Cap1 & CCA return

[conar686]

At the moment it is still a criminal offence (in theory),

DOH - Its either a criminal offence or it isn't. What this means is that TS will not waste their resources prosecuting. I'm disappointed in the tosh that some TS spout on this matter

IMHO Even when the law changes, offences committed prior to the new enactment are still liable or will there be a blanket amnesty declared.

[un1boy]

"I do not understand the point being made here "It is also over 2 pages which cannot be linked and therefore the prescribed terms cannot be linked to the signature document as specified in the regulations."

 

s.78 states that the agreement is unenforceable whilst the breach continues (i.e. until they provide a proper copy and all the required info) - so when they do, it can become enforceable again. "

 

 

The person who wrote this appears confused by your letter.

 

What did you tell them- that you havent recieved anything or that you had recieved an application form and a copy of the T&Cs?

 

I told then that T&C's not received and asked for their advice re an agreement that is over 2 pages with no way of linking them....

[un1boy]

Hi,

 

dont worry, I am under no illusions about that particular toothless tiger (although I appreciate some TS offices are tring their best with their hands tied!)

 

All my action will be in court (county)

 

And if that works I shall then pursue criminal actions myself

 

2 Things:

 

1. I have taken action in the county court, but my claim has been stayed as apparently the court thought it was for bank charges (and the defendant's defense was about bank charges) - my claim cearly states that it is under the CCA.

 

2. How do you take ciminal things agsint them yourself?

[MoonHawk]

Good like with the case Uni. I think the courts are just hoping everything to do with consumer credit is baking so that can stay them

 

I would appreciate advice and assistance regarding a claim against my wife by Next.

 

Best Wishes

MoonHawk

[ncf355]

2 Things:

 

1. I have taken action in the county court, but my claim has been stayed as apparently the court thought it was for bank charges (and the defendant's defense was about bank charges) - my claim cearly states that it is under the CCA.

 

2. How do you take ciminal things agsint them yourself?

 

 

Hi Un1

 

1. Write to the court, using the stay removal template on CAG as the basis, but making it clear that your case questions the legality of the credit agreement and NOT the lawfulness of the level of penalty charges, hence the OFT Test Case will have no bearing upon it

 

2. Having spoken to a friend who is a trainee solicitor, I have gained the impression you only need to write to the magistrates enclosing evidence and ask that criminal proceedings be issued

[Peterbard]

Hi

There has been a debate raging as to whether debt collection agencies have to comply with this. The OFT and at least one large company have had varying legal opinions. Debt collection agencies are rarely in a position to produce a photocopy of the original signed agreement, more often than not they never see it and are completely reliant on the company to source it for them when disputes arise. Often the lender no longer has it as they get archived, lost, etc. An OFT lawyer is still considering it.

 

I have a problem with this are TS suggesting that it is OK for DCA to pusrue people for debt that they have no evidence even exists?

My understanding is that if a debt is transferred (bought by a DCA) they also transfer all the required documentation, otherwise how do they know the debt is legitimate.

 

One issue I have come across before is that they are only under a duty whilst the agreement is still active, if it has been discharged it can be a different matter.

 

This we know section 77 (3)

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

the debtor

 

 

At the moment it is still a criminal offence (in theory), and at the moment it can make it unenforceable, although both of these are set to change under the new Act, etc. It is being decriminalised by the UCPD."

 

NO it is a criminal offence in fact, What new act? What is the UCPD?

 

I get the impression from this and other conversations with the TS/OFT that they really are not bothered about the section 77-78 requests and are content to say whatever is sent in a reply is ok, therefore transferring the burden of proving or disproving the validity of the agreement to the court when the creditor tries to enforce.

 

They have addopted this attitude bassically i believe because we have allowed them to.

The regulations quite clearly state what is required nobody i have talked to so far has been able to deny this yet they still come up with advice which waters the regulations down to such an extent that it makes them totally impotent.

We should not let these "enforcement" bodies get away with taking the soft option and should iMO challenge them every time they say that some request has been complied with when it clearly has not.

 

Best regards

Peter

[elsinore]

What is the UCPD?

 

Here you are Peter

 

Unfair Commercial Practices Directive - BERR

 

Don't ask me to explain it or understand it. I'll leave that up to you!

 

Els

[Peterbard]

Hi

Thanks E

 

I have just scanned it and i am no wiser it seeems to be a draft document designed to protect consumer rights i don't see now this would effect the legallity of the cca i will read further

 

Thanks again

Peter

[patrickq1]

I think peter you have come up with the same as what every one is thinking ,the legal rights and benefits are being subverted by this cesspool of corrupt and unlawfull juggernaut we call the finance industry

TRADING STANDARS AND ICO FOS AND ALL OTHERS who are put in place to defend our rights and privaliges are failing in their duties of care ,it is now far simpler to let the finance industry steamroller us into submission,this is why i have made a big thing about the RULE not only being repugnant it is becoming obnoxious hence we should be asking for an audit comission and a judicial enquiry into the whole of the industry and for them to have their lawlessnes curtailed and brought to book.too many years have slipped past and we even see now some judges are asking what is happening...my rant over patrickq1

[noomill060]

I had a look at UCPR last night. I cant see anything that relates to CCA. Seems to be about protection of vulnerable people from doorstep sellers.

 

Quite a bit about unfair and deceptive trading practices, though.

 

(Maybe this includes the use of application forms pretending to be credit agreements, although that seems to have been covered by the new OFT 2005 regs and 2006 CCA)

[noomill060]

In my view, TS either by accident or design, appear to act as first line of defence for companies against consumer complaints regarding CCA issues.

 

TS officers appear to know less than we do and where they do know the law are unwilling to enforce it.

 

Failure to comply with a s.77/78 request, as we know, is a level 4 offence carrying a £2500 fine and/or a 3 month term of imprisonment, yet they dont regard this as serious enough to bother with.

 

The upshot of this is a de facto amnesty for DCAs and creditors to harass.

[noomill060]

The reason for this, in my view is clear.

 

The Wilson case states that the penalty to a creditor for not ensuring that they have an enforceable agreement is forfeiture of all sums due under that agreement.

 

The 2006 CCA backs up this law lords ruling by explicitly stating that pre April 2007 agreements remain covered by s.127(3)

 

The OFT appears to be passing the buck onto the Courts.

 

ie: If they dont have a valid agreement this will come out in court (if a consumer is savy enough to challenge them) and they will lose all their profit, plus a load more on top.

 

The consumer will then be able to nail them for harassment.

 

They appear to to believe that this should provide adequate motivation to creditors to ensure they cover their backs.

 

This is my understanding of the above internal OFT email.

[noomill060]

Of course this is an outrageously cynical stand point as they are well aware that very few consumers actually know the law on which they can defend themselves, so allowing creditors and DCAs to harass and steam roller them with impunity.

 

But note how many DCAs do actually go very,very quiet when legal action is started.

[ncf355]

In my view, TS either by accident or design, appear to act as first line of defence for companies against consumer complaints regarding CCA issues.

 

TS officers appear to know less than we do and where they do know the law are unwilling to enforce it.

 

Failure to comply with a s.77/78 request, as we know, is a level 4 offence carrying a £2500 fine and/or a 3 month term of imprisonment, yet they dont regard this as serious enough to bother with.

 

The upshot of this is a de facto amnesty for DCAs and creditors to harass.

 

 

Noomill,

 

I keep hearing this about the fine and imprisonment, but looking in Schedule 1 (page 115) of the latest print of the CCA 1974 it states £200 fine and nothing about prison?

 

Where have you got that info from?

 

(not having a go, just want clarity as I would love this to be the case!)

[shooter001]

Noomill,

 

I keep hearing this about the fine and imprisonment, but looking in Schedule 1 (page 115) of the latest print of the CCA 1974 it states £200 fine and nothing about prison?

 

Where have you got that info from?

 

(not having a go, just want clarity as I would love this to be the case!)

 

It states somewhere that it is a level 4 offence which is a fixed penalty by law. If you google a level 4 offence you can see the penalties.

[MoonHawk]

Schedule 1 of CCA 1974:

SCHEDULE 1

PROSECUTION AND PUNISHMENT OF OFFENCES

77(4) Failure of creditor under fixed- sum credit agreement to supply copies of documents etc.

Summarily.

[Level 4 on the standard scale.]

 

78(6) Failure of creditor under running-account credit agreement to supply copies of documents etc.

Summarily.

[Level 4 on the standard scale.]

 

and section 37 of Criminal Justice Act 1982

Criminal Justice Act 1982

37. The standard scale of fines for summary offences.

— (1) There shall be a standard scale of fines for summary offences, which shall be known as “the standard scale".

[ F1(2) The standard scale is shown below—

Level on the scale Amount of fine

1 £200

2 £500

3 £1,000

4 £2,500

5 £5,000]

(3) Where any enactment (whether contained in an Act passed before or after this Act) provides—

(a) that a person convicted of a summary offence shall be liable on conviction to a fine or a maximum fine by reference to a specified level on the standard scale; or

(b) confers power by subordinate instrument to make a person liable on conviction of a summary offence (whether or not created by the instrument) to a fine or maximum fine by reference to a specified level on the standard scale,

it is to be construed as referring to the standard scale for which this section provides as that standard scale has effect from time to time by virtue either of this section or of an order under section 143 of the M1Magistrates’ Courts Act 1980.

 

Best Wishes

MoonHawk

[Peterbard]

hI

I wonder if someone can help me i am having a bit of a mental block.

Which piece of legislation contains the 6 year rule regarding the retention of documents /agreements.

 

Many thanks

 

Peter

[ncf355]

Schedule 1 of CCA 1974:

SCHEDULE 1

PROSECUTION AND PUNISHMENT OF OFFENCES

77(4) Failure of creditor under fixed- sum credit agreement to supply copies of documents etc.

Summarily.

[Level 4 on the standard scale.]

 

78(6) Failure of creditor under running-account credit agreement to supply copies of documents etc.

Summarily.

[Level 4 on the standard scale.]

 

 

Best Wishes

MoonHawk

 

What page of the CCA is that on?

 

As I said, in mine from the Sationery Office, which is the latest amendment, it states on page 115 of the CCA 1974, Schedule 1:

 

Column 1: (Section)

 

78(6)

 

Column 2: (Offence)

 

Failure of creditor under running-account credit agreement to supply copies of documents etc.

Summarily.

Column 3 (Mode of prosecution):

 

Summarily

 

Column 4 (Imprisonment or fine):

 

£200

 

 

?

[ncf355]

hI

I wonder if someone can help me i am having a bit of a mental block.

Which piece of legislation contains the 6 year rule regarding the retention of documents /agreements.

 

Many thanks

 

Peter

 

 

Think thats the money laundering regs Peter?

[Peterbard]

Hi Yes thanks N

 

I will have a look.

 

I know it is referred to in the statute of limitations legislation perhaps this is where the recomendation to keep documents for this period comes from, but i would have thought it would have been specified in regulations somewhere.

 

Best regards

Peter

[un1boy]

I didn't think it was specified Peter - just "industry standard"

[un1boy]

Hi

There has been a debate raging as to whether debt collection agencies have to comply with this. The OFT and at least one large company have had varying legal opinions. Debt collection agencies are rarely in a position to produce a photocopy of the original signed agreement, more often than not they never see it and are completely reliant on the company to source it for them when disputes arise. Often the lender no longer has it as they get archived, lost, etc. An OFT lawyer is still considering it.

 

I have a problem with this are TS suggesting that it is OK for DCA to pusrue people for debt that they have no evidence even exists?

My understanding is that if a debt is transferred (bought by a DCA) they also transfer all the required documentation, otherwise how do they know the debt is legitimate.

 

One issue I have come across before is that they are only under a duty whilst the agreement is still active, if it has been discharged it can be a different matter.

 

This we know section 77 (3)

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

the debtor

 

 

At the moment it is still a criminal offence (in theory), and at the moment it can make it unenforceable, although both of these are set to change under the new Act, etc. It is being decriminalised by the UCPD."

 

NO it is a criminal offence in fact, What new act? What is the UCPD?

 

I get the impression from this and other conversations with the TS/OFT that they really are not bothered about the section 77-78 requests and are content to say whatever is sent in a reply is ok, therefore transferring the burden of proving or disproving the validity of the agreement to the court when the creditor tries to enforce.

 

They have addopted this attitude bassically i believe because we have allowed them to.

The regulations quite clearly state what is required nobody i have talked to so far has been able to deny this yet they still come up with advice which waters the regulations down to such an extent that it makes them totally impotent.

We should not let these "enforcement" bodies get away with taking the soft option and should iMO challenge them every time they say that some request has been complied with when it clearly has not.

 

Best regards

Peter

 

I agree Peter, but what can we do? can we take TS etc to court for not acting on their responsibilities (like some people were going to with the OFT?) I would have thought that they had to report to someone (the minister of the DTi perhaps?)

[Peterbard]

I agree Peter, but what can we do? can we take TS etc to court for not acting on their responsibilities (like some people were going to with the OFT?) I would have thought that they had to report to someone (the minister of the DTi perhaps?)

 

HI

 

My thoughts exactly and that is what i have done whether they will reply is another matter.

 

Regards

 

Peter

[Peterbard]

I didn't think it was specified Peter - just "industry standard"

 

Hi

Don't say that Uni how am i supposed to bash a creditor over the head with an industy standard i need legislation.

 

Regards

Peter

[un1boy]

HI

 

My thoughts exactly and that is what i have done whether they will reply is another matter.

 

Regards

 

Peter

 

 

ooooohhhh, keep us updated!

 

let me know if i can do anyhting too- ill enter action against them!!