Cap1 & CCA return

[jax007]

Are there any template letters relating to CCAs on this forum? If so, can someone send me the link please?

 

jax

[foolishgirl]

Do you mean to request a CCA jax?

If so, here's the link - Letter N

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

[jax007]

Thanks FG

 

Don't know why I couldn't find these!

 

Not sure if the one I want is there, though will have a scan through later (am at work just now).

 

I want one where I have RECEIVED the CCA but I consider it's non-compliant, therefore (hopefully) unenforceable.

 

jax

[davefirewalker]

DAVE! BINGO! HALLELUJAH! CRYSTAL!

 

Got it now

 

I will wait and see your letter for dvd. Though I do think, as you say, although the terms are not referred to on the signature page, they are in the T&Cs, which are most probably on the back of the application form, making this particular one a properly executed agreement. I'm sure dvd's is the same.

 

Anyway, it's gotta be worth the price of a stamp and worse that can happen is having to pay the debt. Still there's always the charges ;-)

 

Thanks again Dave

jax

 

Jax & DVD try this..........

 

edit if you wish

 

Dear Sir/Madam

 

Re: − Account/Reference Number nnnnnnnnnnnnnnnnnnnnn

 

On the dd/mm/yyyy I requested a copy of the agreement relating to this account. The time specified by law for such a request is 12 working days. The twelve working days expired on dd/mm/yyyy. You then have a further month before committing an offence

 

You have been in default under the Consumer Credit Act 1974 since dd/mm/yyyy, and since dd/mm/yyyy you have committed an offence.

The only documentation that you have supplied is a copy of an application / agreement hybrid form, and some generic terms! That don't appear to be linked to that document. This does not meet with the requirements of the Act.

 

The document that you are obliged to send me is a true copy of the executed agreement that contained all of the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself.

 

The application form you have supplied does not contain the required prescribed terms, which are laid out in schedule 6 of the “Consumer Credit (agreements) Regulations 1983”. The minimum requirements of sch 6 of the 1983 regs are......

 

1 Rate of any interest applied to the agreement

2 repayment schedule

3 Credit limit or statement that it will be determined or that there is no credit limit.

 

These are noticeable by there absence, and it is my belief that the agreement is unenforceable via S65 and S127(3) of The Consumer Credit Act 1974.

 

You will find that in several cases in the high courts especially (Wilson v Hurstanger para 9-11) it has been held that the prescribed terms must be within the signature document and not in any other document referred to.

 

Whilst in default you should cease all collection activity and all reporting to the credit reference Agencies. If you have not already done so I now demand that you cease from processing and not to start any new processing of my data, as any further processing of my data would be inaccurate and contrary to the Data Protection Act 1998.

 

I make this statutory demand under S10 of the Data Protection Act 1998.

 

I now require that you either provide me with a copy of the correct document, or your written acknowledgement that you are unable to do so.

 

I await your response

 

Yours Sincerely

Edited September 5, 2008 by davefirewalker

[Guest dvdriley]

I have cca RBS for a credit card pre 2007 in a limited company name with me as guarantor. It is my company with ltd status. RBS say " they do not hold a credit agreement as it is a limited ciompany." cca only applies to individuals... are they right?

[davefirewalker]

I have cca RBS for a credit card pre 2007 in a limited company name with me as guarantor. It is my company with ltd status. RBS say " they do not hold a credit agreement as it is a limited ciompany." cca only applies to individuals... are they right?

 

yes

 

A Consumer is an individual, a Ltd. company is (can be ) a multiple entity

 

Dave

Edited September 5, 2008 by davefirewalker

[MAGDA]

Was just reading up on Prof Goode, and came across a consumer lawyer who was reviewing useful references for consumer law. He said that although of course Goode is a fantastic reference, unfortunately because it is so long (over 5 loose leaf folders) not to mention expensive, it can be difficult to find the reference you need. He recommended Prof Paul Dobson's Sale of Goods and Consumer Credit, which he said he uses all the time. So might be worth having a look at, as an alternative to Goode maybe.

[davefirewalker]

Was just reading up on Prof Goode, and came across a consumer lawyer who was reviewing useful references for consumer law. He said that although of course Goode is a fantastic reference, unfortunately because it is so long (over 5 loose leaf folders) not to mention expensive, it can be difficult to find the reference you need. He recommended Prof Paul Dobson's Sale of Goods and Consumer Credit, which he said he uses all the time. So might be worth having a look at, as an alternative to Goode maybe.

 

Thanks for the info.....will have a look

 

Dave

[jax007]

Dear Sir/Madam

 

Re: − Account/Reference Number nnnnnnnnnnnnnnnnnnnnn

 

On the dd/mm/yyyy I requested a copy of the agreement relating to this account. The time specified by law for such a request is 12 working days. The twelve working days expired on dd/mm/yyyy. You then have a further month before committing an offence

 

You have been in default under the Consumer Credit Act 1974 since dd/mm/yyyy, and since dd/mm/yyyy you have committed an offence.

The only documentation that you have supplied is a copy of an application / agreement hybrid form, and some generic terms! That don't appear to be linked to that document. This does not meet with the requirements of the Act.

 

The document that you are obliged to send me is a true copy of the executed agreement that contained all of the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself.

 

The application form you have supplied does not contain the required prescribed terms, which are laid out in schedule 6 of the “Consumer Credit (agreements) Regulations 1983”. The minimum requirements of sch 6 of the 1983 regs are......

 

1 Rate of any interest applied to the agreement

2 repayment schedule

3 Credit limit or statement that it will be determined or that there is no credit limit.

 

These are noticeable by there absence, and it is my belief that the agreement is unenforceable via S65 and S127(3) of The Consumer Credit Act 1974.

 

You will find that in several cases in the high courts especially (Wilson v Hurstanger para 9-11) it has been held that the prescribed terms must be within the signature document and not in any other document referred to.

 

Whilst in default you should cease all collection activity and all reporting to the credit reference Agencies. If you have not already done so I now demand that you cease from processing and not to start any new processing of my data, as any further processing of my data would be inaccurate and contrary to the Data Protection Act 1998.

 

I make this statutory demand under S10 of the Data Protection Act 1998.

 

I now require that you either provide me with a copy of the correct document, or your written acknowledgement that you are unable to do so.

 

I await your response

 

Yours faithfully (minor edit!)

 

Dave

 

Thanks a bunch ... will give it a go and keep you posted.

jax

[make them aktiv runners]

An assignee falls outside the definition of a 'Creditor' unless they have the liability of the creditor. The liability of a creditor cannot pass to another through assignment. An assignee is therefore an 'owner' ad defined at s189 of the act, and not a 'creditor'.

No doubt you will require confirmation of this, and I would refer you to the work of the gentleman considered the authority upon the act in question.

Goode Consumer Credit : Law and Practise confirms at IIB[5.369]

"It should be remembered that the duties of the original creditor 'under the agreement' may only pass to another person by operation of law, and not by assignment."

 

This is a quote from Goode in relation to the "rights and duties" in the CCA

 

'Literally construed, this part of the definition would be largely

nugatory, since as a matter of contract law an assignment transfers

rights but does not relieve the assignor of his duties to the other

contracting party or entitle that party to enforce such duties against the

assignee. It is thought that this is a case where the court would construe "and" as "or", thus maintaining the sense of the definition as more accurately provided in s 58(1) of the Hire-Purchase Act 1965'

 

I cannot see them telling TS the part highlighted in bold. Basically Goode does agree that only 'rights' can be assigned, however Goode also suggests that the courts will agree S189 is a drafting error and to keep in line with the Hire-purchase definitions upon which they rely, the words 'rights and duties' will be interpretted as 'rights or duties', making them creditor after all.

[foolishgirl]

That looks more sensible Aktiv - thanks for the research & clarification.

[pt2537]

The problem i have with this is, in the House of Lords cases and those before the Court of Appeal, if this definition is followed, then it would have been simple for First County Trust for example to recover their money against Mrs Wilson as all they would needed to do was simply assign the debt to a third party thus removing it from the cover of the CCA

 

 

this is an absurdity and cannot be correct, a regulated (and therefore protected) agreement cannot become unregulated and unprotected simply by assigning the debt, its nonsense

[noomill060]

It is a nonsense.

 

Its like them being able to hire a thug to throw a brick through someone's front window, and say-

 

"nothing to with me, officer"

Edited September 6, 2008 by noomill060

[noomill060]

But the Establishment has always claimed a right to hire mercenaries to do their dirty work.

 

Plausible deniability.

[make them aktiv runners]

PT, I do not read is as making the agreement unregulated. I read Goode as saying the creditor in the strict sense of the CCA wording remains unchanged, however, if the word "and" was to be challenged by a consumer/TS/OFT in court it would be construed as saying "or" making the DCA the creditor under CCA.

[MAGDA]

PT, I do not read is as making the agreement unregulated. I read Goode as saying the creditor in the strict sense of the CCA wording remains unchanged, however, if the word "and" was to be challenged by a consumer/TS/OFT in court it would be construed as saying "or" making the DCA the creditor under CCA.

 

Thanks Aktiv for taking the trouble to find out a bit more about this. At least I now have something positive go go back to TS with.Many thanks,Magda

[Suetonius]

I am disappointed that after so long, the debtate in relation to the assignment of rights and duties continues..

 

Initially, I would like to take this opportunity to correct a common misunderstanding.

 

They try to hide behind section 136 the Law of Property Act 1925 but the CCA overrides that Act.

 

Link cannot have their cake and eat it!

If Link are trying to weasel the LoP as the purchase mechanism; all contractual terms, means rights and responsibilities went with it.If Link do own the debt, then they have to face the consequences... and no matter how they claim to have purchased it, The Consumer Credit Act 1974 over rules it!

 

TS must be living in cloud cuckoo land.Example:If you buy a car you buy the whole thing you don't buy it without the engine.As for operation of law why do they hark on about S136 LOP "operation of law"...Fancy TS falling for this.

 

Contrary to the above posts (sorry to pick on your posts Angry Cat)

 

The Consumer Credit Act 1974/2006 does not override section 136 of the Law of Property Act 1925. Section 136 of The Law of Property Act 1925 actually outlines the requirements to achieve an absolute assignment. This in turn confirms the name in which legal action can be instigated.

 

This can actually be helpful to establish if a DCA is permitted to insitgate proceedings in their own name. I wouldn't be so quick to write of the LOP as it can be very helpful. For the avoidance of doubt, nowhere within the CCA 1974/2006 is there anything to overrule or correct this particular section of the Law of Property Act 1925.

 

The DCA Argument

 

Link Financial State:

 

"To reiterate our policy for your consideration on this point, an assignee can neither comply with nor breach a s77-79 Consumer Credit Act 1974 request as the act states that such demands are the remit of the 'Creditor'. Schedule 1 for s167 of the Act confirms a s77-79 breach as a "Failure of creditor under fixed-sum credit agreement to supply copies of documents etc" as a Level 4 offence.

 

An assignee falls outside the definition of a 'Creditor' unless they have the liability of the creditor. The liability of a creditor cannot pass to another through assignment. An assignee is therefore an 'owner' ad defined at s189 of the act, and not a 'creditor'.

 

 

No doubt you will require confirmation of this, and I would refer you to the work of the gentleman considered the authority upon the act in question."

 

Consumer Credit Act 1974

 

 

In common with most DCA’s Link Financial choose to misread the Consumer Credit Act 1974 and 2006

 

 

Link Financial say:

 

“An assignee falls outside the definition of a 'Creditor' unless they have the liability of the creditor. The liability of a creditor cannot pass to another through assignment. An assignee is therefore an 'owner' ad defined at s189 of the act, and not a 'creditor'.”

 

It is true that liabilities cannot be transferred via assignment. However, the Consumer Credit Act 1974 s189, does not mention liabilities.

 

A duty is a responsbility to perform an action. Whereas a Liability is usually in relation to a possible financial loss.

 

Case Law, has already established that liabilities cannot be assigned.

 

 

“As Lord Browne-Wilkinson stated in one of the leading cases on this subject, “It is trite law that it is in any event impossible to assign the contract as a whole, including both burden and benefit. The burden of a contract can never be assigned without the consent of the other party to the contract, in which case such consent will give rise to a novation.” Linden Gardens Trust Ltd –v- Lenesta Sludge Disposals Ltd (1994) 1 AC 85, 103”

 

 

Novation does not take place in relation to DCA's as there is no new contract between Debtor and the DCA. (I would ask people not to be distracted by Novation)

 

Without being distracted by Novation, the word used in the act is Duties.

 

“ creditor “ means the person providing credit under a consumer credit agreement or the person to whom his rights and duties under the agreement have passed by assignment or operation of law, and in relation to a prospective consumer credit agreement, includes the prospective creditor;

 

Link Financial also say: .

 

“An assignee is therefore an 'owner' ad defined at s189 of the act, and not a 'creditor'”

 

However, the argument that a DCA is an owner rather than a creditor as defined by the CCA is flawed. I say this because:

 

‘ owner” means a person who bails or (in Scotland) hires out goods under a consumer hire agreement or the person to whom his rights and duties under the agreement have passed by assignment or operation of law, and in relation to a prospective consumer hire agreement, includes the prospective bailor or person from whom the goods are to be hired;

 

Obviously in relation to mortgage, personal loan and credit card debt there is no consumer hire agreement. As Link Financial should be perfectly aware a consumer hire agreement is defined by section 15 of the CCA:

 

15.—(1) A consumer hire agreement is an agreement made by a person with an

individual (the " hirer ") for the bailment or (in Scotland) the hiring of goods to the

hirer, being an agreement which—

(a) is not a hire-purchase agreement, and

(b) is capable of subsisting for more than three months, and

© does not require the hirer to make payments exceeding £5,000.

(2) A consumer hire agreement is a regulated agreement if it is not an exempt agreement.

 

Consumer Credit Act 2006

 

Link Financial have a Consumer Credit Licence (No. 446835). By definition this must mean that Link Financial is a Consumer Credit Business.

 

The Consumer Credit Act 2006 states:

 

Definitions of “consumer credit business” and “consumer hire business”

In section 189(1) of the 1974 Act (definitions)—

(a) for the definition of “consumer credit business” substitute—

“‘consumer credit business’ means any business being carried on by a person so far as it comprises or relates to—

(a) the provision of credit by him, or

(b) otherwise his being a creditor,

under regulated consumer credit agreements;”

 

Former Secretary for State Industry

 

Mr. Gerry Sutcliffe the Under-Secretary of State for Trade and Industry, said:

 

"There is a problem with the existing coverage of the licensing regime. It is not clear that businesses that purchase a portfolio of existing loans require a licence. The Department of Trade and Industry, the Office of Fair Trading and advice bodies have received complaints about businesses that purchase existing debts. Consumers are often confused about who is responsible for the contract and what controls there are on those businesses.”

 

He continues...

 

 

“Hon. Members will see that the definition of consumer credit business now covers businesses relating to the provision of credit by a person, or otherwise being a creditor. A creditor is a person who provides credit under an agreement or a person to whom the rights and duties under the agreement have passed by assignment or operation of the law. The new definition ensures that businesses will need a licence even if they are no longer making new agreements. They will need a licence if they only administer existing agreements by taking over the rights and duties of the creditor. The same logic applies for the new definition of consumer hire business.”

 

Mr. Gerry Sutcliffe the Under-Secretary of State for Trade and Industry, also states:

 

“Under clause 23, a debt purchaser who became a creditor or owner when he purchased the loan would require a licence.”

 

 

Source: House of Commons Standing Committee D Tuesday 28 June 2005.

 

 

Debt Buyers & Sellers Group

 

 

Dr Roger Lucas of the Lewis Group and of the Debt Buyers and Sellers Group (of which is link financial is a member) is quoted by Credit Today Online Magazine as saying:

 

"When we take assignment of debts we stand in the place of the original creditor so it’s only right we should have the same obligations and rights."

 

Case Law

 

UNADKAT & Co (ACCOUNTANTS) LTD And ASHOK BHARDWAJ .V. The TREASURY SOLICITOR [2006] EWHC 2785 (Ch) paragraph 2

 

"2. Unadkhat & Co (Accountants) Ltd ("the Accountants") were (by virtue of a debt assignment) a creditor of Isher for some £25,000. The Accountants took the view that the liquidator of Isher ought to have considered taking proceedings against Mr Sandhu and possibly Mr Mehta arising from the manner in which Isher's insurance claim had been handled. The dissolution of Isher prevented the pursuit of such a remedy. On the 21st December 2005 the Accountants commence proceedings against Mr Bhardwaj and the Treasury Solicitor seeking (a) a declaration that the dissolution of Isher be declared void under section 651 of the Companies Act 1985 (b) the appointment of David Bottomley as liquidator and © an order that the period between the dissolution of Isher and the date of its restoration should not count for the purposes of limitation in relation to any claim by the company or its liquidator against any officer or employee of the Company arising out of their conduct during the period prior to the 5th January 2001."

 

In conclusion,

 

If it is an equitable assignment the Bank / Mortgage Provider / Credit Card Issuer remains the creditor for the purposes of the CCA.

 

If it is an absolute assignment the DCA becomes the creditor for the purposes of the CCA.

 

And this is why the LOP 1925 is so important and should not be brushed aside !!

[angry cat]

No Problem Suetonious!

 

I have already provided MAGDA with the relevant case law:

 

UNADKAT & Co (Accountants) Ltd. v Bhardwaj & Anor [2006] EWHC 2785 (Ch) (11 October 2006)

 

I believe that TS (without providing documentary evidence) have confirmed to MAGDA that, the assignment in question, is an absolute assignment(?)

 

Angry Cat

[Having_A_Knightmare]

Was just reading up on Prof Goode, and came across a consumer lawyer who was reviewing useful references for consumer law. He said that although of course Goode is a fantastic reference, unfortunately because it is so long (over 5 loose leaf folders) not to mention expensive, it can be difficult to find the reference you need. He recommended Prof Paul Dobson's Sale of Goods and Consumer Credit, which he said he uses all the time. So might be worth having a look at, as an alternative to Goode maybe.

 

Just ordered this on Amazon.

Was only £12.00 plus P&P

 

HAK

[pt2537]

for those interested in Novation

 

1036. Meaning of 'novation'.

 

Novation has been judicially defined as being where there is a contract in existence and some new contract is substituted for

it, either between the same parties or different parties, the consideration usually being the discharge of the old contract1.

However, where the new contract modifies the old contract between the same parties, this has come to be termed a variation2;

and the expression 'novation' has more recently tended to be used rather for the situation where the acts to be performed

under the old contract remain the same, but are to be performed by different parties3. Hence, novation requires a subsequent

binding contract4 and the consent of all parties5. Where the new party takes over liabilities formerly resting on one of the

original parties, it is a question of construction whether he takes them over with or without benefit of time which has run

under the statutory rules of limitation6.

Novation should be distinguished from assignment. At common law7 novation was the only known method of assigning a

contractual right. In modern law, contractual rights, but not liabilities8, may, as a general rule, be transferred by assignment

without the consent of the promisor9. Novation, however, is an act whereby, with the consent of all parties10, a new contract

is substituted for an existing contract and the latter discharged11.

There would appear to be another distinct line of authority to be distinguished from novation that, where A holds funds for B

and is directed by B to pay C, and A so notifies C, C may sue A for the fund in the event of default even though he has given

no consideration12.

 

1 Scarf v Jardine (1882) 7 App Cas 345 at 351, HL.

 

2 Scarf v Jardine (1882) 7 App Cas 345 at 351, HL, per Lord Selborne LC. This kind of novation which concerns the two original contracting

parties only, is considered in para 1024 ante.

 

3 European Assurance Society, Re Miller's Case (1876) 3 ChD 391, CA; Scarf v Jardine (1882) 7 App Cas 345, HL; Re Head (No 2) [1894] 2

Ch 236, CA; Chatsworth Investments Ltd v Cussins (Contractors) Ltd [1969] 1 All ER 143, [1969] 1 WLR 1, CA; and see the examples cited in

para 1037 et seq post.

 

4 See para 1041 post. As to the form of a novation see para 1040 post.

 

5 See para 1042 post.

 

6 Chatsworth Investments Ltd v Cussins (Contractors) Ltd [1969] 1 All ER 143, [1969] 1 WLR 1, CA. As to limitation see generally

LIMITATION OF ACTIONS.

 

7 But not in equity (see CHOSES IN ACTION vol 6 (2003 Reissue) para 26 et seq); nor now by statute (see CHOSES IN ACTION vol 6 (2003

Reissue) paras 9-25).

 

8 See para 757 ante.

 

9 As to assignment of contractual rights in general see para 757 ante; and CHOSES IN ACTION vol 6 (2003 Reissue) para 9 et seq.

 

10 See para 1042 post.

 

11 See paras 1040-1041 post.

 

12 See Shamia v Joory [1958] 1 QB 448, [1958] 1 All ER 111.

 

[MAGDA]

"In conclusion,

 

If it is an equitable assignment the Bank / Mortgage Provider / Credit Card Issuer remains the creditor for the purposes of the CCA.

 

If it is an absolute assignment the DCA becomes the creditor for the purposes of the CCA"

 

 

Thank you Suetonius for such a detailed response. It provides just the answers I needed. Many thanks Magda

[Suetonius]

"In conclusion,

 

If it is an equitable assignment the Bank / Mortgage Provider / Credit Card Issuer remains the creditor for the purposes of the CCA.

 

If it is an absolute assignment the DCA becomes the creditor for the purposes of the CCA"

 

 

Thank you Suetonius for such a detailed response. It provides just the answers I needed. Many thanks Magda

 

I have based the above purely (and this is my own personal opinion) on the difference between the need for involvement of the original creditor and is only intended as a guide. The is no text that I am aware of that says that duties are not assigned via equity assignment. However, if it went to Court both the DCA would be co-claimants whereas if it was absolute assignment the DCA would be the sole claimant or defendent depending on the circumstances;)

 

Just remember it is not always clear cut. Sadly there is a large grey area, until such a time it is fully clarified in court

 

Both the original creditor and the dca will go to great lengths to say that they are not responsible for the duties under the CCA

Edited September 6, 2008 by Suetonius

[jster$$$]

Maybe a stupid question but i will ask anyway!If someone has a hire purchase agreement which was set up with company A who then sell a bulk load of these agreements to company B only a few months after they were signed.Company A don't exsist anymore and company B say they don't hold the burden part of the agreement????Now whats stopping any company miss-selling insurances or miss-selling an agreement and then selling it to another company the next day and closing down?Who would then be liable for a court claim?

[MAGDA]

I have based the above purely on the difference between the need for involvement of the original creditor and is only intended as a guide.

 

Just remember it is not always clear cut. Sadly there is a large grey area, until such a time it is fully clarified in court

 

Both the original creditor and the dca will go to great lengths to say that they are not responsible for the duties under the CCA

 

Yes, I have found this to be the case. Several of my (Link) accounts are subject to court claims, and Link has affirmed this belief (that they do not have the duties) to the court, so at some point or other, I think it will pehaps be debated in court and will be interesting to find out the judge's interpretation of this. I understand what you say that this is not clear cut, but at least I do have the information you provided to place a clearer perspective on this. Many thanks, Magda

[Suetonius]

Maybe a stupid question but i will ask anyway!If someone has a hire purchase agreement which was set up with company A who then sell a bulk load of these agreements to company B only a few months after they were signed.Company A don't exsist anymore and company B say they don't hold the burden part of the agreement????Now whats stopping any company miss-selling insurances or miss-selling an agreement and then selling it to another company the next day and closing down?Who would then be liable for a court claim?

 

Not a stupid question.

 

The easiest way to think about it is Woolwich and Barclays. If you were sold a personal loan with ppi by Woolwich (which no longer exisits) you would now claim against Barclays. Exactly the same with Bank Charges.