I saw the following letter on another forum. Do you think I should send it to BC ?
Account No: xyz
On XX/XX/XXXX I wrote requesting that you supply me a true copy of the executed credit agreement for the above account. In response to this request, I was supplied a set of Terms & Conditions. As the Terms & Conditions did not comply with my CCA Request, this account is unenforceable and will remain so until you comply properly with my formal request.
I appreciate that as per Carey v HSBC, a reconstituted agreement can be provided, however, that doesn’t mean sending generic random terms. I am disputing the actual existence of an original agreement, which means the Carey case is irrelevant as without one the account would still be deemed unenforceable. Carey only went to prove that if you could not provide an original, for whatever reason, but had proof on your systems/records that certain conditions were in place at that time then a recon could be submitted only in-so-far as to satisfy your s.78 request. If you do not have an original then a recon cannot be produced; whereas sending Terms completely fails in its entirety.
Similarly, the recent McGuffick and Carey cases confirmed that a lender should submit upon request a valid true copy of the original CCA and also went on to suggest that both the creditor and debtors name and address are clearly displayed - the Judge dealt with this point at paragraph 60 of his judgement when he said this:
"As a matter of common sense It is difficult to see how a copy of a document can omit the names of the parties. It might he thought that the address of the debtor, however, was immaterial, at least to the debtor, who can be assumed to know what it was at the time, if different from his present address. However, as noted above any application of the concept of materiality must not override the requirements of section 78 and the Copies Regulations properly understood. In my view it is clear that the name and address must be provided"
In MBNA v McCullagh; the Judge ruled;
"The terms and conditions are plainly not a copy of those on the original agreement. There may only be one difference identified (it is difficult to tell from the illegible copy of the original) but that is enough. The obligation is to provide "a copy of the executed agreement". This plainly cannot be a copy of the original agreement. It is not open to the claimant to say that the difference is 'de minimis'. They have to provide a copy of the original (reconstituted or otherwise)"
The OFT Guidance states that lenders would be acting unfairly, and potentially in breach of their consumer credit licenses, if they misled borrowers by:
hiding or disguising the fact that there was never a proper signed agreement in the first place
providing only a copy of the current terms and conditions, not the original ones
Similarly, in line with recent OFT Guidance surrounding Unenforceability, I presume you're aware that the OFT has stipulated the following;
Sections 77-79 of the Consumer Credit Act 1974 outline the information creditors must provide to debtors under fixed-term, running account & Hire Agreements. Under these sections a debtor can pay £1 to get:
a copy of their agreement
copies of some of the other documents mentioned in their agreement
a statement of account
If this information is not provided within 12 working days the debt becomes unenforceable. This means a creditor cannot:
make the debtor pay the debt before they're supposed to
get a court judgment against the debtor
As this account is clearly unenforceable, I expect you to confirm that no further action will be taken.