Totally Confused Re: CCA 77/78 and 'signed agreements'

[***inca***]

I have a few threads going here:

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/179940-cca-cap-one-load.html

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/179935-has-my-nan-received.html

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/176370-cca-just-initial-application.html

 

 

I am now totally confused, and especially confused regarding the MBNA thread which belongs to my nan who is in her 70's.

 

In summary I have sent CCA requests 77/78 to all of the above. With MBNA we received nothing back. I sent a dispute letter on my nan's behalf. We then received a copy of what appears to be the original agreement with just my nan's signature on it (this was an internet application) but not their signature.

 

We have therefore assumed that as they have not sent the agreement with *their* signature *and* my nan's signature that they have not complied with out request and the account was still in dispute.

 

Davey has now pointed out to me that as I sent them a CCA 77/78 that they do not have to send the signed original agreement (I think, I get confused!!).

 

Davey kindly send me in the direction of this thread:

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/173201-why-you-shouldnt-use.html

 

 

This seems to say that basically the 77/78 is a waste of time as they do not have to send you anything.

 

When I read the thread it seems to be that use should use a different letter when it comes to creditors as the 77/78 will get you nowhere.

 

However the letter that is recommended on that thread (31.16) would seem to be the first step in taking them to court to obtain information???

 

(Please someone correct me if I am wrong??)

 

Can someone please tell me that having done what we have done and received what we have received what I should do now with regards to my nan and MBNA (especially).

 

She will *not* want to go to court to request the correct documentation. She has a very bad heart condition and this is putting enough strain on her as it is.

 

If someone could help/explain things to me it would really help.

 

Thank you.

[***inca***]

Anyone?

[spartathisis]

not 100% sure, but arent there different criteria for internet applications? Am sure you should still have recvd a confirmation of the agreement for her to sign and keep a copy.

 

I dont think the thread mentioned says the request are not worth it just that the info they can send may not be what you actually require (usually because they dont have it otherwise they would send you what you are after). If you look at all the posts on that thread some of the technicalities show that it could make matters worse.

 

If you have asked for everything you can and they havent supplied it all then the chances are they dont have the rest at hand, though they may eventually find it. Been looking at another thread in the legal wins section and shawn*** went to court and won lowells over not producing CCA, they didnt defend and he won £100 costs.

 

I have been thinking with all mine that why wouldnt they supply me with a properly executed agreement if they had one, it wouldnt make sense not to supply it.

 

hopefully someone with a little more expertise in internet CCA`s will be online later to help.

[havinastella]

Did you not fully read this thread?

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/173201-why-you-shouldnt-use.html

 

All your answers are in there.

 

Jogs

[***inca***]

I do not have the time/brain power to sift through over 17 pages of something when I don't understand it...hence why I posted here.

 

Maybe I should just write with token payments.

[bazaar]

Inca

The CCA is the first thing to do for your paperwork, you need to look reasonable to any court.

If they fail to produce the agreement, then you escalate to put them on n otice that they are in default, at this time the account is then in dispute.

You can then get complaints in to FOS etc after initiating the complaints procedure, once youre at this stage you can then press them for the original agreement through the CPR31. This may seem long winded, but if you ever get to court, you can show what you actually did to try to resolve this out of court.

They having been unreasonable, get the idea?

[havinastella]

Right, under your CCA request the provider can use this

 

The requirement for such documents to be “true copies” is set out in regulation 3(1) of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations1983. Regulation 3(2) provides that the lender can omit from this document any signature and/or signature box, so although the card carrier is the executed copy, it does not have to (and invariably will not) bear the parties signatures.

 

They also use this to omit ANY information and just send out recent T&C's

 

So, they can send back more or less anything under your CCA request.

 

 

From there, you have two choices (well three)

 

1) You SAR the original creditor, under a sar they have to supply you with all information they hold on you, including your ORIGINAL Application/Agreement.

 

2)Use 31.16 as advised by Paul in that thread. It seems that most of the Original Creditors are ignoring this also. This way, you can pull them in front of the Judge to order them to show you your original agreement (Useful as this will put strict proof on them)

 

3)Play bat and ball with them. They say what they have sent is enforceable, you say it's not (Not the best idea if your Gran is worried)

 

BTW, I had a look at the HSBC agreement, it's impossible to say if its enforceable, send them your sar request, make sure your ask for everything they hold on you, adapt this one

 

http://www.consumeractiongroup.co.uk/forum/payment-protection-insurance-ppi/118145-subject-access-request-ppi.html

 

 

Hope this helps

 

Jogs

[***inca***]

Thank you so much for that post Jogs, it's all a little bit clearer in my mind.

 

One thing I am confused about though - I haven't posted a HSBC agreement - can you tell me which one you mean please?

 

Will have a look at the SAR letter now.

 

Thanks again.

[davey77]

I suspect Havinastella is referrring to MBNA rather than HSBC?

 

In terms of writing and getting 'we have omitted this or that' back from them: It's a game. Although in a truthful world you should get back exactly what you ask for they try to dodge it by using aspects of regulations.

 

The point is to write several times. If you haven't been sent many letters regarding their non-compliance then you need to write to a few different depts, to get different responses from different people within that organisation. That builds a good paper trail and allows them to screw up in various useful ways, depending on their replies. And change the way you write in that firstly it's 77-79 request, then for the full agreement and then quoting the CCA s60 (sigs and prescribed terms).

 

In correspondence with Cap1 i asked under s78, then for the full original agreement, then for any further pages referred to on the application form (in my LBA). Over and over again they said they had nothing to add but came up with the other pages i had asked for during the replies to defence (after i had issues the N1).

This made them look bad after i had specifically asked for that information.

 

You need to build up correspondence with them over time so they slip up and their information starts to contradict. They may start to say 'This is your agreement', no 'that is your agreement' and that gives you more ammunition to use against them.

 

Once you feel you have everything out of them you are going to get (and can show a Court you have tried to do so), then you go for the CPR letters if you are still of a belief that what they have sent is incorrect.

 

And remember that just because you have issued the N1 and started the Court process off does NOT mean that it will eventually go to a hearing and you'll have to get your nan to a Court room. The object is to reach a resolution before a hearing and I'm afraid that Creditors only start to take you seriously when it's heading for Court officially.

 

Considering your nans health.. should it even come to it, you can cancel the Court process by issuing a Notice of Discontinuance due to her health and that would be acceptable.

 

So don't get too worried about the mentioning of Court. I had no intention whatsoever of standing up in a Court room with Cap1.. but they didn't know that and they didn't want to spend £1000 on barrister fees over £1,500 knowing that even if they won, they would get back £10-20 a month via a Court order.

Edited February 4, 2009 by davey77
getting mums and nans mixed up

[davey77]

Another aspect of issuing an N1 to the original creditor means that DCAs often back off in my experience. Once the matter has entered formal Court action their attempts to demand payments look bad while you are trying to resolve matters through Court action and they don't want their dodgy letter being produced as evidence generally.

 

The original Creditor certainly doesn't want the DCA's communications to be produced in Court either seeing as they are legally responsible for the actions/behaviour of the DCA they appoint.

Edited February 3, 2009 by davey77
adding further info