Cap1 & CCA return

[tamadus]

Hi

regarding the sectio 59 issue apparently we need to find

The Agreements to enter Prospective Agreements)

(Exemptions) Regulations 1983(a)

according to the 1983 regs i have tried ti find them on line i dont know if anyone esle might have more luck

Otherwise it is back to the library

 

Regards

Peter

r

 

 

 

If they are 1983 regs then it's off to TSO yet again as they wont be online.

[adarling2006]

i've been following this thread with great interest, and fair enough i've not read all 339 pages of it, but i will get around to it slowly. the main reason is what tamadus say's is to debate on the issues of the CCA 1974 and it's complexities. when this is all said and done i think a few beers will be in order for the pioneers of this thread.

[joneshousehold]

Good work Peter. I think this latest revelation sounds promising. I need to think what this all means. Most of my stuff has cancellation boxes, even those that are clearly application forms but I am still intrigued about the impact of S59. It is the finality of the signing of the document that seems to be the crucial factor.

[un1boy]

This is great news to a lot of us and warrants more time and study so we can plan the best line of attack. Well done, yet again Peter.

 

 

 

Here here!

[d1cky]

ive read a bit on this thread but thier is soo much here, and it jumps a bit from time to time, jus for the benifit of ppl that have not been following could u explain in as much plain english as pos wot this thred is about! i know we could read but thier are so many posts jumping about it gets a bit confusing and would take forever and a day to read. would be much appreciated by many i think, ta

[zubo]

ive read a bit on this thread but thier is soo much here, and it jumps a bit from time to time, jus for the benifit of ppl that have not been following could u explain in as much plain english as pos wot this thred is about! i know we could read but thier are so many posts jumping about it gets a bit confusing and would take forever and a day to read. would be much appreciated by many i think, ta

 

d1cky

 

try here for a summary, strategy and sample letters

 

http://www.consumeractiongroup.co.uk/forum/site-questions-suggestions/79147-consumer-credit-act-resources.html

 

Z

[tamadus]

ive read a bit on this thread but thier is soo much here, and it jumps a bit from time to time, jus for the benifit of ppl that have not been following could u explain in as much plain english as pos wot this thred is about! i know we could read but thier are so many posts jumping about it gets a bit confusing and would take forever and a day to read. would be much appreciated by many i think, ta

 

d1cky,

 

It's not easy to summarise this thread in a few words. Basically though we are slowly working through various aspects of the consumer credit act and working out what if any relevence thay may have and if the various companies have actually complied.

 

Where we find that compliance is suspect some of us are then going on to challenge both the compliance and the enforceability of any alleged agreements.

 

Hope that helps

[iconoclash]

Hey Peter - I know you are the guy for this query of mine, I'm trying to get my wording together for a hearing 16th : application to set aside a CCJ which is based on an agreement regulated by the CCA Act 1974, and is not in the prescribed form, I am going for the 'unenforceable' element S.60, and I think, Statutory Instrument 1533/1983. I believe I should also use sections relevant to Unfair relationships, (127) as I do not have a copy Agreement from the creditor, after signing in the shop, where the copy they rely on is signed by me and their representative only. My agreement states NON cancellable. Would I be right to add that other bit??

[angry cat]

Hi Guy's,

Just for the avoidance of doubt, I wish to make it clear to other members that this (my) post caused another BAG/CAG member to ask questions:-

 

http://www.consumeractiongroup.co.uk/forum/general/33174-consumer-credit-act-agreements-334.html?highlight=consumer+credit+agreements#post804293

 

Of which I did not recieve a response? (no matter)

 

Now, a BAG/CAG member asked for an answer/response relating to my post because he/she finds him/herself in a similar predicament. However, the post in which the question, or questions were raised showed arrogance and sarcasm...possibly caused by stress from debtland!!!

 

http://www.consumeractiongroup.co.uk/forum/general/33174-consumer-credit-act-agreements-339.html?highlight=consumer+credit+agreements#post816381

 

Please let me make it quite clear that this forum is not cli'quy...a clique.

 

We all need each other and I am sad to see that this particular BAG/CAG member has deleted ALL posts from every single forum on this website!!!

 

Very Bad/Sad

 

Love AC

[yaffsimone1]

Hey Peter - I know you are the guy for this query of mine, I'm trying to get my wording together for a hearing 16th : application to set aside a CCJ which is based on an agreement regulated by the CCA Act 1974, and is not in the prescribed form, I am going for the 'unenforceable' element S.60, and I think, Statutory Instrument 1533/1983. I believe I should also use sections relevant to Unfair relationships, (127) as I do not have a copy Agreement from the creditor, after signing in the shop, where the copy they rely on is signed by me and their representative only. My agreement states NON cancellable. Would I be right to add that other bit??

 

 

Campari2 i am too trying to get a CCJ set aside after finding out they do not have a credit agreement. I admitted the debt and they accepted my offer but i now know the enforeced the debt illegally. However my problem is from the date of judgement 5th March to now is more than 14 days, which is the time allowed for a set aside in the forms. How long has it been between your judgement and set aside? just wondred if im going to have any luck with this because of the time passed.

[iconoclash]

Yaffsimone - it is a few months since mine however - the judgement was made by the judge, based on the facts presented to him/her, on the day!

 

I now wish to state my case based on the fact that I have obtained new information that causes me to dispute the original debt. Hows that?!

 

Also, I was not present at the original hearing, and in my case there were some errors on the part of the court staff, but this should not make a difference to you putting in an application to set aside. Quote which parts of the CCA you rely on. Pay the £35, or £65 !! if the other side do not agree, which they won't of course. Good Luck.

[yaffsimone1]

Quote which parts of the CCA you rely on. Pay the £35, or £65 !! if the other side do not agree, which they won't of course. Good Luck.

 

I will have to quote all of the CCA. They dont have a credit agreement. After the judgement was entered i wrote to them asking for a copy of the agreement, they replied 'Miss ***** we dont have one!'

[iconoclash]

Yaffsimone - I must stress to you that I am not a legal bod but giving you an opinion of mine, based on personal dealings with such issues, however, I know that there are many well informed persons on this forum that will add to your query. There are answers in here already regarding 'lack of agreements' and the proper course of action. When I spoke of the CCA is meant the Consumer Credit Act, rather than your actual agreement. If you do not have one, and they even admit to not having it, then I do think it cannot be enforced. Possible part from the Act as follows: Section 127 (3) precludes the court from making an enforcement order if section 61 (1) a (signing of agreements) was not complied with. There are probaly several sections you could refer to but hold on for some definative answers.........also read through the CCA from the available links in here if you can. To put an application through the court will entail paying a fee, their costs lists are available on the hmcourts service web, there is scope for not paying fees for those on benefits etc. Hope this helps.

[Peterbard]

Good work Peter. I think this latest revelation sounds promising. I need to think what this all means. Most of my stuff has cancellation boxes, even those that are clearly application forms but I am still intrigued about the impact of S59. It is the finality of the signing of the document that seems to be the crucial factor.

 

Hi

 

Yes i am hoping that this will be another weapon in the arsonel to use against shonky creditors.

If you remember we looked into this some time ago but where unsure if this section related to the current agreement or some other future account mentioned in it, i think it was Pam that suggested this and in all fairness it sounded logical so the item was dropped.

However the section 59 kept cropping up and i never felt comfortable with it so i included the query in most of my correespondence with the OFT.

From the latest reponse it appears that it does apply to the currently execiuting agreement, and that there is an SI dedicated to exemptions to the secton.

We know that the act applies to an uncancellable agreement made away from Trade premises with no prior contact (before the DMR).

 

That was another thing that always bothered me ,why did these earlier "distance" contracts contain the cancellation notices?they didn't have to according to the CCA.

Well now we know it was because section 59 would have made them void otherwise.

 

THe thng now is to get hosd of the SI and find out exactly what section 59 does apply to.

 

There is mention of the regulations in the 1983/1553 but i have not yet been able to get a coppy.

 

It seems to me that the section was intruduced in oder to protect the debtor from signing an agreement and having no rights to cancell or see that the agreement was properly executed by the debtor.

If this is the case you would think that it would also apply to other non cancellable agreements,the ones signed on debtors premisses for instance.

 

This is speculation at this stage of course but i think it is worth exploiring.

I like the use of the word Void in the section,not unenforceable not incorrectly executed but void.ie nothing in it no permission to share data no repaymen schedule was ever agreed.

 

Regards

Peter

[Peterbard]

Hey Peter - I know you are the guy for this query of mine, I'm trying to get my wording together for a hearing 16th : application to set aside a CCJ which is based on an agreement regulated by the CCA Act 1974, and is not in the prescribed form, I am going for the 'unenforceable' element S.60, and I think, Statutory Instrument 1533/1983. I believe I should also use sections relevant to Unfair relationships, (127) as I do not have a copy Agreement from the creditor, after signing in the shop, where the copy they rely on is signed by me and their representative only. My agreement states NON cancellable. Would I be right to add that other bit??

 

 

HI C

 

I an sorry i have not replied before i have been in hospital for a few days ok now though.

Please feel free to use the letter.

You would not be able to hit them with the uneforceability issue under section127(4) as the agreement was uncancellable.

 

However may i ask if the document was signed at the same time by the creditor.

 

Regards

[Mike220359]

HI C

 

I an sorry i have not replied before i have been in hospital for a few days ok now though.

Please feel free to use the letter.

You would not be able to hit them with the uneforceability issue under section127(4) as the agreement was uncancellable.

 

However may i ask if the document was signed at the same time by the creditor.

 

Regards

Sorry you've been poorly mate, hop you are OK.

 

Back to section 59 business, which SI are they referrring to.

 

MIke

[Peterbard]

Hi

regarding the sectio 59 issue apparently we need to find

The Agreements to enter Prospective Agreements)

(Exemptions) Regulations 1983(a)

according to the 1983 regs i have tried ti find them on line i dont know if anyone esle might have more luck

Otherwise it is back to the library

 

Regards

Peter

Hi Thanks i feel much better now i don't know the number but the title is above. I would expect them to be in the 1500/ 1600 range but that is just a guess

 

Regards

Peter

[ladybird17]

Just a quick drop in to let you all know that MBNA sent me a copy of a credit card mailer in response to my CCA request, which according to the young lady I spoke to on the phone, satifies S78 of the CCA 1974. And it arrived only just short of two months after the initial 12+ 2 days.

 

I told her they could not enforce agreement whilst in default, and read S78 to her and she kindly told me they hadn't "defaulted" me yet - I then had to explain that it was MBNA in default, not me, and also explain which party is the creditor and which the debtor.

 

It wears you out sometimes, doing their jobs for them.

[pford]

Hi

regarding the sectio 59 issue apparently we need to find

The Agreements to enter Prospective Agreements)

(Exemptions) Regulations 1983(a)

according to the 1983 regs i have tried ti find them on line i dont know if anyone esle might have more luck

Otherwise it is back to the library

 

Regards

Peter

 

Hi Thanks i feel much better now i don't know the number but the title is above. I would expect them to be in the 1500/ 1600 range but that is just a guess

 

Regards

Peter

 

think it might be these you are after. not been able to find online

 

Consumer Credit (Agreements to enter Prospective Agreements) (Exemptions) Regulations 1983

S.I.No1552

[InKogneeToh]

...

[hisholinessthepope]

Hi

 

That particular case involved a pawn agreement and was subject to a particular section of the CCA that states that a creditor may not enforce the security (pawn), or the agreement. Mrs Wilson had not paid any money in the first place, so it is not the case that she received any money back, only the items she had pawned.

 

That quote does not imply that a debtor will be entitled to reclaim monies already paid under an unenforceable agreement. Such an agreement is not void or invalid - it simply means that the creditor cannot force you to pay.

 

Regards, Pam

 

Pam,

 

in the Wilson case it is true that initially Wilson did not repay any monies. She then commenced proceedings and in the first court case the judge reduced the interest and Wilson appealed to the Court of Appeal. Pending the appeal Mrs Wilson paid £6900 to redeem her car.

 

The court of appeal then ruled the agreement was "unenforceable" and ordered the return of the repayment of the £6,900 plus interest of £662. "The overall result was that Mrs Wilson was entitled to keep the amount of her loan, pay no interest and recover her car." This was cause for concern and the case was moved on to the House of Lords, where the Attorney General appeared on behalf of the Secretary of State for Trade and Industry.

 

Cherry picking outrageously one bit for the House Of Lords, I like the following;

Lord Nicholls states

"72. Undoubtedly, as illustrated by the facts of the present case, section 127(3) may be drastic, even harsh, in its adverse consequences for a lender. He loses all his rights under the agreement, including his rights to any security which has been lodged. Conversely, the borrower acquires what can only be described as a windfall. He keeps the money and recovers his security."

Now I appreciate that the above paragraph concerns the security (her car) but the House of Lords did nothing about the court of appeal returning the monies she had paid. Would it be to large a leap to say one could recover all monies paid to an unenforceable agreement?

 

All comments welcome

[rippedoffagain]

Hi all

 

Just got off the phone from the collections dept of my favourite CCP

 

Classic

 

CCP You are in arrears of £xxx (large lump) can you pay that today?

 

Me No.

 

CCP Can you pay some of it?

 

Me No.

 

CCP Could you tell my why not?

 

Me Because you are in default of my CCA request

 

CCP Long pause Erm excuse me, I will put you on hold while I speak to a colleague. Long pause Could you tell me how far back you want the notes.

 

Me Pardon?

 

CCP Could you tell me how far back you want the notes.

 

Me I think you misunderstand, you have not complied with my CCA request.

 

CCP Long pause Erm excuse me, I will put you on hold while I speak to a colleague. Long pause. OK right I am sending this account to a different department, they will receive it tomorrow, so they have twelve days to send you the information.

 

 

 

[InKogneeToh]

Pam,

 

in the Wilson case it is true that initially Wilson did not repay any monies. She then commenced proceedings and in the first court case the judge reduced the interest and Wilson appealed to the Court of Appeal. Pending the appeal Mrs Wilson paid £6900 to redeem her car.

 

The court of appeal then ruled the agreement was "unenforceable" and ordered the return of the repayment of the £6,900 plus interest of £662. "The overall result was that Mrs Wilson was entitled to keep the amount of her loan, pay no interest and recover her car." This was cause for concern and the case was moved on to the House of Lords, where the Attorney General appeared on behalf of the Secretary of State for Trade and Industry.

 

Cherry picking outrageously one bit for the House Of Lords, I like the following;

 

Lord Nicholls states

 

"72. Undoubtedly, as illustrated by the facts of the present case, section 127(3) may be drastic, even harsh, in its adverse consequences for a lender. He loses all his rights under the agreement, including his rights to any security which has been lodged. Conversely, the borrower acquires what can only be described as a windfall. He keeps the money and recovers his security."

 

Now I appreciate that the above paragraph concerns the security (her car) but the House of Lords did nothing about the court of appeal returning the monies she had paid. Would it be to large a leap to say one could recover all monies paid to an unenforceable agreement?

 

All comments welcome

 

Hi

 

The reason why Mrs Wilson paid the £6,900 was because the 1st instance judge had declared the agreement enforceable and allowed her a certain time limit to pay the loan, failing which the court gave the creditor liberty to realise the security.

 

She had therefore paid this money under a ruling of the court, which was then overturned by the COA. Because the order of the 1st instance judge amounted to enforcement of the agreement (subsequently declared to be unenforceable) the creditor was ordered to return her payment + interest accrued since that 1st judgement.

 

These were special circumstances and do not set a precedent for general claims.

 

An unenforceable agreement is still valid and lawful. I have already lost a claim for reimbursement under an unenforceable agreement, where the judge ruled that any payments made according to the (still valid) terms of an unenforceable agreement are made voluntarily and therefore the creditor is entitled to retain them. 'Unenforceable' is not the same as 'void' - it simply means that a creditor cannot force you to pay!

 

I feel that any similar claim made at county court level is likely to be met with the same ruling. Any challenge to this would then have to be made on appeal - a costly and risky business! Only the COA and HL can change the law, county courts simply apply the general consensus!

 

Regards, Pam

[angel49]

Hi

I have received my credit agreement from HFC which looks fine and contains most everything it should. (I think!)

The only thing missing,is the little box with cancellation rights. Is this because it's a non-cancellable agreement? If so, what does that actually mean? it's from a loan (a re-write) conducted by telephone and sent for me to sign and return.

I've read and tried to understand the difference between cancellable and non-cancellable agreements but finding it a little daunting.

Could someone give it to me in one word syllables.............

Thank you

[ladybird17]

about as good as mine today with my favourite CCP, who told me they had complied with my CCA request...no you haven't......yes we have.......you haven't sent me a copy of the executed agreement under S78 of CCA....hold on I'll speak to my supervisor, yes we have, a credit card mailer satisfies the CCA......are you telling me that what you've sent me is a copy of one of my credit card mailers?.........Yes.