Monument disagree with Section 78(1) obligations

[legallystressed]

I sent the template letter to Monument requesting a CCA. They sent a blank agreement stating this was all they had to provide as it looks like the one that would have been signed (had I signed one) but which has been updated to contain the t&c's which currently apply. I then sent the second template letter and they wrote back 'Section 78(1) does not require us to provide you with an exact copy or photocopy of the agreement you signed. We are not required to provide you with a copy showing you name or your signature and no section of the CCA imposes upon us to retain or produce a copy of your agreement showing your signature.

 

Section 78(1) requires us to provide you with a copy of your agreement which looks like the one you signed but which has been updated to contain the terms and conditions which currently apply to your agreement (rather than those which applied at the time you signed the agreement). The copy we provided you with, is in the appropriate format and does include all of the current terms of your agreement with us.

 

Can any one help with this, they have said they feel they have complied with my request! but will keep my complaint open for 8 weeks (as at 5/3/09) and then regard my complaint as closed.

[count orlok]

if they haven't retained a copy of the agreement they are stuffed. while they do not have to provice you with a signed copy under sction 78, if it ever went toi court they would have to provide the original and they know that.

[creditcardmug]

I DO NOT ACKNOWLEDGE ANY DEBT TO YOUR COMPANY

 

Account Number: XXX

 

Re; your recent reply to my request under section 78 of the Consumer Credit Act 1974

 

I note that you have replied to the above by sending your companies current Terms and conditions I must inform you that this is not sufficient to comply with the request and that your company is still in default under the act.

 

To clarify, just sending the Terms and Conditions is a breach of the Act and Regulations as, apart from the information that the Regulations provide that you may exclude, the copy must be a “true copy” of the agreement.

 

This breach of the agreement can be demonstrated as follows;

As you will know section 180(1) (b) authorises, “the omission from a copy of certain material from the original, or the inclusion of certain material in condensed form.” This refers to statutory instruments made under the heading Copies of document regulations and in this case in particular to SI 1983/1557.

 

Before leaving section 180 there are two other sections that should be remembered these are:

 

Section 2(2) (a) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not satisfied unless the copy supplied is in the prescribed form and conforms to the prescribed requirements;

 

And more importantly

 

Section 2(b) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not infringed by the omission of any material, or its inclusion in condensed form, if that is authorised by regulations.

 

You will see that this quite clearly states that whilst certain items may be left out of the copy document the rest of the document must be in the form and contain all items as prescribed by the regulations.

 

Turning to the regulations regarding what may be omitted from these copies these are contained with SI 1983/1557.

 

The regulations state:

(2) There may be omitted from any such copy-

(a) any information included in an executed agreement, security instrument or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations thereunder as to the form and content of the document of which it is a copy;

(b) any signature box, signature or date of signature (other than, in the case of a copy of a cancelable executed agreement delivered to the debtor under section 63(1) of the Act, the date of signature by the debtor of an agreement to which section 68(b) of the Act applies);

 

It is quite clear what can be omitted from the copy document, this again asserts that all other details of the agreement should presented in form and content as required by the regulations.

 

The requirements of the Agreement regulations 1983/1553 are very explicit in describing the form and content of an agreement and this as I have demonstrated also applies to the copy of any such agreement with the above mentioned proviso.

 

Nowhere within these regulations does it state that part of the agreement can be presented on a separate document headed terms and conditions.

It does state that all terms and conditions should be within the agreement document and is explicit of the form in which it is presented.

 

I hope this explains why your reply was unacceptable I await a True copy of my agreement and would remind you again that whilst the request has not been complied with the default continues

 

Yours faithfully

__________________

[creditcardmug]

You may need to adapt the above to suit what they have sent.

 

At the end of the day you wont know for sure what they have/have not, unless the matter is in court

[harrassed senior]

.....or, unless you send a SAR request.

 

But, they would be very stupid to instigate Court Proceedings against you if they cannot prove the alleged debt is enforceable and they know it!!