Cap1 & CCA return

[car2403]

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.

[Mike220359]

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

[Mike220359]

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

[car2403]

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.

[humbleman]

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

[boavista1952]

Hi folks,

 

I'm in need of some advice regarding CCA request .... 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 ...

[car2403]

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 .... 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

[boavista1952]

Thanks car2403

[humbleman]

thanks car

[Peterbard]

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

[car2403]

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.

[loz]

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

[andrew1]

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!

[car2403]

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!)

[paulwlton]

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

[cashin]

Peter,

 

When a debt is sold to a DCA and then you CCA the DCA do you also have to CCA the the origional creditor as well??

 

Regards

 

Cashin

[pt2537]

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

[cashin]

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

[car2403]

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!

[pt2537]

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

[car2403]

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.

[Vulture_Bank]

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

[cashin]

Paul/Car2403

 

Many thanks for your comments, I take your point.

 

Regards

 

Cashin

[Mike220359]

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

[Slartibartfast]

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?