Jump to content


Cap1 & CCA return


tamadus
 Share

style="text-align: center;">  

Thread Locked

because no one has posted on it for the last 3933 days.

If you need to add something to this thread then

 

Please click the "Report " link

 

at the bottom of one of the posts.

 

If you want to post a new story then

Please

Start your own new thread

That way you will attract more attention to your story and get more visitors and more help 

 

Thanks

Recommended Posts

No, they do have to have your signature.

 

My understanding is that if they have a form that is complete and correct in every way, but doesn't bear your signature, then it is entirely unenforceable.

 

If they have one that has everything compliant on it, plus your signature, but they haven't signed it, the courts would not have any issue with just telling them to sign thus enforceing the agreement.

 

If they just turn up in court with a blank form, they should be stuffed, as all they have then is their word that you did sign the form - and we all know that may well not have happened.

 

At least that's how I've inferred the info on here!

 

Lexis:)

Time flies like an arrow...

Fruit flies like a banana.

Link to post
Share on other sites

  • Replies 17.4k
  • Created
  • Last Reply

Top Posters In This Topic

Top Posters In This Topic

Posted Images

If they have one that has everything compliant on it, plus your signature, but they haven't signed it, the courts would not have any issue with just telling them to sign thus enforcing the agreement.

 

I think a good Defence Barrister could well rip that plan to shreds, i.e. if the Agreement has been Defaulted and Terminated. IOW, there's clear evidence that the Agreement was never executed by the bank, and clear evidence that whatever the Agreement was, it has now been Terminated.

 

This would also be a major problem for them if they try to pitch up in Court with a Copy! Apart from all of the Original Agreement being needed in Court issues, how can they Sign a Copy? If the Original has been destroyed, what good would it do them to try and Sign a Microfiche or Printed Copy of that.

 

Any fair minded Judge should have a major problem with any attempt to remedy this by Signing a Copy. Executing something after Terminaton makes no logical sense even if you had the Original, but trying to Execute a Copy after Termination is just deeply suspect.

 

It is one of those minor points, but it would be wrong IMHO to allow them to Sign a Copy, or an Original after Termination.

 

Judge Lottery kicks in again, so on the day, it would all boil down to that, and how well you argue the issue.

 

Cheers,

BRW

Link to post
Share on other sites

Hi BRW

 

Excuse my ignorance - what's IOW (the only use I have for that abbreiviation is Isle of Wight, and I'm fairly sure that's not what you mean:D)

 

I think I may not have read far enough back on this one. I thought we were just talking about a standard non-compliant CCA, as opposed to something that's been defaulted/terminated. My fault for not reading back properly!

 

When I said if everything is compliant and has your sig, I meant if it's all correct and the original document - sorry I wasn't clear on that. Obviously there's going to be issues if they turn up with an unsigned by them/you/both copy (or a copy at all, I would hope), as it could be Blue Petered superbly before hitting the court room.

 

Does that make any difference to what I said, or am I still talking pants:confused:

 

Lexis:)

Time flies like an arrow...

Fruit flies like a banana.

Link to post
Share on other sites

Excuse my ignorance - what's IOW

 

Sorry, I try not to use abbreviations, but some slip out.

 

IOW = In Other Words.

 

What you are saying is fine, I was just adding to your comments. This is a great Thread, but it has grown so large that it is now hard to read it all.

 

I think it would be good if someone could sit down, read it all, then start a new Thread with the key points raised. But that is one hell of a task for someone!

 

It also explains why Sir Roy Goode's book on the issue costs £1,000 a copy!

 

Cheers,

BRW

Link to post
Share on other sites

 

It also explains why Sir Roy Goode's book on the issue costs £1,000 a copy!

 

Cheers,

BRW

 

Wonder how much Prof. Bennion picked up for his original? Seeing as he disagrees with just about everything Goode says about his Act it should be twice that! :D

Link to post
Share on other sites

Wonder how much Prof. Bennion picked up for his original? Seeing as he disagrees with just about everything Goode says about his Act it should be twice that!

 

It could help us all if Francis Bennion could write a big book of his own to explain his Act for the bankers! I bet he is not happy at the way this pro-bank Government have pulled the original Act apart, bit by bit.

 

That's assuming he has not written a big book! If he has, do tell me!

 

Cheers,

BRW

Link to post
Share on other sites

Sorry, I try not to use abbreviations, but some slip out.

 

IOW = In Other Words. Thanks:D

 

 

 

It also explains why Sir Roy Goode's book on the issue costs £1,000 a copy!

 

Cheers,

BRW

 

Seriously????? And I thought £55 for my belgian chocolates book was a lot!

Time flies like an arrow...

Fruit flies like a banana.

Link to post
Share on other sites

And I thought £55 for my belgian chocolates book was a lot!

 

Spooky, and this is totally off topic, but owing to a past Business I used to have, I'm a fully trained Chocolatier would you believe. I suspect the book you have was by Roger Greet? Better not go into that on this Thread however!

 

Cheers,

BRW

Link to post
Share on other sites

Spooky, and this is totally off topic, but owing to a past Business I used to have, I'm a fully trained Chocolatier would you believe. I suspect the book you have was by Roger Greet? Better not go into that on this Thread however!

 

Cheers,

BRW

 

Very spooky, yes it is:eek: And how cool are you?!! - mine's only a hobby (time/space/money constraints!)

 

And thank god I don't live with you, I'd be the size of a house:D

 

I'll leave that one now as you're right, it's not exactly CCA's...

 

Certainly more fun though:D

Time flies like an arrow...

Fruit flies like a banana.

Link to post
Share on other sites

hey you two, BRW and lexis did you mention Chocolate?? lol

 

need a new thread hahahahha

 

there is me thinking more info on cca and i get chocolate yum yum hahahha

 

 

see ya laters ciao maz

Im happy to help with support and my own thoughts, but if I offer any thoughts to your problems please take it as from my life experience only and not of any legal standing. Always take further advice from the legal experts in your final action.:)

 

my new motto is,,,",Taking back control of your life and home - such peace is priceless"

 

This is all due to truecall device , have a serious peek at this you will be thankful like I am x laters angel :D

Link to post
Share on other sites

If they take you to Court and win, which the above suggests, you will have to pay court fees and costs on top of the debt.

 

Right, I have issue with this. The agreement is not properly executed as it does not have a creditors signature as per s61(1)(a).

 

They can only "enforce" the agreement by on order of the Court (s65).

 

s127 refers to and relates to "an application for an enforcement order".

 

In my view, when an agreement has been improperly executed, a creditor cannot simply terminate and then sue for any debt claiming County Court scale costs related to the sum of that debt. They must make an application for enforcement which would carry far lower legal costs than a debt claim for thousands of pounds.

 

Consider this conundrum; if a creditor terminates an improperly executed agreement does a debt therefore exist? The answer has to be NO. Clearly, no debt exists until the Court has aproved enforcement of the agreement. But how then can the Court enforce an agreement that has been terminated and no longer exists?

 

In my view, the correct procedure would be for a creditor to apply for enforcement of an agreement WHILE THE AGREEMENT STILL EXISTS. Only after declared enforceable by the Court can the creditor issue a Default and Terminate.

 

Also, why should a respondant be held liable for legal costs which a creditor has incurred solely due to their failure to properly execute an agreement? They were the author of the situation and should clearly bear their own costs, even if a Court decides to fully enforce.

Link to post
Share on other sites

no not at all, i am refering to the point where the other side refuses to disclose docs that you need to assess if you have a legitimate claim

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/147432-high-court-judgement-rankines-7.html#post1766169

 

check this post, it explains a little better

 

 

 

 

Yes, I see now!

 

 

I should of known better! This is what I did recently in my case!:roll:

 

 

Jeff.

Link to post
Share on other sites

Hi all,

 

Default Notices (again)

 

Where they have to state what is required to rectify the agreement, do they have to state the arrears amount (e.g: 6 montly payments of £100 = £600 required to rectify) or can they legally state the total balance as the amount required to rectify?

 

Cheersh!

omnia praesumuntur legitime facta donec probetur in contrarium

 

 

Please note: I am not a member of the legal profession, all advice given is purely my opinion, if in doubt consult a professional

Link to post
Share on other sites

Hello ncf355!

 

The clue is contained within s87(1) of the Act:

 

87.

Need for default notice.

 

(1) Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice ”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,—

 

(a) to terminate the agreement, or

 

(b) to demand **earlier** payment of any sum, or

 

© to recover possession of any goods or land, or

 

(d) to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or

 

(e) to enforce any security.

 

If you think this through, the Agreement will require you to Pay them something as it runs, and those Payments are Payable as they fall due. Let's say you are required to Pay them £100 a Month.

 

However, the actual Balance of the Account is not due, as you are busy Paying that off. Let's say that is £5,000.00.

 

If they feel you have ratted on the deal, i.e. you have failed to Pay them the regular amounts expected as they fell due, then the Creditor is allowed to chase you up for these due Payments.

 

To do this, they must follow the required steps as outlined in s87 and s88, and issue you with a Default Notice making it clear what you have done wrong so far, i.e. you've missed the last 3x £100 Monthly Payments for example, so you owe £300.

 

What you owe at that point is just the Arrears of £300, the rest of the Balance is not due at that point, although you do owe it to them, it's just something that is payable in the future (that's assuming you can find £300, kiss and make up, and the Agreement carries on again as if nothing had happened).

 

Thus, the Default Notice is a warning to say what you must do to put things right. It must state what you have done wrong very accurately. It must also be set out in the Prescribed Form. It must also say what you need to do to correct the default, and finally it must give you 14 clear Days from Date of Service to do what they ask. That would be from the Day they hand it to you, or 2 Days after Posting if it's sent via 1st Class Post and they can prove when they sent it.

 

Let's assume now that they want Arrears of £300. If you don't Pay that within the Default Period then, once you go past that, they can Terminate the Agreement, and only then seek early Payment of the rest, i.e. the Arrears and the Balance that was otherwise not due until they Defaulted and Terminated.

 

I believe they must get this right, or else they risk Terminating the Agreement unlawfully, and thus they throw away their Right to ask for early Payment of an amount that was only ever due in the future. Once the Agreement is Terminated, then that should be that. They should not be allowed to turn back time to have another go at getting the Default Notice and Termination right.

 

So, if you follow this, they should not ask for more in the Default than you were required to Pay at the time the Default was issued. That would be the Arrears you have failed to Pay on time, not the Balance still to Pay in the future.

 

Sadly, too many Creditors are using Defaults (the thing that happens after the Default Notice) as a threat, and as an unofficial County Court Judgement.

 

They are using the Threat of a Default as a means to extract Payment. This is clearly not acceptable, because they are abusing the lawful purpose of a Default. Section 87 and s88 make it quite clear what a Default Notice and Default are intended for, and it is plain that these were never intended by Parliament to be used as an arbitrary punishment to replace a proper Hearing in a County Court. A Default Notice and Default are required stages that must be followed should a Regulated Agreement require Lawful Termination once a Consumer is in default of the agreed terms and has been unable to remedy the default to negate the Default Notice. These steps are required to allow the Creditor to seek early Payment of the balance of the alleged Debt, they were never intended to be used as convenient punishments to trash your Credit for 6 Years!

 

I hope this helps.

 

Cheers,

BRW

Link to post
Share on other sites

Banker, if I want to find out if the creditor (claimant) has a copy of the NOD issued by the OC, or is able to get one, is there any cpr rule that I can use to force them to disclose this. This is relevant to two court claims currently underway, and so far, the claimant has not produced any default, just made a vague reference that a DN was sent by the OC. No specific date or proof provided. I don't want to leave things, so that they can suddenly produce the DN in court, but would like a chance to check its validity beforehand. I know that some of the routes to force disclosure apply much earlier on in the claim, so not sure what my options are now. Many thanks, Magda

Link to post
Share on other sites

Fascinating! That makes two cock ups instead of just one in a Default Notice that First Direct have sent me!

 

On a related vein, Mrs VS received a document from MBNA headed "Important Default Notification" that I initially mistook for a Default Notice (which I presume was the idea). Is the consensus that this is a breach of the OFT Guideline relating to misleading looking documents and possibly even a breach of CPUTR?

Link to post
Share on other sites

Hello VS!

 

On a related vein, Mrs VS received a document from MBNA headed "Important Default Notification" that I initially mistook for a Default Notice (which I presume was the idea). Is the consensus that this is a breach of the OFT Guideline relating to misleading looking documents and possibly even a breach of CPUTR?

 

Looks that way to me too!

 

Magda...

 

Banker, if I want to find out if the creditor (claimant) has a copy of the NOD issued by the OC, or is able to get one, is there any cpr rule that I can use to force them to disclose this. This is relevant to two court claims currently underway, and so far, the claimant has not produced any default, just made a vague reference that a DN was sent by the OC. No specific date or proof provided. I don't want to leave things, so that they can suddenly produce the DN in court, but would like a chance to check its validity beforehand. I know that some of the routes to force disclosure apply much earlier on in the claim, so not sure what my options are now. Many thanks, Magda

 

If you are at the Court stage, I regret I can't advise on that with any Authority, you'd need to run that past Paul/PT2537 or Surfaceagentx20.

 

But if you are not yet at the Court stage, from what you say, my suggestion would be to S.A.R - (Subject Access Request) the Original Creditor who issued the Default Notice.

 

Cheers,

BRW

Edited by banker_rhymes_with
Fat Fingers!
Link to post
Share on other sites

BRW,

 

thankyou

 

As ever, an excellent explanation

omnia praesumuntur legitime facta donec probetur in contrarium

 

 

Please note: I am not a member of the legal profession, all advice given is purely my opinion, if in doubt consult a professional

Link to post
Share on other sites

Hello VS!

 

 

 

Looks that way to me too!

 

Magda...

 

 

 

If you are at the Court stage, I regret I can't advise on that with any Authority, you'd need to run that past Paul/PT2537 or Surfaceagentx20.

 

But if you are not yet at the Court stagem, from what you say, my suggestion would be to S.A.R - (Subject Access Request) the Original Creditor who issued the Default Notice.

 

Cheers,

BRW

 

Many thanks BRW. I am at the court stage and they've been ordered to respond to my defence, which they have now done, but no specific details relating to DN. Have asked this question on another thread also, so hopefully, might hear back from Surfaceagent on that one. Cheers, Magda

Link to post
Share on other sites

Many thanks BRW. I am at the court stage and they've been ordered to respond to my defence, which they have now done, but no specific details relating to DN. Have asked this question on another thread also, so hopefully, might hear back from Surfaceagent on that one. Cheers, Magda

 

You should use CPR Part 18 to request the document.

 

The issue with CPR 18 is that you can't demand access to any document - the Court must order their compliance with your request once they fail to respond to you.

 

The other issue is that there is no clear legal requirement to retain a copy of the original DN, meaning that an entry on a computer system showing one was sent and a certified copy of a sample DN would probably suffice for enforcement action.

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

Link to post
Share on other sites

You should use CPR Part 18 to request the document.

 

The issue with CPR 18 is that you can't demand access to any document - the Court must order their compliance with your request once they fail to respond to you.

 

The other issue is that there is no clear legal requirement to retain a copy of the original DN, meaning that an entry on a computer system showing one was sent and a certified copy of a sample DN would probably suffice for enforcement action.

 

Thanks Car. I did send a cpr 18 when the claims were first initiated, but Link did not really bother to respond to this until ordered to do so by the court, in line with my draft directions attached to the AQ. Link mention a default was sent by the OC, but no date or anything specific, and I don't remember getting anything at the time. I just thought there might be some other way to force their hand, so that I know for certain before going to court exactly where I stand on this. Many thanks, Magda

Link to post
Share on other sites

Is there some new rule about default sums? I paid two of my credit cards late (one day) this month and I received letters from both of them stating "This notice is being sent to you as required by the Consumer Credit Act 1974 because default sums have been levied on the account."

 

I have never had one before and it threw me initially as I thought it was something more sinister. Is this going to be their justification for chargiing the fee, since they have to send you a letter telling you they have charged it. If so, sounds a bit twisted in the logic dept to me!

Link to post
Share on other sites

A raft of new rules came in on 1 October: the last batch of amendments made by the 2006 Act and implementing regulations came into force on that date.

 

There is now a requirement to send out factsheets with default notices and when default sums are charged. There is also a new requirement for annual statements for personal loans.

 

I think there is also a new rule prohibiting the charging of interest on default sums (ie charges), which may or may not be implemented properly by creditors. This could be another basis for quibbling.

 

However, in my analysis, these are ancillary provisions and do not legitimise default sums that do not satisfy the requirements of UTCCR, although they may affect the calculation to some extent.

Link to post
Share on other sites

  • dx100uk changed the title to Cap1 & CCA return
style="text-align: center;">  

Thread Locked

because no one has posted on it for the last 3933 days.

If you need to add something to this thread then

 

Please click the "Report " link

 

at the bottom of one of the posts.

 

If you want to post a new story then

Please

Start your own new thread

That way you will attract more attention to your story and get more visitors and more help 

 

Thanks

Guest
This topic is now closed to further replies.
 Share

  • Recently Browsing   0 Caggers

    No registered users viewing this page.


  • Have we helped you ...?


×
×
  • Create New...