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RBS, defaults, DCA's and SAR - answers please?


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RBS have been recreating agreements for a while now.

 

 

 

Crikey, I can't believe they're actually BOASTING they're committing fraud!:-o:-o

They'll be telling us next that the pound notes they dish out over the counter don't have to be issued by BofE & that they have an excellent guy in the backroom producing true copies!!

 

A copy of this should be enclosed in every court bundle involving RBS & CCAs with an appropiately worded request to the court that the original must be produced at a hearing.

Any knowledge I possess or advice I proffer is based solely on my experiences in the University of Life. Please make your own assessment of legality, risks & costs before taking any action.

 

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A letter from the OFT outlining sec77-79.

 

Dear Mr Paine

 

Consumer Credit Act 1974 (‘the Act')

Our Ref: Epic/Enq/E/1760

 

Thank you for your email received on 31 March about your enquiry into the Consumer Credit Act Sect 77 & 78.I apologise for the delayed response.

 

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.

 

We note your concerns that 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.

 

If you would like to make a formal complaint. Please fill in the attached complaint form.

 

Thank you again for writing to us.

 

Yours sincerely

 

 

Olu Ademolu

Markets and Projects

Enquires and Preliminary Investigations Centre

All help is merely my opinion only - please seek legal advice if you need to as I am only qualified in SEN law.

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A letter from the OFT outlining sec77-79.

 

Dear Mr Paine

 

Consumer Credit Act 1974 (‘the Act')

Our Ref: Epic/Enq/E/1760

 

Thank you for your email received on 31 March about your enquiry into the Consumer Credit Act Sect 77 & 78.I apologise for the delayed response.

 

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.

 

We note your concerns that 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.

 

If you would like to make a formal complaint. Please fill in the attached complaint form.

 

Thank you again for writing to us.

 

Yours sincerely

 

 

Olu Ademolu

Markets and Projects

Enquires and Preliminary Investigations Centre

 

The above letter is not a legal view it is an enforcement officer's interpretation of the section. I have pushed the OFT to obtain a legal view through their lawyers and it has been confirmed to me and national press that the debtor's name and address MUST be included for compliance.

An appeaser is one who feeds a crocodile, hoping it will eat him last. <br />

Winston Churchill

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The scan Paul posted simply staggers me but reinforces my belief that the banks are absolutely unafraid of the regulatory bodies that we complain to, I'm wondering if it's worth contacting my MP over this and sending him a copy of Paul's scan?

 

been trying to catch up on recent posts but am still confused. I can post scans of the "agreement" they sent me along with scans of the unsigned original I own later today. Also, am I to understand that what they have provided complies with the act, but as it is not an actual "true copy" but a reconstructed one and does not contain my signature it is unenforceable? Just need to know if because of this I can withold payment? Also, what's an appropriate response?

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The scan Paul posted simply staggers me but reinforces my belief that the banks are absolutely unafraid of the regulatory bodies that we complain to, I'm wondering if it's worth contacting my MP over this and sending him a copy of Paul's scan?

 

been trying to catch up on recent posts but am still confused. I can post scans of the "agreement" they sent me along with scans of the unsigned original I own later today. Also, am I to understand that what they have provided complies with the act, but as it is not an actual "true copy" but a reconstructed one and does not contain my signature it is unenforceable? Just need to know if because of this I can withold payment? Also, what's an appropriate response?

 

I have had it confirmed by a respectable consumer barrister that the creditor may create a "true copy" to comply with section 77-79 however, they must produce a signed agreement for enforcement under section 127.

 

I would write and ask them if they have recreated the copy from banking records or from the original.

 

Imo recreating from bank records is an abuse of the CCA 1974. However, creating a copy from the original would be compliant.

 

As we know banking records can be incorrect,

An appeaser is one who feeds a crocodile, hoping it will eat him last. <br />

Winston Churchill

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Thanks Paul - do you have any links?

 

No links i'm afraid - the OFT don't seem to want to make this public. However, it was confirmed to the BBC when my case was featured on radio 4 and to a Guardian journalist.

 

To be honest it's plain and obvious that the name and address needs to be included has it is required by the 1983 regs.

An appeaser is one who feeds a crocodile, hoping it will eat him last. <br />

Winston Churchill

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I can only seem to find the 2004 amended regs - do you have any links to the 1983 ones?

 

No link - they're on my old hard drive, i'll post the relevant info when sorted.

An appeaser is one who feeds a crocodile, hoping it will eat him last. <br />

Winston Churchill

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Will be interested to know the specific part of the 1983 regs.

Advice offered by ENRON is without prejudice and is for your judgement as to whether to take it. You should seek the assistance or hire of a solicitor or other paid professional if in doubt.

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Will be interested to know the specific part of the 1983 regs.

 

I do have a copy of the 1983 regs but it's in pdf & I can't attach on this thread but think this may be the section that Paul is referring to:

 

'[2 Form and content of regulated consumer credit agreements]...

 

....(4) Subject to paragraphs (5) and (9) below, the information, statements of the protection and remedies, signature and

separate boxes which this regulation requires documents embodying regulated consumer credit agreements to contain,

shall be set out in the order given by paragraphs (a) to (f) below under, where applicable, the headings specified below--

(a) the nature of the agreement as set out in paragraph 1 of Schedule 1 to these Regulations;

(b) the parties to the agreement as set out in paragraph 2 of Schedule 1 to these Regulations;'

 

Schedule 1

INFORMATION TO BE CONTAINED IN DOCUMENTS EMBODYING REGULATED CONSUMER CREDIT AGREEMENTS OTHER THAN MODIFYING AGREEMENTS

Regulation 2(1)

Parties to agreement

2. All types (1) The name[, postal address and, where appropriate, any other address] of the creditor.

(2) The name[, postal address and, where

appropriate, any other address] of the debtor.

 

 

If you want me to send you a copy of the Regs, Tiglet, PM me & I'll send it over.

Any knowledge I possess or advice I proffer is based solely on my experiences in the University of Life. Please make your own assessment of legality, risks & costs before taking any action.

 

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I do have a copy of the 1983 regs but it's in pdf & I can't attach on this thread but think this may be the section that Paul is referring to:

 

'[2 Form and content of regulated consumer credit agreements]...

 

....(4) Subject to paragraphs (5) and (9) below, the information, statements of the protection and remedies, signature and

separate boxes which this regulation requires documents embodying regulated consumer credit agreements to contain,

shall be set out in the order given by paragraphs (a) to (f) below under, where applicable, the headings specified below--

(a) the nature of the agreement as set out in paragraph 1 of Schedule 1 to these Regulations;

(b) the parties to the agreement as set out in paragraph 2 of Schedule 1 to these Regulations;'

 

Schedule 1

INFORMATION TO BE CONTAINED IN DOCUMENTS EMBODYING REGULATED CONSUMER CREDIT AGREEMENTS OTHER THAN MODIFYING AGREEMENTS

Regulation 2(1)

Parties to agreement

2. All types (1) The name[, postal address and, where appropriate, any other address] of the creditor.

(2) The name[, postal address and, where

appropriate, any other address] of the debtor.

 

 

If you want me to send you a copy of the Regs, Tiglet, PM me & I'll send it over.

 

Correct.

An appeaser is one who feeds a crocodile, hoping it will eat him last. <br />

Winston Churchill

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UPDATE:

 

received latest threat-o-gram from robbinscum way today, this one says its from their legal services advisor LESLEY BOOTH and that she's preparing my file and if I want to avoid court action and further consequences I should call her IMMEDIATELY! There's then the usual deductions from wages, seizure and sale of property etc. but the bit that interests me is the section called "Court Fees solicitors costs and interest" where it goes on to say

 

"When court action is taken additional costs and interest are added to the debt you owe. These costs can be substantial and THEY CAN BE AVOIDED. A creditor will take court action only if you fail to respond at all. Responding to letters and making payment arrangements may prevent these costs and interest being added. I advise you in all cases to pick up the telephone and save yourself ££££££££££££'s"

 

I cannot begin to start to pull this apart to count how many breaches of protocol and procedure there are and I'm sick of it. Their responses to my CCA have been posted here and correctly worded letters have been sent to and received by them but they have managed to stop playing with their lego long enough to threaten "we may do this" and "we might do that". I've already reported them to the OFT who have replied saying they are instigating an investigation but this isn't enough - I want and mean to go after them. How do I instigate proceedings for breach of the 1970 administration of justice and the 1997 harassment acts?

 

BTW the "outstanding balance" is £84.72 (personally, I don't find it particularly outstanding, I don't even consider it to be noteworthy! ;))

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The top & bottom of all this is simply that you dont have to pay them a penny ever again unless they are preparred to take you to a county court, regardless of what agreements they do or dont produce.

They have no power/authority over you - only a county court does & even then, they will be on your side by way of taking into account your outgoings etc... :)

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UPDATE:

 

received another letter from RBS today, it's a list of what they have complied with under my SAR with the dates they sent the information to me. Only trouble is, it's still incomplete in that they have only sent partial information in answer to my original request and it only goes back to may 2001 when my accounts went default, I requested ALL info since the account inception (approx june 1995) to allow me to claim the charges from 1998 to present (I paid a LOT of charges in 98-99 due to changing jobs and salary payment dates, this meant I missed dd's and went over my overdraft a few times then got stuck in the charge loop because account was overdrawn due to charges being taken etc.)

 

I'm moving house tomorrow so I won't be able to sit down and go through it properly for a few days, and probably won't be able to access here until my b/band gets switched on at my new address which may take up to a week so any quick replies will be much appreciated - I have until 1100am tomorrow 12th sept.

 

thanks guys

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UPDATE:

received latest threat-o-gram from robbinscum way today, this one says its from their legal services advisor LESLEY BOOTH and that she's preparing my file and if I want to avoid court action and further consequences I should call her IMMEDIATELY! There's then the usual deductions from wages, seizure and sale of property etc. but the bit that interests me is the section called "Court Fees solicitors costs and interest" where it goes on to say

"When court action is taken additional costs and interest are added to the debt you owe. These costs can be substantial and THEY CAN BE AVOIDED. A creditor will take court action only if you fail to respond at all. Responding to letters and making payment arrangements may prevent these costs and interest being added. I advise you in all cases to pick up the telephone and save yourself ££££££££££££'s"

 

The biggest load of DCA begging bull**** ive ever read :rolleyes:

They know darn well that they wont take you anywhere near a court as its not in their best interests to.

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The top & bottom of all this is simply that you dont have to pay them a penny ever again unless they are preparred to take you to a county court, regardless of what agreements they do or dont produce.

They have no power/authority over you - only a county court does & even then, they will be on your side by way of taking into account your outgoings etc... :)

 

thanks for the quick response, I understand all this but would still like to get them done!! :wink: I don't think I'll have to put up with it for much longer anyway as I move house tomorrow and they aint getting my new address

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just had a very interesting conversation that I think we should all know about - I just tried to ring trading standards re this and got through instead to their filtering service, consumer direct. The lady I spoke to told me that I now can't chase someone for breach of the administration of justice act section 40 as this particular act has now been repealed and replaced with CPUT 2008.

 

This is something I did not know, maybe I should do some more reading up in the forums!!

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Only to say, under our SAR, we got statements from the day the accounts were opened in March 1992, it took a while but they provided 16 years worth of statements for 4 accounts.

They have the info, they just choose whether or not to provide it.

Debs

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Only to say, under our S.A.R - (Subject Access Request), we got statements from the day the accounts were opened in March 1992, it took a while but they provided 16 years worth of statements for 4 accounts.

They have the info, they just choose whether or not to provide it.

Debs

 

that's what I've had from others on this site as well, how can I make them give me the info? they've already had the LBA and their response seems to be "so what"

 

has anyone got a linky on how to instigate proceedings?

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Spas - you might find this ConsumerWiki useful for information on issuing N1 to get court order, although there have been reports of them ignoring this too & whilst you may then go for compensation, it still wouldn't fulfil your intentions but it is def. worth a go. I'm presently pursuing this route myself.

Data Protection Act: Non-Compliance - Consumer Wiki

Any knowledge I possess or advice I proffer is based solely on my experiences in the University of Life. Please make your own assessment of legality, risks & costs before taking any action.

 

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  • 3 weeks later...

if I follow the court route what's the chance of getting any of my information from over 6 years ago? all the stuff they've sent me - and it's not a lot - is only from 2001 when the account went default and was passed to CMS, but I need the older info to be able to start my spreadsheet/claim? surely I can't do what they do and just make it up? ;)

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