POC help

[richcufc]

Is there a standard POC on CAG for invalid/non enforceable credit card agreements?

 

If not does anyone have a POC they have used for a non valid credit card agreement?

 

Thanks

 

Rich

[42man]

Rich do you mean defences ? POC's are the Particulars Of Claim on a court from form a creditor/DCA....

[richcufc]

Hi 42,

 

Not a defence no. I have an agreement with a certain credit card company which is i believe not enforceable.

 

All other avenues have failed so I would like to take this to court to prove it is not enforceable. Rather than wait for someone to take me to court lol

[42man]

Have a read here Rich - http://www.consumeractiongroup.co.uk/forum/legal-issues/173201-why-you-shouldnt-use.html (apologies if you have already seen this)....I know there are a few other caggers who are pursuing this, but I can't for the life of me remeber who is !!

[42man]

Aha....

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/166413-ccman-goldfish.html#post1997732

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/164356-lowells-again-14.html

[richcufc]

Thanks I think I should have enough information to post my papers. I'll put them up here first to be checked out.

 

Thanks for the help.

[42man]

Give me a shout if you're not sure of anything Rich...

[richcufc]

This is as far as I have got with my POC so far for my prev 2005 credit agreement.

 

The Credit Agreement is invalid for the following reason:

 

It is submitted that the credit agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the prescribed terms are not contained within the agreement but in a separate document. The prescribed terms must be with the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974.

 

I refer to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

 

Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated

consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting

the provisions of the two schedules the Judge said:

 

"In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the minimum terms) are to be found in Schedule 1."

 

If the agreement does not contain these terms in the prescribed manner it does not comply with section 60(1) CCA 1974, the consequences of which means it is improperly executed and only enforceable by court order

 

The agreement must be signed in the prescribed manner to comply with s61 (1) CCA 1974, if the agreement is not signed by debtor or creditor it is also improperly executed and again only enforceable by court order.

 

The courts powers of enforcement where agreements are improperly executed by way of section 65 CCA 1974 are themselves subject to certain qualifying factors. Under section 127 (3) Consumer Credit Act 1974 the requirements are laid out clearly what is required for the court to be able to enforce the agreement where section 65(1) has not been complied with

 

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

Further more the courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced.

[42man]

Rich did you see this - http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/115280-useful-information.html