Cap1 & CCA return

[tamadus]

Hi Un1boy you can now come out of the corner.I agree entirely with what your saying and I beleive the posts you are refering too were from yesterday.It is no good arguing between ourselves because it is getting us nowhere.Everybody is entitled to their own opinion and I beleive that these opinions should be respected.I also agree that what one person see's from one angle another will see it differently.Bearing in mind that this thread has being going for six months and the information and opinions I beleive has given us the "upper hand" and this is the way I personally would like it to stay.As this site is constantly monitored the last thing we need is the MIB seeing us dispute with one another.They know that their time is nearly up before their T&C are blown into orbit and I'm working on that at the moment.So Terminator is asking for one thing and thats "civility" and lets get on with what we've got to do.

 

I'll now get off my soapbox and go and bash some banks:D

 

I support Un1 and Term on this totally.

 

We do have a few 'heated' discussions at times but sometimes I think that can help the discussion progress, however I dotn agree with 'bashing' or flaming anyone because of their personal opinion, after all thats the onyl thing we have at the moment.

 

To answer another point, as soon as we get a conclusion to some of the cases currently being argued I will write up a synopsis and try and get it posted as a 'sticky'.

[tamadus]

Sorry tam, I think she's run off with Perseus! :o:D

 

Yep me too which shows what a fickle bird she is

[Cornucopia]

Yep me too which shows what a fickle bird she is

 

Well I am shocked and disgusted! TurdyBirdy would not DARE to flirt with my first love of CAG, that will be Persues, on the MBNA forum. What a shocking culinary harlotting hussy she is.:o

 

Pers, get your ass straight back to where it belongs before I have to admonish you!!!

 

Tam, pass me a whiskey, I think I am in need.

 

Do they not know that I subscribe to this thread.......HOW RUDE:o

[Perseus]

Yes m'lay-dee :D

 

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It was only a kiss darlin, there was no croissants involved - - honest:|

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[zubo]

Well I am shocked and disgusted! TurdyBirdy would not DARE to flirt with my first love of CAG, that will be Persues, on the MBNA forum. What a shocking culinary harlotting hussy she is.:o

 

Pers, get your ass straight back to where it belongs before I have to admonish you!!!

 

Tam, pass me a whiskey, I think I am in need.

 

Do they not know that I subscribe to this thread.......HOW RUDE:o

 

you do know what happened to the Perseus don't you??

 

oops way past beddytime and I have a few ladies to help (on another thread...)

 

have to wait...

[Cornucopia]

Yes m'lay-dee :D

 

xxxxxxxx

 

It was only a kiss darlin, there was no croissants involved - - honest:|

xxxxxxxx

 

I am OUTRAGED!!! If you want a Turdybirdy then just say it Pers, I thought I was the one and only...................boo hoo.

[Perseus]

Oh I'm off to bed (or the sofa!) we'll finish this tomorrow

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night all

[SteveH2508]

Hi Dave

 

I may be wrong but it seems to me that the quote you have posted is in relation to offences to do with credit licensing.

 

If not, then how do you explain this (previously posted by Joneshousehold):

 

Schedule 1 states

Quote:

Section - 77(4)

Offence - Failure of creditor under fixed sum credit agreement to supply copies of documents etc.

Mode of prosecution -Summarily

Imprisonment or fine - [Level 4 on the standard scale.]

Section - 78(6)

Offence - Failure of creditor under running-account credit agreement to supply copies of documents etc.

Mode of prosecution - Summarily.

Imprisonment or fine - [Level 4 on the standard scale.]

 

Also s170 is saying that no breach under the Act will incur a civil or criminal sanction except for those expressly provided for by or under the Act (e.g. as above)

 

 

170 No further sanctions for breach of Act

 

(1) A breach of any requirement made (otherwise than by any court) by or under this Act shall incur no civil or criminal sanction as being such a breach, except to the extent (if any) expressly provided by or under this Act.

 

Regards, Pam

 

It has also just occurred to me that this may be relevant to the discussions elsewhere about the Fraud Act in relation to the alleged 'cut-and-shut documents' being provided in response to a S78.

[InKogneeToh]

It has also just occurred to me that this may be relevant to the discussions elsewhere about the Fraud Act in relation to the alleged 'cut-and-shut documents' being provided in response to a S78.

 

Hi

 

Hmmmm! Another can of worms perhaps? I think we should offer them this one in a tomato sauce - they must be getting sick of worms!! :-D

 

Regards, Pam

[SteveH2508]

Correct, as per:

 

 

 

Although, isn't Trading Standards like a "trading name" for the OFT, basically enforcing their rules?

 

Steve, can you tell us why TS refuse to prosecute each case as I am so surprised this body would allow these companies to get away with their blatant disregard for the law!

 

Is there any paticular reason/guideline regarding it, or is it so "new" that they aren't sure themselves?

 

OFT is a central government body - Trading Standards is local government. They are quite separate. OFT does issue guidelines and collates information on a national basis.

 

The decision to prosecute is down to firstly the investigating officer's recommendation; then their bosses recommendation and usually a committee of the Local Authority (often guided by their Legal Department) as well.

 

Generally, TS see their job as ensuring compliance with the many laws which they enforce. Often the stages involve advice followed by warning and prosecution is seen as a last resort. They have very limited resources and tend to prioritise things such as safety; public health; major criminal rip-offs e.g. car clocking or counterfeiting over more 'technical' offences.

 

They would fight shy of prosecuting a S78 offence on several grounds (in no particular order).

1. Cost v. Benefit (does the prosecution show a real benefit for the local Council Tax payers?)

2. Likelyhood of success. Is it provable 'beyond reasonable doubt'? They will be up against a multi-national with their large legal departments. You can bet that the MIB would make a major fight out of this.

3. Have they exhausted the other enforcement avenues?

 

A more effective use of their scarce resources might be to attack the 'problem' from the licencing angle. If OFT get notified of thousands of complaints of non-compliance with S78-79 and problems under the Agreement Regs. then OFT would have to consider Fitness to Hold Consumer Credit Licences.

 

I have seen the effect on a company when they are issued a 'Minded to Revoke' notice. They don't half get their sh*t together quickly!

Loss of CC Licence = End of Business.

[ladybird17]

Dave777 - as mentioned by Pam, Joneshousehold has posted on the matter of the "offence" and see my post#5337 which backs this up and clarifies ( I think!) the difference between summarily and indictable.

Schedule I of CCA makes this quite clear.

 

I note you have posted about "civil penalties" - spot on - because there is no such thing as a "civil offence". So I think you have answered your own question.

 

The judiciary deal with "civil" law and "criminal" law.

If there is no such thing as a civil offence (although there is a civil penalty), by definition it must be a criminal offence.

 

I (humbly?)stand corrected - see subsequent post.

[m55dlc]

Well I am shocked and disgusted! TurdyBirdy would not DARE to flirt with my first love of CAG, that will be Persues, on the MBNA forum. What a shocking culinary harlotting hussy she is.:o

 

Pers, get your ass straight back to where it belongs before I have to admonish you!!!

 

Tam, pass me a whiskey, I think I am in need.

 

Do they not know that I subscribe to this thread.......HOW RUDE:o

It's like that then is it Corn? Huh? Pers not me? Huh?

[ladybird17]

oh m55 - I though you rapped for only me:(

[angry cat]

Hi Guys!

 

The following is the wording of an email dated 14/12/2006 that I received from my local TS Fair Trading Officer-

 

"Section 78 of the Consumer Credit Act 1974 refers to the duty of the creditor to give information to the debtor under a running account credit agreement.

 

The section states that if the default continues for more than one month then an offence is committed. The penalty for this offence can be a fine of up to £2500.00 and up to six months imprisonment.

 

If such an offence has occurred, this is something that will be considered by the most appropriate Trading Standards, as to what action to take.

Any action which may or may not be taken regarding any offence would not affect your civil case against the trader.

 

If the creditor fails to comply with section 1. which relates to aupplying a copy of the agreement to the debtor on request, he is not entitled, while the default continues to enforce the agreement. Therefore you could try and argue that the trader cannot continue to pursue you all the while they are unable to provide a copy of the agreement.

 

I hope the above information will be of assistance to you".

 

Please forgive any typo's as I have typed this out freehnad from the TS.gov email...I cannot imaging that any TS local gov. employee would state the above in an email, if the information was not correct.

 

As soon as I can speak to my TS FT officer I will ask her where she obtained the info from.

 

Love AC

[Cornucopia]

It's like that then is it Corn? Huh? Pers not me? Huh?

 

But M, I had to stop leaving you kisses cos you told me off!!!!

 

Now go check your e-mails would you.................! We have an agreement situation to deal with!!!

[Rhia]

Herein I think lies the problem and the fact that we are discussing if this is an offence at all.

Now this is just my take on this but I think the problem lies with Trading Standards and their lack of action with regard to this particular consumer problem. They are good at stuff like clocking cars, short measures etc but this is one where I suspect that due to lack of resources they don't pursue these breaches of the CCA.

We could do with someone from TS explaining why they don't. But it is clearly punishable by fine or imprisonment yet I suspect no-one has been fined, let alone imprisoned. :?

[m55dlc]

But M, I had to stop leaving you kisses cos you told me off!!!!

 

Now go check your e-mails would you.................! We have an agreement situation to deal with!!!

 

Corn

 

You sent them to my HOME email address, I am not at HOME. I am at WORK, could you send them to me at WORK then?

[SteveH2508]

Herein I think lies the problem and the fact that we are discussing if this is an offence at all.

Now this is just my take on this but I think the problem lies with Trading Standards and their lack of action with regard to this particular consumer problem. They are good at stuff like clocking cars, short measures etc but this is one where I suspect that due to lack of resources they don't pursue these breaches of the CCA.

We could do with someone from TS explaining why they don't. But it is clearly punishable by fine or imprisonment yet I suspect no-one has been fined, let alone imprisoned. :?

 

I think that the discovery of S78 offences is a new phenomenon, mainly courtesy of CAG. The discussions/arguments we have been having illustrates why TS will fight shy of prosecuting.

Remember:

Criminal offence = prosecution must prove case beyond reasonable doubt

Civil action = winner must prove on the balance of probabilities

 

There are so many possible scenarios (no paperwork; unsigned paperwork; application forms with or without prescribed terms etc.. etc..) that TS are going to follow the non-controversial route for the moment. IF a Letter of Warning gets issued to a bank/CCP and they do not get their act together afterwards, then, and only then, might a prosecution ensue.

 

Even if a prosecution were to be successful, it would not affect your civil rights/remedies.

[Guest The Terminator]

Herein I think lies the problem and the fact that we are discussing if this is an offence at all.

Now this is just my take on this but I think the problem lies with Trading Standards and their lack of action with regard to this particular consumer problem. They are good at stuff like clocking cars, short measures etc but this is one where I suspect that due to lack of resources they don't pursue these breaches of the CCA.

We could do with someone from TS explaining why they don't. But it is clearly punishable by fine or imprisonment yet I suspect no-one has been fined, let alone imprisoned. :?

 

The problem is that TS don't have the resources to take the banks,dca etc to court and the banks know that and flout the law accordingly.As I said in one of my post's the other night the chances of them being imprisoned are slim to mega slim and looking at it from working in law a judge would just fine them the Level 4 fine and obviously if they didn't pay they would be held in contempt of court which carries a custodial sentence.Anyway as a taxpayer I would feel agrived to having to pay for keeping a certain Mr M in prison for two months at a cost of over a grand a week.

[InKogneeToh]

The problem is that TS don't have the resources to take the banks,dca etc to court and the banks know that and flout the law accordingly.As I said in one of my post's the other night the chances of them being imprisoned are slim to mega slim and looking at it from working in law a judge would just fine them the Level 4 fine and obviously if they didn't pay they would be held in contempt of court which carries a custodial sentence.Anyway as a taxpayer I would feel agrived to having to pay for keeping a certain Mr M in prison for two months at a cost of over a grand a week.

 

Hi

 

Well perhaps we need to go straight to the OFT. I know that they don't deal with individual cases but if everyone got together according to which lender/DCA has not complied then sent a collective complaint for each (with individual cases attached) to them, then surely they would have to look at the number of complaints against any particular offender, in terms of fitness to hold a CCA license.

 

Just a thought!

 

Regards, Pam

[Guest The Terminator]

Hi

 

Well perhaps we need to go straight to the OFT. I know that they don't deal with individual cases but if everyone got together according to which lender/DCA has not complied then sent a collective complaint for each (with individual cases attached) to them, then surely they would have to look at the number of complaints against any particular offender, in terms of fitness to hold a CCA license.

 

Just a thought!

 

Regards, Pam

 

Good point Pam especially about the fitness to hold a CCA license

[un1boy]

As it has been pointed out to me on a few occasions, this thread is very absorbing with well over 5000 posts.

 

Nearly everybody within this thread is of the understanding that the CCA non-compliance request is a criminal offence. Last night I suffered a backlash from many other caggers for suggesting that it wasn't criminal, there is no penalty of imprisonment and abosultely no basis to report such an offence to the police as suggested by one poster.

 

I stand by all of my comments.

 

Dave, it is a civil offence from my research!

[ladybird17]

how can there be a "civil offence"? There can be a civil penalty, but a civil offence????

[Fullyskinted]

Hi Guys!

 

The following is the wording of an email dated 14/12/2006 that I received from my local TS Fair Trading Officer-

 

"Section 78 of the Consumer Credit Act 1974 refers to the duty of the creditor to give information to the debtor under a running account credit agreement.

 

The section states that if the default continues for more than one month then an offence is committed. The penalty for this offence can be a fine of up to £2500.00 and up to six months imprisonment.

 

If such an offence has occurred, this is something that will be considered by the most appropriate Trading Standards, as to what action to take.

Any action which may or may not be taken regarding any offence would not affect your civil case against the trader.

 

If the creditor fails to comply with section 1. which relates to aupplying a copy of the agreement to the debtor on request, he is not entitled, while the default continues to enforce the agreement. Therefore you could try and argue that the trader cannot continue to pursue you all the while they are unable to provide a copy of the agreement.

 

I hope the above information will be of assistance to you".

 

Please forgive any typo's as I have typed this out freehnad from the TS.gov email...I cannot imaging that any TS local gov. employee would state the above in an email, if the information was not correct.

 

As soon as I can speak to my TS FT officer I will ask her where she obtained the info from.

 

Love AC

 

 

This is very helpful.

 

See my latest events in the 'other' long CCA thread...

 

http://www.consumeractiongroup.co.uk/forum/other-institutions/10900-loan-company-cannot-supply-95.html#post704604

[un1boy]

Hi

 

Well perhaps we need to go straight to the OFT. I know that they don't deal with individual cases but if everyone got together according to which lender/DCA has not complied then sent a collective complaint for each (with individual cases attached) to them, then surely they would have to look at the number of complaints against any particular offender, in terms of fitness to hold a CCA license.

 

Just a thought!

 

Regards, Pam

 

 

I agree entirel with this Pam and urge everyone to complain to the OFT with details of theri sec 77-79 requests - don't forget that after 7th April, they also have to pay around 450 per complaint!!