M&S, changed from Storecard to Creditcard .

[ajs444]

The OFT did not want to get involved and I quote:-

"The legality of the CCA woyuld have to be decided by a Court"

In other words go away and don't bother us!!!!

[citizenB]

The OFT did not want to get involved and I quote:-

"The legality of the CCA woyuld have to be decided by a Court"

In other words go away and don't bother us!!!!

 

Hmmm, sounds like something the FOS would be saying along with their moralising "if you had the money pay it back".

 

If it was the OFT you could send them a copy of the following and ask "when did their decision as shown in the letter below change".

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/196114-miss-muppet-mbna-costs-7.html

 

Original letter is shown in posts 35 and 37 in the link above. Text format below.

 

 

THE CONSUMER CREDIT ACT 1974 - Sections 77 and 78

Summary

On request and when accompanied by £1, a consumer has the right to:

• a copy of their executed agreement

• any other document referred to in it

• a statement showing

- the total sum paid under the agreement by the debtor

- the total sum which has become payable under the agreement by the debtor but remains unpaid, and the various amounts comprised in that total sum, with the date when 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. If the creditor is unable to give this information, he can state instead how the dates and amounts fall to be ascertained.

The copy of the executed agreement need not be an exact copy but it must be a ‘true copy’ and not some reconstruction of what the original might have been and it must contain the same terms as the original. Where the terms have been varied as provided for within the agreement, the copy of the original agreement must be accompanied by a document setting out the current terms, as varied. Certain details may be omitted from the original agreement eg the signature but the debtor must be in no doubt as to the true nature of his obligations under the loan.

Should no original agreement be in existence it is very hard to say that the copy the creditor offers to the debtor is, in fact, a true copy as there would be no original with which to compare it. In our view the onus of proof would be on the creditor to show that the copy is a true one and where none existed he may have difficulty discharging this. Neither should creditors suggest that a consumer has signed a credit agreement where they are unable to provide evidence to support this — to do so is likely to be a misleading action under Regulation 5 of the Consumer Protection from Unfair Trading Regulations 2008 (the CPRs) and would also constitute an unfair or improper business practice.

In our view a debt collector who has bought the debt is the ‘creditor’ and as such takes on the liabilities of section 77.

Under section 77(4), if the creditor is unable to provide this information, he is not entitled to enforce the debt while he remains in default (Decriminalised from 26 May 2008 on the coming into force of the CPRs).

Legal Argument

A copy of the executed agreement

 

Under the prescribed condition, section 77 of the Act requires the debtor to (Typo, she means Creditor I think) ‘...give the debtor a copy of the executed agreement (if any)....‘. The ‘if any’ most naturally refers to the exception for agreements older than 1985 (Not sure this is correct, "if any" was inserted to cover Verbal Agreements).

Where a creditor receives a request to supply a copy of the executed agreement, the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (‘1983 regs’) apply. Regulation 3(1) sets out the basic position that ‘every copy of an executed agreement... shall be a true copy’.

Regulation 3(2) goes on to concede that there may be omitted from this true copy various information such as details which are not required to be in the agreement by law: the signature box, signature (it should be noted that sub-ss 3-5 of section 127 do not apply to agreements entered into after 1 April 2007.A Court may then, for example, enforce unsigned agreements if it considers it is just to do so.) and date of signature. In our view the effect of Regulation 3(2) is that the creditor is only obliged to send out a generic copy of the agreement the debtor has signed up to. The creditor is not obliged to make an actual photocopy of the agreement.

However, the copy does have to be a ‘true copy’. This is a technical term, which has been discussed in a number of cases, mostly relating to bills of sale and the need to register a ‘true copy’ of the bill with the High Court. These cases come from the days before typewriters, when copies were made by hand. The consequences of filing a copy which was not a true copy were severe, since the bill would then be void and the creditor deprived of his security.

Meaning of ‘true copy’

 

In this context, the courts decided that a ‘true copy’ need not necessarily be an ‘exact copy,’ but it must be ‘so true that nobody reading it can by any possibility misunderstand it’ or be misled by it (In re Hewer ex parte Kahen (1882) LR 21 Ch.D. 871 at 875). The copy must contain ‘every material provision which is contained in the original’ (except that if the defect is made good by reading the document as a whole, the omission will not be fatal) (Court of Appeal in Burchell v Thompson [1920] 2 KB 80 at 98-99). Further, it is not sufficient for the copy merely ‘to state with complete accuracy in a summary form the effect of the stipulations contained in the original. It is not merely a document that is to state the true legal effect of the original; it is to be a copy of the original’ (per Atkin LJ in Burchell at 105).

Hewer, ex parte Kahen - the filed copy of the bill omitted the precise day of the month on which payment was to be made. The court held this was trivial, and no debtor would be misled by it.

Sharp v McHenry (1888 ) LR 38 Ch.D. 427- the copy contained blanks which were not in the original. The court decided that the blanks were unimportant, since the omitted words were not required for the original bill to be valid.

Burchell v Thompson [1920] 2 KB 80 - the copy failed to include the words ‘per annum’ after the interest rate of 55%. The reader of the copy would have to guess whether the interest was per annum, per month or something else but as one could sensibly assume, correctly, that it was per annum it was a true copy.

Commercial Credit Company of Canada Ltd v Fuiton [1923] AC 798 - suggested further that where there are a raft of smaller differences in a bill of exchange copy, this could prevent it being a true copy. However where the differences were such as to make the copy contract actually different to the original, the copy will not be true. Lord Sumner, speaking of the man who may wish to refer to the copy, concluded that ‘the Act promises him ... a true copy, not a puzzle. He is to inspect it, not to recover the original by a process of conjectural emendation’ (at 807).

Terms and Conditions

 

Regulation 7(1) of the 1983 Regs requires that a requested copy of an agreement which has been unilaterally varied under section 82(1) of the Act, shall be accompanied either by the latest notice of variation or a copy of the terms and conditions as varied. Regulation 7(2) extends the principle to copies of varied securities supplied either to the consumer or the surety.

Debt collectors as creditors

A consumer credit debt can be assigned in two ways: in law under the Law of Property Act 1925 or in equity but in practice we need to be concerned only with statutory assignments.

For a debt to be assigned in law, there are three conditions:

• the assignment must be absolute.

• the assignor must make the assignment in writing.

• express notice of the assignment must be given in writing to the debtor (see section 136 of the Law of Property Act 1925).

 

The reason the debt is assigned is immaterial. For instance, books of loans may be sold on to be collected as an asset rather than as a discounted debt.

In some instances, the debt collector may have purchased a debt but not have the relevant agreement. Whilst, in general, ‘liabilities’ cannot be assigned there must be a question mark over whether ‘duties’ are the same. This is important since there is a rule, expressed in Tito v Waddell (No 2) [1977] Ch 106 at 289 to 302, that where a benefit is conditional upon some burden, the assignee must also take the burden. An example is where the contractor has the right to mine on condition that they pay compensation to those disrupted by the mining. If they assign their right to mine, the assignee takes this right subject to the duty to pay compensation.

Therefore, there is a strong argument that under the Act, the right to payment is never absolute. It is always subject to duties (many of which are imposed under the Act). For instance, the right to enforce the credit agreement at all is subject to the duty to comply with section 77 or 78. This duty is not a ‘liability’ as such under the credit agreement but is a condition of the right to repayment.

 

There has been a suggestion that debt collectors can avoid complying with section 77 and 78 by claiming that the agreement is no longer `live’ in some way as it has been ‘terminated’ based on section 103 of the Act. This talks of a ‘trader’ who was the creditor under a regulated agreement, implying that ‘trader’ is no longer a creditor once an agreement is ended. Section 103, however, deals with where the customer no longer owes any money at all and therefore it is correct to say that he is no longer a debtor and the trader is no longer his creditor. Where money is still owed, section 103 would not apply, since the consumer would not be entitled to a termination statement.

The first issue on when the debt collector becomes the creditor is relatively simple. Section 189(1) of the Act defines ‘creditor’ as ‘the person providing credit under a consumer credit agreement or the person to whom his rights and duties under the agreement have passed by assignment or operation of law.’

 

Where the debt collector is not acting as the creditor’s agent, or otherwise on his behalf, the only legal basis he can have for demanding payment from the debtor is if the creditor’s rights and duties have been assigned to him. Therefore we can be reasonably confident that a debt collector who has bought the debt is the ‘creditor’.

 

Unpalatable though section 77 and 78 may be for some creditors, if the debt collector is unable to prove the debt, they should be more careful about the debts they buy. They cannot complain that the sections are somehow unfair as it is in the Act and so must be complied with. It is up to them to ensure they purchase and maintain sufficient records to be able to prove the debt and comply with the other requirements of the Act.

 

Misleading statements to debtors

 

Sections 77 and 78 refer to supplying a copy of the ‘executed’ agreement within 12 working days of receiving a written request from the debtor. Failure to do so makes the agreement unenforceable against the debtor until a copy is provided. In addition, if the default continues for a period of 1 month the creditor is in breach of the Act.

Execution involves signing the agreement. If no agreement has been executed, it is impossible to supply a true copy of the agreement. Should a creditor supply a copy agreement, even though the debtor has never signed any agreement with that creditor, no indication should be given that it is a true copy or a copy of an executed agreement. To do so may contravene Regulation 5 of the CPRs and be an unfair or improper business practice.

 

The consequence of the debtor not having signed a credit agreement with the creditor is that the agreement is unenforceable except where the court orders that enforcement may take place. Where the agreement was made before 6th April 2007 the court is not able to make such an order unless the agreement was signed by the debtor.

 

Therefore it is misleading to state, when complying with a section 77 or 78 request, that the debtor has signed or would have signed (or similar) the enclosed agreement where the debtor has not done so. From 26 May 2008 such a statement will be a breach of the Consumer Protection from Unfair Trading Regulations 2008 (CPRs). Regulation 5 of the CPRs states that a commercial practice is a misleading action if it contains false information in relation to the main characteristics of the product (amongst other matters) and is likely therefore to cause the average consumer to take a transactional decision he would not have taken otherwise. The product in question is the credit agreement and the main characteristics include the ‘execution of the product’ (Regulation 5(5)(d) of the CPRs).

Telling a consumer that he signed such an agreement is also a misleading statement about his rights and the risks he might face as covered by Regulation 5(4)(k) of the CPRs. It is our view that it is likely that a consumer will take a transactional decision to make a payment under the credit agreement or to refrain from exercising his rights under the agreement as a result of being misled about whether he signed it.

 

Breach of Regulation 5 of the CPRs is a criminal offence under Regulation 9 and can also be enforced under Part 8 of the Enterprise Act 2002. Under section 218A of the Enterprise Act, where an application for an Enforcement Order is made the court may require the Respondent ‘to provide evidence of the accuracy of any factual claim’ (such as a claim that a debtor has signed a credit agreement).

In addition, it should be noted that threats to take action that cannot be taken is listed as one of the factors that will be considered in assessing aggressive practices in Regulation 7(2) of the CPRs.

May 2008

 

Susan Edwards

Head of Credit Investigations and Enforcement, Office of Fair Trading

 

 

 

[ajs444]

Sorry, getting my knickers in a twist here!!!!

The decision was by the Financial Ombudsman Service, maybe OFT is the next port of call?????

 

Once again, apologies.

[ajs444]

CD collections now threatening me with a personal visit!!!

DCA letter sent to them regarding position with M&S.

[IainHL]

AJS, sounds like you got the same letter as I did last week! Something about having consulted with the FSA when they turned all our Chargecards into nice shiny new Mastercard Credit Cards. And a telephone number to ring if we wished to opt out? It seems that someone forgot the nice legalities of getting us to sign a nice shiny new agreement to allow them to charge interest.

 

I haven't got the letter to hand, but will post pertinent bits from it asap.

 

I am now waiting for the next threat-o-gram from Collect Direct UK. I intend to send them packing by telling them the account is still in dispute, using the "4 corners of the agreement" approach. I shall also write to M&S along the same lines (I really love writing to these companies after they have sent me their "final response" and making them have to write to me again!).

[ajs444]

I've bsically sent same reply to Collect Direct, e-mailed them yesterday.

[Reader]

Subbing for information. I have a complaint with the FOS regarding having one side of an application form as an agreement from M&S. The OFT have also not been very helpful saying that only a judge can decide if the agreement is enforceable.

[ajs444]

Unfortunately the FOS will not get involved, prepare yourself for a long fight with letters that basically repeat the same old sh**e!!!

I have had another letter from CD collections now threatening me with legal action.

I have left a message on their ansaphone referring them to my previous e-mail of 1st. September, and advising that I will only be dealing with written documentation.

[ajs444]

Well sent CD collections the letter advising them account in serious dipute, phone calls have stopped for a while, letter received this morning.

They advise me account is not in dispute, M&S have supplied fully enforceable CCA (My erse) and will be pursuing me if no settlement in 10 days.

Think I'll send them letter explaining what is exactly wrong with the application, oh sorry agreement!

[ajs444]

Well all quiet on the Western Front, Collect Direct have fallen silent, no letters, everything in limbo, just watching and waiting.

Concentrating on Lloyds and Egg just now.

[ajs444]

Well letter today from Scotcall cCollections saying doorstep visit required, sent Bogoff letter, Scottish version.

Doubt Collections Direct didn't fancy the battle.

[hellhasnofury]

Well letter today from Scotcall cCollections saying doorstep visit required, sent Bogoff letter, Scottish version.

Doubt Collections Direct didn't fancy the battle.

 

Hey mine came today, I've got seven days to respond:rolleyes:

 

Can't wait till they knock on my door:D

[ajs444]

Who is visiting you hhnf, Scotcall or Collections Direct?

[hellhasnofury]

Who is visiting you hhnf, Scotcall or Collections Direct?

 

 

Supposedly scotcall, hope they bring the agreement:D

[ajs444]

Thought you were in England?

[citizenB]

Well letter today from Scotcall cCollections saying doorstep visit required, sent Bogoff letter, Scottish version.

Doubt Collections Direct didn't fancy the battle.

 

Thought you were in England?

 

If you are in Scotland, please ask for a site team member to amend your thread title to include that fact. There are different laws north of the border:)

[hellhasnofury]

Thought you were in England?

 

I am, so they will have a bit of a journey:-D

[ajs444]

Were you approached by Collections Direct before Scotcall became involved?

 

I think I'm allowed to speak to you, maybe the moderators wont let me, due to where I stay!!!

Edited December 6, 2009 by ajs444

[hellhasnofury]

Were you approached by Collections Direct before Scotcall became involved?

 

I think I'm allowed to speak to you, maybe the maoderators wont let me, due to where I stay!!!

 

Yes I was approached by Collections prior to scotcall threatening to call:rolleyes: Collections direct sent me a few threatening template letters to which I have ignored and filed in the harassment file. I belive this is just standard practice from CD.

 

I dont think citizen b it going to mod your thread, they are just ensuring that you get the right info, as they rightly stated, the law system differs in scotland and england:confused:, so it is important that you receive the appropriate guidance.

 

I am pure bred scottish, born and bred in Aberdeen, but have lived in England for many years. The things I miss the most are butter biscuits and rowies:-D You can,t get them this side of the border:???:

[cleo4patra]

Well - M & S have finally admitted that the original agreement was destryed - but go on to say that the copy is still enforceable.

 

Now getting letters from Gothia (redcastle) - th latest arrived to day:

 

giving us the "opportunity to work with you and offer one of the following options

1. LONG TERM - commit to pay £40 month and we will cease any further action for an agreed period of time
   
2. SHORT TERM - Discount of over 35% over a ninety day period
   
3. YOUR TERMS - You choose the option that best suits you and your curren financial circumstances.
   

If we contact them with an offer before 30/12 action will be suspended.

 

Any advice / thoughts anyone??????

 

 

Bearing in mind M & S have

• sent me other peoples papers
  
• wrote to me saying I am ignoring the debt
  
• passed on to two different DCA'S
  
• ignored my request three times for the original agreement to be made availabel and finally admitted it has been destoyed.
  
• terminated on dodgy DN
  

thanks

 

CLEO

[IainHL]

Moved to Cleo's own thread.

Edited December 29, 2009 by IainHL
Replied to Cleo on ajs444's thread!

[ajs444]

Well after 5 months of silence another one has crawled out from under a stone, DIRECT LEGAL & COLLECTIONS, anyone heard of them?

Usual crap in letter, just ignoring.

[msowing]

I also received a letter from dlc today regarding my M&S account. All had been quiet since last July. Letter said pay up in full now. BTW they dont have an agreement M&S wrote and told me so.

[ajs444]

Playing DCA tennis here, must be Wimbledon week, now gone back to Scotcall, sent exact same reply as previous letter, different reference number though.

Maybe they don't realise they have had it already?

 

How many DCA's are allowed to pursue you at the same time?

 

DLC letter in May and Scotcall letter today, previously Collect Direct.

[ajs444]

Another DCA crawls out from under a stone, Credit Security Limited.

Quick 3 line letter, Debt outstanding for some time, Payment required in 7 days, payments to their address.

The merrygoround starts again.