SLC Cannot Supply The Original Agreement

[ian1969uk]

If an agreement is unexecuted, they can only enforce after the date they do eventually sign it. It;s the same with S85 stuff and also S77/78 stuff.

 

For example, I send a creditor a S85 default notice from 2004 to the present day. They realise their mistake and send me a copy of the original agreement immediately. This means they can enforce the agreement again, but only from now on. They can't say, well we've complied so that's that. Nowehere within the CCA 1974 does it say that if a default is rectified, it is as if the default never existed.

 

I have the same opinion on S77/78. They default, meaning I stop payments. If they rectify the default in two months time, this doesn't give them the right to expect the payments for the two months they were in default. They can only enforce from the date they rectify any default.

 

That's my take on it anyway.

[JonCris]

The failure to sign means the agreement is NOT properly executed.

 

You can't cause an agreement to be properly executed later after is hasn't been in the 1st place. That would make a mockery of the current law

 

Most regulated agreements are unenforceable which is why this government have changed the rules in the 2006 CCA & after having failed to succeed on this very sort of principal in the matter of HOL Wilson v Secretary of State

[Peterbard]

but a summary conviction can be a civil offence Steve. As you know, over on the CCA thread we are quite familiar with the CCA, Schedules & SI - the Schedule 1 states summarily (not indictable) that doesn't mean it's criminal, you can have a civil conviction.

Whilst you are saying there is no argument - then please direct to me to a document that confirms it is a criminal offence.

 

Hi L

 

The basic difference between a Criminal offence and a Civil action is that the former is between regina (The queen) vs.defendant and prosecuted by the CPS, wheras a civil action is brought about by a tort between two individuals, ie. Joe blogs Plaintif vs Credtor Defendant.

 

"Unlike criminal offences, the Crown Prosecution Service (CPS) doesn't prosecute a civil offence. Rather than any sentence, custodial or otherwise, the end result is usually financial compensation."

 

The criminal action is brought about when an act is contravened, and in the case of the CCA this occurs when the 42 day limit is passed.

The criminal prossecution should be a matter for the OFT.

The earlier default the one after twelve days is a civil action.

 

All government acts can be used in criminal actions unless it states within the act that it cannot, there is a statement to that effect somewhere within the cca.

Other areas of civil action are

 

"Property - boundary disputes, trespass

Work-related disputes - unfair dismissal, personal injury

Defamation of character - The Neil Hamilton v Mohammed Al Fayed case is one example

Consumer disputes - Faulty goods, 'trades description' offences

Copyright or Intellectual Property disputes -

Music sampling, plagiarism (copying someone else's material and passing it off as your own) "

 

I have a letter from the OFT stating the reasons why the debtor can continue to pursue the debt even after the offence is commited if they then produce the agreement. They say because the offence is criminal it does not affect the civil contractual obligations on the debtor. I posted it on here somewhere but i can't find it.

Summary judgement simply means that no evidance is offered and that a judge can make a ruling without a hearing and can be criminal or civil i believe.

 

Regards

Peter

[ladybird17]

Peter - I know the difference - I know about tort and civil actions - I know a lot about it as my niece is a criminal barrister. She has pointed me towards the following extracts:

 

Libel is a civil offence and may incur substantial financial penalties (Univ. of Bath Law Faculty)

 

If the Government determines that sending illegal bulk unsolicited commercial communications is a civil offence then ISPA believes that a clearer framework governing the disclosure of data in relation to the investigation of such offences will be needed. However, if the Government determines that it should be a criminal offence, then the processes set out in the Regulation of Investigatory Powers Act (RIPA) should apply

(ISPA)

 

In addition to that for technological measures, it becomes a criminal offence (as well as a civil offence) to infringe by communicating copyright works to the public in the course of business, (JISC Legal Inormation Services)

 

It is fair to say that there has been a tendency in modern times for this Parliament to try to dress up as a civil offence that which traditionally would be treated as a criminal offence. (Hansard. Lord Phillips)

 

So Hansard et al are incorrect? - There is no such thing as a civil offence?

[Seahorse]

Well, I thought I HAD decided Ladybird, but you appear to be rapidly changing my mind. You're not as sweet and innocent as your fiirst posts seemed to indicate.

[ladybird17]

seahorse - see my avatar;)

[Seahorse]

seahorse - see my avatar;)

 

It was your avatar I was talking about.

[ladybird17]

i'm devilishly angelic, or angelically devilish!

[Peterbard]

Peter - I know the difference - I know about tort and civil actions - I know a lot about it as my niece is a criminal barrister. She has pointed me towards the following extracts:

 

Libel is a civil offence and may incur substantial financial penalties (Univ. of Bath Law Faculty)

 

If the Government determines that sending illegal bulk unsolicited commercial communications is a civil offence then ISPA believes that a clearer framework governing the disclosure of data in relation to the investigation of such offences will be needed. However, if the Government determines that it should be a criminal offence, then the processes set out in the Regulation of Investigatory Powers Act (RIPA) should apply

(ISPA)

 

In addition to that for technological measures, it becomes a criminal offence (as well as a civil offence) to infringe by communicating copyright works to the public in the course of business, (JISC Legal Inormation Services)

 

It is fair to say that there has been a tendency in modern times for this Parliament to try to dress up as a civil offence that which traditionally would be treated as a criminal offence. (Hansard. Lord Phillips)

 

So Hansard et al are incorrect? - There is no such thing as a civil offence?

 

Hi Ladyb

I don't see how the instances you mention alter the basic definiton i quoted.

There can indeed be a simultanious civil and criminal action for instance a driver involved inan accident could be sue'd in a civil court for damages and also in a criminal court for dangerous driving but in each case the difference is who is bringing the case the state (criminal )or the plaintif (civil).

 

Peter

[ladybird17]

Peter - I'm arguing the point that I have been told SEVERAL times over on this thread that there is NO SUCH THING as a civil offence.

 

So I posted these excerpts so that the posters who maintain there is no such thing can take issue with the Lords, the Uni. of Bath Law faculty et al, and let them know that they are talking rubbish as there is no such thing as a civil offence.

[Peterbard]

Hi Ladybird

Clearly you are correct because the Phrase "Civil offence" appears quite frequently in legal parlance.

However what i think is confusing is the way that the word offence can be used in a civil and criminal action.

In my expereiance it is not usual to use this word in a civil matter but there is no reason why it shouldn't be after all it is an offence whether it be against the state or against the plaintif.

We must remember that the laws enforcing civil and criminal cases are enirely different the burden of proof for instance is a lot less in a civil case,as i am sure you know.

The crux of the argument as i see it is, can a civil offence be treated as a criminal offence, in that a punative sentance be given by the judge rather than financial compensation or like remady as in a conventional civil case to the plaintif.

Personally i think not but i am not a barrister although a lot of my collegues are and i am prepared to be proved wrong.

 

Regards

Peter

[ladybird17]

Yes, for sure the burden of proof is different in a civil action to that which must be identified in a criminal action. Civil actions are usually between an individual and an organisation. All this is true.

 

Yet those who have repeatedly told me I am wrong, there is no such thing as a civil offence have gone decidedly quiet today!

[Movingon]

Yes, for sure the burden of proof is different in a civil action to that which must be identified in a criminal action. Civil actions are usually between an individual and an organisation. All this is true.

 

Yet those who have repeatedly told me I am wrong, there is no such thing as a civil offence have gone decidedly quiet today!

 

Not quiet through embarrassment; more thoughtful. I have no understanding of how an "Offence" can be dealt with in the Civil courts - which are geared entirely toward disputes between parties. A Civil Court (e.g. the County Court) is staffed by District Judges who act in arbitration of disputes; I am not aware of DJ's handing out punishments for offences. Similarly I am ONLY aware of the Magistrate's Court handing out penalties and punishments, and NOT dealing with disputes. It was my understanding that the two systems (and the two types of decision making) were entirely separate. What we need is someone who KNOWS how this works to TELL us. For FACT.

 

Now, if PeterBard can ask one of his Barrister colleagues, or if someone has access to solicitors who specialise in Civil actions (rosiecotton?) who can tell us... ??

[ladybird17]

I wasn't suggesting Stonelaughter that it was quiet through embarassment! I meant I couldn't argue any further as there was no one to argue with:)

 

I'm just very confused that I am told by a barrister that of course there are civil offences; the matter of civil offences is brought up in the Lords and thus reported in Hansard. There are a multitude of published excerpts that highlight civil offences and yet there seems to be something of an intransigent insistence that I'm wrong.

 

I don't mind being wrong - perish the thought that i can be right ALL the time;) - but I want to be PROVED wong!

[JonCris]

Quiet because those of us who do understand the law are fed up arguing with someone who continues to argue despite being shown they are wrong & I'm sorry I don't care if your daughter is the Lord Chief Justice

 

As I alone pointed out many local authorities have had their parking tickets voided because they used the term penalty which implies a criminal offence

 

The term civil 'offence' is a commonly used generic term, but it is still wrong to use it in the context of the CCA non-compliance. Non-compliance is a criminal offence as only a criminal offence can attract a custodial sentence

 

& that is my final post on that

[Peterbard]

Not quiet through embarrassment; more thoughtful. I have no understanding of how an "Offence" can be dealt with in the Civil courts - which are geared entirely toward disputes between parties. A Civil Court (e.g. the County Court) is staffed by District Judges who act in arbitration of disputes; I am not aware of DJ's handing out punishments for offences. Similarly I am ONLY aware of the Magistrate's Court handing out penalties and punishments, and NOT dealing with disputes. It was my understanding that the two systems (and the two types of decision making) were entirely separate. What we need is someone who KNOWS how this works to TELL us. For FACT.

 

Now, if PeterBard can ask one of his Barrister colleagues, or if someone has access to solicitors who specialise in Civil actions (rosiecotton?) who can tell us... ??

HI St

With respect I have no need to ask everyone seems to be getting bent out of shape about the word offense when the critical term is civil or criminal thes are the two different arms of our judicial system and have differnt criterea of judgement and penalties.

 

Again an action against an act of parliament is a criminal offence an action against an agreement is a civil default.

 

As a point of information District Judges are paid professionals who sit below Circuit Judges and can try both civil and Criminal Cases.

 

They can however try only one type of case at a time and cannot dish out a criminal penalty for a civil dispute., ikewise they cannot dish out a civil award for a criminal penalty.

 

 

Regards

Peter

[Seahorse]

Oh, heck. I'm going to wish I hadn't got involved in this. But.

 

If someone is in default of the CCA, and is liable for, what is it, £2,500 or so (need to read that bit again)? Is that not a penalty? And have they not committed a criminal act by dint of said default?

 

I really am becoming very confused. Reason I'm trying to be clear is, Cabot are denying they are acting in a criminal fashion by not complying with a CCA request. So it would help to know for sure.

[noomill060]

The Act states that th creditor is guilty of an offence if the default remains after 30 days.

 

How clear is that?

 

Cabot can state that the scientific discoveries of the last three hundred years are all wrong and claim that the world is as the ancient scriptures state-a flat disc supported by giant elephants standing on the back of a giant turtle, but that wouldnt make them right, would it?

[Seahorse]

Yes, but it's what KIND of offence that all the above banter has me confused about.

 

I think I'll just stick to criminal in my own mind. I almost wish I'd missed the past couple of days chit chat.

[Seahorse]

Although I do like the elephant/turtle theory.

[ncf355]

Removed to CCA thread by moi

[Peterbard]

Hi

I seem to be talking butno one is listening. Am i in a dream

Default=Civil

Offence against an act of parliament or legislation=criminal

 

You can have a default on an agreement that is not regulated and enforce it throught the civil courts.(Ie your mate lends you £60 and agrees to pay £5 a week then defalts. This by no means could be considered criminal.

If he punches you on the nose and says give us me moneythis is contravening legislation ie demanding money with menaces and common assalust which is criminal.

 

When somone defaults on a regulated agreement they are defaulting on the agreement the regulations are just their to lay down the form and content of that agreement in order that it conformes to cca1974.

 

Contravening the act itself can not represent a criminal act unless the act itself says it can as in"after a further month they are commiting an offenc".This is because of:

 

Secion 170

No further sanctions for breach of Act

(1) A breach of any requirement made (otherwise than by any court) by or under this Act

shall incur no civil or criminal sanction as being such a breach, except to the extent (if any) expressly provided by or under this Act.

After 42 days of none compliance they have commited a criminal act which should be prossecuted either by the OFT or by private means.

 

To Finish my comment about some of my collegues being barristers and solicitors sounded a bit pompous and i noticed the slight derision in the reply so i will explain

 

As the former chair and developement worker for the credit Union (had to step down due to health) some of my fellow commitee members consist of a barristor a solicitor a doctor a councillor and othe lay people like me, all duly ellected by the members all, unpaid all with a social concience, and all (with due modesty ) doing a bloody good service for the community.

I also have made a few other legal expert friens over the Bailiff issue.

Hey you asked for it

 

Best regards

Peter

[rippedoffagain]

Would someone please point me in to the relevant documentation regarding the prescribed terms, I have trawled the CCA, but can not find the actual requirements.

[pford]

Would someone please point me in to the relevant documentation regarding the prescribed terms, I have trawled the CCA, but can not find the actual requirements.

 

 

think this is what you are after

 

http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/oft020.pdf

 

or is it the The Consumer Credit (Agreements) Regulations 1983 if its this one you want PM me your email addy and will send it you

[rippedoffagain]

think this is what you are after

 

http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/oft020.pdf

 

Many thanks pford:) :)