New rules on loans/credit cards

[flooz]

Firstly, I hope i'm posting in the correct place - this site has such a wealth of information and topics, it's difficult to know where to post.

 

OK, here we go. As you will all know, there is much advertising at the moment, about loans/credit cards taken prior to April 2007 (?) that may or may not be enforceable. My OH and I have 2 loans between us and a credit card, and would like to look into this further. We responded to one of these companies who, surprise, surprise, said all 3 agreements were unenforceable, but there is a cost to them fighting it. Understandable, but once I asked them to put into writing what they had told me about refunding any monies paid to them, if they lost my claim, would be refunded, they've suddenly gone quiet.

 

I'm now in a dilemna, although don't want to provoke a moral argument. What do I do. I've seen there is a lot of information on here about the situation, but I'll be honest, there's so much information and I find it all confusing. However, if this is something I can do myself, I'd rather do that.

 

So, firstly, how do I go about finding out whether our loans/credit card agreements were drawn up correctly? I did see somewhere that, particularly with CC's, if the finance company frequently increase your credit limit without it being requested, this may be a case for the agreement to be unenforceable. Can this be true?

 

Our loans, neither of which have PPI (I always believed I would never be out of work; being seriously ill and now disabled, changed my mind) are both with high street names, one having been 'saved' by the government making headline news at the start of the recession, this other being in receipt of assistance from the Government more recently. One was applied for and approved on the internet.

 

Can anyone help me out here? Hopefully in simple terms, as having some damage to my brain makes it difficult for me to understand things sometimes.

 

Many thanks in advance.

[cerberusalert]

Send them a CCA request to see if they are entitled to collect this debt & if it's enforcable. If they fail to provide it within 12+2 days or the CCA is unenforcable you can legally withold any payment until they do. Send it recorded delivery enclosing a £1 postal order. When you get a reply, scan it & remove any identifying details and post it back here where we can have a look at it. We'll advise you from there;

 

Dear Sir/Madam

 

Re:- Account No: XXXXXXXX/Your Reference Number: XXXXXXX

 

This letter is a formal request pursuant to s.77/78 of the Consumer Credit Act 1974. I require you to provide me with a true copy of the credit agreement relating to the above account, together with any other documentation the Act requires you to provide.

 

I expect you to comply fully and properly with this request, within the statutory time limit. You are reminded that should you fail to comply with my request, the provisions of s.77 will apply.

 

If it is your view that you are not the creditor, s.175 of the CCA 1974 applies in the case of a simple assignment, and places a duty upon you to pass this request to the creditor. In the case of an absolute assignment, you are a creditor as defined by s.189. If you contend that you purchased the rights but not the duties of any agreement, you are reminded that s.189 of the Act is clear that an assignment is of both rights and duties.

 

Your attention is drawn to ss.5(2), 3(b),6 and 7 of the Consumer Protection from Unfair Trading Regulations 2008 (CPUTR).

 

I enclose a postal order in the sum of £1.00, which is the statutory fee. Note that these funds are not to be used for any other purpose.

 

If you are unable to comply fully and properly with this request, you should confirm this in writing at the earliest opportunity, and certainly within the statutory time limit for compliance, and return the fee.

 

You should also note that I will only discuss this matter in writing and should it be your intention to arrange a “doorstep call”, please be advised that under OFT rules, you can only visit me at my home if you make an appointment and I have no wish to make an appointment with you or any of your associates.

 

There is only an implied license under English Common Law for people to be able to visit me on my property without express permission; the postman and people asking for directions etc (Armstrong v. Sheppard and Short Ltd [1959] 2 Q.B. per Lord Evershed M.R.). Therefore take note that I revoke license under Common Law for you, or your representatives to visit me at my property and if you do so, then you will be liable to damages for a tort of trespass and action will be taken, including but not limited to, police attendance. (Optional addition)

 

I look forward to hearing from you.

 

Yours faithfully **Edit to suit**

Print name do not sign

[flooz]

Thank you very much, I shall send the letter and once replies received, will return.

[flooz]

OK, first reply received - about my bank loan. unfortunately I don't have scanning facilities, but the letter goes like this..

 

Quote....

 

re: request for copy Credit Agreement under section 77 of the Consumer Credit Act 1974.

 

I refer to your letter of 29th September making a request under s,77(1).

 

We regret to advise that the loan agreement has been misfiled and despite searching our records we have been unable to locate it. Regrettably we are unable to comply fully with your request made under s.77(1) of the Consumer Credit Act but we are able to provide you with a statement of financial information which is included below.

 

Statement of Financial Information

 

Loan details etc.

 

Notwithstanding this the loan remains valid and we expect you to continue to meet your obligations under the agreement. We should point out that if you cease to make future payments as they fall due, we will report the default to Credit Reference Agencies in line with guidance issued by the Information Commissioner's Ofice.

 

If you require more details about the loan we shall be pleased to supply whatever details we have in our records. Should further assistance be required, please do not hesitate to contact us at the above office.

 

Yours sincerely

 

.... end quote

 

They have returned my £1.

 

So, what should I do now? I don't want to receive a bad credit report, and i'm also concerned that any action I may decide to take will have a detrimental affect of other accounts I hold with the bank - in particular, a business account, with an agreed overdraft on, which I can't afford to lose in the current economic climate.

 

I wasn't going to take this route with the bank, the loan isn't huge, and i'm 2/3 of the way through it. But they mucked me about over my Mum's bank account, and I re-thought my moral stance.

 

Any further advice would be greatfully received.

[cerberusalert]

As they have failed to provide the CCA they cannot take enforcement so you could send them this; http://www.consumerforums.com/resources/templates-library/86-debt-collectors/571-failiure-to-provide-a-copy-of-the-agreement-within-the-prescribed-timescale

 

You have a major problem with having multiple a/cs with them tho', and purely out of bloody mindedness they'd probably trash your credit rating and mess about with the other a/cs, such as withdrawing/removing overdraft facilities etc.

 

If you have paid excess charges on that a/c you could send a SAR to determine what unfair charges you could reclaim, but as things stand you are between a rock & a hard place.

[PGH7447]

or before taking action set up a new bank account etc

[flooz]

Thanks again, everyone. Letter saved to Word, for me to use.

 

I shall set up alternative accounts, asap.

 

Just a quick addition : How do I determine if the charges we are getting on our business account are unfair? Like many businesses at the moment, we struggle keeping our bank a/c in the black, which frequently means being charged 'referral fees' and such like. Personally, I don't dispute that banks need to charge for stuff like that, it's just the amount they are charging. But what I think is unfair, the bank might think totally fair. Are there any guidelines to determining what's 'fair' and what isn't?

[cerberusalert]

You can send a SAR which costs £10 & this covers all the data they hold on all the a/cs you have with them. You'll have to stipulate everything you want & list the a/cs. http://www.consumerforums.com/resources/templates-library/86-debt-collectors/576-subject-access-request-debt-a-dca

 

Have a look at Business claims for bank charges - The Consumer Forums

[itstheone]

I don't want to receive a bad credit report

 

I can assure you this will happen if you don't pay, even if you 'legally' don't have to pay, they will still report on the credit reference agencies.

 

Even if the agreement is unenforceable in court, the debt still remains.

[flooz]

Thank you again.

 

Reply number 2 received - from my credit card company; again I will re-type the letter as no scanning facility available.

 

Quote....

 

Re: Account number ..........

 

Thank you for your recent letter requesting copy documents for your account.

 

You requested copies of the executed credit agreement and a staqtement of your account under section 78 of the Consumer Credit Act 1974.

 

Please find enclosed a copy of your credit agreement as requested. In accordance with section 78 of the Consumer Credit Act 1974 and the Consumer Credit Act (Cancellation Notices and Copy Documents) Regulations 1983, this is your original agreement, and if any terms have been varied, then the copy agreement will include the updated terms. In addition, your personal details, the signature box, and date of signature have been omitted from the copy provided as permitted under Regulation 3 of the Consumer Credit (Cancellation Notices and Copy Documents) Regulations 1983.

 

The status of your account, as of the date of this letter is currently up to date with payments.

 

Yours current outstanding balance is ...(I've omitted this info)

 

The next payment due on your account (excluding any arrears or overlimit amount) is (I've omitted this too)

 

As your account has variable interest rates which may change from time to time, I am unable to provide you with a specific schedule of payments detailing the amount due each month in order to pay the current outstanding balance in full. However, the minimum monthly payment will be 2% of the outstanding balance or £5, whichever is greater. Your statements will be peoduced on the 26th of each month (subject to this date not falling on a weekend or bank holiday) and the minimum monthly payment will be due to the account within 26 days of the statement date.

 

I trust this information will help you with your enquiries. If you need any further information, please contact me again.

 

Yours sincerely

 

....end quote

 

Included in the letter is a standard one sheet "terms of your capital one credit card agreement", with the small print on the reverse, and a leaflet with 'important information about your capital one credit card', which although I haven't read, I believe is a variation of terms which was issued a short while back.

 

Now I'm a little concerned about what they say about the 'ommission of the signature box as permitted under....'. Surely, if this was the case, then every financial institution that couldn't produce a signed copy of the agreement could just print off standard terms and conditions and quote that little piece of legislation?

 

Also, Thanks for your comment istheone, but I'm sure I've read somewhere, that if a financial institution reports anything to a credit reference agency about a 'disputed account' they can be reported. But of course I may be wrong. (you don't work for a bank do you ;-)

 

Regarding the Credit Card, would I be right in assuming that I should send the 'account in dispute' letter to them as they have failed to produce a valid executed copy of my agreement? Or as they have quoted the Regulation 3, do i have to take a different stance?

 

Many thanks for your continuing help.

[itstheone]

Hi,

No i dont work for a bank, but they'll just say its in the terms of the agreement and yoou'd probably have to go to court to get them removed.

 

Regarding your other question, to comply with a s78 request they can send you a 'mock up' of what your agreement would look like. Have a look of this thread if you want the 'proper' agreement.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/173201-why-you-shouldnt-use.html

[flooz]

doubly confused now. Why can't stuff like this be simple. Now I understand why people are handing over money to third parties in an effort to get their stuff sorted. I don't want to do that. I do believe in fight myself (where I can) to get things done.

 

It's a difficult one in many ways. Morally, yep, i borrowed the money, I have an obligation to pay back. But then again, until institutions/corporations etc feel the pinch of not doing stuff properly, there is no incentive to correct their mistakes. In a similar fashion, my husband successfully took his ex-employer to court for constructive dismissal. For us it was never about the money, just proving who was right. Nevertheless, given the maximum amount an employment tribunal can award is something in the region of £60k (or it was when we took the action) to a company worth in excess of £500m, it's small change. So there is no incentive for them to 'behave' in the future.

 

In many ways i feel the same about banks/credit card companies, etc.

 

And it's for that reason alone that i will fight my cases with them.

 

Oops - i'll just step down from my soap box

[itstheone]

Hi,

yes i'm struggling to get my head around it all as well!. I'm fighting 3 DCA on behalf of a mate, luckily, or not, they all sent the 'proper' agreement. None complied with the CCA so after i told them it's been quiet now for 2 months. Quite expect them to pass it on and have another go, although they shouldn't really as there in dispute now.

Just waiting to see what happens now

[flooz]

I'm struggling to understand how a 'regulation 3' gets round the problem. theoretically, any financial institution could KNOW their original terms and conditions didn't meet the criteria, but they can get round it by supplying a blanket sheet of T&C's (which may be different to those originally agreed by the debtor), under this regulation. If this is the case, why isn't every Bank doing it?

 

I'm just wondering what my next correspondence with Capital one should be now. I had assumed it would be the same 'account in dispute' letter as I was sending to my bank, but I just don't know.

[itstheone]

Don't forget if it ever goes to court they will need to show the 'proper' agreement, cant get away with a mock up there.

 

I think theres also cpr rules where they would have to disclose the proper one to you before you get to court.

 

Have a look on the agreement and hopefully there will be a reference to a T&C that isn't on the ones they supplied to you.

I posted on another thread that the CCA 74 is very explicit in what they need to send you and that includes 'any document referred to in it' (the agreement), if its referencing a term that isn't in the one they sent you then you need to tell them, quote the relevant part of the act and tell them until they supply it your in dispute.

[flooz]

Hoping for further advice from cerberusalert

[cerberusalert]

I'd be tempted to send them Scots letter below & see what their response is;

Re: my request under the Consumer Credit Act 1974

 

Thank you for your recent letter sent to me, the contents of which are noted. I appreciate your quick response to my original letter. 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.

 

My request remains outstanding. The items you sent in your reply, does not constitute a true copy of any credit agreement that may or may not have been signed by me on the opening of this account. It neither confirms that I am liable for any alleged debt to you, nor gives me any chance to evaluate whether any original agreement was ‘properly executed’.

 

I still require you to send me a true copy of the original credit agreement that you allege exists. 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 XX/XX/2008 to provide me with the true copy I requested. You are now in default of my request. Any account I hold with you is now in legal dispute. Whilst the account remains 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 agency.

 

To register information with a credit reference agency, you must have written consent from the customer 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

 

To sum up, I will not be making any further payments to you until you provide me with the document I have requested. Whilst you remain in default of my request, you are not permitted to take any action against this account. This includes adding further charges and passing any information to the credit reference agencies.

 

Should you not have any signed credit agreement in relation to this alleged debt, please confirm this in writing to me.

 

 

I look forward to your reply.

 

Yours faithfully

Print name do not sign

 

**amend to suit your circumstances.**

[flooz]

And now having just read an article in The Daily Mail, where a Judge has 'closed' the loophole on people claiming their loans/credit cards are not enforceable, I'm wondering if there is any point.

 

Sorry, posted this before I saw your response. What do you think?

Edited October 14, 2009 by flooz
cross posting

[cerberusalert]

See http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/225443-high-court-decision.html

[flooz]

See http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/225443-high-court-decision.html

 

Thank you again. I've seen various forums where 'some' deliberately try to put off genuine people from taking action (if you see what I mean) which was why I was hanging on for your advice.

 

I shall look into the case later on and see the info there.

 

Many thanks

[flooz]

There's a lot of info to trawl through.

 

Have I got this right. In plain English.

 

The without a correctly executed Credit Agreement, the debt is not enforceable. But it has been ruled that that the creditors do have a right to chase and report to necessary agencies?

 

As I see it, with a credit agreement, there's no proof that the debt exists. Mistakes DO happen, and without a CA, someone totally innocent could be chased for a non-existent debt? I can't believe any Court would allow a precedent to be set that would allow that. But then again, this is the UK.

 

Didn't I read somewhere about creditors not being able to take any action when an account is in dispute? If that's the case, then why can't debtors just dispute an account, and leave it that way....

 

Or, I may be talking complete twaddle.

[cerberusalert]

Have I got this right. In plain English.

 

The without a correctly executed Credit Agreement, the debt is not enforceable. But it has been ruled that that the creditors do have a right to chase and report to necessary agencies?

You've got it.

Didn't I read somewhere about creditors not being able to take any action when an account is in dispute? If that's the case, then why can't debtors just dispute an account, and leave it that way....

They cannot take enforcement, but then it goes back to what is determined as enforcement.

[flooz]

hmmm, The Court decided debt collection and such like, isn't part of the enforcement then?

 

So, it all comes down to whether I want my credit record trashed or not. Although I guess if I received an adverse report, I could always put a 'Notice of Correction' on it.

 

Decisions, decision.....

[dpick]

hmmm, The Court decided debt collection and such like, isn't part of the enforcement then?

 

So, it all comes down to whether I want my credit record trashed or not. Although I guess if I received an adverse report, I could always put a 'Notice of Correction' on it.

 

Decisions, decision.....

 

Hi when I checked all my agreements I had one fully enforceable credit agreement. This creditor (and all the others) treated me like **** and had already trashed my CRA file. I had tried to come to arrangements with all my creditors. Not one would try to help me, I then made my mind up to fight them. The creditor that had an enforceable agreement I told them I would pay them £50 a month to clear the debt they agreed and this debt was cleared in 2 years(still leaving 4 years of crap on CRA files) The others I told to get lost after trying to reach agreement to pay F&F settlement that would leave no record on CRA files.

 

My last default was entered Jan 2007 so will be cleared in 2013 The legit account clears in 2012 so when creditors were threatening to enter defaults I told the credit file already trashed please go ahead makes no difference they defaulted me then after about six months of threats of court etc have now not heard anything since August 2007.

 

good luck with this.

 

dpick

[flooz]

i've been thinking more. Still haven't done anything further with this because of my concerns.

 

I know there's a plethora of information on this site, but to be honest, there's so much to trawl through, it's difficult to find the answers needed sometimes.

 

I have a question: Would I be right in thinking that possibly the best route to go down would be to try and negotiate a 'full and final settlement'? i.e. I tell the financial institution that they can't enforce the debt in Court, but I would be willing to settle at a reduced amount. Am I right in thinking that that alleviates the possibility of having a previously impecable credit rating trashed?

 

If this is the case, is there a correct stance to take? Any guidelines? If it's a loan, do I take into consideration payments previously made? What about with a credit card?

 

Oops, sorry, that's more than one question!