CCA request to lowells

[Esy 1]

Re: CCA request to lowells

:bounceo you think i should ignore cohens then , also the 12 days for the cca request to lowells is up now as well tommorrow, should i send lowells a non complient cca request letter maybe ? :boink:

[pt2537]

Re: CCA request to lowells

simple point, they are right that if the agreement ends then the s78 request falls by the way side.

HOWEVER,

Has the agreement been terminated? to work this out we need the default notice.

So if you do not have the default notice then you should ask for a copy of it from HC as they have a duty to disclose under the CPR Pre action protocol pract direction.

A creditor cannot terminate a regulated agreement without a valid default notice, so firstly we need to see fi the DN is valid

[gravytrain]

Re: CCA request to lowells

simple point, they are right that if the agreement ends then the s78 request falls by the way side.

HOWEVER,

Has the agreement been terminated? to work this out we need the default notice.

So if you do not have the default notice then you should ask for a copy of it from HC as they have a duty to disclose under the CPR Pre action protocol pract direction.

A creditor cannot terminate a regulated agreement without a valid default notice, so firstly we need to see fi the DN is valid

Have to disagrees here, the creditor has a statutory obligation to provide a copy under section 77-79 for as long as any sum remains payable under an agreement, irrespective if whether it has been terminated.

[pt2537]

Re: CCA request to lowells

Have to disagrees here, the creditor has a statutory obligation to provide a copy under section 77-79 for as long as any sum remains payable under an agreement, irrespective if whether it has been terminated.

I understand that point and am frustrated to say that the County Court will not agree, the reason is HHJ Simon Brown QC in Rankine, where he said clearly the duty to comply is while "under" an agreement and where the agreement has been terminated you are no longer "under" an agreement thus no duty to comply.

Sadly this was a High Court ruling thus binds the County Courts, and Banks are quick to throw that at you without a second thought

[gravytrain]

Re: CCA request to lowells

I understand that point and am frustrated to say that the County Court will not agree, the reason is HHJ Simon Brown QC in Rankine, where he said clearly the duty to comply is while "under" an agreement and where the agreement has been terminated you are no longer "under" an agreement thus no duty to comply.

Sadly this was a High Court ruling thus binds the County Courts, and Banks are quick to throw that at you without a second thought

Yes but wasn't this ruling disproved by Goode ? and hasn't there been cases since which found contrary.

"However, with respect, it is submitted that Mr Justice Simon Brown QC was mistaken when he stated, at paragraph 16:
‘In the Tesco case, where they are seeking enforcement, section 78(6) of the Act does not have the effect contended for by the Rankines. First, the prohibition is against a creditor ‘under an agreement’. The agreement was at an end. Therefore there is no reason why there cannot be enforcement. Secondly, the word ‘enforce’ is not descriptive of the commencement of proceedings. Bringing proceedings during a time when the agreement has been brought to an end is only a step taken with a view to enforcement. It is not actually enforcement.’
The grounds for questioning the statement are the following:
(i) In section 189(1) ‘creditor’ is defined as ‘the person providing credit under a consumer credit agreement … and in relation to a prospective consumer credit agreement, includes the prospective creditor’; ‘debtor’ is defined as ‘the individual receiving credit under a consumer credit agreement … and in relation to a prospective consumer credit agreement includes the prospective debtor’.
(ii) The Agreements Regulations identify ‘creditor’ and ‘debtor’ with reference to their respective descriptions irrespective of the status of the agreement. In other words, the expressions are used to identify the relevant parties under, or to, the agreement.
(iii) The expression ‘enforce an agreement’ is utilised in the Act to mean to take steps to assert one’s rights under the agreement, regardless of whether the agreement has come into force, is still extant or has been ended. Thus, section 65 of the Act uses the expression ‘enforceable’ when referring to whether an improperly executed regulated agreement is enforceable against the debtor on an order of the court. Section 127 refers to enforcement orders in the case of infringement. Applying for an order under this section might amount to seeking enforcement of the agreement, as the heading to Part IX also suggests, namely: ‘Enforcement of certain regulated agreements and securities’."

[pt2537]

Re: CCA request to lowells

Yes but wasn't this ruling disproved by Goode ? and hasn't there been cases since which found contrary.

"However, with respect, it is submitted that Mr Justice Simon Brown QC was mistaken when he stated, at paragraph 16:
‘In the Tesco case, where they are seeking enforcement, section 78(6) of the Act does not have the effect contended for by the Rankines. First, the prohibition is against a creditor ‘under an agreement’. The agreement was at an end. Therefore there is no reason why there cannot be enforcement. Secondly, the word ‘enforce’ is not descriptive of the commencement of proceedings. Bringing proceedings during a time when the agreement has been brought to an end is only a step taken with a view to enforcement. It is not actually enforcement.’
The grounds for questioning the statement are the following:
(i) In section 189(1) ‘creditor’ is defined as ‘the person providing credit under a consumer credit agreement … and in relation to a prospective consumer credit agreement, includes the prospective creditor’; ‘debtor’ is defined as ‘the individual receiving credit under a consumer credit agreement … and in relation to a prospective consumer credit agreement includes the prospective debtor’.
(ii) The Agreements Regulations identify ‘creditor’ and ‘debtor’ with reference to their respective descriptions irrespective of the status of the agreement. In other words, the expressions are used to identify the relevant parties under, or to, the agreement.
(iii) The expression ‘enforce an agreement’ is utilised in the Act to mean to take steps to assert one’s rights under the agreement, regardless of whether the agreement has come into force, is still extant or has been ended. Thus, section 65 of the Act uses the expression ‘enforceable’ when referring to whether an improperly executed regulated agreement is enforceable against the debtor on an order of the court. Section 127 refers to enforcement orders in the case of infringement. Applying for an order under this section might amount to seeking enforcement of the agreement, as the heading to Part IX also suggests, namely: ‘Enforcement of certain regulated agreements and securities’."

The OFT did suggest to the contrary, and Goode disagreed if i recall, but im not aware of a higher authority that overruled the Rankine decision.

[pt2537]

Re: CCA request to lowells

Just want to add that if the s78 request is made before termination then obviously the creditor has to comply and cannot terminate the agreement until he has complied.

[gravytrain]

Re: CCA request to lowells

Just want to add that if the s78 request is made before termination then obviously the creditor has to comply and cannot terminate the agreement until he has complied.

Yes agreed

[ODC]

Re: CCA request to lowells

Do they still not need to prove there was an agreement in tye first place i.e. produce a copy of the original signed agreement

[PlanB]

Re: CCA request to lowells

Do you think i should ignore cohens then , also the 12 days for the cca request to lowells is up now as well tommorrow, should i send lowells a non complient cca request letter maybe ?

Ignore Howard Cohen at your peril ! They will issue court proceedings and then expect you to work backwards from there :eek2:

As PT has said if the DN was bad and the account wasn't terminated lawfully then your s.78 request may still stand.

Howard Cohen like to bluff LIPs :wink: How do I know this ? Because they said the exact same thing to me and then I won my case against their client with the help of PT2537:

http://www.bbc.co.uk/news/business-17670803

[Esy 1]

Re: CCA request to lowells

Do you think I should ask HC for a valid copy of the DN, as i never received one.

[pt2537]

Re: CCA request to lowells

Do you think I should ask HC for a valid copy of the DN, as i never received one.

i wouldnt ask for a "compliant" notice. That will most likely cause them to send one

I would ask for a copy of the notice they will rely on.

[Esy 1]

Re: CCA request to lowells

Thankyou for your help, so I just write a letter and say exactly what you have just said, I would like a copy of the notice that you rely on is that right.

[Esy 1]

Re: CCA request to lowells

I sent a CPR request to HC that FlamingParrot suggested and they just dismissed it in the letter i attached, aren't they supposed to comply with a CPR request ?

[FORCEOFONE]

Re: CCA request to lowells

Post up the letter in which they dismissed your request