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
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this original card was with Easycard, then taken over by Gold Fish, then taken over by Lloyds TSB -
Requested CCA on April 22, 2009,
Sent 2nd letter dated May 11th 2009 "Account now in Dispute" - received a letter dated 19th May 2009 apologising for the delay but they are receiving a high volume of such requests, and will respond shortly.
May 20th 2009 being bombarded with automated telephone calls so sent a further Account in Dispute and quantity and frequency of telephone calls being harrassment etc (got template on Forum with regards to Telephone harrassemnt).
May 27th 2009 received a letter stating that account has now gone to their Collections Department - no mention of my dispute! telephone calls are continiuos - Any advice as to next step greatly received!
June 12, still no copy of CCA just telephone calls - which I politely say will not discuss on telephone only via written correspondence - CCA request wel over response due date - and still adding Default charges to the account - can anypne advise as to next step?
Rgarding the telephone calls make it an Official Complaint and insist that they remove ALL telephone numbers they have relating to you from thier system. This is the route I took and to be fair to the Brighton Circus all calls stopped.
Make sure you put it at the top of the page though in nice big letters, otherwise they will probably miss it.
the cupboard under the stairs for five days a week.
Posts
1,757
Re: LLoyds TSB CCA ! Any advice please
Hi LB,
I think you'll find that the above is a replyto your CCA request. These letters are standard replys and to my mind a little arrogant...
I too, have received these recently and they are about as useful as a chocolate teapot. Along with my letters, I received 2 lots of T&C's with my name and address on them which they assure me to be copies of my agreement.
Lloyds, like Barclays are a law unto themselves and I think you will be banging your head against a brick wall when dealing with them.
It is possible that you will have to await the contents of your SAR before catching sight of the 'real' agreement, or have to request it through the CPR route if you have no joy.
This particular forum is a little quiet, and you may want to ask to transfer this thread to the debt collection industry forum where you may get more responses to your questions.
Just a thought. Spam.
'Simples.'
Any advice I offer is probably useless but there may be little nuggets of gold in there somewhere......If I have helped in any way, be it with knowledge or by giving your chuckle muscle some exercise please feel free to tip my scales....
They say money talks......mine just keeps saying "Goodbye"
I think you'll find that the above is a replyto your CCA request. These letters are standard replys and to my mind a little arrogant...
I too, have received these recently and they are about as useful as a chocolate teapot. Along with my letters, I received 2 lots of T&C's with my name and address on them which they assure me to be copies of my agreement.
Lloyds, like Barclays are a law unto themselves and I think you will be banging your head against a brick wall when dealing with them.
It is possible that you will have to await the contents of your SAR before catching sight of the 'real' agreement, or have to request it through the CPR route if you have no joy.
This particular forum is a little quiet, and you may want to ask to transfer this thread to the debt collection industry forum where you may get more responses to your questions.
Just a thought. Spam.
They are the documents in the SAR request pack received.
the cupboard under the stairs for five days a week.
Posts
1,757
Re: LLoyds TSB CCA ! Any advice please
Hi,
My mistake then, I was going by what it said on the top of the first letter saying they were writing in response to your CCA request..
Sorry
Spam.
'Simples.'
Any advice I offer is probably useless but there may be little nuggets of gold in there somewhere......If I have helped in any way, be it with knowledge or by giving your chuckle muscle some exercise please feel free to tip my scales....
They say money talks......mine just keeps saying "Goodbye"
Have a good read through this letter and edit, add dates as required.
LLOYDS TSB Bank plc
xxxxxx 2009.
Dear Sir or Madam,
Account no xxxxxxxxxxxxxxxxxx
ACCOUNT IN SERIOUS DISPUTE
Re: my request under the Consumer Credit Act 1974
Further to my request under the above act, your attention is drawn to the fact that this account is subject to a serious dispute. On xxxxxxxxxx, by recorded delivery, I requested that you supply me a copy of the executed credit agreement covering this account pursuant to the Consumer Credit Act 1974 section 78, a copy of this request is enclosed. To date you have failed to comply with my request. Without production of the said agreement I am unable to assess if I am indeed liable for any alleged debt to you, nor does it give me any chance to evaluate whether any original agreement was ‘properly executed’ as required by the Consumer Credit Act 1974.
For the avoidance of any doubt I have included section 78(1) and 78(6) of the Consumer Credit Act 1974, which states…
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 ( 12 working days + 2 ) 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.
(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;
Clearly as no agreement has been supplied on request, you have not complied with the requirements of the Consumer Credit Act 1974 and I now draw your attention to section 78 subsection 6 which states If the creditor under an agreement fails to comply with subsection (1) he is not entitled, while the default continues, to enforce the agreement;
These include below, the relevant main points of the Law and OFT regulations while the account is in dispute and Lloyds TSB remain in default.
LLOYDS TSB may not ask for payment against this account.
I am not obliged to offer any payment against this account.
LLOYDS TSB cannot register any data with a third party.
LLOYDS TSB cannot take any enforcement action, including registering Defaults.
LLOYDS TSB cannot pass the account on to a third party for collection.
LLOYDS TSB cannot sell the account.
What is required of a true copy.
In a recent letter from the enforcement department of the OFT, the text below was quoted, explaining what is required.
“The copy of the executed agreement need not be an exact copy but it must be a ‘true copy’ and not some reconstruction of what the original might have been and it must contain the same terms as the original. Where the terms have been varied as provided for within the agreement, the copy of the original agreement must be accompanied by a document setting out the current terms, as varied. Certain details may be omitted from the original agreement eg the signature but the debtor must be in no doubt as to the true nature of his obligations under the loan.
Should no original agreement be in existence it is very hard to say that the copy the creditor offers to the debtor is, in fact, a true copy as there would be no original with which to compare it. In our view the onus of proof would be on the creditor to show that the copy is a true one and where none existed he may have difficulty discharging this. Neither should creditors suggest that a consumer has signed a credit agreement where they are unable to provide evidence to support this — to do so is likely to be a misleading action under Regulation 5 of the Consumer Protection From Unfair Trading Regulations 2008 (the CPRs) and would also constitute an unfair or improper business practice.”
I refer you also to the information below.
1. A valid credit agreement must contain certain terms within the signature document (s.60(1)(2) CCA 1974). These core terms are the credit limit, repayment terms and the rate of interest(SI 1983/1553 (6 Signing of agreement) which states that the prescribed terms must be within the signature document. (Column 2 schedule 6). s.61(1)(a) states the agreement must contain all the prescribed terms and be signed by both the debtor and on behalf of the creditor.
2. Further, s.127(3) CCA 1974 makes the account unenforceable if it is not in the proper form and content or improperly executed.
In Wilson and another v Hurstanger Ltd (2007) it was stated “In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties … and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s.61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement”.
2. The need for prescribed terms to be contained in the credit agreement is confirmed by the Author of the CCA1974 act, I quote ““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 Trust Ltd [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.”
Clearly this is a situation as described in S.78(6) Consumer Credit Act 1974 and the debt is unenforceable at this time. In addition, I now draw your attention to section 127 (3) Consumer Credit Act 1974 which states
127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).
This is backed by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 the agreement cannot be enforced.
To clarify S.61(1) states
(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
In addition the prescribed terms referred to in section 60 CCA1974 are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following—
1.Number of repayments;
2.Amount of repayments;
3.Frequency and timing of repayments;
4.Dates of repayments;
5.The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable
Therefore based upon the Consumer Credit Act 1974 this debt as it stands is unenforceable and should this proceed to litigation, a court is precluded from making an enforcement order under section 127(3) unless a true copy of the signed agreement is produced..
At the point where this account entered into the default situation as described in s78 (6) CCA 1974 no other charges are allowed to be added until such time as you become compliant with my request. As you are still not in compliance with my request I insist that the following takes place with immediate effect.
All entries which refer to missed payments be removed from my credit file
All collection activities cease with immediate effect until you comply with my request from xxxxxxxxx or such time as a court makes an enforcement order.
In addition, I draw your attention to the Office of Fair Trading’s guidance on debt collection
The OFT guidance which was issued July 2003 (updated December 2006) relating to debt collections and what the OFT considers unfair, I have enclosed an excerpt from page 5 of the guidance which states
2.6 Examples of unfair practices are as follows:
h. Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment
What I Require.
I require that you send me a true signed copy of the executed agreement as required by the Consumer Credit Act 1974. If you are unable to supply the requested documentation because no such agreement is in existence I require written clarification as such.
I am now granting to you a further 7 days to produce a copy of an executableagreement.After that I will consider that the above matter is closed and that you will no longer pursue the alleged debt.If you are insisting that the non enforceable document, that you have supplied, filled in by yourselves, is the only alleged agreement in your possession, then I would suggest that the best course of action would be to immediately set the balance of the above account number to zero.
I am advised that should you persist in pursuing this debt ignoring the above information you will be in breach of the Administration of Justice Act 1970 section 40 as well
No other correspondence will be accepted
Should you attempt litigation it will be vigorously defended and the failure to supply documentation under the CCA 1974 is a complete defence to any legal action and your actions will be vexatious and unlawful
the cupboard under the stairs for five days a week.
Posts
1,757
Re: LLoyds TSB CCA ! Any advice please
Hi LB,
My advice would be a letter to Lloyds and SC&M reminding them that the account is in serious dispute as per vints posting above.
Spam.
'Simples.'
Any advice I offer is probably useless but there may be little nuggets of gold in there somewhere......If I have helped in any way, be it with knowledge or by giving your chuckle muscle some exercise please feel free to tip my scales....
They say money talks......mine just keeps saying "Goodbye"
I was somewhat bemused to receive your letter of xxxxxxxxx 2009, the content of which is noted. No debt to your client is acknowledged.
On xxxxxxxxxx 2009 I made a formal request to your client pursuant to s.78(1) of the Consumer Credit Act 1974. They have failed to comply within the statutory time limit, or at all. In addition, this alleged account was placed in dispute on the xxxxxxxxx 2009. It should not be necessary to have to remind you that the provisions of s.78(6) now apply. These letters are enclosed.
In the circumstances, your and your clients threat of legal action would appear to be a breach of the Consumer Protection From Unfair Trading Regulations 2008 and the Office of Fair Trading Guidance on debt collection and your attention is drawn to this guidance document.
Your attention is also drawn the ICO on Data protection, as passing details on to a third party while an account is in dispute is contrary to the Data Protection Act. I have previously issued letters to MBNA under s10 of this act. You may wish to advise your client of the implications of ignoring the Data Protection Act.
With regard to the threat to obtain a Charging Order on any property that I may own, I would draw your attention to the OFT’s current investigation into such practices.
Should you attempt litigation it will be vigorously defended and the failure to supply documentation under the CCA 1974 is a complete defence to any legal action and your actions will be considered vexatious and unlawful. The Court's attention will drawn to the above statutory breaches . Furthermore, I reserve the right to bring the conduct of your client to the Court when the issue of costs is being considered.
I would remind you that while this alleged account remains in dispute, that your client:
May not ask for payment against this account.
I am not obliged to offer any payment against this account.
Cannot register any data with a third party.
Cannot take any enforcement action, including registering Defaults.
Cannot pass the account on to a third party for collection.
Cannot sell the account.
I trust this out lines the situation and I require you to return this matter to your client to avoid any further breaches of the Law, being committed by you or your client.
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LLoyds TSB CCA ! Any advice please
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Originally Posted by Spamalot
