Steve, I cannot see how they can refuse your request - just because you no longer use the card - they are as you surmised trying to muddy the water and probably have no executed agreement to show you. Play hardball - insist that they either comply with your lawful requests or that they set your balance to zero. I did just that with one DCA and managed 3 letters later to get them to set £6k to zero - but under threat of £2,500 fine for each of three agreements they did not have. Watch your timeframe and remind them... Z

I couldn't agree more. I too am looking for clarification because I don't think it is correct - but it is on correctly headed OFT letters and states just that. I will be using it in a number of my letters as evidence, but being real about it - this would probably mean that EVERYBODY who requested a CCA response would suddenly find themselves with unenforceable agreements. We have discussed this at great lengths on all the main CCA threads and have concluded that under MOST circumstances a court can enforce an agreement, the one exception to this is of course if the debtor has not signed the agreement and that cannot be enforced even by a court. Incidentally, if you wish to see the original OFT letter, Perseus has posted it as an attachment here OFT notice re failure to provide CCA.doc Z

of course not, but the OP didn't understand and we all missed it. I have posted a suggested course of action. Z

I just posted on the thread. There are two ways to go - one is to appeal the other is the one I suggested - chase for the CCA document then when not produced request a set aside on a point of law. The latter seems more reasonable and less of an issue for the judge. Z

Hi It's a shame I missed all this but perhaps we can help a little. It is in your own interest to follow through the CCA request. MBNA are notoriously bad and I suspect that they cannot provide the agreement. I think that you had already started the request, so send a recorded followup letter to Link stating this from OFT: I am assuming that we are close to or have passed the 12 working day point. Allow say a further 10 working days - be generous. Then as the previous poster pointed out - on a point of law - you can apply for a set aside due to their failure to comply. If they wish to contest this, then insist under CPR 4.6 that they provide you with a true signed copy of your executed agreement. I strongly believe that despite your CAB and offers of payments you can still walk away from this: like you until I realized the power of the CCA I was making feeble payments - using CCA I hassled the DCA so the Creditor had to write off £6k on three agreements they had no copies of. Go for it.... Z

Hi Cristal, Like you Amex has decided that Newmans are not up to the job and have passed it onto an outfit called AIC to chase who have added their referral fee of £483.06 to the balance. I'm going to reply with my consulting charge of £4,785.07 when I get the letter out. I'm going to hack part of Persueus' post received from OFT: The general effects of sections 77-79 requires the creditor/owner (in the case of a hire agreement) under an agreement for (fixed-sum credit, running account credit and hire agreement) to provide the debtor/hirer with a copy of the executed agreement and a statement of account on request. If a creditor/owner fails to comply with a valid request within a period of 12 days (not including the date of receipt of the request) he may not enforce the agreement at all. This prevents enforcement with or without a court order. If a default lasts for a month (for example a calendar month) it constitutes an offence. We understand your concerns in this matter but please do remember however that once the creditor/owner complies with the request albeit out of time, he may once again enforce the agreement. A ‘true copy’ of an agreement principally consists of the terms and conditions of the agreement and the statutory content of the agreement. The name, address and signature of the debtor do not have to be provided. Additionally, the creditor must supply the total sum paid under the agreement by the debtor; the total sum which has become payable under the agreement but remains unpaid; and the total sum which is to become payable under the agreement by the debtor (the latter two must include the various amounts comprised in that total sum and the date when each is/was due). However, the copy must be a copy. It need not be exact on immaterial points, but it cannot be a conjectured reconstruction. If the trader has no original copy, the trader will have difficulty showing that he has complied with the regulation by supplying a ‘true copy’, since nobody would know what was in the original. When the trader comes to enforce the debt in court, he needs to have a signed copy of the agreement in order to enforce. As the law stands currently he cannot otherwise. Really to the effect that they were out of time, secondly that to enforce in court they need the signed copy which I have asked for and by their continuing non-compliance I must assume they do not have, so they do not have consent and are in default, by continuing to try to enforce the debt they commit an offence, by continuing sharing my data despite my warning they have contravened the Data Protection Act, so I will sue them. Also despite my request that they comply with CPR 4.6 they still fail to supply the signed agreement. I really don't understand how they can continue to harrass me. You should respond in a similar manner, Zx Footnote: found off Peter's post - response from a Government Minister to be referenced: DTI RT Hon Ian McCartney MP Minister for Trade Investment and Foreign Affairs James Purnell MP The Consttuency Office Hyde Town Hall Hyde SK14 1AL Dear James “Thank you for your letter of 7th December on behalf of your constituent Mr Peter Bardsley of---------------------” There follows some stuff about the section 77 requests not having to include a signature which is part of an ongoing dialogue we are having. And continues “Mr Bardsley describes a situation in which he was sent a copy of a company’s standard Terms and conditions when requesting a copy of a signed agreement form. Just sending the terms and conditions is a breach of the ACT and the Regulations as, apart from the information that the Regulations provide that you may exclude, the copy must be a true copy of the agreement. If Mr Bardsley feels the rules are being flouted he should report the companies concerned to Trading Standards and the Office of fair trading. It is also a breach of the Act and the Regulations to send the application form rather that a true copy of the agreement.” On the point that Mr Bardsley made on unscrupulous companies adjusting agreements……………………………………… ………………………………………………………………… …….. Ian McCartney

withdrawn, I missed the link....

Tom That is excellent - well spotted. I do believe that they have committed an offence - writing CCA financial business without a licence is a serious offence. Also, surely this agreement is not worth the paper its written on. I'm going to go through the Act to see about licenses. Z

Pam/Peter Look at these sums: (a) Cash price (inc vat) £26,829.65 (b) Less initial rental/deposit £4,300 © Balance of cash price/amount of credit £22,529.65 (d) Add Charges £4,588.44 (e) Administration fee payable with first Monthly Rental £95.00 (f) Purchase fee payable with Final Rental (inc vat) £25.00 (g) Total charge for credit (d)+(e)+(f) £4,708.44 (h) Balance of Amount Payable © + (g) £27,238.09 (i) Total Amount Payable (b)+(h) £31,538.09 APR 9.6% The balance shown at (h) above is payable by: 35 Monthly Rentals beginning 1 month after the start date of this agreement £454.62 followed by a final payment of £11,206.39 and the Purchase Fee of £25 payable 1 month later: Total £11,231.39 Now do the last 2 calculations - 35x £454.62=£15,911.70 add £11,231.39=£27,143.09 not £27,238.98 ie £95.89 difference. How significant is the error do we think? Does it become unexecuted because it is incorrect? Will it buy him time to get a job? Thanks Z

thanks Dave, Pam/BA/Pers/Peter Comments please... ... background to this is that he was an IT salesman, had a fit (not whilst driving) but we were worried as to what it was, so went to hospital. They diagnosed revealed nothing but had to report him to DVLC and his license was suspended for 12 months. He lost his job and has been out of work for over 15 months. His wife works and supports him and the two kids, he has been to umpteen interviews in last 3 months since recovering his license, but finances have been hit and he has grabbed credit wherever he can get it to survive. Classic way of tightening your own noose. They both want to do the 'right' thing so have tried to continue to pay a debt mountain - dont ask me how. They want to retain their (probably not great) credit rating. He is a proud man and only recently asked me for help. I have suggested writing and asking for 'holidays' from repayments so he can be more focused on getting a job. Some have agreed, most have declined. I have advised him that his options are either a dmp with CSSS or to follow my route. Truth is I would prefer he went down the dmp route, since our route is still very experimental. For both routes their credit rating will be hit. The car lease declined the holiday request. So, this leaves this agreement which I was hoping they would not be able to produce. If it is solid without holes then I am advising him to return the car - there is a termination statement (strange it says non-cancellable) but he would not have paid the 50% amount even though he has paid everything up until now with 8 months of the agreement left to completion (8x500=£4,000), and let them chase him for the difference. I am hoping we can find some holes in it to make it unexecuted.... but think it is wishful thinking Anyone with better advice? Thanks Z

Guys I need your help.... my son's deep in the brown stuff and I need your careful scan of his lease agreement to ensure all the prescribed terms are there... find me something to query... please http://www.knowledgecommunity.co.uk/cag/bmwlease1.jpg http://www.knowledgecommunity.co.uk/cag/bmwlease2.jpg thanks Z

Sorry for late reply Sue, I guess that would just about cover them all - we really need some good template letters for these.... also look at Perseus' post #324 http://www.consumeractiongroup.co.uk/forum/general-debt/82492-cca-agreements-mark-ii-17.html Z bump This snippett should be used and modified when you are getting the runaround and have not been supplied with an executed agreement or similar. Note the wording - intention to consider litigation - intention = you may change your mind consider litigation = I may take you to court OR I may be considering preparing for when you take me to court ____________________________________________________ It is also my intention to consider litigation in this matter and your attention is drawn in particular to CPR 4.6 © enclose copies of documents asked for by the claimant, or explain why they are not enclosed; I would therefore request, in compliance with CPR 4.6© a copy of the document that you will be relying on as proof that a properly executed agreement, complying in all respects with the form and content requirements of the CCA was signed by myself in respect of this alleged debt. I expect, in accordance with CPR, your prompt response to this formal request without further delay. ____________________________________________________________ Z From Ian1969uk (zubo for editing) Comprehensiver chasing letter if there has been no response to a CCA request. Dear Sir or Madam 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 fulfill 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. An unsigned credit agreement with my details simply printed onto it, like the one 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. A blank agreement 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 7th February 2007 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. You now have until 7th March 2007 to comply with my request. Should you fail to provide me with a true copy of a properly executed credit agreement by this date, you will have committed a criminal offence and your conduct will be reported to the Office of Fair Trading, the Financial Ombudsman and Trading Standards. Any investigation undertaken by them may affect your ability to offer credit in the future. 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 am sending a copy of this letter to Nationwide Debt Recovery Limited who are currently dealing with my account. I look forward to your reply. Yours faithfully ian1969uk

Good advice from Peter. I had exact same result after 3 short threatening letters from me and forced them to confirm £6k balance is now set to zero. Anyone reading this please note - do not let them just withdraw insist on a letter from them that they will NEVER pursue you for the unenforceable debt OR as I did that they have reduced the balance owed to zero. WHY? Because you have them reeling on the ropes and they might come back in 2-3 years time hassling you for the debt. Do it while you have the advantage... oh... and Tam advised me to leave it at that - I too was tempted to go for Consolidation, but £6k writeoff is a good result Z

yes I know Peter, but Tom said oh.... I get it... pre-case dismissed.... however the statement does read odd since THAT document is most definitely required. If I were defending this I would certainly seek a strike out before court since my defence relies entirely on this... which means there would be a strong case for the judge to do just that... Z

Tom My emphasis above: I may be missing the point here and taking you out of context - but - if a creditor is seeking to enforce a debt - how can the prime document - the Agreement be not required???? or are you talking about something else??? Z

Dave I guess TS seem to be prepared for Crap1 to try another DCA... and also your 6 year limitation runs out soon, so you should be home and dry... but... anyone else reading this - just be aware that whilst Dave has won, CONGRATULATIONS DAVE, Cap1 may decide to come back especially IF they finally find a fully reconstructed agreement (not that I'm suggesting for one moment that they would use fraud!!). When you have the advantage - use it - insist like I did that they reduce the balance to zero - NOT - we will leave it for now... unenforceable balance of £x000... (meaning we will be back). Z

... why is there always 1001 things to do when you come back from holiday, all by yesterday.. sorry MW I'm trying to clone myself and failing badly As I read it, they are awaiting their client's response. This imho is often used as a stalling tactic, so I would take the initiative say 7 days after their time runs out - ie 30 working days + 5 working days after you sent the initial request, and respond with the letter advising them of their options to meet your requests. Incidentally, apologies for not re-reading your posts but - I assume that you have followed my 'normal' strategy and sent them BOTH a SAR and a CCA request. You need the SAR in order to work out the interest and other unlawful charges. Z

Sorry for the delay - just back from hols. comments above, advice below: If they admit to no CCA, then I personally would go for the throat and ask them to either set the alleged debt to zero balance or you would seek Consolidation (refund of all their interest and other charges since the start of the alleged agreement), reverse all default entries and remove all details with CRA, since no consent given and your intention to sue them for providing the DCA with information and adversely affecting your credit rating. Z

Dave Sorry I'm so late posting - just back from a short break!! If they admit to no CCA, then I personally would go for the throat and ask them to either set the alleged debt to zero balance or you would seek Consolidation (refund of all their interest and other chartges since the start of the alleged agreement), reverse all default entries and remove all details with CRA, since no consent given and intention to sue for providing you with a poor credit rating. Don't walk away from it - use the advantage... Z

Sarah Removing a default: try this Remove Default Notices on a Credit File - We show you how Z

exactly right - use Pams last one z

its not my bum I'm worried about ...:-D:-D:-D

Pandora The situation in this thread was slightly different - having fast scanned it. The agreement had been terminated - so they got around it that way. Yours is different, so do not worry. I have my own strategy here which you are welcome to use: post #49 http://www.consumeractiongroup.co.uk/forum/general-debt/57839-newman-debt-collection-agents-3.html In brief - you should establish the enforceability or otherwise of your agreement with the CCA request, then seperately you need the SAR to calculate penalty and other unlawful charges. Also refer to http://www.consumeractiongroup.co.uk/forum/general-debt/82492-cca-agreements-mark-ii.html and we are building more CCA knowledge in the Workshop here http://www.consumeractiongroup.co.uk/forum/site-questions-suggestions/79147-consumer-credit-act-resources.html Hope that helps Z

There is confusion usually re a DCA. IF he has been assigned the debt then yes he is obliged to respond, if he is acting for his client then you could argue that he should send the request to the client. What I tend to do is CCA the original Creditor and copy the DCA. Its messy but better than nothing or the Creditor saying he never got the request.... z

Caro Just received Court date: July 19th. The judge has decided to ignore my draft order and also YBs request for 1 month stay. Ordered all bundles to be submitted 14 days before. Showtime.... the earlier I send the better do you think???? Z