CCA and time limit

[The Terminator]

Sorry my mistake which I have now corrected it should read I would disagree that a default notice will terminate an agreement.And you are correct there is nothing in the Act that automatically terminates an agreement.

[joneshousehold]

My goodness, that's one hell of a correction. I looked at your earlier post and thought 'oh heck' when I saw the length and the final sentence. I had left it to look at later. Now I just take you at your word. Thanks for contributing.

[dori2o]

And so it takes another twist.

Have found this on the CitiCards board, part of a letter sent to jdene.

Originally Posted by jdene

As part of the assignment of your above mentioned account, which has an outstanding balance of £xxxxxx you were provided with confirmation by both citifinancial (the creditor) and this company, in writing, that your debt had been legaly assigned to Kings Hill (No1) Limited (the assignee) and would beadministered by Cabot financial (Europe) Limited. please note that any other queries in relation to your Agreement remain the responsibility of the creditor. as assignee we have no legal responsibility to supplyyou with an executed copy of your credit agreement and we have at no time commited any criminal offence. we have been assisting you in obtaining the relevant documentation from the creditor.

The part in bold is what should concern us.

Is this right? I personaly don't think so.

The CCA under s.78 QUOTES

78 Duty to give information to debtor under running-account credit agreement

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of [£1], shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a) the state of the account, and

(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and

(c) the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

(2) If the creditor possesses insufficient information to enable him to ascertain the amounts and dates mentioned in subsection (1)(c), he shall be taken to comply with that paragraph if his statement under subsection (1) gives the basis on which, under the regulated agreement, they would fall to be ascertained.

(3) Subsection (1) does not apply to—

(a) an agreement under which no sum is, or will or may become, payable by the debtor, or

(b) a request made less than one month after a previous request under that subsection relating to the same agreement was complied with.

(4) Where running -account credit is provided under a regulated agreement, the creditor shall give the debtor statements in the prescribed form, and with the prescribed contents—

(a) showing according to the information to which it is practicable for him to refer, the state of the account at regular intervals of not more than twelvemonths, and

(b) where the agreement provides, in relation to specified periods, for the making of payments by the debtor, or the charging against him of interest or any other sum, showing according to the information to which it is practicable for him to refer the state of the account at the end of each of those periods during which there is any movement in the account.

(5) A statement under subsection (4) shall be given within the prescribed period after the end of the period to which the statement relates.

(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.

(7) This section does not apply to a non-commercial agreement, and subsections (4) and
(5) do not apply to a small agreement.

Now, the important word here is creditor.

This is how the CCA defines creditor

“creditor” means the person providing credit under a consumer credit agreement or the person to whom his rights and duties under the agreement have passed by assignment or operation of law, and in relation to a prospective consumer credit agreement, includes the prospective creditor;

This to me defines the owner of the debt, whether that be the origional creditor, or a DCA who has 'bought' the debt.

Clearly the letter above is incorrect. However if it is me who is mistaken, please let me know where.

[MilkTrayMan]

Hi dori2o!

The sentence highlighted in the quote U gave from jdene in #43 WOULD read correct if U took the literal interpretation of s78 (1)
...i.e....shall give the debtor a copy of the executed agreement (if any).

[The Terminator]

Originally Posted by MilkTrayMan

Hi dori2o!

The sentence highlighted in the quote U gave from jdene in #43 WOULD read correct if U took the literal interpretation of s78 (1)
...i.e....shall give the debtor a copy of the executed agreement (if any).

189 Definitions

(1) In this Act, unless the context otherwise requires—

creditor” means the person providing credit under a consumer credit agreement or the person to whom his rights and duties under the agreement have passed by assignment or operation of law, and in relation to a prospective consumer credit agreement, includes the prospective creditor;

Really these bunch of muppets who call themselves DCA's should find another vocation.

77 Duty to give information to debtor under fixed-sum credit agreement

(1) The creditor under a regulated agreement for fixed-sum credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

It's quite obvious they don't read the Act.Dori2o you are correct.There is something in the act that says and haven't got time to look for the revelent section at the moment going along the lines of the debtor can asked for a true copy of the agreement regardless "if they are the original creditor or not"

I personally wouldn't take any notice of these DCA's as they have no powers in common law.

[dori2o]

My thoughts exactly.

[bubbles99]

I'm still not 100% sure where I stand. I'm going to pay the debt but some of it is charges.
Can I offer the balance minus the charges and ask them to remove the default as it's this that's causing problems. If they don't have the agreement then surely they don't have anything giving permission to report to the credit reference agencies.

[zubo]

Originally Posted by bubbles99

I'm still not 100% sure where I stand. I'm going to pay the debt but some of it is charges.
Can I offer the balance minus the charges and ask them to remove the default as it's this that's causing problems. If they don't have the agreement then surely they don't have anything giving permission to report to the credit reference agencies.

Bubbles

Do not pay. I am in exactly the same position with three seperate DCAs. The first one has capitulated - I am about to hit him with consolodition, the others cannot comply - they have no agreement or have lost it.

S77/78 is very very powerful: if they cannot provide you with an agreement - THEY are in default and committing a criminal offence. Also whilst in default they cannot enforce it nor post anything re your credit rating etc etc and you are entitled to do nothing.
If you have issued a S77/78 and they have not supplied and are out of time issue this: change 78 to 77 if that is what you have.

NOTICE OF DEFAULT

Served under Section 78(1)

Of

The Consumer Credit Act (1974) as amended

Creditor: ABC Finance

Account No: xxxxxxxxxxxxxxxxx


You are duly notified that you have been in default under the aforementioned section of the above Act since dd-mm-yy - the date on your first statement

In order to correct this breach all interest payments and charges made since dd-mm-yy must be consolidated.

To correct this, consolidation must be made within 1 month of this notice.

If the correction required by this notice is taken before the date of expiry of this notice then no further action will be taken in respect of the breach.

If the action required by this notice is not taken within 1 month of this notice then the default will be registered with a credit reference agency.



Notes under Section 78(6)

(a) The Creditor is not entitled, while the default continues, to enforce the agreement; and

(b) If the default continues for one month the creditor commits an offence.



Signed

Date

[bubbles99]

I sent a letter back to the bank offering a reduced payment to clear the balance on condition they removed the default using my rights under the Data Protection Act 1998. They've basically told me to get lost, their reply states:

"I do not agree the failure to provide a copy of the agreement negates your ownership of the account and indeed your responsibility towards the debt, accrued as a result of your own expenditure......the default applied to the account was done as a result of the mismangement of the account which also resulted in fees being applied in respect of an erratic payment history. The provision of the default notice, to which the credit refernce agencies were advised, is fully appropriate and forms part of the terms and conditions of the account to which you had previously agreed.......I fail to see how the actions of the bank have in anyway breached any of the legislation you have quoted......"

I know we owe them some of the balance and I'll pay that minus the charges of course. But I really need to get the default removed so we can get a mortgage. I'm not giving up yet but am unsure what to put in the reply, anyone any ideas??

[zubo]

Originally Posted by bubbles99

Hi everyone,

I went direct to the card provider NatWest for the agreement and they have sent me the statements but have said that as the account was opened 7 years ago they don't have the agreement and there is no legal obligation to have kept it. They have also threatened to take the outstanding balance from a savings account I have with them.

Can they do this and does it make any difference about how old the account is?

Any help would be very much appreciated.

Bubbles,

Let me go back to your first post.

I think you are letting the various DCAs and the Credit Card company confuse and deceive you.

As I said before I am in exact same situation and I am doing what I describe below.

Let me spell it out in clear terms:

This is not conjecture this is fact.

They have an uneforceable agreement because they cannot produce the agreement. I assume that you have that in writing from them. Make sure you do not lose it.
They cannot take you to court without the agreement, if they tried they would fail. You are within your rights to not pay any money until they could produce a fully executed agreement - dont worry about the detail for now. Furthermore, because they had no basis to enforce the alleged agreement, then they have no basis to share your data with ANYONE nor default you on this alleged agreement.

It has taken me 8 months to get the DCA and creditor to understand they have defaulted but now they finally have agreed to walk away wiping out £6k of debt.

Here is my letter - USE IT - don't take any more bulls##t

Send it to the DCA and the Credit Card company and send it recorded to both:

Account number: xxxxxxx


I refer to my letter dated xxxxxxx in which I made a formal request under the Consumer credit act 1974 sec 77-79 for a true copy of the regulated credit agreement refered to in the above account number. There is no time limitation as you allege and you are reminded that you are obliged to supply these under sec.189 whether you are the original creditor or not.

To date you have failed to comply with my statutory request and have defaulted in respect of this account. This means that under the CCA you have now committed an offence punishable upon conviction, by a fine of £2,500 or 3 months imprisonment. It is my intention to report this breach and request your prosecution.


Additionally this alleged agreement is unenforceable until such time as this default is removed or enforced by a court of law. It is a further offence to attempt to enforce this alleged agreement until such time as the default is removed.


Consequently I am ceasing all payments with respect to this alleged agreement until such time as this matter is resolved.


Finally, since you are unable to provide me with a fully executed agreement then you have an obligation to remove all default notices you have placed with credit agencies and other parties which relate to this alleged agreement.



You have 7 days to comply with my request before I procede with litigation against you,

[Cornucopia]

Originally Posted by zubo

Bubbles,

Let me go back to your first post.

I think you are letting the various DCAs and the Credit Card company confuse and deceive you.

As I said before I am in exact same situation and I am doing what I describe below.

Let me spell it out in clear terms:

This is not conjecture this is fact.

They have an uneforceable agreement because they cannot produce the agreement. I assume that you have that in writing from them. Make sure you do not lose it.
They cannot take you to court without the agreement, if they tried they would fail. You are within your rights to not pay any money until they could produce a fully executed agreement - dont worry about the detail for now. Furthermore, because they had no basis to enforce the alleged agreement, then they have no basis to share your data with ANYONE nor default you on this alleged agreement.

It has taken me 8 months to get the DCA and creditor to understand they have defaulted but now they finally have agreed to walk away wiping out £6k of debt.

Here is my letter - USE IT - don't take any more bulls##t

Send it to the DCA and the Credit Card company and send it recorded to both:

Account number: xxxxxxx


I refer to my letter dated xxxxxxx in which I made a formal request under the Consumer credit act 1974 sec 77-79 for a true copy of the regulated credit agreement refered to in the above account number. There is no time limitation as you allege and you are reminded that you are obliged to supply these under sec.189 whether you are the original creditor or not.

To date you have failed to comply with my statutory request and have defaulted in respect of this account. This means that under the CCA you have now committed an offence punishable upon conviction, by a fine of £2,500 or 3 months imprisonment. It is my intention to report this breach and request your prosecution.


Additionally this alleged agreement is unenforceable until such time as this default is removed or enforced by a court of law. It is a further offence to attempt to enforce this alleged agreement until such time as the default is removed.


Consequently I am ceasing all payments with respect to this alleged agreement until such time as this matter is resolved.


Finally, since you are unable to provide me with a fully executed agreement then you have an obligation to remove all default notices you have placed with credit agencies and other parties which relate to this alleged agreement.



You have 7 days to comply with my request before I procede with litigation against you,

Hello Zubo,

Thank you for a very informative (and comforting) post. I am hoping to be able to steal your letter myself (although not counting chickens just yet). May I ask which Bank/DCA you had this particular battle with?

Many thanks.

Cornucopia

[M.Willows]

Confused by DCA as to who I should request CCA from as have requested from original creditor Citi but they havent complied but the DCA(DLC) say they aquired debt and I should be requesting from them, as far as I know they are only managing debt and do not own the debt.Need some advice please .Have now requested Subject Access Request for agreement from Citi to clarify this matter of who owns debt,who should I be requesting CCA from as now confused but thought it was clear that the creditor had to comply.

[zubo]

Originally Posted by Cornucopia

Hello Zubo,

Thank you for a very informative (and comforting) post. I am hoping to be able to steal your letter myself (although not counting chickens just yet). May I ask which Bank/DCA you had this particular battle with?

Many thanks.

Cornucopia

Cornucopia

Feel free to do so - it proved succesful enough for 20 days later the DCA or Solicitor to recieve instruction to write off £6k debt. D G Solicitors - it was 3 loans, about 10+ years old with originally Forward Trust..

thanks

[Cornucopia]

Originally Posted by zubo

Cornucopia

Feel free to do so - it proved succesful enough for 20 days later the DCA or Solicitor to recieve instruction to write off £6k debt. D G Solicitors - it was 3 loans, about 10+ years old with originally Forward Trust..

thanks

I hope you don't mind Zubo, but I am going to PM you!