Cap1 & CCA return

[Cristal]

I know they're totally trying it on but it's scary how legit they make it all sound. If I didn't know about this website, I'd be terrified! Watch this space!

[Cristal]

The word 'application' jumps out to me

 

Ditto. Amazing how stupid they think the average person is.

[paulwlton]

I've been looking into the validity of CCA Requests on debts that have been subjected to CCJs. Now a CCJ on my underatanding is not an enforcement order by the court it is merely a means of establashing the contract in law so if the account is being repaid on a monthly basis then a CCA Request must still be legally binding.

 

If the Judgement debtor then defaults on his obligation to pay the debt the Judgement creditor may go back to court to try and enforce the debt.

 

I have just recieved confirmation from a Judgement creditor that no further action will be taken untill they have located my signed agreement this is after 2 CCA requests and subsequent follow up letters.

 

(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)

(signing of agreements) was not complied with unless a document (whether or not in the

prescribed form and complying with regulations under section 60(1)) itself containing all the

prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the

prescribed manner).

[joneshousehold]

Cristal, they are trying to use ordinary contract law to suggest the agreement is enforceable because you have entered the agreement by your actions. Unfortunately for them this is a basic error of principle. Any agreement caught by the CCA (which is most credit cards, loans etc) is required to meet the very specific requirements set out in the Act.

 

I would have expected a credit card provider to know that and it is concerning to see they are suggesting otherwise. I would write back to them and point out their basic misconception and remind them that S78 gives them considerably less than 28 days. Make sure they have exceeded the 12 day (and preferably the further 1 month if possible) deadline before writing and tell them you are stopping all payments until they comply and you are satisfied the agreement is enforceable.

 

Ah Cristal I have now seen your later posting. Hope I'm not telling you what you are very well aware of already. Many apologies if I have!

[joneshousehold]

Issue court papers and inform TS?

 

What would a claimant be issuing court papers for in these cases? And is it a standard N1?

[Stornoway]

Cristal, they are trying to use ordinary contract law to suggest the agreement is enforceable because you have entered the agreement by your actions. Unfortunately for them this is a basic error of principle. Any agreement caught by the CCA (which is most credit cards, loans etc) is required to meet the very specific requirements set out in the Act.

 

I would have expected a credit card provider to know that and it is concerning to see they are suggesting otherwise. I would write back to them and point out their basic misconception and remind them that S78 gives them considerably less than 28 days. Make sure they have exceeded the 12 day (and preferably the further 1 month if possible) deadline before writing and tell them you are stopping all payments until they comply and you are satisfied the agreement is enforceable.

 

Ah Cristal I have now seen your later posting. Hope I'm not telling you what you are very well aware of already. Many apologies if I have!

Jones

 

My understanding is that even though a debt is unenforceable a contract and debt still potentially exists and therefore the creditor is quite within their rights to continue chasing for payment (using DCAS if they wish ?). To enforce they would have to go to court and there is a good chance that they could persuade the judge to allow the enforce ?

[Cristal]

Cristal, they are trying to use ordinary contract law to suggest the agreement is enforceable because you have entered the agreement by your actions. Unfortunately for them this is a basic error of principle. Any agreement caught by the CCA (which is most credit cards, loans etc) is required to meet the very specific requirements set out in the Act.

 

I would have expected a credit card provider to know that and it is concerning to see they are suggesting otherwise. I would write back to them and point out their basic misconception and remind them that S78 gives them considerably less than 28 days. Make sure they have exceeded the 12 day (and preferably the further 1 month if possible) deadline before writing and tell them you are stopping all payments until they comply and you are satisfied the agreement is enforceable.

 

Ah Cristal I have now seen your later posting. Hope I'm not telling you what you are very well aware of already. Many apologies if I have!

 

Excellent advice! I shall bide my time and then reply. Many thanks for the suggestion, J!

[joneshousehold]

Jones

 

My understanding is that even though a debt is unenforceable a contract and debt still potentially exists and therefore the creditor is quite within their rights to continue chasing for payment (using DCAS if they wish ?). To enforce they would have to go to court and there is a good chance that they could persuade the judge to allow the enforce ?

 

I would agree with you Stornoway to some extent but in Cristal's case I think she is saying she has not yet had a copy agreement following a request under S78. If Halifax breach the deadlines they are in default and the CCA says then the agreement cannot be enforced whilst the default continues. This means I believe they cannot even contact her. This is of course only my understanding of the legislation

 

If they do comply but the agreement is defective then it is unenforceable until such time as the court orders otherwise. However I still think they are prevented from chasing the debt until that court order is given. What they can do is still hold the debt as an asset but they cannot do much with it until the court order is issued.

 

Does this match with your understanding?

[un1boy]

What would a claimant be issuing court papers for in these cases? And is it a standard N1?

 

In order to get the agreement deemed unenforcable and to get what you want quicker (they are more likely to settle out of court, aren't they?)

 

As for N1, have no idea....I am going to be compiling some asap.....

[Cristal]

Just to confirm...I have not yet had a copy of the Agreement or Application - only the letter from Halifax.

[un1boy]

Jones

 

My understanding is that even though a debt is unenforceable a contract and debt still potentially exists and therefore the creditor is quite within their rights to continue chasing for payment (using DCAS if they wish ?). To enforce they would have to go to court and there is a good chance that they could persuade the judge to allow the enforce ?

 

My understanding is that they cannot enforce the agreement - ie, none of the T&C's.....they can't enforce it by using DCA's or anything because they aren't even allowed to charge interest on the balance.

 

Any letters/contact they make regarding u paying is not allowed.....it is up to you whether you pay them or not......(that's if the agreement is totally unenforcable)...or the court, if it is enforcable with a court order.

 

That's my understanding...

[joneshousehold]

Un1boy, I am the same. I haven't taken this step although I have threatened one creditor with action as they have issued a default notice whilst in default. I am just not sure how to go about it. I will have to read up a bit more I think.

 

Good luck with your claims and N1's

[un1boy]

Un1boy, I am the same. I haven't taken this step although I have threatened one creditor with action as they have issued a default notice whilst in default. I am just not sure how to go about it. I will have to read up a bit more I think.

 

Good luck with your claims and N1's

 

thanks mate....will keep you updated

 

PS same to you!

[tamadus]

Well I know your opinion on TS un1 - and it's pretty much the same as mine. And we have the "criminal" offence issue yet again. I wish someone would direct me to a definitive document that confirms it is "criminal". I keep asking, but it hasn't happened yet.

 

How does this sound:

 

An act of parliament as passed by both houses and accepted by the Queen clearly states an offence is committed. That makes it an offence against the Queen and the people. That is usually the grounds for a criminal investigation.

[tamadus]

I have a feeling it would be viewed rather like a parking offence, it is not civil but is not regarded as a heinous crime.

 

I think things liek parking offences are a breach of local bye-laws and not actual acts of parliament.

[tamadus]

I hope i'm posting on the correct thread.....I CCA'd Halifax on my Visa Card, using the usual CCA template and rec'd a response today. A long letter but the following jumped out at me:

 

'I acknowledge the receipt of the standard letter received, however the quote relates to secured lending and not that of a visa card. I can confirm that I have arranged a copy of your application to be sent to you, please allow 28 days. With regard to enforcement of the contract with visa cards a copy of the agreeement is not necessaey as by spending on the account or making repayments you have tacitly acceopted the contract and it remains enforceable on this basis.

 

Pleas be advised that if an agreeable arrangement is not forth coming the account will be transferred to Blair Oliver & Scott to instigate recovery proceedings. I do hope such action will not prove necessary and I look forward to receiving your cooperation.'

 

Can this be right? The use of the word 'tacit' is interesting.....

 

Visa is a form of running credit and therefore falls within the scope of section 78 of the CCA. They are trying a 'standard tactic hoping to convince you that your wrong.

 

They are covered and a sec 78 request for the agreement is a legal right you have.

[Cristal]

Thanks for that.....incredible that Halifax would be so blatantly economical with the truth.....their behavior is borderline.....I intend to pursue it under sec 78.

[Stornoway]

I would agree with you Stornoway to some extent but in Cristal's case I think she is saying she has not yet had a copy agreement following a request under S78. If Halifax breach the deadlines they are in default and the CCA says then the agreement cannot be enforced whilst the default continues. This means I believe they cannot even contact her. This is of course only my understanding of the legislation

 

If they do comply but the agreement is defective then it is unenforceable until such time as the court orders otherwise. However I still think they are prevented from chasing the debt until that court order is given. What they can do is still hold the debt as an asset but they cannot do much with it until the court order is issued.

 

Does this match with your understanding?

I'm in a mexican stand off with capital one and hsbc. Both say that whilst there is no credit agreement the debt still exists, is due for payment and they are perfectly entitled to contact me for payment - this matches my understanding. I've offered to settle the account at a 75% discount on condition that they also remove default but they are not playing ball. My concern is that if I simply stop paying then I'll end up with a collection agent at the door which is something I DEFINITELY dont want.

[tamadus]

Jones

 

My understanding is that even though a debt is unenforceable a contract and debt still potentially exists and therefore the creditor is quite within their rights to continue chasing for payment (using DCAS if they wish ?). To enforce they would have to go to court and there is a good chance that they could persuade the judge to allow the enforce ?

 

Employing a DCA or any other form of collection agency is also considered enforcement. The ONLY way they can enforce it is if they get a court order saying it can be enforced. Any other method will be considered as another offence.

 

The term enforcement actually refers to enforcing the contract and it's T&C. That will include trying to enforce payment under the standards T&C. Ergo they need court permission.

[tamadus]

Thanks for that.....incredible that Halifax would be so blatantly economical with the truth.....their behavior is borderline.....I intend to pursue it under sec 78.

 

It's not so much they are economical but that they twist it to suit their purposes. If they can persuade us they are right then we meekly pay up even when they are obviously worng if we use a bit of thought.

[ian1969uk]

I'm in a mexican stand off with capital one and hsbc. Both say that whilst there is no credit agreement the debt still exists, is due for payment and they are perfectly entitled to contact me for payment - this matches my understanding. I've offered to settle the account at a 75% discount on condition that they also remove default but they are not playing ball. My concern is that if I simply stop paying then I'll end up with a collection agent at the door which is something I DEFINITELY dont want.

 

Sorry, but as Tam says, this is just not correct. If there is no original agreement, then they cannot enforce any part of the alleged agreement. This includes asking for payment and adding interest. If they send a payment request, on what basis are they doing this? Oh yes, that's right, it's one of the terms of the agreement...erm...what agreement?

[un1boy]

I think things liek parking offences are a breach of local bye-laws and not actual acts of parliament.

 

Parking Tickets are issued under sec 66 schedule 6 of the road traffic act 1991 (as amended)

 

I should know, I got one today.

 

But im putting in a consideration under para 2(4)(e) of said act that they take £5 and not £30 as I had paid £1 and stayed only 30 mins extra ( i thought it was a 2 hour stay, not 1 hour) and the standard hourly rate was 40p

 

I've even added the relevant para from the act, hopefully should make them realise I need business....

 

will see what happens, lmao

[tamadus]

I'm in a mexican stand off with capital one and hsbc. Both say that whilst there is no credit agreement the debt still exists, is due for payment and they are perfectly entitled to contact me for payment - this matches my understanding. I've offered to settle the account at a 75% discount on condition that they also remove default but they are not playing ball. My concern is that if I simply stop paying then I'll end up with a collection agent at the door which is something I DEFINITELY dont want.

 

Stornaway, If they have not supplied a credit agreement within the timescale allowed BY LAW then the LAW says they can't enforce it until such time as they do produce the agreement.

 

Sure they will keep trying but stick to your guns and they will back off ultimately. I recently had a threat of a doorstep agent calling and I waited in deliberately for them and guess what ? nothing. I am now going to tell them I am adding a days lost wages to the amount I am claiming back.

 

This is for an account where they only sent an application form back in August last year. I havent paid a penny since and have no intention of doing so. IF they actually record a default then that too will go into the claim.

 

In almost every case where an agreement hasnt been forthcoming it's because they dont have one that will stand up in court and they know it. They then try to convince us through various means and threats that they are right. We cant really expect anything different from them as this is going to cost them millions and its through their own negligence.

[un1boy]

I'm in a mexican stand off with capital one and hsbc. Both say that whilst there is no credit agreement the debt still exists, is due for payment and they are perfectly entitled to contact me for payment - this matches my understanding. I've offered to settle the account at a 75% discount on condition that they also remove default but they are not playing ball. My concern is that if I simply stop paying then I'll end up with a collection agent at the door which is something I DEFINITELY dont want.

 

 

Ok, I'm in a similar situ with HSBC- I did a CCA request in august 2006 and they sent me an agreement only, no t and c's, the agreement has my sig on it and theirs, but no prescribed terms. Therefore it is unennforcable, full stop.

 

I have not paid them since August and the balance has not increased and in fact they have gone VERY quiet - they haven't answered any of my letters since January 2007.

 

The only way you'll get collectors at the door is if they tkae u to court, which they cant do....

[tamadus]

Parking Tickets are issued under sec 66 schedule 6 of the road traffic act 1991 (as amended)

 

I should know, I got one today.

 

But im putting in a consideration under para 2(4)(e) of said act that they take £5 and not £30 as I had paid £1 and stayed only 30 mins extra ( i thought it was a 2 hour stay, not 1 hour) and the standard hourly rate was 40p

 

I've even added the relevant para from the act, hopefully should make them realise I need business....

 

will see what happens, lmao

 

But aren't they enforced under local council bye laws ? That seems to be how it works as every area has a different address to send payment to. I also understand the money generated goes into local council coffers and notinto central government.