Cap1 & CCA return

[JonCris]

Agree Alan.......I agree that DJ's have a lot of discretion but only in what is described as small claims (which should really be refered to as arbitration) When you move up to fast or multi then the DJ cannot interpert the law with complete disregard to case law or statute.

 

Much of the problem is that too many claimants & some defendants aren't well enough prepared to educate the DJ's who can't be expected to know everything...also I suspect that this is fairly new ground for them as it for us.

[JonCris]

I don't think so Peter....you can't commit a criminal act then expect to continue to benefit............Theres a thought.........the have commited a criminal offence & therefore are not allowed to benefit from that act

[InKogneeToh]

Hi Pam

I supose your going to get the rest of the sewing circle on me but here goes. The regulations work by modifying the legislation by virtue of section 60.

 

Peter

 

Hi

 

I don't do sewing - if my OH wants a button sewn on or suchlike he knows where the sewing box is as well as I do!

 

So where does it say that these regs. modify the CCA s60?

 

They don't modify them, they add to them. This is so that distance contracts of all types (often unsolicited) do not get entered into before the prospective customer knows exactly what the contract entails. It also provides a right of cancellation for all such contracts. The only way I can see that it has changed the CCA requirements is in the case of a credit agreement - which although fits the criteria for a non-cancellable agreement under the CCA has now been given cancellable status if it is concluded at a distance. This is an enhanced protection.

 

This link explains the purpose of these regs. but it makes no mention of applying instead of the s60 CCA regs.

 

Distance marketing of financial services | OUT-LAW.COM

 

Regards, Pam

[m55dlc]

I don't think so Peter....you can't commit a criminal act then expect to continue to benefit............Theres a thought.........the have commited a criminal offence & therefore are not allowed to benefit from that act

 

Which is why they wouldn't be able to profit from the period that they are in default from. They are not benefiting from an offence (unless they'e ever charged interest or applied a penalty charge that is)

[Peterbard]

Hi John

The coninue to benifit argument doesn't work because the criminal act does not benifit the claiment,it does not enable the agreement to be enforced the only thing that can sotp that is the default..

Peter

[Peterbard]

Hi Pam

 

You 'v made me get my coppy of the cca out now,

 

For regulations or Si to work they have to be uthorised by the legistation the same way section 180 authorises the use of the regulation that allows signatures to be left off amongst other things. In the same way section 60 authorises the use of regulations in the precontractual stage of the agreement 60 (2) a. You will find notification of this on your 1983 regs which are updated by the 2004 ones which i believe cover distance maketing.

 

Regards Peter

[Peterbard]

Hi John

The coninue to benifit argument doesn't work because the criminal act does not benifit the creditor,it does not enable the agreement to be enforced the only thing that can sotp that is the default..

Peter

 

Just further to the above in actual fact commiting the offense of not producing the agreement would be in the debtors interest because it would meen that the defaulf would stand.

 

Kind regards

Peter

[InKogneeToh]

Hi Pam

 

You 'v made me get my coppy of the cca out now,

 

For regulations or Si to work they have to be uthorised by the legistation the same way section 180 authorises the use of the regulation that allows signatures to be left off amongst other things. In the same way section 60 authorises the use of regulations in the precontractual stage of the agreement 60 (2) a. You will find notification of this on your 1983 regs which are updated by the 2004 ones which i believe cover distance maketing.

 

Regards Peter

 

I've got to go to work now but I WILL BE BACK!

 

And in the meantime my bird will be watching!!

 

Regards, Pam

[Peterbard]

Hi Pam

You don't scare me and ihave bug spray in the mean time lookat this

 

17 DISTANCE MARKETING CONTRACTS

17.1 What is a ‘distance contract’?

A ‘distance contract’ is defined in Reg 1(2) of the Information Regulations as any regulated agreement made under an organised distance sales or service-provision scheme run by the creditor or owner (or by an intermediary of the creditor or owner) who, in any such case, for the purpose of that agreement makes exclusive use of one or more means of distance communication up to and including the time at which the agreement is made.

The Information Regulations do not apply to distance contracts as defined. Most are covered instead by the Financial Services (Distance Marketing) Regulations – ‘the Distance Marketing Regulations’. Regulated consumer hire is caught by neither regime, and is subject instead to the Distance Selling Regulations – see Q17.2.

Oh and just to make your day i may have made an error i think it is section 55not 60.Trued to be a smart y and do it from memory.

Peter

[m55dlc]

Peter

 

You've got me stumped. Where does this say it superseeds the CCA?

 

And, by 55 do you mean?

 

55 Disclosure of information

 

(1) Regulations may require specified information to be disclosed in the prescribed manner to the debtor or hirer before a regulated agreement is made.

 

(2) A regulated agreement is not properly executed unless regulations under subsection (1) were complied with before the making of the agreement.

 

You've got me stumped. How does this affect it then?

[m55dlc]

Oooooh Someone said something interesting - the guest count went up to 16!

 

And in the time between posting and editing it went back to 1

[InKogneeToh]

Hi PPPPam

 

Just thought i would say hello and point out that the credit card agreemnts you are discussing are regulated by the distance marketing regulations and the precontractual requirements and regulations are quite different.

 

PPPeter

 

 

Hi again Peter

 

I'm Back!

 

s55 CCA deals with pre-contractual information and in that respect the new distance marketing regs. do add to the CCA in relation to consumer credit agreements, particularly credit card agreements, concluded at a distance because they specify what pre-contractual information is required under these circumstances. I do not disagree with you on that.

 

But they don't change any of the CCA requirements as to form and content, copies to be given at the start of the agreement etc. They only expand on s55 in this particular scenario.

 

Your post above suggests that there is a completely different set of regs. for credit card agreements concluded at a distance and that is what I was disagreeing with.

 

Regards, Pam

[tamadus]

Hi folks

 

I have just rebooted - sorry about that, there must be a gremlin in my PC!

 

I will try to remove my many surplus posts!

 

Regards, Pam

 

You will need to PM a mod Pam although they may get picked up anyway

[tamadus]

Oooooh Someone said something interesting - the guest count went up to 16!

 

And in the time between posting and editing it went back to 1

 

I think those 'guests' are really the MIB making sure we go to bed on time like good little children:D

[Guest Battleaxe]

Here is a development.

 

This morning a letter from Mr Robert Udy with a copy of my credit agreement and T & C's and I guess this is because of the section 85 default notice, but no where in the letter does he mention Section 85, just thanking me for requesting a copy of my credit Agreement and being very concilitory about our situation and re reminding me about the income and expenditure sheets. He also mentions ' I see Christine wrote to you on 16 January in response to your telephone conversation at this difficult time. As soon as we receive your income and expenditure form, our specialist support unit can help you further'.

 

I never requested the Agreement or sent a CCA request.

 

I wonder if they think this is the way they can slip out of the Section 85 breach.

 

Guess I send an LBA regarding the Section 85 default to them now, might just add add in contractual interest to boot. Any ideas?

[m55dlc]

Here is a development.

 

This morning a letter from Mr Robert Udy with a copy of my credit agreement and T & C's and I guess this is because of the section 85 default notice, but no where in the letter does he mention Section 85, just thanking me for requesting a copy of my credit Agreement and being very concilitory about our situation and re reminding me about the income and expenditure sheets. He also mentions ' I see Christine wrote to you on 16 January in response to your telephone conversation at this difficult time. As soon as we receive your income and expenditure form, our specialist support unit can help you further'.

 

I never requested the Agreement or sent a CCA request.

 

I wonder if they think this is the way they can slip out of the Section 85 breach.

 

Guess I send an LBA regarding the Section 85 default to them now, might just add add in contractual interest to boot. Any ideas?

 

 

They can get out of a default situation under s85 by sending this information, but they have still profited whilst they were in default, which they have to refund. This does sound like a ploy to me, something I am expecting to get. I sent an s78 at the same time as a s85 default (at the same time as a SAR). Take the agreement at face value and send it back to them as not being executed and / or illegible and / or it's an application (if, of course it is). Your default notice to them stated (I believe) that they had to refund all interest and charges since the breach, they cannot get out of it that easily.

 

We're all watching with bated breath, go get em Battleaxe!

[Guest Battleaxe]

I am now going to have a word letter making sure they understand the breach and that they have to refund every penny since the breach , actually it would be earlier than 2005 as I opened the account in 2000 and have had two cards since then, so I amguessing it happened in 2004. I am going to have get busy and work out the interest payments I have made

 

Any suggestings from the collective mind regarding the wording of the letter. I have been trying to find Terminators LBA letter and I can't locate it. is it out there yet for general consumption to alter for indivisual circumstances?

[humbleman]

Hi

Dont want to hijack this thread but just need a pointer.

 

Last week sent a CCA request to MG, this morning received a letter stating

 

I confirm receipt of £1.........., as requested please find enclosed a certified copy of your application form and copies of T&C that we would have provided you with at the inception of your account.

 

Then goes onto.. if you are not happy blah blah and ICO contact etc.

 

But there was nothing enclosed with the letter and see how they have worded the bit about the T&C.

 

Any comments how one would respond to this.

[ladybird17]

I don't think Term. posted his S85 letter. - So this is now what they are going to do - send out everyone who has contacted them re S85 copy of original agreement. Good or Bad? Good in one way, as it seems they might be trying to mitigate their losses, as default stops when agreement is received - so we might assume that they now know they are in default.

Bad from a purely malicious point of view - but I won't go into that!

[m55dlc]

Hi

Dont want to hijack this thread but just need a pointer.

 

Last week sent a CCA request to MG, this morning received a letter stating

 

I confirm receipt of £1.........., as requested please find enclosed a certified copy of your application form and copies of T&C that we would have provided you with at the inception of your account.

 

Then goes onto.. if you are not happy blah blah and Information Commissioners Office contact etc.

 

But there was nothing enclosed with the letter and see how they have worded the bit about the T&C.

 

Any comments how one would respond to this.

 

Does it say application form or agreement? Send a letter back stating there was nothing contained within the letter and could they resend it. State that the clock is still ticking. If you can, fax it to them and place a copy in the post (signed for, of course). If they missed it out of the envelope, time is of the essence. Get them to send the reply to you 'signed for' as they will not have a receipt otherwise.

 

This is obviously just my opinion, maybe someone else would concur or offer different advice?

[Guest Battleaxe]

Oh well, they still have to refund the interest from the breach until today, so that should wipe out what I owe.

 

I am going to have to think carefully regarding the wordin, of course they have no proof that I have received the Agreemetn as it is not signed for, but I wont play that game, I will acknowledge the receipt of the letter, enclose the spreadsheet showing the interest they have to refund, play devil's advocate and include contractual interest for the heck of it, and enclose a copy of Section 85 with the relvant bits outlined and give them seven days to comply otherwise it is off to court we go.

 

Terminator what do you suggest?

[Guest The Terminator]

Oh well, they still have to refund the interest from the breach until today, so that should wipe out what I owe.

 

I am going to have to think carefully regarding the wordin, of course they have no proof that I have received the Agreemetn as it is not signed for, but I wont play that game, I will acknowledge the receipt of the letter, enclose the spreadsheet showing the interest they have to refund, play devil's advocate and include contractual interest for the heck of it, and enclose a copy of Section 85 with the relvant bits outlined and give them seven days to comply otherwise it is off to court we go.

 

Terminator what do you suggest?

 

The letter is on thread 2115.I'm surprised MBNA are taking the stance that they are taking.Now did they send you a copy of the executed agreement in the prescribed terms and signed.They are still not out of the wood by a long away because if I remember rightly the default notice didn't mention requesting a copy of the agreement.Now they would have to explain to a judge why it took them six years to supply a copy of the agreement.I don't think it is worth sending them a copy of S85 as everything was explained on the default notice.

[humbleman]

Does it say application form or agreement?

 

it says application form

[m55dlc]

it says application form

 

An application form does not an agreement make. State that what they have sent does not fulfill their obligations under the CCA and that the clock is still ticking. State that, if this went to court, that they would have to produce the executed agreement and that you see no reason why they should not have produced it now. Check to see if the prescribed terms are listed (see s60 to s65 of the CCA (someone please correct me if I am wrong) for list of prescribed terms). Remember, s77/8 does not just say 'agreement', there are two other elements (T&C's in effect at the time of signing and a statement of account showing what is outstanding) that the cc (or loan) company must supply to fulfill the request.

 

That sounds about right to me, if I've made any errors someone should point that out soon. This site is fantastic! Just 6 months ago anything like this would have scared the c**p out of me, now I thrive on it! Bring it ON!

[ladybird17]

tut tut m55 - everywhere I go you are doing your Eminem impression. (Did you get your bread?)