Response from the OFT....

[allykat]

this is a loop hole in the right to information under s77-79 of the act.

 

it gets MANY people.

 

Someone should ban loopholes

[ajjars]

So in order to find out if they really DO have the original - you have to go to court??

[sequenci]

So in order to find out if they really DO have the original - you have to go to court??

 

on many occasions, yes.

 

rubbish isn't it, although people should look more to statement of accounts. MANY dcas simply do not have all the data available, for example.

[ajjars]

So it's best to let them take you to court, rather than the other way round in case they do produce?? Then you'd get lamped for their costs...

[JonCris]

I'm fed up saying this. They can chase a debt even without the paper work & they can even ask a court to enforce it but without a signed copy of the said agreement which must include ALL of the specified terms the court cannot make an enforcment order.

 

Its just that they have got away with it for years & unless the debtor asks for said signed agreeements & in the absence of points out to the court the courts inabilty to make an order then they will be granted orders as they have been in the past due to the ignorance of the debtor.

 

Over the years many many CCJ's must have been issued in such error as it must be rememberd that very few DG's understand consumer legislation.

 

As it is for many consumers now fighting back the courts are only just now becoming aware of these laws in any detail.

[sequenci]

So it's best to let them take you to court, rather than the other way round in case they do produce?? Then you'd get lamped for their costs...

 

i don't think there is a definative answer to this as circumstances may be different for people.

[ajjars]

Thanks to this site I am now aware of the law! But what I meant tho was referring back to the earlier posting about them being able to supply an agreement that is not necessarily the original, but having to be in possession of the original just the same, and to have to produce it in court to enforce the debt - without the debtor seeing the actual original how can they be sure the creditor does indeed have it? They could just say they have ...... do you see what I mean? Thankfully it seems tho that most creditors eventually just put their hands up and say they don't have it - but what if they said they did ....... hmmmm!

[allykat]

Just my opinion (probably doesn't count for much) but....

 

If the (alleged) debtor genuinely believes the debt is not theirs or whatever, then surely the true CCA needed in court will not exsist? Then the alleged debtor has nothing to worry about and the DCA will not be stupid enough to take it to court?

 

Or...if the debtor has only requested the CCA to prove the DCA has a right to collect the debt, but has also been making payments, or has made a reasonable offer to pay....then even if it did go to court, the payments/offer to pay will be taken into account wont they and be to the debtors favour?...

 

and again, if the true, signed CCA is not available, then would a DCA be stupid enough to take it to court?

 

I'm assuming that this is why many creditors/DCA's never actually follow through with their court action threats :?

[JonCris]

1st as it hasn't stopped them in the past they would be stupid enough to take it to court & they have always relied on the ignorance of the ordinary debtor.

 

If the debtor has been paying in the mistaken belief the creditor or their agents have a true properly executed agreement & discovers they don't they can demand a refund of all monies paid to date plus the release/return of any security

[allykat]

1st as it hasn't stopped them in the past they would be stupid enough to take it to court & they have always relied on the ignorance of the ordinary debtor.

 

If the debtor has been paying in the mistaken belief the creditor or their agents have a true properly executed agreement & discovers they don't they can demand a refund of all monies paid to date plus the release/return of any security

 

Thanks for that JonCris, I did not know you were entitled to a refund!

[sequenci]

 

If the debtor has been paying in the mistaken belief the creditor or their agents have a true properly executed agreement & discovers they don't they can demand a refund of all monies paid to date plus the release/return of any security

 

hey jon, which section of the act covers this, it looks very interesting.

[tifo]

If the debtor has been paying in the mistaken belief the creditor or their agents have a true properly executed agreement & discovers they don't they can demand a refund of all monies paid to date plus the release/return of any security

 

This would also cover a CCJ and where they have got a charge on a property (return of security)?

 

Where are the relevant law sections for this?

[JonCris]

seq the act doesn't specify this but if the debt was & is unenforcable then the creditor has been paid by the debtor in the mistaken belief that the debt was/is enforcable.

 

Lets not cloud the issue. If a debt is unenforcable then ALL actions by the creditor stemming from that debt are invalid. In otherwords if they had no lawful contract to pursue the debt then they had no right to exercise a charge on property or demand payment & as some (me included) would say process your data.

[tifo]

Yes, thats how logic would follow but the main question is would a judge see it this way?

[djdave]

Has this ever been tested in court, though? For example

I've got an insurance company trying to get me to cough up for a credit agreement even though I had already paid on a card. They sent me an unsigned Agreement, only printed last month. Would this be of even the slightest good in court?

[sequenci]

Would this be of even the slightest good in court?

 

I would imagine it may satisfy the requirements within s77-79 but if they were to use THAT agreement in court it would be unenforceable. It would still be unclear if they have YOUR agreement or not at this stage so it would be up to you to move forward or not. If they've not got an executed agreement with all the prescribed terms they would be stuck.

[PriorityOne]

If the debtor has been paying in the mistaken belief the creditor or their agents have a true properly executed agreement & discovers they don't they can demand a refund of all monies paid to date plus the release/return of any security

 

What about if the DCA has a Deed of Assignment though ? I started a thread on this topic some time ago... but was persuaded not to go ahead with it because if the DCA could produce the D of A in court, it would prove the existence of a debt... which would be enough for a court to rule in their favour... leaving me with a bill for costs.... and no refund.

[JonCris]

It doesn't matter what the judge or creditor thinks & if they order otherwise then they will made an error in law

 

Read the following HOL judgement:

 

House of Lords - Wilson and others v. Secretary of State for Trade and Industry (Appellant)

 

29. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and 63, section 127(4) precludes the court from making an enforcement order.

 

49. I consider, however, that there is no relevant restitutionary remedy generally available to a lender in the circumstances now under consideration. The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan. That being the consequence intended by Parliament, the lender cannot assert at common law that the borrower has been unjustly enriched. That would be inconsistent with the parliamentary intention in rendering the entire agreement unenforceable. True, the Consumer Credit Act does not expressly negative any other remedy available to the lender, nor does it render an improperly executed agreement unlawful. But when legislation renders the entire agreement inoperative, to use a neutral word, for failure to comply with prescribed formalities the legislation itself is the primary source of guidance on what are the legal consequences. Here the intention of Parliament is clear.

 

72. Undoubtedly, as illustrated by the facts of the present case, section 127(3) may be drastic, even harsh, in its adverse consequences for a lender. He loses all his rights under the agreement, including his rights to any security which has been lodged. Conversely, the borrower acquires what can only be described as a windfall. He keeps the money and recovers his security. These consequences apply just as much where the lender was acting in good faith throughout and the error was due to a mistaken reading of the complex statutory requirements as in cases of deliberate non-compliance. These consequences also apply where, as in the present case, the borrower suffered no prejudice as a result of the non-compliance as they do where the borrower was misled. Parliament was painting here with a broad brush.

[PriorityOne]

So are you saying that I could begin court action aganst a DCA for a refund ?... and if they did produce a D of A in court, that they could lose and I would get that refund ? On a scale of 50/50, what do you think my chances of success would be ?

 

I have had no support for this course of action so far on CAG..... Has anyone actually pulled it off and won re. a refund of monies paid + costs in court ? I have been told time and again that it would be a very unwise move to take them all the way to court with this.... because they would just produce the D of A in court and prove the existence of the debt - hence no refund.

 

Apologies if I've babbled on a bit... must go to bed before I stop making any sense at all !!

 

[sequenci]

 

House of Lords - Wilson and others v. Secretary of State for Trade and Industry (Appellant)

 

 

I remember this one, we studied it as a case.

 

Mrs wilson pawned her BMW convertible with the first county trust. the creditor put down a document fee of £250 as a credit charge thus getting the total charge of credit wrong. interesting case!

[bach]

Sorry to gate crash you but can anyone answer a quick question for me

 

Alliance & Leicester & Global , and Cabot and Citicards gone well over the 40 days after my request for CCA. I have signed proof of delivery by Royal Mail.

 

Who do I report this to???

Thanks Lynn

[SteveH2508]

Sorry to gate crash you but can anyone answer a quick question for me

 

Alliance & Leicester & Global , and Cabot and Citicards gone well over the 40 days after my request for CCA. I have signed proof of delivery by Royal Mail.

 

Who do I report this to???

Thanks Lynn

 

Your local Trading Standards Department re the criminal offences.

[davefirewalker]

Hi everyone

 

I'm sure that you must have seen this, but just in case have a look at http://www.oft.gov.uk/shared_oft/reports/consumer_credit/oft786a.pdf

 

its the draft of the 2004 act (I couldnt find the 1983 one) makes very intereresting reading.

 

Its basically guidelines for the the form of agreements and the layout of such including terms etc that MUST be adhered to.

 

Dave

[djdave]

So are you saying that I could begin court action aganst a DCA for a refund ?... and if they did produce a D of A in court, that they could lose and I would get that refund ? On a scale of 50/50, what do you think my chances of success would be ?

If you've CCA'd and SAR'd them and they still couldn't produce a signed agreement and DOA, I'd be fairly confident that they wouldn't be able to produce it in court either.

 

But it's a chance you take, and only you can decide if the amount of money involved is worth the risk.

[davefirewalker]

If you've CCA'd and SAR'd them and they still couldn't produce a signed agreement and DOA, I'd be fairly confident that they wouldn't be able to produce it in court either.

 

But it's a chance you take, and only you can decide if the amount of money involved is worth the risk.

 

If they did produce it in court (very unlikely) then surely they would have been breaking the law in not fully complying with you cca and sar requests.

 

Dave