Elephant in the room

[julian]

Re: Elephant in the room

"the Consumer Credit Agreements Regulations were amended, before the amendment, the signature did not have to appear on the same page as the prescribed terms"

"No just the debtors signature is a requirment."

If Iron Mountain and other storage utilities be destroyed by accident or design, when does the original signed document figure in a defence? If the statements show the judge a loan facility was used, on the basis of probabilities there was an agreement signed or not on one or many media objects.

Do the creditors just 'fess up when applying for enforcement hoping the debtor will not raise the issue, or does the judge ask to see the agreement in all the pre-2007 cases?

[oscar]

Re: Elephant in the room

Hi Paul,
Just for my small brain if you signed a quick application form ie a mail shot but never signed a proper agreement is that good enough for U/E argument.

Like the millions that MBNA used to send out you mean?

[The Tech Clerk]

Re: Elephant in the room

Signing of agreement.

(1)A regulated agreement is not properly executed unless—
(a)a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and
(b)the document embodies all the terms of the agreement, other than implied terms, and
(c)the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible.
(2)In addition, where the agreement is one to which section 58(1) applies, it is not properly executed unless—
(a)the requirements of section 58(1) were complied with, and
(b)the unexecuted agreement was sent, for his signature, to the debtor or hirer [F8by an appropriate method] not less than seven days after a copy of it was given to him under section 58(1), and
(c)during the consideration period, the creditor or owner refrained from approaching the debtor or hirer (whether in person, by telephone or letter, or in any other way) except in response to a specific request made by the debtor or hirer after the beginning of the consideration period, and
(d)no notice of withdrawal by the debtor or hirer was received by the creditor or owner before the sending of the unexecuted agreement.
(3)In subsection (2)(c), “the consideration period ” means the period beginning with the giving of the copy under section 58(1) and ending—
(a)at the expiry of seven days after the day on which the unexecuted agreement is sent, for his signature, to the debtor or hirer, or
(b)on its return by the debtor or hirer after signature by him,whichever first occurs.
(4)Where the debtor or hirer is a partnership or an unincorporated body of persons, subsection (1)(a) shall apply with the substitution for “by the debtor or hirer ” of “by or on behalf of the debtor or hirer ”.
Annotations:
Amendments (Textual)
F8
Words in s. 61(2)(b) substituted (31.12.2004) by The Consumer Credit Act 1974 (Electronic Communications) Order 2004 (S.I. 2004/3236), art. 2(2)
[F961ADuty to supply copy of executed consumer credit agreement

(1)Where a regulated consumer credit agreement, other than an excluded agreement, has been made, the creditor must give a copy of the executed agreement, and any other document referred to in it, to the debtor.
(2)Subsection (1) does not apply if—
(a)a copy of the unexecuted agreement (and of any other document referred to in it) has already been given to the debtor, and
(b)the unexecuted agreement is in identical terms to the executed agreement.
(3)In a case referred to in subsection (2), the creditor must inform the debtor in writing—
(a)that the agreement has been executed,
(b)that the executed agreement is in identical terms to the unexecuted agreement a copy of which has already been given to the debtor, and
(c)that the debtor has the right to receive a copy of the executed agreement if the debtor makes a request for it at any time before the end of the period referred to in section 66A(2).
(4)Where a request is made under subsection (3)(c) the creditor must give a copy of the executed agreement to the debtor without delay.
(5)If the requirements of this section are not observed, the agreement is not properly executed.
(6)For the purposes of this section, an agreement is an excluded agreement if it is—
(a)a cancellable agreement, or
(b)an agreement—
(i)secured on land,
(ii)under which the creditor provides the debtor with credit which exceeds £60,260, or
(iii)entered into by the debtor wholly or predominantly for the purposes of a business carried on, or intended to be carried on, by him,unless the creditor or a credit intermediary has complied with or purported to comply with regulation 3(2) of the Consumer Credit (Disclosure of Information) Regulations 2010.
(7)Subsections (2) to (5) of section 16B (declaration by the debtor as to the purposes of the agreement) apply for the purposes of subsection (6)(b)(iii).]
Annotations:
Amendments (Textual)
F9
S. 61A inserted (1.2.2011) by The Consumer Credit (EU Directive) Regulations 2010 (S.I. 2010/1010), regs. 8, 99(1) (with regs. 100, 101)
[F1061BDuty to supply copy of overdraft agreement

(1)Where an authorised business overdraft agreement or an authorised non-business overdraft agreement has been made, a document containing the terms of the agreement must be given to the debtor.
(2)The creditor must provide the document referred to in subsection (1) to the debtor before or at the time the agreement is made unless—
(a)the creditor has provided the debtor with the information referred to in regulation 10(3) of the Consumer Credit (Disclosure of Information) Regulations 2010, in which case it may be provided after the agreement is made,
(b)the creditor has provided the debtor with the information referred to in regulation 10(3)(c), (e), (f), (h) and (k) of those Regulations, in which case it must be provided immediately after the agreement is made, or
(c)the agreement is an agreement of a description referred to in regulation 10(4)(b) of those Regulations, in which case it must be provided immediately after the agreement is made.
(3)If the requirements of this section are not observed, the agreement is enforceable against the debtor on an order of the court only (and for these purposes a retaking of goods or land to which the agreement relates is an enforcement of the agreement).]
Annotations:
Amendments (Textual)
F10
S. 61B inserted (1.2.2011) by The Consumer Credit (EU Directive) Regulations 2010 (S.I. 2010/1010), regs. 9, 99(1) (with regs. 100, 101) (as amended by The Consumer Credit (Amendment) Regulations 2010 (S.I. 2010/1969), reg. 7)
62 Duty to supply copy of unexecuted agreement [F11: excluded agreements].

(1)If [F12in the case of a regulated agreement which is an excluded agreement] the unexecuted agreement is presented personally to the debtor or hirer for his signature, but on the occasion when he signs it the document does not become an executed agreement, a copy of it, and of any other document referred to in it, must be there and then delivered to him.
(2)If the unexecuted agreement is sent to the debtor or hirer for his signature, a copy of it, and of any other document referred to in it, must be sent to him at the same time.
(3)A regulated agreement [F13which is an excluded agreement] is not properly executed if the requirements of this section are not observed.
[F14(4)In this section, “excluded agreement” has the same meaning as in section 61A.]
Annotations:
Amendments (Textual)
F11
S. 62 heading: words inserted (1.2.2011) by The Consumer Credit (EU Directive) Regulations 2010 (S.I. 2010/1010), regs. 10(a), 99(1) (with regs. 100, 101)
F12
Words in s. 62(1) inserted (1.2.2011) by The Consumer Credit (EU Directive) Regulations 2010 (S.I. 2010/1010), regs. 10(b), 99(1) (with regs. 100, 101)
F13
Words in s. 62(3) inserted (1.2.2011) by The Consumer Credit (EU Directive) Regulations 2010 (S.I. 2010/1010), regs. 10(c), 99(1) (with regs. 100, 101)
F14
S. 62(4) inserted (1.2.2011) by The Consumer Credit (EU Directive) Regulations 2010 (S.I. 2010/1010), regs. 10(d), 99(1) (with regs. 100, 101)
63 Duty to supply copy of executed agreement [F15: excluded agreements].

(1)If [F16in the case of a regulated agreement which is an excluded agreement] the unexecuted agreement is presented personally to the debtor or hirer for his signature, and on the occasion when he signs it the document becomes an executed agreement, a copy of the executed agreement, and of any other document referred to in it, must be there and then delivered to him.
(2)A copy of the executed agreement, and of any other document referred to in it, must be given to the debtor or hirer within the seven days following the making of the agreement unless—
(a)subsection (1) applies, or
(b)the unexecuted agreement was sent to the debtor or hirer for his signature and, on the occasion of his signing it, the document became an executed agreement.
(3)In the case of a cancellable agreement, a copy under subsection (2) must be sent [F17by an appropriate method] .
(4)In the case of a credit-token agreement, a copy under subsection (2) need not be given within the seven days following the making of the agreement if it is given before or at the time when the credit-token is given to the debtor.
(5)A regulated agreement [F18which is an excluded agreement] is not properly executed if the requirements of this section are not observed.
[F19(6)In this section, “excluded agreement” has the same meaning as in section 61A.]
Annotations:
Amendments (Textual)
F15
S. 63 heading: words inserted (1.2.2011) by The Consumer Credit (EU Directive) Regulations 2010 (S.I. 2010/1010), regs. 11(a), 99(1) (with regs. 100, 101)
F16
Words in s. 63(1) inserted (1.2.2011) by The Consumer Credit (EU Directive) Regulations 2010 (S.I. 2010/1010), regs. 11(b), 99(1) (with regs. 100, 101)
F17
Words in s. 63(3) substituted (31.12.2004) by The Consumer Credit Act 1974 (Electronic Communications) Order 2004 (S.I. 2004/3236), art. 2(3)
F18
Words in s. 63(5) inserted (1.2.2011) by The Consumer Credit (EU Directive) Regulations 2010 (S.I. 2010/1010), regs. 11(c), 99(1) (with regs. 100, 101)
F19
S. 63(6) inserted (1.2.2011) by The Consumer Credit (EU Directive) Regulations 2010 (S.I. 2010/1010), regs. 11(d), 99(1) (with regs. 100, 101)
64 Duty to give notice of cancellation rights.

(1)In the case of a cancellable agreement, a notice in the prescribed form indicating the right of the debtor or hirer to cancel the agreement, how and when that right is exercisable, and the name and address of a person to whom notice of cancellation may be given,—
(a)must be included 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 [F20by an appropriate method] to the debtor or hirer within the seven days following the making of the agreement.
(2)In the case of a credit-token agreement, a notice under subsection (1)(b) need not be sent [F20by an appropriate method] within the seven days following the making of the agreement if either—
(a)it is sent [F20by an appropriate method] to the debtor or hirer before the credit-token is given to him, or
(b)it is sent [F20by an appropriate method] to him together with the credit-token.
(3)Regulations may provide that except where section 63(2) applied a notice sent under subsection (1)(b) shall be accompanied by a further copy of the executed agreement, and of any other document referred to in it.
(4)Regulations may provide that subsection (1)(b) is not to apply in the case of agreements such as are described in the regulations, being agreements made by a particular person, if—
(a)on an application by that person to the [F21OFT] , the [F21OFT] has determined that, having regard to—
(i)the manner in which antecedent negotiations for agreements with the applicant of that description are conducted, and
(ii)the information provided to debtors or hirers before such agreements are made,the requirement imposed by subsection (1)(b) can be dispensed with without prejudicing the interests of debtors or hirers; and
(b)any conditions imposed by the [F21OFT] in making the determination are complied with.
(5)A cancellable agreement is not properly executed if the requirements of this section are not observed.
Annotations:
Amendments (Textual)
F20
Words in s. 64 substituted (31.12.2004) by The Consumer Credit Act 1974 (Electronic Communications) Order 2004 (S.I. 2004/3236), art. 2(4)
F21
Words in s. 64 substituted (1.4.2003) by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 6(24); S.I. 2003/766, art. 2, Sch. (with art. 3)
65 Consequences of improper execution.

(1)An improperly-executed regulated agreement is enforceable against the debtor or hirer on an order of the court only.
(2)A retaking of goods or land to which a regulated agreement relates is an enforcement of the agreement.
66 Acceptance of credit-tokens.

(1)The debtor shall not be liable under a credit-token agreement for use made of the credit-token by any person unless the debtor had previously accepted the credit-token, or the use constituted an acceptance of it by him.
(2)The debtor accepts a credit-token when—
(a)it is signed, or
(b)a receipt for it is signed, or
(c)it is first used,either by the debtor himself or by a person who, pursuant to the agreement, is authorised by him to use it.
Annotations:
Modifications etc. (not altering text)
C1
S. 66 applied (1.11.2009) by The Payment Services Regulations 2009 (S.I. 2009/209), regs. 1(2)(c), 52(b) (with reg. 3)
[F22Withdrawal from certain agreements

Annotations:
Amendments (Textual)
F22
S. 66A and preceding cross-heading inserted (1.2.2011) by The Consumer Credit (EU Directive) Regulations 2010 (S.I. 2010/1010, {regs. 13}, 99(1) (with regs. 100, 101) (as amended by The Consumer Credit (Amendment) Regulations 2010 (S.I. 2010/1969), reg. 8 (with reg. 46))
66AWithdrawal 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;
(c)in the case of an agreement to which section 61A (duty to supply copy of executed consumer credit agreement) applies, the day on which the debtor receives a copy of the agreement under that section or on which the debtor is informed as specified in subsection (3) of that section;
(d)in the case of an agreement to which section 63 (duty to supply copy of executed agreement: excluded agreements) applies, the day on which the debtor receives a copy of the agreement under that section.
(4)Where oral notice under this section is given to the creditor it must be given in a manner specified in the agreement.
(5)Where written notice under this section is given by facsimile transmission or electronically—
(a)it must be sent to the number or electronic address specified for the purpose in the agreement, and
(b)where it is so sent, it is to be regarded as having been received by the creditor at the time it is sent (and section 176A does not apply).
(6)Where written notice under this section is given in any other form—
(a)it must be sent by post to, or left at, the postal address specified for the purpose in the agreement, and
(b)where it is sent by post to that address, it is to be regarded as having been received by the creditor at the time of posting (and section 176 does not apply).
(7)Subject as follows, where the debtor withdraws from a regulated consumer credit agreement under this section—
(a)the agreement shall be treated as if it had never been entered into, and
(b)where an ancillary service relating to the agreement is or is to be provided by the creditor, or by a third party on the basis of an agreement between the third party and the creditor, the ancillary service contract shall be treated as if it had never been entered into.
(8)In the case referred to in subsection (7)(b) the creditor must without delay notify any third party of the fact that the debtor has withdrawn from the agreement.
(9)Where the debtor withdraws from an agreement under this section—
(a)the debtor must repay to the creditor any credit provided and the interest accrued on it (at the rate provided for under the agreement), but
(b)the debtor is not liable to pay to the creditor any compensation, fees or charges except any non-returnable charges paid by the creditor to a public administrative body.
(10)An amount payable under subsection (9) must be paid without undue delay and no later than the end of the period of 30 days beginning with the day after the day on which the notice of withdrawal was given (and if not paid by the end of that period may be recovered by the creditor as a debt).
(11)Where a regulated consumer credit agreement is a conditional sale, hire-purchase or credit-sale agreement and—
(a)the debtor withdraws from the agreement under this section after the credit has been provided, and
(b)the sum payable under subsection (9)(a) is paid in full by the debtor,title to the goods purchased or supplied under the agreement is to pass to the debtor on the same terms as would have applied had the debtor not withdrawn from the agreement.
(12)In subsections (2), (4), (5), (6) and (9)(a) references to the creditor include a person specified by the creditor in the agreement.
(13)In subsection (7)(b) the reference to an ancillary service means a service that relates to the provision of credit under the agreement and includes in particular an insurance or payment protection policy.
(14)For the purposes of this section, an agreement is an excluded agreement if it is—
(a)an agreement for credit exceeding £60, 260,
(b)an agreement secured on land,
(c)a restricted-use credit agreement to finance the purchase of land, or
(d)an agreement for a bridging loan in connection with the purchase of land.]
Cancellation of certain agreements within cooling-off period

67 Cancellable agreements.

[F23(1) Subject to subsection (2)] 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—
(a)the agreement is secured on land, or is a restricted-use credit agreement to finance the purchase of land or is an agreement for a bridging loan in connection with the purchase of land, or
(b)the unexecuted agreement is signed by the debtor or hirer at premises at which any of the following is carrying on any business (whether on a permanent or temporary basis)—
(i)the creditor or owner;
(ii)any party to a linked transaction (other than the debtor or hirer or a relative of his);
(iii)the negotiator in any antecedent negotiations.[F24(2) This section does not apply where section 66A applies.]
Annotations:
Amendments (Textual)
F23
S. 67 renumbered as s. 67(1) and words inserted (1.2.2011) by The Consumer Credit (EU Directive) Regulations 2010 (S.I. 2010/1010), regs. 14(a), 99(1) (with regs. 100, 101)
F24
S. 67(2) inserted (1.2.2011) by The Consumer Credit (EU Directive) Regulations 2010 (S.I. 2010/1010), regs. 14(b), 99(1) (with regs. 100, 101)
68 Cooling-off period.

The debtor or hirer may serve notice of cancellation of a cancellable agreement between his signing of the unexecuted agreement and—
(a)the end of the fifth day following the day on which he received a copy under section 63(2) or a notice under section 64(1)(b), or
(b)if (by virtue of regulations made under section 64(4)) section 64(1)(b) does not apply, the end of the fourteenth day following the day on which he signed the unexecuted agreement.
69 Notice of cancellation.

(1)If within the period specified in section 68 the debtor or hirer under a cancellable agreement serves on—
(a)the creditor or owner, or
(b)the person specified in the notice under section 64(1), or
(c)a person who (whether by virtue of subsection (6) or otherwise) is the agent of the creditor or owner,a notice (a “notice of cancellation ”) which, however expressed and whether or not conforming to the notice given under section 64(1), indicates the intention of the debtor or hirer to withdraw from the agreement, the notice shall operate—
(i)to cancel the agreement, and any linked transaction, and
(ii)to withdraw any offer by the debtor or hirer, or his relative, to enter into a linked transaction.
(2)In the case of a debtor-creditor-supplier agreement for restricted-use credit financing—
(a)the doing of work or supply of goods to meet an emergency, or
(b)the supply of goods which, before service of the notice of cancellation, had by the act of the debtor or his relative become incorporated in any land or thing not comprised in the agreement or any linked transaction,subsection (1) shall apply with the substitution of the following for paragraph (i)—
“(i)to cancel only such provisions of the agreement and any linked transaction as—
(aa)relate to the provision of credit, or
(bb)require the debtor to pay an item in the total charge for credit, or
(cc)subject the debtor to any obligation other than to pay for the doing of the said work, or the supply of the said goods”.
(3)Except so far as is otherwise provided, references in this Act to the cancellation of an agreement or transaction do not include a case within subsection (2).
(4)Except as otherwise provided by or under this Act, an agreement or transaction cancelled under subsection (1) shall be treated as if it had never been entered into.
(5)Regulations may exclude linked transactions of the prescribed description from subsection (1)(i) or (ii).
(6)Each of the following shall be deemed to be the agent of the creditor or owner for the purpose of receiving a notice of cancellation—
(a)a credit-broker or supplier who is the negotiator in antecedent negotiations, and
(b)any person who, in the course of a business carried on by him, acts on behalf of the debtor or hirer in any negotiations for the agreement.
[F25(7)Whether or not it is actually received by him, a notice of cancellation sent to a person shall be deemed to be served on him—
(a)in the case of a notice sent by post, at the time of posting, and
(b)in the case of a notice transmitted in the form of an electronic communication in accordance with section 176A(1), at the time of the transmission.]
Annotations:
Amendments (Textual)
F25
S. 69(7) substituted (31.12.2004) by The Consumer Credit Act 1974 (Electronic Communications) Order 2004 (S.I. 2004/3236), art. 2(5)
70 Cancellation: recovery of money paid by debtor or hirer.

(1)On the cancellation of a regulated agreement, and of any linked transaction,—
(a)any sum paid by the debtor or hirer, or his relative, under or in contemplation of the agreement or transaction, including any item in the total charge for credit, shall become repayable, and
(b)any sum, including any item in the total charge for credit, which but for the cancellation is, or would or might become, payable by the debtor or hirer, or his relative, under the agreement or transaction shall cease to be, or shall not become, so payable, and
(c)in the case of a debtor-creditor-supplier agreement falling within section 12(b), any sum paid on the debtor’s behalf by the creditor to the supplier shall become repayable to the creditor.
(2)If, under the terms of a cancelled agreement or transaction, the debtor or hirer, or his relative, is in possession of any goods, he shall have a lien on them for any sum repayable to him under subsection (1) in respect of that agreement or transaction, or any other linked transaction.
(3)A sum repayable under subsection (1) is repayable by the person to whom it was originally paid, but in the case of a debtor-creditor-supplier agreement falling within section 12(b) the creditor and the supplier shall be under a joint and several liability to repay sums paid by the debtor, or his relative, under the agreement or under a linked transaction falling within section 19(1)(b) and accordingly, in such a case, the creditor shall be entitled, in accordance with rules of court, to have the supplier made a party to any proceedings brought against the creditor to recover any such sums.
(4)Subject to any agreement between them, the creditor shall be entitled to be indemnified by the supplier for loss suffered by the creditor in satisfying his liability under subsection (3), including costs reasonably incurred by him in defending proceedings instituted by the debtor.
(5)Subsection (1) does not apply to any sum which, if not paid by a debtor, would be payable by virtue of section 71, and applies to a sum paid or payable by a debtor for the issue of a credit-token only where the credit-token has been returned to the creditor or surrendered to a supplier.
(6)If the total charge for credit includes an item in respect of a fee or commission charged by a credit-broker, the amount repayable under subsection (1) in respect of that item shall be the excess over [F26£5] of the fee or commission.
(7)If the total charge for credit includes any sum payable or paid by the debtor to a credit-broker otherwise than in respect of a fee or commission charged by him, that sum shall for the purposes of subsection (6) be treated as if it were such a fee or commission.
(8)So far only as is necessary to give effect to section 69(2), this section applies to an agreement or transaction within that subsection as it applies to a cancelled agreement or transaction.
Annotations:
Amendments (Textual)
F26
Amount "£5" substituted (1.5.1998) in s. 70(6) by S.I. 1998/997, art. 3, Sch.
71 Cancellation: repayment of credit.

(1)Notwithstanding the cancellation of a regulated consumer credit agreement, other than a debtor-creditor-supplier agreement for restricted-use credit, the agreement shall continue in force so far as it relates to repayment of credit and payment of interest.
(2)If, following the cancellation of a regulated consumer credit agreement, the debtor repays the whole or a portion of the credit—
(a)before the expiry of one month following service of the notice of cancellation, or
(b)in the case of a credit repayable by instalments, before the date on which the first instalment is due,no interest shall be payable on the amount repaid.
(3)If the whole of a credit repayable by instalments is not repaid on or before the date specified in subsection (2)(b), the debtor shall not be liable to repay any of the credit except on receipt of a request in writing in the prescribed form, signed by or on behalf of the creditor, stating the amounts of the remaining instalments (recalculated by the creditor as nearly as may be in accordance with the agreement and without extending the repayment period), but excluding any sum other than principal and interest.
(4)Repayment of a credit, or payment of interest, under a cancelled agreement shall be treated as duly made if it is made to any person on whom, under section 69, a notice of cancellation could have been served, other than a person referred to in section 69(6)(b).
72 Cancellation: return of goods.

(1)This section applies where any agreement or transaction relating to goods, being—
(a)a restricted-use debtor-creditor-supplier agreement, a consumer hire agreement, or a linked transaction to which the debtor or hirer under any regulated agreement is a party, or
(b)a linked transaction to which a relative of the debtor or hirer under any regulated agreement is a party,is cancelled after the debtor or hirer (in a case within paragraph (a)) or the relative (in a case within paragraph (b)) has acquired possession of the goods by virtue of the agreement or transaction.
(2)In this section—
(a) “the possessor ” means the person who has acquired possession of the goods as mentioned in subsection (1),
(b) “the other party ” means the person from whom the possessor acquired possession, and
(c) “the pre-cancellation period ” means the period beginning when the possessor acquired possession and ending with the cancellation.
(3)The possessor shall be treated as having been under a duty throughout the pre-cancellation period—
(a)to retain possession of the goods, and
(b)to take reasonable care of them.
(4)On the cancellation, the possessor shall be under a duty, subject to any lien, to restore the goods to the other party in accordance with this section, and meanwhile to retain possession of the goods and take reasonable care of them.
(5)The possessor shall not be under any duty to deliver the goods except at his own premises and in pursuance of a request in writing signed by or on behalf of the other party and served on the possessor either before, or at the time when, the goods are collected from those premises.
(6)If the possessor—
(a)delivers the goods (whether at his own premises or elsewhere) to any person on whom, under section 69, a notice of cancellation could have been served (other than a person referred to in section 69(6)(b)), or
(b)sends the goods at his own expense to such a person,he shall be discharged from any duty to retain the goods or deliver them to any person.
(7)Where the possessor delivers the goods as mentioned in subsection (6)(a), his obligation to take care of the goods shall cease; and if he sends the goods as mentioned in subsection (6)(b), he shall be under a duty to take reasonable care to see that they are received by the other party and not damaged in transit, but in other respects his duty to take care of the goods shall cease.
(8)Where, at any time during the period of 21 days following the cancellation, the possessor receives such a request as is mentioned in subsection (5), and unreasonably refuses or unreasonably fails to comply with it, his duty to take reasonable care of the goods shall continue until he delivers or sends the goods as mentioned in subsection (6), but if within that period he does not receive such a request his duty to take reasonable care of the goods shall cease at the end of that period.
(9)The preceding provisions of this section do not apply to—
(a)perishable goods, or
(b)goods which by their nature are consumed by use and which, before the cancellation, were so consumed, or
(c)goods supplied to meet an emergency, or
(d)goods which, before the cancellation, had become incorporated in any land or thing not comprised in the cancelled agreement or a linked transaction.
(10)Where the address of the possessor is specified in the executed agreement, references in this section to his own premises are to that address and no other.
(11)Breach of a duty imposed by this section is actionable as a breach of statutory duty.
73 Cancellation: goods given in part-exchange.

(1)This section applies on the cancellation of a regulated agreement where, in antecedent negotiations, the negotiator agreed to take goods in part-exchange (the “part-exchange goods ”) and those goods have been delivered to him.
(2)Unless, before the end of the period of ten days beginning with the date of cancellation, the part-exchange goods are returned to the debtor or hirer in a condition substantially as good as when they were delivered to the negotiator, the debtor or hirer shall be entitled to recover from the negotiator a sum equal to the part-exchange allowance (as defined in subsection (7)(b)).
(3)In the case of a debtor-creditor-supplier agreement within section 12(b), the negotiator and the creditor shall be under a joint and several liability to pay to the debtor a sum recoverable under subsection (2).
(4)Subject to any agreement between them, the creditor shall be entitled to be indemnified by the negotiator for loss suffered by the creditor in satisfying his liability under subsection (3), including costs reasonably incurred by him in defending proceedings instituted by the debtor.
(5)During the period of ten days beginning with the date of cancellation, the debtor or hirer, if he is in possession of goods to which the cancelled agreement relates, shall have a lien on them for—
(a)delivery of the part-exchange goods, in a condition substantially as good as when they were delivered to the negotiator, or
(b)a sum equal to the part-exchange allowance;and if the lien continues to the end of that period it shall thereafter subsist only as a lien for a sum equal to the part-exchange allowance.
(6)Where the debtor or hirer recovers from the negotiator or creditor, or both of them jointly, a sum equal to the part-exchange allowance, then, if the title of the debtor or hirer to the part-exchange goods has not vested in the negotiator, it shall so vest on the recovery of that sum.
(7)For the purposes of this section—
(a)the negotiator shall be treated as having agreed to take goods in part-exchange if, in pursuance of the antecedent negotiations, he either purchased or agreed to purchase those goods or accepted or agreed to accept them as part of the consideration for the cancelled agreement, and
(b)the part-exchange allowance shall be the sum agreed as such in the antecedent negotiations or, if no such agreement was arrived at, such sum as it would have been reasonable to allow in respect of the part-exchange goods if no notice of cancellation had been served.
(8)In an action brought against the creditor for a sum recoverable under subsection (2), he shall be entitled, in accordance with rules of court, to have the negotiator made a party to the proceedings.
Exclusion of certain agreements from Part V

74 Exclusion of certain agreements from Part V.

[F27(1)Except as provided in subsections (1A) to (2), this Part does not apply to—
(a)a non-commercial agreement,
(b)a debtor-creditor agreement enabling the debtor to overdraw on a current account,
(c)a debtor-creditor agreement to finance the making of such payments arising on, or connected with, the death of a person as may be prescribed, or
(d)a small debtor-creditor-supplier agreement for restricted-use credit.
(1A)Section 56 (antecedent negotiations) applies to a non-commercial agreement.
(1B)Where an agreement that falls within subsection (1)(b) is an authorised business overdraft agreement the following provisions apply—
(a)section 55B (assessment of creditworthiness);
(b)section 56 (antecedent negotiations);
(c)section 60 (regulations on form and content of agreements);
(d)section 61B (duty to supply copy of overdraft agreement).
(1C)Where an agreement that falls within subsection (1)(b) is an authorised non-business overdraft agreement the following provisions apply—
(a)section 55 (regulations on disclosure of information);
(b)section 55B (assessment of creditworthiness);
(c)section 55C (copy of draft consumer credit agreement);
(d)section 56 (antecedent negotiations);
(e)section 60 (regulations on form and content of agreements);
(f)section 61B (duty to supply copy of overdraft agreement).
(1D)Where an agreement that falls within subsection (1)(b) would be an authorised non-business overdraft agreement but for the fact that the credit is not repayable on demand or within three months the following provisions apply—
(a)section 55 (regulations on disclosure of information);
(b)section 55A (adequate explanations);
(c)section 55B (credit assessment);
(d)section 55C (copy of draft consumer credit agreement);
(e)section 56 (antecedent negotiations);
(f)section 60 (regulations on form and content of agreements);
(g)section 61 (signing of agreement);
(h)section 61A (duty to supply copy of executed agreement);
(i)section 66A (withdrawal from consumer credit agreement).
(1E)In the case of an agreement that falls within subsection (1)(b) but does not fall within subsection (1B), (1C) or (1D), section 56 (antecedent negotiations) applies.
(1F)The following provisions apply to a debtor-creditor agreement to finance the making of such payments arising on, or connected with, the death of a person as may be prescribed—
(a)section 55 (regulations on disclosure of information);
(b)section 55A (adequate explanations);
(c)section 55B (assessment of creditworthiness);
(d)section 55C (copy of draft consumer credit agreement);
(e)section 56 (antecedent negotiations);
(f)section 60 (regulations on form and content of agreements);
(g)section 61 (signing of agreement);
(h)section 61A (duty to supply copy of executed agreement);
(i)section 66A (withdrawal from consumer credit agreement).
(2)The following provisions apply to a small debtor-creditor-supplier agreement for restricted-use credit—
(a)section 55 (regulations on disclosure of information);
(b)section 56 (antecedent negotiations);
(c)section 66A (withdrawal from consumer credit agreement).]
[F28(2A)In the case of an agreement to which the [F29Cancellation of Contracts made in a Consumer's Home or Place of Work etc. Regulations 2008] apply the reference in subsection (2) to a small agreement shall be construed as if in section 17(1)(a) and (b) “£35 ” were substituted for “£50 ”.]
(3)[F30Subsection (1)(c) applies] only where the [F31OFT] so determines, and such a determination—
(a)may be made subject to such conditions as the [F31OFT] thinks fit, and
(b)shall be made only if the [F31OFT] is of the opinion that it is not against the interests of debtors.
(3A)F32. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4)If any term of an agreement falling within subsection [F33(1)(d)] is expressed in writing, regulations under section 60(1) shall apply to that term (subject to section 60(3)) as if the agreement were a regulated agreement not falling within subsection [F33(1)(d)].
Annotations:
Amendments (Textual)
F27
S. 74(1)-(2) substituted for s. 74(1)(2) (1.2.2011) by The Consumer Credit (EU Directive) Regulations 2010 (S.I. 2010/1010), regs. 17(2), 99(1) (with regs. 100, 101)
F28
S. 74(2A) added by S.I. 1987/2117, reg. 9
F29
Words in s. 74(2A) substituted (1.10.2008) by The Cancellation of Contracts made in a Consumer's Home or Place of Work etc. Regulations 2008 (S.I. 2008/1816) regs. 1, 3, {Sch. 1 para. 1}
F30
Words in s. 74(3) substituted (1.2.2011) by The Consumer Credit (EU Directive) Regulations 2010 (S.I. 2010/1010), regs. 17(3), 99(1) (with regs. 100, 101)
F31
Words in s. 74 substituted (1.4.2003) by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 6(25)(a); S.I. 2003/766, art. 2, Sch. (with art. 3)
F32
S. 74(3A) omitted (1.2.2011) by virtue of The Consumer Credit (EU Directive) Regulations 2010 (S.I. 2010/1010), regs. 17(4), 99(1) (with regs. 100, 101)
F33
Words in s. 74(4) substituted (1.2.2011) by The Consumer Credit (EU Directive) Regulations 2010 (S.I. 2010/1010), regs. 17(5), 99(1) (with regs. 100, 101)
Previous: Part
Next: Part
Back to top
© Crown copyright

[Paul.]

Re: Elephant in the room

I think my main point about by blog was really to say, look, if your creditor dont comply with s78 then great its something to add to the mixer, but also what is wrong with saying "look i cant pay you £300 per month i can only afford £20 and oh by the way you havent complied with s78 too"

Some people cant afford to pay, yet they get labeled as a debt avoider, its wrong in my view, and there are ways of avoiding such stereotypes

[jon1965]

Re: Elephant in the room

What worries me is how long I have spent ignoring letters and not filing them although from 2008 I could get hold of most of the letters that were sent.
Then I have possibly sent , well lets just say not the best letter better back; for example all I want is to get them to communicate in writing.

AS of now, every letter will get a reply even if it's just to say there is an outstanding CCA request on here, or please correspond in writing or as with WDA to confirm the level of assignment and remind them that there is a complaint going through.

This I think is going to be my method now, using where possible templates or edited templates from here

There seem to be no hard or fast rules, every case is different

[SXGuy]

Re: Elephant in the room

I think my main point about by blog was really to say, look, if your creditor dont comply with s78 then great its something to add to the mixer, but also what is wrong with saying "look i cant pay you £300 per month i can only afford £20 and oh by the way you havent complied with s78 too"

Some people cant afford to pay, yet they get labeled as a debt avoider, its wrong in my view, and there are ways of avoiding such stereotypes

But what do you do when a DCA flatly refuses your offer and never suggests one? if you make an offer and its rejected, and they also fail to satisfy s78, surely you cant be expected to keep offering different amounts until they finally agree? if an offer is made and rejected, is it not for them to say, no but we would agree £x a month.

For example, a DCA refused a genuine offer that could be afforded at the time, and without even suggesting a reasonable offer, threatens litigation. I can see from their point of view, they wish to bully the debter by forcing a payment they can not afford, but they should also realise, thats not the best way to enter discussion. So when they also fail to satisfy what should be a simple request, its not suprising people wish to stop payments.

[julian]

Re: Elephant in the room

I don't even think that there is consistency of approach within a DCA.

If £20 per month does not cover the DCAs collection costs, it is strange that they seem to carry on demanding and collecting even though they are cutting of their nose to spite their face in financial terms.

I offered a F&F lump sum of £1000 or a £10 per month payment to MBNA, and it was refused. I paid nothing as they did not give me an alternative sum. Some months later they said that I had defaulted on my agreement to pay £10. What is the point of arguing with morons?

[Undercover Elsa]

Re: Elephant in the room

They do it because once they've pestered you into admitting the debt and paying even token amounts, it stops the Statute Barred clock and keeps the account live forever, so they can push and push for more at a later date.

For those of us who choose to try and hold out for Statute Barred status, it's a calculated risk we take to stop all, even £1 token, payments.
I've also always found that stopping payment in response to a dispute can have benefits such as precipitating default and termination, usually to achieve cessation of interest (for those who don't care about their CRA), or softening the OC or DCA up in preparation for making a low instalment or F&F offer. While ever you are paying they will see no benefit in dealing.
I think most people are aware that if they choose non payment there's no cast iron guarantee that at some stage they won't end up in front of a judge, but it's a risk we're prepared to take in some circumstances.
It's down to each individual, the circumstances of their account and totally random factors such as increased aggression by a particular DCA. Crucially though, careful monitoring of communication and responding appropriately where necessary decreases the risk and maintains a vital paper trail. However, if ending up in court is your worst nightmare, then non payment may not be the route for you.

[PriorityOne]

Re: Elephant in the room

But what do you do when a DCA flatly refuses your offer and never suggests one? if you make an offer and its rejected, and they also fail to satisfy s78, surely you cant be expected to keep offering different amounts until they finally agree? if an offer is made and rejected, is it not for them to say, no but we would agree £x a month.

For example, a DCA refused a genuine offer that could be afforded at the time, and without even suggesting a reasonable offer, threatens litigation. I can see from their point of view, they wish to bully the debter by forcing a payment they can not afford, but they should also realise, thats not the best way to enter discussion. So when they also fail to satisfy what should be a simple request, its not suprising people wish to stop payments.

I've never believed that it's down to a creditor/DCA to refuse an offer; after all, you're not asking them what they want, you're taking control and telling them what you're prepared to pay. Maintaining token payments whether a creditor likes it or not shows willing in your part and yes, they can huff and puff but you can't pay what you don't have and it's ridiculous to try and do otherwise.

If they fail to satisfy sec. 78, then payments should be suspended until they can. Each situation is different however and where templates are very useful, they do need to be adapted to take circumstances into account, otherwise creditors may start to see them as a debt dodge response and push forward to court.

[Paul.]

Re: Elephant in the room

Debt purchasers will litigate without a thought, ive seen this from Arrow Global, Hillesden, and many others.

What is interesting, is that when they are hit with templated letters, they litigate, however, in each of the cases ive dealt with over the last few weeks, the minute the actual proper disputed points were on the table that is where the opponents collapsed and withdrew.

An important point in my humble opinion.

[PriorityOne]

Re: Elephant in the room

Debt purchasers will litigate without a thought, ive seen this from Arrow Global, Hillesden, and many others.

What is interesting, is that when they are hit with templated letters, they litigate, however, in each of the cases ive dealt with over the last few weeks, the minute the actual proper disputed points were on the table that is where the opponents collapsed and withdrew.

An important point in my humble opinion.

Yes, I agree..... the templates are good for outlining an argument but those arguments need to be pinned down to get creditors/DCAs to back off. In my own experiences, the longer the pre-court paper trail, the better. Companies then know that people are not just going to roll over and give them the easy CCJ they're after.

[ScabHunter]

Re: Elephant in the room

Debt purchasers will litigate without a thought, ive seen this from Arrow Global, Hillesden, and many others.

What is interesting, is that when they are hit with templated letters, they litigate, however, in each of the cases ive dealt with over the last few weeks, the minute the actual proper disputed points were on the table that is where the opponents collapsed and withdrew.

An important point in my humble opinion.

Hi Paul,

There is a case at the moment where Hillesden have sent a letter of claim, and where we are composing a response based on the outline that you drafted for SlickFM. If you could just take a minute to look over SXGuy's intended response, we would be very grateful.

Fluffystuff has suggested just including paragraphs 1, 2, 4 & 5. I thought paragraph 3 should probably stay in as it just demonstrates another instance where the would be claimant has been obstructive in not responding to communications. We both thought the latter paragraphs should be scrapped.

This letter needs to be sent early next week, so any input would be appreciated -

allaboutFORUMS - View Single Post - SXGuy's UE Diary

SH

[Paul.]

Re: Elephant in the room

Yes, I agree..... the templates are good for outlining an argument but those arguments need to be pinned down to get creditors/DCAs to back off. In my own experiences, the longer the pre-court paper trail, the better. Companies then know that people are not just going to roll over and give them the easy CCJ they're after.

yes but most letter i get provided on file simply moan about s78 and non compliance

they miss things like creditors calling their neighbours, telephone contact in circumstances such as Harrison where the creditor is told the debtor cant afford £x but can pay £Y

They also dont mention things like the creditor not serving a default notice (if they hadnt)

Or other factual real disputes which would have real bite against a claim.

Thats my point, by spoon feeding people, and not making them think for themselves, they are pretty much sticking their heads in the noose

While sometimes we can find a fault or problem, we dont always, and once in court your playing a game with your house on the line if you lose, so its very important in my view to get it right start to finish. I disagree with the s78 witholding payment point.

A firm of solicitors im told got intervened for that type of advice as it was negligent in light of McGuffick. Also Harrison, Chambers QC said s78 wasnt reason to stop paying all together.

[greymatter]

Re: Elephant in the room

Our templates have been drawn up to be legally correct.Isn't it a bit dangerous to start altering them as certainly in my case my legal knowledge is zilch.
Just IMHO
GM

[Paul.]

Re: Elephant in the room

Our templates have been drawn up to be legally correct.Isn't it a bit dangerous to start altering them as certainly in my case my legal knowledge is zilch.
Just IMHO
GM

then you can never comply with the CPR pre action Protocol if your reply to say a letter of claim never raises the issues

also, how can you expect a creditor to address a concern if you dont tell him, crystal balls arent provided to DCAs