Cap1 & CCA return

[JonCris]

The Fraud Act 2006 came into force on 15th of Janurary 2007

The act is small as it contains only 16 sections plus 3 schedules.

All Theft Act deception offences are abolished to be replaced by 3 new fraud offences: fraud by misrepresentation.......fraud by failing to disclose information and fraud by abuse of position..

Under section 1 a person is guilty of fraud if they are in breach of any offences in sections 2,3,4.

Under Section 2 representation must be made dishonestly which is established under the two-stage test as set out in Rv Gosh (1982) QB 1053, 75 Cr App R 154 in which the defendant was dishonest by the standards of ordinary people

Subsection (1)(b) requires that the representation is made with the intention of making a gain for himself or causing a loss or risk of loss to another. Loss and gain are defined in section 5 as being money or property

[JonCris]

Here's something which may be of interest...........A couple of days ago I was chatting to a solicitor who operates in commercial debt recovery (won't touch consumer credit, doesn't like the idea of (in his words) chasing widows & orphans...............I mentioned that the money lenders & in particular their DCA's are being asked to supply true copies failing which they commit an offence after the statutory period if still in default..........This person stated he thought that most would be unable to supply such docs as they won't have been provided by the original creditor..............They would see it as a costly exercise bearing in mind how little in the pound they are being paid by the DCA's...........The DCA's on the otherhand when the money lender cannot supply are demanding a refund as their is no chance of recovery....They have bought a pup.....So their desire to squeeze a shilling out of everything appears to be coming home to roost

[JonCris]

Mine is..........canna ave a lift please to...from......etc: (20 miles is local by the way on the planet my lovely daugher inhabits).........ME............can't you get a boyfriend with a bloody car that works.............phones after midnight knowing we WILL pick her up............on arrival (having got out of bed) she says........where you bin! I've been waiting hours.......no dear 20 mins actualy...........welllllllll seems like hours & I'm very tired.........your not the only one........says I..............but like Pam her Mother & I wouldn't have it any otherway

[JonCris]

the european Council Directive 85/577/EEC of 20 December 1985 to protect the consumer in respect of contracts negotiated away from business premises

 

Hi again Fantasy Charges

 

Small correction - the directive above is covered in the following:

 

Consumer protection (Cancellation of contracts concluded away from business premises) Regulations 1987 (the doorstep selling regulations)

 

C.15 The doorstep selling regulations, which extend to the whole of the UK, implement Council Directive 85/577/EEC and are designed to protect consumers in respect of contracts made at the doorstep or otherwise concluded away from the trader's business premises. They apply to a contract for the supply by a trader of goods or services to a consumer which is made during an unsolicited visit by a trader to the consumer's home or to the home of another person, or to the consumer's place of work. They also apply to a visit by a trader at the request of the consumer where the goods or services to which the contract relates are other than those concerning which the consumer requested the visit of the trader.

 

Regards, Pam

 

The underlined above could have implications for a trader such as a double glazing firm who introduces credit without it being requested/mentioned at the outset when the appointment is made or cold called..........any finance agreement might NOT have been properly executed

[JonCris]

I think the following is relevant

 

CCA 1974

 

85 Duty on issue of new credit-tokens

 

(1) Whenever, in connection with a credit-token agreement, a credit-token other than the first is given by the creditor to the debtor, the creditor shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it.

 

(2) If the creditor fails to comply with this section—

 

(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.

[JonCris]

Of course, but that wasn't the question I was asked.

 

My response is where a properly executed agreement HAS been provided - but after the 12 working days + 1 month.

 

The act states that the default continues until the document is provided - and remains unenforceable whilst the default continues. It does not state that the after 12 working days + 1 month the default is permanent.

 

 

NO Alan it doesn't say its permanent but it doesn't say it isn't either. I think that as a result of Wilson - v _ Secretary of State we might like to look at this legislation from a slightly different viewpoint.......namely that unless expressly stated then the legislation falls in favour of the consumer

[JonCris]

I'm aware of that Alan....I'm refering to the point at which it becomes criminal

[JonCris]

s 75 applies to all finance agreements not just CC's.........the exeptions are personal loans (in which case there is no lein on the purchased asset) or if you arrange your own finance to say buy a car then you are not covered...........The finance must be dealer introduced.

 

Any HP company (of which there are some) which provides personal loans through dealerships & then regisiters the car with HPI......or snatches it back without a court order claiming they still own it are trying to have their cake & eat it. On the one hand when they take it back they are claiming that the agreement is 'controlled' but on the otherhand if you try to enforce your rights under the 'controlled' agreement they will claim you don't have such rights as personal loans are not covered......this deception is practiced by some very large lenders

[JonCris]

Agree Alan.......I agree that DJ's have a lot of discretion but only in what is described as small claims (which should really be refered to as arbitration) When you move up to fast or multi then the DJ cannot interpert the law with complete disregard to case law or statute.

 

Much of the problem is that too many claimants & some defendants aren't well enough prepared to educate the DJ's who can't be expected to know everything...also I suspect that this is fairly new ground for them as it for us.

[JonCris]

I don't think so Peter....you can't commit a criminal act then expect to continue to benefit............Theres a thought.........the have commited a criminal offence & therefore are not allowed to benefit from that act

[JonCris]

My undertanding of the CCR 83 regs is that to satisfy a sec 77-79 request, tehy can provide the doc without signatures, but it must be a true copy of the original....not sure how it applies to sec 85 though, if it does!

 

Also, I am surprised that they replied to both your letters in one - that's bad in my opinion, seperate letters means seperate complaints. And, as you say, you both may not even be aware of each other's circumstances....

 

The CCR 83 reg is for the supply of docs for cancellation purposes & to confirm the terms. Also to avoid sending docs with signatures & bank details through the post.........However it does not allow creditors to refuse to send a signed properly executed agreement when requested under the CCA...........otherwise as you have noticed one reg would completely disregard the other

[JonCris]

Agreement

 

http://img249.imageshack.us/img249/9310/citi1np4.jpg

 

It IS a copy of your agreement as required by the 83 regs.....& sent for the purposes I have already alluded too in my previous post..........but it is not a properly executed agreement (with signatures) which they would be required to send you in the event you made a CCA request

[JonCris]

I am sorry to go back over old ground but can you point me to where the regs and legislation says certain parts must be in the signature document rather than just in the T&C's

 

Here you go

 

The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order.The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and 63, section 127(4) precludes the court from making an enforcement order.

 

Section 65(1) provides that an improperly executed agreement shall be enforceable only "on an order of the court." Section 127 gives the court power to make orders for the enforcement of agreements that are, for various reasons, improperly executed. But subsection (3) provides that a court shall not make an enforcement order for an agreement that does not comply with section 61(1)(a) unless the debtor signed a document containing "all the prescribed terms." & you don't sign the T's & C's

[JonCris]

correct!...........I do hope the bank shareholders are reading this

[JonCris]

The front is considered the signature document......At the very least the front of the doc should allude to the specific terms on the back

[JonCris]

No it must refer to the APR being on the back..........It must be specific....Although I suspect a court would expect such important info as the APR (as most are) to be on the front above the signature

[JonCris]

Mine says "I have read and agree to be bound by the terms and conditons attached"

 

Meaningless.......As has already been stated the specific terms (which means amongst others the term., the amount, the interest, the amount of credit, the total sum payable, your rights etc:) MUST be on the signature document

[JonCris]

Right, so my agreement doesn't have any of that.....so the bank cannot get it enforced whatsoever?

 

Any idea of a letter I can send? lol....I've sent them loads, andone saying it isn't enforcable because of this, but they have completely ignored it and also it's taken over 8 weeks, so off the FOS I go!!

 

I'm so happy now!!

 

In your letter simply specify the relevant regs whilst stating that you consider their agreement to be unenforcable..........it's for them to pick the bones out of it

[JonCris]

Yes uniboy but don't be specific. Just state that their agreement is unenforcable in law & leave it at that......You only need to get specific in your POC

[JonCris]

Smoothy........The OFT changen their minds.....microfich IS valid

 

Un1boy yes.......If they have wiped their hands of the account then they will also be required to remove their default...........Suggest sending them a DPA10 telling them to stop proccessing your data

 

Amend as required

Notice pursuant to s.10 of The Data Protection Act 1998.

Dear Sir/Mafam

 

Re: account no. XXXXXXXXX

Account holder. XXXXXXXXX

Address. XXXXXXXXXXXXXXXXXXXXXXXXX

 

 

Please take notice that I require that you cease from processing my data within 7 days of the receipt by you of this notice or else that you do not begin to process any personal data of which I am the subject insofar as that processing involves the communication or passing of personal data of which I am the subject to any third party and insofar as the said data relates wholly or in part to the implementation by you of charges which have been applied to my account in respect of defaults or contractual breaches and where the said charges which have been levied at a rate which is in excess of the administrative costs incurred by you as a consequence of the said defaults or breaches contrary to Statute and Common Law.

 

This Notice is given on the grounds that the processing or continued processing by you of the said data will be likely to affect my credit rating and my reputation and cause substantial damage and/or substantial distress to me and my family members in addition to that which may already have been caused and that as the processing of the said data in the way referred to in this notice would violate the fourth, first and sixth principles of The Data Protection Act 1998 to do so would be unwarranted.

 

signed

 

 

 

 

date

[JonCris]

Required Terms

60 Form and content of agreements

(1) The Secretary of State shall make regulations as to the form and content of documents embodying regulated agreements, and the regulations shall contain such provisions as appear to him appropriate with a view to ensuring that the debtor or hirer is made aware of—

(a) the rights and duties conferred or imposed on him by the agreement,

(b) the amount and rate of the total charge for credit (in the case of a consumer credit agreement),

© the protection and remedies available to him under this Act, and

(d) any other matters which, in the opinion of the Secretary of State, it is desirable for him to know about in connection with the agreement.

(2) Regulations under subsection (1) may in particular—

(a) require specified information to be included in the prescribed manner in documents, and other specified material to be excluded;

(b) contain requirements to ensure that specified information is clearly brought to the attention of the debtor or hirer, and that one part of a document is not given insufficient or excessive prominence compared with another.

[JonCris]

Tan DO NOT phone........unless you can record the conversation otherwise write & send special delivery

[JonCris]

Wot's the point.....surely you have more important things to do...........like watching the grass grow.....................or seeing if you squint the wall appears to move

[JonCris]

Yup it's the shadows they cause............don't yu know

[JonCris]

Careful you don't confuse them.........can't wait for the response.......shall wait until then before commenting