Cca Requests Updates Please

stapeley

OFFICE OF FAIR TRADING GUIDE LINES TO CCA

By virtue of section 61(1), a regulated Consumer Credit Agreement is not properly executed unless:
a docucment in the prescribed form , containing all the prescribed terms of the Agreement and conforming to regulations under section 60(1) is signed in the prescribed manner by the debtor or hirer and by or on behalf of the creditor or owner .
the document embodies all the terms of the Agreement ,other than implied terms, and the document is, when presented or sent to the debtor or hirer for signature , is in such a state that all its terms are readily legible.

stapeley

The form sent to me falls short of these guidelines supplied by OFT .

fermi

stapeley wrote: »

The form sent to me falls short of these guidelines supplied by OFT .

If it is "improperly executed" because it is missing the prescribed terms or wasn't signed by the debtor, then it will be unenforceable by the creditor or by the court (in theory).

If that is the case, then you may be in luck.

But be careful about how you interpret the "prescribed terms" because as you can see with the example of the "credit limit" the creditor has quite a bit of wiggle room, and it not always as simple as just stating a number.

Pity we can't see it, since that would make it so much easier for the rest of us to give a meaningful opinion.

But looking at the legislation and guidance, you need to be very very careful when interpreting whether "improperly executed" means unenforceable through the courts. It doesn't always.

If you read on in that OFT publication, you get to the text below which decoded basically says that an improperly executed agreement can be enforced through the courts (at their discretion obviously) as long as the really essential things such as the prescribed terms and your signature are there.

So when you read pieces of guidance that say that an agreement is "improperly executed because ...........", it's not always safe to assume that means that it can't be enforced through the courts. With the prescribed terms and your signature it does. But other errors in an agreement that would result in it technically being "improperly executed" may not stop a court enforcing it.

It's a nightmare to explain, let alone work out.:o:rotfl:

1.20 What if an agreement is not properly executed?

S65(1) provides that an improperly-executed regulated agreement is enforceable against the debtor on an order of the court only.

S127(1) provides that the court must dismiss an application for an enforcement order if it considers it just to do so, having regard to:

• prejudice caused to any person by the contravention in question, and the degree of culpability for it; and
• the powers conferred on the court by s127(2), s135 and s136 – see Q1.22.

This is however subject to s127(3) and (4) – see Q1.21.

1.21 Is an improperly executed agreement always enforceable with a court order?

S127(3) precludes the court from making an enforcement order if s61(1)(a) (signing of agreements) was not complied with, unless:

• a document (whether or not in the prescribed form) was signed by the debtor (whether or not in the prescribed manner);

• the document contains all the prescribed terms of the agreement – see Q1.14.

"prescribed form" & "prescribed manner" above refer to the other requirements in the agreements regulations, not the "prescribed terms".

Again it's basically saying that as long as the creditor hasn't forgotten to include all the really essential bits like the "prescribed terms" and getting you to sign it, then it can still be enforced but they must go to court to do it.

kel123_2

I read it like fermi. I've had one back that was taken out in 1997 (GE money - burtons acc). On the top it clearly says 'Your application to open a Burtons account' Then 3 lines down it says 'Credit agreement regulated by the consumer credit act 1974'. There is a £400 hand written on there (which was assumably my limit) Then in the bottom right there is a paragraph entitled Customer consent' underwhich is a box that I have signed and dated with the words 'This is a credit agreement regulated by the consumer credit act 1974, sign it only if you want to be bound by it's terms'. under is rights to cancell and under that is a box 'Signature on behalf of GE money and date. It is signed JS and dated.

Yes this clearly does not meet all the criteria but my gut and research say this will stand up in court. What it don'nt say is insurance? so i'll try and claim that back, If you can't get them one way get them another

stapeley

Just spent 2hours reading the OFT guide ! Not sure am any better off. lol

fermi

stapeley wrote: »

Just spent 2hours reading the OFT guide ! Not sure am any better off. lol

I know the feeling.

I think I'm getting a handle on it, but it's tough going.

It's so much easier if they just default on the CCA request.

stapeley

Yes they have ! Over the time limit . And they have not supplied all the monthly statements , one is missing . Its a little unclear if its only now enforceable by a court order, due to them going over time limit ?

fermi

stapeley wrote: »

Yes they have ! Over the time limit . And they have not supplied all the monthly statements , one is missing . Its a little unclear if its only now enforceable by a court order, due to them going over time limit ?

It's while the default continues, if this is the bit you mean?

(6) If the creditor under an agreement fails to comply with subsection (1)—

(a) he is not entitled, while the default continues, to enforce the agreement; and
(b) if the default continues for one month he commits an offence.

stapeley

Phoned the OFT consumer advice line this morning . At first, woman said "did you use the card " I explained that i believed the account agreement was not correctly presented or correctly signed and did not contain the all the prescribed terms. She gave me a referance number and said my local office will contact me .

lkava5

Hi

I have sent CCA letters to 2 DCA's. These are the responses I have had from them;

Softcall returned my PO and said they are no longer dealing with it as it has been returned to the client (which looks like it could be another DCA Capquest)

Red Castle sent a letter acknowledgement letter and said they are obtaining papers from their client - and would I be kind enough to give them my contact numbers in case they have a query.

I have a few questions

Will I have to send another CCA request to the Capquest?

Also

As Red Castle has acknowledged my CCA request letter do they still have to provide the CCA in 12+2 days - which is the 9th of April? Or because they sent me an acknowledgment letter does this mean they have more time to send me the CCA??
There is no way I want to give them my phone number but will this delay things?

Any advice would be welcomed.

Thanks