Cap1 & CCA return

[Peterbard]

HI Paul

 

It depends on what you meaen by incorrect.

If the default was incorrect in that the amounts contained were wrong then i would agree, but if it was ust a matter of the default notice being incorrectly formatted (wrong date wrong address etc.)then it would make no difference to the entry on the file as the information diplayed would be correct.

 

If the information about the amount of default is wrong on the credit file then that would have to be pursued through the ICO it would have nothing to do with the section 87 request.

Best regards

Peter

[Peterbard]

HI Again

You have got me at it now

 

What is contained on the 87 default has nothing to do with what appears on your credit file.

If you could prve that the default was incorrect in the criterea displaye by the CRA and get a ruliing to that effect then you could use it to challenge an entry but that is all.

 

Best regards

 

Peter

[paulwlton]

HI Paul

 

It depends on what you meaen by incorrect.

If the default was incorrect in that the amounts contained were wrong then i would agree, but if it was ust a matter of the default notice being incorrectly formatted (wrong date wrong address etc.)then it would make no difference to the entry on the file as the information diplayed would be correct.

 

If the information about the amount of default is wrong on the credit file then that would have to be pursued through the Information Commissioners Office it would have nothing to do with the section 87 request.

Best regards

Peter

 

Incorrect inline with Woodchester v Swaine. I also believe that you can pursue the complaint direct to the CRA as all data they register has to be correct otherwise you have a case for deformation.

 

I have an excellent letter for the CRA.

[car2403]

HI

I thought we had agreed that HAKs agreement was properly executed?

 

Wasn't the question whether the issuance of a default notice damaged the debtor because it was then recorded on the credit file which it is not the two acts are unrelated.

 

Oh yes, I was talking more generally rather than in HAK's specific case.

 

Having said that, I don't think that the rules on Default Notices are dependant on having an enforceable agreement or not - in practice at least - as creditors don't have recourse to the Courts before issuing them.

 

It's IMHO only, but I'd say where a Default Notice that is inaccurate, whatever the reason is, (whether the balance has collection charges applied or whether any of the prescribed terms are wrong, such as creditor/debtor info missing or less than the prescribed timeframe for remedy being provided) there's an argument to say it's still a rescission of contract (authorities already provided) which prevents enforcement in Court and removes the rights of the creditor to claim the principal and interest from the debtor by enforcement.

 

It would be interesting to see this happen in practise, as it's just a theory I have. (All my claims have enforceability issues with the agreements anyway)

 

If the court agreed that the agreement was incorrectly executed then you could say that the registration was incorrect because the interest which gave cause to the breach was not due.

 

This is exactly my arguments, so that's made me feel better! (Had me panicking there for a moment, Pete!)

 

It must be rememberred that the outcome of the Wilson case mentioned particulrily the refund of amounts paid and the return of security was not due to section 127(3).

 

This only made the agreement unenforceable the sections concerned were 106/7 and 113 which were to do with the securities on the loan being inafective.(Notice the ruling says on redemption of securities)

 

In an unsecured loan or running credit agreement no such sanctions are available and no such ruling would be given by the court just because an agreement was unenforceable.

 

Again agreed, but I think it will still be pursasive argument for following it as a precedant - a breach of the Act is a breach of the Act, which should be dealt with in the same way, IMHO;

 

Wilson v Robertsons (London) Ltd [2005] EWHC 1425 (Ch);

'What the 1974 Act does is put in place a bright line over which the parties, and in particular the lender, must not step…’

 

What could be said, in the case of an improperly executed agreement is that no interest or charges were due on it, because all the criterea laid down in the act to protect the debtors rights were not followed, this would be quantified by the judge as being the amount of prejudice caused and the judgement would relect this.

 

I'd have to disagree, as you're suggesting the principal is still enforceable against the debtor, which can't be right under Wilson, given my views above? (Just my opinion, so I could be wrong of course!)

 

There is also some missunderstanding about interest being added to acconts that were unenforceable under section 77/79 default.

 

Whilst it is true that the agreement cannot be enforced against the debtor when he has not been provided with the required information there is nothing within the act that says that the creditor cannot add interest to the account during this period and that that interest can be applied when the default is remedied.

You can try arguing injust enrichment if you like and i have tried but i assure you it will make no difference once the request is remedied the total interest on the account will be due.

 

This is another interesting one, (we seem to be trotting them out one-by-one now, Peter!) as CCA 2006 includes the obligation to send statements under s.6 CCA 2006 - where the creditor doesn't do that;

 

(6) Where this subsection applies in relation to a failure to give a statement under this section to the debtor—

(a) the creditor shall not be entitled to enforce the agreement

during the period of non-compliance;

(b) the debtor shall have no liability to pay any sum of interest to

the extent calculated by reference to the period of noncompliance

or to any part of it; and

© the debtor shall have no liability to pay any default sum which

(apart from this paragraph)—

(i) would have become payable during the period of noncompliance;

or

(ii) would have become payable after the end of that period in connection with a breach of the agreement which occurs during that period (whether or not the breach continues after the end of that period).

 

So, why do we still have to pay interest during the default period under s.77/s.78 CCA 1974 if they "find" the agreement?

 

HI Paul

 

It depends on what you meaen by incorrect.

If the default was incorrect in that the amounts contained were wrong then i would agree, but if it was ust a matter of the default notice being incorrectly formatted (wrong date wrong address etc.)then it would make no difference to the entry on the file as the information diplayed would be correct.

 

If the information about the amount of default is wrong on the credit file then that would have to be pursued through the Information Commissioners Office it would have nothing to do with the section 87 request.

Best regards

Peter

 

This is my point above, Peter - an inaccurate Default Notice is inaccurate regardless of the reason why and can't be used to enforce.

[maybelline]

Incorrect inline with Woodchester v Swaine. I also believe that you can pursue the complaint direct to the CRA as all data they register has to be correct otherwise you have a case for deformation.

 

I have an excellent letter for the CRA.

 

'deformation' that gotta hurt?!

[gaz2006]

Incorrect inline with Woodchester v Swaine. I also believe that you can pursue the complaint direct to the CRA as all data they register has to be correct otherwise you have a case for deformation.

 

I have an excellent letter for the CRA.

 

Can you show me a link to this letter to cra please Paul and also to the Woodchester and Swaine case regards gaz

[patrickq1]

it hurts even more if you are not a multi millionaire to take this sort of case to court....so the CRAs do not give a hoot...it should be that the CRAs should write to you to clarify the truthfullness as well as the banks before they print damaging material

patrickq1

[car2403]

it hurts even more if you are not a multi millionaire to take this sort of case to court....so the CRAs do not give a hoot...it should be that the CRAs should write to you to clarify the truthfullness as well as the banks before they print damaging material

patrickq1

 

Have you read s.159 CCA 1974?;

 

159.—(1) A consumer given information under section 158 who considers that an

entry in his file is incorrect, and that if it is not corrected he is likely to be prejudiced,

may give notice to the agency requiring it either to remove the entry from the file or

amend it.

(2)

Within 28 days after receiving a notice under subsection (l), the agency shall

by notice inform the consumer that it has—

(a) removed the entry from the file, or

(b) amended the entry, or

©

taken no action,

and if the notice states that the agency has amended the entry it shall include a copy of

the file so far as it comprises the amended entry

 

and s.159(6) is even more interest (after reading the rest of this section) as the CRA commits an offence if they don't deal with you properly!;

 

(6)

If a person to whom an order under this section is directed failso comply

with it within the period specified in the order he commits an offence

 

I might write to Equifax/CallCredit and tell them that they have committed an offence by replying to me to tell me that I have to pay another £2 (after already paying online!) for another copy of my CRA file as there is "no record of me receiving an up to date copy" on their files!

 

Shocking!

[wednesday1867]

Ive had an agreement off Capital One, which is unenforcable, im about to send off my complaint to the FOS tomorrow, ive written it all out, but as im no legal whizz, could someone with a bit of legal knowledge have a read and let me know if ive included all the relevant parts of the Consumer Credit Act that the agreement breaks and let me know if i could beef it up a bit more, or just re assure me that what ive put will do the trick? Obviously i dont want to send it and it have some glaring mistakes that would make Cap One get off the hook as it were.

 

This is the thread

 

Cap One, am i right?

 

Thanks Very Much

[MAGDA]

Hi, is it correct that the Consumer Credit Act 2006 will bring about changes to the enforcement of Credit Agreements. From the articles I have read, it would appear that it will be up to the courts discretion whether or not they think an agreement should in fact be enforceable, despite it not containing all of the prescribed terms? Does anyone have any info on this. Magda

[MAGDA]

Total unenforceability and other court powers

The new Act will remove the possibility for agreements to be totally unenforceable because they do not comply with the technical requirements of the CCA Agreements Regulations Instead, where defects arise in the form and content of agreements, the court will have a discretion as to whether to enforce the agreement or not.

[pt2537]

Total unenforceability and other court powers

The new Act will remove the possibility for agreements to be totally unenforceable because they do not comply with the technical requirements of the CCA Agreements Regulations Instead, where defects arise in the form and content of agreements, the court will have a discretion as to whether to enforce the agreement or not.

 

This only applies to agreements entered into after April 2007 so whilst correct that court will have discretion to enforce new agreements , the fact remains that all agreements before apr 2007 fall under the 1974 act

[ian1969uk]

I have a current situation with an Intelligent Finance credit card. I sent them a CCA request last March, and they have only just replied with an agreement that has some legibility issues but appears to have all of the precribed terms.

 

However, I am challenging them on the basis of unlawful rescission of contract, in that they sent me a default notice dated 2/10/07 giving 14 days to rectify the (alleged) breach. I also received a letter dated 2/10/07 saying the credit facilities had been withdrawn, the card should be cut up and returned to them and payment should be made in full.

 

As they did not allow the 14 days to pass before terminating the agreement, I consider this an unlawful. I would be interested in thoughts as to relevant case law to quote to them.

 

The default notice could also be argued to be invalid anyway as it included interest amounts that they should not have added whilst in default of my request. Plus, they have still only given me current terms and conditions and not those applicable when the account was opened. Therefore, their S78 default remains.

 

Any thoughts on this?

[car2403]

Hi, is it correct that the Consumer Credit Act 2006 will bring about changes to the enforcement of Credit Agreements. From the articles I have read, it would appear that it will be up to the courts discretion whether or not they think an agreement should in fact be enforceable, despite it not containing all of the prescribed terms? Does anyone have any info on this. Magda

 

Take a look here;

 

CCAs post April 2007 - The Consumer Forums

[paulwlton]

it hurts even more if you are not a multi millionaire to take this sort of case to court....so the CRAs do not give a hoot...it should be that the CRAs should write to you to clarify the truthfullness as well as the banks before they print damaging material

patrickq1

 

I agree, CRA's as well has the banks don't give a hoot, they treat their customers with contempt, and if a customer steps out of line they use draconian measures to make sure they fall back in line, ie place a default on their CF.

 

I don't think you have to be a millionaire to challenge the above in court.

[Peterbard]

Hi

If anyone puts information about you in the public domain which is incorrect and can be proved to be damageing then you have a right to take recourse to legal action nothing new there.

The quote given by car regardsin interest added to accounts whilst in default refers to new measures introduced in the cca 2006 for none priducion of yearly statements and does not relate to sectyion 77/78 of the cca unfortunatly.

 

Regards

Peter

[MAGDA]

Thanks for the info re: CCA 2006. Just wondered also whether the prescribed terms for a store card (GE Money) Agreement is required to include the repayment details. I had a reply on another thread of mine, which included a link from Peter, that stated this as a requirement for Credit Cards, so guess store cards would be fairly similar.

 

Thanks, Magda

[patrickq1]

Have you read s.159 CCA 1974?;

i got myself mixed up i meant to refer to libel as my case involved that but i could nt afford the barristors fee,so i used it then as part of my dispute against the bank as it was admited in writing

patrickq1

[car2403]

Thanks for the info re: CCA 2006. Just wondered also whether the prescribed terms for a store card (GE Money) Agreement is required to include the repayment details. I had a reply on another thread of mine, which included a link from Peter, that stated this as a requirement for Credit Cards, so guess store cards would be fairly similar.

 

Thanks, Magda

 

The 2006 Act gets rid of the unenforceability sections of the 1974 Act, so missing prescribed terms doesn't mean automatic unenforceability any more.

 

That's not to say you weren't prejudiced as a result and can argue "unfair relationship" against the creditor, IMHO;

 

http://www.consumeractiongroup.co.uk/forum/general-debt/108467-basic-introduction-consumer-credit.html#post1048139

[ian1969uk]

The 2006 Act gets rid of the unenforceability sections of the 1974 Act, so missing prescribed terms doesn't mean automatic unenforceability any more.

 

 

Remember this only applies to agreements taken out after 6th April 2007.

[car2403]

Remember this only applies to agreements taken out after 6th April 2007.

 

I'm sure I covered that earlier with this;

 

http://www.consumeractiongroup.co.uk/forum/general-debt/125119-ccas-post-april-2007-a.html

 

Thanks for clarifying it though...

[ian1969uk]

You probably did, I was just concerned that anyone reading that last post in isolation may think it applied to all agreements.

[paulwlton]

Back to the application/agreement - the regs clearly set out what is required to be made prominent on the first page of any document. The fact, "Application' is given more prominence would suggest all these agreements are improperly executed, and can only be enforced by an order of the court?

 

 

Nature of agreement

(I) A heading in one of the following forms of word'

shown prominently on the first page of the document

(

a) "Hire-Purchase Agreement regulated by the

Consumer Credit Act 1974";

 

(b) "Conditional Sale Agreement regulated by the

Consumer Credit Act 1974"; or

 

(e) "Credit Agreement regulated by the Consumer

Credit Act 1974",

[paulwlton]

Can you show me a link to this letter to cra please Paul and also to the Woodchester and Swaine case regards gaz

 

 

 

 

Alter to suite, i have been told the CRAs act quickly on this.

 

 

 

 

 

To

The Compliance and Admin

The Directors Office

Experian Ltd

P.O. Box 9000

Nottingham

 

 

 

Dear Sir,

I have previously written to Experian, disputing the entry made by Xxxxxxx Ltd, which was changed to Xxxxxxxxx Cxxxxxxxx.

 

I wish to strongly stress to you that as well as the default is unlawfully registered the personal information about me is absolutely and totally incorrect.

 

As Xxxxxxxxxx Ltd have never had my signed consent to pass share supply information financial, personal or otherwise, and also cannot supply any evidence of that permission, nor have they been able to supply a copy of an agreement of any description including a fully executed CCA agreement, I make you aware of the following.

 

Under the Fourth Principle of the Data Protection Act, data controllers (and Experian are considered data controllers under the 1998 Act) must

a) Take steps that are necessary to each individual case to ensure that the data they receive is indeed accurate correct and true, the steps necessary should also bear in mind the consequences for the data subject.

 

Data are inaccurate if they are incorrect or misleading as to any matter of fact.

 

The information held by Experian Ltd that has been supplied by Xxxxxxxxxx Ltd and Xxxxxxxxxx Xxxxxxxxxx fails this Principle.

 

Experian in their turn have failed to comply with this Principle also, by not requesting Xxxxxxxxx Ltd to show to Experian the necessary consent to pass information and I also make an added point the consent required for your client to access your data base to insert the incorrect default.

 

I would also point out to Experian that Xxxxxxxxxx Ltd have been unable to produce the default notice required under the legislation of The Consumer Credit Act Section 76, as once again one was not issued.

 

As there is no agreement, no consent, no default notice, the default entry on my credit file has been unlawfully entered and unlawfully maintained updated and kept by Experian Ltd.

 

I therefore demand under sections 10 and 14 of the Data Protection Act 1998 that Experian delete and destroy all records appertaining to this default immediately.

 

I also put Experian on notice that failure to do so, will make Experian open to a claim in the County Courts for Defamation/Libel under the Libel Act.

 

Libel claims can be pursued through the County Courts and it is not necessary under the Act of Libel and Defamation to prove loss, this is a step I will take by reason of Experians non action on my previous letters of dispute and complaint.

 

I also remind you of a ruling made by the Privy Council in 1908 a ruling that is still in force as of today wherein it was ruled that Credit Reference Agency cannot claim immunity from a claim of Libel in any claim I make against Experian, I will refer the court to this ruling.

 

I also suggest that Experian for all their complicity in the above make an offer that should be reasonable as compensation for their errors, which has been of great distress, anger and vexation, and has in fact caused me unfounded and unsubstantiated damage.

 

I trust you will act with the necessary speed and not in the timescale of normal complaints, I submit my issues are important ones that must be acted on quickly, the longer this defamatory data remains on my credit file the more damage is done to my character and financial credibility. Yours sincerely

[MAGDA]

Hi Car2403, Isn't it the case that the changes brought about by the 2006 Act apply to agreements entered into after April 2007 only, in which case the judge does have discretion on whether a debt is uneforceable or not. Agreements entered into prior to this fall under the 1974 Act, as per PT2537 post yesterday. Or have I misunderstood this completely? Thanks Magda