SLC Cannot Supply The Original Agreement

[ladybird17]

but a summary conviction can be a civil offence Steve. As you know, over on the CCA thread we are quite familiar with the CCA, Schedules & SI - the Schedule 1 states summarily (not indictable) that doesn't mean it's criminal, you can have a civil conviction.

Whilst you are saying there is no argument - then please direct to me to a document that confirms it is a criminal offence.

[rippedoffagain]

The Halifax has finaly replied to my CCA (end Feb).

 

Anyone care to look?

 

http://img119.imageshack.us/img119/1860/applicationblankeduz1.jpg

[SteveH2508]

but a summary conviction can be a civil offence Steve. As you know, over on the CCA thread we are quite familiar with the CCA, Schedules & SI - the Schedule 1 states summarily (not indictable) that doesn't mean it's criminal, you can have a civil conviction.

Whilst you are saying there is no argument - then please direct to me to a document that confirms it is a criminal offence.

 

Ladybird

The use of the term 'offence' in legislation means a criminal offence. Summary refers to the mode of trial - it is in the magistrate's court. Indictable means that the offence is tried in the Crown Court before judge and jury. Triable either way means that both options are available. Whether summary, indictable or triable either way, the term 'offence' refers to a criminal offence. Offences dealt with by magistrates are criminal just as much as offences dealt with by judges - they would still get you a criminal record. (The magistrate cannot jail you for more than 6 months and is restricted in the level of fine they can impose I believe)

 

Where Schedule 1 of the CCA74 says triable summarily, that means it must be a criminal offence. (note there are some triable either way CCA offences as well)

 

A 'civil offence' is a term used in military law where it refers to a conviction by a civilian court as opposed to a court-martial. I have also seen it used to refer to defamation (libel etc.).

 

As I said before, I think that it is highly unlikely that we shall 'bankers in handcuffs' as TS are loath to prosecute for the reasons I stated above. We can but dream though...

[rhsymonds]

This is getting silly. I have just received a package from Fredricksons containing copies of all the STATEMENTS but no AGREEMENT.

 

I got a letter from Fredrickson (on behalf of Royal Bank of Scotland) saying "we have referred the matter to our client and while we will revert to you as soon as we receive instructions. In the meantime, we can confirm the account has been placed on hold."

 

They better not send me a pile of statements, ill shred them and send them back.

 

Now, presuming they cant find the agreement (it was signed in a busy Glasgow store, 300 miles from home during rush hour, so god knows where that could be) Im guessing they have the 15 working days, followed by 30 normal days before i can write and ask for the debt to be removed ?

 

HSBC are yet to respond to the same "agreement request", but its them with a 15 (+30) day deadline, not me.

[ladybird17]

sorry to bring this up again - but civil offences are tried within the normal court system. Such offences are not restricted just to CM's.

Look up Cps.

[SteveH2508]

A search for the phrase "civil offence" on the CPS website reveals no matches.

 

Any clicky linky thing to what you are referring to please?

[ladybird17]

yes, but I'm still waiting for your clink linky to something or some defining document that tells me it's a "criminal" offence!!

[ladybird17]

"Civil Law is the section of the law that deals with disputes between individuals or organisations. For example, a car crash victim claims damages against the driver for loss or injury sustained in an accident, or one company sues another over a trade dispute."

One crucial difference between Civil and Criminal law is that the 'burden of proof' is lower in a civil case. A criminal case must be proved 'beyond reasonable doubt.' A civil case only has to be proved on the 'balance of probabilities,' i.e. it is 'likely' that the defendant is guilty.

 

Which court do you have to go to?

Civil actions are heard in either the 'County' or 'High' Court. The deciding factor in where a civil case is heard is the amount of money involved.

[SteveH2508]

yes, but I'm still waiting for your clink linky to something or some defining document that tells me it's a "criminal" offence!!

 

167 Penalties

(1) An offence under a provision of this Act specified in column 1 of Schedule 1 is triable in the mode or modes indicated in column 3, and on conviction is punishable as indicated in column 4 (where a period of time indicates the maximum term of imprisonment, and a monetary amount indicates the maximum fine, for the offence in question).

(2) A person who contravenes any regulations made under section 44, 52, 53, or 112, or made under section 26 by virtue of section 54, commits an offence.

 

Words like conviction, punishment, imprisonment etc. tell you these are criminal matters. Statutes do not use the phrase 'criminal offence'.

 

Schedule 1 of the Consumer Credit Act 1974 (entitled Prosecution and Punishment of Offences) lists all of the offences created in the Act and how they are triable and punishable. Summarily is in the magistrate's court - indictable is in the Crown Court. I cannot post a copy of Schedule 1 at the moment (I have posted it in another thread somewhere - probably the marathon Agreements thread!)

 

It talks of fines or imprisonment - these are criminal sanctions - ergo it is criminal.

[ladybird17]

Well we have discussed Schedule 1 on the CCA thread for ever & ever and had some interesting learned input.

Nope, sorry, civil offences can result in imprisonment - so I'm still not convinced!

[Movingon]

Well we have discussed Schedule 1 on the CCA thread for ever & ever and had some interesting learned input.

Nope, sorry, civil offences can result in imprisonment - so I'm still not convinced!

 

Ladybird there is no such thing as a civil offence. Civil Courts do not deal with offences they deal with disputes between two or more parties. They arbitrate in the dispute and rule on the solution to the dispute. There are no punishments or suchlike in the civil courts - there are only awards to parties. Offences are dealt with in the criminal court system (that's what criminal courts are for) and punishments are awarded if the defendant is found guilty of an offence.

[Seahorse]

The Halifax has finaly replied to my CCA (end Feb).

 

Anyone care to look?

 

http://img119.imageshack.us/img119/1860/applicationblankeduz1.jpg

 

Well, I see it refers to a seperate pack of conditions, which I'm guessing hasn't come with it. Nor does it state your credit limit, APR etc, etc.

 

I think they'll need to try harder than that.

[ladybird17]

How do you explain, e.g. this then...?

 

non payment of a TV licence fee is reclassified as a civil offence recoverable through the small claims process only as a last resort where other payment mechanisms or schedules

[Seahorse]

When was it reclassified? After all, the adverts used to say, "Get a licence, not a criminal record."

[ladybird17]

it doesn't matter when it was re-classified!I'm just posting up an example of a civil offence - which posters on this thread tell me doesn't exist.

 

This has been bashed about on the CCA thread for ages, and with the input of, shall we say, "learned" colleagues, it was confirmed that indeed, there are "civil" offences.

[Seahorse]

At the risk of continuing off topic though, I assume this now means you won't have a criminal record if you're nicked for no telly licence?

[tifo]

The Halifax has finaly replied to my CCA (end Feb).

 

Anyone care to look?

 

http://img119.imageshack.us/img119/1860/applicationblankeduz1.jpg

 

This is the same pseudo agreement we all get and many haven't even been signed by the bank.

 

Yet they try to pass it off as an executed agreement.

[Movingon]

This is the same pseudo agreement we all get and many haven't even been signed by the bank.

 

Yet they try to pass it off as an executed agreement.

 

Just remember - it simply means that they haven't signed it YET. They can sign it any day they like and it will (if it meets the prescribed form and contains the prescribed terms) BECOME executed.

[JonCris]

How do you explain, e.g. this then...?

 

non payment of a TV licence fee is reclassified as a civil offence recoverable through the small claims process only as a last resort where other payment mechanisms or schedules

 

Ladybird I'm sorry but your wrong

You don't go to prison for none payment but for contempt of court for failing or refusing to pay or act on the order of that court

 

None compliance with the CCA IS A criminal offence not a civil one as there is no such thing

 

79 Duty to give hirer information

 

(1) The owner under a regulated consumer hire agreement, within the prescribed period after receiving a request in writing to that effect from the hirer and payment of a fee of £1 , shall give to the hirer a copy of the executed agreement and of any other document referred to in it, together with a statement signed by or on behalf of the owner showing, according to the information to which it is practicable for him to refer, the total sum which has become payable under the agreement by the hirer but remains unpaid and the various amounts comprised in that total sum, with the date when each became due.

 

(2) Subsection (1) does not apply to—

 

(a) an agreement under which no sum is, or will or may become, payable by the hirer, or

 

(b) a request made less than one month after a previous request under that subsection relating to the same agreement was complied with.

 

 

(3) If the owner under an agreement fails to comply with subsection (1)—

 

(a) he is not entitled, while the default continues, to enforce the agreement; and

 

(b) if the default continues for one month he commits an offence.

 

 

You can only commit an offence if it's a criminal act which only as a criminal act can attract a prison sentence. It's one of the reasons that many local authorities found out to their cost that their parking tickets are not valid if they mention offence, penalty, fine etc:

As for the TV licencing authority using the term I shouldn't worry look at the mess the councils have goitten into using such language

[Hall0ws]

Hi folks. Just thought I'd post details of an ongoing dipute with HSBC about a personal loan which defaulted 7 years ago. I've been paying back an agreed monthly amount for the last 6 years and have paid back what I originally borrowed plus hundreds of pounds of so called "legal fees", interest and charges (the debt never went to court). However HSBC claim I still owe them iro £3000 and in early Feb '07 sent me a letter requesting increased payments. I sent them a CCA request with fee on 23/2. The day they received the letter they rang me and we agreed that if I was to pay the amount they say I owe then they would have to prove I owed it. On 10/3 I received a letter telling me that the agreement was over and they would start legal proceedings unless I paid full balance (less the £1 CCA fee!) within 10 days. I've heard nothing since and we're now past the 12 working days plus 1 calendar month stage and I sent the follow-up letter yesterday requesting their confirmation that the debt is now unenforceable and to remove any details from my credit file etc. I have given them 10 days to send me written confirmation.

 

I'll post further developments on this thread if that's okay? If anyone thinks I have done anything incorrectly or has any advice I'd be grateful!

 

Thanks

[tifo]

Just remember - it simply means that they haven't signed it YET. They can sign it any day they like and it will (if it meets the prescribed form and contains the prescribed terms) BECOME executed.

 

I would think if they sign it NOW and it becomes executed, then anything that has gone on with the account before this is invalid and therefore there would be no money owed. They have sold this account without signing it therefore that becomes void and they have received charged off money from the taxman without signing it, so in effect they have cheated the inland revenue.

 

Yes, they can sign it NOW, after they have sold the account and received a charge back from the taxman, but this is some 5 years later and i am sure they cannot simply get away with it. I wonder how the Inland Revenue would take having to pay Billions to the banks every year as charge offs when the accounts were not executed and signed by them, therefore not valid?

 

I think there are serious implications in signing an agreement NOW as that raises their actions before this time which would all be deemed unlawful.

[JonCris]

If the true agreement they have supplied is unsigned by either of both parties it's unenforcable as it hasn't been properly executed.

 

They can't sign it much later & claim it's enforcable

 

To quote his Lordship (again)

 

Lord Justice Sedley – in the matter of Penelope Wilson V Howard Pawnbrokers at the London Court of Appeal, Royal Courts of Justice, The Strand. 5th February 2005

"the moral for a pawnbroker such as Mr Howard is that if he wants the rewards of his trade he must operate strictly by the book, and that the failure to do so may be not merely to unravel agreements, but to reverse the indebtedness that they have purportedly caused."

Appeal dismissed with costs.

[Movingon]

If the true agreement they have supplied is unsigned by either of both parties it's unenforcable as it hasn't been properly executed.

 

They can't sign it much later & claim it's enforcable

 

To quote his Lordship (again)

 

Lord Justice Sedley – in the matter of Penelope Wilson V Howard Pawnbrokers at the London Court of Appeal, Royal Courts of Justice, The Strand. 5th February 2005

 

"the moral for a pawnbroker such as Mr Howard is that if he wants the rewards of his trade he must operate strictly by the book, and that the failure to do so may be not merely to unravel agreements, but to reverse the indebtedness that they have purportedly caused."

 

Appeal dismissed with costs.

 

That's all very interesting and all that, but if they sign it the day before court and put a date five years ago on it, who is to say it wasn't signed five years ago? It would be enforceable.

[JonCris]

That's all very interesting and all that, but if they sign it the day before court and put a date five years ago on it, who is to say it wasn't signed five years ago? It would be enforceable.

 

Nothing but they have already sent you an unsigned copy haven't they! So they would have some very awkward questions to answer

[Seahorse]

Not least of which is, any amendments to the original contract will not have been ratified. So increases in interest rate, for example, just shouldn't have happened.

 

I ma be wrong, but that's my take on it. As well as my understanding that they can only enforce any debt incurred on or after the date of signature.