SLC Cannot Supply The Original Agreement

[Number6]

This particular section comes into force om the 6th of April 2007.

Peter

 

At that date will it apply retrospectively?

 

Pete

[veryannoyed]

Can this new section be used retrospectively on disputes / cases that have already started?, or are we "safe" from this if we have already started our claims?

[mcuth]

At that date will it apply retrospectively?

 

When they were drafting the legislation, I'm sure I read that it would only apply to agreements signed after a certain date - but I'll be damned if I can find that now

 

Cheers

 

Michael

[Peterbard]

You are making me work to hard

I do not think that this can apply in retrospect although i cannot find any mention of it in the timescales or transitional data.

 

Sorry

Peter

[Number6]

You are making me work to hard

I do not think that this can apply in retrospect although i cannot find any mention of it in the timescales or transitional data.

 

Sorry

Peter

 

Stop whingeing and get back to work!!!!

 

Pete

[veryannoyed]

I'm just thinking that if creditors know this new law is coming, and it is going to be to their advantage, then obvioulsy they are going to use even more delaying tactics than they already do!

[Peterbard]

When they were drafting the legislation, I'm sure I read that it would only apply to agreements signed after a certain date - but I'll be damned if I can find that now

 

http://www.dti.gov.uk/files/file32773.pdf

 

Page 50

 

Cheers

[Peterbard]

As far as i can see the section comes into force on April 6th 2007 so I presume that the instruction to the court will be that they may proceed to consider the enforcement of a contract even without contatining the prescribed terms outlined in 60-65 on any aplication that comes before them on or after that date. Please check this if you can I can't find anything to contradict

The court will still not be able to enforce under the other sections of the section 77,78(a)(b)© but if you are saying that the ageement was never made by vitue of them not producing an executed copy of the agreement including the prescribed terms then you are saying section 65(1)(1a) was not complied with and according to the new 2006 section 15 that will not barr fo the court from considering enforcement.

[alanfromderby]

As far as i can see the section comes into force on April 6th 2007 so I presume that the instruction to the court will be that they may proceed to consider the enforcement of a contract even without contatining the prescribed terms outlined in 60-65 on any aplication that comes before them on or after that date. Please check this if you can I can't find anything to contradict

The court will still not be able to enforce under the other sections of the section 77,78(a)(b)© but if you are saying that the ageement was never made by vitue of them not producing an executed copy of the agreement including the prescribed terms then you are saying section 65(1)(1a) was not complied with and according to the new 2006 section 15 that will not barr fo the court from considering enforcement.

 

That would be my reading of this as well.

[veryannoyed]

So as of April 2007 you can be sued under a contract that the claimant fails to show exists?

[alanfromderby]

So as of April 2007 you can be sued under a contract that the claimant fails to show exists?

 

No, but you can be sued under one that is not properly drafted, or where their signature is missing, providing the bank can show by other means that a contract exists, and that you agreed to its terms.

[Peterbard]

The thing is that they can also apply for the contract to be inforced if the debtors signature is missing.Since they don't have to provide one on a section 77 request(apprently under SI 1983 Reg 3).And section 15 of the 2006 act removes the effect of section 127 3-5 which in turn removes the requirement to produce an executed agreement(including Debtor /hirers signatures) as per 63(2)b,63(5).

This really burns me up, in essence the burden of proof to the existance of the contract is being shifted from the creditor to the debtor/hirer.

 

Can none of you brain boxes out their come up with a peice of case law that prohhibits this so we can fight it.

Peter

[Number6]

Can none of you brain boxes out their come up with a peice of case law that prohhibits this so we can fight it.

Peter

 

It niggles me too.

 

I am looking but am juggling 20 things at once so it takes time.

 

Pete

[Mike220359]

Mike, have you investigated whether you can get a court fee exemption, or mitigation? Do you receive Tax Credits? Even if you are *just* on a low income there is a form you can fill in to apply for a partial fee waiver.

 

Pete

No I did try that but I earn too much.

 

lol

[Number6]

No I did try that but I earn too much.

 

lol

 

Lucky you lol

 

I'm obviously dirt poor then... well I knew that anyway!

 

Pete

[Mike220359]

At that date will it apply retrospectively?

 

Pete

It can't do, you cannot be in breech of a law that hasn't been applied yet, and anyway, all this does is through the spanner in automatice unenforcability and enforceability, the MIB have still got to stand in front of a beak and tell him why information isn't forthcoming. How will a bank be able to tell him that Mr Mike220359 signed this contract on April 1st 2001, and in that contract there is a clause that allows us to alter the terms and conditions applied to it.

 

Remeber a judge will only be able to sacnction that a contract is enforcable from the moment that it is decreed in court if an agreement is in dispute, up to that point if the requirements have the CCA 1974 or 2006 have not been met any alledged agreement doesn't mean Jack. Remebr contract law is different from criminal, you are only bound by it's terms when you agree to be or from the point that a judge tells you that you are.

 

Yes it may mean that any future action by a bnak after 1st April 2006 will be harder to fight by the consumer, however, THEIR ACTIONS UP TO NOW ARE WHAT WE ARE FIGHTING.

 

All is most definatly not lost.

 

Mike

[veryannoyed]

The thing is that they can also apply for the contract to be inforced if the debtors signature is missing.Since they don't have to provide one on a section 77 request(apprently under SI 1983 Reg 3).And section 15 of the 2006 act removes the effect of section 127 3-5 which in turn removes the requirement to produce an executed agreement(including Debtor /hirers signatures) as per 63(2)b,63(5).

This really burns me up, in essence the burden of proof to the existance of the contract is being shifted from the creditor to the debtor/hirer.

 

Can none of you brain boxes out their come up with a peice of case law that prohhibits this so we can fight it.

Peter

 

This is just nuts... goes back to the same old scenario that any of us could produce a convincing looking contract unsigned by a 'debtor' and make up a few statements and some terms and conditions and then sue the feck off them...

 

Obviously if this is becoming law in april it is well past any consultation stage etc. Some serious lobbying and FAST is therefore needed? Maybe another protest outside the Consumer Credit Association offices?

[Peterbard]

I am looking but am juggling 20 things at once so it takes time.

 

Pete

 

Stop whingeing and get back to work!!!!

 

Pete:D

Peter

[Number6]

I am looking but am juggling 20 things at once so it takes time.

 

Pete

 

Stop whingeing and get back to work!!!!

 

Pete:D

Peter

 

It's not the "getting back to" but the "getting away from" work that's the problem!

 

Pete

[Nurselayer]

Wow! I was following this thread for a while but stopped (around page 11) when I thought I'd learnt enough about our rights under the CCA1974 and when I thought I was ready to take on the Student Loans Company - you can read about it here if you like http://www.consumeractiongroup.co.uk/forum/other-institutions/18775-nurselayer-student-loans-company.html

 

I've just spent the last 2 hours reading the whole 35 pages from page 1 through. I am hoping that you can confirm whether my understanding is correct.

 

If the lending body does not reply to a CCA 1974 s. 77(1) request within the time limits then there is no credit agreement and the creditor can ask for the WHOLE of the loan amount to be repaid immediately.

 

If this is so this could be a right bummer, I was about to write a letter to the Trading Standards office about the SLC's lack of response to my CCA request - can anyone point me to a draft or help me with the wording please? Should I continue to do this?

 

Thanks

[Number6]

If the lending body does not reply to a CCA 1974 s. 77(1) request within the time limits then there is no credit agreement and the creditor can ask for the WHOLE of the loan amount to be repaid immediately.

 

If this is so this could be a right bummer, I was about to write a letter to the Trading Standards office about the SLC's lack of response to my CCA request - can anyone point me to a draft or help me with the wording please? Should I continue to do this?

 

Thanks

 

Yes you are correct but if you want to take the risk if you refuse to acknowledge the debt then the loan company would have to take you to court to enforce it and at the same time they would presumably have to explain to a Judge why they broke the law by not producing the agreement. With this in mind they *might* decide not to pursue you for the debt at all.

 

On the other hand you might end up with a CCJ so decide carefully!

 

As to the letter then all you have to say is:

 

"xyz loans have failed to respond to my properly formatted and paid for statutory request for information under Section 77(1) of the Consumer Credit Act 1974. My request to them was sent on [date] and the statutory time limit for them to reply was [{14 working days + one calendar month later} = date]. Please investigate xyz loans for non-compliance."

 

Something like that should do the trick.

 

Pete

[ecobabe]

don't know if i should post this in this thread or over in cca agreements. anyway, i'm just back from spending the afternoon in Borders bookshop, where i spent 3 hours poring over a couple of consumer law books. i studied some law at uni and i remembered Blackstone's statutes as being good. anyway i found a couple of reallygood books. The first one is totally on the CCA 1974 and the new CCa 2006 amendments, written by a lawyer and a QC. now maybe i'm wrong but i could find nothing in the new amended Act that would override our current rights(apart from 1 which i'll come to). In fact the book states that the Act, "radically amends CCa 74, it redifines the "consumer" whose agreements are to be regulated by the Act; major overhaul of system for licencing of traders with more severe penalties for traders who break the rules; consumer credit is brought under the jurisdiction of the Financial ombudsmen"

It also states that the sections 77-78 CCA '74 which will be replaced by s6 & 7 of CCA 2006, come into force in April 2008 and only agreements made after this will be subject to the new Act, so it's not retrospective. (sorry it's a bit long but don't quite know how to condense it). s77 & 78 only seem to be amended in the provision of statements not our right to request a copy of the signed agreement, this remains the same. s 79 for consumer hire agreements is different.

s60-64 re. the structure of agreements ,doesn't say anything about agreements not needing to be signed.

 

now the bit i thought was very interesting was the interpretation of s127 of CCa 74. the enforcement section(this has been amended in the CCa 2006) at the moment s127 (3&5) prevents any enforcement. At the moment non compliance with request for copy of agreement,according to the authors," the creditor may not enforce the agreement. This operates as a complete bar to enforcement & there is no power in the court to order otherwise" I looked around and it seems that this has gone to the House of Lords in the case of " Wilson v First County Trust Ltd (no 2) 2002. (It was appealed and taken to Court of Appeal first but House of Lords held that s 127(3) is not incompatible with part II of Article 1 of European Convention of Human Rights) I know that's all abit garbled but there is way too much info to write it all. Basically it supports our argument that a properly executed & formatted agreement must be in place or it can't be enforced even by the court.(Wilson v First County Trust). This is being amended by the CCA 2006 Act since it is seen as being harsh for an infringement by the creditor. the section which replaces s127 is s15 and it gives the court more power to enforce agreements. However , and here is the good news, it comes into force on the 6 April 2008 and only agreemnts made after this date will be subject to this. Sorry it's all a bit garbled. If anyone is interested the book is by Oxford University press, " Blackstone's Guide to CCA 2006" by Richard Mawbrey QC & Tobias Riley Smith( £35). The other book was Blackstone's Consumer and Commercial Law. But most of the info is from the first book.

[Number6]

Fantastic work Ecobabe! Well done.

 

Did you buy the book? If you did is there any chance you could post, or PM me the ISBN number?

 

Thanks

 

Pete

[Number6]

It's OK, I found the ISBN - thanks again for digging this up!

 

Pete

[Peterbard]

This is being amended by the CCA 2006 Act since it is seen as being harsh for an infringement by the creditor. the section which replaces s127 is s15 and it gives the court more power to enforce agreements.

Interesting does this mean that section 15 of the cca has been ammended and will not remove sections 127( 3-5 ) and therefore the court will remain unable to enforce an agrement that is not properly executed (signed by the debtor Hiror).