URGENT HELP NEEDED RE: cca request

[joneshousehold]

Right so looking at those 'minor' points

1. I'm not sure when cancellation rights came in universally, perhaps someone else can help us on this. It was in the huge thread Consumer Credit Act Agreements I have already given a link to but I have no idea where. You could try searching for terms like cancel or cancellation in the thread. If no joy, try posting a question. If it is a non-cancellable agreement, try looking at the OFT document for these, it was the other link I posted earlier in the thread.

2. Providing this is not affected by the cancellation bit above (and I think it isn't), this is not a minor matter. It MUST be in the signature document. So now you have an unenforceable agreement! The creditor will have to take this the court to get it enforced. You can then point to their offences and this MAY make them reluctant to do so.

3. Illegible copies are a no-no. Same for the original. If the copy is illegible even in parts they have not complied with S77. As the copy is illegible also tell them you cannot see it was any more legible when you signed it so as far as you can see the original failed the conditions of Section 61. They will have to produce the original in court to prove it was legible (unless they can get a better copy) and most lenders have scrapped the originals when they were microfiched. It might be worth asking them if they have the original or a microfiche only.

4. The OFT guidelines do say the agreement MUST be signed and dated. I am not too clear on this but it does lead into question when the agreement became executed. It will be the later of the two dates of signatures and if there is no date on which you signed it then it is impossible to say when it became executed. I am not too clear on how this will be interpreted by the court. Does the OFT guidelines say any more on this point?

 

So whilst you describe these as minor, I don't think they are. So far they have not complied with S77 and their default continues. It would also be worth pointing out their errors and making them explain how the requirements of the Act can be ignored. You might want to leave this until you do get a legible copy if at all but that decision will be just a tactical one. Make them show you the legislation. They often can't because the staff are not trained to do so. In the meantime the amount remains in default and in dispute and you maintain the agreement is unenforceable so no interest, no repayments, no defaults. Make them explain why if they think this is not correct. And when I say explain, I mean really explain quoting chapter and verse.

[peterq2]

Hi m8, I don't think it's a non cancellable agreement it is just a basic credit agreement for a joint loan, so I think I will focus my next letter mainly on this point about the lack of cancellation rights, although I will mention all the said discrepancies, and will ask them for their interpretation of the legislation too lol let them do a bit of work for a change!

 

I can't face looking through that mega long thread again, not today anyway! lol maybe tomorrow when I'm not so hung over!

 

But in the meantime you have given me new hope (I at least now have a further reprieve from the wolves knocking at the door) Thanks m8 you are a star!

[peterq2]

Agreement number: *******

 

24th march 2007

 

Dear Ms *****,

 

Thank you for your letter regarding my CCA request and Blackhorse’ subsequent criminal offence committed in non compliance with said request.

 

I am surprised that Blackhorse, with all its legal resources is unaware of the applicability of the various sections of the Consumer Credit Act and associated regulations especially as a high proportion of its’ business in the UK is regulated by the Act.

 

Whilst I appreciate that in business mistakes may occasionally happen and that human error is a factor, I would reasonably expect that an establishment such as yours would adhere to the very letter of the law when dealing with matters such as this, where your very credit licence could be jeopardised by this type of incompetence.

 

Now that you have finally attempted to comply with my request for a true copy of my agreement under the rules of the CCA 1974 I would respectfully ask that you take note of the following:

 

The copy of the agreement you have supplied is insufficient, and as such I believe the agreement to be unenforceable. My reasons for this are set out below:

 

1. The copy supplied is illegible in parts (namely page 2 Terms and Conditions) as you know the CCA requires that the agreement supplied must be “easily legible”.

Please supply a legible copy of the above.

 

2. Under the CCA rules regarding the statements of customers’ protection and remedies the act states that there must be a statement about the possibility of a rebate upon early settlement of the agreement.

This is notably absent from the document supplied by you.

 

3. According to the OFT the CCA states that “THE CUSTOMERS’ SIGNATURE AND ITS DATE MUST BE INSIDE A BOX”.

There is no date in the customers’ signature box in the document supplied by you. As you will be aware the CCA requires that both signature boxes be signed and dated and if you study the appendix supplied by the CCA the format used in your supplied agreement does not fully comply with the rules.

 

4. According to the CCA you must include in an agreement cancellation rights, which in turn must be presented in the following format:

”Cancellation rights must be presented in a box which must be placed immediately above below or beside the signature box”

As you can see the documents supplied by you certainly do not meet with this requirement, in fact there is no mention of my cancellation rights anywhere in the documents you have supplied least of all in their proper format alongside/nearby the signature box.

This is a basic requirement in law as set out by the Consumer Credit Act 1974 and I would like to ask why an important requirement such as this one has been ignored?

 

As you will be aware, if any of the consumer credit act rules are not followed an agreement will be improperly executed and may be rendered unenforceable.

To be properly executed and so enforceable an agreement must be recorded in a document which embodies all its terms signed and dated by both trader and customer and is readily legible and as specifically stated under the rules of the consumer credit act 1974.

 

Therefore it is with regret that I see no other option but to take the matter up with the relevant governing bodies, starting with the OFT, TRADING STANDARDS, and the FSA.

 

At this juncture I would also like to point out that any defaults entered against me in this matter during the time scale that you were in default under the rules of the cca should be removed immediately, additionally any charges or interest added whilst you were in default under the rules of the cca should also be removed, as I have not yet received a fully executed copy of the agreement I maintain that Blackhorse remains in a default situation and so should refrain from adding any further charges/interest/notices etc

 

Please respond favourably in writing by return of post as this is the last letter of correspondence you will be receiving from me regarding the above matter before I start proceedings against Blackhorse.

 

Yours Sincerely

 

***

 

 

[peterq2]

what do you think? all suggestions very welcome before I print that out and send it:

[joneshousehold]

I would only suggest some minor amendments.

1. 2nd line where you say '...the CCA requires that the agreement...' you could insert ...'and all copy agreements'

2. OK

3. Strictly a creditor's signature does not need to be in a box. The way you have worded this however does convey what you mean so you could leave it. They may write and point it out but it makes no difference and may just delay matters further. That is no problem to you because as long as they are still in default they cannot take action against you

4. The part you have put in quotes is from the OFT not from the CCA so you may want to amend your sentence to something like '...which according to the OFT must be presented in the following format:'

 

Paragraph opening with 'As you will be aware...' has the sentence 'To be properly executed and so enforceable...' you could take the word 'so' out because enforcability does not necessarily follow solely from being executed. However it probably makes no difference in the long run.

 

There are several references to consumer credit act which should start each word with a capital letter and to cca which should all read CCA1974. Now that is me just being pedantic about how the set out legal references so isn't necessary but if you want to appear to be a little knowledgeable then it is best to change them. Alternatively if you want to appear the opposite (and it can have it's merits as a tactic) then leave them as they are.

 

Otherwise it's a good letter that conveys what you mean. You might also want to add that as the agreement appears to be unenforceable you are not required to make any further payments and will therefore not be doing so. Any action taken to collect any such amounts will be unlawful and any claim will be vigorously defended. You could pile on the pressure a bit by saying you are of the opinion that as the loan has always been unenforceable they have been requiring payment from you without any statutory backing and all payments to date should be returned to you. I only know of cases where the agreement just does not exist that money has been returned so you have a weak position here but it may be worth a mention as it will provide you with some room for negotiation when this all unravels if they have to accept that the agreement is unenforceable and they decide not to chase you through the courts.

[joneshousehold]

I have had a look at the cancellation issue and all credit card agreements became automatically cancellable from 2004. You have a loan agreement here don't you? What makes you say it was cancellable if they hadn't put the box on the form giving you the right to cancel? If you look at the OFT documents you will see the definition of a cancellable agreement plus it says an agreement will become cancellable if the right is given voluntarily by the creditor. Can you clarify this for me please?

[peterq2]

Hi m8, the way I read the OFT document

cancellable agreements are those where a trader discusses credit arangements face to face with the customer and the customer signs the agreement off trade premises [END QUOTE]

 

I went to Blackhorse for a loan which I discussed and agreed upon, but it was to be a joint loan between myself and my then partner who was disabled and couldnt get to the offices of BH so they sent the agreement out for us to sign and send back, would that not make the loan cancellable under the rules of the cca it wasnt a credit card just a cash loan. *as you can see I am easily flummoxed and all those documents make my head spin!!!

[peterq2]

BTW thanks for the points on the letter I have taken them onboard and will make the necessary changes.

 

I will hold off on printing and posting though until I get the cancellable/non cancellable issue straight in my head, I think I am correct in it being cancellable as we signed the forms at home and sent them back... what do you think?

[joneshousehold]

Certainly looks like it should have been cancellable.

[peterq2]

ok thanks m8, i shall operate under that assumption for now see what they have to say about it.

[peterq2]

well the letter went off yesterday so now it's just a waiting game, I strongly suspect that the reply will be along the lines of "its a non cancellable agreement, so we didnt need to include that information... blah blah blah"

but to deal with that type of response I will draft a letter later on today to send by return of post informing them of the facts of how and where we signed the agreement (at home) so therefore making the agreement "cancellable" according to the OFT guidelines.

Fingers crossed

[joneshousehold]

It is an interesting position. Hope we are right about this, it's not something I have seen before so I am a bit in the dark too. My natural inclination is to lead them along for a while asking innocent questions before hitting them with a big whammy about their abuse of the law by denying you your legal right of cancellation.

 

If we are right, the agreement will not only be unenforceable but S127 will prevent the courts from ever granting an order. I expect the creditor to fight this quite strongly.

 

Anyone out there able to calm our nerves and provide a word or two of advisory comfort?

 

Let's see what the creditors say. I can't wait!

[peterq2]

I would also welcome any responses from others who might know more than us m8, I am a bit worried but will go down the route you suggest asking "innocent" questions of them about why they think its non cancellable and when they respond (as they should) with because it is a loan and isnt cancellable because X Y Z... then i will helpfully tell them of our position and where we signed the agreement etc and maybe I will even print out a copy of the relevant legislation about how an agreement is cancellable if signed away from the creditors premises... I am not totally confident in my position but at the very least i can buy myself a little more time by disputing these facts and so still claiming that the original CCA request is still in default position.

Thanks for keeping up to date with my situation m8, it helps to have a friendly ear!!!

[joneshousehold]

Your very welcome. I know what it's like when you are not sure of what you are doing and someone else comes along and offers help.

 

I am actually reasonable confident we are right here but would like someone else to confirm just in case anything was changed by later regulations. We can keep bumping the thread until someone sees it. I might try contacting some knowledgeable folks if we don't get a response. We are OK for time on this whilst you wait for a reply to your letter.

[peterq2]

If we are right, the agreement will not only be unenforceable but S127 will prevent the courts from ever granting an order. I expect the creditor to fight this quite strongly.

 

M8 can you explain what S127 is please? (sorry this is prob really simple but I am confused lol)

[joneshousehold]

Sorry, I should have made myself clearer. Here is a link to CCA

Consumer Credit Act 1974

S127 of that Act says

127 Enforcement orders in cases of infringement

(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 court by 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.

Subsection (4) in bold is the relevant bit which says if cancellation rights not adhered to then an enforcement order cannot be issued.

[peterq2]

Thanks m8, that will come in handy when the letters start to fly back and forth!!!