Debt Collection Agencies & Consumer Credict Act 1974

[sarahpp]

I have read through the 2006 amendment to the Act - but, I can't find anything in it which relates to the judge being able to use his/her discretion about agreements- can anyone guide me to the relevant section?

[zootscoot]

S.15 of 2006 Act Repeals s.127 (3) & (5)of 1974 and therefore removes the automatic unenforceabilty of improperly executed agreements.

[zootscoot]

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

See here for timetable as to implementation of the different provisions:

 

http://www.dti.gov.uk/consumers/consumer-finance/credit-act-2006/Timetable/page29768.html

[sarahpp]

Thanks for that - I guess this is the relevant section from the Q&A

 

Fairness for business and consumers: parts of section 127 of the 1974 Act which render agreements unenforceable if certain requirements of the Act are not complied with (however technical the breach) will be repealed. Instead, courts will be given discretion in relation to enforceability in all cases when provisions are not complied with. This allows the courts to make a judgment proportionate to the detriment caused to the consumer.

So the theory is that this works in the consumer's favour

 

 

[JonCris]

No it doesn't it's an appalling development it means that the money lenders, who appear to have our legislators in their pockets, can do what they want, make as many mistakes as they want & the consumer would have to take a risk of costs to challenge the agreement in the court hoping that they got a sympathetic judge.

[tbern123]

The changes aren't to bad..... what they take away with one hand they give back with the other...

 

Take a look at section 20 Powers of Court to unfair relationships

http://www.opsi.gov.uk/acts/acts2006/ukpga_20060014_en.pdf

Especially 140A 1c & 140B 1a

 

As defined by the CCA 1974, if the original agreement is not terminated and assiged to a DCA they become the "creditor".... So this will apply to them....

[ecobabe]

the amendements to the Act are expected to come into force in April 2008 and they only apply to agreements made after that date. I've spent the afternoon with a new book by a QC specialising in Consumer law, it's specifically about the CCa 1974 and the new 2006 Act; it doesn't seem to remove much of our protection. we still have the right to request a copy of the agreement and until 2008 if the agreement isn't in it's properly executed & formatted form then the court cannot enforce it at all. Wilson v First County Trust Ltd 2002 at House of Lords. i've posted a long post over in other institutions- loan company can't supply the agreement. sorry don't know how to do link.

[tbern123]

the amendements to the Act are expected to come into force in April 2008 and they only apply to agreements made after that date. I've spent the afternoon with a new book by a QC specialising in Consumer law, it's specifically about the CCa 1974 and the new 2006 Act; it doesn't seem to remove much of our protection. we still have the right to request a copy of the agreement and until 2008 if the agreement isn't in it's properly executed & formatted form then the court cannot enforce it at all. Wilson v First County Trust Ltd 2002 at House of Lords. i've posted a long post over in other institutions- loan company can't supply the agreement. sorry don't know how to do link.

 

Hello Ecobabe, if you have a look at post number 139, there is a link to that case... thanks

[lookinforinfo]

While digging through some of Surlybonds' excellent posts on the "Default Hell" thread, I came across this gem that I must have missed the first time round. I think that a dca trying to increase the interest rate was another

reason for querying the new contract....But it is his final assertion that

caught my eye. Does anyone know where you can find confirmation, since

it would appear to stop them in their tracks.

 

"You have the right to renegotiate any term or condition when a contract is assigned, if you are not sure of the new company, or are convinced that the service offering may be reduced.

 

Again, Schedule 2 of the UTCC Regs.

Regulation 5(5)

 

 

INDICATIVE AND NON-EXHAUSTIVE LIST OF TERMS WHICH MAY BE REGARDED AS UNFAIR

 

 

1. Terms which have the object or effect of-

 

[...amongst others...]

(p) giving the seller or supplier the possibility of transferring his rights and obligations under the contract, where this may serve to reduce the guarantees for the consumer, without the latter's agreement;

 

Also, ask the DCA for a copy of your permission giving them the authority to process your data. This is even more important, as the Data Protection Act does not allow a Data Registrar to transfer your rights without informing you first, or to transfer it's obligations of Data Protection to another party without your prior written approval."

[JonCris]

They will argue that it's in their T's & C's the right to pass the debt on.

 

However I don't think the DCA has the right to alter the terms of the original agreement without your prior consent.

[lookinforinfo]

Well what Surlybonds is saying, I think, is that while a dca has the right to

receive information from the original creditor while the oc has the contract,

once the dca buys the debt, he does not have the right to process your

data eg to register a default until you have given permission. And who is going to do that?

[tbern123]

Well what Surlybonds is saying, I think, is that while a dca has the right to

receive information from the original creditor while the oc has the contract,

once the dca buys the debt, he does not have the right to process your

data eg to register a default until you have given permission. And who is going to do that?

 

Another thread, has been started by stiffnuts to debate this very issue

http://www.consumeractiongroup.co.uk/forum/debt-bailiffs-advice/47487-credit-agreements-data-protection.html

[martinpar]

However I don't think the DCA has the right to alter the terms of the original agreement without your prior consent.

 

Could this read as not having the right to change a loan from unsecured to secured by obtaining a charging order?

[JonCris]

They have to 1st obtian a court order then a charge will be granted. So in fact it's not them placing the charge but the court. Otherwise they can't apply a charge without you consent. They can however place a caution on your property without your consent & should you decide to remortgage you would then give them a "warning off" when they would have to prove their entitelment to the caution. Also even if they had grounds not to remove the caution they could not stop you unreasonably refinancing your property.

[martinpar]

Now this is really interesting. I have a relation in the situation where the debt has been sold and the new owner has got a ccj (by default), then followed this up with a charging order. He objected to the charging order but has not yet followed this through. It is however recorded with the land registry as an objection.

 

He thought his chances of raising finance by remortgaging were scuppered but are you saying that he can still remortgage without having to pay out to them? If so, will it cause problems with the new lender?

 

Thanks

[sarahpp]

Does your relation have a legitimate reason for a "set aside" of the original CCJ such as not receiving the court documents or part of the alleged debt being made up of unlawful charges?

[martinpar]

He is waiting for a response to a CCA request. The plan is that if they don't come up with a copy of an executed agreement he will apply for set aside on the basis that the company has not proved the debt. I assume getting the ccj set aside will be sufficient to remove the charging order. I'm sure there are unlawful charges in there but they will only be a small part of the total.

[tbern123]

He is waiting for a response to a CCA request. The plan is that if they don't come up with a copy of an executed agreement he will apply for set aside on the basis that the company has not proved the debt. I assume getting the ccj set aside will be sufficient to remove the charging order. I'm sure there are unlawful charges in there but they will only be a small part of the total.

 

Hello Martin, I don't want to put a downer on things. However, as a CCJ has been registered, I would presume that when this first went to Court, they would have had to produce a copy of the agreement as proof od the debt. This would indicate they will be able to provide a copy

[mcuth]

Hello Martin, I don't want to put a downer on things. However, as a CCJ has been registered, I would presume that when this first went to Court, they would have had to produce a copy of the agreement as proof od the debt. This would indicate they will be able to provide a copy

 

ISTBC of course, but as the CCJ was registered by default, it looks like there wasn't actually any court hearing. In that case, the creditor wouldn't have to prove their claim - and thus they wouldn't need to produce the agreement. I think this would be the same if the debtor sent the response form back with an admittance of the debt and a proposal to pay was accepted.

 

I think that's how most creditors "get away with it" to be honest - they rely on debtors not knowing their rights, and being too accepting of their fate to turn up in court & argue the legalities.

 

Cheers

 

Michael

[sarahpp]

This would not be the only legitimate reason for a set aside

 

 

I know these have been posted before but, I can't find the thread now:

 

 

1. "Were you given 28 days notice in order to pay?
   
2. Were you living at the address when the summons and judgement took place?
   
3. If you took out a loan or any form of credit were you in receipt of the Default Notice before receiving the summons.
   
4. Did you receive the summons? They are not sent by recorded mail.
   
5. Maybe you were unable to attend court and defend yourself.
   
6. The judgement should not appear on the credit files if it was paid up within 28 days.
   
7. If you agreed to settle 'out of court' with the plaintiff you should not have received a Judgement.
   
8. If you did not receive any notification of the judgement/s made against you, then you can appeal.
   
9. Did you agree with the full amount of the judgement at the time, but now only agree with part of the amount?
   
10. Was the summons taken out against both yourself and another person jointly. If this is so, did you both receive your summons?
    
11. It could have been that you were away from the time between the issue of the summons and entry of the judgement?
    
12. Did you receive the summons on time for you to apply to the court. You have 21 days to reply to the court. If the summons was 21 days late then the judgement would have already been taken out against you?
    
13. Did somebody use your name or address to obtain credit, which resulted in a County Court judgement without you knowing?

You can use any of the above reasons to try to have your judgements set aside."

 

However, creditors have the automatic right to re-apply for judgment after one month so, your relation would need either a good defence prepared or be able to pay off the debt within one month (if judgment is proved) so that it does not show on the credit file.

 

I have highlighted the section which would apply to unlawful charges

[lookinforinfo]

Unless the creditor goes back to the Court and apply to have the property

sold to recover their money, the other way to do it is to wait for the house to be sold and collect the money then.

As a mortgage has first call on the money raised on any sale of the house, a

charging order is of little concern to them. Likewise for a remortgage-it

still has first dibs as it were. However they will be concerned that there is

a debt that has has been take to Court to be resolved. If they are satisfied

that there is sufficient equity in the house after the remortgage, and the

borrowers' income can stand the increase, they may well agree, though you may find that they will charge a higher interest rate than your original

motgagor. It may be better to go for a second mortgage if that is the case,

so that any extra interest charge will only apply to the second loan, while

keeping the main mortgage interest rate unchanged.

[tamadus]

I have only quickly scanned through this thread but I have already been in contact with both the OFT and The DTI over the matter of whether or not SI 1983/1557 sec.3 applies to sec. 77/78 requests and their written reply states that sec. 3(2)(b) applies to both sec 77/78 requests and sec. 85

 

The official word from both departments is that signature boxes can be ommitted when responding to these sections.

 

As an agreement without these boxes doesnt prove it's been legitimately signed I personally think this anomally needs changing and as as result I have forwarded a lot of information to my MP who was so alarmed that he immediately tabled a written question to the secretary of state.

 

I am sure you will appreciate that these things take time (governments are not renowed for speed) but once I get an acceptable answer I'll be posting in the group.

 

Zoot is perfectly correct in what she has posted, according to the OFT and the DTI.

[martinpar]

Tbern and others. Thank you for your replies. Yes, it was a judgement by default and no copy of an agreement was produced at any stage. They are now in the default period following the CCA request and we wait to see if they are able to produce the goods or not.

 

Sarahpp, your reason no 9 is a good one in this instance, except that, if we are saying there is no contract we cannot claim unfair charges. It will be the right line to take if a copy agreement turns up.

 

His situation is pretty bad and he was hoping for a remortgage to reduce, or at least not increase his monthly payments and gain some cash into the bargain. As he has a second secured loan now it would not work to get another one. We have talked about me buying his property from him but the cloud of this charge makes it difficult.

[stiffnuts]

I have only quickly scanned through this thread but I have already been in contact with both the OFT and The DTI over the matter of whether or not SI 1983/1557 sec.3 applies to sec. 77/78 requests and their written reply states that sec. 3(2)(b) applies to both sec 77/78 requests and sec. 85

 

The official word from both departments is that signature boxes can be ommitted when responding to these sections.

 

As an agreement without these boxes doesnt prove it's been legitimately signed I personally think this anomally needs changing and as as result I have forwarded a lot of information to my MP who was so alarmed that he immediately tabled a written question to the secretary of state.

 

I am sure you will appreciate that these things take time (governments are not renowed for speed) but once I get an acceptable answer I'll be posting in the group.

 

Zoot is perfectly correct in what she has posted, according to the OFT and the DTI.

 

 

If you got this information from the DTI then it must be correct. I would therfore like to humbly apologise to Zootscoot on the signature issue, and for been so rude. Whilist it may comply with the regs I still contend that the DCA's will strugle in court to show the debt exists. I have received further info. The idea of section 77/78 was to identify the terms and conditions within the agreement. A signature is not needed for this. S77/78 is not about proving the debt.

Again humble groveling apologies to Zootscoot

[martinpar]

What it means is that we must treat s77/8 as a tool to achieve our goal. It seems that DCAs will try to get a copy of the signed agreement but cannot always do so. If they can't we know we can then move forward in the knowledge that the debt cannot be proven.