tesco cca

[cerberusalert]

Just complain that they are unwilling to provide you with a legible CCA.

[peter1234]

Anyone got a good letter with some case law to quote

 

or can i issue court proceedings to get matter finalised

[peter1234]

bump

[peter1234]

bump

[cerberusalert]

If you're refering to a letter quoting case-law for the OFT you don't need one, they know what leglislations apply.

[peter1234]

no i want to send a strong letter to Oc stating exactly why the agreement is unenforceable and to quote case law

[cerberusalert]

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

[cerberusalert]

Or you can send this one;

 

 

Dear Sir/Madam

 

Re:− Account/Reference

 

ACCOUNT IN DISPUTE

 

I have received the documents you sent and in the accompanying letter you have confirmed this to be a true copy of the credit agreement that exists in relation to this account. As you have sent this document in response to a formal request under Section 78 (1) of the Consumer Credit Act 1974, 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 document received does 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 it would be in everyone’s interest to consider the matter closed and for you to write the alleged 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

[peter1234]

hey

 

thanks for that but they have sent a signed application form ( by me and them) and are insisting that it is enforceable. if they have signed the application form i dont think that they will have an actual agreement. the application is as far away from enforceable as you can get, i have requested a copy of the back of the form nothing has been sent.

they state is is fully compliant and that is their final word.

 

one bit from the letter reads

 

'We have also supplied a copy of the original and current terms and conditions of that card product with the prescribed terms'

Now do they really believe that they can be separate from the agreement

[cerberusalert]

What they have sent you does not contain the prescribed terms so send letter in post #58

 

'We have also supplied a copy of the original and current terms and conditions of that card product with the prescribed terms'

The prescribed terms must be within the 'four corners' of the signed agreement, it is not satisfactory for them to be included in seperate T&Cs.

[peter1234]

Hi

could someone please tell me if i can CPR31 before issuing court proceedings Have found this below but dont understand point 1

 

 

 

Disclosure before proceedings start

31.16

(1)This rule applies where an application is made to the court under any Act for disclosure before proceedings have started1.

 

(2)The application must be supported by evidence.

 

(3)The court may make an order under this rule only where –

 

(a)the respondent is likely to be a party to subsequent proceedings;

 

(b)the applicant is also likely to be a party to those proceedings;

 

©if proceedings had started, the respondent’s duty by way of standard disclosure, set out in rule 31.6, would extend to the documents or classes of documents of which the applicant seeks disclosure; and

 

(d)disclosure before proceedings have started is desirable in order to –

 

(i)dispose fairly of the anticipated proceedings;

 

(ii)assist the dispute to be resolved without proceedings; or

 

(iii)save costs.

 

(4)An order under this rule must –

 

(a)specify the documents or the classes of documents which the respondent must disclose; and

 

(b)require him, when making disclosure, to specify any of those documents –

 

(i)which are no longer in his control; or

 

(ii)in respect of which he claims a right or duty to withhold inspection.

 

(5)Such an order may –

 

(a)require the respondent to indicate what has happened to any documents which are no longer in his control; and

 

(b)specify the time and place for disclosure and inspection.

[cerberusalert]

Yes, have a read through why you shouldnt use section 77/78 CCA 1974 if you want the signed agreement

 

why you shouldnt use section 77/78 CCA 1974 if you want the signed agreement - The Consumer Forums

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/165349-smt37-morgan-stanley-goldfish.html

[peter1234]

thanks cerb

 

this is a copy of a letter that i sent early may

In a recent reply they just talk about cca request compliance and this is final response

 

Do you think i should send a reminder cpr or a new cpr letter

 

I DO NOT ACCEPT ANY DEBT TO YOUR COMPANY

 

Without prejudice

 

Dear Sir or Madam

 

I originally wrote to you on xxxxxxx2009 . I enclose a copy of this letter, which was a request for a true copy of a credit agreement. You had 12 + 2 days to respond to this request. I then received a letter from you regarding this matter dated 30th March. Please note that this was 6 working days over the time limit.

 

I wrote to you again on xxxxxx2009, which was signed for on xxxxxxx2009 by your company, requesting further information and a clearer copy of the application form, I gave you until xxxxxxto respond. As at today’s date I have not had a reply. Please note I have telephoned on frequent occasions to be put on hold passed from operator to operator to be told it has been posted, each time I have not received anything. I have telephoned your company today and have been told that a letter was posted to me on xxxxxxxx2009, a full eight postal days have elapsed and as yet I have received nothing.

 

I am pleased to state from your letter that you enclosed a true copy of my agreement.

 

This agreement does not contain any of the prescribed terms required by the consumer credit act of 1974, and is therefore unenforceable within a court of law.

 

I believe that you have had more than an adequate amount of time to supply a fully executed agreement and am therefore assuming that if you had a copy you would have sent one.

 

For this reason I am prepared to make an offer of xxxxof the outstanding balance. I want to offer this as an ex-gratia payment in full and final settlement of the account. This offer is made on the clear understanding that, if accepted, neither you or any associate company will take any other action to enforce or pursue this debt in any way whatsoever and that I will be released from any liability.

 

Should you fail to respond within 14 days, I will expect that this means you agree, and I will forward xxxof the balance as of today’s date less any payments made before I receive a response from yourselves.

 

I believe this account is now in dispute.

 

Furthermore, you should be aware that a creditor is not permitted to take*any*action against an account whilst it remains in dispute. The lack of a credit agreement is a very clear dispute and as such the following would apply:

You may not demand any payment on the account, nor am I obliged to offer any payment to you.

You may not add any further interest or charges to the account.

You may not pass the account to any third party.

You may not register any information in respect of the account with any of the credit reference agencies.

You may not issue a default notice related to the account.

Please be aware, the CCA 1974 is very clear that a default can only be issued for breach of a valid, regulated agreement. As there is no agreement a default cannot be lawfully issued as no valid, regulated agreement has been breached.

 

Please note that I will take a breach of the above very seriously.

 

I would ask that you review this account and respond favourably within 14 days of the date of this letter.

 

I also respectfully request that you provide me by return a copy of the credit agreement which bears my signature.

I must stress this request is NOT made pursuant to section 78 Consumer Credit Act 1974 but is made pursuant to the Civil procedure Rules ( Pre action protocols and Part 31.16) and therefore unsigned copy will not suffice, only a copy of the original contract in its unaltered form will suffice in these circumstances

 

Please confirm if you still hold a copy of my signed agreement and that you will provide me with this document.

 

I do not view this as an unreasonable request given that by supplying the document which I have asked for it will allow me to assess if my case has merit and will help to resolve matters possibly without the need to involve the court and will undoubtedly save costs on both sides .

 

I look forward to your reply in due course.

[cerberusalert]

If you read through the first link I gave it gives a step by step guide to CPR, you've already sent the request so now you need to follow the next step in that thread.

[peter1234]

so post 3 in the link

 

thanks

[Dinkjames]

Andy, my impression of your letter is that it is confusing,

 

Is it a CPR request? Is it a settlement offer? Is it a CCA request? Is it a 'In Dispute' letter? Not sure really.

 

I would suggest that you put your main point across and stick to that. If it is the full and final settlement, then I would suggest that you include the paragraph about your credit file and state that as part of the settlement, you want your credit record updated to say 'Satisfied'.

 

Just my opinion though.

[peter1234]

thanks

 

you opinion is appreciated

[peter1234]

hi post 3 in the above link why you shouldnt use section 77/78 CCA 1974 if you want the signed agreement - The Consumer Forums

 

Do i include point regarding commision and what is this thanks and is 14 days a reasonable response time

 

thanks

[peter1234]

Hi

 

tesco have not responded to cpr request or a reminder for cpr time is now up

 

 

they have not responded to any of my letters for further copies clearer copies etc

they have sent a final response letter after my initial cpr request

 

What can i do now

what are the implications of me starting court proceeding to get them to reveal the documents i require

[peter1234]

bump

[peter1234]

anyone

[diddydicky]

anyone

 

why do you want to start proceedings against them- what are your aims?

[diddydicky]

anyone

 

to be frank you are getting yourself in a tangle and need to step back

tell me what you want to achieve and lets start from there

[diddydicky]

did you actually send the letter detailed in post 63 and did you actually mark it "without Prejudice"

 

if so that could account for why they have ignore it- and you cant produce it in court!!

[peter1234]

the letter in post 63 was sent and marked without prejudice