Cap1 & CCA return

[Peterbard]

This comes into effect in 2008 I believe.

 

Hi Pam

 

April 6th 2007 but this does not apply to any agreements made before this date.

 

Peter

[Peterbard]

Hi

An application for a card involves the issuer doing a credit check before accepting the application but in my opinion this is no different than a scenario where a customer signs an agreement in a trader's store (for example) and the agreement is then sent to a separate finance provider. The lender will still do a credit check etc. so the agreement will still be dependant on the lender's acceptance.

The difference is th creditor does the credit check then you sign at the momoent you sign it, it becomes executed The credit card scenario is the wrong way round the agreement is not executed until or if the credit is aproved.

As far as in store agreements are concerned the signature has to be the last thing on the agreement. Section 55 cca. It may be differnt for distance agreements.

 

Peter

[Peterbard]

hi

The agreement is enforceable albeit with a court order with only the debtors signature and the prescribed term. Section 127(3)

[Peterbard]

I have signed agreements on trade premises in the past where the agreement was not pre-signed by the creditor. It was then sent to the credit provider for approval who signed it after me. This is when those agreements became 'executed' which is similar to the credit card application process.

Section 55

55 Disclosure of information

 

(1) Regulations may require specified information to be disclosed in the

prescribed manner to the debtor or hirer before a regulated agreement is made.

 

(2) A regulated agreement is not properly executed unless regulations under

subsection (1) were complied with before the making of the agreement

 

Makes sense realy otherwise they could legaly alter the document after you had signed it.

This is also mentioned in the oft regs quoted earlier

Regards

Peter

 

Peter

[Peterbard]

The COA cannot override a HL decision.

 

Hi Pam

 

Sorry the ternminator was right the COA did overturn the judjes decision.

 

The judge rejected Wilson’s first claim but reopened the agreement and

substituted a lower rate of interest, and Wilson subsequently redeemed her car on payment of £6,900. However, she then successfully appealed against the judge’s decision as to the enforceability of the agreement, the Court of Appeal holding that s 127(3) clearly and undoubtedly had the effect of preventing the enforcement of the

original agreement and Wilson was entitled to the repayment of the money she had paid to redeem her car

 

Sorry Pam

 

The debtor must be the last to sign otherwise how can he/she be sure what they are agreeing to. It's all there in the act and the regulations.

 

Also

Section127(3) stops enforcement of agreements not signed or not containg prescribed terms that is all it does.

 

 

Regards

Peter

[Peterbard]

The OFT doc. has an explanation of definitions of some terms in the Act and agreement is defined as:

 

the agreement is the document embodying the credit agreement.

 

‘Embodying’ is defined in the Consumer Credit Act:

 

‘A document embodies a provision if the provision is set

out either in the document itself or in another document

referred to in it’.???

"A document in the prescrbed form containing all the prescibed tems" Look up prescribed form and see if it refers to sepperate docs

Peter

 

Peter

[Peterbard]

default under 77, 78 & 85 exists after 14 days, after a further month they commit an offence even if the bank produces the documentation they have to go to court to enforce the original agreement

Hi

Again where does it say that a bank needs an has to go to court to be able to enforce the doc when it is produced late.In the 77 it just says the agreement cannot be persued whilst the account is in default once it is presented there is no default.

 

Peter

[Peterbard]

As anyone got a link to the Consumer Credit Act Regulations 1983.

 

HI Paul

 

Tam has a copy .I have a copy of 1557 but i would have to email yu with it.

 

Peter

[Peterbard]

But doesn't S127 only apply to an improperly executed agreement under S65(1) and S61(1)?

 

 

HI

Section 127(1) provides that the court must dismiss an application for an

enforcement order if (but only if) it considers it just to do so, having regard to:

 

• prejudice caused to any person by the contravention in question, and the

degree of culpability for it; and

• the powers conferred on the court by sections 127(2), 135 and 136.

 

 

 

 

Section 127(3) precludes the court from making an enforcement order if section

61(1)(a) (signing of agreements) was not complied with, unless a document

containing all the prescribed terms was signed by the debtor or hirer. Section

127(4) precludes the making of an enforcement order if certain provisions

relating to cancellation were not complied with.

[Peterbard]

IF they produce it and it is just an application form with debtor's signature and a few sample T&Cs but not the actual credit limit etc does this mean the banks/DCA is out of the default.

 

Hi It means it is not a correctly executed agreement and is therefore unenforceable

Peter

[Peterbard]

The debtor does not have to be the last to sign -many agreements are signed by the debtor first. This is why s62 was included - so that a debtor is always given a copy of the unexecuted agreement before it is signed by the creditor. This is to ensure the debtor holds a copy of the actual agreement he signed.

 

Enough already

 

The p0int is that the agreement is not properly executed unless the debtor has sight of the completer agrement after any alterations are made usually this is because he is the last to sign but if it is not then when he signs it is not considered to be executed untill he gets the agree ment back.

So on a credit card an agreement signed by the debtor remotely is not an executed agreement it would need to be returned to him together with the concideration /cancellation period..

[Peterbard]

This is not correct. The HL did not overturn the COA judgement. It dealt with the HRA issue and decided this in Wilson's favour

 

The coa queried a point of law that persuade the house of lords to chance it's mind,any thing else is mere semantics.

Peter

[Peterbard]

Nutty / Zubo

 

If this is a loan, shouldn't the request be under s77 and not s78? Section 77 is for loans and 78 is revolving credit agreements (i.e. credit / store cards?)

 

Coprrect Fixed sum credit section 77Thats why i always put 77=78 just to make sure i don't get it wrong

 

Peter

[Peterbard]

many agreements are signed by the debtor first.?

 

Yes i have had those a blank piese of paper with a sig box at the bottom with a note attached saying just sign we wil fil the rest in later.

 

Peter

[Peterbard]

have signed agreements on trade premises in the past where the agreement was not pre-signed by the creditor. It was then sent to the credit provider for approval who signed it after me. This is when those agreements became 'executed' which is similar to the credit card application process.

 

Nope shouldn't happen and it is not at all simillar to the credit card scenario section 62 says personally presented which the distance marketed application isn't,and ther are differen pre contractual arrangements i don't have time to look them up now. But they all ensure that the debtor has final say as to whether the agreement is executed.Common sence really.

Peter

 

peter

Peter

[Peterbard]

I have been told by a DCA that my agreements are relevant under sec 3 of the cca.....I can't find sec 3......they also say in another paragrah that one of the accounts are exempt under the CCA..

 

Hi Uni Chill

 

I think they are talking about section 3 of the 1983 SI which says that copy agreements don't have to be signed.

The answer i give to that is how can i verify it as a true copy if there is no signature ?

Most DCA dont know their A****f rom a hole in the ground just stick to yur timetable and threaten them with the OFT if they don't comply.

Peter

[Peterbard]

So, if the face of the agreement has been sent, no t & c's or statement of account by the dca who bought the debt and sent it 6 months late from expiry of cca request, what do I have to do now? and how does the court order kick in

No I think you are confusing the precontractual section127 with the post contractual request section77-79.

 

If they have not complied with all the terms of the request as stated in the 77 then the agreement is is unenforceable under section79 not 127

Peter

[Peterbard]

If they have gone over the prescribed time limits, they have broken the law. End of. If they produce the documentation after the time limit they have still broken the law, it doesn't go away.

 

Turn section 77, 78 & 85 on its head it doesn't say that the agreement is enforceable if the bank produces the agreement after the time limit either does it. Only a court can determine whether an agreemnt is in existance once the contract has been breeched.

 

With respect you are confusing several issues here.

 

The 77 request is in default as long as the request has not been fullfilled. This means that the creditor cannot persue the debt but only whilst the default continues once the agreement is recieved by the debtor the default is lifted and the creditor can pursue.The fact that after 44 days the creditor has commited an offence is a criminal issue. Nothing to do with the civil default.

 

Peter

[Peterbard]

Hi Tam

I pm'd a copy of the regs earlier i think i orriginally got them from you.

 

Peter

[Peterbard]

Hi JUst a thought but with all the talk about the information gers regarding distnce maketing contracts are we aware of this.

14.9 What requirements apply to distance contracts?

The Information Regulations do not apply to distance contracts, as defined. Consumer credit agreements which are distance contracts are subject instead to the Distance Marketing Regulations – see chapter 17. Consumer hire agreements are not a ‘financial service’ and so, if distance contracts, are subject to the Distance Selling Regulations – see Q17.2.

Peter

[Peterbard]

Hi

I know what you mean

 

But There is an upside to this which needs checking out so i shouldn't really say,but i will any way and risk getting jumped on.

If the above regs don't apply then section 3 won't apply whic is the one that says that sigs arn't nessecarry on copy agreements.

So creditors would have to supply coppies of signed distance marketed agreements as per sectio77.

Maybee.

I will keep you posted and seek help to verify.Are you listening Tam.

 

Regs Oops i mean regards

 

Peter

Peter

[Peterbard]

Hi

Yes as per

74 Exclusion of certain agreements from Part V

(1) This Part (except section 56) does not apply to—

(2) This Part (except sections 55 and 56) does not apply to a small debtor -creditor-supplier

agreement for restricted -use credit.

[(2A) In the case of an agreement to which the Consumer Protection (Cancellation of

Contracts Concluded away from Business Premises) Regulations 1987 apply the reference

in subsection (2) to a small agreement shall be construed as if in section 17(1)(a) and (b)

“£35” were substituted for “£50”.]

(a) a non-commercial agreement, or

(b) a debtor-creditor agreement enabling the debtor to overdraw on a current

account, or

© a debtor-creditor agreement to finance the making of such payments

 

 

Unfortunately part 5 covers the legislation on suplying copy agreements.

 

Peter

[Peterbard]

HI

 

To cut through the stuff it means that banks do not have to respond to your cca 77 requestif you opperate an overdraft.I think that is what we all need to know.

 

Peter

[Peterbard]

Hi

 

Any aspect of the information part of the cca doesent apply(PartV).

SARs are applied for under the 1998 Data Protection Act so your ok there

 

Peter

[Peterbard]

Hi regarding regulations on credit card agreements that are completed away from a creditors premises.

 

These are not subject to the 1983-04 regs and are instead subject to the distance marketing regs not to be confused with the distance selling regs which are a different thing altogether.

I have a head ache.

Peter