newbie today

[fedup74]

At court the judge ordered my partner to be supplied with statements/ details of how the account had grown from an original loan of £15k to demand for £29k. On the 'financial statement' received today it said the opening balance was £30k:confused:, Although he had received another 'financial statement' from company 6 days ago to say the opening balance was £19k. Really really confused and don't know what to do next. Feel like we are banging our heads against a brick wall. Think I will print a copy of CCA 1974 and highlight the part where it says we have to be supplied with a signed agreement and where it is unenforceable for him to peruse!

[rory32]

I'm afraid that you are wrong when you say that s77/78 requires an agreement with a signature.

 

77(1) and 78(1) both state that the creditor under a regulated agreement shall give the debtor a copy of the executed agreement.

OFT response to failing to provide agreement:

 

 

For your information, the general effects of sections 77-79 requires the creditor/owner (in the case of a hire agreement) under an agreement for (fixed-sum credit, running account credit and hire agreement) to provide the debtor/hirer with a copy of the executed agreement and a statement of account on request.

 

If a creditor/owner fails to comply with a valid request within a period of 12 days (not including the date of receipt of the request) he may not enforce the agreement at all.

This prevents enforcement with or without a court order. If a default lasts for a month (for example a calendar month) it constitutes an offence. We understand your concerns in this matter but please do remember however that once the creditor/owner complies with

the request albeit out of time, he may once again enforce the agreement.

 

A ‘true copy’ of an agreement principally consists of the terms and conditions of the agreement and the statutory content of the agreement. The name, address and signature of the debtor do

not have to be provided. Additionally, the creditor must supply the total sum paid under the agreement by the debtor; the total sum which has become payable under the agreement but

remains unpaid; and the total sum which is to become payable under the agreement by the debtor (the latter two must include the various amounts comprised in that total sum and the date when

each is/was due). However, the copy must be a copy. It need not be exact on immaterial points, but it cannot be a conjectured reconstruction. If the trader has no original copy, the trader will have difficulty showing that he has complied with the regulation by supplying a ‘true copy’, since nobody would know what was in the original. When the trader comes to enforce the debt in court, he needs to have a signed copy of the agreement in order to enforce. As the law stands currently he cannot otherwise.

 

In the absence of a copy of the original agreement someone's liability for a debt can only lead to further query. However in circumstances like this we would view it is as unfair practice under

section 25(2) (d) of the Act and relevant to licence fitness if a trader failed to investigate and/or provide details as appropriate when a debt is queried or disputed.

[nicklea]

ok, the judge ordering them to provide statements of the account isn't ordering them to supply a copy of the agreement.

 

Part of your application to get it setaside will involve saying that there isn't

an enforceable agreement.

 

A good thread to read about getting a ccj set aside is here, this will show you what you need to do next:-

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/116860-ccj-but-no-claim.html#post1175378

 

and here:-

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/143966-court-date-arrived-t.html#post1513539

 

The ppi is a separate issue and there is a different section of the forum where you will be able to get some good advice on that issue.

 

With the statements that you received, if you either post them up here or, if you're not happy with that send them on a pm to me and I will have a look at them to see if they're ok.

 

hope this helps

[nicklea]

77(1) and 78(1) both state that the creditor under a regulated agreement shall give the debtor a copy of the executed agreement.

 

Rory,

 

I said that an agreement with a signature is not required and this is also stated in the OFT guidance that you quoted in your post:-

 

 

The name, address and signature of the debtor do

not have to be provided.

 

 

regards

 

nicklea

[debbbbsy]

I'm sorry nicklea but from all the threads I've been reading rory is right.Otherwise the lenders & dca's can make it up as they go along. . Its clear that they can't find the original so they have created a new one.The RBS did this to Paul Walton & got into big trouble,he found his original & proved that the one they sent was a total fabrication....date & amounts were different,they had also altered the account type so they could add contractual interest after judgement........check your agreement fedup74.

[debbbbsy]

If they have changed it to a capital & interest loan account it will be accruing interest daily.The debt will continue to rise even though your making your monthly payments.You really need to do a SAR on both the lender & DCA to find out exactly what theyv'e been doing.If theyv'e used a solicitor do 1 on them aswell.The data you recieve under your SAR could prove theyv'e recreated the agreement......IF they have done this it only strengthens your case for the ccj to be setaside.

[fedup74]

Thankyou so much to all of the above:wink: have got the SAR all typed out, off to post it. Will have to make first reduced payment on 3rd June will this make any difference to getting a set aside under the terms of no agreement? Also who do I report them to once the 30 days for CCA request are up? Thanks for all your support and advice.

[debbbbsy]

Be careful in making the payment..be it reduced, it could be seen as you admitting the debt.But you must make a payment,keep the wolves at bay & the court happy.But why not accompany it with a letter.You are only making the payment to comply with the ccj which you believe is innaccurate.In making the payment you are NOT admitting the debt. Remind them them that the document they have provided is not the original.Take a look at this

 

Just a thought...why are we not looking at the problem from another angle....see The Fraud Act 2006.....!!:grin:

 

Copy of letter sent today to Mackenzie Hall...this Act is the one I belive applies to ALL Financial providers and banking institutions.

 

Thomas Lloyd

Mackenzie Hall

30 The Foregate

Kilmarnock[

KA1 1JH 20th May 2008

 

 

First Class recorded delivery

 

Re: M XXXXXX

 

 

I do not acknowledge any debt to your company or any other person

 

I have today received your unsigned letter dated 9/5/2008. I will not be making any payment to you.

I will not be calling you. This is because I do not carry out any financial business on the telephone, all business between us must be in writing.

It is necessary to draw your attention to my letter to you dated 9th May 2008, sent by recorded delivery first class mail.

Royal Mail have confirmed receipt by you of this letter.

This letter required certain information from you – that information is still outstanding.

In the meantime, the contents of your letter dated 9th May 2008 constitute an offence under The Fraud Act 2006 .

 

The appropriate sections read:

 

Section 1. Subsection (3) sets out the penalties for the offence. The maximum custodial sentence of 10 years is the same as for the main existing deception offences and for the common law crime of conspiracy to defraud.

 

This section makes it an offence to commit fraud by false representation

Subsection (1)(b) requires that the person must make the representation with the intention of making a gain or causing loss or risk of loss to another. The gain or loss does not actually have to take place. The same requirement applies to conduct criminalised by sections 3 and 4. Subsection (2) defines the meaning of "false" in this context and subsection (3) defines the meaning of "representation". A representation is defined as false if it is untrue or misleading and the person making it knows that it is, or might be, untrue or misleading. Subsection (3) provides that a representation means any representation as to fact or law, including a representation as to a person's state of mind.

Subsection (4) provides that a representation may be express or implied. It can be stated in words or communicated by conduct. There is no limitation on the way in which the representation must be expressed. So it could be written or spoken or posted on a website.

Subsection (5) provides that a representation may be regarded as being made if it (or anything implying it) is submitted in any form to any system or device designed to receive, convey or respond to communications (with or without human intervention). The main purpose of this provision is to ensure that fraud can be committed where a person makes a representation to a machine and a response can be produced without any need for human involvement.

 

Section 3. makes it an offence to commit fraud by failing to disclose information to another person where there is a legal duty to disclose the information. A legal duty to disclose information may include duties under oral contracts as well as written contracts. The concept of "legal duty" is explained in the Law Commission's Report on Fraud, which said at paragraphs 7.28 and 7.29:

"7.28 ..Such a duty may derive from statute (such as the provisions governing company prospectuses), from the fact that the transaction in question is one of the utmost good faith (such as a contract of insurance), from the express or implied terms of a contract, from the custom of a particular trade or market, or from the existence of a fiduciary relationship between the parties (such as that of agent and principal).

7.29 For this purpose there is a legal duty to disclose information not only if the defendant's failure to disclose it gives the victim a cause of action for damages, but also if the law gives the victim a right to set aside any change in his or her legal position to which he or she may consent as a result of the non-disclosure. For example, a person in a fiduciary position has a duty to disclose material information when entering into a contract with his or her beneficiary, in the sense that a failure to make such disclosure will entitle the beneficiary to rescind the contract and to reclaim any property transferred under it."

 

Section 5. defines the meaning of "gain" and "loss" for the purposes of sections 2 to 4. The definitions are essentially the same as those in section 34(2)(a) of the Theft Act 1968 and section 32(2)(b) of the Theft Act (Northern Ireland) 1969. Under these definitions, "gain" and "loss" are limited to gain and loss in money or other property. The definition of "property" which applies in this context is based on section 4(1) of the Theft Act 1968 (read with section 34(1) of that Act) and section 4(1) of the Theft Act (Northern Ireland) 1969 (read with section 32(1) of that Act). The definition of "property" covers all forms of property, including intellectual property, although in practice intellectual property is rarely "gained" or "lost".

 

Section 6 makes it an offence for a person to possess or have under his control any article for use in the course of or in connection with any fraud. This wording draws on that of the existing law in section 25 of the Theft Act 1968 and section 24 of the Theft Act (Northern Ireland) 1969. (These provisions make it an offence for a person to "go equipped" to commit a burglary, theft or cheat, although they apply only when the offender is not at his place of abode.) The intention is to attract the case law on section 25, which has established that proof is required that the defendant had the article for the purpose or with the intention that it be used in the course of or in connection with the offence, and that a general intention to commit fraud will suffice. In R v Ellames 60 Cr. App. R. 7 (CA), the court said that:

"In our view, to establish an offence under s 25(1) the prosecution must prove that the defendant was in possession of the article, and intended the article to be used in the course of or in connection with some future burglary, theft or cheat. But it is not necessary to prove that he intended it to be used in the course of or in connection with any specific burglary, theft or cheat; it is enough to prove a general intention to use it for some burglary, theft or cheat; we think that this view is supported by the use of the word 'any' in s 25(1). Nor, in our view, is it necessary to prove that the defendant intended to use it himself; it will be enough to prove that he had it with him with the intention that it should be used by someone else."

Subsection (2) provides that the maximum custodial sentence for this new offence is 5 years.

 

Section 7 makes it an offence to make, adapt, supply or offer to supply any article knowing that it is designed or adapted for use in the course of or in connection with fraud, or intending it to be used to commit or facilitate fraud. For example, a person makes devices which when attached to electricity meters cause the meter to malfunction. The actual amount of electricity used is concealed from the provider, who thus makes a loss. Subsection (2) provides that the maximum custodial sentence for this offence is 10 years.

In the Magistrates Court the sentence for a single offence may not exceed 12 months. However, Section 78 of Powers of Criminal Courts Act (Sentencing) Act 2000 imposes a maximum of six months. This was due to be changed in November 2006 and will change if Section 154 Criminal Justice Act 2003 is activated. As at 16 January 2007 it has not been activated so the maximum penalty is restricted to six months.

 

Section 8: "Article"

Section 8 extends the meaning of "article" for the purposes of sections 6 and 7 and certain other connected provisions so as to include any program or data held in electronic form. Examples of cases where electronic programs or data could be used in fraud are: a computer program can generate credit card numbers; computer templates can be used for producing blank utility bills; computer files can contain lists of other peoples' credit card details or draft letters in connection with 'advance fee' frauds.

 

Section 12 repeats the effect of section 18 of the Theft Act 1968. It provides that if persons who have a specified corporate role are party to the commission of an offence under the Act by their body corporate, they will be liable to be charged for the offence as well as the corporation. By virtue of subsection (2)(a) and (b) this offence applies to directors, managers, secretaries and other similar officers of companies and other bodies corporate. Subsection (3) provides that if the body corporate charged with an offence is managed by its members the members involved in management can be prosecuted too.

 

Itis now too late to reverse your position, as a report has today been passed to the OFT.However, I am conscious of the possibility that their enquiries may be protracted and so therefore I have today made a formal complaint to the Police, providing a S.9 Witness Statement, together with first generation copies (taken by the Police) from the documents you sent to my address. My request for this matter to be investigated under the Fraud Act 2006 has been accepted and enquiries are today commencing.

 

hope this helps.

[fedup74]

Well time is up today for CCA request. They have sent out a form, with their witness statement from the court, which says on the top" fixed-sum loan agreement" There is a load of figures:- amount of credit, duration of credit total amount payable, timing of repayments and amounts of each repayment with APR of 15.5%. This is no way the original agreement as it is not signed by my partner or anyone from loan co.

At the very bottom the date on the paper is 2005- he started loan in 2006:confused:(I think this is just a date off the computer when it was printed.) What do we do now. Could this pass as the signed document we requested(even though nobody has signed it) If not who do we report it to? Have requested SAR cos the solicitor put in his court papers that there were no charges- on his financial statement none appeared but on another financial statement from the loan co there are at least 18 charges which are not on solicitors copy also opening balance on his copy is £30k and from loan co it is £15k Where do we go from here please?

[debbbbsy]

from what I've learnt....no signiture...its not an enforceable debt. If they are having to recreate an agreement then they obviously don't have a TRUE copy of your origonal.There are some really good letter templates on this forum....don't let them bully you.Be strong.

[fedup74]

Thanks debbbbsy. when you say about good letter templates which ones should I be looking at? Also do I report them to trading standards or the ombudsman want to be a pain in their butt now!!!!

[fedup74]

Letter received from solicitor today saying "A 'copy' does not mean it has to be a copy of the actual original agreement. Your reference to 'default' of service is therefore without merit and there has been no failure to comply. As for prohibition against enforcement there is already a judgement (following your own admission) and as such enforcement has already taken place well before your request." We did request this before our hearing at our local county court but it was only 11 daysof the request before the hearing. Looking at the original court form the DMC has ticked I admit this debt of £28928.73:( and sent it to the court. SAR information; they have enclosed copy data ie trancripts of telephone and email conversations and the one sheet off the original court admission which I can just about make out the figures written down. HELP!!! Is he right to say a 'copy' of the enforceable document can be just terms and conditions (even though they could have put anything down) Should we just give up? We have sent an SAR to the loan company, should we just wait for that information. Incidentally the solicitor never mentioned anything to do with the 'admin charges' on the statement from loan company which were not on his court statement.

[nicklea]

Ok, so it sounds as though you have already admitted the debt and had a CCJ awarded against you. Is this correct?

 

What you need to do is to see if there are any grounds for getting it set aside. However, it may prove difficult if you have already admitted the debt to the court. If you simply failed to respond to the summons, or didn't respond in time then you will have a better chance of getting the CCJ set aside.

 

i would sugges you search the site for threads on setting aside a CCJ - there are some very informative threads

 

for example:-

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/125173-getting-ccj-overturned-5.html

[fedup74]

Thanks for that nicklea some good advice will have a good read of that whilst on nights tonight:( Worried if we do try for a set aside the judge will disagree and force us to pay more or a forthwith judgement and have to pay it all without the chance of installments. What does give me satisfaction is that the very first letter off solicitor was that his client was accepting £88 per month and it would take too long to pay off so the dj ordered my partner to pay £89 per month:-D. What piddles me off is the solicitors fees of £4k added to the already extortionate balance of £24k for a £15k loan. If only we knew about this wonderful forum when we got the original judgement from Northampton instead of trusting our debt management company to write out a defence:( Also the fact that the loan co have admitted they cannot put their hand to the original agreement and the solicitor comes up with a supposed 'copy' of it which as far as I am concerned could, and has been written at any time, with just about any amount added on to make their claim so high and their solicitor is a smug £$"* and knows he can get away with it cos the debt is already admitted. There, rant over feel a bit better now!!! Seriously thanks for your input and advice it really is appreciated:wink:

[debbbbsy]

DO NOT GIVE IN.That is exactly what they want.

Terms & conditions are not an enforeable debt. However the judgement is now considered your agreement.

 

OK... you have to prove the ccj was innacurate. It was made up of charges & interest that you have now discovered [once you get all the statements] are unlawful. That will be your main argument,the fact that they cannot produce a CA will help,[but cannot be your whole defence].

[debbbbsy]

I took a template off this site in march, but can't find it now.I Will scan mine & send it tonight.

 

As for the FO,when we spoke to them,we were told you have to put in a complaint to the bank first,if your not happy with there response then you can complain.

[fedup74]

Thankyou so much debbbsy as usual always there. :wink:I think I will just have to wait for the SAR stuff to come through from OC then sift through that. I know that solicitor is wrong cos he didn't have the balls to put the charges on his statement which was given to the court yet on the statement from OC there are 18 charges of £15, doesn't add up to much I know, but it proves the solicitor is a big fat liar cos he stated in the court witness statement hat there were no charges. Plus then he had the nerve to add on £4k "collection fee" He makes me so mad:mad: I will do that and compare what we get from OC to his financial printout (the two already supplied are different but the OC has written on the top "without prejudice" Am I right in thinking this cannot be used as evidence in court? Sure I have seen that written somewhere. The solicitor is convinced that he is right in saying we don't need a copy of the original signed agreement but on the supposed 'agreement' he sent there was a date on the bottom of 2005 loan wasn't taken out till 2006:confused: Thanks for your advice and support will keep plodding!!

[debbbbsy]

yep "without prejudice" cannot be referred to in court.But why? Its normally used when your trying to negotiate with someone.......or there telling lies in the letter as if;) Don't be afraid to question them about this.

Only agreements drawn up after 2006[will check exactly what month],the agreement does not require a signiture[bloody labour government did this].

Pre this new ruling......an agreement is only enforceable if it has a signiture,if it clearly states terms & conditions & interest rate,all together. Tell him he is WRONG.

[debbbbsy]

The consumer credit act changed in march 2006,my understanding is that an agreement drawn up after this date does not require a signiture to be enforced. Agreements before this are governed by the 1974 act and DO need a signiture to be enforced.

Me thinks this solicitor is 'confused'.If they state it was created in 2005....might be wise not to dispute this just yet.

[fedup74]

Wouldn't you know it loan was taken out in June 2006:rolleyes: Buggers!!! Will just have to wait and see what lies oops I mean paperwork OC come up with. I was going to write another letter to the solicitor asking him (AGAIN) to explain charges but I couldn't be bothered will probably go to CAB see what they make of it as from bitter experience debt management company are out of their depth. Once again THANKYOU.

[nicklea]

The consumer credit act changed in march 2006

 

Only certain parts of it did. Other parts didn't come into effect until 2007 and yet other parts didn't come into effect until two months ago and some won't come into effect until October of this year.

 

,my understanding is that an agreement drawn up after this date does not require a signiture to be enforced.

 

I believe you are wrong here. I would be interested to know your authority for this. Perhaps, you may be thinking about s15 which deals with the repeal of s127(3) - (5)?

[fedup74]

Letter received from OC today with regard to SAR they want a photocopy of his passport(not got one cos we can't afford any holiday not even Wales!) or his drivers licence(which is in about 6 pieces-one of the old paper ones) also they want him to sign the bottom NO NO Can they refuse to send info without passport/licence I will just tell him to put a line thru his signature?

[fedup74]

Hi Nicklea, are you saying that there would have to be a signature to make it enforceable? I sure hope so!!

[DandD]

The point of the forum is to create discussion. If I'm wrong that is why we need more people posting. Fedup & others will benefit from this knowledge.

 

No signiture....no enforceable debt.

 

They don't need his signiture to prove who he is. If they are corresponding to him at his address & he is repling...what more do they need....oh yeh...his signiture so they can use photoshop. Don't fall for it. debbie

Edited June 4, 2008 by DandD

[fedup74]

Hi debbie will get him to put a straight line through or just print his name. What's got me worried is the solicitor seems to think he has sent the right agreement I reckon he has just made it up & put my partners name at the top. As I said OC have already admitted "they can't put their hands on the agreement":D but the solicitor(smart bum) has said the debt is already enforced cos the DMP people basically admitted the debt on the court papers. The judge ordered the solicitor to put us in the picture as to how the debt had grown so much but according to him the debt started off at £30k(on a £15k loan:eek:) according to the OC it was £19k very confused!!