CCa 1974 and credit cards

[jayjay11]

Letter from TSB today + 8 pages that could apply to anyone ie para's saying "person named in agreement "and "APR as stated in the original agreement " Advice please is there a draft for the next letter ? I would say this reply falls well short of s78 requirment am i right

tmpE3DF.rtf

[42man]

Edit this to suit...

 

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 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

[jayjay11]

Thanks for that i'll send it today

[jayjay11]

Can someone please look over this that came from tsb to check if it is enforceable Thanks

[42man]

Too small to read, you might have to use Image hosting, free photo sharing & video sharing at Photobucket (free..)...and there is a guide on this thread here - http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/161226-credit-cards-dcas-2.html

[stupidboy]

Hi Folks,

 

This site is a real eye opener! I can't seem to start a new thread so maybe this could be moved if it is inappropriate?

 

I am in a mess, as expected. One company took us to court for not paying the agreed revised sum even though we had been! They kept returning the paymentsand we kept trying. After six months they took us to court and got a CCJ.

 

We then appealed and got it removed on the basis that we continue payments without mistake and the company got a charge against our house to secure the debt. The Judge was very firm about our continued repayments.

 

Can I still start this s.172 process under these circumstances?

 

I'd really appreciate a knowledgable answer.

 

Regards,

 

Stupidboy.

[jayjay11]

try this http://i467.photobucket.com/albums/rr32/jayjay11/21-10-2008193927.jpg the photo copy they sent is almost unreadable i have tryed to enhance it as much as i can

Edited October 21, 2008 by jayjay11
add text

[atwozee]

No prescribed terms – no signature of creditor – ineligible but they might still have the original which would negate that point.

Unenforceable in my opinion but maybe someone more knowledgeable can confirm.

[jayjay11]

I have rescanned the agreement and enhanced it as much as i can advice please.

http://i467.photobucket.com/albums/rr32/jayjay11/ccatsb.jpg

http://i467.photobucket.com/albums/rr32/jayjay11/ccatsbside2.jpg

[The GodMother]

sorry but this looks enforcable. It has the t+cs and prescribed terms from what i can see.

 

Maybe someone with more knowledge can comment as well.

[atwozee]

I can’t see a signature of the creditor or a place on the agreement where one would go which makes it improperly executed and therefore unenforceable. The t&c’s and prescribed terms may be relevant if the original document is two sided but if it’s two separate sheets then nothing ties one sheet to the other.

[jayjay11]

Where do i go next then on the improperly executed route? which sections can i quote ? or is there a template can someone help please

[atwozee]

I think it’s improperly executed others may not so you might want to wait for a second opinion.

Only you can decide what you want to do from here and it depends on what you are trying to achieve with the creditor. If I believe that I have been sent an unenforceable agreement I stop payments and let them know the reason why – if they want to take me to court to enforce the debt then that’s up to them.

[The GodMother]

the only way i can see that u can agrue that is is no valid is the condition of it. It is of poor quatily and you could argue that as it cant be read clearly it is not legal which the CCA 1974 says.

 

Also the cancelation policy can you type up what it says as i cant read that.

[atwozee]

Write to them and tell them that the copy they have sent in response to your request is illegible and you therefore require them to copy the original document and send the copy to you. You really need to establish if they can produce the original agreement in court because the one they have sent isn’t really readable.

Again this is only my opinion but I think a judge would have great difficulty enforcing the agreement on the basis of what’s been sent.

[jayjay11]

Thanks GM and atwozee so is the fact that there is no creditors signature relevent??

 

The "right to cancel " says from what i can see :-

once you have signed this agreement you will have for ashort time a right to cancel it.E xactdetails of how and when you can do this will to sent to you by post by us.

[atwozee]

The Consumer Credit Act states -

61. — (1) A regulated agreement is not properly executed unless—

(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and

Then it states –

Consequences of improper execution.

65 — (1) An improperly-executed regulated agreement is enforceable against the debtor or hirer on an order of the court only.

So in your case it would be up to a judge to make a ruling on whether the agreement was enforceable. It would have to be readable for a start.

[The GodMother]

a couple of things.

 

1) as it is unreadable u could argue not enforcable as u cant prove it was fully compliant to the CCA1974 for it to be a properly executed agreement.

 

2) did u ever recieve anything from them re the cancelation details?

PLEASE NOTE. I would advise that you say nothing about the cancelation details IF u want to argue no compliance re unreadable until u recieve a readable document.

3) yes u are rite but my post saying it was enforcable would be in line with section 65 as the courts could enforce it as it may be classed as a mere techincality and trying to avoid your debts.

 

Whatyou need to be able to do is see this from all sides. Yes the creditor has kinda complied with the request as the docs have been supplied.

 

BUT the doc is unreadable and not signed by the creditor. The debtor is right to aruge unenforcable but will have to think about it first as it can be court enforced even without the creditors sig. All though this one is unreadable giving them the chance to send a legabl doc does look good on you in court.

 

The courts side of this, Please note this is my opoinion of the courts side only, They have not produced a legable doc and as a result the agreement is unenforcable despite that the debtor has signed it and using the techinacility that it is not creditor signed is not necessarily a good one.

[jayjay11]

ok think i will write to say the copy is unreadable and minus the creditors signature therefor i consider it unenforceable and ask for a readable copy of the properly executed agreement. how does that sound? any coments please???????

Edited October 23, 2008 by jayjay11

[The GodMother]

NO.

 

U want to go with only one. the creditors sig is not important because the courts can still enforce it. The FACT it is unreadable, illegable, is more important.

[jayjay11]

ok thanks is the issue to find out if they have the original and the copy they sent is a scan would the original have to be produced in court ?? so if they dont have it they would lose????

[The GodMother]

they can send u a scan photocopy or a email of it but it has to be a true copy and there has to be a original copy producable at the courts. They cant say to the court, all thought they do try to, this is what jayjay would have signed. Please enforce this a we only have a blank piece of paper. You could always argue u have never seen that piece of paper in your life.

[jayjay11]

Could someone advise what i might do next Does the default letter i sent cover the fact the copy agreement was unreadable or do i need to send a further letter,if so is there a template?? If someone could help please???

[atwozee]

They have actually responded to your request but if you can’t read the agreement then I would write to them to say that you are not satisfied with their response to your request. I would also tell them that you are putting the account in dispute until such time as they send you a legible copy.

They might send you a better copy or they might not.

[jayjay11]

ta

Edited October 26, 2008 by jayjay11