Debt Collection Agencies & Consumer Credict Act 1974

[tbern123]

At the risk of going round in circles-

 

On the face of it, as zoot would contend, section 3 specifically says that, for the purposes of the CCA, a copy can exclude the bits which make it unique to a particular customer ie signature, date address etc.

 

lol, you can't blame me for trying, I am like a dog with a bone

[martinpar]

If wishing hard enough could make it happen you'd be right by now

[Determined]

Hello Again

 

Seems as though there are numerous problems in interpreting CCA - I PUT FORWARD MY INTERPRETATION OF CERTAIN ASPECTS IN MY LAST POST (no I am not shouting - cap lock on accidently) however I prbrably did not read all the posts thoroughly enough - so It is moe than likely I too may of misinterpeted the CCA.

 

However, today I recieved at leat 6 telephone calls from CapQuest who have recieved regular payments from me for some time now. 5 of them were silent calls and I rang back on 3 of them only to be confronted with demands for a payment of a £720 debt. I have other debts of £3100 - they are old debts I have been paying for a number of years - without going into too much detail I lost my job,and my marriage broke all during a time when my baby son was terminally ill (he died at 4 years of age) I worked temp for a time then I went deaf and found it difficult to adjust so I have been out of work for eight years now.

 

Which leads me to the main purpose of this Post. In the 1980s Martyn Jones MP for Clwyd South West presented a Private Members Bill to Parliament to reform Consumer Credit legislation. I have emailed him asking him to revisit the issue telling him of my particular problems and how I am concerned that this is the way numerous people are treated. It is obvious from the posts on this thread that really the Consumer Credit needs changing. I have also contacted 4 MEPs and 5 Welsh Assembly members and my local MP. I have thought about this for a couple of years now -I am new to this site and forum so I will start a new thread in a couple of days explaining the ideas I have and see what you all think - I expect I have a lot to learn thanks Sorry if this is too much of a distraction from the thrust of this particular thread.

[stiffnuts]

Just to say that maybe it is not that clear cut. Today I have received 2 different answers from credit professionals both contradicting each other. Whilst in my own head I am happy satisfied that a signature is required. 1 person argued that it could be provided without a signature because the idea was to see if the form and content was correct and a signature didnt come into play, and the idea wasnt to prove that the debt exists.

 

The other spoke of the fact that a signature was required because although a contract may have been formed it was the essence to showing that there was a properly executed agreement and whilist this was not important in terms of section 62/63 it was of the essence in terms of 77/78.

 

Maybe its not that clear cut if 2 very distinct professionals have given different opinions.

This leads me to believe that I may have come accross arrogant to which I apologise.

 

No wonder everyone is so confused

[martinpar]

Good of you to admit that.

 

After seven pages of discussion we seem to be back where we started.

[martinpar]

Maybe the time has come for some lateral thinking. I suggested before that perhaps we should turn our attention to contract law.

 

If we accept , for the moment, that a CCA request does not need a full copy of the executed agreement it is still necessary to establish how the debt can be considered proven.

 

Clearly, providing a blank copy of the contract will indicate that the agreement was in accordance with the Act but it doesn't show a debt exists.

 

I would suggest that showing past repayments against that account would not necessarily prove to the satisfaction of a court that the debt is valid. Possibly, communication from the debtor could be used to show it had been accepted by him. I don't know the legal position on this so maybe Zoot or others could offer their opinions?

[tbern123]

Maybe the time has come for some lateral thinking. I suggested before that perhaps we should turn our attention to contract law.

 

If we accept , for the moment, that a CCA request does not need a full copy of the executed agreement it is still necessary to establish how the debt can be considered proven.

 

Clearly, providing a blank copy of the contract will indicate that the agreement was in accordance with the Act but it doesn't show a debt exists.

 

I would suggest that showing past repayments against that account would not necessarily prove to the satisfaction of a court that the debt is valid. Possibly, communication from the debtor could be used to show it had been accepted by him. I don't know the legal position on this so maybe Zoot or others could offer their opinions?

 

Ok, just not to let a day go by on this thread without me posting...

 

I don't know the details of this court case, but at least it is a start.

http://www.consumeractiongroup.co.uk/forum/debt-bailiffs-advice/47286-black-horse-me-outside.html

 

I appreciate this is in Scotland and not England, but surely the same principles must apply

 

I'm currently in court defending an action from Black Horse Limited. The action was raised throught Direct Legal & Collections instructing a Scottish Solicitor. The case is at preliminary hearing. (judge decides if it's worth proceeding) Case is stalled until the original credit agreement is produced. Allowing the calendar month of the CCA request to expire.

[lookinforinfo]

If you read the CCA, there is very little that appears to differ on the main points in Scotland other than a piece about licences, so it would not be unreasonable to assume that the same result would occur in an English

Court.

It is interesting that the Court is allowing them the full time time to produce, though I

understood that in the event of the dca being out of time, the Court would accept another form of proof?

[tbern123]

Now, this is the thing that I find the hardest to understand. From my understanding (which is very limited) If a credit agreement is not properly executed (signed by debtor and creditor) it is unenforceable.

 

So in the event of any court case, surely the creditor must first prove that any agreement was correctly executed and the only way this can be done is to provide a copy of a signed agreement as evidence.

 

I have found a couple of court cases were improperly executed agreements have been deemed unenforcable and the debtor has not been held liable for the debt. Here is the most famous case, that has DCA's worried.

 

House of Lords - Dimond (Original Appellant and Cross-Respondent) v. Lovell (Original Respondent and Cross-Appellant)

[stiffnuts]

Now, this is the thing that I find the hardest to understand. From my understanding (which is very limited) If a credit agreement is not properly executed (signed by debtor and creditor) it is unenforceable.

 

So in the event of any court case, surely the creditor must first prove that any agreement was correctly executed and the only way this can be done is to provide a copy of a signed agreement as evidence.

 

I have found a couple of court cases were improperly executed agreements have been deemed unenforcable and the debtor has not been held liable for the debt. Here is the most famous case, that has DCA's worried.

 

House of Lords - Dimond (Original Appellant and Cross-Respondent) v. Lovell (Original Respondent and Cross-Appellant)

 

Well the court will want to see evidence that a properly executed agreement exists. (There is case law on this). There was an argument in the past to suggest that if you paid a debt to start with then you accepted that a debt exits(contract). The court have said (cant remember case but will try and find it) that its irrelevant of the existence of a debt but whether that debt if in a regulated agreement complies with the formalities of the act.

 

So in the end regardless of section 77/78 or the copy regs, if it goes to court a copy of the executed agreement would be requested.(signature and all to prove it is properly executed).

[ecobabe]

even if you have been paying a dca, i can't imagine that this is sufficient proof of a debt without the agreement, under contract law contract's can be void or voidable under certain circumstances i think from memory; if one party does not have capacity or there is a misunderstanding or a contract is illegal, or a contract is induced by fear: then the contract could be void or voidable. I have been paying a dca for about 7 years and when i sent the cca they say that the original creditor doesn't have agreement. now i thought that the original creditor was different to the one the dca claims it is. At the time the dca contacted me i had been left with a sickly child, husband didn't pay a penny and i was left with debts. I blundered through the best I could but to be honest i didn't think long term i just got through each day. when dca contacted me to set up repayments i just complied, assuming that they were correct. now i would say that there was a misunderstanding, it was certainly done under fear and perhaps even my capacity at the time was doubtful. so I ahve written back saying that since they cannot provide a copy of agreement(by their own admission) i believe that they have been taking money from me dishonestly, i also told them as far as i was concerned the original creditor is not who i thought it was

[martinpar]

This is the kind of stuff I've been looking for. It is reinforcing the common sense view of what is required to prove a debt. A few more like that and we can be confident that creditors will not risk taking their case to court if they can't produce the copy executed document. It is what the original act called for, which was amended by the later section 3.

 

As I said before, the amendment was obviously made from the point of view of ensuring the terms were within the act which, as Zoot said, was also the original reason for s77/78.

[martinpar]

Just so there's no confusion, I took too long typing and my post crossed with ecobabe's. I was responding to stiffnuts.

[tbern123]

This is the kind of stuff I've been looking for. It is reinforcing the common sense view of what is required to prove a debt. A few more like that and we can be confident that creditors will not risk taking their case to court if they can't produce the copy executed document. It is what the original act called for, which was amended by the later section 3.

 

As I said before, the amendment was obviously made from the point of view of ensuring the terms were within the act which, as Zoot said, was also the original reason for s77/78.

 

Your wish is my command, I know this is not relating to s77 or 78, but it shows the importance of a signed agreement.

 

This is my personal favourite:

 

House of Lords - Wilson and others v. Secretary of State for Trade and Industry (Appellant)

 

29. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and 63, section 127(4) precludes the court from making an enforcement order.

 

49. I consider, however, that there is no relevant restitutionary remedy generally available to a lender in the circumstances now under consideration. The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan. That being the consequence intended by Parliament, the lender cannot assert at common law that the borrower has been unjustly enriched. That would be inconsistent with the parliamentary intention in rendering the entire agreement unenforceable. True, the Consumer Credit Act does not expressly negative any other remedy available to the lender, nor does it render an improperly executed agreement unlawful. But when legislation renders the entire agreement inoperative, to use a neutral word, for failure to comply with prescribed formalities the legislation itself is the primary source of guidance on what are the legal consequences. Here the intention of Parliament is clear.

 

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. These consequences apply just as much where the lender was acting in good faith throughout and the error was due to a mistaken reading of the complex statutory requirements as in cases of deliberate non-compliance. These consequences also apply where, as in the present case, the borrower suffered no prejudice as a result of the non-compliance as they do where the borrower was misled. Parliament was painting here with a broad brush.

[JonCris]

Exellent I think that settles it both in statute AND common law. No correctly executed agreement then the lender is stuffed as to prove it is correctly executed they or their agents demanding payment will have to supply said true copy on demand.

 

The debtor is therefore enriched.......great init!!

[tbern123]

Exellent I think that settles it both in statute AND common law. No correctly executed agreement then the lender is stuffed as to prove it is correctly executed they or their agents demanding payment will have to supply said true copy on demand.

 

The debtor is therefore enriched.......great init!!

 

I wouldn't be to hasty lol

 

Someone will be along in a moment to correct me

[JonCris]

PS this maybe why they law in this regard is being changed in the 2006 act. In that the courts will have the right to consider any agreement enforcable whether or not it meets all legal requirements.

 

As things stand now then it must apply although it's bound to be challenged if used by a consumer to avoid a debt.

[Rhia]

So can I ask you to run your brains on this one. In my case the DCA wrote over a year ago but produced no evdience to back up their claims and sent a court summons in July. It was only when I kicked up a huge stink under DPA and CCA that their evidence started to appear and arrived a couple of days ago. How would a court view the fact that they started proceedings without having given me the documentation. After all I have only been trying to get them to prove they have any authority to claim this debt.

[Rhia]

Also can I ask teh court to strike this case out as I did not receive the information under the 12 & 40 day rule. Even though it arrived two days ago it was over this time limit.

[tbern123]

Hello, sorry the best thing to do is to start your own thread.

 

Anyway CCA is 12 days and 1 month, after that date the creditor has committed an offence. However, the debt is still enforceable once the

agreement has been produced. As far as DPA is concerned, failure to provide info, wouldn't make the debt void

[martinpar]

Anyway CCA is 12 days and 1 month, after that date the creditor has committed an offence. However, the debt is still enforceable once the

agreement has been produced.

 

Here we go again:

 

I have read elsewhere on here that after the month the debt can only be enforced by a court order. For this to be granted the creditor would have to explain to the court why they committed an offence by not producing the evidence within the statutory time limit.

[martinpar]

PS this maybe why they law in this regard is being changed in the 2006 act. In that the courts will have the right to consider any agreement enforcable whether or not it meets all legal requirements.

 

When does this come into force? Or is it not passed yet?

[gallb]

Hi all i had letters tis time last year from capquest debt recovery for a debt i dont have i sent several letters stating this debt is not mine and asked for proof they sent me a letter saying it was on hold for a week in november last year and i never heard anything else untill today!

They are now again threatening legal action ANY ADVICE?

[tbern123]

Here we go again:

 

I have read elsewhere on here that after the month the debt can only be enforced by a court order. For this to be granted the creditor would have to explain to the court why they committed an offence by not producing the evidence within the statutory time limit.

 

I admit I am on dodgy ground on this one, I just remember reading something about it....

[sarahpp]

I admit I am on dodgy ground on this one, I just remember reading something about it....

 

 

Probably this thread

 

http://www.consumeractiongroup.co.uk/forum/debt-bailiffs-advice/3525-debt-collection-agencies.html

 

which also refers to the new act - a lengthy read but, worth it