CCA, DCAs and the Unfair Commercial Practices Directive

[babybear39]

Basically TS couldn't get thier heads round the fact that 1st credit were the owners of the alleged debt, therfore the actual creditor but they still refused to prosecute and gave me a pile of waffle to cover it up.

[cashins]

IMO TS officers know full well what, when and how they should be taking action against these companies, they just don't do it.

 

David

[babybear39]

I fully agree David, they hide behind budgets and priorities etc...

[cashins]

And it's Soooooooooo frustrating!!!

 

I think the real, (unspoken), reason is the predudice attached to people who find themselves in debt. You can also add a measure of "we are not going to help you avoid you responsibilties"

 

Classic example from my local TS:

 

In one letter they admitted that the MBNA CCA I have, "Would present real difficulties regarding enforcement in a court of law". (All of the small print is unreadable). Next letter they could read it, but declined to read the copy to me when I asked. Last letter said I had better start paying or MBNA could well take me to court.

 

At that point they sounded more like MBNA than MBNA!!!

 

David

[MAGDA]

And it's Soooooooooo frustrating!!!

 

I think the real, (unspoken), reason is the predudice attached to people who find themselves in debt. You can also add a measure of "we are not going to help you avoid you responsibilties"

 

Classic example from my local TS:

 

In one letter they admitted that the MBNA CCA I have, "Would present real difficulties regarding enforcement in a court of law". (All of the small print is unreadable). Next letter they could read it, but declined to read the copy to me when I asked. Last letter said I had better start paying or MBNA could well take me to court.

 

At that point they sounded more like MBNA than MBNA!!!

 

David

 

I agree - they don't prosecute because they basically think we deserve all we get, and secondly, more often than a lot of people are aware, they frequently have very 'cosy' relationships with these companies (the DCA's) and invariably take their side in any dispute. In my own case, the TS officer said she hadn't heard of Link before, then in the next breath a week or so later, she said that they had only ever experience one other problem relating to this company. I do also know that Link and TS are on first name terms - not surprising really, I'm sure they must receive a lot of complaints, even though TS deny this.

 

Your other comment, that TS sounded more like MBNA than MBNA sounds familiar as well. TS asked me the other day if I had arranged to make repayments to Link on the accounts they have been 'investigating'. I informed her that, no, not at the moment as on one of the accounts they actually owe me money (due to unlawful charges etc) and the other account also has significant charges and discrepancies which I attend to address before I pay anything anyway. And what business is it of TS whether I am paying or not? This seemed to be worrying her, whereas what should worry her is the fact that Link refused for nine months to provide a copy of my CCA or any statement of account.

[babybear39]

David and MAGDA yours are all too familiar stories of the lack of jugement and sense of upholding the law that TS show towards theses DCAs. I suspect it's because councillors like having the companies providing employment in thier area and don't want to upset the applecart

 

They'd rather go after easy targets like small retailers making a few silly mistakes than after companies that actully flagrantly break the law and cause consumers far more harm than someone giving differing weights at a market

[cashins]

I suspect within the next couple of years attiudes to debt and people in debt will have to undergo a fairly drastic change.

 

The image of banks has been severly damaged by the recent upheaval. In the US the blame has been laid fair and square with them, the debtors in trouble or being repossessed are viewed as victims. Being election year a government bail out looks likely.

 

I may be a pessimist but I think the number of people with debts in serious default & repossessions in the UK, will go off the scale during 2009. Same thing applies, The goverment can't blame the voters,(en masse) and they certainly can't pick it up themselves!

 

Something will have to be done.

 

David

[JonCris]

I think this will go a long way to help explain why debtors can't get regulators to act despite how much they are victimized. Also why this government has weakened consumer protection in particular by revoking sec 127 of the CCA & furthermore intends that debt collectors will have a legal right to force entry into peoples homes & assault them in the name of collecting a civil debt

 

PETER OBORNE: Kick-backs, cronies and Labour’s love affair with the City spivs | Mail Online

[FunkyFox]

... & furthermore intends that debt collectors will have a legal right to force entry into peoples homes & assault them in the name of collecting a civil debt

 

JonCris, what specifically does this comment refer to?. Thanks, FF

[JonCris]

Look up the thread of Peter Bard

[babybear39]

Thanks for that link JonCris, very intersting article...

[FunkyFox]

Look up the thread of Peter Bard

 

That was helpful thanks, couldn't find anything about assault or forced entry being legalised though

[andrew1]

BabyBear, I'm not sure if this has been covered in the 318 posts since your first so apologies if it has.

 

In your letter from TS they say that for the purposes of s.77 & s.78 they do not consider a dca to be a creditor. I find this odd especially considering that for the puposes of the Post contractual obligations coming into force on 1st October they specifically DO regard the dca to be a creditor. This is with specific reference to sections 77a, 78 4(a), 86b, 86c etc etc

 

To quote from their own publication

 

 

 

The full document is here http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/oft1002.pdf

 

Maybe you should write back and advise them of their mistake. Surely if the OFT considers a DCA a creditor for the purpose of s.77a then they should do so for s.77a too.

 

Hope this is helpful.

 

EDIT - I've just reread the letter in post #1 and noted that LCAOR and OFT did consider the DCA a creditor for the UCPD:oops: However they must have been aware of the guidance on the 2006 act quoted above at the same time (even though it was written in respect of the October 1st changes and released in July it was in respect of the 2006 act so had been around plenty long enough). They are wriggly little worms arnt they!

 

Much of the confusion regarding the role of a DCA stems from the purchase agreement between the Original Creditor Bank/finance Company and the DCA in Debt Purchasing Agreements such as those conducted by the likes of Cabot, Lowells, Capquest and other Debt Purchasers.

 

You will note in FunkyFoxes post above, this:

 

1.3 For simplicity, we refer to creditors and debtors throughout, although a number of the requirements also apply to consumer hire agreements.

Note that a creditor would include a person who has acquired the debt

or to whom the original creditor's rights and duties under the agreement have passed.

 

and it is these ' Rights And Duties ' which it all revolves around.

 

The Debt Purchasers buy the/our accounts under the Law of Property Act 1925 and claim that when they do so they are buying the 'rights' to the debt, but not the 'duties' of the Agreement taken out with the Original Creditor when the finance was first arranged. That is why they write informing us that they are not responsible for supplying us with a copy of the agreement under the CCA and that they will contact the OC to supply it. This is where these issues stem from.

 

Due to the massive demand for these DCA's to start abiding by the laws of this land by the likes of CAG and the Cabot Fan Club clarification has been sought and it has now been made clear in law that whoever chases the debt is for all tense and purposes responsible as the OC for the supply of the Agreement.

 

Even the Debt Collection Agencies who act purely as an 'agent' for the bank are now responsible. This should encourage in time at least, these dca's to obtain these documents from the Original Creditors before they start chasing although I won't hold my breath just yet.

 

 

Sarah

[martin g]

Good morning,

I hope you don't mind me using this thread, but I am defending a statuary demand from Marlin and need advice on my new argument very quickly as the time limits are very tight.

I need comments on the following soonest as I only have a couple of days,

I have posted elsewhere on the site to generate comment on what I believe to be a valid argument,

Please have a look and ask your friends to comment.

Incidentally does anyone know why I don't seem to come up on me posts?

 

This is my argument:-

 

 

2) MBNA, the original creditor have sold / assigned the debt whilst in legal dispute. I have now discovered that this is a very serious breach of OFT guidelines and I will be making a formal complaint to the OFT.

 

I respectfully draw the courts attention to the fact that the claimant has not provided me with a copy of a valid deed of assignment which is required to prove his legal right to collect any debt , either in response to my letter to Marlin or attached to his demand. Please see doc. 6.

 

I respectfully request that the claimant be ordered to disclose the sum of money that he paid for the debt in assignment, and I would argue as follows.

The original creditor, having discovered that they have a debt that in unrecoverable in law, have made a commercial decision to right the debt off against tax and shareholder profits.

They have then assigned to global arrow, who I believe are an associate company in the USA.

It is my understanding that debt that is regarded as unrecoverable, such as statute barred or debt without any correct support document or that is in valid legal dispute for other reasons, is “rented out” to companies such as Marlin for

1-2 pence in the pound.

These companies then try to recover the debt by various bully methods and the use of statutory demands, ( as in this case) to attempt to enforce through the court a debt that is unenforceable.

However, I believe that when a statutory demand is issued some 99% of recipients are frighten by the threat and reach an accommodation with their claimant.

I would respectfully remind the court that a statutory demand costs nothing to issue and is unchecked by the court on service.

 

In this case the claimant is not trying to recover monies due to an original creditor as their agent on some kind of commission or fee basis.

He is an impendent businessman who has lost not lost some £5,500 of his own money, having probably paid £55-£110 for the debt.

I would argue very respectfully that the county court system and the insolvency court exist to put creditors back into the position that they were in before any loss occurred and not to unduly enrich the claimant.

 

In this case the claimant’s financial shortfall, the sum by which he personally is out of pocket, is in very probably in the is in the low £00’s even allowing for overhead and I would very respectfully submit and argue that he is only entitled to recover his personal financial lose through the court system.

 

 

3) The claimant has plucked a figure of claim from thin air.

 

I respectfully draw the courts attention to the fact that the claimant has not provided me with a breakdown of his claim ( nett of any unlawful charges and compound interest thereon), either in response to my letter to Marlin or attached to his demand. Please see doc. 6.

[martin g]

Regarding the above thread if you have input can you go to my main thread or PM me or I will loose track of your comments.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/160352-statstatutary-demand-mbna-arrow.html

[babybear39]

Martin g you're better off posting in the legal issues section. Start a new thread and link it to your own and ask for urgent help there.

 

Good luck.

[Hopeful1]

Morning BB! Hope you're ok hun, Could you do me a favour and post me a link that takes you to the amended legislation just so i can post it on people's threads, please?

 

Lots of newbies still think it's 12+2 plus a calendar month. I used to post a link for this thread, but it's so long now!! Also, did anyone write an amended 'you haven't complied letter' as i know there was talk of something at some point during this thread. Sorry i've not kept up with it very well recently

 

[babybear39]

Good morning Hopeful1, I'm fine thanks, just getting ready to go back to uni tomorrow, hope you are well.

 

The only link I have is for the whole CPUTR 2008:

 

http://www.consumeractiongroup.co.uk/forum/faqs-please-read-these/146460-consumer-protection-unfair-trading.html

 

I did have it somewhere but I've lost it *blush*.

 

Just mention to newbies that the 30 calendar days was done away with by the UCPD.

 

I just amend the CCA non-comp. letter myself for anyone.

Edited September 21, 2008 by babybear39
spelling

[banker_rhymes_with]

Hello Hopeful1!

 

I believe the Criminal Offence part was abolished in...

 

The Consumer Protection from Unfair Trading Regulations 2008

 

See Page 9:

 

SCHEDULE 4

Repeals and Revocations

PART 1

 

Consumer Credit Act 1974

c.39Section 46.

In section 47, the words “or 46”.

Section 77(4)(b) and the word “and” preceding it.

Section 78(6)(b) and the word “and” preceding it.

Section 79(3)(b) and the word “and” preceding it.

Section 85(2)(b) and the word “and” preceding it.

Section 97(3)(b) and the word “and” preceding it.

Section 103(5).

Section 107(4)(b) and the word “and” preceding it.

Section 108(4)(b) and the word “and” preceding it.

Section 109(3)(b) and the word “and” preceding it.

Section 110(3)(b) and the word “and” preceding it.

In section 151, the words “, 46”.

In Schedule 1, the entries for sections 46(1), 77(4), 78(6), 79(3), 85(2), 97(3), 103(5), 107(4), 108(4), 109(3) and 110(3).

 

Just to help anyone that needs to check what the Sections were in the 1974 Act:

 

Consumer Credit Act 1974

 

I hope this helps.

 

Cheers,

BRW

[babybear39]

Thanks BRW

[banker_rhymes_with]

Sorry BB!

 

Looks like we posted at the same time!

 

Cheers,

BRW

[Hopeful1]

Thank you both!

 

That helps. I always like to give links so that people can get to grips with stuff themselves and understand what they're doing and why.

 

As for the non compliance letter, i will be sending my own version to my / our old pals BCW, as surprisingly (not) they haven't complied with my request for a copy of the agreement relating to the account they have sent me a payment card for - te hee

[babybear39]

Is that the same one from last year H1?

[MAGDA]

Much of the confusion regarding the role of a DCA stems from the purchase agreement between the Original Creditor Bank/finance Company and the DCA in Debt Purchasing Agreements such as those conducted by the likes of Cabot, Lowells, Capquest and other Debt Purchasers.

 

You will note in FunkyFoxes post above, this:

 

1.3 For simplicity, we refer to creditors and debtors throughout, although a number of the requirements also apply to consumer hire agreements.

Note that a creditor would include a person who has acquired the debt

or to whom the original creditor's rights and duties under the agreement have passed.

 

and it is these ' Rights And Duties ' which it all revolves around.

 

The Debt Purchasers buy the/our accounts under the Law of Property Act 1925 and claim that when they do so they are buying the 'rights' to the debt, but not the 'duties' of the Agreement taken out with the Original Creditor when the finance was first arranged. That is why they write informing us that they are not responsible for supplying us with a copy of the agreement under the CCA and that they will contact the OC to supply it. This is where these issues stem from.

 

Due to the massive demand for these DCA's to start abiding by the laws of this land by the likes of CAG and the Cabot Fan Club clarification has been sought and it has now been made clear in law that whoever chases the debt is for all tense and purposes responsible as the OC for the supply of the Agreement.

 

Even the Debt Collection Agencies who act purely as an 'agent' for the bank are now responsible. This should encourage in time at least, these dca's to obtain these documents from the Original Creditors before they start chasing although I won't hold my breath just yet.

 

 

Sarah

 

Hi Sarah, I agree of course that when a debt is assigned that the assignee should have both the rights and the duties of the debt under the agreement, but as you say, they claim only to have the rights.

 

I am still not clear how exactly and where exactly the CPUTR 2008 clarifies this point. I have looked at the thread using the link provided on here, but I have not discovered anything that clarifies this point. For example, we now know that the 30 day offence (for not supplying a copy of the agreement) is no longer valid, and this is clearly shown (by BRW) as a direct reference (for example) to Page 9

SCHEDULE 4

Repeals and Revocations

PART 1

 

I know that legislation now apparently provides a legal argument for the opinion that the owner is also the creditor for the purposes of the CCA, but where exactly does it state this? The first question that anyone, including the courts will ask is: "How in actual fact does the new legislation clarify this point (that the assignee is the creditor) and where?

 

The reason that I ask the above question is that I still think it seem extremely vague with nothing concrete to back it up. I realise that Rhondda stated in their letter that there is now a legal argument for stating that the DCA is the creditor, but this is one branch of TS, and other TS consider this to be just their (Rhondda's) opinion. So, it would be helpful to have a specific reference as we do for the 30 day offence issue. I will be arguing this issue at some point in the future in court, and I know that if I merely refer to the points relating to the CPUTR 2008 and the legislation now incorported via this, then immediately Link (or indeed the Judge) are going to ask for detailed clarification on this.

Magda

[babybear39]

It's in the UCPD part of the regs but I haven't found it myself yet to be honest and I'm busy getting ready to go back to uni tomorrow.

 

This thread was started to show one TS viewpoint and to highlight the new legislation.