Citi Refusing to send copyof CCA

[car2403]

Send them this letter; (Posted by PeterBard, so credit to him obviously)

 

Dear Sirs,

 

Account Number: XXX

 

Re; your recent reply to my request under section 77-79 of the Consumer Credit Act 1974

 

I note that you have replied to the above by sending a copy of your companies current Terms and conditions I must inform you that this is not sufficient to comply with the request and that your company is still in default under the act.

 

To clarify, just sending the Terms and Conditions is a breach of the Act and Regulations as, apart from the information that the Regulations provide that you may exclude, the copy must be a “true copy” of the agreement.

 

This breach of the agreement can be demonstrated as follows;

 

As you will know section 180(1) (b) authorises, “the omission from a copy of certain material from the original, or the inclusion of certain material in condensed form.” This refers to statutory instruments made under the heading Copies of document regulations and in this care in particular to SI 1983/1557.

 

Before leaving section 180 there are two other sections that should be remembered these are:

 

Section 2(2) (a) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not satisfied unless the copy supplied is in the prescribed form and conforms to the prescribed requirements;

 

And more importantly

 

Section 2(b) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not infringed by the omission of any material, or its inclusion in condensed form, if that is authorised by regulations.

 

You will see that this quite clearly states that whilst certain items may be left out of the copy document the rest of the document must be in the form and contain all items as prescribed by the regulations.

 

Turning to the regulations regarding what may be omitted from these copies these are contained with SI 1983/1557.

 

The regulations state:

(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 cancelable executed agreement delivered to the debtor under section 63(1) of the Act, the date of signature by the debtor of an agreement to which section 68(b) of the Act applies);

 

It is quite clear what can be omitted from the copy document, this again asserts that all other details of the agreement should presented in form and content as required by the regulations.

 

The requirements of the Agreement regulations 1983/1553 are very explicit in describing the form and content of an agreement and this as I have demonstrated also applies to the copy of any such agreement with the above mentioned proviso.

 

Nowhere within these regulations does it state that part of the agreement can be presented on a separate document headed terms and conditions.

It does state that all terms and conditions should be within the agreement document and is explicit of the form in which it is presented.

 

I hope this explains why your reply was unacceptable I await a True copy of my agreement and would remind you again that whilst the request has not been complied with the default continues

 

Yours faithfully

[car2403]

12 + 2 days after receipt of the request they are in default - they can't enforce the agreement until the default is remedied, by providing the agreement requested.

 

One calendar month after this date, they commit an offence by remaining in default.

[car2403]

It's 12 working days after receipt they are in default (you don't count the first day as they are full working days) and then one calendar month after that they commit the summary criminal offence. The +2 days is only if you don't send the request via recorded delivery as you would allow 2 days for delivery.

 

 

Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 (SI 1983/1569)

 

1 Citation, commencement and interpretation

 

(1) These Regulations may be cited as the Consumer Credit (Prescribed Periods for Giving Information) Regulations

1983 and shall come into operation on 19th May 1985.

 

(2) In these Regulations, "the Act" means the Consumer Credit Act 1974.

UK Parliament SIs 1980-1989/1983/1551-1600/Consumer Credit (Prescribed Periods for Giving Information) Regulations

1983 (SI 1983/1569)/2 Prescribed period

 

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.

UK Parliament SIs 1980-1989/1983/1551-1600/Consumer Credit (Prescribed Periods for Giving Information) Regulations

1983 (SI 1983/1569)/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

 

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 theAct

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.

 

The prescribed period is 12 working days. I was on the understanding that you would need to allow an extra 2 days, (working or not) for post in either direction? So, if I post one today, (Sunday) the prescribed period ends on 22 March - 1 day for postage to them, 12 working days prescribed and 1 day postage back to me. Is this right, Rory?

 

Don't suppose it matters on days if they take over 6 months to supply an agreement anyway... :o

[car2403]

But after the 30 days from the date of receiving the request, it becomes a criminal offence. If after this the agreement suddenly appears, they can then enforce the debt once more?

 

Correct.

[car2403]

Hi

Could somebody please can over this before I send it?

 

Mucho obligedo

 

I'd suggest you aren't getting replies as the letter is fine.

 

Looks fine to me, anyway.

[car2403]

Still nothing from Citi. Received a statement today with £12 late payment charge and £360 interest.

 

I understand that interest cannot be applied with no sight of the CCA after 12 working days. Do I need to remind them of this or do I now just ignore these until I get a snotty letter from them?

 

That's under the 2006 Act - the 1974 Act is less clear, but I'd certainly be arguing you don't have to pay interest/default charges at all when they can't produce any agreement

 

12 working days was to the 25th Feb & 30 days thereafter is 26 March.

 

Only really relevant if they are to be pursued for the offence, which is unlikely

 

Is there a way of giving them a time limit to actually wipe the debt off, or am I being too presumtuous here?

 

Yes - letter before action

 

You'll need to wait for their final response, or for 8 weeks to pass, before you can go to the FOS.

[car2403]

The 2006 Act only applies if you signed the agreement after April 2007.

[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...

[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.

[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?

[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.

[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...

[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.

[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.

[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.

[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.

[car2403]

I'd be inclined to apply for the CCA enclosing £1.

 

Stating that the account with Citi was an Account In Dispute, Citi did not comply with your earlier s78(1) Consumer Credit Act 1974 request, and that after falling into default on xx/xx/2008 of your request s78(6) CCA 1974 came into action where Citi were not legally entitled to add further interest or charges (list them).

 

As such the best course of action would be to return the alleged debt to Citi unless 1st Credit wishes to open themselves legally liable for attempting to collecting on an account with unlawfully applied content.

 

If you've already CCA'd the OC, there's no need to CCA the DCA or a subsequent assignee of the debt.

 

Writing to them to tell them of the OC's failure to comply with the request, pointing out the legal requirement on the OC to comply and that the "assignment" (be that legal/absolute or equitable) having no effect in law, and keeping records of delivery/receipt of the letter is in order, IMHO.