Cap1 & CCA return

[car2403]

Great thread! I'm yet to read it all, though.

 

I'm facing Court action from HFC Bank after CCA'ing them on 2 accounts and they failed to provide 1 of the agreements (about £1000 balance) which is now unenforceable and the Court action seems to be their retaliation to that with the other agreement. I don't think it contains the prescribed terms, but I'd appreciate some advice either in reply to this post or on my thread, found here;

 

http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/110146-car2403-hfc-bank-default.html#post1107155

 

I've just acknowledged the Court Claim and don't really want to rely on Citizen's Advice - there's clearly more expert opinion on this forum, but sadly not in the Default sub-forum?

[car2403]

Hello Patrick1

 

Sorry for the delay. I don't think I have enough material or grounds to start a thread on this one, but am looking for some urgent advice. I have a Sky Credit Card, that along with other creditors, got into arrears last year. Bereavement of next of kin, had to go to India, lost my job etc. Anyway, early in March I agreed to a payment plan. They then terminated my account, I have continued to pay the £50 per month. I receive statements from Sky every month saying I have x amount available to spend. When I queried it with them, they said its the way their system works & even though the statements say that I have available credit, the account has been closed! I really didn't care as long as they didn't add any interest. The £600 balance has been halfed now. The Payment Plan ends next month. But I received a letter last week to say that when the Payment Plan ends, unless I prove otherwise, they will assume that my financial situation has changed and that I can afford my minimum payments. This will be calculated according to the T& C . I rang them to say that's fine by me as long as the card is still valid. I am not intending to use the credit facility but in order to do some credit repair I need to have this credit card live & running. That way I can maintain payments & improve my credit ratings. Paying minimum payments works in my advantage any way as that would only be around £20 per month in contrast to the £50 that I am paying now. But to my shock I was told that when the payment plan ends & they start adding contractual interest etc the credit facility will still not be allowed. In other words, the account will remain closed.

 

My query is can they do this? How can they add contractual interest on a closed account yet disallow the credit facility? Isn't that unfair to the debtor? They said to me that they have not terminated the agreement only terminated the account. How is that possible? The contract says they provide me credit account & I will pay contractual interest. Not interest without the credit?

 

I have been asked to write in to complain if I need to, but don't know what grounds to base my complaint on.

 

 

Any help would be much appreciated.

 

Thanks a lot.

 

I've had the same issue with Barclaycard. (Also don't think there's enough info for a new thread!)

 

I paid 3 x monthly payments via the CCCS. (Due to another creditor not accepting my version of my income and expense report, but that's another story)

 

As soon as they received confirmation a third party was paying, Barclaycard reduced the credit limit to my balance and prevented me using the card.

 

I made payments after this (and the CCCS payments met the minimum payment required for those 3 months) in accordance with T&C's, still applying interest - when the account reached £0.00, they closed it and refused to open it again as "the collections team closed the account 2 years ago" but failed to tell/communicate that to me.

 

I've looked at their T&C's and can find nothing to suggest they can't do this, so I'll be interested to hear the answer to this one too.

[car2403]

Great thread! I'm yet to read it all, though.

 

I'm facing Court action from HFC Bank after CCA'ing them on 2 accounts and they failed to provide 1 of the agreements (about £1000 balance) which is now unenforceable and the Court action seems to be their retaliation to that with the other agreement. I don't think it contains the prescribed terms, but I'd appreciate some advice either in reply to this post or on my thread, found here;

 

http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/110146-car2403-hfc-bank-default.html

 

I've just acknowledged the Court Claim and don't really want to rely on Citizen's Advice - there's clearly more expert opinion on this forum, but sadly not in the Default sub-forum?

 

Just giving this one a little bump, if you don't mind.

 

Could really do with some expert help here and I thought this would be the best place to ask for it.

 

Sorry for hijacking... again...

[car2403]

Hi Have i done this before

dejavu

 

Anyway

 

The agreement seemstto have all the prescribed terms the APR works out at 2.67% as i think has been mentioned beore the maximum that the TCC regulations alow for an agreement to be in error is .1%below the actual APR.

Got to be a bit careful here i have calculated the APR as if you started payng the loan back the month following the date the credit was given if you started paying earlier or later than this the APR will be different.

 

Having said that you can claim that the agrement is improperly executed under section 65 and also that the incorrect APR pedudiced your ability to make an informed puchasing desision and therfore by section 65 and 127(1)i ask for any appliction for an enforcement order to be thrown out.

 

I don't know the success rate of this but i have heard of people getting there agreement changed as the court as the right to do to the debtors benifit under this section.

 

Best regards

Petr

 

Thanks Peter!

 

Can you tell me how you worked the APR out? I used an APR calculator (Loan Calculator) that comes out with 2.42%, which is within the 0.1% permissible tolerance, so I'm interested to see where the 2.67% comes from as it will strengthen my Defence.

 

With the other issues I have in my draft Defence, I think I can get any application for an enforcement order dismissed anyway - (thats if they accept the improper execution under s.65 and s.127(4b) being against an enforcement order) this is just the final nail in the coffin! I'm seeking total unenforceability. (If there is such a word)

[car2403]

Quick question - is a CCA that is signed but neither signature (mine, or their Agents) is dated. Does this mean the agreement is unenforceable, or enforceable with a Court order only?

 

In this position with GE Money;

 

http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/110148-car2403-ge-capial-bank.html[url=http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/110148-car2403-ge-capial-bank.html][/url]

[car2403]

Thanx again Tom, however TS have not taken action either against NR or 1C despite their being a clear case (missed timelines) for them to do so.

 

I've attached the agreement for opinion - Enforceable or not. They (NR & 1C) have also failed to provide any T&CS despite numerous requests.

 

http://i189.photobucket.com/albums/z61/conar686/NthRockagreementv2.jpg

 

 

I can't see any statements of the debtors right of cancellation as required by s.64(1) and Reg.2(3) of the Consumer Credit (Agreements) Regulations 1983. (SI1983/1553), so it's improperly executed under s.64(5). Any application for an Enforcement Order - s.65(1) - as a result of this improper execution under s.64(1), must therefore be dismissed by the Court by virtue of s.127(4)(b). If it's a cancellable agreement.

Also can't see any details of the protection and remedies available under the Act, as prescribed in s.60(1) and the regulations. (SI1983/1553) They can get a s.65(1) Enforcement Order here, but you can argue you are prejudiced under s.127(1)(i).

Peter is our resident expert, so I'm sure he'll confirm all this for you. (and me, hopefully!)

[car2403]

Peter is correct in his assumption that there was no face to face, this loan was applied for after receiving a flyer through the post. However there is no remedies statement on the signature page and I think this makes it unenforceable without an order from the court. The remedies disclaimer is more than likely in the T&Cs that they've never sent.

 

Any further comments welcome.

 

rgds

 

Mac

 

If they've failed to provide the T&C's, they can't now rely on them to request an enforcement order, can they? Hardly seems fair if they can.

[car2403]

Hi,

 

I think you're referring to In Running Credit Agreements where the above would apply, as far as I'm aware prescribed terms for fixed sum agreements are Repayments and Amount of Cedit.

 

Since your agreement was pre 2004 and there was no antecedant contact prior to the agreement being signed it would seem this is a Cancellable agreement. However, I did notice it said it said ''by signing the agreement you confirm that the information is correct.....etc and you agree to the terms above and overleaf.'' Cancellation rights may well have been on the flip side of the document.

 

regards,

shane

 

But...

 

If they've failed to provide the T&C's, they can't now rely on them to request an enforcement order, can they? Hardly seems fair if they can.

 

I wonder what a Judge would say? Inadmissible evidence as not provided as part of the CCA request? Absence of T&C's provided have prejudiced, so refuse an Enforcement Order?

 

Sounds like a lottery to me...

[car2403]

Only 108 posts (well, 107 now!) to go to 10,000 posts!

 

World Record?

 

[car2403]

Who are you talking about:confused:

 

This thread

 

[car2403]

Peter/All,

 

I have another agreement I'd like to you have a look at, if you don't mind.

 

This seems to be a response to a CPR request under my HFC Bank claim and a second agreement has suddenly surfaced;

 

http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/110146-car2403-hfc-bank-default-4.html#post1186453

 

Isn't signed by HFC Bank?

 

Your thoughts on it? Have to compose a Defence/Counterclaim this week, (with tomterm8's help, of course!) so I'd appreciate a quick turnaround. (If that isn't too cheeky!)

 

Thanks,

Chris

[car2403]

Hi Paul,

 

In that situation I don't think it would hold up in court. Though the default notice is supposed to be wholly accurate, in Woodchester v Swaine the court did mention an error that can be described as minimal could be overlooked.

'The court commented that a de minimis error may be overlooked.'

 

regards,

shane

 

but;

 

"Accordingly, the assistant recorder had been incorrect to hold that the default notice was not rendered defective by alleging an amount which was in excess of the sum necessary to remedy the breach"

[car2403]

And:

secondly, you don't have ana enforcable agreement and any attempts to call me for collection are attempts to enforce it, are they not?

 

Thanks for confirming this- I'm sure the Judge will love this!!

 

I don't think this is right - if the agreement is unenforceable that doesn't mean that the debt doesn't exist? If you haven't drawn on the card, or used the credit, or even applied for the card yourself you may be able to use that argument against enforceability.

 

Remember - "no CCA=unenforceable debt", not "no CCA=no debt"

 

If you're in dispute with them, they shoudn't be hounding you like that - company policy or not!

[car2403]

Car, there is no agreement!

 

This is an application form of some sort.

 

Even if it was an agreement, the whole whole agreement becomes unenforcbale even with a court order if the prescribed terms are not on the sig doc, therefore they cannot make any attempts to enforce the agreement.

 

I think you're confusing "enforcement" with "collection", personally? As you have had some funds from them (presumably!) they will probably have an "equitable right" to attempt collection within the law - i.e., not to harrass you for payment.

 

They can't enforce the debt if the agreement isn't regulated, but that won't stop them attempting collection as the "debt" still exists regardless of it's legal basis.

[car2403]

i must say this has left me a little confused by that statement.

 

statute says not enforcable full stop, equity will not override a statute surely.

 

regards

paul

 

No, you're right - it won't - but this is why I brought it up in response to the question asked. Equity will (arguably, and I completely propose we don't even go there!) state that they can collect on an outstanding debt, while the law will say they can't enforce it against the debtor.

 

oh,sorry, heads a bit of a mush this morning,

 

i misunderstood what was posted thats all

 

i understand now

 

regards

paul

 

Don't worry Paul, that could be because I'm being a McMuffin, as TomTerm words it, (which is a brilliant phase that I've now coined as my own!) in introducing equitable arguments on a thread that is about the legality, or otherwise, of an agreement.

 

I'll get back in my basket, now.

[car2403]

This is the Information Commissioners Office's stance as well, the debt stipulates a valid contract allowing the creditor to continue processing your data by virtue of Section 2(A) of Schedule 2 of the Data protection act regardless if an agreement exists or not!!!

 

regards,

shane

 

This is a whole thread on it's own - and I believe some even exist - because where a contract is void in that it doesn't meet the basics of the CCA, doesn't automatically mean that the consent to process within that contract ceases to exist.

 

Not my opinion, before I get anyone's back up, but this is the way the ICO seems to want to play it.

[car2403]

Only 108 posts (well, 107 now!) to go to 10,000 posts!

 

World Record?

 

 

Blimey! I just got the 10,000th post to this thread! That is purely coincidence and I, in no way, admit to spending my life reading/replying to this thread!

 

Is there a prize, mods?

[car2403]

I understand, but sec 59(1) says that's the case!

 

I don't understand your point, un1boy?

 

59.—(1) An agreement is void if, and to the extent that, it purports to bind a person to

enter as debtor or hirer into a prospective regulated agreement.

(2) Regulations may exclude from the operation of subsection (1) agreements such

as are described in the regulations

[car2403]

Unfortunately as the agreement is settled, they do not have to comply at all:

 

77(3) Subsection (1) does not apply to—

 

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

 

Agreed, but that doesn't mean you can't bring an action against unlawful Default/Termination - which you're in your rights to do, as they've offered no evidence that they have done this right - and ask the Court for full standard disclosure at the AQ stage, which will mean that they have to find a properly executed (and signed!) agreement and a true signed certified copy of the original Default Notice during the trial.

[car2403]

Peter, another clarification question;

 

Overdrafts?

 

They are covered by s.10 CCA as "running account credit", but are exempt (right terminology?) from having a properly constructed agreement with all the prescribed terms, right?

 

But I've read here that they would have to have made the customer informed of the limits/interest rates when they provided the overdraft - which part of the Act/Regs covers these and does the effect of not complying with those mean that the overdraft could be, or definately is, unenforceable?

 

Also, is the s.88 Default Notice and subsequent Termination Notices compulsory on overdrafts? Again, which part of the Act/Regs cover it?

 

Is there anything else - in relation to overdrafts - that I should be asking and if so, what should/would the answer(s) to those questions be?

[car2403]

Thanks Paul - do you think it's fair to say that a failure under a s.76 Termination Notice in line with that in Woodchester Lease Management Services Ltd v Swain & Co (which was a failure under a s.88 Default Notice to be accurate) would apply here? The reason I ask is that a s.88 Notice isn't required for an overdraft, but - at least arguably - a s.76 Notice should contain the same level of accuracy?

 

I won my claim for charges against Barclays, without them defending the case despite turning up. I'm now trying to argue that the s.76 Notice was inaccurate as it contained the value of the charges, rendering it an unlawful termination - and I'll argue that Woodchester Lease Management Services Ltd v Swain & Co applies. But what are the chances?

 

Still interested in hearing about prescribed terms for overdrafts too, as I haven't had any but need to construct some POC before issuing?

[car2403]

Yes the principle is the same the figure must be accurate if it isn't the notice is invalid imo.

 

Have you read my Draft defence?

 

Paul

 

Your RBS defence? Just read it - I'll apply the same principles of Default balances being correct against Termination notices as being correct in that case.

 

Is it just me, or are all Default/Termination notices now questionable since the Bank charges fiasco? What I don't understand is why they insist on non-removal without a Court case when the law is substantive and comes from primary legislation! They don't have a leg to stand on and are hoping we are so stupid that we can't even read!

 

(Rant over, but this is relevant to a CCA thread as well...)

[car2403]

Peter, another clarification question;

 

Overdrafts?

 

They are covered by s.10 CCA as "running account credit", but are exempt (right terminology?) from having a properly constructed agreement with all the prescribed terms, right?

 

But I've read here that they would have to have made the customer informed of the limits/interest rates when they provided the overdraft - which part of the Act/Regs covers these and does the effect of not complying with those mean that the overdraft could be, or definately is, unenforceable?

 

I think I've just answered (or, rather, Peter has!) my own question;

 

HI

Bank current accounts are not covered by the CCA 1974 they are regulated by the FSA.

The overdraught is a running credit account and is. however due to section 74 of the act and a ruling made by the regualtor no sepperate agreement is required for it.

There should have been notification made available the debtor at the beginging of the overdraft however of the credit limit and the interest to be charged on it.

Best regards

Peter

 

Hi

 

Overdrafts are normally not subject to those elements of the Act governing form and content of an agreement(sectionV). This is because the OFT has issued a Determination under Section 74(3) of the Act excluding overdraft agreements from the need to comply. As a result of this there is usually no written agreement that a consumer can request under Section 78 of the Act. However, I should note that any Bank wishing to avail itself of the benefit of the Determination must notify the OFT of its intention to do so and is required to provide information to the prospective debtor. Specifically, the creditor must provide, in writing, at the time the agreement is concluded or before details of the credit limit if any, the annual rate of interest and any charges available, and the process for terminating the agreement.

Typically banks make such information readily available via a variety of media on an ongoing basis.

I went through all this with my sons student account,.Bank accounts of course are not covered by the cca as they are regulated by the FSA and there fore do not have to produce documents asked for under that act, the overdraft however is unfortunately due to it's exception from part V their is no agreement made so none can be provided .

 

Best regards

Peter

[car2403]

Would I be right in thinking then that the "if any"would apply to overdrafts?

 

Blodwyn:D

 

This has already been decided, hasn't it?

 

Below is an extract from

 

http://www.lacors.gov.uk/lacors/upload/5883.DOC

 

1.1 What is covered by the s74 determination?

 

A determination under s74(3) was made by the OFT with effect from 1 February 1990. It applies to d-c agreements enabling the debtor to overdraw on a current account, under which the creditor is a ‘bank’ as defined in the Bankers’ Books Evidence Act 1879, provided that certain conditions are satisfied – see Q1.5.

 

A separate determination was made in respect of certain agreements connected with the death of a person.

 

Copies of the determinations may be obtained from the OFT.

 

Agreements covered by a s74(3) determination, and satisfying the relevant conditions, are exempt from most Part V rules including s61(1) on execution. However, the Agreements Regulations will apply to any document embodying such an agreement, and to any term expressed in writing – see Q1.2.

 

1.2 Are all bank overdrafts exempt?

 

The s74 determination in respect of bank overdrafts (see Q1.4) applies subject to the following conditions:

· the creditor must inform the OFT in writing of his general intention to enter into such agreements;

· the debtor must be informed, at or before the time an agreement is concluded, of the following:

o the credit limit (if any)

o the annual rate of interest and any charges applicable, and the conditions under which these may be varied

o the procedure for terminating the agreement;

· the above information must be confirmed in writing.

 

Furthermore, where a debtor overdraws a current account with the tacit agreement of the creditor, and the account remains overdrawn for more than three months, the creditor must inform the debtor in writing not later than seven days after the end of that period of the annual rate of interest and any charges applicable.

[car2403]

Hi all,

 

 

can someone check the following for me

 

Alliance and leicester car loan

 

Has a deferred option, where after 36 months you can pay a lump sum, or carry on paying monthly

 

I believe the APR is incorrect

 

I have used the OFT's dual calc application but I need to check with you folks as well before I start getting excited

 

Loan amount 11,000

35 payments of 240.14

36th Payment (to include final lump) 4,640.14

 

APR given on document: 8.9%

 

I make it 9.1% via Dual Calc, anyone?

 

(if this is correct, is 0.2 enough to make it incorrectly stated and therefore unenforceable??)

 

I haven't checked these figures, but if your calculations are right this is within the allowed tolerance zone;

 

Permissible tolerances in disclosure of the APR

1A. For the purposes of these Regulations, it shall be sufficient compliance with the requirement to show the APR if there is included in the document -

(1) a rate which exceed the APR by not more than one; or

(2) a rate which falls short of the APR by not more than 0.1; or

(3) in a case to which either of paragraphs 2 or 3 below applies, a rate determined in accordance with the paragraph or such of them as apply to that case.".