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    • Hi Stuckfast and welcome to CAG   Great job starting to self-manage your debts and listing them out here, you seem proactive and that's a great trait to have when it comes to debts.   You don't mention your partner's income so maybe there is some flexibility there to maintain pro rata payments?   Personally, looking at your list vs income I would consider dropping all of them to £1 per month as per the pro rata process and stating you are having further financial difficulties. The reason I would do this is you are unlikely to clear any of them as it stands and there's little difference in £5-£1 from the creditors point of view, whereas due to the amount of accounts, that's alot of ££'s for you when multiplied. This can be saved initially with a view to perhaps making full and final settlements on the none defaulted smaller accounts in the future but at the very least give you some breathing room for now.   Then, at some point after the companies all default you, they are likely to sell the debt on, at which point you can challenge the DCA's to prove the accounts are enforceable - they are usually not due to how the Original Creditors (OC's) and Debt Collector Agencies (DCA's) carry out this process.   Have a read through the debt forum for similar situations as yourself you'll soon pick up the idea.   You are not alone and there's nothing to be ashamed of - you've done the right thing in reaching out here on CAG, we will help you   Lastly, I disagree with Yorky and do not think you should seek advice from any company that is funded by the financial institutions, advice here is free and if you're willing to learn you can absolutely do all of this yourself.   Don't use the phone - letter's only. Don't complete any income and expenditure forms You've already proven you are willing to take control, continue!   BT  
    • It isnt a great thing to have to worry about all these things. I am sure someone on this site will offer some great advice.   Priority debts need to be sorted first; Rent/Mortgage, Council Tax, Utility   - Dont quote me as I do not know the legal points around this; but Overdrafts, catalouge, card debts are not priority. I would sit down and work out exactly what your priority debts and living costs are, deduct from your income. Look at all your cards, loans overdrafts etc, list them all, starting from the highest interest charging ones, think what and which ones to work out a realistic monthly payment, dont overpay what you cant afford.  I would consider not using the cards etc, as you will be adding to your debt and problems. I would contact someone Like Stepchange or Citizens advice, they will offer you some very good advice and ways of contacting your companies you have debt with. Dont be afraid of your debt companies, write to the fully explaining situation and what you can realistically offer, do not be preasurised into paying more than you can I personally prefer contact by post or e mail rather than telephone. Ive no idea what Factor, Monzo is, but may well fall in line with what Ive said.   Keep a note in a diary of every call you made or who contacted you, ask for names, keep and copy all letters to and from as this may be helpfull further down the line for record keeping.   Do not ignore contact as this just adds more stress for you and the problem wont go away.   Make sure you make your affordable monthly payments, every month, even if they say we wont accept it, its to low.    As you have a lot of stress going on, I would certainly contact someone like Stepchange or Citizens advice,    Good luck
    • Hy. Caring for family adult learning disability; full time, currently unpaid from work, unpaid carer - receive weekly carers allowance This is what I have searched on so far; - can only receive from employment £132 a week, after Tax, NI, deductions in all about £201.00 a week, but this is taxable and needs to be entered on tax submission, but if less than personal allowance then no tax may be paid? - I believe NI is paid as long as you get the carers allowance, although gap between break in employment and start of carers allowance may not be? -Should employment end due to company not happy in change of hrs and I have to leave, then only the carers allowance would for be the income, If UC is applied for would this allowance be deducted from what UC give or the person I cared for be affected - Savings may affect if you get UC or not - Certainly cant be available for looking for work as full time carer   anyone have any points, help or advice on this issue please
    • hy, In a nutshell; - current contract  work part time Mon to Fri 24 hrs - Unpaid year off break to become family member full time carer - Need to either go back to work at end of next month, start of July or leave - Application for Transfer was turned down   - Letter to go in this week with a application form to request change of contract, hrs, days so that I can look after family member - change requested will be work mon, tues, wed but not more than 13.5hrs or 14, then breaks deducted to stay within legal earnings limit as carers allowance is recieved - it is not possible to work thur, fri sat, sun due to care needs and travelling for adult disabled family member   ok; Ive done a bit of digging, I can send application  for reduction of the hrs and contract which i think the govt said I can legally do. Doesnt mean the company has to be bound legally by it. It may be that it isnt suitible and there for ask me to resign. Or they may agree! Or terminate my employment. But as I am a full time family carer for a family member within the same household, I should have a good case to argue.    Does anyone have any further knowledge or experince of this to advice me, what legal or other rights, but if I quit or asked to quit, would claiming benefits as such be suspended for quiting a job, thanks    
    • I’m looking for some guidance please. I’ve been reading up but am stuck on what I should do and going round in circles now.   Trying to manage my own DMP and making a mess of it I think.   My income is £1015 per month Essential outgoings: factor fee £93 pet insurance £81 (giant breed so quite costly) TV licence £13.37 Groceries for 3 adults and giant breed dog £309 Council Tax £111 Internet £36 Electric £59 No water/gas/car Public transport £30 Gifts £15 Mobiles £6 Debt to family £42 Saving £0 Leftover £220 (for creditors) Actual Original Total Due to Creditors £600 (pro rata started) So I’ve started negotiating pro rata payments while still trying to keep credit cards going for future emergencies (they are maxed now but if I can pay them down it releases credit for me to have as a back Up)   It’s all getting worse, I’m struggling, I have depression, my wife has depression and is unwell. Interest on 3 cards is over £100 so not really paying anything off.   I’ve negotiated pro rata on some and I think I’ve gone in too high because I’m really struggling with it, I forgot that when they ask for income expenses they don’t take into account that the factor bill is 3 monthly and therefore I need £279 by May 31st and not £93 as budgeted so already in trouble for month 2. Partner debts: Starling bank overdraft: £400, 2019. Pro rata £14 arrangement to pay, no default.   Tesco Credit Card: £100  started 1/12/2019; defaulted 7/10/20 £5 mth   Virgin Credit Card: £2700 started 14/5/18; defaulted 30/3/21 £5 mth   Marks and Spencer Credit Card: £850 started 18/10/19; defaulted 13/1/21 £5 mth   Nationwide Credit Card: £1500 started 30/4/19; defaulted 28/12/20 £5 mth   Barclaycard CC: £1400 (PRA group purchased it) started 25/8/18; defaulted 16/7/20 £5 mth.    Aqua Credit Card: £3900 (now with Cabot Financial) started 3/12/18;  defaulted 12/11/20 £5mth   Aqua Loan: £1700 (now with Link Financial) started 28/9/19; defaulted 2/2/2021 £5 mth   My Debts:   Monzo Loan:  £1900 October 2021 – permanent pro rata £39 agreed, not defaulted    Likely Loans: £1500 December 2021 – temp £14 pro rata, not defaulted    Monzo overdraft: varies up to £750  - temp £10 pro rata   Monzo Flex: £900 December 2021 – temp £11 pro rata   Fluid Credit Card: £1500 July 2021 (on a holiday until August) £0    Capital One Credit Card: £700 £40 mth (up to date)   Amazon Credit card: £2450 November 2021 £75 mth (up to date)   Next: £56 December 2021,  £5 mth (up to date)   My dilemma is I can’t pay the factor bill and have maxed my cards.   I wonder about going on a payment holiday with Amazon and Capital One and then negotiate pro rata using a part of the £220 left for creditors in time, so keeping the pro rata proportional.   In August my Fluid holiday ends and they want £80.   I’m not getting hassled by any creditors and prefer an option that keeps it that way but last night seriously thought should I stop paying all of some of them.   Thanks  Stuckfast    
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Hi Loz,

 

This is a tricky one, so I'll refer you to our resident experts on these matters - Peter Bard and TomTerm8 - as they had an interesting discussion surrounding this exact question. It starts from post #87 and goes on for a few posts after;

 

http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/110146-car2403-hfc-bank-default-5.html#post1215186

 

IMO, an unsigned (no "squiggle" from the Creditor) agreement is an unexecuted agreement, so can't be enforced under s.59(1). In actual practise, a Judge may decide the agreement is executed and enforceable as there is a clear, legal intention to create a binding relationship - either by having a Company Logo on an agreement, or even this date stamp as in your case. It's arguable either way, so have a go, I say!

 

This could be another string to your bow if you have other issues with your agreement - missing prescribed terms, for example.

Always happy to help where I can!

:lol:

Beware of legal advice given on a private forum - do you REALLY know who is posting? Are they REALLY accountable for their posts? What if you follow their advice and get something wrong?

It was Winston Churchill who said; "Democracy is the worst way to run a country except for all the others"

 

Advice and comments posted by car2403 are offered purely without prejudice. They reflect only my personal opinion and do not represent the opinion of this forum or it's management. You should always seek legal advice from a qualified legal advisor. As a member of the site team, I disable reputation - reputation points mean nothing, please check my posting credentials yourself and make an informed decision. You shouldn't PM me and await a reply - I may be too late with a response. No replies will be given in Private Messages - just as with getting advice from the forum, getting advice via Private Messages is dangerous. CAG is about sharing successes so others can follow your example, this is primarily why I'm here, so please don't be offended if I don't offer replies in PM that doesn't comply with this. Help CAG to help others by keeping your thread up to date.

 

 

USEFUL LINKS; New User Guide to CAG | Can't find what you're looking for? | Intro to Consumer Credit Litigation | Is My Agreement Enforceable | Default (Surleybonds) Template Letter | Defaults - background, removal methods, challenges and taking a claim to Court | Digital Signature Guide | Overdrafts and the CCA

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I hope I haven't missed something glaringly obvious but this thread is a bit on the large side when searching for something specific...

 

I was getting a little grief off HSBC over a missed payment or two on my credit card (due in turn to my ongoing argument with Alliance + Leicester), so out of curiosity more than anything I asked for a copy of the original agreement. This card was a case of them sending me a "pre-approved" application form/agreement which I just had to sign and I would get the card. What I've received looks to have the prescribed terms but has not been signed by anyone from HSBC - instead there is a date stamp.

 

I reckon that without a proper signature from HSBC this agreement has not been executed, is this correct? If so, what options do I have?

 

Thanks in advance,

Loz

 

This is an example of an improperly executed agreement, which can only be enforced by the court. However, if you have been sent replacement cards over the life of the agreement and I would think that you've had a least one since 2003 that embodies chip and pin, then they are in breech odf section 85 of the CCA, the duty to supply a copy of the executed parties thereto. If the original agreement wasn't properly executed, they're cannot comply with section 85.

 

Mike

If I've helped tip my scales

 

Blair Oliver & Scott, £2500 written off December 2006 Default removed January 2007:D

http://www.consumeractiongroup.co.uk/forum/general-debt/56001-mike220359-blair-oliver-scott.html

 

Monument, didn't sign the agreement

:D

 

Lloyds TSB didn't sign the agreement!

:D

 

Citicards, didn't sign the agreement

:D

 

RBS tut, tut!

:rolleyes:

 

Morgan Stanley, oh dear

:rolleyes:

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Hi Loz,

 

This is a tricky one, so I'll refer you to our resident experts on these matters - Peter Bard and TomTerm8 - as they had an interesting discussion surrounding this exact question. It starts from post #87 and goes on for a few posts after;

 

http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/110146-car2403-hfc-bank-default-5.html#post1215186

 

IMO, an unsigned (no "squiggle" from the Creditor) agreement is an unexecuted agreement, so can't be enforced under s.59(1). In actual practise, a Judge may decide the agreement is executed and enforceable as there is a clear, legal intention to create a binding relationship - either by having a Company Logo on an agreement, or even this date stamp as in your case. It's arguable either way, so have a go, I say!

 

This could be another string to your bow if you have other issues with your agreement - missing prescribed terms, for example.

 

Not as tricky as you may think, the SI that governs CCA agreements clearly states that to be properly executed the agrrement must be properly signed.

 

Mike

If I've helped tip my scales

 

Blair Oliver & Scott, £2500 written off December 2006 Default removed January 2007:D

http://www.consumeractiongroup.co.uk/forum/general-debt/56001-mike220359-blair-oliver-scott.html

 

Monument, didn't sign the agreement

:D

 

Lloyds TSB didn't sign the agreement!

:D

 

Citicards, didn't sign the agreement

:D

 

RBS tut, tut!

:rolleyes:

 

Morgan Stanley, oh dear

:rolleyes:

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Not as tricky as you may think, the SI that governs CCA agreements clearly states that to be properly executed the agrrement must be properly signed.

 

Mike

 

Agreed, in fact s.189;

 

189. (l) In this Act, unless the context otherwise requires—

“ executed agreement” means a document, signed by or on behalf of the parties,

embodying the terms of a regulated agreement, or such of them as have been reduced

to writing

 

So, an unsigned agreement is unexecuted. I'm just covering the possibility, perhaps improbability, that a Judge decides against that argument.

Always happy to help where I can!

:lol:

Beware of legal advice given on a private forum - do you REALLY know who is posting? Are they REALLY accountable for their posts? What if you follow their advice and get something wrong?

It was Winston Churchill who said; "Democracy is the worst way to run a country except for all the others"

 

Advice and comments posted by car2403 are offered purely without prejudice. They reflect only my personal opinion and do not represent the opinion of this forum or it's management. You should always seek legal advice from a qualified legal advisor. As a member of the site team, I disable reputation - reputation points mean nothing, please check my posting credentials yourself and make an informed decision. You shouldn't PM me and await a reply - I may be too late with a response. No replies will be given in Private Messages - just as with getting advice from the forum, getting advice via Private Messages is dangerous. CAG is about sharing successes so others can follow your example, this is primarily why I'm here, so please don't be offended if I don't offer replies in PM that doesn't comply with this. Help CAG to help others by keeping your thread up to date.

 

 

USEFUL LINKS; New User Guide to CAG | Can't find what you're looking for? | Intro to Consumer Credit Litigation | Is My Agreement Enforceable | Default (Surleybonds) Template Letter | Defaults - background, removal methods, challenges and taking a claim to Court | Digital Signature Guide | Overdrafts and the CCA

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Hi folks,

 

I'm in need of some advice regarding CCA request .... :confused: only registered with your group yesterday and I'm finding it a little difficult to navigate the masses of info available on the site!

 

I understand that the wording of a CCA request is critical, if so, is there anywhere I can set eyes on how it should read?

 

Also, I believe that there are different types of requests for different CCA's ... Is that right?

 

Hope to hear from some kind soul soon,

 

boa ...

It's difficult to remember that when you're up to your arse in crocodiles your objective was to drain the swamp.

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Can someone clarify what is the affect, if a creditor terminates an agreement without issuing a default or before the expiry of a default.

 

If they terminate without issuing, or haven't followed the correctly prescribed process, the Default (uppercase "D"!) or Termination (uppercase "T"!) are unlawful;

 

Failure of a Default Notice to be accurate not only invalidates the default

notice (Woodchester Lease Management Services Ltd v Swain & Co

NLD 14 July 1998) but is an unlawful rescission of contract which would

not only prevent the Court enforcing any alleged debt, but give the

Defendant a counter claim for damages. (Kpohraror v Woolwich Building

Society [1996] 4 All ER 119)

 

Hi folks,

 

I'm in need of some advice regarding CCA request .... :confused: only registered with your group yesterday and I'm finding it a little difficult to navigate the masses of info available on the site!

 

I understand that the wording of a CCA request is critical, if so, is there anywhere I can set eyes on how it should read?

 

Also, I believe that there are different types of requests for different CCA's ... Is that right?

 

Hope to hear from some kind soul soon,

 

boa ...

 

You'll find the templates here;

 

http://www.consumeractiongroup.co.uk/forum/general-debt/20758-creditors-dcas-letter-templates.html

 

The CCA s.77/s.78 request is letter N

  • Haha 1

Always happy to help where I can!

:lol:

Beware of legal advice given on a private forum - do you REALLY know who is posting? Are they REALLY accountable for their posts? What if you follow their advice and get something wrong?

It was Winston Churchill who said; "Democracy is the worst way to run a country except for all the others"

 

Advice and comments posted by car2403 are offered purely without prejudice. They reflect only my personal opinion and do not represent the opinion of this forum or it's management. You should always seek legal advice from a qualified legal advisor. As a member of the site team, I disable reputation - reputation points mean nothing, please check my posting credentials yourself and make an informed decision. You shouldn't PM me and await a reply - I may be too late with a response. No replies will be given in Private Messages - just as with getting advice from the forum, getting advice via Private Messages is dangerous. CAG is about sharing successes so others can follow your example, this is primarily why I'm here, so please don't be offended if I don't offer replies in PM that doesn't comply with this. Help CAG to help others by keeping your thread up to date.

 

 

USEFUL LINKS; New User Guide to CAG | Can't find what you're looking for? | Intro to Consumer Credit Litigation | Is My Agreement Enforceable | Default (Surleybonds) Template Letter | Defaults - background, removal methods, challenges and taking a claim to Court | Digital Signature Guide | Overdrafts and the CCA

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HI

Ther definition in secton 189 of unexecuted is there to illustrate the difference betwween the agreement in its various states of formation.

If the agreemnet is not signed by both parties it cannot commence.

 

If the agreement is functioning and money has beena advanced on it, you would have a very hard job indeed in convinceing the judge that the creditor did not intend to execute the agreement as no prejudice would be cause to the debtor in fact quite the contrary.

 

This is where section 61 comes in, this ensures that the agreement contains the various items that are nessesary fot it to be "properly exected" and can be used to challenge a functioning agreement under section 65. But this does not meen that the agreement is void the breach would be considerred in the same manor as any other breach of section 60.

Due referrence would again be given to the amount of prejudice caused to the debtor and in all honesty i cannot see how you could make a vilid claim that there was any.

 

Best regards

Peter

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DO NOT PAY UPFRONT FEES FOR COSTLY TELEPHONE CONSULTATIONS WITH SO CALLED "EXPERTS" THEY INVARIABLY ARE NOTHING OF THE SORT

BEWARE OF QUICK FIX DEBT SOLUTIONS, IF IT LOOKS LIKE IT IS TO GOOD TO BE TRUE IT INVARIABLY IS

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HI

Ther definition in secton 189 of unexecuted is there to illustrate the difference betwween the agreement in its various states of formation.

If the agreemnet is not signed by both parties it cannot commence.

 

If the agreement is functioning and money has beena advanced on it, you would have a very hard job indeed in convinceing the judge that the creditor did not intend to execute the agreement as no prejudice would be cause to the debtor in fact quite the contrary.

 

This is where section 61 comes in, this ensures that the agreement contains the various items that are nessesary fot it to be "properly exected" and can be used to challenge a functioning agreement under section 65. But this does not meen that the agreement is void the breach would be considerred in the same manor as any other breach of section 60.

Due referrence would again be given to the amount of prejudice caused to the debtor and in all honesty i cannot see how you could make a vilid claim that there was any.

 

Best regards

Peter

 

Thanks Peter.

 

Supports my view that this won't stop enforcement, but will add to any other issues you have regarding form/content (e.g., missing prescribed terms, etc) in that it will show the Judge the Creditor hasn't executed the agreement properly.

 

I also have to agree that this, on it's own, isn't a reason to prevent enforcement by Court order - unless the Debtor can show prejudice caused. (Which is unlikely) I think I've said as much in an earlier post here.

  • Haha 1

Always happy to help where I can!

:lol:

Beware of legal advice given on a private forum - do you REALLY know who is posting? Are they REALLY accountable for their posts? What if you follow their advice and get something wrong?

It was Winston Churchill who said; "Democracy is the worst way to run a country except for all the others"

 

Advice and comments posted by car2403 are offered purely without prejudice. They reflect only my personal opinion and do not represent the opinion of this forum or it's management. You should always seek legal advice from a qualified legal advisor. As a member of the site team, I disable reputation - reputation points mean nothing, please check my posting credentials yourself and make an informed decision. You shouldn't PM me and await a reply - I may be too late with a response. No replies will be given in Private Messages - just as with getting advice from the forum, getting advice via Private Messages is dangerous. CAG is about sharing successes so others can follow your example, this is primarily why I'm here, so please don't be offended if I don't offer replies in PM that doesn't comply with this. Help CAG to help others by keeping your thread up to date.

 

 

USEFUL LINKS; New User Guide to CAG | Can't find what you're looking for? | Intro to Consumer Credit Litigation | Is My Agreement Enforceable | Default (Surleybonds) Template Letter | Defaults - background, removal methods, challenges and taking a claim to Court | Digital Signature Guide | Overdrafts and the CCA

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Supports my view that this won't stop enforcement, but will add to any other issues you have regarding form/content (e.g., missing prescribed terms, etc) in that it will show the Judge the Creditor hasn't executed the agreement properly.

 

I also have to agree that this, on it's own, isn't a reason to prevent enforcement by Court order - unless the Debtor can show prejudice caused. (Which is unlikely) I think I've said as much in an earlier post here.

 

Thanks for your comments chaps, much appreciated. I wasn't expecting to discover that a lack of signature by HSBC meant that I didn't owe them a bean, but I can dream eh? At the very least it would have been nice to ask them for a refund of all the interest they've charged ;)

However it may prove a useful weapon at some stage in the future...

 

Loz

I hate Alliance + Leicester

BT: No longer a customer :)

HSBC: £1222 refunded 28/5/06; Second claim of £737-24 refunded 9/11/06; PPI + interest on personal loan refunded 27/7/08

MBNA: £100 refunded on first claim of £112; £208 refunded on second claim for £108 24/9/07; PPI £256-28 refunded 8/4/08

NatWest: £1581-71 refunded 16/12/06; personal loan CCA agreement not provided

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Thanks for your comments chaps, much appreciated. I wasn't expecting to discover that a lack of signature by HSBC meant that I didn't owe them a bean, but I can dream eh? At the very least it would have been nice to ask them for a refund of all the interest they've charged ;)

However it may prove a useful weapon at some stage in the future...

 

Loz

 

 

.....Not allowed to dream on CAG - we're all too sharp for dreaming! :p

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Thanks for your comments chaps, much appreciated. I wasn't expecting to discover that a lack of signature by HSBC meant that I didn't owe them a bean, but I can dream eh? At the very least it would have been nice to ask them for a refund of all the interest they've charged ;)

However it may prove a useful weapon at some stage in the future...

 

Loz

 

Loz, don't think this automatically means you have an enforceable agreement! Start your own thread and scan/post a copy of what you have, removing your personal details, so we can see what you're up against - I'd give you 10/1 that the agreement is improperly executed! (I would put my house on it, but my mortgage company may have something to say about that!)

Always happy to help where I can!

:lol:

Beware of legal advice given on a private forum - do you REALLY know who is posting? Are they REALLY accountable for their posts? What if you follow their advice and get something wrong?

It was Winston Churchill who said; "Democracy is the worst way to run a country except for all the others"

 

Advice and comments posted by car2403 are offered purely without prejudice. They reflect only my personal opinion and do not represent the opinion of this forum or it's management. You should always seek legal advice from a qualified legal advisor. As a member of the site team, I disable reputation - reputation points mean nothing, please check my posting credentials yourself and make an informed decision. You shouldn't PM me and await a reply - I may be too late with a response. No replies will be given in Private Messages - just as with getting advice from the forum, getting advice via Private Messages is dangerous. CAG is about sharing successes so others can follow your example, this is primarily why I'm here, so please don't be offended if I don't offer replies in PM that doesn't comply with this. Help CAG to help others by keeping your thread up to date.

 

 

USEFUL LINKS; New User Guide to CAG | Can't find what you're looking for? | Intro to Consumer Credit Litigation | Is My Agreement Enforceable | Default (Surleybonds) Template Letter | Defaults - background, removal methods, challenges and taking a claim to Court | Digital Signature Guide | Overdrafts and the CCA

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Not as tricky as you may think, the SI that governs CCA agreements clearly states that to be properly executed the agrrement must be properly signed.

 

Mike

 

A lot of agreements on here are missing the creditor's signature which means the agreement is improperly executed and only enforceable by the order of a court.

 

My question is, if the court's decision was to enforce the agreement would it be retrospective, or could we argue that whilst the agreement was improperly executed the contract could not be enforced so there was never no legal entitlement by the creditor to apply interest. Would the creditor only be allowed to enforce the agreement from the date the court makes the deceleration that the agreement is enforceable.

 

Paul

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An appeaser is one who feeds a crocodile, hoping it will eat him last. <br />

Winston Churchill

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Hi cashin,

 

i can answer that question for you,

 

you only need to send one request per account, so if a DCA is chasing you for payment then if you cca the dca you do not need to send another request to the original creditor

 

the DCA is under an obligation under the cca 1974 to pass the request onto the OC if they dont hold the relevent documents

 

regards

paul

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A lot of agreements on here are missing the creditor's signature which means the agreement is improperly executed and only enforceable by the order of a court.

 

My question is, if the court's decision was to enforce the agreement would it be retrospective, or could we argue that whilst the agreement was improperly executed the contract could not be enforced so there was never no legal entitlement by the creditor to apply interest. Would the creditor only be allowed to enforce the agreement from the date the court makes the deceleration that the agreement is enforceable.

 

Paul

 

Paul,

 

If the Court allows enforcement, it allows each of the terms - including interest, payment amount, etc - to be enforced as a whole.

 

Having said that, s.127 gives it other powers, namely;

 

127.—(1) In the case of an application for an enforcement order under—

(a) section 65(1) (improperly executed agreements)...

the court shall dismiss the application if, but (subject to subsections (3) and (4)) only if, it considers it just to do so having regard to—

(i) prejudice caused to any person by the contravention in question, and

the degree of culpability for it; and

(ii) the powers conferred on the court by subsection (2) and sections 135

and 136

 

and subsection 2 says;

 

(2) If it appears to the court just to do so, it may in an enforcement order reduce or discharge any sum payable by the debtor or hirer, or any surety, so as to compensate him for prejudice suffered as a result of the contravention in question

 

So, in theory, the Court can give the creditor an Enforcement Order, but reduce the Debtor's liability if they have been prejudiced by the creditors improper execution and their "culpability" for it. If an agreement isn't signed, for example, you could argue you didn't agree to that rate of interest - if the Court decides, it may reduce your liability for that interest rate, or remove it altogether.

 

This is one of the reasons why most CAG-ers advise to Defend, Defend, Defend a claim brought against under the CCA - admitting liability throws all this out of the window!

Always happy to help where I can!

:lol:

Beware of legal advice given on a private forum - do you REALLY know who is posting? Are they REALLY accountable for their posts? What if you follow their advice and get something wrong?

It was Winston Churchill who said; "Democracy is the worst way to run a country except for all the others"

 

Advice and comments posted by car2403 are offered purely without prejudice. They reflect only my personal opinion and do not represent the opinion of this forum or it's management. You should always seek legal advice from a qualified legal advisor. As a member of the site team, I disable reputation - reputation points mean nothing, please check my posting credentials yourself and make an informed decision. You shouldn't PM me and await a reply - I may be too late with a response. No replies will be given in Private Messages - just as with getting advice from the forum, getting advice via Private Messages is dangerous. CAG is about sharing successes so others can follow your example, this is primarily why I'm here, so please don't be offended if I don't offer replies in PM that doesn't comply with this. Help CAG to help others by keeping your thread up to date.

 

 

USEFUL LINKS; New User Guide to CAG | Can't find what you're looking for? | Intro to Consumer Credit Litigation | Is My Agreement Enforceable | Default (Surleybonds) Template Letter | Defaults - background, removal methods, challenges and taking a claim to Court | Digital Signature Guide | Overdrafts and the CCA

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Hi Cashin,

 

if a DCA is acting as an agent for the creditor, if you CCA the DCA they are under a duty imposed by s175 of the CCA 1974 to pass on the request

 

175. Duty of persons deemed to be agents.

 

 

Where under this Act a person is deemed to receive a notice or payment as agent of the creditor or owner under a regulated agreement, he shall be deemed to be under a contractual duty to the creditor or owner to transmit the notice, or remit the payment, to him forthwith.

now if they have had tht debt Assigned to them and they have all the rights of the origuinal creditor they have the obligation also to supply you the cca document

 

so, if you cca the dca either way they are obliged to take action to supply you the document

 

i hope this helps

 

regards

paul

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Paul,

Many thanks, as I thought. But Site helper Steven4064 has said both DCA & OC must be sent CCA request??

 

Who is correct? the thread I am refuring to is MBNA and Link Financial.

 

Thanks

Cashin

 

Hi cashin,

 

I think this difference in opinion is simply down to personal preference - Paul is right in that a CCA request to the original creditor isn't necessary, but I can see the argument for sending another request to the creditor after the DCA has failed in it's obligation. Strictly speaking, that isn't necessary, but if you're interested in "covering all bases" it may be something that you want to do.

 

There are no right or wrong answers as to how to progress, as its all based on opinion and experience, until you get in to a Courtroom and a Judge decides how the Law applies to your case. One Judge may decide something differently to another, so firming your case up by taking additional steps - which don't require much effort on your part, or additional cost - (another £1 cheque?) is usually advisable.

Always happy to help where I can!

:lol:

Beware of legal advice given on a private forum - do you REALLY know who is posting? Are they REALLY accountable for their posts? What if you follow their advice and get something wrong?

It was Winston Churchill who said; "Democracy is the worst way to run a country except for all the others"

 

Advice and comments posted by car2403 are offered purely without prejudice. They reflect only my personal opinion and do not represent the opinion of this forum or it's management. You should always seek legal advice from a qualified legal advisor. As a member of the site team, I disable reputation - reputation points mean nothing, please check my posting credentials yourself and make an informed decision. You shouldn't PM me and await a reply - I may be too late with a response. No replies will be given in Private Messages - just as with getting advice from the forum, getting advice via Private Messages is dangerous. CAG is about sharing successes so others can follow your example, this is primarily why I'm here, so please don't be offended if I don't offer replies in PM that doesn't comply with this. Help CAG to help others by keeping your thread up to date.

 

 

USEFUL LINKS; New User Guide to CAG | Can't find what you're looking for? | Intro to Consumer Credit Litigation | Is My Agreement Enforceable | Default (Surleybonds) Template Letter | Defaults - background, removal methods, challenges and taking a claim to Court | Digital Signature Guide | Overdrafts and the CCA

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does the Companies Act 1985, overide the consumer credit act 1974 ??

 

answers please here

 

here

 

http://www.consumeractiongroup.co.uk/forum/cabot/122201-more-secrets-about-assignment-2.html

Tam Wing Chuen -v- Bank of Credit and Commerce Hong Kong Ltd [1996] 2 BCLC 69

 

1996

PC

Lord Mustill Commonwealth,

 

Lord Mustill discussed the need to construe a contract contra preferentem: "the basis of the contra proferentem principle is that the person who puts forward the wording of a proposed agreement may be assumed to have looked after his own interests, so that if words leave room for doubt about whether he is intended to have a particular benefit there is reason to suppose that he is not."

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A lot of agreements on here are missing the creditor's signature which means the agreement is improperly executed and only enforceable by the order of a court.

 

My question is, if the court's decision was to enforce the agreement would it be retrospective, or could we argue that whilst the agreement was improperly executed the contract could not be enforced so there was never no legal entitlement by the creditor to apply interest. Would the creditor only be allowed to enforce the agreement from the date the court makes the deceleration that the agreement is enforceable.

 

Paul

 

This is a good point and is where you must have a good argument.

 

Say Mike220359 (The creditor) has an improperly executed credit card agreement with Paul (The debtor), now over time Mike has given a replacement card to Paul from time to time. With the replacement card under section 85 of the CCA Mike must give a copy of the executed agreement to Paul. If (as u Know) I dont then I cannot enforce the agreement blah blah blah. Now after a further month Mike commits an offence, however enforcement may resume should production of the agreement be produced.

 

If the original agreement was improperly executed at the foundation there is no way that section 85 can be complied with therefore Mike would be committing an offence, even though he may not realise it. As an aside under section 4 of the Fraud Act 2006, (dealin with abuse of position) you can commit fraud by ommision as well as by action!

 

Now, if Mike has added interest and or charges following the issue of the new card, then he has been unjustly enriched, so Paul can ask for restitution of those sums plus 8% (not contracted rates, since we are talking about restitution).

 

The court could indeed enforce the agreement but under section 127 of the CCA, it can adjust the outstanding amount, and since the debttor has been prejudiced because of the unjust enrichicment of the creditor the outstanding sum must be reduced.

 

QED

 

Its not about avoiding debt its about preventing lenders making a profit when they have not abided by the rules that they have to follow. In this situation you havent done anything wrong, it is them, they just try and make it look like you are a scheming debt avoiding scrounger.

 

Be Strong they're wrong.

 

PS I'm using this tack with a couple at the moment, results published when succesful!

 

Mike

  • Haha 2

If I've helped tip my scales

 

Blair Oliver & Scott, £2500 written off December 2006 Default removed January 2007:D

http://www.consumeractiongroup.co.uk/forum/general-debt/56001-mike220359-blair-oliver-scott.html

 

Monument, didn't sign the agreement

:D

 

Lloyds TSB didn't sign the agreement!

:D

 

Citicards, didn't sign the agreement

:D

 

RBS tut, tut!

:rolleyes:

 

Morgan Stanley, oh dear

:rolleyes:

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My post got lost among some big ones a few pages back, bulk of it was:

My thread is here if perhaps peterbard (or indeed anyone) could spare a mo. There was a point I picked up on some pages back about advirtising on the agreeement documemt being a 'no-no'? Is this refered to in Regs somewhere? - need to go through these next I think. My application form/agreement has a free mobile phone offer on the back, says PTO for application.

Also I've seen few references to S85 in recent posts in this thread - did this bear any fruit in anyones claims?

Slartibartfast

PRS - Semi-retired

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