CCA REQUEST rejected by ACE

[Geordie8281]

Hi guys

 

Just a bit of advice if ya can please,my parttner sent off a cca request lette 3weeks ago to a company called ACE,They have since sent a letter back stating that because we took out the catalouge account with them online that the law is not the same as as if we took it out by phone or post and that they DO NOT have to sent use a copy of the original cca.Is this right???

[shalaz]

Hi Geordie,

i have a thread on here called, "Online tik the box agreements", take a look there and you will see the responses i have so far. I too am looking into anything to do with these online agreements, since i have problems with them too, Catalogues mainly!

I am now asking the catalogue companies to send me proof that i ever tikked the box, wheather that be a screen shot or however they would presume to enforce the agreement, if it were to go to court! Since if they took me to court, they would have to supply me with that same info, allowing me to assess case.

I will post any answers i recieve from these companies, in that thread, as and when i recieve them! Hopefully it may help others! Anyway, take a look at that thread.

Others will help you out on here, who have much more experience than me! Keep your chin up and dont give up!

Greetings Shalaz!

[pt2537]

when did you take out the agreement? the date or month and year at least

[42man]

If you applied for the online account before December 2004 then they would need to produce an agreement, however AFTER that month theyn all they would need to produce would be a 'tick' box where you agreed to the T's and C's....

[Geordie8281]

thanx for the advice guys,heres what a letter read 2day that we got from them

 

Dear Sir

 

Thank you for your recent letter dated 30th Jan 2009 and fully your comments and opinion regarding our customer's liability.

 

The Office of Fair Trading and Local Trading Standards acknowledge that for the Home Shopping Industry the supply of an exact copy of the credit agreement together with all relevent financial information is acceptable to meet your request for a copy of the credit agreement.

 

You can be assured that legal advice is sought in such matters where liability is in dispute.It is clear the debts exist but,of course,we are also aware that the courts would not ,at present,be able to grant an enforcement order should a default summons be issued by us because of non payment and it was defended on a challenge to produce a copy of the original signed agreement,as defined by Section 61 of the Consumer Credit Act 1974,unless we were able to prodduce a signed copy of the original in support of the claim.It is only in such an instance that it would be cost justified to recover originals from our archives.

 

We would remind you that the original credit agreement was sent with your order when the account was opened in June 2003.Our customers are asked to sign both copies,returning on copy and to keep the their copy in a safe placeshould they decide to choose reypayment by credit terms insted of full payment.By taking advantage of paying mimimum payments every 28 days you are as such subject to terms & conditions as stated within the credit agreement.

 

You have been a customer of ours for several years and we are trying to avoid an irretrievable breakdown in that relationship.Without making regular payments we will have no option but to register the debt with all the credit reference agencies as an unsatisfied default.That may adversely affect your ability to obtain credit for up to six years,as well to any person with whom you may be financially linked.

 

This company will not write-off a debt just because there may be a possibility of legal defence if we were to take legal asction as a method to recover the debt owing to us.

 

If it subsequently transpires that you did not sign and return a copy of the credit agreement we relise it will be unenforceable but it is not void nor an unlawful debt.We are satisfied upon discussion with the Information Commissioner's Office and on legal advice that it can still be registered as a default with credit reference agencies

 

 

So thats what they sent to me 2day guy,s just wanted to ask if they are taking s**t are will i have to start paying them bastards again???

[cerberusalert]

Send the muppets this;

 

Dear Sir or Madam,

 

 

Account no

 

ACCOUNT IN DISPUTE

 

Re: my request under the Consumer Credit Act 1974

 

 

Thank you for your letter dated ........, the contents of which are noted

 

Your attention is drawn to the fact that this account is subject to a serious dispute. On ......... I requested that ........... supply me a copy of the credit agreement covering this account pursuant to the Consumer Credit Act 1974 section 78. To date ........... have failed to comply with my request. Without production of the said agreement I am unable to assess if I am indeed liable for any alleged debt to .............., nor does it give me any chance to evaluate whether any original agreement was ‘properly executed’ as required by the Consumer Credit Act 1974.

 

For the avoidance of any doubt I have included section 78(1) and 78(6) of the Consumer Credit Act 1974, which states…

 

78 Duty to give information to debtor under running-account credit agreement

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of [£1], shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a) the state of the account, and

(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

(6) If the creditor under an agreement fails to comply with subsection (1)—

(a) he is not entitled, while the default continues, to enforce the agreement;

 

 

Clearly as no agreement was supplied on request, this in no way complies with the requirements of the Consumer Credit Act 1974 and I now draw your attention to section 78 subsection 6 which states If the creditor under an agreement fails to comply with subsection (1) he is not entitled, while the default continues, to enforce the agreement;

 

Clearly this is a situation as described in S.78(6) Consumer Credit Act 1974 and the debt is unenforceable at this time. In addition, I draw your attention to section 127 (3) Consumer Credit Act 1974 which states

 

127(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).

 

This 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.

 

 

To clarify S.61(1) states

 

(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

 

In addition the prescribed terms referred to in section 60 CCA1974 are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following—

 

1.Number of repayments;

2.Amount of repayments;

3.Frequency and timing of repayments;

4.Dates of repayments;

5.The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

 

Therefore based upon the Consumer Credit Act 1974 this debt as it stands is unenforceable and should this proceed to litigation, a court is precluded from making an enforcement order under section 127(3) unless a true copy of the signed agreement is produced..

 

At the point where this account entered into the default situation as described in s78 (6) CCA 1974 no other charges are allowed to be added until such time as ............... become compliant with my request. As ................ are still not in compliance with my request I insist that the following takes place with immediate effect

 

All entries which refer to missed payments be removed from my credit file

All collection activities cease with immediate effect until ............. comply with my request from .date........... or such time as a court makes an enforcement order

In addition, I draw your attention to the Office of Fair Trading’s guidance on Debt Collection

 

The OFT guidance which was issued July 2003 (updated December 2006) relating to debt collections and what the OFT considers unfair, I have enclosed an excerpt from page 5 of the guidance which states

 

2.6 Examples of unfair practices are as follows:

 

h. Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment

 

What I Require.

 

I require that you send me a true copy of the executed agreement as required by the Consumer Credit Act 1974. If you are unable to supply the requested documentation because no such agreement is in existence I require written clarification as such.

 

I require that you comply with my request within 7 days of the date of this letter. I will not correspond any further with you until I either receive a copy of the requested documents as laid down in section 78(1) CCA 74 or clarification that such agreement doesn’t exist. I am advised that should you persist in pursuing this debt ignoring the above information you will be in breach of the Administration of Justice Act 1970 section 40 as well

 

No other correspondence will be accepted

 

Should you attempt litigation it will be vigorously defended and the failure to supply documentation under the CCA 1974 is a complete defence to any legal action and your actions will be vexatious and unlawful

 

 

I trust this out lines the situation

 

Regards Print name do not sign

 

 

[Geordie8281]

Thanks i will send it today

[Geordie8281]

Hi all,

 

Just to tell you peeps that i got a reply from Ace on friday 3rd April from themstill saying that the DO NOT need to sent me a copy of the agreement and that if I think think ace are going to right the debt because of this them i a worry & if i don't start paying them going forward they say they will pass it on to a debt collection company,

 

So what should the next stage be ??start paying them or carry on asking for a copy of the cca??

 

 

Thanks

 

Geordie

[cerberusalert]

Let them pass it onto a DCA & when they get in touch send the 'bemused letter' #15 The Consumer Forums - Debt collectors