Written by John Kruse, one of the leading experts on Bailiff Law, this consumer friendly guide is essential reading for anyone who comes into contact with a bailiff.
The book is easy to understand and clearly explains the rights
a bailiff has, and also what they cannot do when collecting debts and repossessing goods etc.
First Question is my agreement enforceable as the only item signed is the Application Form.
Second Question, my understanding of true copy is a copy at the time of issue, the copy of the CCA came with my current address on it, where as the application was issue to a different address. Is this a True Copy
I would be happy to receive that following my CCA request from Tesco as in no way is it a compliant agreement. In fact from what I can see it isn't an agreement at all. As you say it is an application.
I can't see any of the prescribed terms on the signed document.
Thank you for your recent letter sent to me dated 13 February 2009, the contents of which are noted. However, the reply received by me does not fulfil your requirements under the Consumer Credit Act 1974.
The Act demands that I be supplied with a true copy of any properly executed credit agreement that exists in relation to the above account. I may ask for this on demand providing that a fee of £1.00 is paid. This fee was sent with my original letter, dated 29th January 2009. Upon receipt of the original request the specified account legally entered into disputed status.
My request remains outstanding. An application form does not constitute a true copy of a credit agreement and that which you sent doesn't even contain all the prescribed terms and is not 'properly executed'.
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As you will know, under the Consumer Credit Act 1974, a judge is not permitted to make any enforcement order unless the creditor can provide a true signed copy of the original credit agreement. This means that unless you can produce such an agreement, this alleged debt is not enforceable in law.
You had until to provide me with the true copy I requested. After that date you entered into default of my request. Whilst the account is in dispute, you are not permitted to ask for any payment, nor am I obliged to offer any payment to you. Furthermore, whilst the dispute remains, you are not entitled to charge any interest on the account, nor make any further charges to the account. Additionally, you are not entitled to register any information on this account with any credit reference agencies (or any third party).
To register information with a credit reference agency, you must have written consent from the data subject to collate and share such information. This consent is given in the form of a signed credit agreement, so until you produce such an agreement, you may not do this.
The requirement for consent to share data is a clear requirement of the Data Protection Act 1998. Any such attempts to share my data without my consent will be met with a complaint to the Information Commissioners Office.
The time limits, which are laid down in the Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 are clear. You must supply an executed credit agreement within 12 working days of a proper CCA request. If you fail to comply with a legitimate request the account enters a default situation and if you fail to comply after a further 30 days you commit an offence. You entered into a default on 18th February 2009 and subsequently committed a criminal offence on 6th April 2009.
Therefore you have 7 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint, otherwise your conduct will be reported to the Office of Fair Trading, the Financial Ombudsman and Trading Standards. Any investigation undertaken by them may affect your ability to hold a consumer credit license in the future.
Take further note that continued telephone calls after the receipt of a request not to call may constitute a criminal offence under Section 127 of the Communications Act 2003.
After taking advice, I am of the opinion that any continued pursuit is in violation of the Administration of Justice Act 1970 section 40 as well as breaching a number of the OFT Collection Guidelines
Communicate in writing and ONLY in writing, your telephone calls will NOT be answered.
To sum up, I will not be making any further payments to you until you provide me with the document I have requested. Should you not have any signed credit agreement in relation to this alleged debt, please confirm this in writing to me.
I would appreciate your due diligence in this matter.
I look forward to your reply.
[/FONT]And I have had a response from Tesco Personal Finance with regard to the matter:
I have had a response from Tesco Personal Finance with regard to the matter:
Seems they feel they have done enough, and my physical agreement to the CCA is not actually required.
They may have done enough in their own minds to satisfy s78, but that is not the point (and they know it). The fact remains the agreement they have sent and they consider is binding does not comply with CCA 1974 s61(1) and CC (Agreements) Regs 1983 Schedule 1.
As you know it is unenforceable and you should again remind them they are not permitted to send to a DCA or CRA.
Bloody good letter of yours initially though .. I might pinch a few phrases when the time comes (if that's OK)
Howler ... have you replied to Tesco yet re their last letter? I got one identical and have replied.
Basically repeating the document isn't anything like an enforceable agreement and if they default me and record it on my credit file I will take them to court (and I WILL!).
Hey all,
Glad to hear there are others taking on tesco....
Howler please note:
The part regarding the criminal offence after 30 days no longer applies as it has been removed from the relevant legislation.
We sent the account in dispute letter to tesco in February, but now need to do a follow up letter, which I'll be posting up tomorrow on our thread for comments before I send it.
Best wishes
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PLEASE NOTE - I am not a legal expert, my comments are based on information learnt or
obtained and from my own experiences.
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Case 1 - C L Finance - Court Case 'Stayed' . Stay Lifted - N149 AQ Received & Filed. Case Struck Out :grin:
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Case 2 - C L Finance - Defence Filed. N150 AQ Received & Filed. Case 'Settled by Consent'
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Case 3 - EOS Solutions - No Agreement - Account Closed ~£3500. :grin:
- Advice & opinions offered freely but informally, without prejudice & without liability. Use your own judgment and seek advice from a qualified and insured professional if you have any doubts.
[FONT='Times New Roman','serif']Account Number: [/FONT]
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[FONT='Times New Roman','serif']Your recent reply to my request under section 77-79 of the Consumer Credit Act 1974 I note that you have replied to the above by sending a copy of your company’s current terms and conditions I must inform you that this is not sufficient to comply with the request and that your company is still in default under the act. [/FONT]
[FONT='Times New Roman','serif']To clarify, just sending the terms and conditions is a breach of the Act and Regulations as, apart from the information that the Regulations provide that you may exclude, the copy must be a “true copy” of the agreement. This breach of the agreement can be demonstrated as follows; As you will know section 180(1) (b) authorises, “the omission from a copy of certain material from the original, or the inclusion of certain material in condensed form.” This refers to statutory instruments made under the heading Copies of document regulations and in this care in particular to SI 1983/1557. [/FONT]
[FONT='Times New Roman','serif']Before leaving section 180 there are two other sections that should be remembered these are: Section 2(2) (a) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not satisfied unless the copy supplied is in the prescribed form and conforms to the prescribed requirements; And more importantly Section 2(b) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not infringed by the omission of any material, or its inclusion in condensed form, if that is authorised by regulations. You will see that this quite clearly states that whilst certain items may be left out of the copy document the rest of the document must be in the form and contain all items as prescribed by the regulations.[/FONT]
[FONT='Times New Roman','serif']Turning to the regulations regarding what may be omitted from these copies these are contained with SI 1983/1557. The regulations state[/FONT][FONT='Times New Roman','serif'] [/FONT][FONT='Times New Roman','serif']2) There may be omitted from any such copy- (a) any information included in an executed agreement, security instrument or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations thereunder as to the form and content of the document of which it is a copy; (b) any signature box, signature or date of signature (other than, in the case of a copy of a cancelable executed agreement delivered to the debtor under section 63(1) of the Act, the date of signature by the debtor of an agreement to which section 68(b) of the Act applies); It is quite clear what can be omitted from the copy document, this again asserts that all other details of the agreement should presented in form and content as required by the regulations. [/FONT]
[FONT='Times New Roman','serif']The requirements of the Agreement regulations 1983/1553 are very explicit in describing the form and content of an agreement and this as I have demonstrated also applies to the copy of any such agreement with the above mentioned proviso. Nowhere within these regulations does it state that part of the agreement can be presented on a separate document headed terms and conditions. It does state that all terms and conditions should be within the agreement document and is explicit of the form in which it is presented. [/FONT]
[FONT='Times New Roman','serif']I hope this explains why your reply was unacceptable I await a True copy of my agreement and would remind you again that whilst the request has not been complied with the default continues and this account is still in dispute.[/FONT]
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[FONT='Times New Roman','serif']Yours faithfully[/FONT]
I too have recieved the same rubbish as Howler, the covering letter also says they can satisfy the requirements by sending a copy of the card agreement, unfortunatley for them it's not SIGNED!
Any updates Howler? I may use your letter template to respond if thats ok??
Well I wrote to them again pointing out that they have made a mistake, just to be kind as with my case the CCA they have sent me is one they issued about a year ago. I have never recieved the original document issued when I took out the card. But for my action all I got was another copy of the same letter.
I'm currently preparing documents for a defence, and deciding whether to wait for them to start the action or to start it myself. Anyone got any thoughs on what is the best action to take.
Feel free to use any of the templates here, but also take into account other contibutors comments that way we should be able to build a good knowledge base for future readers.
Well I wrote to them again pointing out that they have made a mistake, just to be kind as with my case the CCA they have sent me is one they issued about a year ago. I have never recieved the original document issued when I took out the card. But for my action all I got was another copy of the same letter.
I'm currently preparing documents for a defence, and deciding whether to wait for them to start the action or to start it myself. Anyone got any thoughs on what is the best action to take.
Likewise, got the same dumb letter twice, suggesting they had complied with s78 and didn't want to continue corresponding.
We'll see if they correspond when they don't get paid !!
howler - one other useful point is that you've selected PPI on your app. if you were claiming for ppi premiums they will turn you down on the basis that you ticked the box to say you wanted it - this is standard practice and TPF will just live in the hope that these types of complaints will not be referred to the fos. However, the application says 'we strongly recommend' you take cover and if you then referred the complaint to the fos, it would be settled in a flash and TPF wouldn't have any ground to stand on. Fact! (speaking from experience)
I have already made a claim for the PPI and have an offer of all my payments back to the year dot on this, no interest though; as yet I have not accepted as it was a request in that claim that started this claim as I was told by the individual I was dealing with that he couldn't find my CCA.
Today, I have recieved a letter from Tesco Personal Finance stating that they have terminated the account as I have not met the conditions of the default notice. Asked to destroy the card and contact at arrange methods of payment.
Tesco Personnel Finance
and the document to which the credit card would normally be attached when issue.
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Originally Posted by Howler14
. Stay Lifted - N149 AQ Received & Filed. Case Struck Out :grin:
