QUERTY1230 / help with agreement, please.

QWERTY1230 · August 1, 2009

I need help and am new to this site so not sure how to or who to ask for. I have recently asked Halifax Credit card for a copy of my signed credit agreement under the consumer credit act. t

They responded with the following (see links) and I don't know how to respond......can someone please help me:confused:

Image hosting, free photo sharing & video sharing at Photobucket

**maroondevo52** · August 1, 2009

Hello and Welcome,

I've moved your post to start a new thread, unfortunatly I cannot see anything about your agreement in the links.

Regards.

Scott.

QWERTY1230 · August 6, 2009

Hi, Please try this link......hope it works:

agreement a-1 picture by QWERT1230 - Photobucket

chris5664 · August 9, 2009

Hi,

This is nothing just a piece of paper as there is no signatures between both parties on this document.

Ask for a signed copy of your agreement.

They will not have one :roll:

Chris

s4ddys · August 15, 2009

My partner has received the same agreement, without signature/s.

Its states in their covering letter:

Enclosed is a copy of the reconstituted version of the executed agreement and a copy of the current terms and conditions.

Please note that the information provided you with is all the information we are required to provide you with under section 78 of the Consumer Credit Act. Please also note that we are not required to provide a copy of the original signed agreement under section 78 of the Consumer Credit Act.

Is this correct or are they just trying to play me? How should I respond?

Assume Qwerty requires the same info so would be killing two birds with one stone.

Thanks in advance for your advice.

s4ddy

s4ddys · August 22, 2009

can anyone help please?

Fluffystuff · August 26, 2009

Hi all,

I've received exactly the same, see my thread..

Fluffystuffs OH & Halifax Credit Card

catsfella · September 4, 2009

Hi everyone, I have just recieved an almost identical one from Sainsburys, it must be being sent by a few different banks. Its seems to have us a bit stumped. Its like a game of call my bluff.

middenmess · September 4, 2009

Hi, Please try this link......hope it works:

agreement a-1 picture by QWERT1230 - Photobucket

Section 3-Financial Information makes interesting reading unless I've got it wrong......

They state credit of £1500 being borrowed at the standard rate for purchases [20.95% = promotional 12 months free] for 12 months with equal monthly payments?? gives a charge for credit of £20.95.

How's does that work then?

PPI as well so probably an unenforceable agreement just from that aspect alone---plus a claim for repayment of charges for that + interest.

vint1954 · September 4, 2009

What they are obliged to provide, is a true copy of your executed agreement. Ths can omit signatures. The executed agreement needs to have the prescribed terms within the 4 corners of any agreement, so front and back of one sheet of paper that is the signature document.

vint1954 · September 4, 2009

What is a true copy:

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 also refer you 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.

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.

vint1954 · September 4, 2009

A possible response would be:

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, supplying only a generic agreement which cannot be linked to any agreement which you claim that I have signed and a set of again unrelated terms and conditions. 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. I have to date only received terms and conditions from yourselves.

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.

While this account remains in serious dispute, 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 with a third party.
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.

What is a true copy:

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 also refer you 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.”

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 look forward to your response.

You will need to edit to suit

catsfella · September 5, 2009

Thanks alot for that vint1954.Thats brilliant. It really is great this site and its members. I wouldnt have known where to start! Answers like that give me the confidence that I can do this and finally sort my finances out.

As I have only just sent my cca's and the time they had to reply is only just running out I havent yet put it into dispute, I assume this is the same as qwerty1230 and s4ddys. Would it be better to send them another polite letter, so it looks better if it goes to court, saying I dont feel I can make a judgement from what has been sent and could I see a copy of the original. Im sure their answer would be "what we have sent is sufficient to fullfill their requirements". Then send the letter above also telling them the account is now in dispute? I only ask as I have not yet missed a payment and therefore have given them no other reason to pass my debt on before I put it in dispute, but am worried if i give them the extra time they may just think lets get this potential troublemakers debt passed on before he disputes it.

:eek: God, they are making me paranoid already! :eek: lol

vint1954 · September 5, 2009

Thanks alot for that vint1954.Thats brilliant. It really is great this site and its members. I wouldnt have known where to start! Answers like that give me the confidence that I can do this and finally sort my finances out.

As I have only just sent my cca's and the time they had to reply is only just running out I havent yet put it into dispute, I assume this is the same as qwerty1230 and s4ddys. Would it be better to send them another polite letter, so it looks better if it goes to court, saying I dont feel I can make a judgement from what has been sent and could I see a copy of the original. Im sure their answer would be "what we have sent is sufficient to fullfill their requirements". Then send the letter above also telling them the account is now in dispute? I only ask as I have not yet missed a payment and therefore have given them no other reason to pass my debt on before I put it in dispute, but am worried if i give them the extra time they may just think lets get this potential troublemakers debt passed on before he disputes it.

God, they are making me paranoid already! lol

If you continue with your payments, then there is no reason for them to pass it on. The hassle only starts if you withold payments.

The in dispute letter, needs to be sent at 12 + 2 working days, following posting of the request letter.

What are you trying to acheive by asking for your agreement.

catsfella · September 6, 2009

Oh right, thats good to know.

Ideally it would be nice to get cheap full an final settlements but I was going to judge from there responses what is best to do. I cant afford to carry on paying after this month is up, so wanted to get them into dispute and withold payments atleast. I have a good credit rating but am sure that will quickly come to an end when I stop paying even though its in dispute.

I sent the requests on the 19th of August but I'm not exactly sure what date that would mean it is up on, would it be the 7th with the bank holiday included? Also, I didnt actually write "this is a formal request" or give them a specific date to reply, I just wrote to them saying I want to be able to assess my full financial situation and require my cca from them which I believe I am entitled to do according to the consumer credit act 1974 and included the £1 postal order. Will this be ok or do I need to write to them giving them an actual deadline date with another 12+2 days?

vint1954 · September 6, 2009

Time is up on the 8th September. No need to send another letter as they know that they have 14 working days. Next letter is 9th Sept putting the account in dispute, which they will ignore.

catsfella · September 6, 2009

Brilliant, thanks again vint1954, I will post their reply.

catsfella · November 23, 2009

Hi again, since writing the letter using suggestions from vint1954's (thanks again!) I just recieved a reply from Sainsburys and wondered if someone can have a look!

http://i666.photobucket.com/albums/vv22/catsfella/frontletter.jpg

http://i666.photobucket.com/albums/vv22/catsfella/signedform.jpg

http://i666.photobucket.com/albums/vv22/catsfella/reverseofsignedform.jpg

The copy of the signed form has the terms and conditions photocopied on the rear but I dont believe that the actual agreement will have this on the back as it just looks like the same reconstructed tripe, but that doesnt mean that there are no terms and conditions on the rear so its down to instinct I suppose. I have also just sent off a SAR so that might turn something else up.

Please give me your thoughts as I have just cancelled the direct debit for the next payment and am starting to get a little twitchy!

Has anyone else had any more successes against these recontructed agreements?

vint1954 · November 23, 2009

Obviously the front does not match the reverse. They will need the original if they go to court.

catsfella · November 24, 2009

Yes, I thought so. Thanks for taking a look. I think its a good sign that the alledged back doesnt appear to match.

Has anyone actually been taken to court and had an agreement enforced with a part, or a total reconstruction of an agreement being produced in court?

vint1954 · November 24, 2009

Yes, I thought so. Thanks for taking a look. I think its a good sign that the alledged back doesnt appear to match.
Has anyone actually been taken to court and had an agreement enforced with a part, or a total reconstruction of an agreement being produced in court?

You will just need to defend it in the right way, pointing out the act to the opposition and the Judge.

catsfella · December 16, 2009

Right, Sainsburys are now ignoring the in dispute letters and asking for the payments that I have now fallen behind on.

To remind you (images posted on previous page) I recieved a signature document photocopy with a reconstructed rear. The front has no terms and conditions, and I believe the rear of the original document probably doesnt have any T & Cs on it making it unenforceable, but this is not a certainty.

Should I continue to play ping pong over the reconstruction and push to see a photocopy copy of the rear which should be easy if theyve found the document? This would mean I am still able to place the account in dispute and keep future debt collectors away by saying my CCA request was not fullfilled.

Or, do I just write and say that the signature document they have provided is missing most of the necessary precribed terms and conditions to make it enforceable, basically ignoring their pathetic attempt at pretending that the terms and conditions they have photocopied on the back are linked to the document?

The last way is a lot scarier for me as I feel I am losing the safety net of being in dispute for fending the DCA's off. :-|

Also, I am still waiting for my SAR, so maybe I should try to delay till it comes through, by continuing along the line of 'CCA request is NOT fullfilled because of the reconstruction of all the terms and conditions.

Any opinions or advice would be really appreciated, thanks for looking!

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