Argos CCA received??

[johno23]

Thanks Welshman

 

Should i send the letter suggested previously or send for a SAR request

 

or a letter at same time for both!

[N.P]

Send them that letter.

 

They have sent you what they call is a CCA. That letter is to dipute that their so-called agreement does not comply with legislation, and is therefore unenforceable.

 

Sending a SAR will cost you £10 and is not required at this stage.

[WelshMam2009]

Thanks Welshman

 

Should i send the letter suggested previously or send for a SAR request

 

or a letter at same time for both!

 

It's your call Johno. Personally, I would send a dispute letter and a SAR to check that they don't actually have an enforceable agreement.

 

Good luck!!

[johnee]

Hi i got back the same application form back when i wrote to argos on behalf of my mum. if i can manage it i`ll attatch the scanned copies i`ve done, as you`ll see theres only her name and address and a signeture. what do you reckon any ideas??19 March 2009.pdf

[WelshMam2009]

Hi i got back the same application form back when i wrote to argos on behalf of my mum. if i can manage it i`ll attatch the scanned copies i`ve done, as you`ll see theres only her name and address and a signeture. what do you reckon any ideas??[ATTACH]7206[/ATTACH]

 

Haven't looked at it in detail. However, this is interesting as it appears to show a 'back' with terms and conditions on.

 

Your Mum's agreement is from 2005 and it appears that Argos and co may have realised their error as you have a box towards the bottom rhs instructing you that you must sign the agreement. My guess would be that this is enforceable.

 

If you look at Johno's from 2004, he doesn't have this 'sign the agreement on the next page' instruction

 

Take a look at my post 8 and that will tell you what shoud be included.

Edited March 20, 2009 by WelshMam2009
Additional comments inserted.

[johno23]

Hi just been away for weekend so will send letter off to Argos tomorrow, recorded delivery and will keep you posted.

 

Johno

[johnee]

hi just sent off S A R requet to them. r u sure that application form is enforceable ?

[WelshMam2009]

hi just sent off S A R requet to them. r u sure that application form is enforceable ?

 

Does it contain all of the prescribed terms Johnee??

[N.P]

hi just sent off S A R requet to them. r u sure that application form is enforceable ?

 

 

johnee, what letter did you actually send them? My CCA request or a SAR?

 

Also the Agreement in your Post 29, was the quality that poor when you received it, or is that scanning?

 

If it was that bad, they will need something A LOT clearer than that to go any further.

[johnee]

Hi N.P yes it was a subject access request i adapted also thats the way i recieved it, i thought it was there way of being funny?. Also welshman ALL the terms seem to be there, ones you can actually read .

[johno23]

ok sent dispute letter off to Argos 24th March, no reply as yet. Also tomorrow 31st going to send a SAR request to Argos just to make sure they have no valid agreement.

So will see what Argos produce.

 

Will keep all posted

[johno23]

Ok Welshman2009 took your advice and also sent for SAR request today with a £10 postal order. They have 40 days to respond to this request from today so let's see if they come up with anything else!!

[WelshMam2009]

Good luck Johno...don't be surprised if they come back asking for proof of identity....again, lots of threads on this forum as to what to say in your reply. Just ensure nothing has a valid signature on it!!

[johno23]

Thanks Welshman, I did sign the request for SAR letter, but signed it not my signature and over writing.

 

Johno

[johno23]

I sent the following letter recorded delivery

 

Re: my request under the Consumer Credit Act 1974

 

 

This account is in Dispute.

 

On 10/03/2009 I wrote to you requesting that Argos supply me a true copy of the executed credit agreement for this account.

In response to this request I was supplied a mere application form which did not comply with the requirements of the Consumer Credit Act 1974.

The document sent purporting to be a credit agreement also does not contain any of the prescribed terms as required by section 60(1) Consumer Credit Act 1974. The Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) made under the authority of the “1974 Act” sets out what the prescribed terms are, I refer you to Schedule 6 Column 2 of SI 1983/1553

 

The prescribed terms referred to 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

 

 

 

Since this document does not contain the required prescribed terms it is rendered unenforceable by s127 (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 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.

 

Further more, since the prescribed terms referred to above do not appear within the agreement you have supplied, the agreement is rendered totally unenforceable, as the prescribed terms must be contained within the agreement and not a separate document, case law confirms this opinion

 

I refer you to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

 

”[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated

consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting the provisions of the two schedules the Judge said:

 

 

"33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which

are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the

minimum terms) are to be found in Schedule 1."

 

Therefore the prescribed terms cannot be contained within a separate document outside of the agreement

 

In addition should you continue to pursue me for this debt you will be in breach of the OFT guidelines, 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

 

 

As it stands, the document supplied by you is not a valid credit agreement nor is it enforceable by any court

 

 

What I Require

 

 

Firstly, I require all correspondence in writing from here on; any persistent attempts to contact me by phone will be reported to Trading Standards, the Financial ombudsman service and the Office of Fair Trading.

 

I would like to draw your attention to the fact that you do not hold a signed copy of a credit agreement with my signature on it, the reasons for this is that I never signed one. Therefore the fact that they do not hold such document means that you cannot obtain an enforcement order in court. The case of Wilson-v-FCT sets this out as previously referred to above

 

However should you believe that you have grounds to enforce this agreement, please provide me with a signed copy of the credit agreement that you would consider relying upon? 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 you have supplied as it stands is unenforceable, should you be unable to produce a compliant agreement 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. I respectfully request a response to this letter in 14 days

 

 

I trust this out lines the situation

 

Regards

Ok and i received the following response

Thankyou for your letter dated the 24th March.

My previous correspondence did provide you with the informtaion required for us to fulfil our obligations under s78 Consumer Credit Act 1974. As i explained at that time. The Consumer Credit Act (Cancellation Notices and Copies of Documents) Regulations 1983 explains what must be included in the copy agreement. Regulation 3 provides that the copy may omit certain information, including the signature box and your name and address.

I trust that the above clarifies matters.

I have already sent off a SAR request on the 31st March.

Are Argos just playing games as they did not omit the signature or address of the copy of the agreement they sent me.

Do i wait until 40 days are up for the SAR reaquest or do I send a letter.

 

What action/letter do i take now!

 

thanks

[WelshMam2009]

 

Ok and i received the following response

 

Thankyou for your letter dated the 24th March.

 

My previous correspondence did provide you with the informtaion required for us to fulfil our obligations under s78 Consumer Credit Act 1974. As i explained at that time. The Consumer Credit Act (Cancellation Notices and Copies of Documents) Regulations 1983 explains what must be included in the copy agreement. Regulation 3 provides that the copy may omit certain information, including the signature box and your name and address.

 

I trust that the above clarifies matters.

 

I have already sent off a SAR request on the 31st March.

Are Argos just playing games as they did not omit the signature or address of the copy of the agreement they sent me.

Do i wait until 40 days are up for the SAR reaquest or do I send a letter.

 

What action/letter do i take now!

 

thanks

 

 

I would just write back reiterating that the account is in dispute as you consider the CCA to be invalid. You can again list the prescribed terms and advise them that the alleged agreement sent does not include all of these.

 

You can also make reference to your SAR, if you wish.

[johno23]

Ok i have drafted the following letter, how does it sound!!

 

Re; your recent reply to my request under section 77-79 of the Consumer Credit Act 1974

I thank you for your later dated the 31st March 2009, the contents have been noted. I have enclosed another copy of my letter dated 24th March 09 as you have failed to read and understand the contents.

The account is still in dispute as I have not received a valid enforceable agreement in line with the consumer credit Act 1974.

The document you have sent purporting to be a credit agreement does not contain any of the prescribed terms as required by section 60(1) Consumer Credit Act 1974. The Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) made under the authority of the “1974 Act” sets out what the prescribed terms are, I refer you to Schedule 6 Column 2 of SI 1983/1553

 

The prescribed terms referred to 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.

The prescribed terms cannot be contained within a separate document outside of the agreement.

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

However should you believe that you have grounds to enforce this agreement, please provide me with a signed copy of the credit agreement that you would consider relying upon? 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

 

In your letters dated 16th & 31st March 09 you have mentioned “(cancellation notices and Documents) Regulations 1983 explains what must be included in the copy agreement. Regulation 3 provides that the copy may omit certain information, including the signature box and name & address”.

So on the 31st March I have requested under the Data Protection Act 1998 A Subject Access Request. Including in the requirements for this request is for you to send me a true copy of a signed credit agreement which need to include the prescribed terms listed above in one document, for the above account within 40 days.

Also the terms & conditions that were supplied were a separate document to the application form. The application form was dated February 2004 and the terms & conditions were over 2 years later from May 2006.

 

Please note whilst the account is in dispute

• You may not demand any payment on this alleged account, nor am I obliged to offer any payment to you.
  
• You may not add any further interest or charges to this account.
  
• You may not pass this alleged account to any third party.
  
• You may not register any information in respect of this alleged account with any of the credit reference agencies.
  
• You may not issue a default notice related to this account.
  

Please also note that to register information with the credit reference agencies, or to issue a default notice, would also be in breach of Section 13.6 of The Banking Code, which stipulates that you can only register such information if the amount owed is not in dispute. Since the agreement you have supplied as it stands is unenforceable, should you be unable to produce a compliant agreement 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. I respectfully request a response to this letter in 14 days

[johno23]

Ok today i received two letters.

 

One replying to the above post that they have repled with the necessary correspondence.

The next is my response to my SAR request. I have recieved the same copy of my application form that does not comply with the prescribed terms and is enforceable. How do i reply now. I am willing to take this all the way to court.

 

What do I do? Please help?

 

As now they do not have an enforceabl;e credit agreement!

[cerberusalert]

Just sit back & wait for their next move. If they pass it on to an outside DCA you can stop them in their tracks with a 'bemused' letter, & if they are stupid enough to try to apply for a CCJ you have an absolute defence in being provided with an unenforceable agreement + you can claim costs.

 

Also if they've ignored your S.10 request, have a read of http://consumeractiongroup.co.uk/forum/debt-collection-industry/191791-knocked-back-dca-sec.html

[johno23]

Thanks for all your advise, much appreciated!!

 

On my letter regarding my SAR request they have put a heading section 7 of Consumer ACT. I thought it was section 10, how does section 7 relate.

 

Thanks

[mustang67]

On your Argos CCA is there anything on the back of it? I have an original and the back of it is covered in small print:-)

[johno23]

No nothing on the back of the application form they sent me

[mustang67]

Good, thats another reason why it could be unenforcable, no T&Cs

Mines identical to yours ie application for an Argos Card. But on the back it says Argos Cards Terms & Conditions etc. Then gives all the usual bumf your right to cancel, your rights etc.

I wont post it up in case a DCA copies it

Good Luck:-)

[johno23]

All looking good. Only sent a unenforceable application form in my 77/79 request and sent the same application form as posted up in my SAR request.

 

have just sent them a last letter telling them the agreement is unenforceable and the matter is now closed.

 

Hopefully common sense provails and it is now closed! If they reply again it will all be passed to the relevant authorities to deal with

 

Thanks for all your support!!

[mustang67]

Glad its working out good, I settled my account with them a couple of years ago. That was before I found this site and know what I know now.

Still fighting the rest of them!!!!! Good Luck.