action to take after s.77/s.78 CCA non compliance and being chased for debt?

[tifo]

I CCA'd all my DCA's last year (Jan 2007) and so far none has FULLY complied with my s.77 or s.78 request made under the CCA 1974. I've had the usual application forms (some short ones) and not applicable T's and C's.

They continue to maintain a default on me and chase me up occasionally with threats of court action, Lowell in particular for 3 accounts. A few have a CCJ on me from some years ago.

I am thinking of asking for CCJ set aside and default removal and compensation for harassment and defamation/damages from the defaults. Starting with Lowell as Financial wrongfully maintained two defaults, in addition to two by Portfolio. They've accepted this.

I'm also thinking to do the same with CRA's.

The basis of my argument with both DCA's and CRA's will be no agreement so where is the consent/proof of what they are doing?

Am i on the right tracks or can someone advice me for/against this action?

[Jelly]

Re: action to take after s.77/s.78 CCA non compliance and being chased for debt?

Hi there

You can certainly ask for the CCj to be set aside on the grounds of no CCA - however, you may find that the judge dismisses your grounds for set-aside as you did not contest this at the time. perhaps if you give us a little more information on your CCJ's, we can assist there.

In terms of the one's who don't have CCA's and no CCJs, I would certainly invoke their complaints procedure and report them to both Trading standards and the OFT. The FOS will not get involved until you have gone down their complaints procedure route and so it's something which just has to be done if you want the complaint resolved or the FOS to charge them £400 for the privelege of investigating.

CRA's are notoriously difficult to interact with on any meaningful level. They will only write to the DCA's, who will then clearly say the debt is valid, so they will believe them and refuse to alter your records. This may just have to be something you ahve to live with at the moment and save that battle for another day.

As i said earlier in my post, give a little more information ad we can see what we can do to help.

[thephoenix]

Re: action to take after s.77/s.78 CCA non compliance and being chased for debt?

You do have to be careful with CCA requests. Although the CCA 1974 states that 'Regulated consumer credit agreements have to be of the prescribed form'

It also states under s.77-79 regarding duty to give information:
'.......shall give the debtor a copy of the executed agreement (if any)......'

In my view, if an agreement in the prescribed form was originally issued but they failed to retain a copy, then I would agree with following it up with a complaint and then invoke a s.13 DPA claim.

BUT if an agreement never actually existed then how would you get around the fact that:

a) under s.77-79......'.......shall give the debtor a copy of the executed agreement (if any)......' so if there was never an agreement in the first place, one cannot be produced.

b)(assuming credit cards here cuz of your application reference ) How to explain the fact that every time you made a purchase, you are authorising payment from your account

c) Statements of account show purchases made and money paid into the account.


These are just some questions a court will ask. It will be difficult to convince a court that an agreement cannot be enforced if there was not one in the first place.....ref: '......IF ANY.....'

Just my opinion but if you have a good argument for the above then do tell

[tifo]

Re: action to take after s.77/s.78 CCA non compliance and being chased for debt?

Hi there

You can certainly ask for the CCj to be set aside on the grounds of no CCA - however, you may find that the judge dismisses your grounds for set-aside as you did not contest this at the time. perhaps if you give us a little more information on your CCJ's, we can assist there.

1st CCJ i am paying as per court order. No s.78 compliance.

2nd CCJ i am not paying as creditor has always refused my offer (even at court) and got a charging order. No s.78 compliance.

3rd CCJ not paying anything and bank sold it when i made a request for charges back. Current account so no CCA they say but a regulated agreement under CCA 1974 was the basis of their POC.

In addition i have about 15 defaults from creditors who have not comlied with a s.78 request. s.78(6) clearly states 'no enforcement' yet they continue to enforce at CRA's with an amount which includes penalty charges. I want to make a start on removing these first and compensation as per s.13 DPA and harassment for being chased up.

[tifo]

Re: action to take after s.77/s.78 CCA non compliance and being chased for debt?

These are just some questions a court will ask. It will be difficult to convince a court that an agreement cannot be enforced if there was not one in the first place.....ref: '......IF ANY.....'

All credit card accounts are regulated under a CCA 1974 agreement which has to be properly executed and contain all prescribed terms to be enforceable, otherwise s.127 CCA makes it not so.

Statements only show that i used the account. It can still be unenforceable until they comply with s.78. Not acknowledging a debt and it being unenforceable are two different things.

[Guest]

Re: action to take after s.77/s.78 CCA non compliance and being chased for debt?

Do you owe these people money?

The Consumer Credit Act 1974 is not a "Get out of debt free" card and it should not be used as such. If you owe money, because you have borrowed it then you have, at the very least, a moral obligation to pay it back. If you cannot afford to pay it back then you can ask for time to pay. We no longer have a debtors' gaol, there is very little to fear if you cannot pay your bills.

If you have had CCJ's awarded against you some time ago, they will not be set aside now, the time to apply for this has passed as any application for set aside must be made promptly.

Playing games with DCA's regarding paperwork is morally objectionable, despite what you may think of DCA's and their questionable business practices - we should practice debit avoidance, not debt evasion.

If you spent the money, you need to pay it back.

[tifo]

Re: action to take after s.77/s.78 CCA non compliance and being chased for debt?

Playing games with DCA's regarding paperwork is morally objectionable, despite what you may think of DCA's and their questionable business practices - we should practice debit avoidance, not debt evasion.

It's not playing games. It's the law, which applies to both us and creditors equally.

I'm not evading these debts, i was paying all the creditors, sometimes using all i had, at a time whe i had no answers to their continued threats and harassment, always pushing for more and more money.

If they can supply the correct paperwork, i would be happy to pay them as before.

Francis Bennion, the Draftsman of the CCA 1974, has clearly stated that s.127(3) was intended as a penalty for those businesses who could not keep proper paperwork.

Consumer Credit Act 1974 s 127(3)

As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County TrustLtd [2003] UKHL 40, [2003] 4 All ER 97.

Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn’t be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I’m glad the House of Lords has now vindicated my reasoning and confirmed that nobody’s human rights were infringed.

167 Justice of the Peace (2003) 773.

[Paule]

Re: action to take after s.77/s.78 CCA non compliance and being chased for debt?

Tifo, I think Cetelco has answered the initial question here

If you have had CCJ's awarded against you some time ago, they will not be set aside now, the time to apply for this has passed as any application for set aside must be made promptly.

[tomterm8]

Re: action to take after s.77/s.78 CCA non compliance and being chased for debt?

Beyond what Cetelco says, the consumer credit act 1974 allows voluntary enforcement, and so if you did not object to the CCJ on these grounds at the time I find it likely that the court would reject an application for set aside.

I've seen this happen on several occasions.

However, I note that people have obtained set aside on default CCJs if they are subject to unlawful charges.

[tifo]

Re: action to take after s.77/s.78 CCA non compliance and being chased for debt?

However, I note that people have obtained set aside on default CCJs if they are subject to unlawful charges.

Hi tom,

i've asked this question over on CAG as well and the response has been to go for it.

for the account with the property charge, it has around £500 of charges, with interest added my claim is around £1400. In addition to that, there is the PPI which i've requested back and if i push it, there is also CCA 1974 s.85 non-compliance as well (no new agreeement sent on replacement of credit card (credit token)).

the other accounts also have charges, PPi etc to claim.

there is unlikely to be an agreement available as this was an Abbey card from 1997 and MBNA administered from 2002.

[Nattie]

Re: action to take after s.77/s.78 CCA non compliance and being chased for debt?

Tifo, I am aware of the advice OTR with regards to a default where the charges are higher than the default. With the CCJ the question is whether the charges alone(NOT INTEREST) are higher than the amount you were given a CCJ against. If the charges alone are lower then clearly the answer is not to spend your time on that aspect of it because you will be built up for a fall.
However, even if the charges are higher, it is a huge risk which Cetelco and TomTerm8 have explained.
The choice is yours but PLEASE PLEASE PLEASE be careful because you could be wanting more and be disappointed.
I am sure we all want to change your title to CCJ removed.

[tomterm8]

Re: action to take after s.77/s.78 CCA non compliance and being chased for debt?

I would tend to suggest waiting for the result of the OFT case, if you are going for set aside based on charges, since it would reduce any risk to minimal.