Creditor failed to provide CCA now commencing collection

[albertini]

I'm just exchanging letters with a DCA (rather remain nameless at this stage) over an alleged debt.

 

Wrote to them in July with the CCA request and complained about the actions of their operatives.

 

Heard nothing then today i have received a letter asking for my information about my complaint and that if they do not receive it in 7 days they will recommence collection activites.

 

There is no mention of the CCA request which they have clearly failed to act upon.

 

Can someone please provide me with the details of the exact wording of the Consumer credit act that relates to the time scales they have to reply within and the penalties for not replying back to them within that frame.

 

Thanks in advance.

[pt2537]

Consumer Credit (Prescribed Periods for Giving Information) Regulations

1983 (SI 1983/1569)

2 Prescribed period

The period of 12 working days is hereby prescribed for the purposes of each provision of the Act specified in Column 1

of the Schedule to these Regulations relating to the duty indicated in Column 2 in relation to regulated agreements

 

 

 

SCHEDULE

SECTIONS OF THE ACT IN RESPECT OF WHICH A PERIOD OF 12 WORKING DAYS IS PRESCRIBED RELATING TO DUTIES IN

RELATION TO REGULATED AGREEMENTS

Regulation 2

Section of the

Act

Duty

(1) (2)

77(1) Duty to give information to debtor under fixed-sum credit agreement.

78(1) Duty to give information to debtor under running-account credit agreement.

79(1) Duty to give information to hirer under consumer hire agreement.

[pt2537]

thats where the 12 working days comes from

 

what else did you need?

[pt2537]

Heres section 77 Consumer Credit act which relates to fixed sum agreement

 

77.

Duty to give information to debtor under fixed-sum credit agreement.

— (1) The creditor under a regulated agreement for fixed-sum credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of [F1 £1], shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a)

the total sum paid under the agreement by the debtor;

 

(b)

the total sum which has become payable under the agreement by the debtor but remains unpaid, and the various amounts comprised in that total sum, with the date when each became due; and

 

©

the total sum which is to become payable under the agreement by the debtor, and the various amounts comprised in that total sum, with the date, or mode of determining the date, when each becomes due.

 

 

(2) If the creditor possesses insufficient information to enable him to ascertain the amounts and dates mentioned in subsection (1)©, he shall be taken to comply with that paragraph if his statement under subsection (1) gives the basis on which, under the regulated agreement, they would fall to be ascertained.

 

(3) Subsection (1) does not apply to—

(a)

an agreement under which no sum is, or will or may become, payable by the debtor, or

 

(b)

a request made less than one month after a previous request under that subsection relating to the same agreement was complied with.

 

 

(4) If the creditor under an agreement fails to comply with subsection (1)—

(a)

he is not entitled, while the default continues, to enforce the agreement; and

 

(b)

if the default continues for one month he commits an offence.

 

 

(5) This section does not apply to a non-commercial agreement.

[albertini]

Thanks for this.

 

Where in the act is the 30 day period after the 12 days, covered?

[albertini]

ah ok you posted it whislt i was posting.

 

Many thanks!

[pt2537]

and section 78 for running credit

 

 

78.

Duty to give information to debtor under running-account credit agreement.

— (1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of [F1 £1], shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a)

the state of the account, and

 

(b)

the amount, if any currently payable under the agreement by the debtor to the creditor, and

 

©

the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

 

 

(2) If the creditor possesses insufficient information to enable him to ascertain the amounts and dates mentioned in subsection (1)©, he shall be taken to comply with that paragraph if his statement under subsection (1) gives the basis on which, under the regulated agreement, they would fall to be ascertained.

 

(3) Subsection (1) does not apply to—

(a)

an agreement under which no sum is, or will or may become, payable by the debtor, or

 

(b)

a request made less than one month after a previous request under that subsection relating to the same agreement was complied with.

 

 

(4) Where running-account credit is provided under a regulated agreement, the creditor shall give the debtor statements in the prescribed form, and with the prescribed contents—

(a)

showing according to the information to which it is practicable for him to refer, the state of the account at regular intervals of not more than twelve months, and

 

(b)

where the agreement provides, in relation to specified periods, for the making of payments by the debtor, or the charging against him of interest or any other sum, showing according to the information to which it is practicable for him to refer the state of the account at the end of each of those periods during which there is any movement in the account.

 

 

(5) A statement under subsection (4) shall be given within the prescribed period after the end of the period to which the statement relates.

 

(6) If the creditor under an agreement fails to comply with subsection (1)—

(a)

he is not entitled, while the default continues, to enforce the agreement; and

 

(b)

if the default continues for one month he commits an offence.

 

 

(7) This section does not apply to a non-commercial agreement, and subsections (4) and (5) do not apply to a small agreement

[pt2537]

oh and heres the most important part

 

Section 127 which says if they dont have the agreement or its not in the required form they cant get a court to enforce it

 

127.

Enforcement orders in cases of infringement.

— (1) In the case of an application for an enforcement order under—

(a)

section 65(1)(improperly executed agreements), or

 

(b)

section 105(7)(a) or (b)(improperly executed security instruments), or

 

©

section 111(2)(failure to serve copy of notice on surety), or

 

(d)

section 124(1) or (2)(taking of negotiable instrument in contravention of section 123),

 

 

the court shall dismiss the application if, but (subject to subsections (3) and (4)) only if, it considers it just to do so having regard to—

 

(i) prejudice caused to any person by the contravention in question, and the degree of culpability for it; and

 

(ii) the powers conferred on the court by subsection (2) and sections 135 and 136.

 

(2) If it appears to the court just to do so, it may in an enforcement order reduce or discharge any sum payable by the debtor or hirer, or any surety, so as to compensate him for prejudice suffered as a result of the contravention in question.

 

(3) 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).

 

(4) The court shall not make an enforcement order under section 65(1) in the case of a cancellable agreement if—

(a)

a provision of section 62 or 63 was not complied with, and the creditor or owner did not give a copy of the executed agreement, and of any other document referred to in it, to the debtor or hirer before the commencement of the proceedings in which the order is sought, or

 

(b)

section 64(1) was not complied with.

 

 

(5) Where an enforcement order is made in a case to which subsection (3) applies, the order may direct that the regulated agreement is to have effect as if it did not include a term omitted from the document signed by the debtor or hirer.

[pt2537]

you can view the 1974 CCA here

 

Results within legislation - Statute Law Database

[Curlyben]

Here's a letter to fire off to them:

 

Account In Dispute

Dear Sir/Madam,

 

I refer to my letter dated {enter date} which was delivered via Recorded Delivery to your offices on {enter delivery date}. I enclose a copy for your perusal and ease of reference.

 

You have failed to acknowledge this request in any way, whether by confirmation of receipt of the letter or by supplying the requested documents. The documents I requested should be readily available as proof of your legal right to collect this account.

 

In my letter of the {enter date} I made a formal request for a copy of the signed, executed credit agreement for the above account under Section 77(1) and Section 78(1) of the Consumer Credit Act 1974 and a true signed copy of the Deed of Assignment. In addition a full statement of my account should have been sent to me detailing all debits and credits to the account from the time {debt agency name} purchased this account, along with any other documents mentioned in the credit agreement.

 

You are reminded that you are obliged to supply these documents, whether you are the original creditor or not, as defined under Section 189 of the CCA 1974.

 

The Consumer Credit Act allows 12 working days for this request to be carried out before your company enter into a default situation. If the request is not satisfied after a further 30 calendar days, your company commit an offence. These time limits expired on {enter date} and {enter date} respectively.

 

As you are no doubt aware, Section 78(6) states:

 

If the creditor under an agreement fails to comply with subsection (1) -

 

(a) He is not entitled, while the default continues, to enforce the agreement; and

(b) If the default continues for one month he commits an offence.

 

Therefore on {enter offence date} this account became unenforceable at law and no further payment will be made by myself to the account, as you have failed to comply with a request for a true signed copy of the said agreement, and other relevant documents mentioned in it, and failed to send a full statement of the account and failed to provide a true copy of the Deed of Assignment, under the relevant sections of the Consumer Credit Act 1974. Further, I do not acknowledge any debt to {debt agency name}.

 

I require the following action from {debt agency name} :

 

1. All payments made to date to {debt agency name} for this account should be refunded in full, including interest at the rate of 8% per annum.

 

2. Removal of all defaults entered by {debt agency name}. Note this is to be a complete deletion and not merely an amendment.

 

3. I look forward to compensation under Section 13 of the Data Protection Act 1998 to be offered for the processing of my data in the manner it has been done over the past number of years.

 

4. After a full refund of all payments with interest and compensation are received by myself, you will be required under Section 10 and Section 12 of the Data Protection Act 1998 to cease and desist all manual and automatic processing of my data within your company and any other company within your group.

 

If you do not respond positively to my request, court action may be taken under Section 14 of the Data Protection Act 1998 to force {debt agency name} or any other company within the group to comply with the refund of all monies paid, removal of all defaults maintained and compensation for damage and distress as a result of unlawful data processing. I may also pass the matter to the relevant enforcement authorities including, but not limited to, the Financial Crime Branch of HM Treasury, the OFT, the Information Commissioners Office, Trading Standards, the CSA, the FOS and my local MP.

 

I look forward to your reply within 14 days to resolve the matter amicably.

 

I would appreciate your due diligence in this matter.

 

I await your rapid response.

 

Yours faithfully

[pt2537]

The bottom line is no cca no enforcable debt

 

Plain and simple.

 

good luck and let us know if you need any more help

 

Regards

paul

[albertini]

Wow!!

 

Many thanks guys, excelent ninfo as usual! Will advise as this one progresses.

[albertini]

Whilst we're on a roll guys can you advise what penalties can be levied against them for failing to comply ( i know an offence is commited but what does it mean in practice and what sanctions do they face) with the CCA request within the 12 + 30 time limits?

 

I'd love to tell them the consequences of their inaction!

[hsbcfiddled]

wrong post sorry

[pt2537]

that never came out right.....

 

 

goto this page Consumer Credit Act 1974 (c. 39) - Statute Law Database

 

it will tell you what tthe penalties for breach of each section is in a table format

[hsbcfiddled]

not again

[hsbcfiddled]

oh my god

[hsbcfiddled]

Hopefully posted in the correct position this time.

I like this very much.

 

just one question though re;

 

1. All payments made to date to any company for this account should be refunded in full, including interest at the rate of 8% per annum.

 

Why not try for compounded interest at the same Apr rate that has been applied to you?

 

Then if you go to court you could always put in an option of either, Apr rate or 8% per annum at the courts discretion.

 

And if you dont go to court its still a bargaining tool.

 

What have you got to lose?

 

hsbcfiddled

[hsbcfiddled]

Right this is the proposed letter going out by fax to them this afternoon. Any comments welcomed:

 

 

 

With thanks to PT and CB for their help on this one, i will keep you advised.

 

Any comments welcomed on the letter before i send it.

 

last attempt to post;time 12.48 1st Nov

 

Hopefully posted in the correct position this time.

 

I like this very much.

 

just one question though re;

 

1. All payments made to date to any company for this account should be refunded in full, including interest at the rate of 8% per annum.

 

Why not try for compounded interest at the same Apr rate that has been applied to you?

 

Then if you go to court you could always put in an option of either, Apr rate or 8% per annum at the courts discretion.

 

And if you dont go to court its still a bargaining tool.

 

What have you got to lose?

 

hsbcfiddled

Could a moderater please have a look at the order of these postings please? and remove duplicates

[albertini]

posted 12.50 1st Nov

 

Thanks for the reply HSBC fiddled, i think the forum software is malfunctioning!

 

I did think about adding this but took it out because no payments have been made to this DCA.

 

I can always add it to the next letter i send after i get their reply!

[albertini]

Anyone know what [F1 level 4 on the standard scale] means?

 

I cant seem to find it on that link.

 

Thanbsk for the help anyway.

[Curlyben]

United Kingdom

 

Level on the scale Amount of fine

1 £200

2 £500

3 £1,000

4 £2,500

5 £5,000

[hsbcfiddled]

Sorry to hijack your thread- But what offence is committed if the agreement has not been produced and the creditor continues to attempt to take monies from the your account.

[pt2537]

There would be an arguement in my opinion thatthey are commiting an act of theft contrary to the Theft Act 1968

 

Basic definition of theft.

— (1) A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and “thief” and “steal” shall be construed accordingly.

 

(2) It is immaterial whether the appropriation is made with a view to gain, or is made for the thief’s own benefit.

 

(3) The five following sections of this Act shall have effect as regards the interpretation and operation of this section (and, except as otherwise provided by this Act, shall apply only for purposes of this section).

Annotations:

Modifications etc. (not altering text)

C1

S. 1(1) applied (25.8.2000) by 2000 c. 6, ss. 148(8), 168

 

2. “Dishonestly”

— (1) A person’s appropriation of property belonging to another is not to be regarded as dishonest— (a)

if he appropriates the property in the belief that he has in law the right to deprive the other of it, on behalf of himself or of a third person; or

 

(b)

if he appropriates the property in the belief that he would have the other’s consent if the other knew of the appropriation and the circumstances of it; or

 

©

(except where the property came to him as trustee or personal representative) if he appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps.

 

 

(2) A person’s appropriation of property belonging to another may be dishonest notwithstanding that he is willing to pay for the property.

3. “Appropriates”.

— (1) Any assumption by a person of the rights of an owner amounts to an appropriation, and this includes, where he has come by the property (innocently or not) without stealing it, any later assumption of a right to it by keeping or dealing with it as owner.

(2) Where property or a right or interest in property is or purports to be transferred for value to a person acting in good faith, no later assumption by him of rights which he believed himself to be acquiring shall, by reason of any defect in the transferor’s title, amount to theft of the property.

4. “Property”.

— (1) “Property” includes money and all other property, real or personal, including things in action and other intangible property.

(2) A person cannot steal land, or things forming part of land and severed from it by him or by his directions, except in the following cases, that it to say— (a)

when he is a trustee or personal representative, or is authorised by power of attorney, or as liquidator of a company, or otherwise, to sell or dispose of land belonging to another, and he appropriates the land or anything forming part of it by dealing with it in breach of the confidence reposed in him; or

 

(b)

when he is not in possession of the land and appropriates anything forming part of the land by severing it or causing it to be severed, or after it has been severed; or

 

©

when, being in possession of the land under a tenancy, he appropriates the whole or part of any fixture or structure let to be used with the land.

 

 

For purposes of this subsection “land” does not include incorporeal hereditaments; “tenancy” means a tenancy for years or any less period and includes an agreement for such a tenancy, but a person who after the end of a tenancy remains in possession as staututory tenant or otherwise is to be treated as having possession under the tenancy, and “let” shall be construed accordingly.

(3) A person who picks mushrooms growing wild on any land, or who picks flowers, fruit or foliage from a plant growing wild on any land, does not (although not in possession of the land) steal what he picks, unless he does it for reward or for sale or other commercial purpose.

For purposes of this subsection “mushroom” includes any fungus, and “plant” includes any shrub or tree.

(4) Wild creatures, tamed or untamed, shall be regarded as property; but a person cannot steal a wild creature not tamed nor ordinarily kept in captivity, or the carcase of any such creature, unless either it has been reduced into possession by or on behalf of another person and possession of it has not since been lost or abandoned, or another person is in course of reducing it into possession.

5. “Belonging to another”.

— (1) Property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest (not being an equitable interest arising only from an agreement to transfer or grant an interest).

(2) Where property is subject to a trust, the persons to whom it belongs shall be regarded as including any person having a right to enforce the trust, and an intention to defeat the trust shall be regarded accordingly as an intention to deprive of the property any person having that right.

(3) Where a person receives property from or on account of another, and is under an obligation to the other to retain and deal with that property or its proceeds in a particular way, the property or proceeds shall be regarded (as against him) as belonging to the other.

(4) Where a person gets property by another’s mistake, and is under an obligation to make restoration (in whole or in part) of the property or its proceeds or of the value thereof, then to the extent of that obligation the property or proceeds shall be regarded (as against him) as belonging to the person entitled to restoration, and an intention not to make restoration shall be regarded accordingly as an intention to deprive that person of the property or proceeds.

(5) Property of a corporation sole shall be regarded as belonging to the corporation notwithstanding a vacancy in the corporation.

6. “With the intention of permanently depriving the other of it”.

— (1) A person appropriating property belonging to another without meaning the other permanently to lose the thing itself is nevertheless to be regarded as having the intention of permanently depriving the other of it if his intention is to treat the thing as his own to dispose of regardless of the other’s rights; and a borrowing or lending of it may amount to so treating it if, but only if, the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal.

(2) Without prejudice to the generality of subsection (1) above, where a person, having possession or control (lawfully or not) of property belonging to another, parts with the property under a condition as to its return which he may not be able to perform, this (if done for purposes of his own and without the other’s authority) amounts to treating the property as his own to dispose of regardless of the other’s rights.

[pt2537]

however in reality it would bee difficult to obtain a prosecution under hte above act . in reallity it would be better to make a complaint to Trading Standards and let them take action for breaches of the CCA 1974