OH v BLS/LTSB

[Docman]

No CCA + No DN = LTSB Stuffed

[citizenB]

Still all quiet on the court front...............

However have had a follow up letter re SAR.

Unfortunately, we have not been able to locate a copy of your signed agreement. We can assure you that before we opened your credit card account we would have required sight of a signed agreement.. If you take this matter further, we are confident of our ability to be able to prove this.

See comments below

Copies of DN and enforcement notices are not saved by customer name so copies will not be fouind as part of a DSAR.

However, they should be able to find them by customer account number which is presumably how they store ALL their documents.. or how else would they be able to match them up with the customer name in the first instance

In common with other businesses, we do not provide a precise breakdown ofhow we arrive at our service charges. Dates and amounts of charges will be shown on your statements.

If this went to court they could be forced to disclose this information. It is the reason so many of them coughed up when Bank Charges until the OFT stuck their nose in.

With regards to your cc statements, in accordance with our retention periods we do not hold any statements prior to this date. As your cc account was transferred to our Consumer Debt Recovery dept in xx 2003 there are no statements available after this date either.

See comments below

 

 

 

As Docman says.. No CCA -

 

However, you could point this out to them....

 

 

Misleading statements to debtors

http://www.consumeractiongroup.co.uk/forum/show-post/post-2446950.html

 

 

Sections 77 and 78 refer to supplying a copy of the ‘executed’ agreement within 12 working days of receiving a written request from the debtor. Failure to do so makes the agreement unenforceable against the debtor until a copy is provided. (In addition, if the default continues for a period of 1 month the creditor is in breach of the Act.) (this sentence is no longer applicable)

Execution involves signing the agreement. If no agreement has been executed, it is impossible to supply a true copy of the agreement. Should a creditor supply a copy agreement, even though the debtor has never signed any agreement with that creditor, no indication should be given that it is a true copy or a copy of an executed agreement. To do so may contravene Regulation 5 of the CPRs and be an unfair or improper business practice. (THIS IS POSSIBLY WHERE THE CCC'S CURRENT PRACTICE FALLS. THEY ARE REPRESENTING THE DOCUMENTS SUPPLIED AS A TRUE COPY!!!!!!!!!!!!!!)

 

The consequence of the debtor not having signed a credit agreement with the creditor is that the agreement is unenforceable except where the court orders that enforcement may take place. Where the agreement was made before 6th April 2007 the court is not able to make such an order unless the agreement was signed by the debtor.

 

Therefore it is misleading to state, when complying with a section 77 or 78 request, that the debtor has signed or would have signed (or similar) the enclosed agreement where the debtor has not done so. From 26 May 2008 such a statement will be a breach of the Consumer Protection from Unfair Trading Regulations 2008 (CPRs). Regulation 5 of the CPRs states that a commercial practice is a misleading action if it contains false information in relation to the main characteristics of the product (amongst other matters) and is likely therefore to cause the average consumer to take a transactional decision he would not have taken otherwise. The product in question is the credit agreement and the main characteristics include the ‘execution of the product’ (Regulation 5(5)(d) of the CPRs).

 

Telling a consumer that he signed such an agreement is also a misleading statement about his rights and the risks he might face as covered by Regulation 5(4)(k) of the CPRs. It is our view that it is likely that a consumer will take a transactional decision to make a payment under the credit agreement or to refrain from exercising his rights under the agreement as a result of being misled about whether he signed it.

 

Breach of Regulation 5 of the CPRs is a criminal offence under Regulation 9 and can also be enforced under Part 8 of the Enterprise Act 2002. Under section 218A of the Enterprise Act, where an application for an Enforcement Order is made the court may require the Respondent ‘to provide evidence of the accuracy of any factual claim’ (such as a claim that a debtor has signed a credit agreement).

 

In addition, it should be noted that threats to take action that cannot be taken is listed as one of the factors that will be considered in assessing aggressive practices in Regulation 7(2) of the CPRs.

 

May 2008

 

XXXXXXXXXX

 

Head of Credit Investigations and Enforcement, Office of Fair Trading"

 

and this

 

Document Retention

 

According to sections 221 and 222 of the Companies Act 1985, a public company is required to maintain records for a period of six years (section 222(5)(b).

 

As a loan agreement is active until the agreement is terminated, I would suggest that all the payment records (and other documents making up the file - including the agreement/application etc) would be "live" until the account is paid, or terminated - thus, the full file should be retained for at least six years after that.

 

This interpretation fits in with Inland Revenue legislation that requires prime documents to be retained for a period of six years - AFTER THE END OF THE RELEVANT ACCOUNTING PERIOD. That would mean some files need to be retained for up to seven years. The relevant legislation is found in Schedule 18 of the Finance Act 1998 (paragraph 21) - of particular significance is sub-paragraph (6) which states:

 

"The duty to preserve records under this paragraph includes a duty to preserve all supporting documents relating to the items mentioned in sub-paragraph (5)(a) and (b)."

 

I would suggest that where a loan has been taken out to repay an earlier agreement, at the very least, a copy of the original agreement should be kept - although this is something that a court may need to rule on.

 

Finally, key documents/application forms etc must be kept until 5 years after that business relationship has ended. This is a requirement of The Money Laundering Regulations 1993, 2003 and 2007.

http://www.consumeractiongroup.co.uk/forum/legal-issues/72876-mercers-barclaycard-12.html#post1755248

 

 

HTH:D

[cymruambyth]

Thank you for your replies, I wonder if [problem] have seen a copy of this???

Although they have an illegible microfiche copy of the agreement, maybe this letter is worth keeping safe until court:D

If the alleged debt hasn't been sold, thought it has gone to the debt recovry dept, then I assume the relationship has not ended and this must apply:

'Finally, key documents/application forms etc must be kept until 5 years after that business relationship has ended. This is a requirement of The Money Laundering Regulations 1993, 2003 and 2007.'

This

'In common with other businesses, we do not provide a precise breakdown ofhow we arrive at our service charges. Dates and amounts of charges will be shown on your statements.

 

If this went to court they could be forced to disclose this information. It is the reason so many of them coughed up when Bank Charges until the OFT stuck their nose in.'

may be of interest when they explain the different amounts shown onstatements and the poc.

I have a few ideas over what if anything I should do..... advice from people who have successfully dealt with [problem] would be gratefully received.

eg, letter to LTSB asking why court etc, letter [problem] asking for their comments, or wait until judge's directions and witness statements etc, or a longshot, SJ (from what I have sen they may try this themselves!)

Thank you

 

 

[citizenB]

If LTSB are bringing this court action then they must still have had the account at the time of issuing the claim. In which case they should have the documents and retain them for a further 6 years.

 

Or did I miss something ??

[cymruambyth]

Thanks, that was my interpretation as well. So are they lying , being lazy, or just hoping I'll take their word and go away?

There is already a complaint to ICO re length of time taken, so if anyone has any suggestions as to possible further action I would be grateful.

[diddydicky]

i'd lend them your JCB

 

that way the'd dig and even deeper hole than they are digging now!

[cymruambyth]

I guess I'll just send a copy to the ICO and wait for [problem] or the court to contact me

[cymruambyth]

Phoned the court again..........

'It's gone before the judge; assume it is going to court; won't be until the new year as the court has run out of dates '

In response to we haven't had their AQ.... 'it must have got lost in the post as they know they are supposed to exchange information!' and 'if you write to the court and it becomes a formal request they will be charged for the information.'

I wonder what my next step will be????

[citizenB]

Sorry, I am a bit slow this evening.. who hasnt received LTSB's AQ.. you or the court ?

 

I suspect the court will give them some leeway.. they usually do:(

 

Neither party is obliged to give the other a copy.. it is just courtesy really. However, you should be able to obtain a copy from the court for free, if you ask nicely:D

[cymruambyth]

Sorry if I wasn't clear, court have received a copy, I haven't, but court will charge [problem] to supply me with a copy.

[iOiO]

For the record. **** didn't have the common courtesy to supply me with a copy in my case either. I called into the court and they very kindly supplied me with a copy there and then.

[cymruambyth]

Thanks iOiO, my local court isn't local! If the case isn't going to be listed for 2 or 3 months I might as well post request.

[Docman]

Hi Cymruambyth

 

I think that the Court has to supply a party to proceedings with a copy of any document on the court file. This would certainly include a copy of the AQ. However, the Court can charge for the photocopying at the rate of an initial £5 plus 50p for any pages above 10 pages. A lot of court's can't be bothered with the hassle of dealing with £5 or so in cash when presented at the counter and so tend to give a copy to a person attending the court office without charging. If you apply by post the situation may be different, so if you write for a copy of the AQ you might like to include an offer of payment of any charges.

[cymruambyth]

Thank you, I may just phone [problem] first, though I may have to deviate from my policy of 'no, no and no'

[shirei12]

Why dont you try phoning the court and requesting a copy,my local court were very obliging and there was no charge.

[cymruambyth]

Hi shirei, it was the court who told me to write requesting the information.

[cymruambyth]

Still nothing from the court!

I have their AQ, gives nothing!!!!

No mediation, small claims, NO witnesses, NO experts.

Is this good or bad?

[citizenB]

Similar to mine, how much time have they suggested the case will take ?

[cymruambyth]

It's a N149; there is no estimated time of case shown.

Surely if we are disputing an illegible microfiche copy, there will need a witness to cover hearsay evidence etc?

[diddydicky]

It's a N149; there is no estimated time of case shown.

Surely if we are disputing an illegible microfiche copy, there will need a witness to cover hearsay evidence etc?

 

thats good for you- no witness- first strike to you

[cymruambyth]

Thanks, that is what I was hoping ....... though it may not mean anything as they seem to be as slippery as eels.

[cymruambyth]

Small claims track.

Claimant must clarify the case by filing at court and serving on all other parties a full written reply to the defence (embarrassed) and copies of documents referred to by next week

By early December claimant must send to court and all other parties a undle which must contain all documents you wish court to consider at hearing

Defendant etc must by xxDecember send claimant and court a bundle with docs etc

Defendants bundle to include contracts, letters, invoices, receipts etc; in date order and numbered and own witness statement

DJ will review file after **** have submitted documents and consider whether complied and if further directions

Original documents must be brought to court on day of trial

If yoyu do not comply trial may not proceed

No expert witness evidence permitted

[citizenB]

cymruambyth, are you ok with this or do you need help with anything ?

[cymruambyth]

Hi, if I'm reading this correctly.....

[problem] must reply to my embarrassed defence and supply documents mentioed in my AQ.

A week after I have received their court bundle I have to supply my own bundle including copies of everything.

Is the fact that there are no expert witnesses good, as we are disputing a microfiche copy? I assume they will have a witness statement to say that this is a true representation.

I'll be free after tuesday to hit panic mode and start asking stupid questions!

[citizenB]

I think Civil Evidence Act ???? comes into play with a microfiche copy. I will find a link to that.

 

I didnt see that the court has advised no expert witness permitted. Hmmm, I wonder why. I will do some research and pop things I think might be of interest on the thread for you.

 

The only stupid question is the one you DONT ask.