Cap1 & CCA return

[tomterm8]

The agreement they have sent in relation to s78 request was the one in post #9283. Thanks Tom.

There is no mention of rights to give data to a thrid party, yet alone sell the debt. Also is not selling the debt on to a third part effectively ending the agreement, and does not section 87 apply to this? (hence my question regarding notice).

 

 

 

87 Need for default notice

(1)

Service of a notice on the debtor

or hirer in accordance with section 88 (a “default notice”)

is necessary before the creditor

or owner

can become entitled

, by reason of any breach by the debtor or hirer of a regulated agreement,—

(a) to terminate the agreement,

or

 

(b) to demand earlier payment of any sum, or

© to recover possession of any goods or land, or

(d) to treat any right conferred on the debtor or hirer by the agreement as

terminated, restricted or deferred, or

(e) to enforce any security.

If it is not a termination, then it surely is varying the agreement, in which case s82 applies:

 

 

 

82 Variation of agreements

(1) Where, under a power contained in a regulated agreement, the creditor or owner varies the agreement, the

variation shall not take effect before notice of it is given to the debtor

or hirer in the prescribed manner.

 

Thanks Peter,

The copy they sent, makes no mention of any powers to transfer the account/debt to a third party. Section 11 in the T&Cs mention "the contractual T&Cs and other information(if any) relating to this agreement" being supplied in English, but none were sent with it.

 

As it happens, they have set the account to zero and as settled, and the DCA has not done anything yet, so in that respect they are OK.

 

Best Wishes

MoonHawk

 

MoonHawk... it depends, LOL:)

 

Unless expressly prohibited in a contract, an assignment of a benefit of a contract is effective in law, as long as the formalities of the LPA 1925 are abided by. And, as I have stated elsewhere, this would give the asignee some legitimate reasons to process data...

 

My reading of the law is that only a creditor can issue a default notice, and that an asignee of the benefit of a creditor is not, in law, a creditor. Therefore, the assignee couldn't issue a meaningful default notice themself, although if I understand it correctly, assuming the assignment is legal (and not equitable) they would be able to record late payment info to your credit record.

 

The novation of a contract (that is, assigning the benefit and duties under a contract to a third party) would constitute a variation of the agreement under s82(1) as you say.

 

the assignment of a benefit does not IMHO constitute a variation of the agreement since the contract itself remains the same in law... such an assignment leaving both parties in essentially the same position with respect to each other...

 

In any case, it is perfectly legal for a creditor to terminate an agreement without a default as long as the requirements of the CCA 1974 are abided by (I leave it as an exercise for someone to determine the relevant section... I can't be bothered, off to bed LOL:) )

[patrickq1]

what would be the period of notice be tom 14 days or one month

[tomterm8]

what would be the period of notice be tom 14 days or one month

 

My copy of the act says 7 days. AFAIK, this hasn't been changed by CCA 2006. Then again, i would have thought they must have changed it to 14 days...

[MoonHawk]

MoonHawk... it depends, LOL:)

Thanks Tom. I am getting clearer I think ... and I am getting clearer that a lot of law is based on depends

 

Unless expressly prohibited in a contract, an assignment of a benefit of a contract is effective in law, as long as the formalities of the LPA 1925 are abided by. And, as I have stated elsewhere, this would give the asignee some legitimate reasons to process data...

If they have purchased the debt then I can see that they have some legitimate reason to process data.

 

The OC in this case has set the account as settled and set to zero balance with the CRAs, and since the debt is no longer with them, they can not add anything more.

 

My question is that in this case can the DCA set a new account in the CRA records and set it as defaulted when there is no agreement to default. They are trying their best to get a phone call to make an agreement, bit so far none has been reached.

 

My reading of the law is that only a creditor can issue a default notice, and that an asignee of the benefit of a creditor is not, in law, a creditor. Therefore, the assignee couldn't issue a meaningful default notice themself, although if I understand it correctly, assuming the assignment is legal (and not equitable) they would be able to record late payment info to your credit record.

Well they claim that the assignment was only of the benefits and that they are not responsible for the duties.

 

The novation of a contract (that is, assigning the benefit and duties under a contract to a third party) would constitute a variation of the agreement under s82(1) as you say.

 

the assignment of a benefit does not IMHO constitute a variation of the agreement since the contract itself remains the same in law... such an assignment leaving both parties in essentially the same position with respect to each other...

 

In any case, it is perfectly legal for a creditor to terminate an agreement without a default as long as the requirements of the CCA 1974 are abided by (I leave it as an exercise for someone to determine the relevant section... I can't be bothered, off to bed LOL:) )

OK that is how I understood it. The only problem is that they will not show the deed of assignment or documents relating to the transfer. They say they only bought the debt, and also threat further action.

 

I'll have to think of what to write to them, although I want to find out on what basis the OC sold the data to the insurance company, as nothing in the CCA allows them to do that.

 

Best Wishes

MoonHawk

 

P.S. Good night

[patrickq1]

My question is that in this case can the DCA set a new account in the CRA records and set it as defaulted when there is no agreement to default. They are trying their best to get a phone call to make an agreement, bit so far none has been reached

that is a strange one moon was this an immediate default before any negotiations or notice...

also without the documents and notice ,surely you have a right to rescind the contract for non performance relating to The Unfair Terms in Consumer Contracts Regulations 1999 apply to agreements made on or after 1 July 1995. Under the Regulations, a term in an agreement that is ‘unfair’ within the Regulations will not be binding on a consumer. A term is ‘unfair’ if, contrary to good faith, it causes a significant imbalance in the parties’ rights and obligations under the contract to the detriment of the consumer. However, a ‘core term’ which defines the main subject matter of the contract, such as the borrower’s obligation to repay the principal, will not be subject to the fairness test if that term is expressed in plain, intelligible language.

The Unfair Contract Terms Act 1977 restricts the ability of a party to limit its liability, including contractual liability. A party cannot limit its liability for death or personal injury caused by negligence and, where the other party is a consumer, can limit its liability for other damage caused by negligence or for breach of contract only insofar as the term satisfies a test of reasonableness set out in the Act would this not apply moon

[paulwlton]

Actually, it's worse than that. If the creditor terminates the credit agreement as a result of a defective default notice, that itself is a recission of contract, and would result in the debtor being able to claim damages under a variety of law.

 

The bank terminated an overdraft agreement under sec 76 and 98 on a defective default notice. Would it have the same consequencies has under sec 87

 

Paul

[MoonHawk]

Hi Patrick,

 

It may be a strange one, but most of teh ones that are sold on probablky are close to this.

 

Yes there was a default, but no notice, just payment demands, and then a failure to comply with CCA. I think thy think they complied because the sent me the one in post #9283.

 

Best Wishes

MoonHawk

[patrickq1]

yes moon same as me the morgan stanley reply i got was just statements no contract no of the phone conversations etc,goldfish sent a response to my sar to MS 6 months later saying they complied with my sar....but MS defaulted me during insurance payments because insurance payment were late by a matter of 1/2 weeks i got two defaults...i am also wondering what the position is where goldfish took over the credit card payment from MS....so when i get out of hospital i will then start my thread on here ...

patrick

also if you remember on here somewhere about document reconstruction i have a page here for you to look at as i know goldfish are attempting to use this method because no agreements are available as morgan stanley was in the habit of shredding applications...[email protected]

patrickq1

[Peterbard]

The bank terminated an overdraft agreement under sec 76 and 98 on a defective default notice. Would it have the same consequencies has under sec 87

 

Paul

 

Hi

As sated earlier section 76 is for enforcing a term within the agreement not for enforceing a default and section 98 is for use in one default cases and i think the one that tom was refering to earlier when he mentioned the ability for the creditor to terminate an account.

Regards

Peter

[noomill060]

Let me get this straight:

 

In the case where a person recieves a Default Notice for £8000, later on they discover from a consumer website that this figure includes £5000 of unlawful charges and interest levied thereon.

 

With the help of members of this hypothetical website this person makes a succesfull legal action to have this £5000 removed from the balance.

 

The balance is now £3000 and the Credit Agreement is unenforcable due to it merely being an application form and the Prescribed Terms in the T&Cs being wrong anyway.

 

The Default Notice was for £8000.

 

May I take it that this Default Notice is now void?

[paulwlton]

Hi

As sated earlier section 76 is for enforcing a term within the agreement not for enforceing a default and section 98 is for use in one default cases and i think the one that tom was refering to earlier when he mentioned the ability for the creditor to terminate an account.

Regards

Peter

 

What i'm getting at Peter is if a sum was incorrect in a sec 76 notice would the creditor be able to take the next step, ie obtain a judgment.

[Peterbard]

MoonHawk... it depends, LOL:)

 

Unless expressly prohibited in a contract, an assignment of a benefit of a contract is effective in law, as long as the formalities of the LPA 1925 are abided by. And, as I have stated elsewhere, this would give the asignee some legitimate reasons to process data...

 

My reading of the law is that only a creditor can issue a default notice, and that an asignee of the benefit of a creditor is not, in law, a creditor. Therefore, the assignee couldn't issue a meaningful default notice themself, although if I understand it correctly, assuming the assignment is legal (and not equitable) they would be able to record late payment info to your credit record.

 

The novation of a contract (that is, assigning the benefit and duties under a contract to a third party) would constitute a variation of the agreement under s82(1) as you say.

 

the assignment of a benefit does not IMHO constitute a variation of the agreement since the contract itself remains the same in law... such an assignment leaving both parties in essentially the same position with respect to each other...

 

In any case, it is perfectly legal for a creditor to terminate an agreement without a default as long as the requirements of the CCA 1974 are abided by (I leave it as an exercise for someone to determine the relevant section... I can't be bothered, off to bed LOL:) )

 

Hi

 

JUst to point out that as correctly stated the assignment of the rights and duties would constitue a variation, the ability to perform this action would have to be mentioned in the agreement and it would be unlikely if not impossible for the creditor to assign soley the debt an an active aggreement.

 

Regards

Peter

[Peterbard]

Hi Paul

 

No they would not the outcome for the creditor would be as stated earlier be that he would be open for litigation if he did.

In this respect all three of the sections mentioned are similar.

The thing I was tryng to make clear for any one else reading this is that section 76 is there to enable the creditor to enforce a term within the agreement like"if the debtor does not do this within this time period then the creditor can take this action".Wheras section 87 is there to enable the creditor to default the account after a breach of the contract and therby enable him to leagally terminate it.

 

Bes regards

Petr

[paulwlton]

Thanks Peter, it's just that i have an hearing date next Wednesday and need to dot the I's and cross the T's.

 

If a judgment was obtained on the back of a defective notice then the judgment could be challenged on this basis.

 

Paul

[paulwlton]

Lord justice Kennedy Woodseets v Swaine 1998- issue sec 87 default notice

 

CONCLUSION

 

In my judgment, Mr Hodgkinson is right for the reasons which he has given. This statute was plainly enacted to protect consumers, most of whom are likely to be individuals. When contracting with a large financial organisation they are at a disadvantage. The contract is likely to be in standard form and relatively complex with a number of detailed provisions. If the hirer is said to have broken its terms, the hirer needs to know precisely what he or she is said to have done wrong and what he or she needs to do to put matters right. The lender has the ability and the resources to give that information with precision. If he does not do so accurately then he cannot take what Mr Gruffyd conveniently referred to as "the next step".

 

 

[MoonHawk]

JUst to point out that as correctly stated the assignment of the rights and duties would constitue a variation, the ability to perform this action would have to be mentioned in the agreement and it would be unlikely if not impossible for the creditor to assign soley the debt an an active aggreement.

Thanks Peter,

 

Can you elaborate on what you mean by assignning solely the debt on an active agreement? How can we know what state the agreement is in, if there was no default notice and the debt was sold on, and the buyer of the debt says they only bought the "debt" and not the "duties" (although some also go on to cheekily say they also have rights to apply interest according to the original agreement). My assumption was that the original contract ends if they sell the debt, but I am not sure now.

 

Best Wishes

MoonHawk

[patrickq1]

if the bank knowingly sold the debt whilst in dispute could'nt this be construed as this be constructive fraud

[angry cat]

For anyone that is having problems with MBNA and Trading Standards, regarding their Consumer Credit Agreements.

Please click on the following link:

http://www.consumeractiongroup.co.uk/forum/mbna/115323-complaint-re-chester-trading.html

 

Love

Angry Cat

[conar686]

For anyone that is having problems with MBNA and Trading Standards, regarding their Consumer Credit Agreements.

Please click on the following link:

http://www.consumeractiongroup.co.uk/forum/mbna/115323-complaint-re-chester-trading.html

 

Love

Angry Cat

 

Wanna put this link on the thread I started re TS in general AC

 

Trading Standards 'Good un or Bad un'

[angry cat]

Thanks Conar!

 

We really do all need to turn up the HEAT a bit, as TS are meant to be the policemen but they are failing to police!

 

Love AC

[manjusha]

Hello

Have been reading this thread with a lot of interest. All of you sound so knowledgable! Can I dig your brains on a general query - Debtor fell into arrears, set up a payment plan with creditor. Creditor terminated account, withdrew credit facility, freezes interest. Payment plan ends, debtor keeps up with payments. Creditor decides to start adding contractual interest as per T & C of agreement, yet not providing any credit facility. Isn't this unfair relationship beteween creditor & debtor under the CCA 2006? Is it legal for a Creditor to do this?

[patrickq1]

Hello

Have been reading this thread with a lot of interest. All of you sound so knowledgable! Can I dig your brains on a general query - Debtor fell into arrears, set up a payment plan with creditor. Creditor terminated account, withdrew credit facility, freezes interest. Payment plan ends, debtor keeps up with payments. Creditor decides to start adding contractual interest as per T & C of agreement, yet not providing any credit facility. Isn't this unfair relationship beteween creditor & debtor under the CCA 2006? Is it legal for a Creditor to do this?

would be better to explain who what and where,and what t&c s you are working of more explaination would help before comments thanks

patrickq1

[patrickq1]

Hello

Have been reading this thread with a lot of interest. All of you sound so knowledgable! Can I dig your brains on a general query - Debtor fell into arrears, set up a payment plan with creditor. Creditor terminated account, withdrew credit facility, freezes interest. Payment plan ends, debtor keeps up with payments. Creditor decides to start adding contractual interest as per T & C of agreement, yet not providing any credit facility. Isn't this unfair relationship beteween creditor & debtor under the CCA 2006? Is it legal for a Creditor to do this?

would be better to explain who what and where,and what t&c s you are working of more explaination would help before comments thanks

patrickq1

[patrickq1]

hope this helps

[MoonHawk]

Sorry guys, but another question to try and clarify the legalities around registering with CRAs. Reading Toms earlier post #9291 does not make me any clearer in relation to this scenario.

 

The debt is sold to a DCA and the words used are "the account you held was purchased" and "legal owner of the account" and "entitled to enforce the original terms of the credit agreement". At the same time they say they are not responsible for under section 77/78 to provide the documents but they will out of the kindness of their heart get it from the OC (I'll deal with their inconsistencies in a nice letter later). They then send an application form, same as what the OC did before .. no CCA.

 

Now the CRA record for the account with the OC has disappeared and a new account has appeared belonging to the DCA with a brand new account number, but start date of the old account. All other payments etc have vanished.

 

My question is twofold, in respect to the two possible scenarios:

1) If the transfer was a full assignment, should it not carry on from the old account's records, with just the creditor changed?

2) If it is not a full assignment can the DCA register a new account at all just for the debt, when there is no agreement/account? And if they are allowed to do so, then I can not see how they can register a default or a late payment when there is no agreement made to pay?

 

Best Wishes

MoonHawk