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stroke a badger

1stCredit CPR31.16 non compliance and a default

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After months of helping frineds sort out their financial affairs I have decided to try and sort out a couple of my own, one of which relates to an account I held with Citicard.

 

I had a small debt with Citicards which was sold to 1stCredit mid last year after I stopped paying my account as Citi were unable to when requested provide a copy of the credit agreement. The account was sold to 1stCredit July 2008 who have been trying to collect it ever since. On numerous occasions I have requested 1stCredit produce a copy of the credit agreement which they have failed to do. I then requested a copy citing CPR31.16, their response was “we have requested a copy of the Credit Agreement from out client Citicards and your account has been placed on hold”. As 1stCredit have been unable to comply with my request I insisted that they cease processing my data and remove the default. They refused.

 

After 4-6 weeks of inactivity from 1stCredit I reminded them of their responsibilities under CPR31.16 and that if they did not comply I would commence litigation against them.

 

This is there response.

1stcprletter.jpg?t=1249392592

 

Here is the situation I find myself in. I am of the opinon that 1stCredit does not have a correctly executed credit agreement as they have failed to produce a copy when requested. 1stCredit, or Citicard I don’t know which did produce an Authorisation Form but this did not contain any of the prescribed terms as defined by the act.

 

It is obvious 1stCredit are not going to admit they do not have a copy of the credit agreement, nor are they going to remove the default they have lodged against me so as i see it the only way to resolve this is to obtain a court order forcing them to disclose what they do have.

Edited by stroke a badger
fingers!

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Stroke,

 

The position as I understand it, is that a creditor is unable to enforce an agreement whilst it is in default of a request made under Consumer Credit Act 1974 section 77/78; that is, a request made during the currency of the agreement. If the request was made after termination of the agreement then section 77/78 would not operate. They are also of course, unable to enforce the agreement once the limitation period has expired.

 

It would appear Citi and 1st Credit's reluctance to pursue the claim is rooted in their inability to to produce the relevant agreement. That would appear to be an advantage to you.

 

Whereas a prospective litigant may make application to the court for disclosure in the circumstances set out at CPR 31.16, I'm not yet clear why you would want to do that. Presumably the litigation you threaten is for an award of damages for the wrongful publication of information damaging to your credit reputation. I'm not clear how having the agreement assists in establishing your claim to damages. On the contrtry, doesn't the creditor by having the agreement to hand, assist them in overcoming the restraints of section 77/78 and generally pursuing you in a way in which they would be unable to if they did not have the agreement to hand?

 

x20

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Cheers x20,

 

My intention is to force 1stCredit to admit to not having a copy of the credit agreement, once i have this i will as far as i see it, be in a better position to get the default removed.

 

I'm not going to pursue 1stCredit for damages just the removal of the default.

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But they admit they don't have it already!

 

x20

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1st Credit have admitted to not having a copy of the credit agreement on file, however they have requested a copy from Citi, who have yet to produce a documented that satisfies s127(3) of the CCA.

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1st Credit have admitted to not having a copy of the credit agreement on file, however they have requested a copy from Citi, who have yet to produce a documented that satisfies s127(3) of the CCA.

 

So shouldnt you challenge the CRA's to remove the default taken over by 1st Credit on the basis they have no agreement to back this up?

 

S.


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SAB youre not going to get them to admit this. They are in default of your request so far, so they cant ( in theory) issue a claim against you. I know you probably want to kick their respective Ar*ses, but IMHO youd be better off waiting til they actually tried a court claim, then CPR them. Have you thought about a CCA direct to citicard, to cut out the BS with the crudites?

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S,

 

I've tried but they will not remove the default with out 1st Credit's permission. Naturally 1st Credit will not give consent so it is a vicious circle.

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Have you thought about a CCA direct to citicard, to cut out the BS with the crudites?

 

That is what got me in to the position i am in. I requested a copy of the credit agreement from Citicard while the account was still open but all i received was the standard "s78 of the CCA does not apply to Citicards" statement. :(

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OK So they have defaulted then, let them know that they are in default and no debt is acknowledged, then leave the ball in their court, you should be able to put a notation on your cred file to show the state of play

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**Update** 1st Credit have provided current T&C's and a unsigned agreement. I have contacted Experian and requested that a notice of correction be applied to me credit file as the account is in dispute. 1st Credit have been "Monitoring my credit file" and can offer me a reduced settlement figure if I contact then before the 29th Jan.

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**Update** 1st Credit have provided current T&C's and a unsigned agreement. I have contacted Experian and requested that a notice of correction be applied to me credit file as the account is in dispute. 1st Credit have been "Monitoring my credit file" and can offer me a reduced settlement figure if I contact then before the 29th Jan.

 

After the recent rulings, the requirements of s78 responses have been watered down but sending a blank agreement and t&c still doesnt match what the OFT say is a valid s77/78 request.

 

As to the offer... if they cant put it to writing then imo its just a ruse to get you to call.

 

S.


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just like the text message I received today "1st Credit will match any payment of up to 30% of your balance that you make in addition to your normal amount. This offer expires 30/01/10.

 

On a side note. The number they sent the text to is a PAYG number in an old phone kept in the car in case of emergencies.

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moved as requested :D


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**Update***

 

Rachel, Rachel Rachel. What have you done!

 

So today I receive this lovely letter from dear Rachel at 1stCredit in relation to what I only only assume was to a CPR 31.16 request made a couple of months ago which they have already replied to. The generosity of 1stCredit nows no bounds as they have been kind enough to provide two, yes two credit agreements, one for a citi card account March 2004 and the other for a Citi/Bmibaby Card for 2008. :lol:

 

The T&C's and APR are different in each and there and my signature is nowhere to be seen. Thanks Rachel :D

 

1stCredit.jpg

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Same old Citi shinanigans.

 

Whilst they are allowed to exclude the signature, signature box and signature date from the "executed agreement" under the regulations, what they are not allowed to do is substitute it for an entirely different document titled "Terms & Conditions" or retitled "Agreement". And this has always been our argument.

 

The majority of Terms & Conditions are titled "this is a consumer credit agreement under the Consumer Credit Act 1974". That said the two are very different.

 

The legislation also specifically indicates that under s78(1) Consumer Credit Act you are reqeuesting a copy of the "executed agreement", executed in legalese meaning signed.

 

Whilst the Terms & Conditions may contain all the prescribed terms and be legally compliant, that is irrelevant as the regulations state that the prescribed terms need to be embodied in the "executed agreement" itself.

 

Now I know that some courts have accepted copies of the original T&C as fulfilling s78(1) CCA, but this has not always been the case.

 

The fact is that you probably wish to check whether your "executed agreement" is properly executed, in as much that it contains all the prescribed terms. The could have provided you with a copy of the exact text of that "executed agreement", or a copy minus your signature but you simply can't check it on a copy of Terms & Conditions headed agreement.

 

I personally would continue with a CPR31.16 request, as on the basis of that letter you received they are threatening court action - you'd have to specifically ask to view the "original executed agreement". It may cost you a little bit but I can point you in the right direction if you need help on how to do it.

 

If 1st Credit Ltd have been assigned the account, then they should be in possession of the original if they have any sense. Plus court action would be interesting, in as much as you could argue whether the assignment is invalid - we have it in writing that Citi don't produce "Notice Of Assignments" when they sells accounts, which would explain why 1st Credit fake them (multiple problems in the NOA I received). The law states that for the assignment to be proper, the assignor (original creditor) has to notify the debtor.

 

To obtain an enforcement order against you they would require the original, or at least a provable copy of the original "executed agreement" with your signature, taking you to court on the basis of T&C is somewhat laughable.

 

Hope this is of help.

Edited by Enron

Advice offered by ENRON is without prejudice and is for your judgement as to whether to take it. You should seek the assistance or hire of a solicitor or other paid professional if in doubt.

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Enron,

 

I think the CPR route is the only one available to me at present. I now know exactly what they have.

 

I need to start looking at drafting a POC.

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Gonna PM you with details.


Advice offered by ENRON is without prejudice and is for your judgement as to whether to take it. You should seek the assistance or hire of a solicitor or other paid professional if in doubt.

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