Cap1 & CCA return

[ladybird17]

Ok - DPA doesn't need to be mentioned and that bit covers it.

But how can they, in one part, say that they can transfer the rights to any organisation, and then say that only THEY or I can enforce it? So they can transfer the rights to another org. (DCA or another Bank e.g.) but that organisation can't enforce it?

 

Am I being very thick?

[Seahorse]

Nobody other than we or you can enforce (my italics)any part of this agreement, under the Contracts (Rights of Third Parties) Act 1999"

 

Now that bit IS interesting. It seems to imply that if they sell the account on, the new owner has no right to enforce the agreement.

 

I haven't seen the Contracts Act 1999 mentioned before, and I'd be very surprised if that's how it actually reads. But I'm bloomin well going to have a look!!!

[ladybird17]

ah jolly good Seahorse - silly of us both to trawl through it, so I'll leave it to you:wink:

 

(Psychological delegation is merely one of my many talents:grin: )

[Seahorse]

1. - (1) Subject to the provisions of this Act, a person who is not a party to a contract (a "third party") may in his own right enforce a term of the contract if-

(a) the contract expressly provides that he may, or
 

(b) subject to subsection (2), the term purports to confer a benefit on him.

(2) Subsection (1)(b) does not apply if on a proper construction of the contract it appears that the parties did not intend the term to be enforceable by the third party.

(3) The third party must be expressly identified in the contract by name, as a member of a class or as answering a particular description but need not be in existence when the contract is entered into.

(4) This section does not confer a right on a third party to enforce a term of a contract otherwise than subject to and in accordance with any other relevant terms of the contract.

(5) For the purpose of exercising his right to enforce a term of the contract, there shall be available to the third party any remedy that would have been available to him in an action for breach of contract if he had been a party to the contract (and the rules relating to damages, injunctions, specific performance and other relief shall apply accordingly).

(6) Where a term of a contract excludes or limits liability in relation to any matter references in this Act to the third party enforcing the term shall be construed as references to his availing himself of the exclusion or limitation.

(7) In this Act, in relation to a term of a contract which is enforceable by a third party-

"the promisor" means the party to the contract against whom the term is enforceable by the third party, and

"the promisee" means the party to the contract by whom the term is enforceable against the promisor.

 

Let's see. Section 1 (a) seems to say that the new owner (3rd party) only has rights if the contract says he does. BUT, your bit states that there IS no such provision in your particular contract. I think that just about clears THAT one up then.

[Seahorse]

OK, I'll pop back and see what others think this afternoon. I'm off to see what the horses make of the snow this morning.

 

There's a shed load more interesting stuff to read through in there, but it will have to wait.

[ladybird17]

Well done Seahorse. Snow?....what snow? See you later.

[Peterbard]

Hi

 

Just to clear up, once and for all, the argument put forward by Peter that a mortgage agreement cannot be signed at home because the CCA states that a creditor must give (i.e. hand over personally) a copy of the unexecuted agreement to the debtor as stated above.

 

The definitions section of the CCA states:

 

“give”, means, deliver or send by post to;(so it does not have to be given in person!)

 

Sorry to go back over this largely irrelevant subject but the definition is also applicable to any other regulated agreement where the question may arise.

 

Regards, Pam

 

I think you will find that in this instance it means give. Threre is no such thing as a "Standard non distance transaction covered by the cca1974"

Also you cannot do a distance sale with a standard agreement using the 1984 information regs.

 

Regards

 

Peter

[InKogneeToh]

Threre is no such thing as a "Standard non distance transaction covered by the cca1974"

 

 

 

Hi Peter

 

Can you clarify what you mean here please?

 

Regards, Pam

[bfb]

try [email protected] it seems to work

 

assignation of the lenders rights under what may or not be a contract cannot transfer the right to reclaim fees from the original lender because penalties are unlawful Assignation might be a good thing given the propensity to foul up between parties

[ladybird17]

bfb - are you referring to what seahorse & I were mulling over this morning (about the credit card mailers and what they say about transferral of rights)- or something else?

[Seahorse]

try [email protected] it seems to work

 

assignation of the lenders rights under what may or not be a contract cannot transfer the right to reclaim fees from the original lender because penalties are unlawful Assignation might be a good thing given the propensity to foul up between parties

 

Can you elaborate on that a bit, bfb? This is something I've been looking at today... see here.

[InKogneeToh]

Ooooww! I've gone Platinum - what fun!

 

C'mon LB - only 2 more posts and you'll be similarly rewarded!

[Sparkie1723]

carderuk,

 

That little bit of info you posted is going to be a BIG BIG help to me, in my case against the RBOS that was just what I needed.

 

 

Thanks a million

 

 

sparkie1723

[Guest Battleaxe]

bfb,

 

Thanks for this, my secret squirrels came up with an email addy for their legal department and guess what got a reply and phone calls have stopped. I simply reminded them that being in default of Section 85 on both accounts really makes them naughty and that i was going to call in the legal honchos from the Veteran's Agency to issue an injunction on them for their harassment and made them aware by calling in government department they are really in deep doo doo. It's because of the seriousness of Kent's illness, that we are entitled to this. it's a reciprocal agreement between governments.

[ladybird17]

How went it today BA?

[un1boy]

I must admit I was a bit surprised that TS don't think T & C's form part of executed agreement. I can't see that an agreement is valid unless you know what T & C's are attached to it? Unless it would be a case of "you were stupid enough to sign it without knowing what you were signing up to"?

 

At the end of the day, the act states that theagreement must consist of any other document referred to in it (ie, terms and conditions).

 

TS are only the regulatory body - it would be up to a judge to decide if the agreement is unenforcable,

 

if they haven' provided the T and c's as part of your sec 77/78 request, then they ahve commited an offence

[ladybird17]

Thanks un1 - sometimes when I'm in this thread, I either feel I am being incredibly thick, or the senile dementia is progressing too rapidly!

[un1boy]

Just a quick heads up for any absence. MOTH is being investigated for lung cancer (asbestos) courtesy of the Royal Navy all those years ago. he has a CT scan in the morning. it came to a head last Wednesday night with a massive bleed from his lungs, he was being treated for COPd, bu the new xrays tell a different story. So I guess my life is now going to involve the Veteran's Agency as anothe fight for the best treatment. We have already been down that path with Prostate Cancer, and before anyone jumps up and down, the cancer never escaped from the prostate capsule, so this is a completely different and not metastises. MOTHS PSA count proves this from 19.7 last February to 0.63 last week.

 

We really don't need the crap from Capital One at the moment.

 

Battleaxe, I am very sorry to here of these problems....xx

[un1boy]

Thanks un1 - sometimes when I'm in this thread, I either feel I am being incredibly thick, or the senile dementia is progressing too rapidly!

 

Haha, i know how u feel - when i finally realise i understand something, someone seems to say something that makes em question it, then i realsie i do actually understand it!!

[un1boy]

You'll never guess what crap one have done - (slightly off topic)

 

I sent an lba for my mum's crap 1 for her charges and put another card number on it.

 

Robert Udy offered her but we rejected it as it was the difference of the £12. I wrote back and said that I had told them not to offer the difference of the £12 and wanted an explanation as to why my request ws ignored (this letter had the wrong account number on it too).

 

He then wrote saying that he couldn't find the account and asked for a statement to be sent. I haven't had a chance to reply yet, but she received another offer today which will be rejected.

 

What the hell is going on?

[ladybird17]

Ah, yet again I'm a tad confused:eek:

 

Dd you put the wrong account on the original intentionally? If so, why? And if it was a mistake, why have you not told them the correct number. Notwithstanding all that how did Mr. Udy get to make an offer on an account that he can't find??

 

Un1 - are you winding me up ?-I'll go and get a small tipple - that sometimes clears my addled brain:D

[un1boy]

Ah, yet again I'm a tad confused:eek:

 

Dd you put the wrong account on the original intentionally? If so, why? And if it was a mistake, why have you not told them the correct number. Notwithstanding all that how did Mr. Udy get to make an offer on an account that he can't find??

 

Un1 - are you winding me up ?-I'll go and get a small tipple - that sometimes clears my addled brain:D

 

Hi

 

No, I put the correct accpunt number on the prelim, then when it came to the the LBA it was an accident becasue I was doign another account for my mum at the time (obviously a copy and paste error!)

 

I haven't had time to write back giving him a statement - well, the letter's written, just not been sent yet! Now he's sent another offer!!!

[un1boy]

With regard to the OD's etc being under the CCA, I received a letter from HSBC's DCA after a sec 78 request, saying that running account wasn't coverd under the act....I wrote back saying that runnning account credit was......

 

I got his response from their solicitors:

 

We have been passed copies of your previous correspondence with our client and in particular a copy of your letter pf xxxx.

 

Section 78 of the CCA does not apply to current accounts. the current account is not a regulates agreement because it provides no credit. the overdraft agreement provides the credit and this sits seperately from the current account agreement.

 

Credit agreements normally have to comply with Part V of the CCA. Part V covers the form and content of agreemetns, signing of agreements and duty to supply copies of unexcuted and executed agreements. However, current account overdrafts are given a specific exemption from all the Part V formality requirements by section 74(1)(b) of the Act.

 

This exemption applies only when the PFT grant a Determination under section 74(3) and this was given for overdrafts on 21 December 1989.

 

The consequence of this is that there is no executed agreement for a current account overdraft and so section 78 (right to demand copy of executed agreement) does not apply.

 

We now trust this resolves your query.

 

now, I will have to check through the result s of the sar as I cannot remeber receiving a letter stating when the OD started etc....

 

Also, I want the default removed becasue 600 pounds of the 900 pound balance was cahrges which have been refunded!!

[ncf355]

This thread is unreal, I only went away for a few hours and OMG!

 

[ladybird17]

Un1 - crikey my eyes to started to glaze over when I read your posting of the solicitor's letter!

 

Now I'm sure this has been raised before about OD's - and you'll have to excuse me because first, I have been on this site practically the whole day and I'm beginning to feel a bit pooped, and secondly, every time we talk about Sections 77/78/85/127 etc. etc - I have to go and read the CCA again.

 

The solicitors are saying that current accounts are not covered by CCA - well, I accept that. But I thought OD's were - or did I? I know nothing any more - someone will come along and clear this up - Pam is usually good at this sort of stuff, but I know she's working this evening.

 

I'm still stu**ed as to how Mr. Udy is offering settlements on accounts that he doesn't think exist?