Cap1 & CCA return

[ncf355]

While I agree with the above, I've made this argument, so far unsuccessfully a number of times withe the Information Commissioners Office. Their response was to say I either clearly benefited or had a clear business interaction & therefore on the balance of probabilities 'I must have given my consent'. Basically go to court & let a judge decide argument

 

How suprising!

 

A regulatory body passing the work on to the consumer rather than taking the appropriate action themselves, truly, I am shocked!

 

[patrickq1]

He was told that "assignment of a contract does not always require to be in writing anyway".

 

??? How can it be shown legally that they are permitted to collect the debt if there is no paperwork?

i have,nt followed the AK thread moon,but i have read elswhere that this has come from the ICO ,i am thinking they are betond the law and seem to make their own or seem to interprate it differently...but their is one route that can be taken before it goes to a judicial review(because this can cost money to the individual trying to complain)and that is the parlimentary ombudsman...

The Ombudsman on the other hand, does not seek to interpret the law but seeks to

establish whether a public body had acted correctly and fairly in carrying out its

interpretation of the law. The Ombudsman can also investigate complaints about

administrative, rather than statutory, procedures such as the Code of Practice on

Access to Government Information. The Ombudsman can recommend a wider variety

of remedies than may be available under Judicial Review. Under Judicial Review the

decision of the court is binding. The court may quash a particular decision if it is

found to be unlawful but any right to damages is limited. The Ombudsman, on the

other hand, can recommend the payment of compensation to the complainant and

to any others who may have suffered in the same way.

patrickq1

[patrickq1]

but the way to use the parlimentary ombuds is only through the MP so we all need to complain to our local mp as well as a complaint to the prime ministers office this will put pressure on all of them to act and act quickly as elections could be imminent,sadly some who are conservative voters may find that their votes will destroy the DPA ACT as MR redwood wants to do

[noomill060]

harry- if they dont have the original, they cant enforce it.

[tomterm8]

Can one (or more) of the legal bods comment on what Conar was told by the TS (details in thread Have you sent a CCA request to AK?)

 

He was told that "assignment of a contract does not always require to be in writing anyway".

 

??? How can it be shown legally that they are permitted to collect the debt if there is no paperwork?

 

Best Wishes

MoonHawk

 

legal assignment of a chose in action must be in writing (although, it can be done electronically).

 

equitable assignment of a chose in action could be in any format, but would not establish a cause of action against the debtor (they would need to act via the OC).

[MoonHawk]

Harry,

 

The Limitation Act states 6 years and the finance companies and the CRAs have decided on 6 years for certain things, based upon this and often confuse themselves.

 

The Consumer Credit Act requires the creditor to provide the agreement upon request irrespective of when it started, while the account is active. After the account is closed then the money laundering regulations may come into play but I am not certain on that.

 

So if their internal policies have them dispose of the documents it is their problem.

 

You can write back and say that the CCA 1974 requires the production of a copy of the agreement upon request during the lifetime of the account irrespective of the age of the account. If they have said they are not legally required to hold the infomation, ask them to point you to the correct part of a legoslation which states that.

 

Best Wishes

MoonHawk

[tomterm8]

BTW, I would just credit agreement request the original creditor & SAR both OC and DCA.

[MoonHawk]

legal assignment of a chose in action must be in writing (although, it can be done electronically).

 

equitable assignment of a chose in action could be in any format, but would not establish a cause of action against the debtor (they would need to act via the OC).

Thanks for that Tom. I have some more questions of you don't mind

 

When you say in any format for an equitable assignment, can this be verbal? Is there a peice of legislation that describes the forms of an assignment for credit / debt?

 

Best Wishes

MoonHawk

[MoonHawk]

BTW, I would just credit agreement request the original creditor & S.A.R - (Subject Access Request) both OC and DCA.

In my case the OC sold the debt after they were in default of the CCA. And the SAR had no agreement supplied in it. I have not yet sent an SAR to the DCA as I am waiting for a confirmation of the assignment from the OC.

 

Best Wishes

MoonHawk

[tomterm8]

Thanks for that Tom. I have some more questions of you don't mind

 

When you say in any format for an equitable assignment, can this be verbal? Is there a peice of legislation that describes the forms of an assignment for credit / debt?

 

Best Wishes

MoonHawk

 

Equitable assignment can be in basically any form, as long as both parties (the assignee and asignor) intend the assignment. It doesn't establish any cause of action however against the debtor(i.e. they can't sue you).

[MoonHawk]

Thanks Tom.

 

Well knock me down with a feather. I do not know how I missed this. In my original letter from AK (and I quote verbatim):

 

In bold ... "You should not send any further payment or correspondence to JD Willimas & Compnay Limited, as they are no longer the legal owners of your account."

 

Does this not imply that is a full assignment?

 

Best Wishes

MoonHawk

[patrickq1]

all i can say at the moment about the whole set up about consumer affairs and the legal bits is,what planet do these people live on?) enforceable rules are being constantly violated with absolute impunity ....no regards for the 'rules' and total disregard of clients and 'Client Duty of Care Agreements'

[TideTurner]

Hi, just a quickie, I have had the we don't have to keep copies of CCA Agreements if over 6 years old thrown at me, I know this is wrong as it is 6 years after the agreement ends but don't know what piece of legislation this comes from, have scanned the CCA 1974 this morning but couldn't find it ? Cheers Harry

harrythehawk,

The fifth Principle in the Data Protection Act states: -

5. Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes.

In contract law, there must be a valid contract.

It is completely nonsensical that a company would destroy or dispose of the written agreement prior to the termination of any such agreement.

When it gets to Court are they going to say to the Judge "they owe us money but you'll have to take our word for it"?

Where they do not have a signed agreement, any debt is unenforceable.

Tide

[tomterm8]

Thanks Tom.

 

Well knock me down with a feather. I do not know how I missed this. In my original letter from AK (and I quote verbatim):

 

In bold ... "You should not send any further payment or correspondence to JD Willimas & Compnay Limited, as they are no longer the legal owners of your account."

 

Does this not imply that is a full assignment?

 

Best Wishes

MoonHawk

 

Yes, it does - and that implies that the deed of assignment must be in writing.

[wednesday1867]

Can i ask a question

 

I CCA'd Egg a while ago about an Egg loan. Up until 3 weeks ago they havent supplied anything.

 

As i say 3 weeks ago, they supplied me an "agreement", they have a tick box for the signature and PPI. I cant remember if i did this over the phone or on the internet, it was to pay off an existing Egg card.

 

As the agreement shows a tick, does it make it enforcable, or would they of then posted me an agreement to sign?

 

Thanks

[patrickq1]

if(A) is contractually liable to (B),he cannot simultaneously be liable to © in tort for the same act or ommision....You should not send any further payment or correspondence to JD Willimas & Compnay Limited, as they are no longer the legal owners of your account...so is this not a case of who is he contractuly liable to .Where they do not have a signed agreement, any debt is unenforceable.possesion by definition by handing over a contract or say a key may be sufficient by itself to pass the possesion of the contents of a room or box if it provides the effective means of control over the goods etc

[shane5408]

Can i ask a question

 

I CCA'd Egg a while ago about an Egg loan. Up until 3 weeks ago they havent supplied anything.

 

As i say 3 weeks ago, they supplied me an "agreement", they have a tick box for the signature and PPI. I cant remember if i did this over the phone or on the internet, it was to pay off an existing Egg card.

 

As the agreement shows a tick, does it make it enforcable, or would they of then posted me an agreement to sign?

 

Thanks

 

Hi Wednesday,

 

the alleged agreement they sent you sounds like an application form more than anything, a tick does not constitute a signature; at the very least for an enforcement order to be contemplated by the courts the 'agreement' needs to contain all prescribed terms and be signed by the debtor.

 

regards,

shane

[MoonHawk]

Yes, it does - and that implies that the deed of assignment must be in writing.

Woohoo... I thought so. I'll wait a couple more days until the OC pass their deadline of confirmation and proceed. Thanks again Tom

 

Best Wishes

MoonHawk

[Peterbard]

hi

Since this agreement would have been carried out entirely over the internet it would have been coverred by the distance marketing regulations (see my enforceablity thread).

On a distance marketed agreement you should have been given all the pre contractulal terms prior to completion which can be done remotely either over the net or by phone.

 

Your cancellation details should have been explained to you pre confomation and execution these are that you have 14 days from the date you recieve your contractual information in durable form usually by post.

Undoubtably they will say that you had this time to query your PPI.

However there is nothng to stop you saying it ws missold and requsting it to be cancelled usually i have found they comply if not then you can consider taking harder action.

Best regards

Peter

[patrickq1]

Contracts (Rights of Third Parties) Act 1999

 

1999 CHAPTER 31

 

Right of third party to enforce contractual term

 

(1) Subject to the provisions of this Act, a person who is not a party to a contract (a “third party”) may in his own right enforce a term of the contract if—

(a) the contract expressly provides that he may, or

(b) subject to subsection (2), the term purports to confer a benefit on him.

(2) Subsection (1)(b) does not apply if on a proper construction of the contract it appears that the parties did not intend the term to be enforceable by the third party.

(3) The third party must be expressly identified in the contract by name, as a member of a class or as answering a particular description but need not be in existence when the contract is entered into.

(4) This section does not confer a right on a third party to enforce a term of a contract otherwise than subject to and in accordance with any other relevant terms of the contract.

(5) For the purpose of exercising his right to enforce a term of the contract, there shall be available to the third party any remedy that would have been available to him in an action for breach of contract if he had been a party to the contract (and the rules relating to damages, injunctions, specific performance and other relief shall apply accordingly).

(6) Where a term of a contract excludes or limits liability in relation to any matter references in this Act to the third party enforcing the term shall be construed as references to his availing himself of the exclusion or limitation.

(7) In this Act, in relation to a term of a contract which is enforceable by a third party—

• “the promisor” means the party to the contract against whom the term is enforceable by the third party, and
  
• “the promisee” means the party to the contract by whom the term is enforceable against the promisor.
  

2 Variation and rescission of contract

 

(1) Subject to the provisions of this section, where a third party has a right under section 1 to enforce a term of the contract, the parties to the contract may not, by agreement, rescind the contract, or vary it in such a way as to extinguish or alter his entitlement under that right, without his consent if—

(a) the third party has communicated his assent to the term to the promisor,

(b) the promisor is aware that the third party has relied on the term, or

© the promisor can reasonably be expected to have foreseen that the third party would rely on the term and the third party has in fact relied on it.

(2) The assent referred to in subsection (1)(a)—

(a) may be by words or conduct, and

(b) if sent to the promisor by post or other means, shall not be regarded as communicated to the promisor until received by him.

(3) Subsection (1) is subject to any express term of the contract under which—

(a) the parties to the contract may by agreement rescind or vary the contract without the consent of the third party, or

(b) the consent of the third party is required in circumstances specified in the contract instead of those set out in subsection (1)(a) to ©.

(4) Where the consent of a third party is required under subsection (1) or (3), the court or arbitral tribunal may, on the application of the parties to the contract, dispense with his consent if satisfied—

(a) that his consent cannot be obtained because his whereabouts cannot reasonably be ascertained, or

(b) that he is mentally incapable of giving his consent.

(5) The court or arbitral tribunal may, on the application of the parties to a contract, dispense with any consent that may be required under subsection (1)© if satisfied that it cannot reasonably be ascertained whether or not the third party has in fact relied on the term.

(6) If the court or arbitral tribunal dispenses with a third party’s consent, it may impose such conditions as it thinks fit, including a condition requiring the payment of compensation to the third party.

(7) The jurisdiction conferred on the court by subsections (4) to (6) is exercisable by both the High Court and a county court.

3 Defences etc. available to promisor

 

(1) Subsections (2) to (5) apply where, in reliance on section 1, proceedings for the enforcement of a term of a contract are brought by a third party.

(2) The promisor shall have available to him by way of defence or set-off any matter that—

(a) arises from or in connection with the contract and is relevant to the term, and

(b) would have been available to him by way of defence or set-off if the proceedings had been brought by the promisee.

(3) The promisor shall also have available to him by way of defence or set-off any matter if—

(a) an express term of the contract provides for it to be available to him in proceedings brought by the third party, and

(b) it would have been available to him by way of defence or set-off if the proceedings had been brought by the promisee.

(4) The promisor shall also have available to him—

(a) by way of defence or set-off any matter, and

(b) by way of counterclaim any matter not arising from the contract,

that would have been available to him by way of defence or set-off or, as the case may be, by way of counterclaim against the third party if the third party had been a party to the contract.

(5) Subsections (2) and (4) are subject to any express term of the contract as to the matters that are not to be available to the promisor by way of defence, set-off or counterclaim.

(6) Where in any proceedings brought against him a third party seeks in reliance on section 1 to enforce a term of a contract (including, in particular, a term purporting to exclude or limit liability), he may not do so if he could not have done so (whether by reason of any particular circumstances relating to him or otherwise) had he been a party to the contract.

4 Enforcement of contract by promisee

 

Section 1 does not affect any right of the promisee to enforce any term of the contract.

5 Protection of promisor from double liability

 

Where under section 1 a term of a contract is enforceable by a third party, and the promisee has recovered from the promisor a sum in respect of—

(a) the third party’s loss in respect of the term, or

(b) the expense to the promisee of making good to the third party the default of the promisor,

then, in any proceedings brought in reliance on that section by the third party, the court or arbitral tribunal shall reduce any award to the third party to such extent as it thinks appropriate to take account of the sum recovered by the promisee.

6 Exceptions

 

(1) Section 1 confers no rights on a third party in the case of a contract on a bill of exchange, promissory note or other negotiable instrument.

(2) Section 1 confers no rights on a third party in the case of any contract binding on a company and its members under section 14 of the [1985 c. 6.] Companies Act 1985.

(3) Section 1 confers no right on a third party to enforce—

(a) any term of a contract of employment against an employee,

(b) any term of a worker’s contract against a worker (including a home worker), or

© any term of a relevant contract against an agency worker.

(4) In subsection (3)—

(a) “contract of employment”, “employee”, “worker’s contract”, and “worker” have the meaning given by section 54 of the [1998 c. 39.] National Minimum Wage Act 1998,

(b) “home worker” has the meaning given by section 35(2) of that Act,

© “agency worker” has the same meaning as in section 34(1) of that Act, and

(d) “relevant contract” means a contract entered into, in a case where section 34 of that Act applies, by the agency worker as respects work falling within subsection (1)(a) of that section.

(5) Section 1 confers no rights on a third party in the case of—

(a) a contract for the carriage of goods by sea, or

(b) a contract for the carriage of goods by rail or road, or for the carriage of cargo by air, which is subject to the rules of the appropriate international transport convention,

except that a third party may in reliance on that section avail himself of an exclusion or limitation of liability in such a contract.

(6) In subsection (5) “contract for the carriage of goods by sea” means a contract of carriage—

(a) contained in or evidenced by a bill of lading, sea waybill or a corresponding electronic transaction, or

(b) under or for the purposes of which there is given an undertaking which is contained in a ship’s delivery order or a corresponding electronic transaction.

(7) For the purposes of subsection (6)—

(a) “bill of lading”, “sea waybill” and “ship’s delivery order” have the same meaning as in the [1992 c. 50.] Carriage of Goods by Sea Act 1992, and

(b) a corresponding electronic transaction is a transaction within section 1(5) of that Act which corresponds to the issue, indorsement, delivery or transfer of a bill of lading, sea waybill or ship’s delivery order.

(8) In subsection (5) “the appropriate international transport convention” means—

(a) in relation to a contract for the carriage of goods by rail, the Convention which has the force of law in the United Kingdom under section 1 of the [1983 c. 14.] International Transport Conventions Act 1983,

(b) in relation to a contract for the carriage of goods by road, the Convention which has the force of law in the United Kingdom under section 1 of the [1965 c. 37.] Carriage of Goods by Road Act 1965, and

© in relation to a contract for the carriage of cargo by air—

(i) the Convention which has the force of law in the United Kingdom under section 1 of the [1961 c. 27.] Carriage by Air Act 1961, or

(ii) the Convention which has the force of law under section 1 of the [1962 c. 43.] Carriage by Air (Supplementary Provisions) Act 1962, or

(iii) either of the amended Conventions set out in Part B of Schedule 2 or 3 to the [s.I. 1967/480.] Carriage by Air Acts (Application of Provisions) Order 1967.

7 Supplementary provisions relating to third party

 

(1) Section 1 does not affect any right or remedy of a third party that exists or is available apart from this Act.

(2) Section 2(2) of the [1977 c. 50.] Unfair Contract Terms Act 1977 (restriction on exclusion etc. of liability for negligence) shall not apply where the negligence consists of the breach of an obligation arising from a term of a contract and the person seeking to enforce it is a third party acting in reliance on section 1.

(3) In sections 5 and 8 of the [1980 c. 58.] Limitation Act 1980 the references to an action founded on a simple contract and an action upon a specialty shall respectively include references to an action brought in reliance on section 1 relating to a simple contract and an action brought in reliance on that section relating to a specialty.

(4) A third party shall not, by virtue of section 1(5) or 3(4) or (6), be treated as a party to the contract for the purposes of any other Act (or any instrument made under any other Act).

8 Arbitration provisions

 

(1) Where—

(a) a right under section 1 to enforce a term (“the substantive term”) is subject to a term providing for the submission of disputes to arbitration (“the arbitration agreement”), and

(b) the arbitration agreement is an agreement in writing for the purposes of Part I of the [1996 c. 23.] Arbitration Act 1996,

the third party shall be treated for the purposes of that Act as a party to the arbitration agreement as regards disputes between himself and the promisor relating to the enforcement of the substantive term by the third party.

(2) Where—

(a) a third party has a right under section 1 to enforce a term providing for one or more descriptions of dispute between the third party and the promisor to be submitted to arbitration (“the arbitration agreement”),

(b) the arbitration agreement is an agreement in writing for the purposes of Part I of the Arbitration Act 1996, and

© the third party does not fall to be treated under subsection (1) as a party to the arbitration agreement,

the third party shall, if he exercises the right, be treated for the purposes of that Act as a party to the arbitration agreement in relation to the matter with respect to which the right is exercised, and be treated as having been so immediately before the exercise of the right.

9 Northern Ireland

 

(1) In its application to Northern Ireland, this Act has effect with the modifications specified in subsections (2) and (3).

(2) In section 6(2), for “section 14 of the [1985 c. 6.] Companies Act 1985” there is substituted “Article 25 of the [s.I. 1986/1032 (N.I. 6).] Companies (Northern Ireland) Order 1986”.

(3) In section 7, for subsection (3) there is substituted—

“(3) In Articles 4(a) and 15 of the [s.I. 1989/1339 (N.I. 11).] Limitation (Northern Ireland) Order 1989, the references to an action founded on a simple contract and an action upon an instrument under seal shall respectively include references to an action brought in reliance on section 1 relating to a simple contract and an action brought in reliance on that section relating to a contract under seal.”.

(4) In the [1964 c. 23 (N.I.).] Law Reform (Husband and Wife) (Northern Ireland) Act 1964, the following provisions are hereby repealed—

(a) section 5, and

(b) in section 6, in subsection (1)(a), the words “in the case of section 4” and “and in the case of section 5 the contracting party” and, in subsection (3), the words “or section 5”.

10 Short title, commencement and extent

 

(1) This Act may be cited as the Contracts (Rights of Third Parties) Act 1999.

(2) This Act comes into force on the day on which it is passed but, subject to subsection (3), does not apply in relation to a contract entered into before the end of the period of six months beginning with that day.

(3) The restriction in subsection (2) does not apply in relation to a contract which—

(a) is entered into on or after the day on which this Act is passed, and

(b) expressly provides for the application of this Act.

(4) This Act extends as follows—

(a) section 9 extends to Northern Ireland only;

(b) the remaining provisions extend to England and Wales and Northern Ireland only.

[patrickq1]

not sure if this is relevant have nt checked it out yet

[tomterm8]

not sure if this is relevant have nt checked it out yet

PERSONAL DATA (PRIVACY ORDINANCE) Enacted in 1995 Provisions came into effect in 1996, except section 33 Section 3(2) not adopted as law of HKSAR since handover

 

It's very relevant, if you live in hong kong.

[patrickq1]

scrap that one then shall edit it out

[patrickq1]

takes too long to fly their tom lol

[un1boy]

Is it not intereting how BT are now charging late payment and payment processing fees?

 

Also, the Royal Mail charge £1 for every item that is not priced properly by the sender - I just had one through that was under priced by 6p (yes, 6p) and they charged a £1 handling fee.

 

Now, imagine these were pounds - the ratio is more disturning than the bank charges issue.

 

Just goes to show the greed these companies have.