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.
Hi,
I've just received this from Egg in response from my cca request,yet another bank who seem to do their own thing,although in eggs case it isn't much at the moment.
They claim to have sent a default notice but to the wrong address (may have gone next door) I sent a recorded delivery letter about a month ago asking them to resend all correspondence to the correct address and they haven't ,bar this cca reply.
Reading on the forums and there's plenty of stuff about egg it would appear to me that this is more of an application form and unenforceable but i'd quite like confirmation from somebody more ably qualified than me please.I've attached the first page of t+c that they sent me as this looks generic and is in different print/font.
A way ahead /suggetsions and what to do would be great please and if somebody has a copy or is going through the same process that would be even better to help me out.Interesting that the apr was 10.9% back then,almost double now.
Well they haven’t wasted anytime with this,just received a call from cduk who wanted to talk about my Egg account,I didn’t say anything to them but I’m losing the will to anyway.
I only received this purported cca on Friday so they’ve obviously been in touch pretty quickly.
Anybody know what I can do or confirm my thoughts regarding the alleged agreement please ?
Thanks i'm redaing it now,war and peace has nothing on this !
Anybody else got an opinion on what Egg have sent, i personally feel it falls firmly into the non enforceable category but would like to hear from other caggers who've had similar
Interesting that on the t&c page that your name is blanked out (presumably by Egg & not by you?) as it is identical to the page they sent me - the black block out is even the same shape. Suggests they are using a single example for all agreements from that period.
C
Was blanked by Egg so you're probably right,the t+c is in different fonts as well so its something they've cobbled together.After reading through a few threads i suppose i can either sit tight and do nothing or put the account in dispute.
I've been getting calls from cd now,mr shields is very anxious to speak to me,he said my account is in default,i've received nothing from egg though who said they've sent the letter (to the wrong address) and won't be sending another despite my requesting copies of all correspondence.
how you getting on with yours ?
Interesting that on the t&c page that your name is blanked out (presumably by Egg & not by you?) as it is identical to the page they sent me - the black block out is even the same shape. Suggests they are using a single example for all agreements from that period.
C
Yes, I have had my suspicions that Egg have been using a template to re-create for some time now.
Put the account into dispute (as opposed to doing nothing) and keep sending the 'bemused' 'in dispute' letter to DCAs. Also now Egg will deny receiving any correspondence from you so for thoroughness in case it ever gets to court send several recorded letter, perhaps a couple of faxes and some e-mails chasing your CCA and SARs. This way you can demonstrate you did absolutely everything you could and they are the non responsive and uncooperative ones!
Egg terminated my account while in dispute because they did not comply with s78 request until after termination. Then they provided a copy of an un-enforceable CCA (approved limit & only an APR for cash advances). They recently passed to Moorcrofts who rhave now asked for full details of my dispute with Egg. I suggested they ask Egg for details so am waiting for their next response! I have also written to Egg pointing out that unfortunately the copy CCA they have sent is un-enforceable. Again, waiting to see how they respond.
Thanks people.
Do you have your own thread cadwallader ? I'll send out the letter of dispute and update this one as and when i hear anything.
I believe cd have it but i've nothing in writing to prove this,just phone calls and as i refuse to speak to them i can't be 100% sure !!
It's just a mess at the moment,so i'll stop making a token payment to them as well.
Can somebody take a look at this an dlet me know if its ok to put my account in dispute please. I've made mention of there being no prescribed t+c but not sure if i should highlight the fac that it just mentions approved limit and doesn't specify how much or what it is ? so advice welcome.
ACCOUNT IN DISPUTE
Thank you for your response to my letter dated .............., making a formal request for a true copy of the original credit agreement for the above account under the Consumer Credit Act 1974 (Sections 77-79).
The documents you supplied me are not a satisfactory response to my request. Nowhere on the front of the document is there any reference to the prescribed terms and conditions that such an agreement must contain. I must assume that these are unconnected documents and once again inadequate to satisfy your obligations.
As you are aware you are obliged to provide me with a true copy of my agreement as defined under Section 189 of the CCA 1974. and I consider that you have failed to comply with my request for these documents.
Under the terms of the above Act, a creditor has 12 working days to provide the requested documents. This deadline has now passed and I have not received the requested documents from you.
As I am sure you are aware, an agreement that does not contain all of the prescribed terms, and/or is not signed by the debtor, is completely unenforceable & I therefore consider that this accountis in dispute with immediate effect & if I so wish I can suspended all payments forthwith.
I draw your attention to the legal requirement that a creditor is not permitted to take any action against an account whilst it remains in dispute. The lack of a credit agreement is a very clear dispute and therefore the following applies:
You must not demand any payment on this account, nor am I obliged to offer any payment to you.
You must not add any further interest or charges to this account.
You must not pass this account to any third party.
You must not register any information in respect of this account with any of the credit reference agencies.
You must not issue a default notice on this account
I hereby give you notice that if you proceed with any of the above actions, I will file reports with the appropriate authorities, including, but not limited to, Trading Standards, Office of Fair Trading, Information Commissioners Office, Financial Ombudsman Service.
Can somebody take a look at this an dlet me know if its ok to put my account in dispute please. I've made mention of there being no prescribed t+c but not sure if i should highlight the fac that it just mentions approved limit and doesn't specify how much or what it is ? so advice welcome.
ACCOUNT IN DISPUTE
Thank you for your response to my letter dated .............., making a formal request for a true copy of the original credit agreement for the above account under the Consumer Credit Act 1974 (Sections 77-79).
The documents you supplied me are not a satisfactory response to my request. Nowhere on the front of the document is there any reference to the prescribed terms and conditions that such an agreement must contain. I must assume that these are unconnected documents and once again inadequate to satisfy your obligations.
As you are aware you are obliged to provide me with a true copy of my agreement as defined under Section 189 of the CCA 1974. and I consider that you have failed to comply with my request for these documents.
Under the terms of the above Act, a creditor has 12 working days to provide the requested documents. This deadline has now passed and I have not received the requested documents from you.
As I am sure you are aware, an agreement that does not contain all of the prescribed terms, and/or is not signed by the debtor, is completely unenforceable & I therefore consider that this accountis in dispute with immediate effect & if I so wish I can suspended all payments forthwith.
I draw your attention to the legal requirement that a creditor is not permitted to take any action against an account whilst it remains in dispute. The lack of a credit agreement is a very clear dispute and therefore the following applies: You must not demand any payment on this account, nor am I obliged to offer any payment to you. You must not add any further interest or charges to this account. You must not pass this account to any third party. You must not register any information in respect of this account with any of the credit reference agencies. You must not issue a default notice on this account I hereby give you notice that if you proceed with any of the above actions, I will file reports with the appropriate authorities, including, but not limited to, Trading Standards, Office of Fair Trading, Information Commissioners Office, Financial Ombudsman Service.
You could add this:
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.”
Again at the risk of repeating myself, I refer you 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.”
Despite the alleged account being in dispute following your failure to supply the required data as requested by myself, you issued a Default Notice under section 87 (1) of the act on the 5th May 2009, further terminating the alleged account on the 19th May 2009 both in letters from yourself. I have confirmed acceptance of your Termination actions. This was prior to supplying any documentation under my first request. Despite these actions, Egg are continuing to issue arrears letters and statements on a closed account.
Following your previous threats of legal action, you have failed to supply a true copy of any alleged agreement under CPR 31:16, as I have requested.
I am now granting to you a further 7 days to produce a copy of an executableagreement under CPR 31.16.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, 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.
Hi,that's very good of you and in answer to your questions,the t+c looks like an afterthought and is not date stamped.
I've added some of your suggestions but taken out the reference to your dispute with egg !! so do you think its ok now ?
ACCOUNT IN DISPUTE
Thank you for your response to my letter dated .............., making a formal request for a true copy of the original credit agreement for the above account under the Consumer Credit Act 1974 (Sections 77-79).
The documents you supplied me are not a satisfactory response to my request. Nowhere on the front of the document is there any reference to the prescribed terms and conditions that such an agreement must contain. I must assume that these are unconnected documents and once again inadequate to satisfy your obligations.
As you are aware you are obliged to provide me with a true copy of my agreement as defined under Section 189 of the CCA 1974. and I consider that you have failed to comply with my request for these documents.
Under the terms of the above Act, a creditor has 12 working days to provide the requested documents. This deadline has now passed and I have not received the requested documents from you.
As I am sure you are aware, an agreement that does not contain all of the prescribed terms, and/or is not signed by the debtor, is completely unenforceable & I therefore consider that this accountis in dispute with immediate effect & if I so wish I can suspended all payments forthwith.
I draw your attention to the legal requirement that a creditor is not permitted to take any action against an account whilst it remains in dispute. The lack of a credit agreement is a very clear dispute and therefore the following applies:
You must not demand any payment on this account, nor am I obliged to offer any payment to you.
You must not add any further interest or charges to this account.
You must not pass this account to any third party.
You must not register any information in respect of this account with any of the credit reference agencies.
You must not issue a default notice on this account
I hereby give you notice that if you proceed with any of the above actions, I will file reports with the appropriate authorities, including, but not limited to, Trading Standards, Office of Fair Trading, Information Commissioners Office, Financial Ombudsman Service.
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 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.”
You have failed to supply a true copy of any alleged agreement under CPR 31:16, as I have requested.
I am now granting to you a further 7 days to produce a copy of an executableagreement under CPR 31.16.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, 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.
Hi,that's very good of you and in answer to your questions,the t+c looks like an afterthought and is not date stamped.
I've added some of your suggestions but taken out the reference to your dispute with egg !! so do you think its ok now ?
ACCOUNT IN DISPUTE
Thank you for your response to my letter dated .............., making a formal request for a true copy of the original credit agreement for the above account under the Consumer Credit Act 1974 (Sections 77-79).
The documents you supplied me are not a satisfactory response to my request. Nowhere on the front of the document is there any reference to the prescribed terms and conditions that such an agreement must contain. I must assume that these are unconnected documents and once again inadequate to satisfy your obligations.
As you are aware you are obliged to provide me with a true copy of my agreement as defined under Section 189 of the CCA 1974. and I consider that you have failed to comply with my request for these documents.
Under the terms of the above Act, a creditor has 12 working days to provide the requested documents. This deadline has now passed and I have not received the requested documents from you.
As I am sure you are aware, an agreement that does not contain all of the prescribed terms, and/or is not signed by the debtor, is completely unenforceable & I therefore consider that this accountis in dispute with immediate effect & if I so wish I can suspended all payments forthwith.
I draw your attention to the legal requirement that a creditor is not permitted to take any action against an account whilst it remains in dispute. The lack of a credit agreement is a very clear dispute and therefore the following applies: You must not demand any payment on this account, nor am I obliged to offer any payment to you. You must not add any further interest or charges to this account. You must not pass this account to any third party. You must not register any information in respect of this account with any of the credit reference agencies. You must not issue a default notice on this account I hereby give you notice that if you proceed with any of the above actions, I will file reports with the appropriate authorities, including, but not limited to, Trading Standards, Office of Fair Trading, Information Commissioners Office, Financial Ombudsman Service.
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 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.”
You have failed to supply a true copy of any alleged agreement under CPR 31:16, as I have requested.
I am now granting to you a further 7 days to produce a copy of an executableagreement under CPR 31.16.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, 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 write regarding continuing communication regarding the above account.
Ref: 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 now subject to a serious dispute. On xxxxxxxx, 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, in that the documents that you have supplied, purporting to be an executed agreement are obviously not compliant with the Consumer Credit act 1974 . 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;
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 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 27/03/09 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 require that you comply with my request within 7 days of the date of this letter. I will not correspond any further with you until I either receive a copy of the requested documents as laid down in section 78(1) CCA 74 or clarification that such agreement doesn’t exist. 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
I would draw your attention to the text below, contained within a recent letter from the enforcement department of the OFT, the text below was quoted, explaining what is required, when you respond to a CCA request.
“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.”
Again at the risk of repeating myself, I refer you 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.”
As previously mentioned, I am now granting to you a further 7 days to produce a copy of an executable agreement.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, 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.
Thank you very much for your help,after reading all that it made my head spin so i'm hoping that they'll take it all in as well !
I'll send it off and report back.
Thank you very much for your help,after reading all that it made my head spin so i'm hoping that they'll take it all in as well !
I'll send it off and report back.
Blue otter v Egg (2000) -cca reply
in response from my cca request,yet another bank who seem to do their own thing,although in eggs case it isn't much at the moment.
Reply With Quote
Originally Posted by cadwallader
