Cap1 & CCA return

[lexis200]

Hi Muffintop

 

The only thing they can't do whilst they are in default of a CCA request is 'enforce' the agreement.

 

Whilst we feel that should include collection activities etc, they will only accept it as meaning court proceedings.

 

I have had a bit of a discussion on a thread a while ago about disputes on an account. I can't remember who it was with, which is really annoying me, so if you read this please nudge my knat memory! Anyway, from what I remember, it would seem that an account is only in dispute if you are disputing the amount owed. What we are doing is arguing that the agreements are naff, or that they have not sent them etc. In order to set the account into a dispute, you would need something more along the lines of charges, as this is disputing the balance.

 

There is nothing in the Act to stop them collecting, only preventing them enforcing.

 

On the bright side, they can't get a CCJ/charging order without taking you to court, and they're going to have a merry old time in there if they don't have an agreement.

 

With MBNA, they seem to follow a fairly rigid pattern. 7 months of non-payment (or in our case paying what we can afford rather than what they want), will register a default and get the account sold on/managed by a DCA. Despite numerous allusions to court, we've never got near one (famous last words:rolleyes:)

 

It sounds like their standard threatogram, so don't go thinking they are about to turn up on the doorstep with a claim form just yet!

 

I think the letter that we send out is more what we feel they shouldn't be doing, as there is nothing that I have found so far (and I've asked this on a lot of threads!) to say they can't do the things we say. That said, I don't think there's any harm in sending it anyway - it does seem to wind them up:D

[lexis200]

Trouble is that's only guidelines - they don't pay any attention to the actual set-in-stone laws, so they don't give a toss about these!

 

They are still correct that there is nothing in the Act (and therefore nothing that they will follow) to say they can't collect.

 

It is still worth quoting them though as it all goes to making you look reasonable and them look like the unscrupulous bankers that they are:)

[Muffintop]

Hi Muffintop

 

The only thing they can't do whilst they are in default of a CCA request is 'enforce' the agreement.

 

Whilst we feel that should include collection activities etc, they will only accept it as meaning court proceedings.

 

I have had a bit of a discussion on a thread a while ago about disputes on an account. I can't remember who it was with, which is really annoying me, so if you read this please nudge my knat memory! Anyway, from what I remember, it would seem that an account is only in dispute if you are disputing the amount owed. What we are doing is arguing that the agreements are naff, or that they have not sent them etc. In order to set the account into a dispute, you would need something more along the lines of charges, as this is disputing the balance.

 

There is nothing in the Act to stop them collecting, only preventing them enforcing.

 

On the bright side, they can't get a CCJ/charging order without taking you to court, and they're going to have a merry old time in there if they don't have an agreement.

 

With MBNA, they seem to follow a fairly rigid pattern. 7 months of non-payment (or in our case paying what we can afford rather than what they want), will register a default and get the account sold on/managed by a DCA. Despite numerous allusions to court, we've never got near one (famous last words:rolleyes:)

 

It sounds like their standard threatogram, so don't go thinking they are about to turn up on the doorstep with a claim form just yet!

 

I think the letter that we send out is more what we feel they shouldn't be doing, as there is nothing that I have found so far (and I've asked this on a lot of threads!) to say they can't do the things we say. That said, I don't think there's any harm in sending it anyway - it does seem to wind them up:D

Thanks Lexus... hmm in that case the letter that we have all been sending saying you may not sell to a dca, you may not place charges on account for late payment, you may not continue collection shouldnt actually still be sent as its not really the case..... ??

[AnimalMagic]

 

they sent me a letter stating I quote

for the avoidance of doubt, the consumer credit act 1974 does not prohibit collection activity when an account is in dispute.

 

It is the administration of justice act that prohibits collection activity when a debt is in dispute. Clearly if you dispute something is owed, continued collection activity becomes harrassment.

[Muffintop]

thanks dont know this act... is it enforceable by us as creditors? can it be quoted and used to our advantage

[lexis200]

Found it!!

 

lexis,

Section 136(1), Law of Property Act 1925 says:

 

(1) Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice

(a)the legal right to such debt or thing in action;

(b)all legal and other remedies for the same; and

©the power to give a good discharge for the same without the concurrence of the assignor:

 

Provided that, if the debtor, trustee or other person liable in respect of such debt or thing in action has notice

(a)that the assignment is disputed by the assignor or any person claiming under him; or

(b)of any other opposing or conflicting claims to such debt or thing in action;he may, if he thinks fit, either call upon the persons making claim thereto to interplead concerning the same, or pay the debt or other thing in action into court under the provisions of the Trustee Act, 1925.

 

You will note that while the assignment is required to be under the hand of the assignor, the notice to the debtor need not be. All that is required is that the debtor has express notice of the assignment. Express notice may be given by the assignor, assignee or some third party even.

 

A debtor mistrusting of a person claiming to be the assignee may enquire of the assignor for confirmation the assignment is genuine.

 

As for disputes, a dispute arises whenever creditor and debtor are not in agreement as to the rights and obligations which the one owes to the other. Where a creditor fails to comply in time with a request made under section 77 or 78 Consumer Creidt Act 1974, the creditor ceases to be entitled under the Act to enforce that agreement for so long as his failure to comply continues. If a creditor claimed a right to enforce the agreement whilst in default of his section 77 or 78 obligations and the debtor disputed that right, there would be a dispute. But it would only be a dispute about the right to enforce. It wouldn't be a dispute on the account, which by the nature of the language would be a dispute as to an amount owing. To place the account in dispute invariably involves the debtor raising as an issue that the creditor overstates his demand and to pointing to the way in which the creditor has overstated it.

 

If the debtor placed the account in dispute the creditor would be under a duty to take reasonable steps to investigate it and where the issue was found to be well maintained, to put the account right.

 

Disregarding a debtor's dispute would probably be unfair practice and possibly a breach of pre-action protocol if the creditor sued upon the agreement before completing a reasonable investigation. That is not the same as saying the commencement of legal proceedings would be unlawful. In my view and subject to something satisfactory to my questions in the following paragraph, and subject obviously to the creditor having an entitlement to sue provided by the Consumer Credit Act 1974, commencing proceedings would not be unlawful where the account was in dispute. The court will be able to decide the dispute and the rights of the parties generally, and may sanction the creditor in costs where it thought it right to do so.

 

When I ran a word search for 'assign'in The Data Protection Act 1998, The Consumer Protection from Unfair Trading Regulations 2008 and the OFT publication entitled 'Debt collection guidance - Final guidance on unfair business practices July 2003 (updated December 2006)', each time I got a 'text not found'. I would appreciate anyone able to quote the specific legislation or OFT guidance relied upon in support of the claim that either of the statutes contain provisions restraining a creditor from assigning an account in dispute.

 

x20

 

So as I read it, if you can prove the account is in dispute then they are stuck by AnimalMagics post above, but it's showing that the account is in dispute (as opposed to a dispute about enforcement) in order to benefit from this that is the problem.

[AnimalMagic]

thanks dont know this act... is it enforceable by us as creditors? can it be quoted and used to our advantage

 

Huh? I thought you were a debtor?

 

There was a case a year or two back where a woman sued a bank for harrassment - I think she had just 30 calls regarding a debt she didn't owe.

 

It has been my experience that a mention of harrassment in your defence, accompanied by telephone logs, etc, prompts an out of court settlement...

 

There is a thread or two on here about telephone harrassment...

[whu1]

Huh? I thought you were a debtor?

 

There was a case a year or two back where a woman sued a bank for harrassment - I think she had just 30 calls regarding a debt she didn't owe.

 

It has been my experience that a mention of harrassment in your defence, accompanied by telephone logs, etc, prompts an out of court settlement...

 

There is a thread or two on here about telephone harrassment...

 

 

I have sent two telephone harassment letters out to Barclay card AND Virgin (MBNA). And they responded quick fast and were very polite in their letters and also supplying information to take it further.

 

Amazing there is still no agreement and even a response to all my previous letters.........MBNA however stated on the third paragraph of their letter ' I noted you have requested a CCA and one has been sent out that conforms to the Act, I feel this matter is now closed'..................OH NO IT ISN'T, NOT BY A LONG SHOT...........

[Muffintop]

Hey sorry a few hours of reading posts of course I am a debtor... lol

Thought about the civil action route for harassment and read the cases you are referring to... at the moment iv stopped them by using choose to refuse from bt, wont be long till they find another number to use,, another prob there is evidentially its my word against theres, I have a whole log of incoming calls but they wouldnt show up on my phone bill or theirs I doubt. unless the calls are recorded it would be difficult to prove in court. I do leave the answer machine on but they hang up as soon as it kicks in. I know there is recording equp available but iv enough on my plate with the ccas at the moment.

[Suetonius]

The old FOS and unenforceable agreement debate... Let's knock it on the head once and for all... Please read the CCA.. ONLY a Court can make a determination in relation to the enforcability of a credit agreement... No if's no but's....

 

And just to clarify the FOS is not a court... It is simply a dispute resolution service FULLSTOP !

 

And another thing the Freedom Of Information does not apply to the FOS. If you take the time to actually read the Freedom Of Information, it will become obvious why not....

 

Come on people let's at least take the time to read the legislation !!!!!

[cab1ne]

Hi Peeps!

could any of you fine caggers advise to the forcability of this agreement "please"

 

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[andrew1]

Hi Peeps!

could any of you fine caggers advise to the forcability of this agreement "please"

 

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I wouldn't go asking the FOS

[Suetonius]

Forgot to say the FOS is not a regulator either ! That my friends would be the FSA a totally different organisation

[cab1ne]

been there and what a bunch of ERRRRRrrr!!!!!! dont know the word that could describe them.lol"

[foolishgirl]

Forgot to say the FOS is not a regulator either ! That my friends would be the FSA a totally different organisation

 

Oh, are they the ones with the open stable door?!

[holley]

Been reading these threads and its really useful info I still have no cca from mbna and cap 1, mbna dont even acknowledge I've asked for one! do I just ignore the demands for payment now, account in dispute letter sent to both. Just wondered what the next step is?

Thanks

[Suetonius]

The old FOS and unenforceable agreement debate... Let's knock it on the head once and for all... Please read the CCA.. ONLY a Court can make a determination in relation to the enforcability of a credit agreement... No if's no but's....

 

Spot the key word

 

 

 

127

.—(1) In the case of an application for an enforcement order under—

(a) section 65(1) (improperly executed agreements), or

(b) section 105(7)(a) or (b) (improperly executed security instruments), or

© section 111(2) (failure to serve copy of notice on surety), or

(d) section 124(1) or (2) (taking of negotiable instrument in contravention

of section 123), the court shall dismiss the application if, but (subject to subsections (3) and (4)) only if, it considers it just to do so having regard to—

 

(i) prejudice caused to any person by the contravention in question, and

the degree of culpability for it; and

(ii) the powers conferred on the courtby subsection (2) and sections 135

and 136.

(2) If it appears to the court just to do so, it may in an enforcement order reduce or discharge any sum payable by the debtor or hirer, or any surety, so as to compensate

him for prejudice suffered as a result of the contravention in question.

(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).

(4) The court shall not make an enforcement order under section 65(1) in the case of a cancellable agreement if—

(a) a provision of section 62 or 63 was not complied with, and the creditor or owner did not give a copy of the executed agreement, and of any other document referred to in it, to the debtor or hirer before the commencement of the proceedings in which the order is sought. or

(b) section 64(1) was not complied with.

(5) Where an enforcement order is made in a case to which subsection (3) applies, the order may direct that the regulated agreement is to have effect as if it did not include a term omitted from the document signed by the debtor or hirer.

128. The court shall make an order under section 86(2) if, but only if. the creditor or owner proves that he has been unable to satisfy himself that the present and future obligations of the debtor or hirer under the agreement are likely to be discharged.

Now I could be wrong but I am pretty sure it says court and not FOS

[Suetonius]

And another thing the Freedom Of Information does not apply to the FOS. If you take the time to actually read the Freedom Of Information, it will become obvious why not....

 

Come on people let's at least take the time to read the legislation !!!!!

 

Part I

 

Access to information held by public authorities

 

Right to information

 

1 General right of access to information held by public authorities

 

 

Is the FOS a public Authority ?

 

No it is a limited company....

[cab1ne]

Part I

 

Access to information held by public authorities

 

Right to information

 

1 General right of access to information held by public authorities

 

 

 

Is the FOS a public Authority ?

 

No it is a limited company....

 

this is what they are supposed to do

found this by accident on one of the .gov.org sites:cool:

The roles and responsibilities of the Financial Ombudsman Service, Financial Services Authority and the Office of Fair Trading

 

The Financial Ombudsman Service (FOS) formerly The Banking Ombudsman.

The Financial Ombudsman Service is a statutory, informal dispute resolution service, established under FSMA but independent from the FSA. It operates as an alternative to the civil courts. Its role is to resolve disputes between individuals or small businesses and financial firms quickly and with minimum formality on the basis of what is fair and reasonable in the circumstances of each case.

In considering what is fair and reasonable, The Financial Ombudsman Service will take into account the relevant law, regulations, regulators’ rules and guidance and standards, relevant codes of practice (such as the Banking Code), and good industry practice at the relevant time.

The Financial Ombudsman Service has three jurisdictions, covering nearly all financial services business:

• Compulsory jurisdiction

This applies to financial services firms authorised by the FSA, and covers consumer complaints about FSA-regulated activities, consumer credit activities and certain other specified activities.

• Consumer credit jurisdiction

The Consumer Credit Act 2006 created the consumer credit jurisdiction. This covers consumer credit complaints against any businesses with standard licences from the OFT not authorised by the FSA. If the licensee is also authorised by the FSA, its consumer credit complaints are covered by the compulsory jurisdiction.

• Voluntary jurisdiction

This applies voluntarily to financial businesses and activities that are not covered by the compulsory jurisdiction or the consumer credit jurisdiction. It covers consumer complaints about certain of these businesses’ financial activities, for example National Savings & Investments.

The FSA has statutory oversight of The Financial Ombudsman Service and appoints its Chairman and directors, but the FOS is operationally independent. This has allowed it to take on wider jurisdictions that cover businesses which are not FSA-regulated.

The Financial Ombudsman Service decisions, if accepted by the complainant, are binding on respondent businesses and it can make awards of up to £100,000. The service is free to consumers. The Financial Ombudsman service is funded by the financial institutions which it administers complaints against. Complaints can be administered providing the complaints process with the financial institution has been followed

[foolishgirl]

Been reading these threads and its really useful info I still have no cca from mbna and cap 1, mbna dont even acknowledge I've asked for one! do I just ignore the demands for payment now, account in dispute letter sent to both. Just wondered what the next step is?

Thanks

 

You can ignore the demands for payments providing you are prepared to accept that they may add a default to your credit file & issue a summons against you that you must be prepared to defend (to date on the grounds of no CCA).

 

Or you can take the action to their door by use of CPR31 but before you do so, suggest you read pt's thread on the pros & cons:

http://www.consumeractiongroup.co.uk/forum/legal-issues/173201-why-you-shouldnt-use.html

[Suetonius]

Exactly, lets break it down...

 

The roles and responsibilities of the Financial Ombudsman Service, Financial Services Authority and the Office of Fair Trading

 

The Financial Ombudsman Service (FOS) formerly The Banking Ombudsman.

 

1) The Financial Ombudsman Service is a statutory, informal dispute resolution service, established under FSMA but independent from the FSA.

 

2) It operates as an alternative to the civil courts.

 

3) Its role is to resolve disputes between individuals or small businesses and financial firms quickly and with minimum formality on the basis of what is fair and reasonable in the circumstances of each case.

 

 

Can someone please show me where it says that the FOS can make a determination in relation to the enforcability of a credit agreement...

[cab1ne]

this is their facts

In considering what is fair and reasonable, The Financial Ombudsman Service "will" take into account the "relevant law, regulations, regulators’ rules and guidance and standards, relevant codes of practice (such as the Banking Code), and good industry practice at the relevant time.

 

whenever a consumer puts in a complaint to the FOS about "whatever" they FOB you off with allsorts of rubish

 

this is the catch

The Financial Ombudsman service is funded by the financial institutions which it administers complaints against.

 

and the catch in my opnion is the answer

[Sparkie1723]

Every time a complaint is made about an institution the FOS fine that organisation ...I think its £400 ....but that's how they are financed.

 

sparkie

[Suetonius]

There are two main types of law. (putting aside criminal etc)

 

Common and Legislative, common law usually refers to legal precedents and legislative in relation to Acts of Parliament.

 

As I understand it, a Court has not yet had to set a precedent to state exactly what is required in response to a s.77/s.78 request.

 

It is open to interpretation and that is why people are now making requests via the CPR's instead.

 

 

As for funding being a catch... As I understand it banks have to pay the same fee, whether a complaint is upheld or rejected. Hardly sounds like an incentive for complaints to be rejected does it ?

 

It should also be noted that banks do not pay the fees through choice

Edited February 20, 2009 by Suetonius

[Suetonius]

Every time a complaint is made about an institution the FOS fine that organisation ...I think its £400 ....but that's how they are financed.

 

sparkie

 

Thank you Sparkie, I remember reading somewhere that it is going up to £500.00.