Cap1 & CCA return

[un1boy]

So...what should i say to Moorcroft?

 

I know what you should say, but I can't post it on a public forum!!

[un1boy]

I have had a letter from Link telling me that whilst they are aware the agreement in question is unenforceable they will continue to register defaults against me, and suggesting that I should therefore start to make payments. So if I did make token payments would this actually stop them registering the default? I doubt it. Needless to say I have totally ignored their letter....

 

They will try anything - I did a sec 78 request for a catalogue for my sister, they didn't have it and still said that the balance was enforable. When I pointed out it wasnt because they didnt have an original with any sigs or prescribed terms, they wrote back saying it was unenforable in court, but they would continue to write asking for the money AND were still able to process a default.

 

If the agreement is unenforcable, surely that means that all T&C's are unenforable - including the ability to process data.

 

It really effs me off that they all get away with this sort of behaviour.

[un1boy]

A lady would never utter such words either.....

 

Do i go down the route of doing a S.A.R - (Subject Access Request) with Moorcroft, or is it a different tactic to request a copy credit agreement. Am i correct in thinking they cannot collect a debt if they cannot produce this? Also, shouldn't Lloyds have included their contact with Scotcall in my SAR? And is a note of assignment of debt also relevant?

 

Sorry for all the Questions... this is such a minefiled to know your rights..

 

Funny thing is though, i had no qualms still paying the little man from Scotcall, as he wasn't an unpleasant debt collector!!!

 

I would write to Moorecroft asking them for the deed of assignment to prove their ownership of the debt and also send them a sec 78 request. Or, instead of sending an official sec 78 request, I normally jsut write to them asking if they have an agreement that conforms to the CCA and if they dont reply with a copy of it within 14 days, Ill send an offical request.

 

Normally, they just write back saying they are no longer pursuing the debt and send it back......you normally end up with another letter from a debt collector/solicitor though because they jsut send the debt to someone else.

 

Hope this makes sense.

[un1boy]

Peter B / All

 

I know this has been asked several times on this thread but I need to get this 100% correct at a SD set aside and a County Court hearing.

 

Both have no agreement with perscribed terms.

 

If the Judge says" Do you owe the debt etc" What do I say to not get his back up.

 

Thanks

 

HAK

 

So HAK, you're exactly where I am?

 

I was asked at my original hearing if I owed the money and had to answer "Yes" but they can't enforce the agreement due to 127(3). you know what happened with my judge......but, you HAVE to be honest because you are speaking as a witness in court and could get done for something if you arent honest.

 

Also, dont forget that in all the case law liek wilson vs FCT, they admitted owing the money etc, but the lords still ruled the agreements were unenforcable!

 

I hope this helps?!

[un1boy]

If they don't hold the original how can they create a "true copy". imo it is an absolute abuse of a statute to claim a "true copy" can be recreated from banking records. You will have seen emails from the OFT stateing something on the lines that it would be difficult for a creditor to comply with the relevant section if there is no original.

 

Yeh, but most judges would accept this sort of behaviour from the banks, wouldn't they? That's the problem.....I agree with you though.....

[un1boy]

Well the 'true copy' of my tesco card agreement showed the credit limit when we 'fell out' and not the original credit limit. Which differs substantially. You would think that they would have records of the original figures if not the actual agreement......

 

Haha, excellent - I hope you have the original because if you do, could they basically be accused of fraud?

 

That's the next stage for me with my claims - I am going to take them to court for fraud for allowing my clim to go to court wihtout having an enforcable agreement.

 

It would defo be fraud in your case!!!

[un1boy]

I doubt I have the original, but I probably have the statements showing the original credit limit now you mention it. Not that they have taken me to court - in fact of all my creditors they have to get the most reasonably behaved award:D

 

Lucky you re their behaviour!!

 

Well, if you could prove that their alleged "true" copy is not exact then it is fraud completely and utterly.

[un1boy]

Unfortunatley not all judges are up to date on consumer law.

 

Tell me about it!!

[un1boy]

Thanks un1boy.

 

Could you point me in the correct direction of where i can find the S78 request template letter?

 

Also.. I am thinking of sending a S.A.R - (Subject Access Request) to Scotcall to find out exactly why they have stopped collecting.. and if they or Lloyds have passed the Debt onto Moorcroft??

 

CONFUSED!!!!!

 

The debt is was older than 6 years, Lloyds no longer shows on my credit file that i have received a copy of... and if Scotcall do not have a copy of the Credit Agreement either what is the position there, as they would have been collecting somehting that the lender has oficially cleared, and they lawfully dont actually have the right to collect upon??

 

I wouldn't write to them - just leave it now, why poke the fire? If they aren't collecting anymore then no worries.

[un1boy]

Hi, Just received an email response from the OFT in reply to a complaint I recently made. It seems to contradict the above:

 

"A ‘true copy’ of an agreement principally consists of the terms and conditions of the agreement and the statutory content of the agreement. The name, address and signature of the debtor do not have to be provided."

 

If the name and address can be excluded, how can the debtor possibly have a clue whether it is their agreement or not?

 

Hiya

 

If I PM you my email address, would you mind forwarding me a copy? No problem if not?!

 

It's just that the judge in my case said that the agreement was enforcable despite the babk admitting they don't have the t&c's.......

[un1boy]

I need to nail one of favourite DC in Court soon but I could do with more info on Current Accounts Overdrafts.

 

Ive heard they need to produce something IE. a letter stating the interest etc. Where does this info come from??

 

Also should there be a signed agrement between the creditor and debitor on currnent accounts??

 

Surely if there is credit going to be avaialbe it should be the same as a CC agreement?

 

HAK

 

Well, they are meant to provide the following:

The s74 determination in respect of bank overdrafts (see Q1.4) applies subject to the following conditions:

• the creditor must inform the OFT in writing of his general intention to enter into such agreements;

• the debtor must be informed, at or before the time an agreement is concluded, of the following:

o the credit limit (if any)

o the annual rate of interest and any charges applicable, and the conditions under which these may be varied

• the above information must be confirmed in writing.

 

However, the bank couldn't provide these in my case and therefore I argued that part V of the CCA applies and therefore they must have a credit agreement.

 

I lost though!

[un1boy]

Uni

 

IS this info frm the CCA1 1974?

 

Yeh, from the determination issued by the OFT under sec 74 of the CCA - the determination was issued in the 1980's

[un1boy]

In small claims I think it is more of a lottery as to the judge you get

 

the main trouble with County courts I think is that there is a balance of probability and so some judges believer they use this when ruling on CCA issues - they dont realise that the act doesnt allow them this discretion.

[un1boy]

Hi Kathleen G, there has been a lot of discussion recently on whether the DCA (to whom a debt has been assigned absolutely) is regarded in law as the owner of the debt only, or also as the creditor, with the responsibilities as such. It would be interesting to hear your opinion (if any) on this. Hope you don't mind me asking. Thanks, Magda

 

This is in the definitions section of the CCA 1974:

 

“owner” means a person who bails or (in Scotland) hires out goods under a consumer hire agreement or the person to whom his rights and duties under the agreement have passed by assignment or operation of law, and in relation to a prospective consumer hire agreement, includes the prospective bailor or persons from whom the goods are to be hired;

Hope it helps!

[un1boy]

Absolutely.

 

What you need to remember is that most County Court Small Claims are heard by District Judges - or worse, Deputy District Judges. My experience with these show that these Judges, who are not legally trained in consumer law nor do they understand the Act or the regs (in the main) in a way that means they apply it consistently. Having said that, I have seen several DJ's - and even one DDJ - that knew the Act inside, out. Which is where the lottery begins.

 

The only way you can avoid the wrong judgment is to know your case in side, out and be prepared to argue your case on a legal and moral basis. The trick is to convince the Judge you know more than them, you are right and any bias they feel they should be applying (as you have had benefit of credit under an agreement) should be put to one side. The best way to do this is with legal precedence, which is where CAG and the likes come in.

 

If you don't know your own case and appear to lack confidence, or you aren't prepared to put the time in to prepare properly so you appear that you do, you may as well not bother starting out, IMHO.

 

What I find so interesting is that our opponents, being officers of the Court, are so willing to mislead, downright lie and pervert the course of Justice in such a way that this sort of result comes around. Anyone that suffers as a result of that, should seriously consider making a formal complaint to the Solicitors Regulation Authority and to their MP's. Those with formal training, (which we and these Judges are not) should bear their responsibilities more appropriately, IMHO.

 

Car, what is the difference between a DJ and a Deputy DJ? The 2 Deputy's I have had have known nothing, the 2 DJ's I had did.

 

Also, I will be complaining to the SRA about the sols in my cases as I agree with you that they should not even be allowing these to be defended. They should be telling the banks that the law says it's unenforabable and they can't defend it in court....but no, they wouldn't want to do that.....they may lose the contract, eh?

[un1boy]

Hello katie,

 

 

Just had a thought!

 

 

You could re-send the request with your postal order. Only this time, both you and your OH could sign it with a completely different style of signature than you would normally use!

 

This way, if Northern Rock get up to any little tricks with an "alleged copy of your CCA", then you will be able to tell straight away!!!

 

 

Regards, Jeff.

 

I agree.

[un1boy]

Alternatively you could sign your partner's name and he could sign for you. This is what I have been doing for some while now and it has been accepted.

 

Or, just "PP" it!!

[un1boy]

Just a quick question. If a claimant's claim is struck out (because they didn't respond to the defendant's defence (as ordered by the judge), can the defendant then claim costs. I am in this situation and wondered if I can submit a claim to the court, as the claims were quite far along at the time they were struck out. Thanks, Magda

 

I would have thought you can enter a wasted costs order?!!