Cap1 & CCA return

[diddydicky]

I agree to a point DD however the information they do collect and put forward to the cc does enable a quick and easy assessment of an individuals situation which must save them many man hours and costs.

 

i think you will find it is more to do with ensuring that individuals are telling the truth about their I & E more than antything else

[diddydicky]

Sorry to pull this up from a few pages back but would I be asking these questions of the claimant or would I put it in my defence?

 

its for your defence- is suggets you search through surfaceagent x20's threads and you will find some useful information

[diddydicky]

I agree with that most of the time, but then you hear about another person who is suddenly being chased for old debts after signing up for one of their free trials and I go all conspiracy theory again:rolleyes:

 

i think you are referring to CRA's rather than CCCS

[diddydicky]

Hmmm, not to sure about that DD. My experience of these companies (CCCS, National Debtline, etc) is that they are very reluctant to encourage anyone to assert their legal rights when faced with a court claim and often give very biased and downright dangerous advice. I know of an elderly person who was being taken to court and National Debtline and CCCS both said that there was nothing she could do, just to admit the claim, of course we later discovered (when I joined this forum) that they need an enforceable agreement (which NDebtline were fully aware of, but chose not to mention) which they didn't have, but the person now has a CCJ. Someone on the Link thread recently had a judgement obtained against them as well, and now possibly a charging order, because Payplan said they should admit the claim and filled the forms in on the persons behalf to that effect!

 

They are funded by the credit industry and the sole aim of this is to make sure that the debtor is paying the maximum amount back on any alleged debt, exactly why the credit industry sponsors them in the first place. I personally would steer clear of these companies and make my own informed decisions.

 

Magda

 

well i was merely responding to the matter of their funding and links to the finance companies- i accept your other unrelated comments- their main role is to facilitate repayment plans for those who are not challenging their debts but are in the Sh*t, and for that they do a good job on the whole

 

 

i cant agree with your suggestion that their role is to make sure you pay the MAXIMUM back(as if on behalf of the creditor) they work to a set formula (which is the same one used by the courts) in order to work out the disposable income available to creditors after secured and essential outgoings have been catered for, and it is pro rata'd accordingly.

 

From the contact i have had with them on behalf of others- they have been willing to ensure that debtors allow for such things as smoking , holidays etc and in my opinion give enough "hints" to what the debtor should make allowances for. before arriving at a disposable income.

 

 

as for legal advice- well that's not their role- you don't ask the butcher to supply you with fish do you?

 

i know a lot of SOLICITORS ( stories of whom have been related on this site) who give dangerous and crap advice on consumer credit matters

Edited December 2, 2009 by diddydicky

[diddydicky]

Yes, you do get inept solicitors, the same as in any other profession. However, National Debtline for example do give legal advice to a certain extent - for example their advice is, if you have been threatened with a charging order to ring them straight away. Why exactly, not as if they do anything constructive to help. I actually have found them to be very biased towards the creditor when you dig a little deeper than their initial apparent concern. They are concerned solely with extracting payments on the creditors behalf and often give advice which is blatantly incorrect.

 

They will advise anyone who has received a court claim to admit it, and even submit the paperwork to this effect. They shouldn't be doing this. After all, if they don't give legal advice their intitial reaction should be to advise the person to make sure, before admitting any claim, that they are fully aware of their legal rights.

 

Magda

 

it's horses for courses some people are happy with their service , some not

 

for many, i suspect the intervention of a third party to stop all the demands from mutliple creditors and one single payment is an answer to their prayers

 

for those like us who wish to challenge the debts- i agree it is not suitable

[diddydicky]

On a related topic Suppose you have previously agreed frozen interest and charges along with an affordable monthly payment with either an OC or DCA - and then you find they can't find the cca or it's unenforceable - is your previous payment arrangement agreement sufficient admission of the debt to make it enforceable? What if you have proposed a low % short settlement (but this was not taken up and settled)?

 

BD.

 

no, in 99.99% of cases it is clear that you HAVE borrowed money from the creditor,

 

the admission that you have done so cannot validate what is an invalid agreement

 

What you would be contesting is not that there was never an agreement, simply that the agreement was not legally enforceable.

 

it 's a bit like the ball going over the neighbours fence,- its your property but the neighbour is not legally obliged to throw it back over the fence!! neither are you allowed to trespass on his property to go and get it

[diddydicky]

DD If the OFT got involved would it become a case of "balls up" on the roof - so neither you nor the neighbour could get at it?

:D

[diddydicky]

if your on a payment plan your credit rating is already trashed so they cant trash it any more than they already have

[diddydicky]

I find if I refuse to go through security - as it is an unsolicited call from a withheld number - they get frustrated and hang up. I just tell them I am not giving personal info to someone I don't know from a withheld number - and to write to me on headed paper and I'll respond.

 

so, in order to releive the boredom and put a little more spice into it, when they ask for your DOB give them a false one

 

when they say it doesnt match what theyve got say " well i ought to know what my own birthday is pal- so you must have it wrong"

 

it's not in their "script" of answers to objections and completely cocks their train of thought right up

[diddydicky]

That was my point exactly - you've got to have that 'I won't back down' mentality and some people will just not have that, or want the stress of it all (which I reckon I'd be right in saying we've all experienced!) I think it's only fair that if a very rosy/easy picture is painted then it is tempered by the reality of what can/will happen. You can't be prepared for something if you haven't been warned it might happen...

 

With the credit rating, I think that's fair enough, but it seems that more and more people are coming on having not missed payments but asking about the CCA. These people will not have dodgy credit ratings and need to know it will be shot to pieces if they choose to go down that route.

 

On a payment plan though, if it just shows as 'arrangement to pay' or similar I personally feel that is vastly different to a default. Not that I'd know if it really makes any difference of course, I have loads of both and couldn't even get a mobile phone for OH's crimbo pressie the other day:(

 

plenty of cheap phones on e bay and there are tons of PAYG sim cards on ebay for a quid! stuff their contracts

[diddydicky]

Cheers Diddy - the only reason I wanted a mobile for him at all was that I had a little money from my dad and wanted to get an iphone for him with it:rolleyes:

 

It's all good now though as my lovely mum stepped in for me and gave me her account details:)

 

when i bought my wife's i phone i bought it unlocked from the USA (on e bay) its been perfect ! no contract

[diddydicky]

spot on -

[diddydicky]

Thanks, C2! I'll go the FOS route at the moment - in my experience, Claims Handlers seem to prefer it when it gets to the Court Claim stage.

 

Phone harassment is limited - have you ever used BT's Choose to Refuse? It's not hugely expensive and will block up to ten phone numbers (it will also reveal the true number that is calling you, which is often not the number you will get on Caller ID). Sadly, I don't think there's a comparable service for mobiles!

 

Thanks again for your input, MX

 

google cellphone blockers and also "cellphone blackball"

 

for landline truecall is perfect

[diddydicky]

i believe that a criminal offence could accrue if a creditor misleads a debtor into believing that they have an executed agreement when in fact they know they have not!

[diddydicky]

Hi All

 

Does anybody know of the top of there head what section of the CCA1974 does it say the Debt Collector has to provide the credit agreement not the Original collector

 

Cheers

 

HAK

 

anyone who is demanding payment from you has to provide proof of the debt

doesnt matter if it is the oc a dca or the dustman

[diddydicky]

anyone acting "for" or "on behalf of" the creditor will, for the purpose be the person to whom the s77/79 request is sent

 

you should not bypass the creditors nominated representative

[diddydicky]

if the debt is sold to a third party who is not licenced to lend money and is still "live" (that is to say that it has not been effectively terminated under the terms of the CCA) it would be about as useful as a chocolate fireguard to him since he cannot "perform" his side of the contract. he would have "bought a pup"

 

If the debt has already been effectively terminated by the OC prior to being sold to the third party then the third party can (try to) legally enforce it

 

if the debt has been unlawfully rescinded by the OC and the OC then sells the debt to a third party then the third party buys the debt "warts and all" and therefore has to take the debt as a total entity (i:e:- he cannot leave behind the bits he doesn't like or which the OC got wrong) he has to "carry on" where the OC left off- in other words he is just as much in the doo doo with it as the OC was!! if the debtor accepted the unlawful rescission then what the OC sold the DCA was .... well.... nothing

[diddydicky]

well if the DN and TN were issued on the same day this would amount to an unlawful rescission so if you accepted that rescission, what was assigned would have been an agreement which no longer exists

 

there would be the genuine arrears that were due at the time of the unlawful recission (against which presumably you would counterclaim )

[diddydicky]

get your mince pies around this and see if it helps (courtesy of X20)

 

May be it was my doing or we've just hung on to this word 'termination' like Rotweillers. The thing is, at least as I see it is, that where a creditor seeks early repayment or the return of goods following service of an ineffective DN, he is by his words and conduct expressing in clear terms that he is no longer willing to perform the essential obligations he promised to provide under the credit agreement. True, these words and conduct ride on the back of the debtor's failure to perform the debtor's essential obligations. But in this event the creditor has only to follow the procedure laid out in the Act and Regulations. And the Act says unless and until he has met the requirements of the Act and the Regulations, he acquires no such entitlement. Accordingly, to withdraw from the debtor the right to pay sums due by instalments or withdraw the right to continue with possession of the goods is to withdraw in breach of the statutory code which regulates the agreement.

 

The withdrawal of the debtor's rights may in one person's parlance be the same as the creditor's termination of the agreement. Just like 'default' in the words of one person may amount to 'breach' in the words of another. Or 'repudiatory breach' in the language of lawyer A is 'renunciation' in the language of lawyer B. Let's say though, for the purpose of the stream of thinking which follows, that strictly and legally speaking, withdrawal of these rights in default (or breach) isn't a termination of the agreement and that for termination strictly so called to have occured, the creditor miut have served a notice of termination. Does that mean therefore that the creditor's withdrawal and demand for early payment and/or return of goods is something the court can waive? Something the debtor can be expected to have understood was a mistake and unintended? That it is of no consequence?

 

I've got Chitty on Contracts General Principles (26th Edition) (1991). A bit out of date but good enough on General Principles I would have thought. And I'd thought I'd open it. Always a good idea when examining the contractual relationship of parties. Interestingly, 'termination' does not have an entry of its own in the umpteen page index at the back. It says in relation to Renunciation (and if you look up Repudiatory Breach it refers to to the same page number) that:

 

A renunciation of a contract occurs when one party by words or conduct evinces an intention not to perform, or expressly declares that he is or will be unable to perform, his obligastions under the contract in some essential respect. An absolute refusal by one party to perform his side of the contract will entitle the other party to treat himself as discharged, as will also a clear and unambiguous assertion by one party that he will be unable to perform when the time for performance should arrive. Short of such an express refusal or declaration however, the test is to ascertain whether the action or actions of the party in default are such as to lead a reasonable person to conclude that he no longer intends to be bound by its provisions. The renunciation is then evidenced by conduct. Also, the party in default 'may intend in fact to fulfil (the contract) but may be determined to do so only in a manner substantially inconsistent with his obligations' [Federal Commerce & Navigation Co Limited v Molena Alpha Inc (1979)] or may refuse to perform the contract unless the other party complies with certain conditions not required by its terms. In such a case, there is little difficulty in holding that the contract has been renounced.

 

If one party evinces an intention not to perform or declares his inability to perform some but not all of his obligations under the contract, then the right of the other party to treat himself as discharged depends upon whether the non-performance of those obligations will amount to a breach of a condition of the contract or deprive him of substantially the whole benefit which it was the intention of the parties that he should obtain from the obligations of the parties under the contract then remaining unperformed.

 

The renunciation must be made quite plain. In particular where there is a genuine dispute as to the construction of a contract, the courts may be unwilling to hold that an expression of intentino by one party to carry out the contract only in accordance with his own erroneous interpretation of it amounts to a repudiation and the same is truew of a genuine mistake of fact or law.

 

The demanding of early payment is to my way of thinking the immediate withdrawal of consent to all the remaining credit provided for under the agreement. Further, that it substantially deprives the debtor of the prime benefit he was to derive under it. Such a demand constitutes a breach of the regulated agreement save where it is demanded in compliance with the Act. If the demanding of such things is not tantamount to the creditor terminating the agreement, it is, nonetheless in my opinion, the creditor's renunciation of it. in consequence and in my opinion, the debtor may fairly regard himself as discharged from the agreement.

 

Chitty has this to say:

 

Consequences of Discharge - Effect on Contract

It has become usual to speak of the exercise by one party to treat himself as discharged as a 'recission' of the contract but as Lord Porter pointed out in Heymans v Darwin limited (1942):

 

'To say that the contract is rescinded or has come to an end or ceased to exist may in individual cases convey the truth with sufficient accuracy, but the fuller expresion that ther injured party is thereby absolved from future performance of his obligations under the contract is a more exact description of the position. Strictly speaking, to say that on acceptance of the renunciation of a contract the contract is rescinded is incorrect.'

 

This statement was unanimously approved by The House of Lords in Johnson v Agnew (1980) where Lord Wilberforce emphasised that this so-called 'recission' is quite different from recission ab initio as may arise for example in cases of mistake, fraud or lack of consent. It has also become usual to speak of the contract as having been 'terminated' or 'discharged' by the breach. Again however, these expressions may be somewhat misleading for they might suggest that the contract ceases forv all purposes to exist in that event. Such an approach was indeed adopted by the Court of Appeal in Harbutt's Plastercine Limited v Wayne Tank & Pymp Co (1970) so as to prevent the party in default from relying on an expemtion clause inserted in a contract which had been 'terminated' by breach. But this case was overruled by the House of Lords in Photo Production limited v Securicor Transport limited (1980). The true position was there stated to be, where the innocent party elects to terminate the contrsct, ie to put an end to all primary obligations of both parties remaining unperformed - that (per Lord Diplock) '(a) there is substituted by implication of law for the primary obligations of the party in default which remain unperformed a secondary obligation to pay money compensation to the other party for the loss sustained by him in consequence of their non-performance in the future and (b) the unperformed primary obligations of that other party are discharged.'

 

Given Diplock's statement of the position, may be to describe the agreement as 'terminated' following the events we are describing is, to adopt the words of Lord Porter, '..*to convey the truth with sufficient accuracy.'

[diddydicky]

Diddy

 

Thanks for your last two posts.

 

I understood the earlier post - but not that last one I'm afraid!

 

I take it that is the "bit of law" I asked for? I'll copy and paste this into my Goldfish file for future use if required.

 

Thanks again

 

BD

 

its the personal opinion of the law from a poster (surfaceagent x20) who i believe is legally trained.

 

he usually knows what he is talking about!!

 

try reading and understanding it one para at a time- it does eventually sink in

[diddydicky]

Judgment in Manchester cases formally handed down yesterday afternoon.

 

The case To be known as Carey v Hsbc was mainly over what a creditor needs to do in order to comply with s. 78 request. They are to be allowed to reconstitute agreements. This is also in accordance with the OFT draft guidance which was introduced into evidence. They do not have to provide a photocopy of the application at all.

 

In addition prescribed terms can be overleaf or referred to as attached for agreements pre 2005. This will be a matter of evidence individual to each case

 

pre 2005?

 

sounds dodgy to me , and what of agreements between 2005-2007?

 

seems to me that "as attached" flies directly in the face of " cannot be found in or referred to in another document" and so appears that the court has "changed the law"

[diddydicky]

Sorry just to correct the sentence - can we assume if they have lost an agreement and thus no signature they can reconstitute one and dispense with the signature ?

 

this would seem only to apply to requests under s77/79 they would still need to produce the original in court complete with signatures

 

also not sure if the judgement is saying that the PT's can be "attached" or if it is saying that the agreement must state "as attached"

 

also does it mean Terms and conditions "as attached" or

 

Prescribed terms "as attached"

 

i presume then that the legal definition of a s77/79 request to produce a true copy of an EXECUTED agreement is now changed since, if the prescribed terms are not within the four corners of the signature document but "as attached" then they have not supplied a true copy of an EXECUTED agreement but rather a true copy of an UNExECUTED agreement

 

or am i missing a point somewhere

Edited December 24, 2009 by diddydicky

[diddydicky]

Dave...

 

I think there has always been confusion in folk understanding a s.78 request and enforcement...

 

CPR is there to make them produce a copy of the original in court plus the law, case law and Goodes as to what the form and content must be so I don't think much will change on this issue.

 

What we really need is a test case where folk can use a quote from CAG as a legal defence rather then having to actually understand things...lol

 

except surely that this puts us in the position where we have to take a gamble since a 31.16 involves a fee and a possible heavy costs claim from the OC in complying

 

perhaps they are trying to "price us out" of making requests

[diddydicky]

The man who wrote the Consumer Credit Act 1974 explains all;

 

As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson

for his interesting and well-argued article (30 August 2003) on*Wilson v First County Trust

Ltd*[2003] UKHL 40, [2003] 4 All ER 97.

Dr Lawson may be interested to know that I included the provision in question (section

127(3)) entirely on my own initiative. It seemed right to me that if the creditor company

couldn’t be bothered to ensure that all the prescribed particulars were accurately included in

the credit agreement it deserved to find it unenforceable, and that the court should not have

power to relieve it from this penalty. Nobody queried this, and it went through Parliament

without debate. I’m glad the House of Lords has now vindicated my reasoning and confirmed

that nobody’s human rights were infringed.

167*Justice of the Peace*(2003) 773.

[diddydicky]

Hi

To answer my own question.

An agreement is generally enforced against the lender after a breach, however the lender can say that the agreement was not properly executed so the court must firs ascertain that the agreement complied with the act before the breach can be addressed.

First the court asses the nature of the creditors breach, it has a number of options .

It can rule there was no breach and issue an order to enforce.

It can decide that the creditor was in breach in that the agreement was incorrectly executed and modify the enforcement by section127 or alter the terms of the agreement by 135 etc.

So with this in mind how does it effect the issuance of a declaration under section 142 .

Peter

 

oops