if it is satisfied it doesn't come of your credit file though...if it is set aside you can remove it from your file(i think)

 

i hope this is right

 

please advise

yes correct

Hi,

 

apologies if I've missed this elsewhere (I have read one heck of a lot of this thread over the past two days, but..........)

 

What about this section in the Credit Act '74 that seems to override the Data Protection Act rights to process data in Sched 2 , #'s 2 -6

 

Restrictions

174.--(1) No information obtained under or by virtue of this Act about any individual shall be disclosed without his consent.

 

Or am I talking horse manure?

 

This section was removed by the enterprise act

Hi djweeble,

 

The house is in joint names so I will try to argue this point,thanks.

 

Just having a look at the interim order now and it says that the judgement did not provide for payment by instalments.

 

I have continued to pay my regular monthly payment through CCCS

regardless though

 

Thanks

 

Hope xx

If the house is in joint names and you are joint tennants if a final order was granted, the most they can do is get a "form k" restriction put on land registry against your benificial interest. Now I am not condoning anything inappropriate but at the end of the day but this does not guarantee the creditor his money. And a sale can go ahead not like a caution.

Does a deafualt notice have to take on a certain 'form'? ie does it have to contain certain material and information?

 

I gues what I'm trying to get at is if a bank sends you a letter saying we may default you if payment isn't made within the next xx days, would that count as a default notice?

See This Removal of Default Notices -Accurate Default Notices are vital

I have only quickly scanned through this thread but I have already been in contact with both the OFT and The DTI over the matter of whether or not SI 1983/1557 sec.3 applies to sec. 77/78 requests and their written reply states that sec. 3(2)(b) applies to both sec 77/78 requests and sec. 85

 

The official word from both departments is that signature boxes can be ommitted when responding to these sections.

 

As an agreement without these boxes doesnt prove it's been legitimately signed I personally think this anomally needs changing and as as result I have forwarded a lot of information to my MP who was so alarmed that he immediately tabled a written question to the secretary of state.

 

I am sure you will appreciate that these things take time (governments are not renowed for speed) but once I get an acceptable answer I'll be posting in the group.

 

Zoot is perfectly correct in what she has posted, according to the OFT and the DTI.

If you got this information from the DTI then it must be correct. I would therfore like to humbly apologise to Zootscoot on the signature issue, and for been so rude. Whilist it may comply with the regs I still contend that the DCA's will strugle in court to show the debt exists. I have received further info. The idea of section 77/78 was to identify the terms and conditions within the agreement. A signature is not needed for this. S77/78 is not about proving the debt.

Again humble groveling apologies to Zootscoot

Agreed- the request would have to be made as a Subject Access Request with the pre-requisite £10 fee enclosed. I have found out some useful information which I wasn't expecting to when sending SARs.

 

It begs the question really, if the DCAs are expected to abide by original agreements, why they hardly ever already have them on file even when the debt has been sold to them and continually have to approach the original creditor for the documentation.

Following on from this then the agreement would have to be sent with your signature as this would be classed as persoanl data. However Would there be an issue of whther the agreement was stored in a relevant manual filing system?

Now, this is the thing that I find the hardest to understand. From my understanding (which is very limited) If a credit agreement is not properly executed (signed by debtor and creditor) it is unenforceable.

 

So in the event of any court case, surely the creditor must first prove that any agreement was correctly executed and the only way this can be done is to provide a copy of a signed agreement as evidence.

 

I have found a couple of court cases were improperly executed agreements have been deemed unenforcable and the debtor has not been held liable for the debt. Here is the most famous case, that has DCA's worried.

 

House of Lords - Dimond (Original Appellant and Cross-Respondent) v. Lovell (Original Respondent and Cross-Appellant)

Well the court will want to see evidence that a properly executed agreement exists. (There is case law on this). There was an argument in the past to suggest that if you paid a debt to start with then you accepted that a debt exits(contract). The court have said (cant remember case but will try and find it) that its irrelevant of the existence of a debt but whether that debt if in a regulated agreement complies with the formalities of the act.

So in the end regardless of section 77/78 or the copy regs, if it goes to court a copy of the executed agreement would be requested.(signature and all to prove it is properly executed).

Anyone with expertise in the DPA assist with the following.

Can you make a section 7 DPA request with reference to your credit agreement. (Totally forget about the consumer credit act 1974).

I appreciate its a manual record and the requirements may therefore differ.

Anyone know?

Just to say that maybe it is not that clear cut. Today I have received 2 different answers from credit professionals both contradicting each other. Whilst in my own head I am happy satisfied that a signature is required. 1 person argued that it could be provided without a signature because the idea was to see if the form and content was correct and a signature didnt come into play, and the idea wasnt to prove that the debt exists.

The other spoke of the fact that a signature was required because although a contract may have been formed it was the essence to showing that there was a properly executed agreement and whilist this was not important in terms of section 62/63 it was of the essence in terms of 77/78.

Maybe its not that clear cut if 2 very distinct professionals have given different opinions.

This leads me to believe that I may have come accross arrogant to which I apologise.

No wonder everyone is so confused

What the Information Commissioners Office are saying is right, and wrong. The regulations they are quoting are applicable and they do say what the Information Commissioners Office say they say.

 

Where they're wrong in my opinion is in two areas

 

 

 

The CCA 1974 says:

 

 

 

What's the definition of copy:

 

 

 

What does Duplicate mean:

 

 

 

So there are double standards. The CCA S77/78 says the lender must provide a "copy". Copy is defined above.

 

The CNCD1983 regs say that a copy needn't be an exact copy but that certain items may be omitted, like the signature box. So then the document so provided with these omissions is not a copy. But even if it is to be considered a copy with the sig box removed (i.e. an adulterated copy) then surely it must still be a "copy" as defined above but with omissions, a general terms and conditions document is not even that - it is not a copy, not even an adulterated copy, it's a different document altogether and so cannot be acceptable under the CCA S77/78.

 

At worst it has to be an identical copy, in terms of words and layout but with the sig box "blanked out".

 

Now my head hurts and I'm going for a lie down

 

Pete

This is the full text from the regulation 3 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 and delivered or sent to a debtor, hirer or surety under any provision of the Act shall be a true copy thereof.

(2) There may be omitted from any such copy--

(a) any information included in an executed agreement, security instrument or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations thereunder as to the form and content of the document of which it is a copy;

(b) any signature box, signature or date of signature (other than, in the case of a copy of a cancellable executed agreement delivered to the debtor under section 63(1) of the Act, the date of the signature by the debtor of an agreement to which section 68(b) of the Act applies);

© in the case of any copy of an unexecuted agreement delivered or sent to the debtor or hirer under section 62 of the Act, the name and address of the debtor or hirer; and

[(d) in the case of any copy of an executed agreement given to the debtor under section 77(1) of the Act for fixed-sum credit, or under section 78(1) for running-account credit, under which a person takes any articles in pawn, any description of the article taken in pawn.]

Have a read of this http://www.consumeractiongroup.co.uk/forum/debt-bailiffs-advice/43666-debt-collection-agencies-credit.html and make your own mind up

OOps, it must have taken me 30 minutes to write that last post-what a lot

happened in between-and I missed it all.

I will be sorry to see you leave the forum if you decide to go. But that is for

you to decide. All I would say is that if Zootscoot has not stormed off, why

should you?

 

By the way, I do agree that a sgned original copy of the agreement is vital

as proof of ownership. What did surprise me was your contention that when

a dca buys a debt, they also inherit the original agreement and its terms.

This would answer one of Tberns' original queries in this thread. It would

follow on that dca's were entitled to register a default straight away if they

were so minded.

ooppps sorry I meant to say that I wont be writing on this post anymore (not on the board).

Sorry I couldnt help myself but I think that you may have misunderstood what I said. What I said was that following default of the account which is then passed onto a DCA then they are required to give a copy of an agreement.

Remember if the DCA buys the debt then the date of default is the original date and not the date that the DCA bought the debt

Please read towards the end of this http://www.experian.co.uk/downloads/compliance/dataprotection_guidanceondefaults.pdf

1. Bob Imerie will not give his opinion. If you are been turned off then Im sorry but this is an open forum and I dont believe my language was that strong. I have already stated my case, and i wont be writing on this board anymore.

2. Please fell free to seek clarification from the OFT that is what they are there for. Regardless of what the regs say or dont say and regardless of whether they are ambigous or not I will say that a signature is required. If it wasnt then any old creditor could make up anything they liked. I have given you my opinion and provided the evidence, now anyone else please feel free to either take up zootscoots advise or seek clarification from the OFT.

I wish all of you the very best.

As a very interested reader of this thread Stiffnuts, I for one am increasingly turned off by your pugnaciousness, arrogance and rudeness. I find it increasingly difficult to read the useful content of your posts because it is increasingly blanketed in bile.

You would help not only the members of this forum, but yourself as well, if you would just calm down a bit and engage in reasoned discussion rather than personalised rant.

Elsinore

What you have said is over the top and strong. Personalised maybe, but the rest I disagree with.

I have however amended my posts accordingly to remove the personal element.

 

 

Where is the word 'only'?

It does not need to say only it is quite obvious that the regulations are primarily talking about section 62/63. Im not going to continue this anymore. Like I say go away and check your facts, write to the OFT or get a proper legal opnion.

Like I say I have a qualification in consumer credit law was taught by Bob Imrie (google his name), and specialise in this area, whilist having sat on a number of groups.

 

Where?

errr yeah thats it, read the words

in the case of any copy of an executed agreement given to the debtor under section 77(1) of the Act for fixed-sum credit, or under section 78(1) for running-account.

page 25 supports my point have you read it. Under the box the first paragraph relates to 3(2)(b) and the second paragraph relates to (3)(2)©

DID YOU READ IT

So which provision exempts s.77/8 from Reg 3?

What do you mean what provision exempts s 77/78 from reg 3. Its not a matter of whether its exempt or not Reg 3 is quite clear in that the only thing that may be left out of an agreement given under section 77/78 is a description of pawn.

The main thrust of s.77/8 is that the debtor is provided with a statement of account and setting out how much remains to be paid. The inclusion of copy agreement is ancilliary to this and ensures that the debtor is aware of the terms in order to check the correctness of the statement. s.77/8 is not about proving the agreement.

 

 

 

My only motive is to ensure people on this forum are given the correct advice and do not run the risk of further defaults or CCJs.

 

 

 

I have a law degree and have lectured in law for 6 years including contract and consumer law.

 

 

 

What makes you think everybody else is wrong and you are right? You have still not stated any statutory provision which excludes s.77/8 from Regulation 3. The Reg 3 refers to a copy of any executed agreement under any section of the Act.

 

Reg 3(2)(b) only refers to copies under s.63 being excluded no where does is state s.77/8 is excluded. Reg 3(2)(d) provides for an additional ommission in relation to S.77/8 in the form of no requirement to refer to pawn. It does not state that this then exempts s.77/8 from Reg 3 (2)(b).

 

The piece on p.25 also does not support your interpretation of the Regulations

 

 

It states that a signature is required for first copies ie those given under s.63 ( the one given out within 7 days of making the agreement) which is specifically excluded from Reg 3(2)(b) whereas a second copy ie any copies following the first, do not require a signature.

Page 25 supports my point have you read it. Under the box the first paragraph relates to 3(2)(b) and the second paragraph relates to (3)(2)©.

Reference is made to section 77/78 in 3(2)(d) in square brackets shows that (b) and © do not apply read what it says.

Well that's just your opinion as you interpret it. Sorry- couldn't resist that

 

Yes but looking at page 25 in isolation does not spell out how it refers to the copy we are all talking about. I would actually read it as reinforcing the argument that a signed copy is not required but I accept what you say, that it is meant to refer to only the original documents.

 

I understand what you're saying but if it's so clear, as you say, why are we all arguing? There is always an element of interpretation in any legal document. The final say will always rest with a judge.

 

You, or perhaps not you, earlier in the thread made the point 'why do creditors supply a signed copy if it's not needed?' This is a good point but I myself am in possession of a letter from an assigned creditor who have stated:

'If we are unable to forward a copy of the original agreement, we will be able to supply a true copy of the document which will comply with section 78 of the Consumer Credit Act 1974'

 

That tells me that they don't believe that a signed copy is required, depending on what exactly they mean by 'true copy of the document'.

 

I really want you to be right and I instinctively feel you are but I also feel I need to test this more tightly, that is why I am appearing awkward.

Personal Comments removed

Yes, I read page 25, which is what brought me round to your way of thinking. I suppose I should read the whole lot together and try to get a clearer idea but I don't think I have the time or the peace to do so. Are there no published authorities on this which give opinions to back up your arguments?

 

It just concerns me that there is so much interpretation involved in this. It would be nice if there was an independent source we could refer to.

This is the thing its not opinion or interpretation. It is a matter of fact. The reason why I have shown you the OFT PDF file is that it is written for ordinary people. Page 25 is the best way of conveying this fact.

If you dont deal with the law then its very hard to get your head around (and please dont think Im being rude to you Im not).

The regulations are very prescriptive on this matter.

So what you're saying is that reg 3(2)(b) refers to is the original agreement and its carbon copies (for want of a better word)? The supply of a copy following a CCA request is a seperate issue?

 

That makes sense to me but where is this spelled out and what is to stop a court taking the other view?

More or less.

A court would never take another view because its not a matter of case law or opnion, its a matter of fact. The regs and its ammendments (when read in there entirety quite clearly state that the only thing that may be left out of a copy of an agreement given under section 77/78 is a description of pawn) I gave tinkerbelle a copy of the regs which should be placed in the library.

Did you read the OFT information pdf?

I sent an e-mail to Information Commissioners Office regarding the default on credit file etc, and in absence of agreement i feel they have no right to keep my default there.

 

Got this reply: (not exactly sure if this is correct?)

I understand from your correspondence that you have requested a copy of your credit agreement under the Consumer Credit Act 1974 (CCA) from a company called Cabot Financial and you have not yet received a response. The Information Commissioner's Office regulates and enforces the Data Protection Act 1998, amongst other legislation, and we have no involvement in regulating this aspect of the CCA. The CCA is regulated by the Office of Fair Trading. As such, the matter you have raised is not within our remit; however you may find the information below useful.

You explained in your letters that the above companies have not supplied you with a copy of your credit agreement. For your information Sections 77 and 78 of the CCA stipulate that the creditor, within 12 working days after receiving a request in writing from the debtor and payment of the appropriate fee, shall give the debtor a copy of the executed agreement. The Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 ("CNCD Regs") specify that every copy of an executed agreement, security instrument or other copy referred to in the CCA and delivered or sent to a debtor, hirer or surety under any provision of the Act shall be a true copy thereof. However, it is well established that a "true copy" is not an exact copy.

Regulations 3(2) of the CNCD Regulations permits the following to be omitted from any copy:

a) Information in the original which relates to the debtor, hirer or surety or is included for the use of the creditor or owner only and which is not required to be included in the original agreement by the Act or by any regulations as to form and content. Therefore it is not necessary for the copy to reproduce, for example, details of the business or occupation of the debtor, the name and address of the employer or bank details of his income etc.,

b) Any signature box, signature or date of signature.

Therefore there is no requirement for the company to send you a copy of the original agreement. They may simply send you a copy of the terms and conditions of the agreement. Further to this, sections 77 and 78 of the CCA do not apply once the agreement has ended; therefore a creditor does not have to supply you with a copy of the agreement if the credit has been repaid.

It may be helpful to explain that the failure of a creditor to produce a copy of the signed credit agreement is not, on its own, evidence that your debt does not exist and should therefore not appear on your credit file. If the credit grantor can supply some other evidence of the agreement and you have no evidence to contradict this then it is likely to be proper for the debt to continue to be recorded on your credit file.

You must make a very serious complaint about this. It is incorrect, and the IC office has no right whatsoever to make this comment. I would in fact sue them.

All I can say to all is please please please read page 25 of the above link half way down the page after the box and you will see what reg 3(2)(b) was refering to.

3(2)(b) relates to the first paragraph and 3(2)© relates to the second paragrapgh of the OFT guidance.

So is the Information Commissioners office wrong as well?

 

http://www.consumeractiongroup.co.uk/forum/debt-bailiffs-advice/46257-dca-looking-my-passport-2.html#post372596

 

Where does it state that s.77/8 is excluded from Regulation 3?

 

Reg 3 (1) refers to any copy of an executed agreement.

All you had to do was post and say look what the IC office said. But no because they have said what they have you think you know it all again.

The information commssioners office have got it wrong and since when do they deal with the consumer credit act and its ancillary regulations. I tell you what I do for a living and yet you still insist on bringing this up.

I dont care what the ICO or another TS department says, if they cant read the regs properly (a bit like you really) then thats not my business.

A SIGNATURE IS REQUIRED. If it wasnt the it would totally defeat the purpose of section 77/78.

And you say are they all wrong. Yes Just like you they are wrong

3(2)(b) refers to 62/63

please read page 25 of this

http://www.oft.gov.uk/NR/rdonlyres/CC4C7B5C-2152-4EC7-B850-C3B6E646869D/0/oft018.pdf

If the debt is from December 2000, wait a couple of weeks and it will be statued barred, I think it is under the limitations act 1980.

 

As for saying you will go to prison... That is a just a joke, and not a very funny one at that.

 

The OFT propberly won't do anything.....

I would be amazed if a DCA said that the OP would go to prison.

Yes a very good letter indeed just dont forget to include £10 for the data protection act request.