signed as opposed to requirments in the cca1974.

 

Now the section 59 is one of these and i am sure regulation somewhere that supports it as well as all the other changes,problem is a lot of the diect marketing bill orriginates from earlier legislation as stated on the dmd so it is a questiion of where to start to look . It may be that section 59 is part of the information regs if so then there is your answer. But the fact is that it does not apply to distance contracts.

 

I think this whole matter of the new regs, distance marketing, and the 2006 needs a dedicated thread so we can debate and get to the bottom of these changes as we are in danger of basing our assumptions on outdated informationwhat what do you think

 

Regards Petr

[Peterbard]

Did anyone see Jamie Waller from JBW on ITV1 this morning? He was saying they need a regulated industry and trying to sound reasonable. The lady from CAB was also interviewed.

Why is it all Bailiffs have shaved heads?

 

Missed that one isnt it a coincidence that they are putting their case to the public just as the bill is going through it's second reading tonight.NOT

 

Peter

[Mike220359]

It is going to be held at Huntingdon in front of Judge Blomfield. I am sure the more people who turn up to hear the pleading the more exposure this will get. At least we have a date.

 

When I get my date regarding the CCJ I will post this up also, but I have to wait until the 12 March before I file. Capital One had better look to their laurels because two CCJ's under Section 85. I have written to them and so far they have gone quiet again.

 

I'll try and take a day off work for this one, its over a hundred miles from me but worth it I think to attend, but as u say, I don't think that it'll get that far. The MIB have too much to lose.

 

Mike

[maybelline]

sorry to gatecrash but Working Lunch are asking on their programme today 'can banks close your account for reclaiming your charges?'

[zubo]

they did send to mbna but said cheque for £1 should be made payable to mbna and not the debt collectors so have they done anything wrong or should they have banked cheque and sent a cheque to mbna themselves asking them to forward info regards G

 

gaz

 

I think everyone is distracted by a lot happening....

 

If you look at BAs post, it seems clear to me that you acted correctly, and it should not be upto you to respond to their obvious delaying tactic. Personally I would wait and then slap a default notice on them and report them to TS.

[Guest The Terminator]

My appologies for crashing this thread but pleas read this it is vitally important

 

http://www.consumeractiongroup.co.uk/forum/bailiffs/61524-baliff-petition-stop-them-6.html#post615196

 

If this does become law there is an alternative which is in S9 of the Enterprise Act(2002).Now for arguement's sake if every debtor was to take that route could you imagine the effect that would have on the Banking,cc,dca's industries.

[un1boy]

ICO told me categorically, that no matter who send the CCA request to, they have the legal duty to forward it to the original creditor or department who MUST act on the request. Any one or firm not doing this has the ICO to answer to. NO if's or buts. So if you have been given the mery go round by these companies, you report it IMMEDIATELY to the ICO.

 

I need the information for Defence I am prepareing for someone else. The three companies concerned are breaching the DPA and will be soon brought back into line.

 

If you don't complain to the ICO, these shylocks are getting away with it.

 

I am surprised at the ICO - they seem to actually be acting lately on these issues.....