Information Commissioner's Office (Kick in the Face)

[UK26]

Does this mean, we now have no hope in winning our cases????

 

8 April 2008

Case Reference Number RFA***********

Dear Mr Benwell

Thank you for returning your completed complaint form dated 26 February 2008.

Please accept my apologies for the delay in replying to you, our office is currently dealing with large volumes of work. This has meant that we have been unable to deal with incoming correspondence as promptly as we would like.

You have complained that **************** have not responded to your request for a copy of your credit agreement under of the Consumer Credit Act (CCA).

It may be helpful to explain that the Information Commissioner regulates and enforces the Data Protection Act 1998, amongst other legislation, but we have no involvement in regulating these section(s) of the CCA. The CCA is regulated by the Office of Fair Trading. As such, your complaint is not one that we can look into. To pursue this matter you should call Consumer Direct on 08454 04 05 06 for advice or write to:

Office of Fair Trading

Fleetbank House

2-6 Salisbury Square

London

EC4Y 8JX

It may be helpful to explain that sections 77 and 78 of the CCA state that a creditor must give a consumer a copy of their executed agreement within 12 working days of receiving a request in writing and the appropriate fee. The Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (“CNCD”) specify that every copy of an executed agreement, security instrument or other copy referred to in the CCA and delivered or sent to a debtor, hirer or surety under any provision of the Act shall be a true copy thereof. However, it is well established that a “true copy” is not an exact copy.

Regulation 3(2) of the CNCD Regulations allows the following to be omitted from any copy:

a) Information in the original which relates to the debtor, hirer or surety or is included for the use of the creditor or owner only and which is not required to be included in the original agreement by the Act or by any regulations as to form and content. Therefore it is not necessary for the copy to reproduce, for example, details of the business or occupation of the debtor, the name and address of the employer or bank details of his income etc,

b) Any signature box, signature or date of signature.

Therefore there is no requirement for ************** to send you a copy of the original agreement. They may simply send you a copy of the terms and conditions of the agreement. Further to this, sections 77 and 78 of the CCA do not apply once the agreement has ended; therefore a creditor does not have to supply you with a copy of the agreement if the credit has been repaid.

It may also be helpful to explain that the failure of a creditor to produce a copy of the signed credit agreement is not, on its own, evidence that your debt does not exist or that it is not enforceable and should therefore not appear on your credit file. If the credit grantor can supply some other evidence of the agreement and you have no evidence to contradict this then it is likely to be proper for the debt to continue to be recorded on your credit reference file.

I hope this information is helpful to you.

Yours sincerely

Lynda Coan

Case Reception Unit

 

 

 

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[UnitedFront]

I am very much intrigued by this........

If a creditor wanted to request that a Judgement be entered against someone, then they must prove that the debt exists and is owed by you.

If they cannot supply a Credit Agreement with your signature on it, then how can they prove that you owe the money??

Or am I missing something??

[UK26]

Thats what i thought unless the Information Commissioner's Office have made a mistake?

 

I am very much intrigued by this........

If a creditor wanted to request that a Judgement be entered against someone, then they must prove that the debt exists and is owed by you.

 

If they cannot supply a Credit Agreement with your signature on it, then how can they prove that you owe the money??

 

Or am I missing something??

[PossVox]

Absolutely mind boggling!

 

How on earth can that be?

 

No signature or date required?

 

If they can't produce a CCA they can still enforce the debt and record it with CRA's?!!!

 

I can't believe I just read that

[Having_A_Knightmare]

I have never read so much Cr*p.

 

They can omit the signature but just sending the terms and conditions bulls**t.

 

I would get a letter sent to here manager and make a formal complaint about the incorrect advice the staff member is giving.

 

HAK

[Bigmac versus]

Technically speaking it is correct however a court would not have the debt enforced without a signed agreement. The CRA's however are a different kettle of fish and they will put information up regarding a debt without such an agreement.

 

 

s77(1) of the Consumer Credit Act states

 

(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 one pound, shall give the debtor a copy of the executed agreement (if any) and of any other document refered to in it, together with a statement signed by or on behalf of the creditor showing, according to the information 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 compromised in that total sum, with the date that 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.

 

s77 (4) of the Consumer Credit Act states

 

(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.

[UK26]

I have had a CCJ set aside on the grounds of this, just hope i still have a case

[Having_A_Knightmare]

How old was the CCJ benwell

[UK26]

November 2007 but the judge agreed to set aside due to a mistake made by the court which lead me to not being aware of when i had to attend court to give evidance.

 

My defence is not just for the CCA (not supplying documents) but also other key areas etc.

 

just seems banks and DCA always have the upper hand

 

new court hearing set for 14th May 08

 

the hearing for set aside had already taken place and approved

[Bigmac versus]

a) Information in the original which relates to the debtor, hirer or surety or is included for the use of the creditor or owner only and which is not required to be included in the original agreement by the Act or by any regulations as to form and content. Therefore it is not necessary for the copy to reproduce, for example, details of the business or occupation of the debtor, the name and address of the employer or bank details of his income etc,

 

b) Any signature box, signature or date of signature.

 

Therefore there is no requirement for ************** to send you a copy of the original agreement. They may simply send you a copy of the terms and conditions of the agreement. Further to this, sections 77 and 78 of the CCA do not apply once the agreement has ended; therefore a creditor does not have to supply you with a copy of the agreement if the credit has been repaid.

 

Anythng that is required to be included in the original agreement which a signature would be should be part of a copy that is sent to comply with the CCA request if they had it. They could comply with your request by sending an application or indeed terms and conditions however they would not stand up in court. I disagree strongly with "It may also be helpful to explain that the failure of a creditor to produce a copy of the signed credit agreement is not, on its own, evidence that your debt does not exist or that it is not enforceable and should therefore not appear on your credit file.

 

The debt dosent dissapear bit IS unenforceable without an agreement and in my opinion should not appear on your credit file, the CRA's have said by making previous payments to the alleged debt you are admitting the debt exists which is good enough for them.

[Having_A_Knightmare]

I missed that bit Bigmac your correct.

 

I have just made a complaint to the ICO about goldfish. I tell you If I get a reply like this its going to hit the fan big time.

 

HAK

[Bigmac versus]

They have put it in such a way that it would anger a saint.

[Having_A_Knightmare]

I am fumming about this letter they have sent. They have no right miss informing people.

 

Benwell you really nead to get a complaint off about this letter.

 

HAK

[UK26]

So anyone is allowed to destroy ones credit rating and the victim is not allowed to question it or make it very hard to question its existance.

 

its been over 2 months since i first issued the offender of my request under the CCA to supply the documents.

 

I then asked the CRA to remove default of which they contacted the creditor and they said no.

 

So if i win my case, i think i will ask the jugde to make an order to remove default

[UK26]

is there really any point of this, they dont goven this act they claim

 

I am fumming about this letter they have sent. They have no right miss informing people.

 

Benwell you really nead to get a complaint off about this letter.

 

HAK

[nicklea]

The other way to get the agreement is to send an S.A.R - (Subject Access Request) or, if you're faced with court action a CPR Part 18 request. They definitely need to supply it if they're taking you to court!

 

For example, I've had an ongoing case with Morgan Stanley since May last year (it's now with Goldfish of course). They supplied the usual rubbish to me under the s77/78 request but they did produce an actual agreement under the CPR 18 request.

 

There are actually a few problems with the agreement anyway, but also, the t&cs that they supplied under the s77/78 request were totally unlegible (it was a very bad photocopy that was unreadable) so, although they have just sent me a blank agreement under s77/78, the fact that the t&cs are unreadable, and are referred to in the agreement, it means that they haven't actually complied with the request and so the account is currently unenforceable regardless of any proper agreement that they might have.

 

Of course it is always open for them to respond properly to my s77/78 request and then restart legal proceedings again after they've done that - I wonder what the chances are that they'll do that, given that they issued the claim against me almost a year ago and it hasn't got to court yet?

 

Also, I believe that I remember reading a post of Tomterm's some time ago advising people not to stop paying purely on the ground that they were sent a blank agreement - that doesn't mean they don't have the real thing as in my case with Morgan Stanley (although whether the real thing is enforceable or not is another matter!).

 

However, if they write back and admit that they do not hold an agreement for you as, I beleive, Next and Littlewoods have done in some cases then, by all means, tell them what they can go and do.

[Having_A_Knightmare]

is there really any point of this, they dont goven this act they claim

 

Yes

 

They need to know whos making these lies up.

[UK26]

CPR 18 request? will look into this

 

hope i have enough time in order to apply before the court date.

 

now ending off to read up

[dannyboy660]

Is this something to do with CCA2006??

 

CCA2006 does away with the need to produce a properly executed agreement etc. etc

 

Is that where it comes off the rails???

 

"It may also be helpful to explain that the failure of a creditor to produce a copy of the signed credit agreement is not, on its own, evidence that your debt does not exist or that it is not enforceable and should therefore not appear on your credit file. If the credit grantor can supply some other evidence of the agreement and you have no evidence to contradict this then it is likely to be proper for the debt to continue to be recorded on your credit reference file. "

Sounds suspiciously like CCA2006.......

[PossVox]

Aha, methinks DannyBoy has got to the bottom of it!

 

[UK26]

Right, but since this relates to 2004/05 debt, its under CCA 1974 and not 2006 and i think the new act does not apply to debt before the new one.

 

Thats if my understanding is correct

[tomterm8]

Is this something to do with CCA2006??

 

CCA2006 does away with the need to produce a properly executed agreement etc. etc

 

Is that where it comes off the rails???

 

"It may also be helpful to explain that the failure of a creditor to produce a copy of the signed credit agreement is not, on its own, evidence that your debt does not exist or that it is not enforceable and should therefore not appear on your credit file. If the credit grantor can supply some other evidence of the agreement and you have no evidence to contradict this then it is likely to be proper for the debt to continue to be recorded on your credit reference file. "

 

Sounds suspiciously like CCA2006.......

 

Yeah, that paragraph is true for those agreements made after s15 of the CCA 2006 came into force.

 

Not true for other agreements, in effect.

[dannyboy660]

Aha!!

 

Then all may not be lost - once more unto the breach dear friends!!!

[UnitedFront]

i still dont understand how though, a creditor can stand in front of a Judge and ask him to enter a Judgement against someone with no evidence that said person owed the money.

 

I could take you to court then and say you owe me a million quid.

 

Can I prove it?? no!!!

 

Surely, even if they no longer have to provide it to you, they would have to show the Judge the agreement, otherwise how will teh Judge know that it was you that took out the agreement!!! Especially if you are saying you did not.

[UK26]

Conspiracy lead by the government to rake in more court fees to aid PMs house hold bills?? lol (Joke)

 

 

back to the topic, I think its bad that the new CCA 2006 makes it harder for the consumer, maybe this is why there are alot more bankrups now days?