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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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Can you post the link again. I'm no expert on these things, but the link isn't working anyway.

 

What's Best for You?

 

 

The Consumer Action Group is a free help site.

Should you be offered help that requires payment please report it to site team.

 

Alliance & Leicester Moneyclaim issued 20/1/07 £225.50 full settlement received 29 January 2007

Smile £1,075.50 + interest Email request for payment 24/5/06 received £1,000.50 14/7/06 + £20 30/7/06

Yorkshire Bank Moneyclaim issued 21/6/06 £4,489.39 full settlement received 26 January 2007

:p

 

Advice & opinions given by Caro are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

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SECTION 3: MANIFESTO AIMS

 

3.1 To establish a level playing field

 

A rebalancing policy approach

The focus of recent regulation has been on protecting the debtor from undue persecution and hardship.

The Association fully supports the importance of protection for those who cannot pay their debts.

However, the current regulatory environment fails to adequately distinguish between the ‘can’t pays’ and the

‘won’t pays’.

• For those who can’t pay, there should be measures in place which seek to prevent them getting into

excessive and unaffordable debt.

• For those who can pay but won’t, Government should ensure efficient channels to help facilitate the

recovery of monies and not prevent collection of those monies through restrictive and undue legislation.

Given that the normal process of lending and borrowing is an integral part of a free market economy, it is

essential that lenders have the confidence to provide finance to borrowers knowing that there are the

means to enforce repayment should this be necessary. Equally, those in debt should expect to be treated in

a professional and reasonable manner. It is the task of Regulators and Government to ensure that this

balance is maintained.

The Credit Services Industry plays a vital role in providing the means to recover monies in a professional

and caring manner. The vast majority of debts are settled in pre-legal stages, reducing the burden on the

courts.

There are of course some consumers whose financial fortunes have taken a downturn after taking out

credit and these matters need to be sensitively handled. However, a distinction has to be made between

those consumers that cannot pay and those consumers that will not pay. It is the Industry’s task to

determine this distinction and act accordingly.

It is the view of the Industry that Government and Regulators need to take into account these factors and

be supportive of the legitimate right of the creditors to recover their monies.

 

The Consumer Credit Act 1974 & 2006

The CSA and DBSG strongly support the Consumer Credit Act (CCA) in principle as protection is

required for consumers. However, certain parts of it are being used by some consumers to evade

responsibility of debt, and this certainly was not the intention of the legislation. This debt evasion is seen by

Members of the Association even though debtors have previously accepted they owe the debt and they

may even have the ability to pay.

 

Financial Ombudsman Service

Since April 2007 the industry has become subject to the Dispute Resolution Service provided by the

Financial Ombudsman Service (FOS). The Association is concerned about the proliferation of complaints

to the FOS and the potential of ‘blackmail’ type situations. A major issue faced by Members is the case fee

issued by FOS when a case is referred for investigation. Currently the case fee stands at £400 per

investigated case; due to the difficult nature of a complaint, together with relationship issues between

debtor and collection agency, the Association estimates a high number of complaints will be referred to

the FOS, which will not warrant investigation but still involve the agency incurring the case fee. For small

businesses these case fees may impact severely on their business causing them to fold.

 

 

http://www.csa-uk.com/UserFiles/File/upload-here/manifesto%20all%20pages.pdf

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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Appendix 2:

 

Regulatory & Legislative Issues

 

 

The Association feels it is essential that current Legislation and Regulation is

reviewed in order to bring clarity to the Industry for those working within it as well

as for consumers and debtors who are affected by it. The Legislation and

Regulation the Association considers most in need of review:

 

• Consumer Credit Act 1974 & 2006 - currently the Act is being used by debtors to avoid making

payments on their credit agreements. Bad advice, offered within consumer action websites, is misleading those genuine debtors in financial difficulty. Sections 77 & 78 of the Act are being misinterpreted by these

‘advisors’ causing further distress and frustration to genuine debtors. The number of trace accounts has increased substantially in recent years. The Act should introduce a penalty to those debtors who fail to

advise their creditors they have moved (either unintentionally or not).

 

 

• Companies Act 2006 - members have raised concern regarding the maintenance of the Register of Barred

Directors. Processes are required to keep information up to date to avoid further indebtedness by barred

directors as well as being able to locate those directors responsible for business debts which must be

recovered.

 

 

• Limitations Act 1980 - it is essential that the Statute of Limitations remains at 6 years. Reducing this term

would cause an increase in court cases as creditors will take legal action far earlier during their collection

activity in order to recoup their money. This will have a detrimental effect not only on the debtor as they

will ultimately have a County Court Judgment, but also the court system as more cases will be generated

which will increase costs and thereby compounding the issue of overindebtedness.

 

 

• Enterprise Act 2002 - the intention of this act has failed. Consumers are using the act as an easy option

out of paying their debts by going into bankruptcy.

 

 

• Security Industry Authority - the licensing of investigators by the SIA has not been carefully considered.

Tracing agencies used to locate absconded debtors may fall under this category - the consequences of

licensing tracing agents would be enormous as most tracing is office based. Each individual ‘tracer’ would

have to be separately licensed which will have huge financial implications for creditors, clients and agencies.

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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Consumer Credit Act 1974 & 2006 - currently the Act is being used by debtors to avoid making

payments on their credit agreements. Bad advice, offered within consumer action websites, is misleading those genuine debtors in financial difficulty. Sections 77 & 78 of the Act are being misinterpreted by these

‘advisors’ causing further distress and frustration to genuine debtors. The number of trace accounts has increased substantially in recent years. The Act should introduce a penalty to those debtors who fail to

advise their creditors they have moved (either unintentionally or not).

 

Bad advice by consumer sites!!!!

 

Who do you think you are kidding:)

 

The Act should introduce a penalty to those debtors who fail to

advise their creditors they have moved

 

I cant stop laughing:D

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

 

Yes, Barclaycard settled out of court with a sec 85 claim.

 

Paul

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

Winston Churchill

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The Association feels it is essential that current Legislation and Regulation is

reviewed in order to bring clarity

 

How much clarity do you want..No agreement, Unenforcable debt!!!!

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I think this has been posted up before about 'The Association' This is the Credit Services Association (CSA) who's members are DCA's generally and dear Mr Najib Nathoo is trying to save the industry's face by going on the offensive. It's a load of tosh and he knows it. Just look at who's on the board to know why he says what he does....CSA Website just keep up the pressure for them to abide by the law ...it's like garlic to Dracula :D

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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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just spotted arrow global tricks of the trade

 

http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/123101-arrow-global.html

 

anybody any idea this has been going on

 

please post replies on the other thread thanks

:cool: sunbathing in juan les pins de temps en temps

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RE:

 

THE monument !!! SALE EXPOSURE NOTE:--

 

Unenforceability Allegation” means an express written notice received by the Purchasers or Raphael Bank from a Cardholder within two years of the date of this Agreement containing an allegation that his or her Cardholder Agreement is unenforceable pursuant to the CCA due to any fact, matter or circumstances arising prior to the date of this Agreement;

 

SUGGEST WE CHEW over each and every word above so we come up with "an exact phrase" in the letter so their is no doubt that the above criteria is met !! some of you will say we already do ......

:cool: sunbathing in juan les pins de temps en temps

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  • dx100uk changed the title to Cap1 & CCA return
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