Creditor unable to supply a cca is no defence

[storm]

According to the judge at my hearing today

 

Was taken to court, did the usual asked for cca etc and they didn't provide.

 

Used this as my defence as per section 127 of the cca act 1974.

 

He said this was no defence as the act had been amended in 2006 giving the courts power to enforce, and that statements were sufficient evidence

 

 

As it happens the claim was struck out due to the litigants failure to turn up and explain why the statements they provided showed as myself owing 2k less than they were claiming.

 

He said he had to strike it out as there was a big discrepancy but my defence under the cca act actually had no merit

 

Any thoughts on this, is he right?

[tomterm8]

bump

[gypsumsif]

oh heck! :o i hope he isnt.

[gettingthere]

I think the 'judge' may have made an error here - The bit he is referring to does not apply to old agreements entered into before this part of the 2006 Act came into force which I think was about the 7th April this year - therefore agreements before that still need the signed agreement to be enforced.

 

11 The repeal by this Act of-

• (a) the words "(subject to subsections (3) and (4))" in subsection (1) of section 127 of the 1974 Act,

• (b) subsections (3) to (5) of that section, and

• © the words "or 127(3)" in subsection (3) of section 185 of that Act,

has no effect in relation to improperly-executed agreements made before the commencement of section 15 of this Act.

 

Consumer Credit Act 2006

[ODC]

I think the 'judge' may have made an error here - The bit he is referring to does not apply to old agreements entered into before this part of the 2006 Act came into force which I think was about the 7th April this year - therefore agreements before that still need the signed agreement to be enforced.

 

11 The repeal by this Act of-

• (a) the words "(subject to subsections (3) and (4))" in subsection (1) of section 127 of the 1974 Act,

• (b) subsections (3) to (5) of that section, and

• © the words "or 127(3)" in subsection (3) of section 185 of that Act,

has no effect in relation to improperly-executed agreements made before the commencement of section 15 of this Act.

 

Consumer Credit Act 2006

 

 

Phew!!!!!!!

[dannyboy660]

I think the 'judge' may have made an error here - The bit he is referring to does not apply to old agreements entered into before this part of the 2006 Act came into force which I think was about the 7th April this year - therefore agreements before that still need the signed agreement to be enforced.

 

11 The repeal by this Act of-

• (a) the words "(subject to subsections (3) and (4))" in subsection (1) of section 127 of the 1974 Act,

• (b) subsections (3) to (5) of that section, and

• © the words "or 127(3)" in subsection (3) of section 185 of that Act,

has no effect in relation to improperly-executed agreements made before the commencement of section 15 of this Act.

 

Consumer Credit Act 2006

 

I think you are right.

 

The amendment(s) will post date the vast majority of those currently requesting CCA. The 2006 Amendment is to close the very loophole which started off the CCA requesting frenzy in the first place (IMO).

The Judge is right - but in this case probably wrong.

 

If you signed under CCA'74 any future amendements would not apply, unless you knowingly consent to the changes or signed a new contract.

[ODC]

I think you are right.

 

The amendment(s) will post date the vast majority of those currently requesting CCA. The 2006 Amendment is to close the very loophole which started off the CCA requesting frenzy in the first place (IMO).

The Judge is right - but in this case probably wrong.

 

If you signed under CCA'74 any future amendements would not apply, unless you knowingly consent to the changes or signed a new contract.

No Doubt our 'friend' will be along tonight to give his view

[payingonlyencouragesthem]

This has come up before which is why it's essential to make production of the agreement the nucleus of any defence. For example you could argue that an account was opened as a joint account for which you did not bare primary responsibility. My ex got herself removed from our joint bank a/c without my knowledge and now all the statements are in my name.

 

POET.

 

 

"Why CCJ when you can CCA!"

[dannyboy660]

Yes no doubt

 

It's a bit of a worrying development though, I must admit. But I can't understand how they can claim statements alone are sufficient. Where are the terms and conditions on a statement?? I could print out thousands of convincing statements on my PC with the help of the electoral roll....and no need for a contract to make a claim and get a CCJ?? Do you know anyone who has to sign their statements?? This time next year I'll be a millionaire!!! (Only joking) Sounds like a con-artists paradise though.

 

No. I think the judge may be wrong in this particular case, but this is the kind of thing we can expect to see as time goes by. It's time to start checking that small print.

[ODC]

 

As it happens the claim was struck out due to the litigants failure to turn up and explain why the statements they provided showed as myself owing 2k less than they were claiming.

 

 

LOL they will be sorry. Obviously they expected you not to yurn up or else they thought they were on a loser without the CCA

 

Can you say who the firm was

[tomterm8]

I am no longer welcome on CAG

[salisburyowl]

I don't know how to link to my thread...Amex and capquest...but i recently got a letter back from the OFT ..excerpts are on my thread...part of which are saying that the debt in unenforcable without the CCA..surely the OFT would know?

 

They also sent me a form for me to sign giving them permission to use my particulars in investigating the DCA.

 

Owl

[Pliny the Penuriosus]

I really don't think we need to cover this other than to say the Judge is wrong. The 2006 act is not retrospective. Had he found in favour of the bank it would have been appealed

[rory32]

Agree with pliny entirely.

[storm]

Thanks for the replies on this one

 

Appears certain the judge was wrong then

[ODC]

Thanks for the replies on this one

 

Appears certain the judge was wrong then

Well if he wasnt you would certainly have had good grounds for an appeal. It will be interesting to see what the people who took you to court make of the judgement

[storm]

Yes they must have thought there was a chance of victory without an agreement as otherwise they wouldn't have taken it that far

 

It was only because they were incompetent in other areas that it got struck out, and the fact they were not there to explain it

 

They obviously have a right of appeal so this may not be over

 

Am I the first one who has actually been taken all the way to a hearing by somebody who doesn't have an agreement?

[Guest Mincemeat]

If you sent in a s77/8 request under the CCA and they didn't comply, how come you didn't just mention that? I was under the impression that if they cannot provide that, they cannot profit from, or enforce the agreement in any way? Did they provide something for that, or are they just chancing their arm?

[ODC]

If you sent in a s77/8 request under the CCA and they didn't comply, how come you didn't just mention that? I was under the impression that if they cannot provide that, they cannot profit from, or enforce the agreement in any way? Did they provide something for that, or are they just chancing their arm?

The judge relied on the 2006 act for his ruling which according to most peoples reading of it is WRONG

[Guest Mincemeat]

But in addition to that, the DCA by filing court papers in the first place has committed an offence for attempting to enforce an agreement they have defaulted on, thats all. The fact the judge even got that far is incorrect. As soon as you point out to the judge that they are in breach, the enforcement stops. Was this mentioned in the defence?

[storm]

They said they didn't keep agreements over 6 years old, and the judge felt they didn't have to

[Vampyra]

But if they can't provide the correct paperwork, how can they prove you owe the money? You could have paid it off? There is something in the OFT thingy saying that there are certain circumstances when a Judge cannot overrule and enforce the debt legally - sorry I have flu and can't remember but have a look. Seems your Judge is a bit off the makr!

[storm]

Yes, section 127

[Guest Mincemeat]

They said they didn't keep agreements over 6 years old, and the judge felt they didn't have to

 

Then the judge is basically uneducated. If you heard him make this statement you should have countered it. An agreement MUST be kept until 6 years AFTER the last action is made on that account, be it a payment or court action. The limitation of 6 years does not override the requirements of the CCA. If you hadn't have won this case, your appeal would have been monumental.

[storm]

Thanks for confirming all that, I just wasn't sure where things stood now the 2006 act has been brought in

 

I brought another thread to the top 'just been to court/cl finance', as the poster seems to be having the same problem, only his case has been adjourned not struck out