Capital One CCA

[labman]

Re: Capital One CCA

Not quite, what this is asking is if they do hold a signed copy of the original. They are obliged to tell you this, and if they refuse and go to court, you have a letter stating you speccifically asked the question.

[lee1972]

Re: Capital One CCA

Thanks, I have now read the CCA (relevant parts only....way too much otherwise)

However I would ask the question
An absence of a credit limit does not make it UE so long as the wording is correct ( as detemined by us from time to time or whatever) and
the cca says about the right to cancel

F166AWithdrawal from consumer credit agreement

(1)The debtor under a regulated consumer credit agreement, other than an excluded agreement, may withdraw from the agreement, without giving any reason, in accordance with this section.
(2)To withdraw from an agreement under this section the debtor must give oral or written notice of the withdrawal to the creditor before the end of the period of 14 days beginning with the day after the relevant day.
(3)For the purposes of subsection (2) the relevant day is whichever is the latest of the following—
(a)the day on which the agreement is made;
(b)where the creditor is required to inform the debtor of the credit limit under the agreement, the day on which the creditor first does so;

So although it does not say it on my signed agreement is that enough to pursue UE


Coming back to he other point of the statement the OFT guidelines say (plain english bit for us numpties)

You should also get copies of any other documents mentioned in your
agreement, although there are some that you don't have to be given.
You should also get a statement of your account (that they have signed) telling
you:

•
how much you still owe

•
how much you should be paying and when

•
if you borrowed a fixed amount of money, from the bank or someone else,

how much you have paid already.

Now this account is in default and was on a token payment arrangement (which I had with held pending compliance with the CCA request)

So does the absence of the details make it UE ?

See it's all so complicated

[Guest]

Re: Capital One CCA

No none of the above would make an agreement unenforceable.
The section you quote comes from the EU directive which came into force in Feb 2011 and doesn't apply to your agreement.

The other items required by section 78 are irrelevant to the enforcement of your agreement as they only have to be produced at the time of the hearing and the court will enforce.

Pete

[Guest]

Re: Capital One CCA

Hi Labman

No they can say that you have a rignt to cancell on the section 62 copy, the details of cancellation period should be sent with the 63 copy(the one that arrives with the credit card).

In fact they do not need to supply any cancellation period on this kind of account, it is a voluntarry practice only, and does not trigger unenforceablitiy under 127(4) as the compulsarry variety that applies to agreements made with pre contractural face to face contact with the creditor.

Peter

There is no requirement under the consumer credit act for cancellation of an agreement where there has been no precontractural face to face with the creditor.The provisions of the distance marketing may or may or have relevance to the cancellation actually applicable to this account, but there is no requirement for provisions of the DMA to be mentioned on the agreement so as far as unenforceability under 127(4) it is a none starter.

Peter

[teaboy2]

Re: Capital One CCA

No none of the above would make an agreement unenforceable.
The section you quote comes from the EU directive which came into force in Feb 2011 and doesn't apply to your agreement.

The other items required by section 78 are irrelevant to the enforcement of your agreement as they only have to be produced at the time of the hearing and the court will enforce.

Pete

That is regarding the 14 day cooling or period under section 66A for agreement after 2011, it does not have any effect on the need for a minium of 5 days under 68A or 14 days under 68B, nor does it have mean they do not need to include cancellation rights in the agreement under 64 which relate to the cooling of periods under section 68. Section 68 which is not related to the EU directive and was not changed. Even before that it was still 14 days as all the EU directive changes in 66A was “14 days beginning with” insert “the day after” - Thats all that was changed, the wording.

So the question is does failure to include the right to cancel in the terms make the agreement unenforceble? Probably not as its no mention of it being unenforcable if they did fail is in the act from what i can see.

[Guest]

Re: Capital One CCA

Yes the failure to include cancellation terms in an agreement can render it unenforceable.
If the agreement was not signed on the creditors premises or there were antecedent negotiations.

However

THERE ARE NO ANTECEDENT NEGOTIATIONS IN A CREDIT CARD AGREEMENT MADE BY POST.
So it does not require cancellation details. Section 67 of the act

67 Cancellable agreements
A regulated agreement may be cancelled by the debtor or hirer in accordance with this Part
if the antecedent negotiations included oral representations made when in the presence of
the debtor or hirer by an individual acting as, or on behalf of, the negotiator, unless—


Section 127(4)
(4) The court shall not make an enforcement order under section 65(1) in the case of a
cancellable agreement if—

(b) section 64 is not complied with.

section 64 says

64 Duty to give notice of cancellation rights


(a) must be included in a cancellable agreement in every copy given to the debtor or hirer under section
62 or 63, and
(b) except where section 63(2) applied, must also be sent by post to the
debtor or hirer within the seven days following the making of the
agreement.
.
This says nothing about 68 nor any additions to 68, it does not mention 68 at all, in short there is no iunenforceablity sanction for breach of section 68.

All this was argued 10 years ago there is bags of case law (start with Rankine)

In Answer to the OPs question . His agreement is not unenforceable due to lack of cancellation details because there is no facility within the act for there to to be any such sanction.

Peter

[mystery1]

Re: Capital One CCA

http://legislation.data.gov.uk/ukpga....htm?wrap=true
56Antecedent negotiations.

(1)In this Act “antecedent negotiations ” means any negotiations with the debtor or hirer—
(a)conducted by the creditor or owner in relation to the making of any regulated agreement, or
(b)conducted by a credit-broker in relation to goods sold or proposed to be sold by the credit-broker to the creditor before forming the subject-matter of a debtor-creditor-supplier agreement within section 12(a), or
(c)conducted by the supplier in relation to a transaction financed or proposed to be financed by a debtor-creditor-supplier agreement within section 12(b) or (c),

and “negotiator ” means the person by whom negotiations are so conducted with the debtor or hirer.

(2)Negotiations with the debtor in a case falling within subsection (1)(b) or (c) shall be deemed to be conducted by the negotiator in the capacity of agent of the creditor as well as in his actual capacity.

(3)An agreement is void if, and to the extent that, it purports in relation to an actual or prospective regulated agreement—
(a)to provide that a person acting as, or on behalf of, a negotiator is to be treated as the agent of the debtor or hirer, or
(b)to relieve a person from liability for acts or omissions of any person acting as, or on behalf of, a negotiator.

(4)For the purposes of this Act, antecedent negotiations shall be taken to begin when the negotiator and the debtor or hirer first enter into communication (including communication by advertisement), and to include any representations made by the negotiator to the debtor or hirer and any other dealings between them.

Facts.Correspondence passes between an employee of a moneylending company (writing on behalf of the company) and an individual about the terms on which the company would grant him a loan under a regulated agreement.Analysis.The correspondence constitutes antecedent negotiations falling within section 56(1)(a), the moneylending company being both creditor and negotiator.

Example 2Facts.Representations are made about goods in a poster displayed by a shopkeeper near the goods, the goods being selected by a customer who has read the poster and then sold by the shopkeeper to a finance company introduced by him (with whom he has a business relationship). The goods are disposed of by the finance company to the customer under a regulated hire-purchase agreement.Analysis.The representations in the poster constitute antecedent negotiations falling within section 56(1)(b), the shopkeeper being the credit-broker and negotiator and the finance company being the creditor. The poster is an advertisement and the shopkeeper is the advertiser.

Example 3Facts.Discussions take place between a shopkeeper and a customer about goods the customer wishes to buy using a credit-card issued by the D Bank under a regulated agreement.Analysis.The discussions constitute antecedent negotiations falling within section 56(1)(c), the shopkeeper being the supplier and negotiator and the D Bank the creditor. The credit-card is a credit-token as defined in section 14(1), and the regulated agreement under which it was issued is a credit-token agreement as defined in section 14(2).

Example 4Facts.Discussions take place and correspondence passes between a secondhand car dealer and a customer about a car, which is then sold by the dealer to the customer under a regulated conditional sale agreement. Subsequently, on a revocation of that agreement by consent, the car is resold by the dealer to a finance company introduced by him (with whom he has a business relationship), who in turn dispose of it to the same customer under a regulated hire-purchase agreement.Analysis.The discussions and correspondence constitute antecedent negotiations in relation both to the conditional sale agreement and the hire-purchase agreement. They fall under section 56(1)(a) in relation to the conditional sale agreement, the dealer being the creditor and the negotiator. In relation to the hire-purchase agreement they fall within section 56(1)(b), the dealer continuing to be treated as the negotiator but the finance company now being the creditor. Both agreements are cancellable if the discussions took place when the individual conducting the negotiations (whether the “negotiator ” or his employee or agent) was in the presence of the debtor, unless the unexecuted agreement was signed by the debtor at trade premises (as defined in section 67(b)). If the discussions all took place by telephone however, or the unexecuted agreeement was signed by the debtor on trade premises (as so defined) the agreements are not cancellable.



M1

[lee1972]

Re: Capital One CCA

Thank you one and all. I am not sure of the point that mystery is making, right over my hed I'm afraid.
The other point is, i never actually asked about the right to cancel, that was an avenue someone else said may be a possibility.
My questions were about the cost of credit..been answered and the statement (is just a balance enough to class as a statement ) and if the failure to provide a statement is enough to say the company is in breach of the CCA request (no mention of permanenet UE here).

It just goes to show how complicated consumer credit law is, acts, ammendments, EU directives, OFT guidelines etc etc.

I do like the idea of the CPUTR letter and will hold that in reserve until such a time as it may provide the maximum benefit

[Guest]

Re: Capital One CCA

HI
The answer is that i order to comply with a section request the creditor would supply a statement of account. You could say that the agreement was unenforceable until he supplied it.

But it would be in your default notice anyway, they could produce it at any time

Peter

[lee1972]

Re: Capital One CCA

So we agree that the missing statement makes the agreement UE until they fix it?
I have sent them a missing prescribed terms letter.
If it looks like they want to issue a ccj and still haven't provided the statement then i have a defence , of course they can then rectify that at which point I send the CPUTR .
What are peoples thoughts on that
Oh BTW I do not have the DN lost long ago

[Guest]

Re: Capital One CCA

The statement of account would have been on the DN.
Sorry to say that from what i have seen you have no defense. All they have to do is turn up with a statement at the hearing which they will undoubtedly do.

Not sure what you mean about the CPUTR

If they have a signed agreement they will obtain a judgment.

Peter

[lee1972]

Re: Capital One CCA

Well IMHO the DN notice was so long ago what they sent is in no way a statement and although the regulations come from a 2010 EU directive they are applicable to the CCA request that I sent in 2012. Also a DN only has to say what is wrong and what I need to do to put it right, I do not think there is any rule saying a statement must be included.
In addition, if they turned up at court with a statement I doubt very much that a judge would grant the CCJ on that basis as up intil that very moment the debt had been UE.
As for the CPUTR, well in the carey case the judge said that they needed the original to enforce so although a recon or scanned copy maybe enough for a CCA request if they do not have the original they are somewhat stuffed. In addition if they say they do, then can't produce it they have commited a criminal offence.
Remember I would be the defendant and it would be up to them to prove, that i had signed a copy

[Guest]

Re: Capital One CCA

I could write an essay on what is wrong with your last post.

However if they dont have an signed agreement you should be OK

Good luck

Peter

[lee1972]

Re: Capital One CCA

Hi Peter
I am seriously interested in what I have got wrong in my previous post.
So far as I am aware the EU directive has been included in law, indeed the dpt BIS has issued a document on it. Therefore the lack of a proper up to date statement is a CCA request breach. Remember the default was in 2008 and I have been paying an agreed payment from then until now.
I stand by my assertion about what should be in a DN, if I am wrong please tell me, I am always willing to learn
My understanding is that upon issue of the summons the creditor would need to provide the evidence , they can not just turn up on the day with it , or if they did the ccj would not be granted at that point
It may not have been the Carey judgement but effectively in one judgement the judge did say that the original needed to be produced. Now if I ask them if they have one and they say yes, but can not produce it, then they have committed a criminal offence
I wait with interest your comments as I am still learning

[Guest]

Re: Capital One CCA

Firstly, you are talking about unenforceable under section 127(3-5) of the act, this was rescinded in 2007, so any subsequent legislation whatever the source would not make an agreement unenforceable.

Yes a DN under section 87 must be sent in order to correctly terminate an agreement and enforce, are you saying none was sent? If so the judge may ask why you did not mention it earlier to the creditor so that they could comply.

On the contry, the judge in Cary highlighted the possibility that an agreement could be enforced without a signed copy being presented, section 127 only says that an agreement was signed, it does not stipulate that one must be produced.

The creditor does not have to prove absolutely anything in civil litigation, he only has to show that on the balance of probabilities something was likely to have occurred.

As i said earlier you should be OK however because to my knowledge this has not been tested, on this i cold be wrong

When you mention a criminal offence i take it you are talking about the section in the 77-79 requests that states if no copy is forthcoming the creditor will have committed a criminal offence, if so you are incorrect this was also repealed some time ago there is no such sanction now.

There are many other errors / misconceptions but that is enough to be going on with for now.

Basically you are betting that they have no signed agreement and that the judge believes on the balance of probabilities that one was never correctly executed, as i say you should be OK.
Hopefuly

Peter