New tack on supplying CCA-Discussion

[vint1954]

It seems to be becoming the norm for CCA requests under s78, that Credit Card Companies are supplying, blank agreements, fill in a new one themselves or type up a new contarct, supposedly relating to that time.

 

The statute relating to a "True Copy" dates back to the 1800's when obviously there were no photocopiers or other devices. This meant that any copy had to be hand coppied as the only means of supplying a copy at that time. Also this is the obvious reason for there not being a requirement for signature or date. This is what the ccc's are relying on.

 

The office of fair trading has a take on this, in that it must be a "true copy" and not some reconstruction of what the agreement may have looked like. What the agreement may have looked like, is exactly what we are getting and we should not be accepting this.

 

In short, the intention is that you should receive a copy of your actual agreement ( technology has moved on ) and this is the view of the OFT. CCC'S are using this old terminology in order to circumvent sending out a real copy. The signature box and date are in reality, just a throwback to the 1800's, and hand copying.

 

Below is the OFT response:

 

THE CONSUMER CREDIT ACT 1974 - Sections 77 and 78

 

Summary

 

On request and when accompanied by £1, a consumer has the right to:

 

• a copy of their executed agreement

• any other document referred to in it

• a statement showing

- the total sum paid under the agreement by the debtor

- the total sum which has become payable under the agreement by the debtor but remains unpaid, and the various amounts comprised in that total sum, with the date when each became due, and

- the total sum which is to become payable under the agreement by the debtor, and the various amounts comprised in that total sum, with the date, or mode of determining the date, when each becomes due. If the creditor is unable to give this information, he can state instead how the dates and amounts fall to be ascertained.

 

The copy of the executed agreement need not be an exact copy but it must be a ‘true copy’ and not some reconstruction of what the original might have been and it must contain the same terms as the original. Where the terms have been varied as provided for within the agreement, the copy of the original agreement must be accompanied by a document setting out the current terms, as varied. Certain details may be omitted from the original agreement eg the signature but the debtor must be in no doubt as to the true nature of his obligations under the loan.

 

Should no original agreement be in existence it is very hard to say that the copy the creditor offers to the debtor is, in fact, a true copy as there would be no original with which to compare it. In our view the onus of proof would be on the creditor to show that the copy is a true one and where none existed he may have difficulty discharging this. Neither should creditors suggest that a consumer has signed a credit agreement where they are unable to provide evidence to support this — to do so is likely to be a misleading action under Regulation 5 of the Consumer Protection from Unfair Trading Regulations 2008 (the CPRs) and would also constitute an unfair or improper business practice.

 

In our view a debt collector who has bought the debt is the ‘creditor’ and as such takes on the liabilities of section 77.

 

Under section 77(4), if the creditor is unable to provide this information, he is not entitled to enforce the debt while he remains in default (Decriminalised from 26 May 2008 on the coming into force of the CPRs).

 

Legal Argument

 

A copy of the executed agreement

 

Under the prescribed condition, section 77 of the Act requires the creditor to give the debtor a copy of the executed agreement (if any)....‘. The ‘if any’ most naturally refers to the exception for agreements older than 1985 or verbal agreements.

 

Where a creditor receives a request to supply a copy of the executed agreement, the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (‘1983 regs’) apply. Regulation 3(1) sets out the basic position that ‘every copy of an executed agreement... shall be a true copy’.

 

Regulation 3(2) goes on to concede that there may be omitted from this true copy various information such as details which are not required to be in the agreement by law: the signature box, signature (it should be noted that sub-ss 3-5 of section 127 do not apply to agreements entered into after 1 April 2007.A Court may then, for example, enforce unsigned agreements if it considers it is just to do so.) and date of signature. In our view the effect of Regulation 3(2) is that the creditor is only obliged to send out a generic copy of the agreement the debtor has signed up to. The creditor is not obliged to make an actual photocopy of the agreement.

 

However, the copy does have to be a ‘true copy’. This is a technical term, which has been discussed in a number of cases, mostly relating to bills of sale and the need to register a ‘true copy’ of the bill with the High Court. These cases come from the days before typewriters, when copies were made by hand. The consequences of filing a copy which was not a true copy were severe, since the bill would then be void and the creditor deprived of his security.

 

Meaning of ‘true copy’

 

In this context, the courts decided that a ‘true copy’ need not necessarily be an ‘exact copy,’ but it must be ‘so true that nobody reading it can by any possibility misunderstand it’ or be misled by it (In re Hewer ex parte Kahen (1882) LR 21 Ch.D. 871 at 875). The copy must contain ‘every material provision which is contained in the original’ (except that if the defect is made good by reading the document as a whole, the omission will not be fatal) (Court of Appeal in Burchell v Thompson [1920] 2 KB 80 at 98-99). Further, it is not sufficient for the copy merely ‘to state with complete accuracy in a summary form the effect of the stipulations contained in the original. It is not merely a document that is to state the true legal effect of the original; it is to be a copy of the original’ (per Atkin LJ in Burchell at 105).

 

Hewer, ex parte Kahen - the filed copy of the bill omitted the precise day of the month on which payment was to be made. The court held this was trivial, and no debtor would be misled by it.

Sharp v McHenry (1888 ) LR 38 Ch.D. 427- the copy contained blanks which were not in the original. The court decided that the blanks were unimportant, since the omitted words were not required for the original bill to be valid.

Burchell v Thompson [1920] 2 KB 80 - the copy failed to include the words ‘per annum’ after the interest rate of 55%. The reader of the copy would have to guess whether the interest was per annum, per month or something else but as one could sensibly assume, correctly, that it was per annum it was a true copy.

Commercial Credit Company of Canada Ltd v Fuiton [1923] AC 798 - suggested further that where there are a raft of smaller differences in a bill of exchange copy, this could prevent it being a true copy. However where the differences were such as to make the copy contract actually different to the original, the copy will not be true. Lord Sumner, speaking of the man who may wish to refer to the copy, concluded that ‘the Act promises him ... a true copy, not a puzzle. He is to inspect it, not to recover the original by a process of conjectural emendation’ (at 807).

 

Terms and Conditions

 

Regulation 7(1) of the 1983 Regs requires that a requested copy of an agreement which has been unilaterally varied under section 82(1) of the Act, shall be accompanied either by the latest notice of variation or a copy of the terms and conditions as varied. Regulation 7(2) extends the principle to copies of varied securities supplied either to the consumer or the surety.

 

Debt collectors as creditors

 

A consumer credit debt can be assigned in two ways: in law under the Law of Property Act 1925 or in equity but in practice we need to be concerned only with statutory assignments.

 

For a debt to be assigned in law, there are three conditions:

 

• the assignment must be absolute.

 

• the assignor must make the assignment in writing.

 

• express notice of the assignment must be given in writing to the debtor (see section 136 of the Law of Property Act 1925).

 

The reason the debt is assigned is immaterial. For instance, books of loans may be sold on to be collected as an asset rather than as a discounted debt. Securitisation?

In some instances, the debt collector may have purchased a debt but not have the relevant agreement. Whilst, in general, ‘liabilities’ cannot be assigned there must be a question mark over whether ‘duties’ are the same. This is important since there is a rule, expressed in Tito v Waddell (No 2) [1977] Ch 106 at 289 to 302, that where a benefit is conditional upon some burden, the assignee must also take the burden. An example is where the contractor has the right to mine on condition that they pay compensation to those disrupted by the mining. If they assign their right to mine, the assignee takes this right subject to the duty to pay compensation.

 

Therefore, there is a strong argument that under the Act, the right to payment is never absolute. It is always subject to duties (many of which are imposed under the Act). For instance, the right to enforce the credit agreement at all is subject to the duty to comply with section 77 or 78. This duty is not a ‘liability’ as such under the credit agreement but is a condition of the right to repayment.

 

There has been a suggestion that debt collectors can avoid complying with section 77 and 78 by claiming that the agreement is no longer `live’ in some way as it has been ‘terminated’ based on section 103 of the Act. This talks of a ‘trader’ who was the creditor under a regulated agreement, implying that ‘trader’ is no longer a creditor once an agreement is ended. Section 103, however, deals with where the customer no longer owes any money at all and therefore it is correct to say that he is no longer a debtor and the trader is no longer his creditor. Where money is still owed, section 103 would not apply, since the consumer would not be entitled to a termination statement.

 

The first issue on when the debt collector becomes the creditor is relatively simple. Section 189(1) of the Act defines ‘creditor’ as ‘the person providing credit under a consumer credit agreement or the person to whom his rights and duties under the agreement have passed by assignment or operation of law.’

 

Where the debt collector is not acting as the creditor’s agent, or otherwise on his behalf, the only legal basis he can have for demanding payment from the debtor is if the creditor’s rights and duties have been assigned to him. Therefore we can be reasonably confident that a debt collector who has bought the debt is the ‘creditor’.

 

Unpalatable though section 77 and 78 may be for some creditors, if the debt collector is unable to prove the debt, they should be more careful about the debts they buy. They cannot complain that the sections are somehow unfair as it is in the Act and so must be complied with. It is up to them to ensure they purchase and maintain sufficient records to be able to prove the debt and comply with the other requirements of the Act.

 

Misleading statements to debtors

 

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.

 

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

 

 

I have left other references in place within the body of the response, that may be irelevant.

 

Lets see if we cannot put these so called agreements to bed, once and for all

 

Vint

Edited July 25, 2009 by vint1954

[vint1954]

wow. helluva response. Who'd you sleep with to get that?

Hi Kraken,

 

It was something that was posted by AN Other. Not sure that it was this site, but it looked interesting at the time. Only just got round to reading it in depth. I will be using it soon.

[vint1954]

this is the baby I like to use.....

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/173201-why-you-shouldnt-use.html

Hi LTWFB,

 

Yes I have sent the letters for CPR31, but they just ignore them. Fingers in their ears and Lalalalalala

 

Just think that we need to stop the silly responses that we get when using s78. It will be an empty packet of corn flakes next!

 

CPR is ok, if you are willing to enforce through the courts.

 

Vint

[vint1954]

Here: http://www.consumeractiongroup.co.uk/forum/show-post/post-2226238.html

Well done fermi.

 

Good to have the origonal post.

[vint1954]

if they want to take you to court,they HAVE TO comply

 

Frederickson don't like getting these

Absolutely, Its worth sending anyway, jus to have the trail, should it end up in court.

 

I have tried M'Lord.

[vint1954]

well done for this post however i have printed the letter which i belive was on another tread.

 

i must say people will disagree hey ho.

 

it is my belief that the act is there and is quite clear.

 

Yes, the act is clear to us, however the CCC's are trying a diferent tack, obviously trying to mislead consumers as to the legality of what they have supplied. They have either shredded these documents or are buried deep in a salt mine somewhere. We just need to counter this "reconstruction" rubbish.

 

Copy of agreedment and my take on this nothing else will do. if any means if there is one.

 

Yes, the if any refers to a possible verbal agreement.

 

we all know what a CCA should be ,if they have not sent an agreedment as define they are in default

 

Spot on, however we need to define where they have failed and why, in any response to CCC's.

[vint1954]

Hello Folks!

 

Also, I created this Text version of the letter, so that it is ready for people to Copy/Paste into letters when needed!

 

Knock yourselves out Folks...now you can Copy/Paste any bit you like! :grin:

 

Cheers,

BRW

Well done again BRW.

 

Do you ever take time off?

[vint1954]

Hello Folks!

 

Also, I created this Text version of the letter, so that it is ready for people to Copy/Paste into letters when needed!

 

Knock yourselves out Folks...now you can Copy/Paste any bit you like! :grin:

 

Cheers,

BRW

Hi BRW,

 

Looking at this again, it appears to be your version that I have used.

 

Vint

[vint1954]

Hello vint1954!

 

 

 

Not when it comes to fighting banks!

 

I'm on a mission.

 

A find and destroy mission!

 

Cheers,

BRW

:D:D:D

[vint1954]

Hi Vint,

Good thread, and some good points being made here.

I have received one of the generic printouts in response to a CCA request.

They said "This is what your agreement would have looked like.... a "true copy" is not necessarily a signed copy...as you've used the account we WILL have had your signature etc etc."

 

I wrote back on the lines of:

I am disgusted that you have chosen to hide behind the obscure wording of an archaic law drafted when legal contracts were written and signed by quill and ink.

At that time a true copy of any such document involved rewriting by hand, until the happy advent of the photocopier.

As a large and profitable business I feel safe in assuming that you do now possess photocopying equipment or equivalent.

I therefore request that if you DO hold a signed copy of this alleged agreement, you kindly photocopy it and send it to me.

If you fail to do so I can only assume that your statement that you hold a signed copy is incorrect and misleading.

Until you fulfill my request this account remains, very firmly, in dispute.

 

That was five months ago..not heard a dickybird since..no CCA, no threats, no statements. I think they must have filed it under "WTF do we do with this one"

Elsa x

Thats the one elsa.

 

Which CCC was that?

[vint1954]

Hi Vint,

As I've other stuff (bigger fish) going on with them I have to keep the finer details to myself for now ...just in case..but ultimately will tell all!

Elsa x

Understood

[vint1954]

do you think its a good idea to copy and paste it, and send it along wth the account in dispute, i recieved the usual rubbish from tsb, saying that heres the current terms and we cant find you original one but it must be there

You could try something along these lines.

 

am in receipt of your letter dated xxxxxxxxxx regarding the above account.

 

Further to my request dated xxxxxxxxx 2009 under s78 of the consumer credit act, for a true copy of any credit agreement that you may hold, I have to date only received current terms and conditions, which you will be aware does not constitute an executed agreement. It is not sufficient for you to claim that you would have had an executed agreement signed. That document needs to physically exist, for 6 years after the account has been closed.

 

Contrary to your comments, xxxxxxxxx have not complied with the terms of CCA 1974 s78. A reconstruction does not comply with your duties to supply a “True Copy” of any agreement you claim to have been signed by me.

 

In a recent letter from the enforcement department of the OFT, the text below was quoted, explaining what is required.

 

“The copy of the executed agreement need not be an exact copy but it must be a ‘true copy’ and not some reconstruction of what the original might have been and it must contain the same terms as the original. Where the terms have been varied as provided for within the agreement, the copy of the original agreement must be accompanied by a document setting out the current terms, as varied. Certain details may be omitted from the original agreement eg the signature but the debtor must be in no doubt as to the true nature of his obligations under the loan.

 

Should no original agreement be in existence it is very hard to say that the copy the creditor offers to the debtor is, in fact, a true copy as there would be no original with which to compare it. In our view the onus of proof would be on the creditor to show that the copy is a true one and where none existed he may have difficulty discharging this. Neither should creditors suggest that a consumer has signed a credit agreement where they are unable to provide evidence to support this — to do so is likely to be a misleading action under Regulation 5 of the Consumer Protection from Unfair Trading Regulations 2008 (the CPRs) and would also constitute an unfair or improper business practice.”

 

 

I refer you also to the information below.

 

1. A valid credit agreement must contain certain terms within the signature document (s.60(1)(2) CCA 1974). These core terms are the credit limit, repayment terms and the rate of interest (SI 1983/1553 (6 Signing of agreement) which states that the prescribed terms must be within the signature document. (Column 2 schedule 6). s.61(1)(a) states the agreement must contain all the prescribed terms and be signed by both the debtor and on behalf of the creditor.

 

 

 

2. Further, s.127(3) CCA 1974 makes the account unenforceable if it is not in the proper form and content or improperly executed.

 

In Wilson and another v Hurstanger Ltd (2007) it was stated “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 … 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”.

 

2. The need for prescribed terms to be contained in the credit agreement is confirmed by the Author of the CCA1974 act, I quote ““As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97.

 

 

Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn’t be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I’m glad the House of Lords has now vindicated my reasoning and confirmed that nobody’s human rights were infringed.” - 167 Justice of the Peace (2003) 773.”

 

Despite the alleged account being in dispute following your failure to supply the required data as requested by myself, xxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxx Edit as required

 

Following your previous threats of legal action, you have failed to supply a true copy of any alleged agreement under CPR 31:16, as I have requested. ONLY USE THIS BIT IF YOU HAVE ISSUED REQUEST UNDER CPR.

 

 

I expect xxxxxxxxxx to comply with my outstanding request within 7 days to produce a copy of an executableagreement.After that I will consider that the above matter is closed and that you will no longer pursue the alleged debt.If you are insisting that the non enforceable document, that you have supplied, is the only alleged agreement in your possession, then I would suggest that the best course of action would be to immediately set the balance of the above account number to zero, and remove any adverse data that you may have registered with Credit Reference Agencies.

Edited August 18, 2009 by vint1954

[vint1954]

excellent, and if i may add that s78 says it must be a true copy of an EXECUTED agreement so if it later transpires that what they sent was not of an Executed agreement then they did not comply and any charges during that period that may have been added to arrears contained in a DN will be wrong

Yes, I think it is one step at a time, leading them by the nose.

 

I have issued these statements to creditors now, so lets see what the response is.

[vint1954]

Yes, I think it is one step at a time, leading them by the nose.

 

I have issued these statements to creditors now, so lets see what the response is.

Well coming up for 2 weeks now. No responses from CCC's except one has sent a letter saying, do you know your account is outstanding and dear old MBNA, threatening to issue a default notice, which they did months ago!

 

( sound of head banging on wall )

 

I was going to add some more areas of failure in my next letters to them, but they have failed on all points:x but just carry on ignoring. You send them a well reasoned and fairly well crafted letter, only to be answered with another template. They have no brains.

 

Next areas to attack are:

 

1. Application form is pre contract document.

 

2. No clear header ( if contract exists ) stating this is a regulated agreement.

 

3. Agreement is between 2 parties, not only where is my signature, but where is theirs.

 

4. Pinkies where are you ( creditors address ).

 

5. Where is my Executed agreement:D

 

6. Misleading me, an uneducated borrower.

 

7. Do they know that 6 is a criminal offence CPR5.5

 

:-x:-x:-x

[vint1954]

Well,

 

Still no responses.

 

Anyone had any luck with a response.

[vint1954]

Am I reading this wrong: CCC's rely a lot on not having to supply documents with signatures. In the 2004 ammendments: 3(2)(b)

 

3 General requirements as to form and content of copy documents

(1) Subject to the following provisions of these Regulations, every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act

shall be a true copy thereof.

(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 cancellable executed agreement delivered to the debtor under section 63(1) of the Act, the date of the signature by the debtor of an agreement to which section 68(b) of the Act applies);

© in the case of any copy of an unexecuted agreement delivered or sent to the debtor or hirer under section 62 of

the Act, the name and address of the debtor or hirer; and

[(d) in the case of any copy of an executed agreement given to the debtor under section 77(1) of the Act for fixed-

sum credit, or under section 78(1) for running-account credit, under which a person takes any articles in pawn, any

description of the article taken in pawn.]

[vint1954]

(other than, in the case of a copy of a cancellable executed agreement delivered to the debtor under section

 

does this not refer to the item following it (the date) and not the item preceeding it?

Hi DD,

 

My reading of it was in reference to a cancellable agreement.

[vint1954]

I think that the point being, that the the CCA1974 expects a pre contract document to be sent ( application ) followed by an executed agreement, clearly giving a right to cancell the executed agreement.

 

Most applications and just terms and conditions that are being supplied no in response to CCA requests, do not have a right to cancel.

 

Just another way to oppose the rubbish being sent out, maybe?

[vint1954]

This is why they think that they can reconstruct:

 

From the Guardian last year.

Can you trust the records and paperwork that your bank keeps on you? You may be a little less happy to accept its version of events once you have read about Paul Xxxx, who was on the receiving end of what Royal Bank of Scotland admits was "a series of unfortunate errors".

His saga involves phantom loans, and lifts the lid on a little-known practice that allows banks to recreate documents they have lost.

Xxxx turned detective after being told by RBS that the amount he owed on his personal loan was much greater than he thought. He asked for a copy of his original loan agreement, but when he received it he knew at once that it wasn't the genuine article. He eventually found his original carbon copy, which confirmed his suspicions.

Surely one of Britain's biggest banks isn't forging documents? Of course not - but it is controversially "recreating" them.

During his investigations, the father-of-three managed to get hold of an internal RBS memo, which reveals that at some point last year the bank introduced procedures allowing staff to "recreate" loan agreements that it had mislaid. It did this because it was fed-up with the fact that some customers were getting their debts written off because staff could not find the paperwork. The memo boasts that RBS has brought dozens of lost documents back to life, and calls the practice "a classic example of thinking under pressure and adding real value to the bottom line".

Recreating documents is not against the law; banks are allowed to supply replacements if the original paperwork has gone missing, provided they are "correct in all particulars". But some might say that when bank staff are "under pressure," to quote from that memo, mistakes creep in. In Xxxx's case, it was a string of errors.

His MP, John Healey, the local government minister, said in a letter written to RBS last summer that he was "very concerned" about the bank's conduct, adding: "It may be the case that the bank's actions are not just unfair, but illegal." But the bank strongly refutes any suggestion of wrongdoing.

To fully understand what happened, we need to go back to April 1998, when Xxxx, , who lives in Rotherham, South Yorks, took out a £9,700 personal loan with RBS to consolidate an overdraft and an earlier loan. He soon found he could not afford the £212 monthly payments.

The case went to the county court later that year, and the bank obtained a judgment against Xxxx. He was ordered to pay £38 a month to settle the debt, and has dutifully paid that amount since then.

In 2006, he asked for details of how much was still outstanding, and says he was shocked when he was told the amount owed on the loan was around £20,000. He made an official request for all the paperwork relating to his loan account. The documentation he eventually received seemed to indicate that his personal loan and overdraft had been turned into "capital and interest variable rate loans" (whatever they are).

This seemingly happened in 1998 without Xxxx's consent. He knew at once that the credit agreement relating to these loans was not the original. "But how could I prove it? [At this point] I'm thinking the house is going to be repossessed."

He decided to search his loft, and there he found his own carbon copy. But it bore little resemblance to the document he was sent. The dates are different, as are the details of the payments and the interest rate, which is higher on the document he was sent.

The paperwork showed that the amount outstanding on the loan, which stood at about £13,000 in late 1998, had grown to £20,000 by March 2007. The overdraft account, which was £369 in 1998, was in credit to the tune of more than £3,000 last year.

Xxxx's feeling that something was amiss was fuelled by his discovery - via a contact - of the internal memo.

Under current legislation, banks must, if requested by a customer, provide them with a "true copy" of their credit agreement within a certain period, otherwise the bank may have difficulty enforcing it. But the Office of Fair Trading says a bank "may supply a 'reconstruction', only in the sense that it is providing exactly the same information as appeared on the original agreement". Clearly that didn't happen.

In a letter sent to the bank in November, Xxxx's MP said he remained concerned, adding: "Is it RBS's normal business practice to create and change accounts ... without informing a customer or seeking their agreement?"

So, what happened? The bank says it is a cock-up rather than conspiracy - Xxxx was sent the wrong paperwork, and those two capital and interest loans have never existed. "Though very regrettable, this whole matter has come about due to a series of unfortunate errors ... which have obviously caused the customer some inconvenience but have not disadvantaged him financially, as the county court judgment superseded everything else and has governed what Mr Xxxx owes the bank since 1998". The bank has already awarded him £500 compensation.

A spokesman says it was never its intention to give the impression that the "true copy" supplied to Xxxx was a copy of the original documentation. "Regrettably, in this instance, the first 'true copy' sent to Mr Xxxx was incorrect because the data we used was taken from our recoveries department, where the accounts had been sent when they went into default ... This is why Mr Xxxx received details of two capital and interest variable rate loans which didn't exist, and for that we have apologised, explained the situation and told him to ignore them."

The second "true copy" the bank prepared was correct, says the spokesman. [Guardian Money has seen a copy and it is almost, but not completely, identical to Xxxx's own copy]. "Once the CCJ was enforced, that became his credit agreement with us, and so we were no longer legally obliged to provide a 'true copy' of the original agreement," he adds.

Xxxx's accounts "remain open for book-keeping purposes only. With the CCJ in place, they no longer have any significance to the debt being recovered ... but are simply a vehicle for receiving his £38 monthly payment ... regrettably, Mr Xxxx was sent statements on these accounts, which should not have been done.

"The statements show interest still being applied to the accounts, which is done for our own internal accounting and is normal practice ... but this is not owed by Mr Xxxx."

As to the memo, the bank says: "We strongly refute any suggestion of wrongdoing - we are fully compliant with both the regulation and legislation."

The internal memo that was passed to us

"On occasion the Consumer Credit Agreement cannot be found quickly and in the past this led to the debt being written off. On identifying this problem Jane Fraser introduced a new process whereby if the CCA cannot be found quickly Jane is able to create a 'true copy' using the data keyed at the time the loan was granted and the 'style' of agreement used at that time - this can go back a number of years. 65 agreements have been recreated so far involving circa £250k of debt - a classic example of thinking under pressure and adding real value to the bottom line."

[vint1954]

63.

Duty to supply copy of executed agreement.

— (1) If the unexecuted agreement is presented personally to the debtor or hirer for his signature, and on the occasion when he signs it the document becomes an executed agreement, a copy of the executed agreement, and of any other document referred to in it, must be there and then delivered to him.

(2) A copy of the executed agreement, and of any other document referred to in it, must be given to the debtor or hirer within the seven days following the making of the agreement unless— (a)subsection (1) applies, or(b)the unexecuted agreement was sent to the debtor or hirer for his signature and, on the occasion of his signing it, the document became an executed agreement.

(a)subsection (1) applies, or(b)the unexecuted agreement was sent to the debtor or hirer for his signature and, on the occasion of his signing it, the document became an executed agreement.(a)subsection (1) applies, or(b)the unexecuted agreement was sent to the debtor or hirer for his signature and, on the occasion of his signing it, the document became an executed agreement.(a)subsection (1) applies, or(b)the unexecuted agreement was sent to the debtor or hirer for his signature and, on the occasion of his signing it, the document became an executed agreement.

(3) In the case of a cancellable agreement, a copy under subsection (2) must be sent by post.

(4) In the case of a credit-token agreement, a copy under subsection (2) need not be given within the seven days following the making of the agreement if it is given before or at the time when the credit-token is given to the debtor.

(5) A regulated agreement is not properly executed if the requirements of this section are not observed.

[vint1954]

Just how far can we go with a dispute letter. up to 5 pages, can we make it more?

 

Text in red to be edited or removed as appropriate.

 

Cant list all the credits here, but most go to BRW.

 

 

xxxxxx 2009.

 

Dear xxxxxxxxx,

 

ACCOUNT IN SERIOUS DISPUTE

 

Re account no xxxxxxxxxxxxxxxxxxxxxxxxxxx

 

I write regarding recent communication regarding the above account.

 

Further to my request under the above act, your attention is drawn to the fact that this account remains subject to a lawful serious dispute.

 

On xxxxxxxx, by recorded delivery, I requested that you supply me a copy of the executed credit agreement covering this account pursuant to the Consumer Credit Act 1974 section 78, a copy of this request is enclosed. To date you have failed to comply with my request:

 

1. Supplying only a generic agreement

2. Supplying only terms and conditions.

3. Supplying an illegible copy.

4. Supplying an application form which does not contain the prescribed terms.

5. Supplying a reconstructed agreement.

 

The documents that you have supplied, cannot be linked to any agreement which you claim that I have signed. Without production of the said agreement I am unable to assess if I am indeed liable for any alleged debt to you, nor does it give me any chance to evaluate whether any original agreement was ‘properly executed’ as required by the Consumer Credit Act 1974.

 

Contrary to your assertion, xxxxxxxx have not complied with the terms of CCA 1974 s78. The documents that you have supplied, do not comply with your duties to supply a “True Copy” of any agreement you claim to have been signed by me.

 

As you will be further aware, an agreement is not executed, until signed by both parties, so the document that you have supplied, being a 1,2,3,4, or 5, cannot be a True Copy of an Executed Agreement.

 

You will be aware that the rules and regulations governing regulated credit agreements are in place to protect BOTH lender AND borrower. If the lender fails to follow the rules then the lender must accept the consequences. It is no different from any other branch of the law.

 

What is a true copy:

 

In a recent responses to Letters from a growing number of MP’s, the enforcement department of the OFT responded in writing, where the text below was quoted, explaining what is required.

 

“The copy of the executed agreement need not be an exact copy but it must be a ‘true copy’ and not some reconstruction of what the original might have been and it must contain the same terms as the original. Where the terms have been varied as provided for within the agreement, the copy of the original agreement must be accompanied by a document setting out the current terms, as varied. Certain details may be omitted from the original agreement eg the signature but the debtor must be in no doubt as to the true nature of his obligations under the loan.

 

Should no original agreement be in existence it is very hard to say that the copy the creditor offers to the debtor is, in fact, a true copy as there would be no original with which to compare it. In our view the onus of proof would be on the creditor to show that the copy is a true one and where none existed he may have difficulty discharging this. Neither should creditors suggest that a consumer has signed a credit agreement where they are unable to provide evidence to support this — to do so is likely to be a misleading action under Regulation 5 of the Consumer Protection from Unfair Trading Regulations 2008 (the CPRs) and would also constitute an unfair or improper business practice.”

The above details that any “True Copy” that is supplied by yourselves, must indeed be a copy of the executed ( signed ) agreement and not a reconstruction or fabrication. In short it must be copied from the original agreement, but can for obvious reasons, omit signatures and date of signature.

I also refer you to the information below.

A valid credit agreement must contain certain terms within the signature document (s.60(1)(2) CCA 1974). These core terms are the credit limit, repayment terms and the rate of interest (SI 1983/1553 (6 Signing of agreement) which states that the prescribed terms must be within the signature document. (Column 2 schedule 6). s.61(1)(a) states the agreement must contain all the prescribed terms and be signed by both the debtor and on behalf of the creditor.

 

S61 of the consumer credit act 1974.

 

 

s61(a) CCA - Signing of agreement:

(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.

Further, s.127(3) CCA 1974 makes the account unenforceable if it is not in the proper form and content or improperly executed.

 

In Wilson and another v Hurstanger Ltd (2007) it was stated “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 … 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”.

 

s127(3) Consumer Credit Act 1974:

 

(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.

 

The need for prescribed terms to be contained in the credit agreement is confirmed by the Author of the CCA1974 act, I quote ““As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97.

 

 

Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn’t be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty.

 

Nobody queried this, and it went through Parliament without debate. I’m glad the House of Lords has now vindicated my reasoning and confirmed that nobody’s human rights were infringed.” - 167 Justice of the Peace (2003) 773.”

While this account remains in serious dispute, I remind you of the the relevant main points of the Law and OFT regulations while the account is in this state and xxxxxx remain in default are:

• You may not ask for payment against this account.
  
• I am not obliged to offer any payment against this account.
  
• You cannot register any data or information with a third party such as a credit reference agency. (To register information with a credit reference agency, you must have written consent from the customer to collate and share such information. This consent is given in the form of a signed credit agreement, so until you produce such an agreement, you may not do this.
  The requirement for consent to share data is a clear requirement of the Data Protection Act 1998. any such attempts to share my data without my consent will be met with a complaint to the Information Commissioners Office)
  
• You cannot take any enforcement action, including registering Defaults.
  
• You cannot pass the account on to a third party for collection.
  
• You cannot sell the account.
  

In addition, as you have sent the above mentioned documents in response to my requests under Section 78 (1) of the Consumer Credit Act 1974, then this statement by you is now binding on you as per section 172 of the Act.

 

Section 172 states:

172 Statements by creditor or owner to be binding

 

(1) A statement by a creditor or owner is binding on him if given under-

section 77(1), section 78(1), section 79(1), section 97(1), section 107(1)©, section 108(1)©, or section 109(1)©.

 

This means that the documents you have sent are the only documents you may now rely on in any attempt at enforcing this alleged debt in the future.

 

I maintain that this alleged debt is completely unenforceable under Section 127 of the CCA 1974. The CCA 1974 is clear on what agreements must contain in order to be enforceable, even in court. For full details I refer you to the excellent guidance from the Office of Fair Trading.

For cancellable agreements, you can find the guidance at:

http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/oft018.pdf

 

For non-cancellable agreements, you can find the guidance at:

http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/oft019.pdf

 

For your further convenience, I also refer you to the guidance on Debt Collection here:

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

 

At the very least, an Agreement must contain the following within the signature document (on the same side) to be enforceable, even in court (see agreement Regulations 61(1)):

 

1. A credit limit or a statement as to how this will be determined.

2. An APR.

3. A schedule of repayments.

These are the prescribed terms as required by the Act and subsequent Regulations. There are also many other things, which are called required terms, that should be in an agreement. These include but are not limited to:

1. Details of default charges.

2. Statements of protection for customers.

What you have sent me fails to include all of the information needed to make it enforceable, and therefore it is completely unenforceable under Section 127 of the Consumer Credit Act 1974. For your information, you can find a copy of the CCA 1974 here:

 

http://www.johnantell.co.uk/CCA1974.htm

 

I am aware that Section 127 was repealed in the Consumer Credit Act 2006 but this is not retrospective and applies only to agreements signed after 6th April 2007 which is not the case here. For information on this, you can see the 2006 Act here:

 

http://www.opsi.gov.uk/ACTS/acts2006/20060014.htm

 

I refer you particularly to the Transitional Provisions outlined in Schedule 3, which confirm that the repeal of Section 127 is NOT retrospective.

You are saying that the documents you have sent me do comply with the CCA 1974. In that case, given the FACTS I have outlined above, perhaps you could direct me to all of the prescribed and required terms in the “Agreement” you have sent me given the fact that it should be on the same page as the signature, I think you will find that they are not there.

 

Once you have confirmed for yourself that they are not there, perhaps you would be so kind as to point me in the direction of the relevant legislation that allows you to enforce an agreement that is clearly unenforceable under Section 127. Again, I think you will find that this legislation does not exist.

 

I am now granting to you a further 7 days to produce a copy of an executable agreement. After that I will consider that the above matter is closed and that you will no longer pursue the alleged debt. If you are insisting that the non enforceable document, that you have supplied, is the only alleged agreement in your possession, then I would suggest that the best course of action would be to immediately set the balance of the above account number to zero.

 

I reserve the right to report your actions to any such regulatory authorities as I see fit.

 

Your further non-compliance will result in complaints being forwarded to the relevant statutory bodies.

 

 

 

I look forward to your response.

[vint1954]

Almost without exception, we are all receiving reconstituted agreements when requesting our CCA.

 

The OC's may be trying to lump post 2007 agreements with those pre 2007. With post 2007 agreements, the terms and conditions supplied, may well comply with the 2006 act, however not when agreements are pre 2007.

 

I have looked for changes to s78 in the 2006 act, but cannot find a reference to that change.

 

Pointers would be most helpful

[vint1954]

I am not sure that I wholly agree that they can send reconstructions. It is a huge step between a copy of the executed ( signed ) agreement that omits signatures and dates, to the fiction that is a reconstitution. The intent of the act is clear. The copy should be a copy of the origonal agreement. If they do not have the origonal to copy from, then how can it be true.

[vint1954]

Totally and emphatically disagree!

 

Sending a reconstructed agreement is not acceptable, especially if the creditor has nothing upon which to base their reconstruction; the inception terms & conditions.

 

One also, has to look at matters such as, when an agreement has been varied under section 85 and if that varied agreement was legally varied.

 

A creditor may attempt to state that they have complied with section 77/78 by sending current terms and/or a conjectured reconstruction but this will not get them very far unless, they have a true executed copy of the credit agreement and any other document that is referred to in it.

 

The OFT and TS have taken enforcement action under the CPUTR's but not 'any' against banks or DCA's...no surprises there, as they would not take action against the same offenders when a breach of s77/78 came under criminal law (criminal sanctions); said breach was de-criminalised.

 

The CPUTR's fall under Criminal Law, they carry both criminal and civil sanctions.

 

My view is that next year: 2010, the OFT will have to think again!

 

AC

From citizenb,

 

Section 7 of the above act states at

 

Paragraph (1) Where an agreement has been varied in accordance with section 82(1) of the Act

 

The relevant section of the act being:

 

82(1) Where, under a power contained in a regulated agreement, the creditor or owner varies the agreement,

 

The implication of this section of the act being that modification of the agreement can only take place where the prior version of the agreement makes provision for such an amendment within in its terms. Ultimately the authority to amend an agreement must refer back to such a provision with the executed agreement. In the absence of such a provision, or the inability to authenticate such a provision, subsequent, modified agreements are invalid.

 

Further more, Section 7 paragraph 1 of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 goes on to say:

 

(1) Where an agreement has been vaired in accordance with section

82(1) of the Act, every copy of the executed agreement given to a debtor, hirer, or surety under any provision of the Act other than section 85(1) shall include either : ......

 

This paragraph clearly places a duty upon the creditor to provide a modified agreement (copy of) as an inclusion to a mandated provision of a copy of the executed agreement.

 

So, if they have amended, varied, altered the terms of the original agreement.. not only do they have to provide all the amendments.. but the original that gives them the power to do so.

[vint1954]

Quote:

It is a huge step between a copy of the executed ( signed ) agreement that omits signatures and dates, to the fiction that is a reconstitution.

I think this is the issue, it is assumed that a reconstituted agreement is a fiction, some less honourable creditors might do so, but it does not follow that a rebuilt agreement is automatically a fiction.

 

And there lies the problem. We all know that any agreement signed, was in all probability an application form with adverts and offers included. Very little space to contain personal details and prescribed terms.

 

Therefore the pages and pages of small text, supplied as a true copy, cannot be a true copy. It contains many times the amount of information that the origonal did. It is therefore wrong to pass this off as a true copy.

 

The creditors quite obviously are trying to bulk out any origonal agreement.

 

In addition if you look at post #59, it is clear that variations to an agreement ( as varried ) should not form part of a true copy.