Citi Refusing to send copyof CCA

[car2403]

I may have confused you

 

The 2006 Act contains various remedies not available to agreements that are regulated by the 1974 Act. One such remedy is to not allow the creditor to add interest or default charges where they have failed to provide statements that are required under s.6 CCA 2006, (which inserts s.77A in to the 1974 Act) for example, as follows;

 

s.6(6); (which is s.77A(6))

 

Where this subsection applies in relation to a failure to give a statement under this section to the debtor—

(a) the creditor shall not be entitled to enforce the agreement during the period of non-compliance;

(b) the debtor shall have no liability to pay any sum of interest to the extent calculated by reference to the period of non-compliance or to any part of it; and

© the debtor shall have no liability to pay any default sum which (apart from this paragraph)—

(i) would have become payable during the period of non-compliance; or

(ii) would have become payable after the end of that period in connection with a breach of the agreement which occurs during that period (whether or not the breach continues after the end of that period).

 

The point I was making in your case is that, where they can't provide an agreement, they can't prove you've agreed to any interest or default charges been applied to the account.

 

In fact, check this out;

 

Quite right, to suggest anything else would go against Wilson & FCT,Wilson & Hurstanger,Dimond & Lovell and London North Securities & Meadows. as all these cases set out rather clear that the credit agreement is needed to determine the parties rights under the agreement

 

i also found this little gem in Sir Andrew Morrits Judgment in the Court of Appeal in the Wilson & FCT case, i note that the House of Lords have not disturbed this part of his judgment since the HoL only looked at the issue of S127 being compatible with the Human Rights Act

 

“In effect, the creditor--by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms--must (in the light of the provisions in ss 65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift,of the loan moneys to the debtor. The creditor had chosen to part with the moneys in circumstances in which it was never entitled to have them repaid;”

 

Apologies if I've confused you...

[star_scream]

Car, absolutely no apologies necessary. I am very appreciative of your help. It's just sometimes difficult for me to understand the necessary legislation for CCA's.

 

So, I cannot find the interest bit under 1974 Act, because it was not there until the 2006 Act inserted it there under s77A, is that right?

 

Had a look at S6 of 2006 CCA. Is that not relating to fixed sum?

[car2403]

Car, absolutely no apologies necessary. I am very appreciative of your help. It's just sometimes difficult for me to understand the necessary legislation for CCA's.

 

So, I cannot find the interest bit under 1974 Act, because it was not there until the 2006 Act inserted it there under s77A, is that right?

 

Had a look at S6 of 2006 CCA. Is that not relating to fixed sum?

 

Yes, but it's the principle rather than the substance of it that I was referring to.

 

Being in default of providing statements, a prescribed requirement of the 2006 Act, means no interest can be applied - or, rather, enforced - against the debtor during the period of that default.

 

As the 1974 Act is silent on this issue, (although, some of it points to it - s.77(4) and s.78(6) - but it isn't stated explicitly) there is an argument Parliaments intentions in enacting s.6 CCA 2006 could be applied (there are rules surrounding Statutory Interpretation you could use to your advantage) to a default under the CCA 1974.

 

Anyway, I digress trying to explain my point in a round about way.

 

Regardless of that 2006 Act, they can't enforce the principle debt, the interest or the default charges under the CCA 1974 without an agreement - which is probably the more sound stance to take in your case. The issue will be, though, that the Act doesn't make it clear what does happen when/if they do provide an agreement - which is where my thinking was coming from here.

 

The simple truth is, they can't enforce anything without the agreement, at this point in time.

[star_scream]

Thanks car- very confusing these Acts.

 

I was concerned that, if an agreement suddenly turned up, whether they could encforce the interest from the 12 days default.

 

Probably best just to wait and see what turns up and fight it then.

 

BTW where would I find the LBA to push them a little harder?

[car2403]

They can enforce the whole agreement, despite being in default, once they find it - they just can't enforce while the agreement is "lost".

 

IMO, they would have produced it by now if they had it - the longer it is "lost", the less chance it has of turning up.

 

You won't find a template LBA for CCA claims on this site - each letter has and should be different. Before getting to the LBA stage, you should have already written to them advising them of your disputes with reasons and legal argument to support them. The LBA serves as a pre-action protocol under civil procedure rules, outlining that your correspondance hasn't been answered/has been replied to but without resolving your issues, outlining the legal basis for your dispute and giving a final time period for resolution to your satisfaction, after which legal proceedings will be brought on the basis of previous letters and the contents of the LBA.

 

If you want to have a go at writing it, you can post it up and get feedback before it goes off?

[star_scream]

OK car I'll do that. I will wait until the 8 weeks is up I suppose with them telling me it is their final response to the dispute.

[car2403]

You only have to wait 8 weeks if you intend to go to the FOS - if you want to take Court action, you set the timeframes.

[star_scream]

Still no CCA from Citi. Had a couple of letters from DCA but wrote back telling them I am waiting for CCA and account is in default. Had no further communication at all. This morning a guy who purported to be from Citi called round to the house.

 

I was out and my wife told them I wasn't in. He asked her name and she told him to go away.

 

Now... I thought they could not just turn up like that, I understood they had to send you a letter first?

 

What are my options now?

 

Thanks

[star_scream]

bump

[car2403]

Still no CCA from Citi. Had a couple of letters from DCA but wrote back telling them I am waiting for CCA and account is in default. Had no further communication at all. This morning a guy who purported to be from Citi called round to the house.

 

I was out and my wife told them I wasn't in. He asked her name and she told him to go away.

 

Now... I thought they could not just turn up like that, I understood they had to send you a letter first?

 

What are my options now?

 

Thanks

 

Send them this;

 

I refer to your recent doorstep collection visit to my property dated XX/XX/XXXX.

 

You will see from your files that this account is “in dispute” and you have failed to reply to my s.77/s.78 Consumer Credit Act 1974 request dated XX/XX/XXXX.

 

I am writing to inform you that this dispute still stands and has not been resolved by your company.

 

As this account is in dispute and you were aware of this and are continuing to carry out collection activity, I now feel that you are in breach of your obligations under;

§

The Office of Fair Tradings Collection Guidelines – s2.8;

o

“i. failing to investigate and/or provide details as appropriate, when a debt is queried or disputed, possibly resulting in debtors being wrongly pursued”

o

“k. not ceasing collection activity whilst investigating a reasonably queried or disputed debt.”

§

Your Consumer Credit License

 

 

As such, I must ask you to take notice that you must cease all collection activity with immediate effect. You have failed to produce a properly executed credit agreement and as such I dispute the entire balance of the alleged debt is unenforceable. As there is no agreement between us, you also do not have permission to continue to contact me regarding this account, either by post or by personal contact, be that by telephone or visits to my property. In fact, OFT rules and regulations clearly state that you can only visit me at my home if you make an appointment and I have no wish to make an appointment with you. There is only an implied license under English Common Law for people to be able to visit me on my property without express permission; the postman and people asking for directions etc (Armstrong v. Sheppard and Short Ltd [1959] 2 Q.B. per Lord Evershed M.R.). Therefore take note that I revoke license under Common Law for you, or your representatives, to visit me at my property and if you persist in sending "doorstep callers" to my home, you will be reported for harassment and be liable for damages for a tort of trespass. You would also be liable for conspiring in a tort of trespass by acting in defiance of my instructions and sending someone to visit me nevertheless. Should it be necessary, I will obtain an injunction from the Court.

 

I also deem any further collection activity, of any nature that involves contacting me in relation to this account, an act of personal harassment, for the reasons outlined in this letter. Please ensure that your system is updated to reflect this, as I will bring any further letters or phone calls to the attention of the Police, to whom I will make a formal statement regarding your conduct given I have already warned you your behaviour causes me to feel harassed.

 

I am of the view that your continued harassment of me puts you in breach of Section 40 of the Administration of Justice Act 1970, and the Protection from Harassment Act 1997.

 

If you continue to harass me by calling me, you will also be in breach of the Communications Act (2003) s.127 and I will report you to OFCOM, Trading Standards and The Office of Fair Trading, meaning that you will be liable to a substantial fine.

 

Be advised that any further telephone calls from your company will be recorded and used as evidence in any further formal complaint.

 

If you wish to resolve my complaint, as has been suggested in your recent letters to me, you must supply the documentation previously requested to substantiate your claims against me under the alleged agreement. Failure to do so will result in my ignoring any further letters from you and the actions outlined herein being taken in complaint against you. I will not correspond further with you regarding this issue unless you can fully substantiate your claim as I have outlined.

 

Yours faithfully

 

If they come back again, after you've sent this, (special delivery - don't use recorded) contact the Police to report them for harassment in the form of continuing behaviour that you've told them makes you feel harassed and that you've formally warned them to stop doing it. Continuing in that vain is a criminal offence and the Police are duty bound to investigate - they will want to see your original request, your letter (above) and the proof that it was all sent/received.

 

You can complain to Trading Standards, the OFT and your Local MP, also.

 

Hopefully, they'll get the message and back off. Just be prepared for them to continue, so you aren't surprised if they turn back. You need to say you've sent a letter revoking license to be on your property, so they are trespassing and should leave immediately before you contact the Police. In theory at least, you have the right to use reasonable force to eject them, so don't let them "get a foot in the door", so to speak, after you have warned them. It would also be worth reminding the individual that they are liable, not their employer, for their trespass on your property.

 

Keep us up to date...

[star_scream]

Excellent letter and advice. Thank you very much car.

 

SS

[star_scream]

HELP HELP HELP

 

Received a default notice this morning from Citi. Have to pay arrears by 30/4/08.

 

No CCA at all, can I stop them doing this?

[car2403]

Silly question, but do you have the money to pay the arrears up? TBTH, this is probably the only way you can stop them doing what they've said they will. Most of the processes used to manage your debt won't care that they don't have a CCA that is enforceable - they are likely to continue and Default/Terminate the agreement, regardless, unfortunately.

 

This is definately retaliation for the letter you sent them, so you've now got their attention at least.

 

This could also be harassment, remember, so keep the letter, the notice and the envelope it came in with postmark intact. They may be needed later.

[star_scream]

What or where is this legislation please?

 

Whilst your default continues, you are not entitled to enforce any part of this alleged agreement.

 

This includes, but is not limited to, the following:

• You may not demand any payment on this account, nor am I obliged to offer any payment to you.
  
• You may not add any further interest or charges to this account.
  
• You may not pass this account to any third party.
  
• You may not register any information in respect of this account with any of the credit reference agencies.
  
• You may not issue a default notice related to this account.

[Enron]

Basically they are enforcing the agreement at a time they are not legally allowed to whilst they are in default:

 

CCA 1974

"(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."

 

I defer to car for specifics though.

[car2403]

What or where is this legislation please?

 

Whilst your default continues, you are not entitled to enforce any part of this alleged agreement.

 

This includes, but is not limited to, the following:

• You may not demand any payment on this account, nor am I obliged to offer any payment to you.
  
• You may not add any further interest or charges to this account.
  
• You may not pass this account to any third party.
  
• You may not register any information in respect of this account with any of the credit reference agencies.
  
• You may not issue a default notice related to this account.

 

It's an interesting question. The answer is even more interesting, IMHO.

 

What you're asking is, what is the result of being "in default" of the request? Well, therein is the problem - the legal definition (shared by Enron, above) is that they can't enforce the agreement. This just means they can't ask the Court to enforce, or, rather, the Court can't enforce the agreement against you, while they are in default.

 

Most of this flows from the understanding as to the effect on the contract itself, when the creditor remains in default of the request. IMHO, being in default would make the contract (cross read "agreement") voidable at law - this means that the contract exists, but you can seek a remedy from the Court that means the contract is voided, thereby freeing all parties from it's obligations. The term "voidable" doesn't mean that the contract is "void", however - a void contract is no contract at all, but the difference between void and voidable is massive. (And probably a thread on its own!)

 

Anyway, IMHO, the terms of the agreement can't be established, so the right to Default/Terminate the agreement, or continue to share data under it, is an unlawful Act while being in default. (Voidable) It doesn't mean that they can't continue to do that, (void) but more that you have a cause of action to prevent them from doing it in the first place, if they continue to do so.

 

I did say it was interesting... The post you've referred to above is one interpretation of the Law. It's not necessarily my view, but I can see how it can be used. Just don't expect them to fall for it.

[star_scream]

thanks Enron. I have got that, but I canot find the other legislation above. I have seen it in other letters, but it never seems to quote the act or legislation it is from

[star_scream]

...........

[star_scream]

Thanks Car,

 

But where is this legislation. I need to put this in the letter ( to my MP)

quoting the act or legislation but cannot find it.

[car2403]

But where is this legislation

 

There isn't any;

 

The post you've referred to above is one interpretation of the Law

 

You could refer him to the OFT Debt Collection guidance, which does say they shouldn't pursue a disputed debt - but is it guidance and not legislation.

[MilkTrayMan]

Hi star scream!

 

Here are a couple of links to the entire Consumer Credit Act 1974 + also the Data Protection Act 1998

 

Try searching through the above Statutes to find the exact references which U want to refer to.

...Just be mindful of ANY subsequent Ammendments that MAY be applicable to YOUR particular dispute with Citi...

 

Here are some further links which U MAY find useful...

Information Commissioners Office

OFT - Credit + Hire Agreements

OFT - Consumer Credit Act 2006

OFT - Debt Collection Guidance

OFT - Debt Collection Guidance (Compliance Review)

OFT - Debt Collection Guidance (Complaint Evidence Checklist)

OFT - Debt Collection Guidance (Complaint Form)

 

Oh...btw...Don't worry too unduly about your received DEFAULT NOTICE...

 

 

 

...

[star_scream]

Hi star scream!

 

Here are a couple of links to the entire Consumer Credit Act 1974 + also the Data Protection Act 1998

 

Try searching through the above Statutes to find the exact references which U want to refer to.

...Just be mindful of ANY subsequent Ammendments that MAY be applicable to YOUR particular dispute with Citi...

 

Here are some further links which U MAY find useful...

Information Commissioners Office

OFT - Credit + Hire Agreements

OFT - Consumer Credit Act 2006

OFT - Debt Collection Guidance

OFT - Debt Collection Guidance (Compliance Review)

OFT - Debt Collection Guidance (Complaint Evidence Checklist)

OFT - Debt Collection Guidance (Complaint Form)

 

 

Oh...btw...Don't worry too unduly about your received DEFAULT NOTICE...

 

 

Thanks MTM. But it must be written somewhere I suppose for people to put this in a letter. Why not worry about the default? Is there somethiong I should know?

...

..

[MilkTrayMan]

...Why not worry about the default?

Think about it star scream

...What exactly are U trying to prove/disprove by actually asking for a TRUE COPY of your ORIGINAL Credit Agreement, as per the CCA 1974??

Then work out what effect the probable outcome would have on anything else?

...Based on what Citi have supplied U so far with...

U have THEM on the back foot, DON'T allow them to turn it around so that it is U that THINKS defensively.

 

 

...

[star_scream]

Wrote a letter to TS & Info Commissioner none replued at all. Wrote to MP, he wrote back saying to contact both the above.

 

Chocolate & fireguard come to mind.

 

Labout can shove their votes up their ****

 

Citi issued a default notice and no=one gives a toss that they are not allowed to do it.

I'll just give up now.

[car2403]

Don't give up SS - although you aren't getting any "formal" help here, you will have a case when it comes to Court. Keep at 'em and don't let them grind you down. That's what they want, at the end of the day.

 

There's plenty of help around on CAG to get you through this. It would be worth reading some of the other success stories, to get you back to a positive mindset. It's not easy, but this site wouldn't exist if it was straightforward.