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help needed on CCA request


andytwonames
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Sent the 1st request to HFC by recordrd delivery. Delivered on 9th Jan.

 

The reply arrived yesterday (28 jan 2009). They sent copies of the last 6 statements and nothing else.

 

They state in the reply that thay have been unable to provide a copy of the original agreement but then say

"in accordance with Regulation 3 of Consumer Credit(Cancellation Notices and Copies of Documents) Regulations 1983 we provide a copy of the executed agreement that does not include information which it is permitted to exclude such as the signatures and the signature box"

 

They go on to say that the fact I have been making payments (until recently) in line with the terms & conditions makes it reasonable to conclude that I acknowledge this debt. Therefore HFC holds me liable.

 

I will submit a scan of the letter here too.

 

Where do I go from here?

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As I thought but I would like some guidance since I am not sure of my ground.

 

ALL they sent was statements - not even a copy of the T&C's as they would have been.

 

My first temptation is to send a two word reply, a well known phrase connected with the reproductive act and travel. The 2nd word is "off"

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Be good if you can add what sort of account this is, when it's started etc

 

Reply that their response to your request is not satisfactory and you require the full original agreement to include the Prescribed Terms and Signatures as per the CCA1974:

 

s61 CCA - Signing of agreement:

(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

(b) the document embodies all the terms of the agreement, other than implied terms, and

© the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible.

s127(3) CCA:

(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

:!: -Any advise I give is based purely on my own experience. It should not be solely relied upon as I am NOT a legal expert and any major decisions you make should not be based on my opinion alone -

HFC Bank - Davey vs HFC

Barclays - Monthly payments made

Cahoot - Agreement received, awaiting 2nd agreement after DCA.

MBNA1&2 - Agreements received. (Currently in limbo)

Halifax - Davey vs Halifax/Cabot

MINT - Davey vs Mint

Amex - Davey vs Amex

Cap1 **WON** £1,500 Written Off Davey vs Cap1

 

Never Sign Anything

 

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ive received the same answer ( hfc unable to provide to provide photocopy of original agreement...regulation 3 of cca, etc, etc) plus statement of account for a marbles loan dating back to dec04.from what ive read on here it seems unlikely they will go to court with you on this basis, but i stress its only from what i can gather but gd luck anyway. i have already been taken to court and had a ccj granted agst me and a charging order on my house. can anyone tell me if i can challenge the court action on this basis or is it too late and if so how do i go about it? hope im not hijacking your thread. im finding it difficult to find the answers anywhere.

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Hi Davey.

 

Account started in 1996. It was called a Command account. It had a cheque book and a credit limit.

 

The debt remains with HFC but it is administered by Restons. No payments made to Restons so far.

 

I sent the CCA request to HFC immediately after Restons wrote to me.

 

Who do I deal with now I wonder?

 

Andy.

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If the owners of the account are still HFC and it hasn't been sold outright then deal with HFC. (The organ grinders, not their monkey.)

 

Unless Restons is giving you grief then you can CCA them to put the account in dispute after the 14 days has expired. (They won't listen but officially it puts you in a stronger position with them.)

 

Can you post the signature document here (minus personal details) that HFC mention.

:!: -Any advise I give is based purely on my own experience. It should not be solely relied upon as I am NOT a legal expert and any major decisions you make should not be based on my opinion alone -

HFC Bank - Davey vs HFC

Barclays - Monthly payments made

Cahoot - Agreement received, awaiting 2nd agreement after DCA.

MBNA1&2 - Agreements received. (Currently in limbo)

Halifax - Davey vs Halifax/Cabot

MINT - Davey vs Mint

Amex - Davey vs Amex

Cap1 **WON** £1,500 Written Off Davey vs Cap1

 

Never Sign Anything

 

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Sorry, just re-read your first post "They sent copies of the last 6 statements and nothing else".

 

And then they say they can omit signatures under the 1983 regs (which is correct) but state they provide a copy of the executed agreement? Where is that then HFC?

 

They haven't even bothered to send a 'true copy'. Their reply is a joke.

:!: -Any advise I give is based purely on my own experience. It should not be solely relied upon as I am NOT a legal expert and any major decisions you make should not be based on my opinion alone -

HFC Bank - Davey vs HFC

Barclays - Monthly payments made

Cahoot - Agreement received, awaiting 2nd agreement after DCA.

MBNA1&2 - Agreements received. (Currently in limbo)

Halifax - Davey vs Halifax/Cabot

MINT - Davey vs Mint

Amex - Davey vs Amex

Cap1 **WON** £1,500 Written Off Davey vs Cap1

 

Never Sign Anything

 

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That's the thing. They sent 6 copy statements(which I didn't request), a covering letter and nothing else. There is a pdf of the letter at post 2

 

Yes gotcha! Just caught up with myself there. ;)

:!: -Any advise I give is based purely on my own experience. It should not be solely relied upon as I am NOT a legal expert and any major decisions you make should not be based on my opinion alone -

HFC Bank - Davey vs HFC

Barclays - Monthly payments made

Cahoot - Agreement received, awaiting 2nd agreement after DCA.

MBNA1&2 - Agreements received. (Currently in limbo)

Halifax - Davey vs Halifax/Cabot

MINT - Davey vs Mint

Amex - Davey vs Amex

Cap1 **WON** £1,500 Written Off Davey vs Cap1

 

Never Sign Anything

 

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Very interesting they use "Without Prejudice". They obviously don't want this letter stating clearly "HFC Bank has been unable to provide a photocopy of your original agreement" to be produced as evidence in Court.

 

I would therefore attempt to get other letters from them, that do not contain without prejudice (they will slip up if you write enough letters) stating they can't give you the original agreement.

:!: -Any advise I give is based purely on my own experience. It should not be solely relied upon as I am NOT a legal expert and any major decisions you make should not be based on my opinion alone -

HFC Bank - Davey vs HFC

Barclays - Monthly payments made

Cahoot - Agreement received, awaiting 2nd agreement after DCA.

MBNA1&2 - Agreements received. (Currently in limbo)

Halifax - Davey vs Halifax/Cabot

MINT - Davey vs Mint

Amex - Davey vs Amex

Cap1 **WON** £1,500 Written Off Davey vs Cap1

 

Never Sign Anything

 

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So now I guess I put the account into dispute with the 2nd letter.

 

I did have a conversation with the woman at Restons the day before the HC reply arrived. She is insisting that all future payments on the account go to them. I told her that HFC had failed the 12+2 days and asked "This puts the account into disput, right?" and she said yes (wish I'd recorded the conversation).

 

I then said "so, you are not allowed to ask for payment until the request is complied with" and she agreed.

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What a daft woman eh. Just pre-programmed to go through the motions and any deviation and she is lost.

 

OK, normally, i would say yes, account in dispute, you have not supplied this and that, s60 CCA says signatures etc etc. But.. i think you should play this cool.. for now.

Their 'without Prejudice' heading is annoying. Although Court probably won't happen and it's a long was off if it did, that heading gives them freedom to write anything they want and although it is in writing it cannot be produced as evidence of anything should push come to shove.

 

Therefore, i would suggest the 'i am an inexperienced consumer who doesn't understand what you are saying' reply.

The point is to create a good paper trail, get them to admit more and more in each letter and/or change their opinions and contradict themselves. Get them to make mistake and to slip up along the way.

 

Therefore, initially, something simplistic and a letter that draws them out may prove useful:

 

Further to your letter dated (***) which enclosed 6 statements only in relation to the above account and my request for information dated (**).

 

I am somewhat confused by your correspondence and would ask that you explain what you mean by section 78 of the Consumer Credit Act. I understood that to mean that HFC should supply a true copy of a credit agreement yet you have only sent me statements in relation to the above account.

 

I am also confused by your statement that you are unable to supply me with a photocopy of the original agreement, when i understand you are required to supply me with such documentation.

 

If you could clarify these points i would be grateful.

 

Yours sincerely,

:!: -Any advise I give is based purely on my own experience. It should not be solely relied upon as I am NOT a legal expert and any major decisions you make should not be based on my opinion alone -

HFC Bank - Davey vs HFC

Barclays - Monthly payments made

Cahoot - Agreement received, awaiting 2nd agreement after DCA.

MBNA1&2 - Agreements received. (Currently in limbo)

Halifax - Davey vs Halifax/Cabot

MINT - Davey vs Mint

Amex - Davey vs Amex

Cap1 **WON** £1,500 Written Off Davey vs Cap1

 

Never Sign Anything

 

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What a daft woman eh. Just pre-programmed to go through the motions and any deviation and she is lost.

 

OK, normally, i would say yes, account in dispute, you have not supplied this and that, s60 CCA says signatures etc etc. But.. i think you should play this cool.. for now.

Their 'without Prejudice' heading is annoying. Although Court probably won't happen and it's a long was off if it did, that heading gives them freedom to write anything they want and although it is in writing it cannot be produced as evidence of anything should push come to shove.

 

Therefore, i would suggest the 'i am an inexperienced consumer who doesn't understand what you are saying' reply.

The point is to create a good paper trail, get them to admit more and more in each letter and/or change their opinions and contradict themselves. Get them to make mistake and to slip up along the way.

 

Therefore, initially, something simplistic and a letter that draws them out may prove useful:

 

Further to your letter dated (***) which enclosed 6 statements only in relation to the above account and my request for information dated (**).

 

I am somewhat confused by your correspondence and would ask that you explain what you mean by section 78 of the Consumer Credit Act. I understood that to mean that HFC should supply a true copy of a credit agreement yet you have only sent me statements in relation to the above account.

 

I am also confused by your statement that you are unable to supply me with a photocopy of the original agreement, when i understand you are required to supply me with such documentation.

 

If you could clarify these points i would be grateful.

 

Yours sincerely,

 

I think I'm going to enjoy this. I can act the fool for a while.

 

Just reading your thread about sticking it to cap 1....

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Try this letter

 

Dear Sir/Madam

 

Re:− Account/Reference

 

ACCOUNT IN DISPUTE

I have received the documents you sent and in the accompanying letter you state “Unable to provide a photo copy of the original agreement”. However you have confirmed this to be response to a formal request made under Section 78 (1) of the Consumer Credit Act 1974, that legally requires you to provide a reconstructed copy of the agreement less the signature box, copies of T &Cs from the agreement date plus the current T&Cs along with copies of statements. You have not fulfilled my request and this statement is now binding on you as per section 172 of the Act.

 

I must inform you that the information received does not meet the requirements of a properly executed credit agreement under the 1974 Act.

 

The documents received amount to no more than a statement of the account and do not contain any of the prescribed terms as set out in the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) Schedule 6 Column 2.

 

Since this document does not contain the required prescribed terms it is rendered unenforceable by s127 (3) consumer Credit Act 1974

 

 

The absence of a properly executed credit agreement prevents you from:

  • Adding interest to the account
  • Taking any enforcement action on the account
  • Issuing any default notices or registering any default marker with a credit reference agency.

 

 

This situation is backed by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the Consumer Credit Act 1974 the agreement cannot be enforced.

 

Wilson v First County Trust Ltd [2001] EWCA Civ 633, Sir Andrew Morritt, Vice Chancellor said:

  • The creditor must…be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid

In the case of Dimond v Lovell [2000] UKHL 27, Lord Hoffmann said:

  • Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay.

I would also point out that if you continue to pursue me for this debt while it is dispute you will be in breach of the OFT guidelines.

 

What I Require

  • I require all correspondence in writing from here on; any persistent attempts to contact me by phone will be reported to trading standards
  • I require you to produce a compliant copy of my credit agreement to confirm I am liable to you or any organisation, which you represent for this alleged debt, if you cannot do so I require written clarification that this is the case.

Should you ignore this request I will report you to the Office of Fair Trading to consider your suitability to hold a credit licence in addition to a complaint to Trading Standards, as you will be in breach of the Administration of Justice Act 1970 section 40

 

Since the agreement is unenforceable and any default notice is non compliant, it would be in everyone’s interest to consider the matter closed and for you to write the debt off.

I suggest you give serious consideration to this as any attempt of litigation will be vigorously defended and I will counter claim for all quantifiable damages

 

 

Yours Faithfully

Your name

Name

Edited by B3rty
Letter needs tweaking....

Live Life-Debt Free

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That's what i mean tho B3rty. A good letter to use a little later perhaps.

 

You don't want to tip their hand straight off with a letter that shows you mean business and you know what you are talking about. I'm of a mind that, as the first letter from the Creditor cannot be produced in Court, the reply should look simplistic and convey the writer has a lack of knowledge.

 

Otherwise the Creditor will be on the offensive and is less likely to admit no original is available again.

 

Once that reply is in Andytwonames hands, then start the formal and Law soaked letters.

:!: -Any advise I give is based purely on my own experience. It should not be solely relied upon as I am NOT a legal expert and any major decisions you make should not be based on my opinion alone -

HFC Bank - Davey vs HFC

Barclays - Monthly payments made

Cahoot - Agreement received, awaiting 2nd agreement after DCA.

MBNA1&2 - Agreements received. (Currently in limbo)

Halifax - Davey vs Halifax/Cabot

MINT - Davey vs Mint

Amex - Davey vs Amex

Cap1 **WON** £1,500 Written Off Davey vs Cap1

 

Never Sign Anything

 

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I am also confused by your statement that you are unable to supply me with a photocopy of the original agreement, when i understand you are required to supply me with such documentation

 

They are not obliged to send a copy of the signed original under a s.78 you need Subject Access Request to get this...or get lucky with a s.78...

 

Not sure why you want to pussyfoot as their response is binding and puts the account in dispute straight away

Live Life-Debt Free

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Yes we know they are not obliged under s78. The goal is to get them to contradict themselves. ;)

 

Their letter is headed 'without prejudice' and therefore not admissible as evidence of anything in a Court of Law.

 

Without Prejudice

:!: -Any advise I give is based purely on my own experience. It should not be solely relied upon as I am NOT a legal expert and any major decisions you make should not be based on my opinion alone -

HFC Bank - Davey vs HFC

Barclays - Monthly payments made

Cahoot - Agreement received, awaiting 2nd agreement after DCA.

MBNA1&2 - Agreements received. (Currently in limbo)

Halifax - Davey vs Halifax/Cabot

MINT - Davey vs Mint

Amex - Davey vs Amex

Cap1 **WON** £1,500 Written Off Davey vs Cap1

 

Never Sign Anything

 

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Now, here's a curiosity.....

 

A bunch of other facts which may or may not be relevant.

 

1. Names...

The account is in joint names. Me and Mrs twonames.

Sometime around October, they started to write only to me. Statements and letters. I ignored that.

 

When a letter came from Restons to me, my first written response was that I did not recognise this account from the info given since I did not have any accounts with HFC in my sole name. I referred Restons back to their client.

 

In a subsequent telephone conversation with Restons, the woman said she had been given a different address for Mrs 2names. This was our previous home and we had moved out of that in 2006. They had been writing to us both at the new address for over a year so why change?

 

2. Default notices....

late November I got a letter (my name only) saying "This is a DEFAULT SUM NOTICE given in compliance with the CCA 1974" Default was for £15 - an admin fee. By this point I had made no payments for a month or two. This looks more like a letter than a default notice. - I ignored it.

 

5 days later I got what looks like a real default notice for £390 odd. Action required was payment of the account balance in full by 8th December. I ignored it.

 

Then, I got another default notice on 11th december all other details the same. That is to say, I had to take the required action stated on the default 3 days before they issued the default notice.

 

Discuss....

I'm off to visit Postman Pat

Edited by andytwonames
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The simply answer to most of those is: Creditors/DCAs are really dumb!

 

Trying to send info to an old address could be a ploy to show any future Court that they tried to resolve the matter but you didn't answer. Either that or.. they are really dumb.

 

You might want to post the default notices up for people to view. Often they can be designed to look like official DNs but can easily just be threatograms in disguise.

:!: -Any advise I give is based purely on my own experience. It should not be solely relied upon as I am NOT a legal expert and any major decisions you make should not be based on my opinion alone -

HFC Bank - Davey vs HFC

Barclays - Monthly payments made

Cahoot - Agreement received, awaiting 2nd agreement after DCA.

MBNA1&2 - Agreements received. (Currently in limbo)

Halifax - Davey vs Halifax/Cabot

MINT - Davey vs Mint

Amex - Davey vs Amex

Cap1 **WON** £1,500 Written Off Davey vs Cap1

 

Never Sign Anything

 

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The simply answer to most of those is: Creditors/DCAs are really dumb!

 

That figures.

 

Trying to send info to an old address could be a ploy to show any future Court that they tried to resolve the matter but you didn't answer. Either that or.. they are really dumb.

 

Dumb and Dumber I guess. The other possibility here is that they are trying to cause us embarrassment. It's either malice or incompetence.

 

You might want to post the default notices up for people to view. Often they can be designed to look like official DNs but can easily just be threatograms in disguise.

 

Yes will do that. I reckon the first is not real. The last one really amuses me. Writing to me today telling me I have until last week to do something!

 

ok, off to fight with the scanner again.

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