Thread: Consumer Credit Act - Resources Workshop

MOD NOTE: Please be aware that the templates shown in this thread may not have been created, or legally checked, by CAG. This thread is purely a discussion and critique of letters posted on the forum, or found elsewhere on the internet. Members are advised to seek legal advice before using any of these resources.

Thanks Guys
Z.



All

I have been threatening to do this since it occurs to me that we get the same requests time and time again.

Please understand this: CCA and all subsequent regs and TSO guidelines are highly complex and the information you are presented with is not definitive but the contributors best view. At the end of the day, you should always consider the risks you face should you be involved in litigation. Even if you argue your case, the judge may well have a different viewpoint.

This thread is intended for people to submit their template/letter to assist other folk who are embarking on a similar path with their CCA requests. If you should review any of these resources and spot any problems or qualifications you feel need to be made, please pm the post's owner and should he/she agree with you then they will edit their own post.

Coming soon:

• What IS the Consumer Credit Act 1974 and how does it affect me?
• What are the CCA fundamentals which place doubt on agreements?
• What are the prescribed terms of an agreement?
• Overall Strategy to assess status of your agreement

• The Consumer Credit Act 1974 is a consumer protection law in the UK. It requires certain businesses to obtain Consumer credit licences and protects individuals receiving credit up to £25,000. Appeals under the Consumer Credit Act are made to the Office of Fair Trading. Cancellable agreements have a cooling-off period starting on the day the customer signs. This period is 14 days for goods bought from a mail-order catalogue. Otherwise, it is five days from the day the customer receives either a second copy of the agreement or a separate copy of a notice of cancellation rights. (source Wikipedia)
• Consumer credit licences are issued by the Consumer Credit Licensing Bureau which is part of the Office of Fair Trading (OFT). Examples of businesses that may be required to obtain consumer credit licences are:
  
  * [[Retailers]] who arrange credit
  * finance companies
  * debt collectors, debt advisors or negotiators
  * credit reference agencies
  * hire and leasing business
  
  However, it is possible to lawfully lend money to consumers without holding a consumer credit license if certain conditions are met.
• How does it affect me?
• This is MY strategy.
  
  We have all believed we owe people who chase us for money and in times of difficulty have made a variety of offers or been forced to do so. This is done on the basis that we believe we owe the debt because we are told so or people have written to us details of what we owe. Very few people actually deny the debt. We do so on the understanding that there exists a fully executed agreement and the creditor is using his rights under that agreement.
  
  The CCA 1974 is a huge complex document providing all the legislation for financial transactions (excluding mortgages) from £50 upwards. It legislates every aspect of a variety of differing agreements, including where surety is required. It is relevent from 1975? its in the Act cant remember, but does not apply in Scotland and I think N Ireland. There have been other subsequent Statutory Instruments which have modified this in later years, but nothing significant that we can see which affects our use of it.
  
  The primary reason for using CCA is to establish that you do have an enforceable agreement. The Sections referred to provide you with the right to obtain every detail of that agreement - the prescribed terms. According to a reference I recently read from the OFT, unless the creditor can provide a fully executed agreement which means every aspect required of the prescribed terms, then the creditor cannot go to court seeking enforcement.
  
  This leaves an unenforceable debt. Further - the creditor has no right to provide any CRA details of the alleged debt, nor communicate any information nor request a DCA collect the debt, nor make charges on the debt.
  
  I always copy any DCA into these letters to avoid misunderstanding and more importantly so that they know you are being reasonable and lawful.
  
  I allow more than 12 days - 21 seems reasonable. I issue a follow up letter pointing out that they are in Default on the alleged agreement and that the alleged agreement is now unenforceable and consequently I will make no further payments to them until they obtain a court order to lift the default.
  After 30 days - well again I allow an extra week, I inform them that they have now committed a criminal offence liable to £2500 fine or imprisonment. At this time I will issue them in a seperate letter a request for a S.A.R - (Subject access request).
  
  The purpose of the S.A.R - (Subject access request) is quite simple. Remember this is only my strategy but it is a good one. Nobody to my knowledge has obtained an outcome at this stage (except it seems to have forced my creditor to write off a £6k debt.
  The SAR when they comply, will give you details of ALL their charges and your payments during the lifetime of the alleged agreement. Not just penalties but all their interest too. We will discuss restitution next.
• Definitions and references (kindly supplied by Richard Spud) It might be helpful if I explain my understanding that the legal authority to cite with regard to the "Prescribed period" for "Giving" the information to a debtor by a creditor as stipulated under ss. 77 (i.e. for a loan), 78 (i.e. for a credit card) or 79 (for hire agreements) of the Consumer Credit Act 1974 (CCA 1974) is: the Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 (SI 1983/1569).
  
  Regulation 2 of the above stipulates the "Prescribed period" to be "12 working days".
  
  For the definition of "Giving", s.189 of the CCA 1974 defines this as: "Deliver or send by post". I suggest that the date of posting is service.
  
  For the definition of "Working day", s.189 of the CCA 1974 defines this as: "Any day other than - (a) Saturday or Sunday, (b) Christmas Day or Good Friday, (c) a bank holiday within the meaning given by section 1 of the Banking and Financial Dealings Act 1971".
  
  With regard to a "Copy of the executed agreement"; I understand that the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557) provides at r.3 thus:
  
  "General requirements as to form and content of copy documents
  (1) Subject to the following provisions of these Regulations, every copy of an executed agreement, security instrument or other document referred to in the Act [CCA 1974] and delivered or sent to a debtor, hirer or surety under any provision of the Act shall be a true copy thereof [my emphasis added]".
  
  I suggest that any copy of the terms and conditions of a regulated agreement should be legible, although the above Regulations provide for the omission of certain items e.g signatures, dates etc.
  
  With regard to an "Offence" for failing to provide the information requested under ss.77, 78 or 79 of the CCA 1974 within "one month" of the termination of "12 working days"; I believe this is a summary offence (triable only in the Magistrates Court) and therefore I understand that generally (some exceptions exist) papers must be laid before the Court within 6 months of the offence being committed - thereafter action being time barred. However, I refer you to s.169 of CCA 1974 which provides for offences committed by Company Officers et al in particular circumstances.
  
  With reference to s.40 of the Administration of Justice Act 1970, I understand that Trading Standards can enforce this criminal element if cogent evidence is produced.
  
  With reference to "Harassment"; I understand that there are two primary legislative provisions: the Protection from Harassment Act 1977 which I believe created a statutory tort and the later 1997 Act enacted with stalking in mind. However, in the civil case of Marjrowski v Guy's & St Thomas's NHS Trust [2005] EWCA Civ 251 on 16th March 2005 reported at [2005] ICR 977, CA (also at [2005] IRLR 340) it was held that:
  
  • as a general matter, an employer can be vicariously liable for breach of a statutory duty imposed only on his employee;
  • as a specific matter, if an act of harassment is committed by an employee in the course of his or her employment (in breach of Protection from Harassment Act 1997 s.1 ) then the employer can be vicariously liable to pay the victim damages for any anxiety caused by the harassment and any financial loss resulting from the harassment (under Protection from Harassment Act 1997 s.3 ).
  I suggest that under the Law of Agency and the doctrine of Vicarious Liability, in addition to the above case, it could be argued that a creditor could be vicariously liable for an act of "harassment" committed by a debt collection company.
  
  Those with further interest in these matters should, I suggest, also consult the Malicious Communications Act 1998 and the Enterprise Act 2002 (Part 8 Domestic Infringments) Order 2003 (SI 2003/1593) - for action that may be taken by Trading Standards regarding consumer issues affecting a large number of domestic consumers.
  

Owners: please post/edit using the following format:

Ref: Post No
Owner: your cag name
Used for: Brief explanation of when you should use this.
Create/Update Date: todays date
Template:

Discussions: please make comments by referring to the Post No of the template:

eg: Ref #2

I think this assumes.....
etc.

Thanks

Z

This thread is all about CCA templates and discussions related to CCA templates.

Please precede your comments with reference to the template post no. #3 I think?

Originally Posted by zubo

Ref: #4

there are split opinions on this topic - see thread
http://www.consumeractiongroup.co.uk...tml#post698969

imho an application is exactly that - it is precontractual and the defining document is the regulated agreement containing all the prescribed terms. The <only> difference of opinion on this site is not is it entitled application or agreement but rather does the document contain ALL the prescribed terms. If it does NOT then it is unexecuted and may only be enforced by order of a court provided that the omissions are not significant. An example of a serious omission is the absence of a debtor's signature - this in my view cannot ever become enforceable even by a court.

Ask the DCA to provide Statute or Regulation and they cannot - remember they are simply a business with NO place in our legal system and they MUST abide by the law. S10 can be supported quite logically by the fact that DPA provides you with regulations which protects you from abuse of data related to you. When you enter into any regulated enforceable agreement one of the conditions is that you will allow the creditor to share this data. A key requirement of the DPA is your consent. The absence of an executed agreement places all conditions of the agreement unenforceable. In other words you have NOT given consent. So the S10 to desist cannot be denied.


Absolutely - the DJ interprets and determines the outcome based upon what is placed before him.

Z

Hello and thank you

Subscribing.

Originally Posted by zubo

Ref: #4

The <only> difference of opinion on this site is not is it entitled application or agreement but rather does the document contain ALL the prescribed terms. If it does NOT then it is unexecuted (no - IMPROPERLY executed) and may only be enforced by order of a court provided that the omissions are not significant.

Hi

There is a huge difference between an UNexecuted agreement and an Improperly executed one. The only time an agreement would be UNexecuted is if it had not been signed by both parties. It is important to emphasis this difference as an UNexecuted agreement has never been made!

Regards, Pam

Duplicate post!

Constructive comments etc as usual will be welcome

Office of Fair Trading
OFT Enquiries
Fleetbank House2-6 Salisbury Square
London
EC4Y 8JX


FAILURE by xxxxxxx ltd Under Sections 77/78 of the Consumer Credit Act 1974. Account No.


Dear Sir or Madam

As is my right under Sections 77 and 78 of the Consumer Credit Act 1974, I wrote to xxxx on {date} requesting a true, signed (legible) copy of any credit agreement (inc statements) that exists in relation to the above account, including the statutory fee of £1.00.

Under the terms of the above Act, xxxxx had 12 working days to provide the requested document and a further calendar month to rectify this default. Both of these deadlines have now passed and I have received nothing in relation to my request.

This led me to only one conclusion that no signed credit agreement exists in relation to this account. An agreement that does not contain all of the prescribed terms, and/or is not signed by the debtor, is completely unenforceable, even in a court of law.

I have today sent a letter to xxxxxxx refuting the debt and stating that any legal action proposed by them will be vigorously defended as I believe that they may have committed an offence under the CCA punishable by a level 4 fine.

Additionally, as there has never been any regulated agreement in relation to this account, I maintain that xxxxxxx do not have my consent to process my data and have requested that they remove all data referring to them from the records of all 3 Credit reference agencies.

With respect to the above may, I respectfully request that you begin an investigation into the failures of xxxxxxxx and in the meantime your comments, advice & guidance in the above would be much appreciated.

Yours faithfully


Xxxxxxxxxxxx

Ref: #13
Owner: Zubo (I think it is a CAG template mod to include true)
Used For: Initial CCA request for a copy of your true agreement regardless of whether for a loan or a credit card (CCA refers to these as Credit Tokens).

Date Created/Updated: 03-Apr-2007

Template:



Send this recorded to the registered office of the Creditor.





Re: Ref No. XXXXXXXXX – Your Name

With reference to the above credit account, would you please send me a true copy of this credit agreement.

I do not acknowledge knowledge of any lawful debt.

I understand that under the Consumer Credit Act 1974 (Sections 77−79), I am entitled to receive a copy of the true credit agreement on request and this should be supplied within 12 working days. I enclose a payment of £1.00 which represents the fee payable under the Consumer Credit Act.

Non-compliance with my request is a criminal offence under the above Act and will result in a report being submitted to the relevant statutory authorities.

As you are aware, a credit agreement that is not properly documented and signed by the customer is totally unenforceable under the CCA and therefore is a complete defense to any court claim that is issued.
I look forward to hearing from you.

Yours faithfully

If you are not acknowledging the debt at this stage then be sure to say so (in CAPs) at the beginning of the letter and don't use the word 'my', e.g. my account, my credit card unless you have already acknowledged or are willing to. (thanks Pam)

Ref #16

Owner: DaveFireWalker (edit Zubo)
Used For: To Notify a Creditor that they have sent an application form and they need still to supply the true executed agreement

Date Created/Updated: 03-Apr-2007

Template:


Dear Sirs
Ref account **************

With regard to the documents that you sent me in relation to my request for information under the Consumer Credit Act 1974, I am still waiting for the signed executed agreement. You seem to have sent me an application form and a somewhat recent copy of your terms and conditions and a very recent copy of an agreement form unsigned by anyone. I’m sure this must be an oversight, so I will ask you again for the proper documents.
I draw your attention to section 61 of the consumer credit act 1974 (an excerpt enclosed for your perusal) in that
“(1) A regulated agreement is not properly executed unless 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.”
Be also advised that your statutory time period has elapsed and YOU are now in default and very shortly you will have committed a criminal offence. As you are now in default NO further action can be taken on this account until such a time as the original SIGNED EXECUTED documents are made available to me.
This account is still in dispute and I still forbid the passing of any data to third parties, if any data has been processed illegally since my last request I shall take appropriate action.
Further if you cannot supply the proper documents and you have entered any defaults against my name I require that you remove them immediately.
I shall be carefully considering my options and next actions.
I await your response.

lets see if that rattles their cage....

also on a further note regarding agreements have a GOOD read of the doc at this link. its the OFT guidelines for credit agreements. its the 2004 version though. the 1983 version must exist somewhere.

http://www.oft.gov.uk/shared_oft/rep...it/oft786a.pdf

IT MAKES INTERESTING READING

Dave

Ref: #17

From Inkogneetoh:

Quote:
Originally Posted by m55dlc
Pam, are you sure on the bit in bold? I thought that could be enforced by a judge. If you signed it and they didn't, enforceable with a court order

Hi

No, I have to admit ( hope Peter ain't around!) that I am not SURE about the signatures bit.

It's confusing because s127(3) says:

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).

Which implies that just the debtor's signature will do, (as long as all the prescribed terms are present).

But my understanding is that the agreement is not executed until both parties have signed it.

In support of this:

62 Duty to supply copy of unexecuted agreement

(1) If 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.

This is where an agreement is sent to the debtor for his signature first and when signed it still does not become an executed agreement because the creditor still has to sign it. So an agreement that is not yet signed by both is still unexecuted!

Definitions:

“unexecuted agreement” means a document embodying the terms of a prospective regulated agreement, or such of them as it is intended to reduce to writing;

“executed agreement” means a document, signed by or on behalf of the parties, embodying the terms of a regulated agreement, or such of them as have been reduced to writing;

So, an unexecuted agreement is just a prospective agreement.

Does this make sense to you - it certainly does to me!

Regards, Pam

subscribing

Dave

Updated Post #1

z