1st Credit reply to CCA, 1 year late!

[Yog sothoth]

Finally, after almost a year of silence, 1st Credit, or rather their solicitors, LCS, have responded to my CCA request. They have sent me a letter along with what they describe as a "copy of the original credit agreement and Notice of Assignment" which I requested.

 

The NoA is simply the letter 1st Credit originally sent me, introducing themselves and stating that they had now taken over my MBNA debt.

 

The "original credit agreement" consists of an application form for an MBNA credit card, signed by me, from 10 years ago. The form is headed 'Priority Request Form' and subtitled 'Credit Agreement regulated by the Consumer Credit Act 1974'. It seems to be a request for MBNA to consider issuing me with a card.

 

From what I've read on here, this doesn't actually consitute a proper Credit Agreement, despite the subtitle. Am I right?

 

LCS are threatening further action btw, if I don't contact them immediately, and seem to think that they have fulfilled their obligations.

[42man]

Yog are you able to scan/photo the document and post it on here (cross out all the personal details) ?

[42man]

IS MY AGREEMENT ENFORCEABLE( Via section 127(3) CCA1974)

PRESCRIBED TERMS FOR THE PURPOSES OF SECTIONS 61(1)(0) AND 127(3) OF THE

CONSUMER CREDIT ACT 1974 Taken from sced.6(1983/1553) regulations

(If you just want to find out, skip the bits in between the stars it’s just some extra information)

 

**What do we mean by unenforceable?

In the Consumer Credit Act section 127 there is a provision for making an agreement unenforceable if it does not contain certain pieces of information.

Subsections 1,2,3,4 state which pieces of information these are, and everything mentioned there must be included within the body of the agreement, if one is missing the agreement is unenforceable.

 

How does unenforceable differ from enforceable with a court order only?

When an agreement is unenforceable it means that the court or the judge cannot make a ruling on it. The court cannot make it enforceable.

When an agreement is enforceable only by ruling of the court it means that the agreement can be stopped by the debtor but the court has the power to re-instate it and allow the credit to continue to enforce.**

 

The Prescribed Terms are these

 

A Amount of credit

A term stating the amount of credit

 

B Repayments

A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following-

(a) Number of repayments;

(b) Amount of repayments;

© Frequency and timing of repayments;

(d) Dates of repayments;

(e) The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable.

 

C Rate of interest

A term stating the rate of interest to be applied to the credit issued under the agreement

D Credit limit

This may be a term or the manner in which it will be determined or that there is no credit limit.

--------------------------

 

Which of these applies to you depends on the type of agreement you have?

 

For a Running Account (credit card) agreement

 

BC and D Apply

 

For a Restricted Use Debtor Creditor Supplier

• Where the dealer is the supplier and the creditor is the one providing the finance.
  
• The money can only be used for the purpose it is given.
  
• There is no interest on the purchase (the cash price is the same as the total price)
  
• And there is no advance payment

A is applicable

 

For a fixed Sum Credit Agreement

A conventional credit agreement with none of the above restrictions

 

A and B apply

 

For a Hire Agreement

 

B is Applicable

 

This paper only covers section 127(3) of the Act agreements can also be unenforceable by contravention of sections 1 and4 this will be the subject of the next paper.

Please note that these Prescribed terms where not changed in any way by the 2004/1482 Ammendments although the form in which they appear on the agreement was. Subsection127(3) was repealed on the 6th of April 2007 so that unenforceability due to 127(3) will only apply to agreemens executed before that date.

[Yog sothoth]

Thanks 42man. I'll scan it and post it on here, but it might not be until Monday when I get access to a scanner.

 

In respect of what you've posted, I don't think the application form LCS have sent me contains any of the prescribed terms.

[Yog sothoth]

OK, here's what 1st Credit sent me, as the CCA...

[Yog sothoth]

Oops, the image didn't post!

[Yog sothoth]

Anyone know how I post an image?

[renegotiation]

Doing a photobucket link is quite easy. You can sign up for free.

[42man]

Hi Yog....if you want to respond to what they have sent you then I suggest you send them this...

 

Thank you for your response to my request under the Consumer Credit Act section 78.

 

I am pleased to see that you confirm this as a true copy of the original agreement executed by yourselves on the 26th July 2007.

 

As you must realise this agreement does not conform to sections 60(1) and 61(1) of the Consumer credit Act and is therefore unenforceable under section 127(3) of the same act.

 

 

You had until (date here) to provide me with the true copy I requested. After that date you entered into default of my request. Whilst the account is in dispute, you are not permitted to ask for any payment, nor am I obliged to offer any payment to you. Furthermore, whilst the dispute remains, you are not entitled to charge any interest on the account, make any further charges to the account or pass the account to anybody else. I would also like to note that as from the (12+2 working days + 30 calendar days) it becomes a criminal offence.

Please note you may also consider this letter a statutory notice under Section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect. This means you must remove all information regarding this account from your own internal records and from my records with any credit reference agencies including any defaults. Should you refuse to comply, you must within 21 days provide me with a detailed breakdown of your reasoning behind continuing to process my data. It is not sufficient to simply state that you have a ‘legal right’, you must outline your reasoning in this matter and state upon which legislation this reasoning depends.

 

Should you fail to respond within 21 days, I will expect that this means you agree to remove all such data.

[Yog sothoth]

Thanks 42man. I'll consider that. Just need to sort out this photobucket thing. I've scanned the document but haven't been able to cut and paste it onto here. How do I do it from photobucket? (sorry, I sound thick here)

 

I've saved the image to Photobucket, but how do I now paste it onto here?

[renegotiation]

After you have uploaded the image to photobucket just copy the link relevant to the image and paste it into your next post.

[Yog sothoth]

http://i196.photobucket.com/albums/aa283/yog_sothoth/appformcensored.jpg

 

like this?

[The GodMother]

its not very readable in this link.

 

I find with photobucket it is easier to use the img, last of the 4, codes as it comes out.

 

Also if this is the condition of the copy they need to provide a better one as it is unreadable.

 

Chrissi

[Yog sothoth]

img, last of the 4, codes as it comes out

 

Damn. Sorry to be so computer-illiterate, but that's greek to me! :o

[Brassed off]

Yog, highlight the IMG code (4th code down underneath your scan), right click it, then copy and paste onto your thread

 

I can actually see your scan although if that's what they sent you, then not very legible IMO.

[Yog sothoth]

OK, re-scanned it. I agree it's a crap photocopy but it's all they sent...

[42man]

Excellent job Yog....an application form, I can't even see anywhere where it refers to any terms and conditions !!!! unenforceable in my opinion !!!

[The GodMother]

Re: my request under the Consumer Credit Act 1974

 

Thank you for your recent letter sent to me, the contents of which are noted. I appreciate your quick response to my original letter. However, the reply received by me does not fulfil your requirements under the Consumer Credit Act 1974.

 

The Act demands that I be supplied with a true copy of any properly executed credit agreement that exists in relation to the above account. I may ask for this on demand providing that a fee of £1.00 is paid. This fee was sent with my original letter.

 

My request remains outstanding. An unsigned credit agreement with incorrect personal details simply printed onto it, like the one you sent in your reply, does not constitute a true copy of any credit agreement that may or may not have been signed by me on the opening of this account. A unreadable document neither confirms if l am liable for any debt you alledge exists,nor gives me any chance to evaluate whether any original agreement was ‘properly executed’

I still require you to send me a true copy of the original credit agreement that you allege exists. As you will know, under the Consumer Credit Act 1974, a judge is not permitted to make any enforcement order unless the creditor can provide a true signed copy of the original credit agreement. This means that unless you can produce such an agreement, this alleged debt is not enforceable in law.

 

You had/ have until XXXXXXX to provide me with the true copy I requested. You are now in default of my request. Any account I hold with you is now in legal dispute. Whilst the account remains in dispute, you are not permitted to ask for any payment, nor am I obliged to offer any payment to you. Furthermore, whilst the dispute remains, you are not entitled to charge any interest on the account, nor make any further charges to the account. Additionally, you are not entitled to register any information on this account with any credit reference agency.

 

To register information with a credit reference agency, you must have written consent from the customer to collate and share such information. This consent is given in the form of a signed credit agreement, so until you produce such an agreement, you may not do this.

 

The requirement for consent to share data is a clear requirement of the Data Protection Act 1998. any such attempts to share my data without my consent will be met with a complaint to the Information Commissioners Office

 

The time limits, which are laid down in the Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 are clear. You must supply an executed credit agreement within 12 + 2 working days of a proper CCA request. If you fail to comply with a legitimate request the account enters a default situation and if you fail to comply after a further 30 days you commit an offence. If you continue to try to enforce this debt without complying with my original request you will have committed a criminal offence and your conduct will be reported to the Office of Fair Trading, the Financial Ombudsman and Trading Standards. Any investigation undertaken by them may affect your ability to offer credit in the future.

 

To sum up, I will not be making any further payments to you until you provide me with the document I have requested. Whilst you remain in default of my request, you are not permitted to take any action against this account. This includes adding further charges and passing any information to the credit reference agencies.

 

Should you not have any signed credit agreement in relation to this alleged debt, please confirm this in writing to me.

 

 

I look forward to your reply.

 

Yours faithfully

 

BLAH.

 

Any XXXX needs changing to suit your needs.

 

Print DONT sign your name.

 

send by recorded delivery at least.

 

Chrissi

[Yog sothoth]

That's what I thought. Looks like they need a copy of the letter posted above, either yours or The Godmothers. Let's see what they do then. Thanks 42man and The Godmother (it's like talking to Marvel superheroes!).

[The GodMother]

i was just going to jump around the T&Cs and apr etc untill he has a legable copy of the agreement then hit them with those.

[spiritgirl59]

Hello there yog

 

Subbing to your thread.

 

We got a phone call today from a weird sounding bloke at First Credit.

 

I refused to discuss anything with him on the phone and he said a letter is on the way and I can phone him back when I get it ... (I hope he doesnt hold his breath pmsl)

 

I'll start a new thread when the letter arrives, I was just searching for info on First Credit as this DCA is new to me, and I came across your useful thread with some great letters and info.

 

Love SG x

[Yog sothoth]

Hi Spiritgirl. Yes 1st Credit harrassed me something rotten, for a debt they said they owned. After coming on here for advice, and speaking to the CAB, I sent the letter demanding to see the original Credit Agreement etc. They haven't managed to do it so far, despite official looking letters from 'their solicitors' warning me of impending action. Let them try!

 

Incidentally, CAB said that this bunch are one of the worst for bullying people.

[babybear39]

Hiya Yog

 

Subscribing also...

 

Good luck with this bunch of (insert appropriate expletive here).

 

You might find some useful ways of dealing with them by reading my thread:

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/92556-help-again-please-1st.html

[Yog sothoth]

Cheers Babybear. I ought to add that it's nearly a year since I CCA'd them!

[confused78]

Like others have said it's merely the application form. There's no mention on there of the credit limit or the interest rates or anything to be honest. Basically their tactic as I see it is that after all this time (presumably thinking that they'd forgotten about you/given up) if they suddenly reappear with something you'll get all despondent and give up. Just write a simple letter to them saying "Thankyou for the copy of the application form you have sent me but I would like to reiterate my request for a properly signed CREDIT AGREEMENT with ALL the prescribed terms on it eg. rate of interest, credit amount etc." Be sarcastic and let them know that you know it's bollocks.

 

Also it sounds like the notice of assignment is not legal either. It has to be a letter from the ORIGINAL CREDITOR assigning the debt to 1st credit. Obviously this won't stop the original creditor coming after you or assigning it to another DCA but they'll still need the credit agreement which it sounds like they don't have if this is all you've got after a year.