Is this right?

[fedupmick]

I have an account with this company, no arrears, but a payment plan as I am out of work. I read about sending CCA's on this site, which I did. I got this response which puzzles me.

 

Have they changed the law?

 

 

 

 

 

 

 

 

 

 

I did not sign a credit agreement, but they are now leving a charge of £30.00 on the account. So the amount now will increase by £20.00 per month.

[cerberusalert]

Send them 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

[gingermack]

Hi,

 

I have had some dealings with Reliable. they sent me the same agreement as you, without my signature. So I sent them the necessary letters - account in dispute etc. They wrote back a couple of times saying that they had no legal obligation to send me the agreement and that they would continue to chase me for payment.

 

However i peservered and I now have a letter confirming that they have 'on this occasion' cancelled the debt.

 

keep going with them, send them the letters and they will come good in the end.

 

x

[cds]

Can you clarify when the original agreement was taken out as S.127 was partly amended in 2007

 

cds:)

[welshwizard]

Change the name and address and amounts and that's a carbon copy of mine - the person 'signing' the credit 'agreement'must ahve been very busy and for a long time becuase my agreements were supposed to date from 2003 & 2004 yet inclouded exactly the same 'terms'.

[fedupmick]

Since I last posted I have had lots of trouble with my friends at Jacamo. I sent them the letter for the CCA default, then they started to call me. From 3rd June to Saturday 5th September they would call 4-6 time a day. I sent them letters telling them to stop calling me and that they were in breach and should not correspond with me until they had produced the signed credit agreement.

 

This is the body of the letter sent to them on the 14th August.

 

Dear Sirs

 

I am writing in relation to the quantity and frequency of telephone calls that I have received from your company, which I deem to be personally harassing. This culminated in a threat from your personnel on Saturday 15th August at 11.12am.

 

I have verbally requested that these stop, but I am still receiving calls.

 

I now require all further correspondence from your company to be made in writing only.

 

I am of the view that your continued harassment of me by telephone puts you in breach of Section 40 of the Administration of Justice Act 1970, and the Protection from Harassment Act 1997.

 

If you continue to harass me by telephone, you will also be in breach of the Communications Act (2003) s.127 and I will report you to OFCOM, Trading Standards and The Office of Fair Trading, meaning that you will be liable to a substantial fine.

 

Be advised that any further telephone calls from your company will be recorded.

 

 

On the Sunday the 6th September Jacamo called me every five minutes from 10am until 1.45pm, this ended with a threat from a lady that they would keep on calling until I admit I owed them money.

 

I changed my number the next day because I was told by every agent that the calls would continue until I admitted the debt. I have logged 376 phone calls from them!

 

I now get letters telling me I will have a personal visit and today one from a Solicitor. I am confused, they now tell me the law has changed and they can pursue me.

 

How do I respond, please help?

 

 

[Bazooka Boo]

From 3rd June to Saturday 5th September they would call 4-6 time a day. I sent them letters telling them to stop calling me

 

A perfectly 'legal' request, which they 'MUST' adhere to, exactly the same as a request that they do not call you at your place of work, if they do, then that is harassment.

Prohibition of harassment

 

(1) A person must not pursue a course of conduct—

(a) which amounts to harassment of another, and

(b) which he knows or ought to know amounts to harassment of the other.

(2) For the purposes of this section, the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.

(3) Subsection (1) does not apply to a course of conduct if the person who pursued it shows—

(a) that it was pursued for the purpose of preventing or detecting crime,

(b) that it was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or

© that in the particular circumstances the pursuit of the course of conduct was reasonable.

 

Protection from Harassment Act 1997 (c. 40)

 

As they have interpreted the Law incorrectly regarding harassment, then a formal complaint to the OFT, Trading Standards via Consumer Direct, and to Ofcom, is necessary.

 

In the meantime, simply do not answer their calls, simply keep a diary of time and date they called.

 

Write to them and ask them for their complaints procedure, if they have such a thing, and then use it, and all of it!

 

If they persist in calling you and harassing you, then inform you local Police station, (not 999) and tell them you are being harassed, if they turn round and say it is a civil matter, remind them that harassment is a criminal offence, and you have evidence that you sent to them a letter informing them that all correspondence was to be in writing only.

 

The Office of Fair Trading: Contact us

 

Ofcom

 

Consumer Direct

[Bazooka Boo]

On the Sunday the 6th September Jacamo called me every five minutes from 10am until 1.45pm, this ended with a threat from a lady that they would keep on calling until I admit I owed them money.

I changed my number the next day because I was told by every agent that the calls would continue until I admitted the debt. I have logged 376 phone calls from them!

I now get letters telling me I will have a personal visit and today one from a Solicitor. I am confused, they now tell me the law has changed and they can pursue me.

 

Just re-read your post again

If you have had to go to the lengths of changing your number and have evidence of 376 calls from the same company, IMHO I would take that evidence down to my local Police station and at the very least get their advice, and a crime number.

 

If they ever ring you again simply tell them 'everything in writing' and that is the answer to all of their questions, or even easier once you know who it is, just put the phone down (laugh manically in the background:D)

 

This type of harassment need reporting immediately, i know the OFT do not look into individual complaints, but all these complaints are logged and filed by them, so it is still worth complaining to them.

 

Consumer Direct, will tell TS, so you get two complaints logged for one!

 

And OFcom defo need to be told as they are the regulator.

 

Yes the Law did change in 06, and was effective by April 07, it simply meant that any application for credit post 07 would be deemed as CCA compliant, so if you applied for a credit card on line then simply 'ticking the box' was sufficient proof that there was an agreement, if I am wrong in my understanding someone will soon put me right!

 

As for that Solicitors letter, I can't find them anywhere on the Law Society website The Law Society - Find a solicitor

 

Besides, it is extremely unlikely that anyone will call, if they do it doesn't mean you have to answer the door and speak to them, it is your property, they have no right to be on it, any more than I would, so tell them to foxtrot oscar if they turn up!

 

Give them the template letter linked below through the letterbox or chained door.

 

http://www.consumerforums.com/resour...ep-visit-.html

 

Tell them to leave as you have nothing to discuss and all communication must be in writing.

 

Tell them you will call the police if they don't leave immediately.

 

Remain calm and polite at all times.

 

Walk away from the door so the visitor cannot try and talk to you.

 

If they don't leave, call the police to report that you are being harassed and the visitor refuses to leave.

[fedupmick]

I never applied online. They sent an agreement that I never got around to signing. I brought and paid with my card for the first two times, then they wrote to me giving me a credit limit I never asked for. I then ordered, but instead of taking the payment off my card, they put it on account.

 

I assume that it would now be better to phone them and make an offer in light of the change in the law?

[cerberusalert]

I assume that it would now be better to phone them and make an offer in light of the change in the law?

If you have never signed an agreement they cannot take any enforcement.

 

 

Make a complaint to your local trading standards & the OFT with regards to their harassment and threats, they are in clear breach of OFT guidelines & CPUT ;

 

Consumer Direct - Contact us

 

OFT Complaint form

http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/DebtCollectionComplaintForm.DOC

 

The Office of Fair Trading: Contact us

 

[email protected]

 

 

tel: 020 7211 5823

 

The Office of Fair Trading: Debt collection practices

 

http://oft.gov.uk/shared_oft/business_leaflets/consumer_credit/oft664.pdf

 

Also remind both the OFT & TS of this;

 

Harassment case a heard by England and Wales Court of Appeal (Civil Division) Decisions

 

Ferguson v British Gas Trading Ltd [2009] EWCA Civ 46 (10 February 2009) see; Ferguson v British Gas Trading Ltd [2009] EWCA Civ 46 (10 February 2009)

[fedupmick]

So, should I just send to these JD Williams people the default letter?

[bazaar]

if you write to that bloke at JD williams you could mis spell his name as Bleat;). Its a welsh company and he could be feeling sheepish. No offence to my welsh friends and family.