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Not legally obliged to supply CCA


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Its all coming in this month...

 

OH has a debt with Diners Club, it was 3300 approx in December and he was paying £100 a month

 

they added £60 interest and charges a month

 

 

so then after he supplied a SOA and offered £20 a month as the 100 was difficult to keep up. They refused.

 

 

The next thing was two strange letters from ARC that didnt really say anything, one just said call us re this.

 

So anyway we now get a supposed solicitors letter acting on behalf of Diners and ARC, stating Court action, fair enough but the debt has now in 1 month gone up £700

 

Ive just drafted a letter asking for an explanation and charges in writing as to why this is the case, any experiences or ideas as to why this amount has been added?

 

Or any other help appreciated.

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  • 5 weeks later...

Well thats the letter we got from ARC today, they also took the £1! and piad it in,

 

They wrote an apparent extract from the contract which they say allows them to add the now £617.00 now

 

they refuse to supply us with statements (as the last statement we had from diners club was not what these people are saying it is)

 

They are over the 12 day plus 2 day period now

 

the extract they said this applies to is this ' Diners Club may give you notice and demand immediate repayment of all outstanding amounts due together with service charges and reimbursment of collection and legal costs'

 

They said they are not legally obliged to provide an agreement except in court which they will do in necessary.

 

I had a SAR ready to go today, carry on and send that?

 

They also tried to say that the £1 we sent was a payment offer, it wasnt! we made a seperate payment offer as we do not dispute the dubt but we do dispute the amount of charges added by them.

 

Any help appreciated?

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give them the 12+2 working days to be in default,then another 30 calendar days to commit the criminal offence of not supplying what you are legally entitled to

 

then begin telling them the situation and let them get really steamed up,plus of course informing the relevant bodies..... ;)

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I was under the impression that Diners Club cards are not governed as such by the CCA as they are 'debit' cards....(similar to Amex) What they did say is right in respect of the original agreement BUT they have to provide you with a legible copy !!, they MUST supply your agreement within 12+2 working days or they are in default of your request....

 

It states clearly here...

 

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.

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

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  • 2 weeks later...

ARC are really starting to get up my nose.

 

They refused the CCA, and now SAR went out and they've come back with a letter stating they refuse to supply it as the request wasnt signed and they want a signed copy of a passport or drivers licence

 

Now I dont trust them one little bit.

 

Sorry I know there have been threads on unsigned SAR requests, but a search didn't return anything.

 

thanks for in advance.

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Well you can write back to them stating that they are quite happy to send things like demands and statements to your address so they must be certain of your identity. there is a letter that you can send them, but I cannot find it at the moment. Will check back later with it

Lula

 

Lula v Abbey - Settled

Lula v Abbey (2) - Settled

Lula v Abbey (3) - Stayed

 

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send them this letter, but if you want an SAR that goes to the original company, the CCA goes to the DCA

 

Dear Sirs,

 

RE Account NO XXXXXXXX

 

Thank you for your letter dated xx/xx/2007 the contents of which are noted

 

In your letter you make reference to requiring my signed authorisation before you comply. I draw your attention to the fact that the Consumer Credit Act 1974 does not require that i supply you a copy of my signature before you comply with my S78 request.

 

If it is for Data Protection purposes then i can happily supply you with documentation to substantiate my identity to you.

 

However please note that to date you have happily sent statements and correspondence containing extensive sensitive private information to my address. I have to ask if you are concerned that you are corresponding with the correct person why has it taken so long to raise this?

 

As you are aware, disclosing data without adequate checks of identity is contrary to the 7th principal of data protection, listed in schedule 1 of the Data protection Act 1998:

 

7. Appropriate technical and organisational measures shall be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data.

 

My request for a true copy of my credit agreement under section 77/78 was made on xx/xx/2007 and the 12 working days for your compliance expire on xx/xx/2007. I note that there is no provision that removes the requirements of the act to provide this information on time, even if you are unsure of my identity.

 

i look forward to receiving the documentation requested

 

Regards

  • Haha 1

Lula

 

Lula v Abbey - Settled

Lula v Abbey (2) - Settled

Lula v Abbey (3) - Stayed

 

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The Data Protection Act states that:

 

A data controller is not obliged to supply any information under subsection (1) unless he has received—

(a) a request in writing, and

(b) except in prescribed cases, such fee (not exceeding the prescribed maximum) as he may require.

(3) A data controller is not obliged to comply with a request under this section unless he is supplied with such information as he may reasonably require in order to satisfy himself as to the identity of the person making the request and to locate the information which that person seeks.

 

So, Lula's argument above seems to me perfectly valid - the OFT Guidance requires DCAs to take steps to ensure that they are not pursuing the wrong person, so they must alread be satisfied as to your identity.

 

In any case, no-one is obliged to have a either a passport or a driving licence. Furthermore, both of these items are regularly used for identity theft, and it would be foolish to trust such valuable documents either to the post or to a company whose integrity is unknown or doubtful.

 

Just to be certain, why not ring the Information Commissioner's Office (08456 30 60 60) and ask what constitutes a 'reasonable effort' by a Data Controller to establish identity, especially given the circumstances - that ARC have already been communicating sensitive personal financial information over a period of time.

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Basically diners club wont converse, ARC took this debt on thier behalf they havnt bought it, they have added nearly £1000 worth of charges and refuse to state why or how this is broken down.

 

They wont send any information and are very awkward, the only way (I was advised on CAG ) was to get a S.A.R - (Subject Access Request) to make sure we could get all this information

 

They have stated in the letter they can provide it , I'm confused now hope we havent wasted £10

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You need to send the SAR to Diners Club with a £10 postal order, by law they have 40 days to comply. an important point though, is this a charge card or a credit card, because a CCA is pretty pointless for a charge card

Lula

 

Lula v Abbey - Settled

Lula v Abbey (2) - Settled

Lula v Abbey (3) - Stayed

 

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Your tenner would be better spent SARing Diners Club. Because most DCAs work on a cycle of template letters and by phone, all you are likely to get is a list of dates of letters and calls.

 

I can see no reason why you shouldn't write to ARC and simply say that you consider their request for a passport or driving licence unreasonable, and have therefore decided not to pursue the SAR. As they have not yet complied, they should now refund the fee.

 

Then hit Diners with your SAR.

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OK t hanks, I cant afford to send diners one, wasted the £10 on ARC now it seems.

 

Sorry I am wrong ARC have bought the debt, diners we are happy with , we had statements etc up to December

 

Its the DCA who put on 1000 of charges, refuse to tell us why and what these are, refuse a payment plan, refuse to give us any information on the debt.

 

Really not sure what to do with them now,

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The OFT Guidance on debt collection is very specific about charges for debt collection; very few are legitimate or enforceable. Some DCAs seem to use them as a bargaining tool - 'if you make a payment, I'll reduce the charges' - obviously attractive for them since they aren't owed anyway. The key to this is the terms and conditions attached to the card.

 

Alternatively, some assignments allow the buyer to continue to charge interest.

 

Have Diners Club sent you a letter of assignment, telling you that they have sold the debt? This is a legal requirement.

 

The OFT Guidance considers that failing to provide information on a debt an unfair pratctice. ARC seem to be ignoring their obligations - I suspect that it's formal complaint time - I can feel a letter coming on. If you'd like something drafting, just say.

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Yes please if you could help with a letter of complaint that would be great.

 

Will ask the DCA for the money back or tell thm to put it towards the debt maybe?

 

OH says diners informed him over the phone he did not get a letter of assignment

 

When we sent the CCA last they wrote back saying they did not need to provide this and copied an apparent excert from the terms, which read'

 

diners club may give you notice and demand immediate repayment of all outstanding amounts due together with service charges and reimbursement of collection and legal costs'

 

thats all they sent they also state they refuse our SOA unless its come from CCCS or some such, they wont deal with OH as they keep advising him to go IVA route.

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Let's start with an attempt to get some information:

 

 

Dear Sirs

 

Re: Diners Club a/c no. xxxx

 

I do not acknowledge any debt to you or any company you claim to represent. All further communication in this matter must be in writing.

 

To date you have refused to comply with my reasonable requests for information regarding the debt you allege I owe in relation to the above account. Take notice that I dispute the debt because you have failed to substantiate the amount or prove my liability to yourselves.

 

You will be aware that as holders of a consumer credit licence you are obliged to comply with the Office of Fair Trading Guidance on Debt Collection. It should not be necessary to remind you that ignoring or disregarding claims that a debt is disputed is considered to be an unfair practice, as is failing to provide details when a debt is queried or disputed. Additionally, you are required to suspend collection activity whilst a debt is disputed. I require you to provide me with a statement of account, together with evidence that the debt is owed to yourselves, such as a copy of the deed of assignment. Please confirm whether any assignment is simple or absolute.

 

The OFT Guidance also provides that collection charges can only be added where there is express contractual provision; where this is the case the amount of such charges must be shown in the agreement. In addition, charges must be based upon actual and necessary costs. It is my view that the charges you have added do not meet these criteria and are thus spurious and unenforceable. If you disagree, I require you to provide me with a copy of the agreement, highlighting the express provision for such charges; the indication of the amount of such charges, and a detailed breakdown of how they are based on actual and necessary costs.

 

On (date) I sent a Subject Access Request to you pursuant to s.7 of the Data Protection Act 1998. To date you have failed to comply. You have asked me to send you my passport or driving licence so that you can verify my identity and signature. You must already have satisfied yourselves as to my identity, since disclosing debt details to an individual when it is uncertain that they are the debtor in question is contrary to the OFT Guidance, and would also be a breach of the Data Protection Act 1998. Additionally, I am not prepared to submit such valuable documents to a company whose integrity, in light of your previous breaches of the OFT Guidance, has been called into question. Option 1 - if you still want the SAR: I therefore require you to comply with my s.7 request; if you fail to do so I will make a formal complaint to the Information Commissioner. Option 2 - if you don't want the SAR: In light of your unreasonable request, I have decided not to pursue the s.7 request, and require you to return the fee without delay.

If you do not understand the content of this letter, you should seek professional advice. I look forward to your reply.

 

If they ignore this, or don't send a satisfactory answer, you will have grounds for various complaints.

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In the circumstances, you may like to leave out the non-acknowledgement. However, from what you've said ARC have not proved that they are legally entitled to collect, and DC have not properly informed you of the assignment.

 

On the subject of statements of earnings, my view (and I stress that it's just my view), is that this is not information to which a DCA is entitled. In fact, they will often use it as a method to try to force you to pay more than you can afford. I much prefer to keep it simple - "I can afford to pay £x per month. Please confirm that this is aceptable." SOEs, like income and expenditure sheets, provide the DCA with far more information than they need in order to assess whether or not they will accept a payment. They always have the option of going to court, but usually this is the last thing they want, because courts will only order payments that the debtor can afford.

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  • 3 weeks later...

Update:

 

Sent the above letter, OH got several rude phone calls, the £!0 has not been returned and nothing heard.

Any advice on where to go next, I have drafted a letter reiterating his payment offer of £10 a month.

They have had a SOA, and I cant think of anything else.

 

OH does not want to aknowledge the extra cost they have added but will have to just sit and ignore this for now I suspect.

 

Any help appreciated.

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And if you can't record them, I would just tell them that the calls being recorded anyway and that all future calls will be recorded too. They seem to quickly lose all interest in speaking to you.

HAVE YOU BEEN TREATED UNFAIRLY BY CREDITORS OR DCA's?

 

BEWARE OF CLAIMS MANAGEMENT COMPANIES OFFERING TO WRITE OFF YOUR DEBTS.

 

 

Please note opinions given by rory32 are offered informally as a lay-person in good faith based on personal experience. For legal advice, you must always consult a registered and insured lawyer.

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Now you can send them a formal complaint about their various breaches of the OFT Guidance:

 

Dear Curs

 

COMPLAINT

 

I refer to my letter dated xxxx, and am disappointed but not surprised to note that you have not had the courtesy to reply.

 

This letter is a formal complaint about ARC's breaches of the Office of Fair Trading Guidance on Debt Collection, by which, as holders of a consumer credit licence, you are bound.

 

1. In my letter of xxxx I stated that all communication in this matter must be in writing. You have ignored this, and your ill-mannered and unprofessional staff have continued to telephone. The OFT Guidance considers that failing to respect a debtor's wishes in respect of when and where to make contact is an unfair practice. For the avoidance of doubt, I do not wish to speak to you at any time or in any location by telephone.

 

2. The OFT Guidance states that failing to provide information on the status of debts when reasonably requested is an unfair practice. In my letter of xxxx I asked you both for a statement of account and an explanation of the additional charges you have added. You have failed to provide either.

 

3. You are required to suspend collection activity whilst a debt is disputed, and have failed to do so.

 

This letter is also a complain about your failure to comply with on the Subject Access Request pursuant to s.7 of the Data Protection Act 1998 I submitted on xxxxx. You have attempted to delay by asking for verification of identity; however, as explained in my earlier letter, you must already have been satisfied as to my identity, or your pursuit of me over the alleged debt would be a breach of the OFT Guidance.

 

I now require you to provide me with a copy of your complaint procedure, as required by the Consumer Credit Act 2006, together with your detailed proposals for resolving my complaints. If you fail too respond, I will take my complaint directly to the Financial Ombudsman Service.

 

They may ignore this one too, but if it ever goes further you will have evidence that you have done as much as possible to get them to be reasonable.

 

And do stop speaking to them on the phone - don't answer their security questions, or use one of the techniques in my sticky thread to reiterate that you want everything in writing. I also echo Rory's suggestion of telling them that the converssation is being recorded.

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