Cap1 & CCA return

[foolishgirl]

Sorry - read comments wrong - ignore me!

Edited June 28, 2008 by foolishgirl
Posted on wrong thread

[davefirewalker]

Hi Sarah,

 

I see where you're going here. Surely the whole amount should be covered by a single agreement. If this is not possible ie. part of the advance is for land, then the original agreement should not have been made in the first place, rather two (or several) seperate agreements should have been made. Would this make the original agreement null and void?

 

IMHO

 

Tide

 

No....what you have here is a "multiple" agreement, and it should be denoted as such

 

cca1974.........

 

18 Multiple agreements

 

(1) This section applies to an agreement (a “multiple agreement”) if its terms are such as—

 

(a) to place a part of it within one category of agreement mentioned in this Act, and another part of it within a different category of agreements so mentioned, or within a category of agreement not so mentioned, or

 

(b) to place it, or a part of it, within two or more categories of agreement so mentioned.

 

 

(2) Where a part of an agreement falls within subsection (1), that part shall be treated for the purposes of this Act as a separate agreement.

 

(3) Where an agreement falls within subsection (1)(b), it shall be treated as an agreement in each of the categories in question, and this Act shall apply to it accordingly.

 

(4) Where under subsection (2) a part of a multiple agreement is to be treated as a separate agreement, the multiple agreement shall (with any necessary modifications) be construed accordingly; and any sum payable under the multiple agreement, if not apportioned by the parties, shall for the purposes of proceedings in any court relating to the multiple agreement be apportioned by the court as may be requisite.

 

(5) In the case of an agreement for running-account credit, a term of the agreement allowing the credit limit to be exceeded merely temporarily shall not be treated as a separate agreement or as providing fixed-sum credit in respect of the excess.

 

(6) This Act does not apply to a multiple agreement so far as the agreement relates to goods if under the agreement payments are to be made in respect of the goods in the form of rent (other than a rent-charge) issuing out of land.

 

Its not as simple as that.......(it never is)

 

I think you really need to read the relevant parts of the act and see if any apply to you

 

Dave

[Peterbard]

Would anyone know?

 

Mortgages and Payments to a mortgage which is for land are Exempt from being Regulated by the CCA. ie: if you take a loan from a finance company and part of that loan is to pay off arrears to your mortgage, that part of the loan becomes an exempt part from the cca because it is paying off for land.

 

Question:

 

Should the Loan Agreement Document split up the ' Exempt ' amount from the Regulated amount ( ie: the balance you might have got in cash for other things ) as it is for a different type of credit?

 

 

Thanks

Sarah

 

HI Andew

 

My understanding is that charges on property are covered by the cca as they are part of a determination made in 1987 . Most mortguages were exempt before 2008 because of the 25k limit on the CCA.

There is a different requirememnt for cancellation, and a cooling off period is required as per section 58.

I have reproduced some matereial from the OFT to attempt to clarify.

EXEMPTION 4: LAND TRANSACTIONS

Any d-c-s agreement to finance the purchase of land that requires the debtor to repay the credit and any charges falling within the TCC in four instalments, or less, is exempt.

10 | Regulated and exempt agreements | June 2003

Point to note

A payment which is simply a deposit or down-payment towards the cash price does not count

towards the four payments.

EXEMPTION 5: MORTGAGE LENDING

Certain agreements secured by land mortgages made by a local authority, authorised bank or building society or a body named in an exemption order under section 16(1) of

the Act are exempt. In Scotland the exemption covers certain standard securities in favour of a local authority or a body named in an order and a number of related

agreements. It also covers most mortgage agreements made by building societies before 2 January 1987.

Since 3 May 1988, bodies named in the Exempt Agreements Order under section 16(1) of the Act have been able to provide d-c loans secured by a land mortgage for the purpose of altering, enlarging, repairing or improving a dwelling or business premises.

The exemption applies only if the purchase of the property was either financed or refinanced by the same exempt body or if the work is certified as having been provided by specified bodies, such as local authorities, housing associations, housing-related charities, the National Home Improvement Council or the Northern Ireland Housing

Executive.

In general the exemption is concerned with credit to finance the purchase of, or alterations to, homes or business premises. All local authority credit agreements that

come within the type of agreements described in section 16(2) of the Act are exempt.

Also exempt are agreements by building societies authorised under the Building Societies Act 1986 and banks which are authorised institutions under the Banking Act 1987. Agreements by any other body are exempt only if that body is named, and the type of agreement described, in an exemption order by the Secretary of State

 

Regards

Peter

[mfpa]

Not sure of the distinction between a "mortgage" and a "secured loan" but I have a secured loan for nearly £25k that says it's regulated by the CCA (can't remember which year's CCA but the loan is about 3 or 4 years old)

[MAGDA]

Hi, if a debt has been sold on, can a SAR's request still be sent to the original creditor (owner) of the debt, and are they then legally obliged to respond, or can they just hide behind the fact that the debt has been sold. I am in a situation where the DCA are very uncooperative and just wondered if it would be worth submitting a SAR's to the OC. Thanks, Magda

[foolishgirl]

Yes, you can send SAR to anyone you believe holds any data on you. Just make sure you ask for all data & enclose the fee.

[MAGDA]

thanks foolishgirl, Magda

[Sparkie1723]

Hi, if a debt has been sold on, can a S.A.R - (Subject Access Request)'s request still be sent to the original creditor (owner) of the debt, and are they then legally obliged to respond, or can they just hide behind the fact that the debt has been sold. I am in a situation where the DCA are very uncooperative and just wondered if it would be worth submitting a S.A.R - (Subject Access Request)'s to the OC. Thanks, Magda

 

Hi magda,

the original owner must keep records about you for six years so they have info on you, you have the right to see it all. So SAR them to see what they have got.

 

With regard the debt the DCA has bought the "alleged" debt so to be able to collect it they must have ALL the info about it to be able to prove you owe it...if they haven't hard luck on them.

 

sparke

[justdoit]

Tamadus,

 

I am trying to challenge my creit cards and I hasve read your postings from september 2006, i wonder what was your final outcome.

 

Thanks

[davefirewalker]

Tamadus,

 

I am trying to challenge my creit cards and I hasve read your postings from september 2006, i wonder what was your final outcome.

 

Thanks

 

I dont think Tamadus is a member here anymore

 

Dave

[MAGDA]

Hi magda,

the original owner must keep records about you for six years so they have info on you, you have the right to see it all. So S.A.R - (Subject Access Request) them to see what they have got.

 

With regard the debt the DCA has bought the "alleged" debt so to be able to collect it they must have ALL the info about it to be able to prove you owe it...if they haven't hard luck on them.

 

sparke

 

Thanks Sparkie, the DCA don't seem to have that much at all, as on one account they claim to 'own' I sent a SAR's and they took the £10 but sent very little info in return, just very basic stuff. I have also asked for a copy of the deed of assignment, default notice, etc, but nothing so far. When I initially rang the OC to find out who I should write in to, they said they couldn't access the account and would transfer me to another dept., and guess who was on the other end of the phone - the DCA. they obviously have them on speed dial! Thanks for your help, Magda

[foolishgirl]

Their desks are probably next to one another!

 

Fancy a cup of coffee OC? Oh, thanks a lot DCA. Whoops, just spilt it on this CCA. Never mind, we've got plenty more as standard issue - they'll never know.

[star_scream]

As we know, most agreements are only signed by the debtor. What if we decided to withold payments under 61(1)(a) and we end up in court. The judge then says OK creditor, sign it now. It is then signed, we are given a copy and it now becomes enforceable.

But what if we now cancel it? What happens then?

[MAGDA]

Their desks are probably next to one another!

 

Fancy a cup of coffee OC? Oh, thanks a lot DCA. Whoops, just spilt it on this CCA. Never mind, we've got plenty more as standard issue - they'll never know.

 

yes, I think you've just hit the nail on the head. They've probably got their own forgery dept,where a little man copies all the signatures onto the agreements - much too complicated for them to work a computer!

[davefirewalker]

As we know, most agreements are only signed by the debtor. What if we decided to withold payments under 61(1)(a) and we end up in court. The judge then says OK creditor, sign it now. It is then signed, we are given a copy and it now becomes enforceable.

But what if we now cancel it? What happens then?

 

I think that you would find contract law would take over......in simple terms you have borrowed the money so you will have to pay it back.

 

Dave

[davefirewalker]

Thanks Sparkie, the DCA don't seem to have that much at all, as on one account they claim to 'own' I sent a S.A.R - (Subject Access Request)'s and they took the £10 but sent very little info in return, just very basic stuff. I have also asked for a copy of the deed of assignment, default notice, etc, but nothing so far. When I initially rang the OC to find out who I should write in to, they said they couldn't access the account and would transfer me to another dept., and guess who was on the other end of the phone - the DCA. they obviously have them on speed dial! Thanks for your help, Magda

 

Quite a few DCA's are "inhouse" ie they ARE another department.

 

but as for deed of assignment, they have no legal obligation to show that to you. They can give you a LETTER of assignment, to say that they "own" the debt. Even that is a bit "open to interpretation" as there are two types of assignment ABSOLUTE and EQUITABLE. in one they ABSOLUTELY own the debt and all liabilities, in the other they only own the benefit of the contract. the liabilities still lie with the OC

 

Dave

[tifo]

They can give you a LETTER of assignment, to say that they "own" the debt. Even that is a bit "open to interpretation" as there are two types of assignment ABSOLUTE and EQUITABLE. in one they ABSOLUTELY own the debt and all liabilities, in the other they only own the benefit of the contract. the liabilities still lie with the OC

 

Just to clarify things ...

 

I thought (and i am sure many more people do as well) that an EQUITABLE assignment is when the DCA collect ON BEHALF OF THE OC and don't actually own the debt, therefore they cannot default and sue in their own name. An ABSOLUTE assignment is done under s.136 LoP 1925 and the DCA become the creditor with all benefits, rights and obligations, including liabilities.

 

Then comes the in between which many DCAs use ... they own the rights and benefits but not the obligations and liabilities, yet quote s.136 LoP 1925 under which it is only ABSOLUTE.

 

I'd love to find out that the DCA own the debt but cannot default me as that still lies with the OC ... we could all start sueing them under s.13 Data Protection Act 1998 .... but i don't think it's that simple. But reading the post above, it would seem that when DCAs quote this line, the assignment was EQUITABLE only and hence they should have no right to default and sue.

 

Is it possible to have two creditors ..... one with rights and benefits and one with obligations and liabilities, as DCAs try to tell us?

[MAGDA]

Quite a few DCA's are "inhouse" ie they ARE another department.

 

but as for deed of assignment, they have no legal obligation to show that to you. They can give you a LETTER of assignment, to say that they "own" the debt. Even that is a bit "open to interpretation" as there are two types of assignment ABSOLUTE and EQUITABLE. in one they ABSOLUTELY own the debt and all liabilities, in the other they only own the benefit of the contract. the liabilities still lie with the OC

 

Dave

 

In my case, It is actually a company with a separate address. As far as I am aware the assignment is absolute, as the DCA has taken me to court for several accounts. I have asked to see the deed of assignment as part of the directions in my AQ. I have noticed that some creditors actually do send a copy of the deed as part of a CCA request or SAR's, but I am not sure if this company even have the necessary paperwork to be able to take court action on these accounts as far as some of the requested documents are concerned. This particular crowd are so underhanded that I really take everything they say with a pinch of salt. Magda

[davefirewalker]

Hi tifo....

 

they dont have to assign for a dca to collect on behalf of the OC. most bottom feeding dca's are like this ....the moorcrofts of this world et al

 

Most assignments are the "in between" type as you said, but as they have bought the rights and benefits, I think they can default you (not 100% on this) AS LONG AS THE ORIGINAL DEFAULT IS TAKEN OFF ie not defaulted twice for the same debt. Although with some creditors and dca's even this doesnt seem to matter to them.

 

very few seem to be absolute ( I think I have one )as far as I am aware, but I'm sure that they do exist. I suppose the only way to find out is to ask them.

 

Dave

Edited July 10, 2008 by davefirewalker

[MAGDA]

So if the assignment in my case is not absolute ( as I said before, I have no proof that it is) then they should not be taking me to court?

[tifo]

very few seem to be absolute ( I think I have one )as far as I am aware, but I'm sure that they do exist. I suppose the only way to find out is to ask them.

 

Thanks Dave,

 

The likes of Moorcroft or Mackenzie never say they own it, but Cabot, Lowell, Fredrickson etc all claim to own the rights and benefits but not the obligations and liabilities, and state s.136 LoP 1925 as the guiding legislation on their legal right to ask for money. This would mean either they don't know what that part of the Act actually says about it being absolute, or they try to fool us.

 

But, these 'in betweeners' still default and sue in their own name so i am sure they must know it's absolute, otherwise many of us have a case to have our CCJs removed if the assignment was actually equitable and they misled us and the court.

 

As far as i am aware, there are only two types of assignment where they absolutely own everything or equitably own nothing. I wasn't aware that the rights with benefits and obligations with liabilities could be split between two organisations. I am sure many other members think the same as me.

[davefirewalker]

So if the assignment in my case is not absolute ( as I said before, I have no proof that it is) then they should not be taking me to court?

 

I'm not too clear on this point but I think I heard it said "somewhere" that they can take you to court on behalf of the OC......dont quote me on this....I'll try to find a more fuller answer and get back.

 

Dave

[MAGDA]

I'm not too clear on this point but I think I heard it said "somewhere" that they can take you to court on behalf of the OC......dont quote me on this....I'll try to find a more fuller answer and get back.

 

Dave

 

Thanks Dave:)

[tifo]

From Practical Law

 

ABSOLUTE ASSIGNMENT

 

The usual way of assigning the benefit of any debt or other legal thing in action under section 136 of the Law of Property Act 1925. Under that section, the basic requirements for a legal assignment are as follows:

 

• Only the benefit of an agreement may be assigned.
  
• The assignment must be absolute.
  
• The rights to be assigned must be wholly ascertainable and must not relate to part only of a debt.
  
• The assignment must be in writing and signed under hand by the assignor.
  
• Notice of the assignment must be received by the other party or parties for the assignment to take effect.
  

 

 

EQUITABLE ASSIGNMENT

 

An assignment which does not fulfil the statutory criteria for legal (absolute) assignment. An equitable assignment may be made in one of two ways:

 

• The assignor can inform the assignee that he transfers a right or rights to him.
  
• The assignor can instruct the other party or parties to the agreement to discharge their obligation to the assignee instead of the assignor.
  

Only the benefit of an agreement may be assigned. There is no requirement for written notice to be given or received. The only significant difference between a legal assignment and an equitable assignment is that an equitable assignee often cannot bring an action in its own name against the third party contractor, but must fall back on the rules governing equitable assignments and join the assignor as party to the action.

[tifo]

some good info here, rather than me copy and paste it here :

 

Assignment of rights of action