why you shouldnt use section 77/78 CCA 1974 if you want the signed agreement

[underdog13]

They could hardly be construed as orginal. They were on different sheets of paper and contained my current address, not the address where I was when accounts opened.

 

I may be wrong, but I thought to comply with s78 the cred had to supply the agreement and any other document refered to in it - which would necessitate supply of the original T&Cs, wouldn't it?

[diddydicky]

They could hardly be construed as orginal. They were on different sheets of paper and contained my current address, not the address where I was when accounts opened.

 

but if they make a declaration that they are true copies then unless you want to challenge them you have to take it as their word

(this would later rebound on them if they tried to persaude a court that some other document was in fact the agreement)

 

they should also have sent you copies of any other document (including original T & Cs's) that were mentioned in it together with a full statement of account

 

 

if you are not happy with the agreement and are withholding payments until they prove the debt then you could send them this

 

 

I refer to the above matter and your failure to supply legible documents*(or whatever the alleged failure is )in response to a s78 Consumer Credit Act Request or to provide a true copy of a properly executed credit card agreement.

 

We appear to be at loggerheads in this matter, and clearly you remain in default of the Consumer Credit Act 1974 on this matter.(may nmeed to edit this line)

 

The original properly executed credit card agreement is the document that you would need to produce in support of any county court action against me , and the same document that I would make a court application for you to produce if you failed to respond to such a request under a CPR31.16 prior to my seeking to commence proceedings against yourselves.

 

It would therefore seem to me to be entirely in line with the overriding principles of the CPR for us to make every attempt to settle matters outside the court system .

 

In furtherance of this objective therefore, I would suggest that this matter can be disposed of without further delay by you allowing me to inspect the original properly executed credit card agreement . Thus the matter can a be resolved one way or the other.*

 

Normal convention requires that any such document is inspected in situ- I am prepared to travel a reasonable distance to inspect this document.

 

Alternatively I am prepared to pay the reasonable costs of having this document couriered to the local branch of XXXXX Bank*(or wherever)*for me to inspect it there

 

I can think of no valid reason, if it is your sincere desire to have this matter dealt with without further delay, why you should not accede to this request. Since clearly if you satisfy me that you do have a properly executed and enforceable agreement then i can immediately enter into discussions with you with regard to discharging the said debt, which is surely what you are trying to achieve!

 

If however it is the case that you do not possess a properly executed agreement then it would be the better for all concerned for you to admit to this fact now and then we may be able to negotiate a mutually acceptable outcome.

[diddydicky]

this is a very useful letter to produce in court if it gets that far -especially with regard to costs so even if they dont comply (which they won;t) it puts them on the back foot IMO

[underdog13]

Great letter, DD - tried to click your scales, but it wouldn't let me;)

[diddydicky]

Great letter, DD - tried to click your scales, but it wouldn't let me;)

 

is that why i am putting weight on? i thought it was the burgers!!

[PhiltheBear]

If we give our names address and phone nos and other info to a company and provide them with security questions and codes to protect our security with them, is it then legal for them to pass this info onto all these third party bl**dy DCA's that call us up and ask us to go through security with them?

 

Things may have changed but it used to be the case that when you (a company) registered you would say what uses the data could be put to. That could include passing it to anyone, storing it anywhere, etc. You (the company) didn't have to inform the data providers of any of this.

 

So, unless things have changed since DP started, yes, they can pass it on - provided they registered to do so.

[diddydicky]

Things may have changed but it used to be the case that when you (a company) registered you would say what uses the data could be put to. That could include passing it to anyone, storing it anywhere, etc. You (the company) didn't have to inform the data providers of any of this.

 

So, unless things have changed since DP started, yes, they can pass it on - provided they registered to do so.

 

usually yes because you signed an agreement allowing them to do so!!

[underdog13]

is that why i am putting weight on? i thought it was the burgers!!

 

must be the weight of knowledge:D

[jayjay11]

It annoys me too when a DCA phones asks to speak to 'JJ11' and then says for security could you confirm your address and date of birth and what colour underpants your wearing esp if they dont tell you who they are from the out set So if some one calls and wont tell me who they are and ask security questions i tell them that i am JJ11 and if they wont reveal who they are i say i am not giving id info to a annon caller because i cannot be sure who im tlking to and i do not wish to leave myself open to identity fraud that normally pi?ses them off and they blunder around So i say if you have buisness with me you will have my address so write ..Good day ..phone down.

[PhiltheBear]

It annoys me too when a DCA phones asks to speak to 'JJ11' and then says for security could you confirm your address and date of birth and what colour underpants your wearing esp if they dont tell you who they are from the out set So if some one calls and wont tell me who they are and ask security questions i tell them that i am JJ11 and if they wont reveal who they are i say i am not giving id info to a annon caller because i cannot be sure who im tlking to and i do not wish to leave myself open to identity fraud that normally pi?ses them off and they blunder around So i say if you have buisness with me you will have my address so write ..Good day ..phone down.

 

I'm sure this has been addressed elsewhere but if I get such a phone call I ask THEM for their name, date of birth, etc. so that I can have a record of whom I'm talking to in case of future legal action. I get one of 2 results - a) they hang up or b) they bluster in which case I say that without them passing the security check I can't talk to them - and I hang up

[angel_1]

hiya all again

 

hiya again diddydicky,,,fab letter will be something i will use today i think once ive found all my paperwork and put in order

 

again i tried to click your scales but i need to spread the reputation around a bit lol

 

but huge thanks again, i applaud your sensible comments thanks

 

laters all angel x;)

[diddydicky]

It annoys me too when a DCA phones asks to speak to 'JJ11' and then says for security could you confirm your address and date of birth and what colour underpants your wearing esp if they dont tell you who they are from the out set So if some one calls and wont tell me who they are and ask security questions i tell them that i am JJ11 and if they wont reveal who they are i say i am not giving id info to a annon caller because i cannot be sure who im tlking to and i do not wish to leave myself open to identity fraud that normally pi?ses them off and they blunder around So i say if you have buisness with me you will have my address so write ..Good day ..phone down.

 

i wouldnt give ANY information to an inbound caller even if they did tell me who they were

 

WRITING ONLY golden rule

[diddydicky]

hiya all again

 

hiya again diddydicky,,,fab letter will be something i will use today i think once ive found all my paperwork and put in order

 

again i tried to click your scales but i need to spread the reputation around a bit lol

 

but huge thanks again, i applaud your sensible comments thanks

 

laters all angel x;)

 

you're welcome- not into all this scale clicking b**locks anyway-

[Stubie]

I'm sure this has been addressed elsewhere but if I get such a phone call I ask THEM for their name, date of birth, etc. so that I can have a record of whom I'm talking to in case of future legal action. I get one of 2 results - a) they hang up or b) they bluster in which case I say that without them passing the security check I can't talk to them - and I hang up

 

I offer them the opportunity to speak to my legal advisor (the OH - who is in the legal business), there is rarely anyone on the phone by the time I pass it over.

 

More recently, we let them listen to the telly. The record is 5 min 15 sec (listening to Harry Potter -prisoner of Azkaban). I did tell them to write to me, in the past, but they didn't take any notice.

 

I do like the look of DDs letter, may well play with this pretty soon - nice one DD

[cloggy]

Stubie, Diddy, Phil and JJ11,

 

Thanks all for your helpful comments on myData Protection Act thought process & ramblings. I had rather thought this to be the case but it is always worth asking others - as they say "Great minds think differently".

 

Have had another call from Wescot this morning with the usual tell us the answers to your security questions. I refused saying I had no idea who she is or why they were calling me.

 

I then asked for her name & phone number but when asked again she would not say on behalf of who she was calling & just rattled off a reference number - like I care - and then said I see you have previously told us to write to you so we will have to do that & you can call us back.

I told her I had no idea who she or her company is and as she had failed to pass my security checks I hung up.

 

Diddy, thats a good letter you have posted.

It is very well thought through.

I think I shall use that myself to my chums at Barclaycard.

 

Cloggy.

[Beck1968]

Using the letter to

[r&b]

playing devils advocate, but wont they simply send u the usual rubbish to comply with the executed part for s78 and hide behind reg 3 consumer credit (cancellation notices and copy docs) 1983:

 

General requirements as to form and content of copy documents

3.-(1) Subject to the following provisions of these Regulations, every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall be a true copy thereof.

(2) There may be omitted from any such copy-

(a) any information included in an executed agreement, security instru*ment 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);

© in the case of any copy of an unexecuted agreement delivered or sent to the debtor or hirer under section 62 of the Act, the name and address of the debtor or hirer; and

(d) in the case of any copy given to the debtor under section 77(1) of the .

Act of an executed agreement for fixed-sum credit under which a person takes any article in pawn, any description of the article taken in pawn.

 

so regardless of what u send them letter wise, they are not going to relinquish anything, as by this stage you will probably already know that they dont have an original or u would have a copy with a letter demanding payment or litigation.

personally i dont see any other way than the original purpose of this thread ie. haul their backsides into court for disclosure.

just my view.

[PhiltheBear]

I offer them the opportunity to speak to my legal advisor (the OH - who is in the legal business), there is rarely anyone on the phone by the time I pass it over.

 

More recently, we let them listen to the telly. The record is 5 min 15 sec (listening to Harry Potter -prisoner of Azkaban). I did tell them to write to me, in the past, but they didn't take any notice.

 

I do like the look of DDs letter, may well play with this pretty soon - nice one DD

 

Another useful ploy is to ask them - before you answer any questions, even saying who you are - for a 'security code'. If they can't provide it, which they can't as it doesn't exist, tell them you can't talk to them without them telling you what it is. If they try and ask you something again just repeat "Please tell me the security code". You can drive them nuts doing this. It's only a small thing but it does make me think I'm striking back in a small way.

[diddydicky]

Stubie, Diddy, Phil and JJ11,

 

Thanks all for your helpful comments on myData Protection Act thought process & ramblings. I had rather thought this to be the case but it is always worth asking others - as they say "Great minds think differently".

 

Have had another call from Wescot this morning with the usual tell us the answers to your security questions. I refused saying I had no idea who she is or why they were calling me.

 

I then asked for her name & phone number but when asked again she would not say on behalf of who she was calling & just rattled off a reference number - like I care - and then said I see you have previously told us to write to you so we will have to do that & you can call us back.

I told her I had no idea who she or her company is and as she had failed to pass my security checks I hung up.

 

Diddy, thats a good letter you have posted.

It is very well thought through.

I think I shall use that myself to my chums at Barclaycard.

 

Cloggy.

 

we sound like a firm of solicitors!! or are we in trumpton?

[diddydicky]

playing devils advocate, but wont they simply send u the usual rubbish to comply with the executed part for s78 and hide behind reg 3 consumer credit (cancellation notices and copy docs) 1983:

 

General requirements as to form and content of copy documents

3.-(1) Subject to the following provisions of these Regulations, every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall be a true copy thereof.

(2) There may be omitted from any such copy-

(a) any information included in an executed agreement, security instru*ment 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);

© in the case of any copy of an unexecuted agreement delivered or sent to the debtor or hirer under section 62 of the Act, the name and address of the debtor or hirer; and

(d) in the case of any copy given to the debtor under section 77(1) of the .

Act of an executed agreement for fixed-sum credit under which a person takes any article in pawn, any description of the article taken in pawn.

 

so regardless of what u send them letter wise, they are not going to relinquish anything, as by this stage you will probably already know that they dont have an original or u would have a copy with a letter demanding payment or litigation.

personally i dont see any other way than the original purpose of this thread ie. haul their backsides into court for disclosure.

just my view.

 

well they may but i KNOW they will not respond (usually because they cant- if they havnt produced it by now they are not going to)

 

the whole point of the excercise, if it gets to court and they ask for costs on any hearings or applications is that i show the judge the letter and say look, i tried my best to resolve this matter outside of the court process as per the overriding principles of the CPR'

 

i even offered to go to their place to see it but they ignored me/obfuscated/sent that same trash that they had previously been sending- clearly if they had wanted to resolve the matter they could have shown me the same original document that they now wish to use in court proceedings and have avoided court altogether as i agreed to pay what they wanted if they showed me the proof

 

BUT DONT MAKE THE MISTAKE of thinking that every creditor has NOT got the original agreements whilst it may e true that many are destroyed, if it comes to court sometimes they wlll PROPERLY search their archives and may just turn it up (pesonally i dont want to be that "odd occassion" where they do)

[diddydicky]

Another useful ploy is to ask them - before you answer any questions, even saying who you are - for a 'security code'. If they can't provide it, which they can't as it doesn't exist, tell them you can't talk to them without them telling you what it is. If they try and ask you something again just repeat "Please tell me the security code". You can drive them nuts doing this. It's only a small thing but it does make me think I'm striking back in a small way.

 

well if you like to "toy " with them on the phone, when they aslk for your dob give them a false one

 

when they queery it for the SECOND time and say this is not the information they have you say

 

well i think i should bloody well know what my own date of birth is pal!

[texanbar]

LOL! Haven't had a good chuckle for ages!

Thank you

x:)x

Edited July 17, 2009 by texanbar
typo

[casbah]

99% of what you have all said has gone straight over my head!!!!

So............can you tell me if a creditor cites certain parts of an agreement covered by the CCA1974, that favours them, and omits the parts that favour me, do I have any grounds for saying this agreement is unenforcable? and if I do what can I do about it?

 

HELLOOOOOOOOOOOOOOO

[FlyboyAgain]

HELLOOOOOOOOOOOOOOO

 

You'd have to hit them with the CPR31.16 instrument (England/Wales) asking them to supply it. Seems there's no guarantee they would. They could prevaricate all the way to court and then supply it but I don't see the sense behind that. The way I see it, withing my experience, is that if you are sure that your egreement looks unenforceable, let them prove otherwise. Goping to court with them doesn't mean losing the shirt off your back (well, hopefully not) but serves to determine whether the agreement is enforceable.

 

Check Diddy's post at the top of this page, too.

[basa48]

HELLOOOOOOOOOOOOOOO

 

I think no-one replied to your post because they didn't understand what you were asking.

 

The Act specifies certain conditions which every credit agreement has to comply with. They are not flexible and cannot be chosen to suit ones situation (be that creditor or debtor). You can't choose which bits to comply with.

 

Basically an agreement is either properly executed or it isn't, it doesn't depend on which bits of the Act or Regs you look at, it has comply with all of the bits that apply to the type of credit you are concerned with.

 

If you suspect any parts of the agreement are missing you can challenge it.