Pre 2005 agreements

[jackospades]

When looking at the requirements for provision of prescribed terms during a CCA request, the Carey case changed the rules it seems, but I read somewhere (can't remember where) that Pre 2005 agreements are subject to a different interpretation regarding prescribed terms....

 

If anyone knows what this is, and why....or can direct me to the answer somewhere ...I would be most grateful.

[Bandit127]

Not an expert but S.127(3) of the 1974 Act was repealed by the 2006 Act (effective April 2007).

 

Article here:

11 October 2009

Sections 127(3) & (4) under the Consumer credit Act 1974 and enforcement.

 

By Paul Bicknell

 

Agreements executed before 6 April 2007 are subject to sections 127 (3) & (4) of the Consumer Credit Act 1974 ('CCA'). Agreements entered into after that date are not by operation of the repeal under the Consumer Credit Act 2006.

 

The effect of sections 127 (3) & (4) truly displays the paternalistic nature of the CCA, in that where a breach of a prescribed term under regulation 6 and schedule 6 to the Consumer Credit (Agreements) Regulations 1983 is found, the agreement as a whole will be irredeemably unenforceable.

 

In other words, the lender cannot enforce the agreement or realise any surety under that agreement; the debt in effect is written off.

 

 

[unclebulgaria67]

Try searching for the 'four corners rule'. I think it is related to that.

[jackospades]

Not an expert but S.127(3) of the 1974 Act was repealed by the 2006 Act (effective April 2007).

 

Article here:

 

I've read that 4 times and still don't get it......

[jackospades]

thank you, i'll have a look

[drop47]

I think it is a bit more complicated. From what i have read anything post 2007 will be enforceable. Prior to that if the prescribed terms are not there then the lender is stuffed. I think it also covers having the original,correct interest rates etc. No guarantees and no quick fix. The debt still exists and you have to wait for it to become statute barred. Of course if the lender takes you to court you can defend it.

[jackospades]

have read this now...Pre 2005 agreements are not affected by the new CCA Regulations ammendments. Thus there is more 'looseness' in the way in which the contract and the prescribed terms could be put together on pre 2005 agreements, ie not all on one page with the signatures...but on various forms and not necessarily referred to on the signed document...Have I got that right ?

[drop47]

I don't think so. They still have to be accurate etc. What changed was the repeal of a section of the cca that said an agreement could only be enforced on an order of a court.

[Ford]

have read this now...Pre 2005 agreements are not affected by the new CCA Regulations ammendments. Thus there is more 'looseness' in the way in which the contract and the prescribed terms could be put together on pre 2005 agreements, ie not all on one page with the signatures...but on various forms and not necessarily referred to on the signed document...Have I got that right ?

 

in sum,

pre 07, if no actual copy executed agreement (as defined) available, they would need to show that there was a debtor signed doc that contained all of the prescribed terms before a court could make an enforcement order.

 

'Parliament's intention in enacting section 127(3) of the 1974 Act was to make a loan, made under a regulated agreement, unenforceable in certain events. The courts cannot defeat that intention by allowing some alternative means of recovery' Wilson case. need to look at the 'certain events' as above eg.

now, an accurate (kotecha v phoenix CA case) reconstruction (in the circumstances) may be sufficient.

Edited September 3, 2012 by Ford

[jackospades]

This is 2002/3

so the 2008 regs don't apply..the CCA74 applies.

 

I think I have a copy of an agreement, although the phrase 'Credit Agreement regulated by CCA 1974' is almost half way down the page, preceded by 'this is your new visa card' in BOLD letters.

 

There is no signature on it, or even a space for signatures, and there is no mention at all of T & C...and it had affixed to it a new credit card....It does have interest rates on it and on the reverse a box that says 'cancellation form'.

[drop47]

Does it have total charge for credit calculations etc. Have you sent off a cca request?

[jackospades]

Does it have total charge for credit calculations etc. Have you sent off a cca request?

 

It has the credit charges (% rates per month and APR), and Sec 4..'Repayments and interest charging', which is about methodology. It also says ' we may transfer this agreement to any other person.... without telling you'..... really ?

 

yes sent off CCA which they should reply soon (12 working days after receipted delivery)

 

but as I said, this is not a signed document (there is nowhere to sign it), nor is it dated anywhere. I don't know what it is really........certainly not an Agreement is it ?

[Ford]

wait see what they come back with re your cca request. if they don't reply in time with a copy original, then prob be a recon (must be accurate re cca request).

[drop47]

That was probably just the paper that came with your card. Your cca request they have 12+2 days to respond but many take longer. As ford says,wait and see

[jackospades]

wait see what they come back with re your cca request. if they don't reply in time with a copy original, then prob be a recon (must be accurate re cca request).

 

 

yes, maybe they will. just sitting tight here, no hurry

[jackospades]

That was probably just the paper that came with your card. Your cca request they have 12+2 days to respond but many take longer. As ford says,wait and see

 

Think you are right, maybe they think the application form will do if they can tie it in to all the relevant docs and prescribed terms...time will tell....CCA forms 'due' next week

[drop47]

Well as far as i know it will not do. Something to check if it is a reckon, is the address correct. They fall down sometimes on putting your current address down when you took it out somewhere else

[Ford]

...CCA forms 'due' next week

 

what did they come back with?