Cap1 & CCA return

[un1boy 429]

The first one sounds like it is probably enforcable only by a judge, however i may be wrong- im not an expert, this is all just my understanding,

 

The second is definitely unenforcable....

[InKogneeToh 343]

Pam

 

I know that we have discussed this previously and we both agreed that in your case the judge was wrong. How can you interpret voluntary a demand from the creditor to setup a DD and pay without fail on a certain date each month? The creditor received the payments because he demanded the payments as part of his unlawful execution of the unexecuted agreement.

 

Where is the debtor's consent in all this? There is none - what the debtor is doing is responding to a perceived obligation under threat of penalties, defaults and court litigation - how can that be perceived as freely given consent?

I would argue this all the way to HL.....

 

 

Z

 

Hi

 

I think you are misinterpreting the status of an improperly executed agreement.

 

The only time an agreement would be 'unexecuted' as you have called it, would be if one or both parties had never signed the document. Any agreement that is properly signed is 'executed' no matter what form/content there is. If it does not contain the prescribed terms (or other required information) it is then 'improperly executed'.

 

An improperly executed agreement may be totally unenforceable or enforceable only on an order of the court, depending on what the error/omission is.

 

BUT - an unenforceable agreement is still valid and lawful. The court's position was that any payments I had previously made had been under a valid agreement and the creditor was therefore entitled to receive them. Once the agreement had been declared unenforceable by the court, the creditor lost the right to enforce the (valid) agreement, i.e. sue on it, so if I refused to pay any longer (which I did) he could do nothing about it.

 

Regards, Pam

[Gooders 10]

sorry about this guys but can I ask un1boy to clarify something please

 

Quote:

Originally Posted by emmaf01

Help needed!

 

The Student Loan Company received a CCA request from me by recorded delivery at their main office (Bothwell Street, Glasgow) on the 5/03/07.

 

Yesterday, I found out they have only actioned the SAR also included, banking the £10 but crediting the £1 CCA request money to my account.

 

The 12 working days were up on the 21/03/07, so I said they are in default.

 

They now say that

1) the CCA gives no time limit for them to produce the agreements

 

2) the countdown is wrong as the specific office which deals with the SAR and CCA requests did not receive the letters until the 15/03/07.

 

So, is the 12 days inenforcible? Does my recorded delivery count for nothing?

 

I would be grateful for advice.

 

Ps they are now running around trying to get me the agreements like certain rear ended flies.

 

the 40 days starts from the date they received ypur requst and payment so ignore what they say

 

they aren't covered by the cca so don't have to send you anything re your cca request.

 

what do you mean they aren't?:o surely student loans pre 1998 are indeed covered by the CCA?

 

Can you please respond as soon as possible wiyh your reasoning on this as there are a few people counting on it Emma and myself as 2!!!

[InKogneeToh 343]

I am not getting email notifications - is it just me, or is anyone else having the same problem?

 

Hi

 

No, I haven't had any from CAG since Weds!!

 

Regards, Pam

[The Lantana 132]

If you read the first paragraph of the briefing note found on the link below, a firm of solicitors expresses the view that an unenforceable agreement means the lender is 'compelled' to refund all monies to the customer...

 

http://www.wragge.com/files/HowMuchCredit_Mar2003.pdf

 

Regards

 

Lantana

[InKogneeToh 343]

Thanks, so if I'm getting this right, the lack of any of those presribed terms means an agreement is completely unenforceable, even in a court.

 

The lack of one or more of the prescribed statements would mean it was only enforceable in court.

 

I think this is right, yes?

 

By the way, is there a list of which statements should be there?

 

Really appreciate your help!

 

Hi

 

Go back to Page 134 of this thread where Post 2661 contains a link to an OFT doc. that reveals all!

 

Oh, just noticed pford has posted the link so no need to trawl the thread.

 

Regards, Pam

[InKogneeToh 343]

If you read the first paragraph of the briefing note found on the link below, a firm of solicitors expresses the view that an unenforceable agreement means the lender is 'compelled' to refund all monies to the customer...

 

http://www.wragge.com/files/HowMuchCredit_Mar2003.pdf

 

Regards

 

Lantana

 

Hi

 

I found this article when I was doing my last CCA claim and emailed Wragge & Co about it but no-one would respond to me!

 

I would have liked to know how they reached this conclusion.

 

Regards, Pam

[m55dlc 86]

sorry about this guys but can I ask un1boy to clarify something please

 

 

 

what do you mean they aren't?:o surely student loans pre 1998 are indeed covered by the CCA?

 

Can you please respond as soon as possible wiyh your reasoning on this as there are a few people counting on it Emma and myself as 2!!!

 

Loans that are close to base rate are not covered by the CCA. It is posted somewhere on this thread, somewhere, but I couldn't tell you where.

[The Lantana 132]

To the best of my knowledge loans from The Student Loan Company aren't covered by the CCA. These are loans made by a Government quango to students for tuition fee's and living expenses etc. Even bankruptcy won't allow you avoid these loans.

 

Loans to students by Banks and other FI's are covered by the CCA (just as they are for anyone else).

 

Regards

 

Lantana

[pford 67]

Hi

 

 

BUT - an unenforceable agreement is still valid and lawful. The court's position was that any payments I had previously made had been under a valid agreement and the creditor was therefore entitled to receive them. Once the agreement had been declared unenforceable by the court, the creditor lost the right to enforce the (valid) agreement, i.e. sue on it, so if I refused to pay any longer (which I did) he could do nothing about it.

 

Regards, Pam

 

 

So if i read this right in what you are saying you have allready been taken to court over one of these. Once it has been declared unenforceable by the court the X lender can do nothing more. But till them they can try to make you pay?

[emmaf01 857]

The Student Loans Company loans pre-1998 ARE covered by the CCA.

 

It is only loans from 1998 onwards which are not covered by the CCA.

 

So, what are the enforcable criteria regarding the CCA?

 

They have had since the 5/3/07 to produce the signed agreements, so the 12 working days are up.

 

Is it 28 days from the 12 days being up, or otherwise?

[InKogneeToh 343]

So if i read this right in what you are saying you have allready been taken to court over one of these. Once it has been declared unenforceable by the court the X lender can do nothing more. But till them they can try to make you pay?

 

Hi

 

No, I took them to court to have the agreement declared unenforceable under s127(4) CCA.

 

If you are pretty sure that your agreement is unenforceable (at least without a court order) then you can refuse to pay and wait for the creditor to take you to court if you feel okay with this, but unless it's a case where the agreement is totally unenforceable under the CCA then the court may grant them an enforcement order depending on the severity of the errors and any prejudice caused to the borrower.

 

Regards, Pam

[InKogneeToh 343]

To the best of my knowledge loans from The Student Loan Company aren't covered by the CCA. These are loans made by a Government quango to students for tuition fee's and living expenses etc. Even bankruptcy won't allow you avoid these loans.

 

Loans to students by Banks and other FI's are covered by the CCA (just as they are for anyone else).

 

Regards

 

Lantana

 

Hi

 

Weren't they once covered but now not, due to a change a couple of years back? I thought I read this somewhere.

 

Regards, Pam

[Gooders 10]

Pam,

 

Thats right loans initiated after Sept 1998 are not covered by CCA, those before are. This is a very important distinction and a couple of comments tonight nearly started the hares running!!!

 

Gooders

[pford 67]

Hi

 

No, I took them to court to have the agreement declared unenforceable under s127(4) CCA.

 

 

 

Regards, Pam

 

 

how do you do that?

[InKogneeToh 343]

Hi Gooders

 

Thanks for that - I wasn't just imagining it then!

 

Regards, Pam

[InKogneeToh 343]

how do you do that?

 

Hi

 

You issue a claim for a determination by the court. I also claimed for the refund of my payments but the court wasn't having any of that!

 

It isn't really worth forcing the issue yourself if you are fairly sure the agreement is unenforceable. Why pay out to start proceedings when you can just wait for the creditor to try and sue you? In my case I was sick to the back teeth of the creditor's deviousness and constant harassment so it was in my interests to get them off my back!

 

Regards, Pam

[pford 67]

Hi

 

You issue a claim for a determination by the court. I also claimed for the refund of my payments but the court wasn't having any of that!

 

It isn't really worth forcing the issue yourself if you are fairly sure the agreement is unenforceable. Why pay out to start proceedings when you can just wait for the creditor to try and sue you? In my case I was sick to the back teeth of the creditor's deviousness and constant harassment so it was in my interests to get them off my back!

 

Regards, Pam

 

 

told me in jan they not got it but they have now set their dogs on me Blair , Oliver & Scot

[InKogneeToh 343]

The Student Loans Company loans pre-1998 ARE covered by the CCA.

 

It is only loans from 1998 onwards which are not covered by the CCA.

 

So, what are the enforcable criteria regarding the CCA?

 

They have had since the 5/3/07 to produce the signed agreements, so the 12 working days are up.

 

Is it 28 days from the 12 days being up, or otherwise?

 

Hi

 

77 Duty to give information to debtor under fixed-sum credit agreement

(1) The creditor under a regulated agreement for fixed-sum credit, within the prescribed period (12 working days + 2 for posting) after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a) the total sum paid under the agreement by the debtor;

(b) the total sum which has become payable under the agreement by the debtor but remains unpaid, and the various amounts comprised in that total sum, with the date when each became due; and

© the total sum which is to become payable under the agreement by the debtor, and the various amounts comprised in that total sum, with the date, or mode of determining the date, when each becomes due.

(2) If the creditor possesses insufficient information to enable him to ascertain the amounts and dates mentioned in subsection (1)©, he shall be taken to comply with that paragraph if his statement under subsection (1) gives the basis on which, under the regulated agreement, they would fall to be ascertained.

(3) Subsection (1) does not apply to—

(a) an agreement under which no sum is, or will or may become, payable by the debtor, or

(b) a request made less than one month after a previous request under that subsection relating to the same agreement was complied with.

(4) If the creditor under an agreement fails to comply with subsection (1)—

(a) he is not entitled, while the default continues, to enforce the agreement; and

(b) if the default continues for one month he commits an offence.

 

 

 

Note that the creditor is only not entitled to enforce the agreement for as long as he does not produce the required copy (a true copy of the actual agreement you signed). If any time at a later date he does supply this then he will be entitled to enforce.

 

Regards, Pam

[InKogneeToh 343]

told me in jan they not got it but they have now set their dogs on me Blair , Oliver & Scot

 

Hi

 

Did you get that from them in writing? If not I would write and ask for them to confirm that they do not have it. If you get this confirmation you can tell BOS to take a very long walk off a short pier! No agreement = no proof of debt!

 

Regards, Pam

[Guest willowb]

told me in jan they not got it but they have now set their dogs on me Blair , Oliver & Scot

pford....check out Mikes thread here.....

 

http://www.consumeractiongroup.co.uk/forum/general-debt/56001-mike220359-blair-oliver-scott.html

 

Wxxx

[angry cat 1,498]

Hi Guys,

 

MBNA are driving me crazy !!!

Please can you help?

 

The charmers unfairly defaulted me last year when I was battling with them re penalty charges, I had advised MBNA that I was/am in Dispute and that I ceased making payments.

 

I sent the Company Secretary a surlybonds letter plus an S10 DPA notice.

However, they refuse to remove the adverse data from my CRA file!

 

I have also made a request under the CCA 1974 for a true signed copy of the executed Agreement between MBUSA and myself, plus a request fro a copy of the true certified default notice.

 

MBNA have not sent me a copy of my Agreement, instead I was sent a microfiche copy of my the torn of bottom section of my credit card application form with none of the prescribed terms and they cannot supply me with the copy default notice. Therefore MBNA are now in criminal default of the CCA.

 

I sent them the following letter, which has been ignored:-

 

 

"Mr. Gavin Theobald

Customer Advocates Office Manager

Insurance Services Department

MBNA Europe Bank Limited

Chester Business Park

Chester

CH4 9YR

Dear Mr. Theobald,

REQUEST UNDER THE CONSUMER CREDIT ACT 1974

Thank you for your response to my letter dated 13 December 2006. Unfortunately this does not fulfill your obligations under the above request for a number of reasons. I therefore I must inform you that MBNA are still to comply with my original request, as specified under section 78 of the Consumer Credit Act 1974.

There are a number of issues with the document you have provided to me, primarily (but not limited to) the fact that this is a torn off section of an application form, not an agreement, it does not have all the prescribed items present, it contains a large proportion of illegible text due to the quality of the copy and does not contain a copy of the applicable terms and conditions.

May I also remind you, that you must supply me with the signed true and certified copy of the default that you state was sent to me, showing my address and proof of posting, a default that you have unlawfully registered against me with the Credit Reference Agencies.

You are now required to remove any data relating to me (The Data Subject) that you have supplied to any Credit Reference Agencies in its entirety. This request is made in accordance with the Consumer Credit Act 1974 (Sections 77 – 79).

In addition I have already served MBNA with Statutory Notices to cease and desist from disclosing my personal data pursuant to Sections 10 and 12 The Data Protection Act 1998.

For the avoidance of doubt, I enclose a further Statutory Notice pursuant to Sections 10 and 12 of The Data Protection Act 1998 – Data Subject Notice.

Take notice, that I have withdrawn my consent from MBNA Europe Bank Limited to process my data. Therefore, I demand that you (MBNA) cease to disclose any data to any third party including, but not restricted to, Equifax plc, Experian Ltd, Callcredit plc and;

Instruct Equifax plc, Experian Ltd and Callcredit plc to remove all data pertaining to your records on me, to the extent that no data entry in relation to MBNA Europe Bank Limited will exist on my credit files.

Furthermore, I intend to issue legal action against MBNA for the mis-selling of my Payment Protection Insurance and associated Unlawful Penalty Charges plus compounded interest Please take notice that I will petition the Court to have the Unwarranted, Unjustified Default removed from my Credit Reference Agency Credit file if you fail to remove it.

I hope that I have made my position clear and expect a written confirmation from you acknowledging the contents of this letter within 5 working days, as per the requirements of section 15.3 of The Banking Code.

 

Yours sincerely".

 

Okay guy's, I hope that you can understand but now the plot thickens...!

 

MBNA refuse to remove the unwarranted default, they have not complied with my CCA request and guess what?

 

Two days ago another default Notice drops through my letterbox dated 20 March 2007

 

"- IMPORTANT - YOU SHOULD READ THIS CAREFULLY

DEFAULT NOTICE - Served under section 87(1) of the Consumer Credit Act 1974

Clause 3 of your agreement provides that you must repay immediately the amount of arrears on the account. You are in breach of that clause because you have failed to make payment and are seriously in arrears. A stop has been placed on your card.

 

In order to remedy the breach we must receive a payment of £680.4 by 1 April 2007, or we will terminate your account and issue court proceedings".

 

ooh, is this an early April fool, firstly MBNA I do not have an MBNA credit card for you to place a stop on because you confiscated it in Aug 2003, secondly, I will not pay you one penny because I do not acknowledge the alleged debt.

 

Incidentally, I have not informed MBNA that they are also in breach of the CCA S85, I would appreciate it if someone could give me a link to the correct wording for the S85 Notice.

 

Sorry this is so long but I am sure that you can understand that I need some help here

 

Love AC

[ian1969uk 71]

I have a dispute ongoing with MBNA (an Alliance and Leicester card) and this seems to be their number one tactic, simply ignoring anything we write to them and blundering on regardless.

 

In a weird way, I hope they do take me to court as they have breached so many regs and acts that I'd love to see them explain that to a judge.

[Guest Battleaxe]

ian1969uk,

 

You are catching on, if they take you to Court, they have to prove everything and in your defence you produce the lot. The Judges are not so kind to them. Of course you know they wont take to you court, they want you to waste the court's time, but hey, they still have to defend. Just sit and see what they do next.

 

Once you have the unlawful charges repaid and of course the Section 85 refunds, you then apply to the court for non-compliance of the Default Notice Section 10 and 12 and let them explain to the judge why they haven't done this. Also make sure you have lodge the complaint with the ICO and notified the CRA's that erroneous information is on file, Make sure the ICO is cc'd on these letters so they know you serious about this. They wont remove the defaults until they are forced by law to do so.

[ian1969uk 71]

What is the fine for breach of the Administration of Justice Act 1970? I have so many items of proof regarding this since they have just ignored every letter I have sent them about my disputes.

 

I might soon propose that they wipe the balance off my card and I'll not progress these harassment breaches...it would be cheaper for them that way ;-)