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david999

Bos Cca Reply Please Help!

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My sister took out credit card with BOS around 1992, 17 years ago, it was original visa then it change to master card.

 

sent cca request to bos and they have sent these doc back,

1st one has her old adders on it

2nd has her new address on it

3 is statement, dont know why it is so small

4 is the main letter

 

1 & 2 are only the front pages of two seperate documents they sent

 

.

can someone have a look and let me know if theses are true copy of the agreement.

 

new to this so trying to use photobucket to display the docs

 

PLEASE HAVE A LOOK AND LET ME KNOW

 

DAVID

Edited by david999

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I haver been looking through other threads to to find any documents simular to these ones, cant find any,

 

also find it stange that they can produce these documents within 12 days of request, especially when the alledged agreement was from 17 years ago.

 

any suggestions?

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It "probably" satisfies as a s78 response but as thats not been set in stone in court its difficult to say.

 

Without a signature from your sister or the bank the document is unenforceable tho subject to usual judge lottery of course.

 

S.


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thanks shadow.

 

 

iv read a few threads were they cannot produce a cca from 7 years ago, and yet in a matter of 12 days they can produce my sisters cca from 17 years ago.. strange.

 

is this a real cca they have sent or is it something they have put together?

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Hi,

Strange this. They have admitted it's a "reconstituted" version of your agreement so it's a mock up.

I think a SAR to the bank might show up what they have got.

 

I keep banging on about this but I'll say it again. "if they have the agreement then why not enclose it"

 

fox


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i totaly agree fox.

 

if they have the original, why not send it?

 

i guess the word "reconstituted" is admiting its something the have put together and not a true copy, do you agree?

 

do i now reply with a " account in dispute" letter and ask for a SAR report, enclosing a £10 postal order?

 

db

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sorry fox. let me explain.

 

two thing happend with this credit card

 

1st i think about 7 or 8 years ago the bank changed it from visa to mastercard. sister did not request this, i think it was something to do with visa changeing.

 

2nd. 4 years ago sister asked for better rate and rate was chnged to a better rate, but the card and account stayed the same.

 

is this info any use to you?

 

db

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It may be useful to you when you(or your sister) send the SAR as they have to include everything they hold on you.

 

I'm not sure how much Scottish law differs from English law.

You should state that you want everything from inception of the account. They may try to get away with the last 6 years of info but as the account was changed from visa to mastercard you will need that info too.

 

Hopefully they will send the agreement you have posted above meaning that they don't have the original.

 

As to sending the A/C in dispute letter, I can't see the harm in doing so.

 

Now the warnings.If your sister stops paying:

They will default your sister.

They may terminate the account.

They will screw her credit file

they will pass this on to their in-house collection team to harass and bully her into paying.

They could pass the debt on to a DCA

They could try the court route

 

As The Shadow has said, a judge would have to rule on what has already been sent.


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24 September 2009..

 

Hi everyone..

 

i though i would give you's an update on what's been happening, and get your advice, also if this helps anyone who is also requesting a caa from bos..

 

as you know we requesteted a cca on the 28th July 2009, on the 5th Aug 2009 they sent out the first documents,supposed to be a true copy of the cca, and after reading through the forum for advice,

 

we wrote to them on 12th Aug 2009 and informed bos the docs, were not a true copy of the cca.

 

 

on the 21 Aug they sent this letter with a copy of the application form

[/font]

[/font]

[]

we wrote back to them on the 28th Aug 2009[/font]

 

 

Bank of Scotland

Card Services

Pitreavie Business Park

Dunfermline

KY99 4BS

 

28 August 2009

 

Dear Sir / Madam

Credit Card Account No: [/font]

 

 

Thank you for your letter dated... 21 August 2009[/font]

 

It would seem that you are of the belief that you have discharged your obligations under the Consumer Credit Act 1974 in particular section 78(1

You have provided me a copy of “an application form!

As you must realise this (application form) does not conform to sections 60(1) and 61(1) of the Consumer credit Act and is therefore unenforceable under section 127(3) of the same act

 

Firstly, to comply with section 61 of the consumer credit act 1974 which refers to the signing of an agreement a document must conform to regulations made under the provisions of section 60(1) Consumer Credit Act 1974 otherwise it cannot be properly executed

 

These regulations I refer to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553). These regulations set out the form and content of agreements. For an agreement to be compliant with the regulations it MUST embody within the agreement, the prescribed terms laid out in the SI1983/1553 without the prescribed terms the agreement does not conform to section 60(1) 1974 and therefore cannot be properly executed as described in section 61(1) CCA 1974.

 

For your information, The prescribed terms referred to 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--

(a)Number of repayments;

(b)Amount of repayments;

©Frequency and timing of repayments;

(d)Dates of repayments;

(e)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.

 

Nowhere on the (application form), that you supplied is there any reference to these terms. I wish to remind you that the absence of these terms will render a document (unenforceable in court) also, these terms MUST be contained within the agreement and NOT in a separate document headed terms and conditions or words to that effect

 

Since the document you have supplied is a clear mailer (application form), I cannot believe that these very important terms would be contained on the opposite side of the form,. Therefore, they must have been contained in a separate document, which is prohibited by the SI1983/1553, as there is no clear link to them within the signature document.

 

Therefore, once again you have failed to supply an enforceable document, which is correctly executed as to be so; it must conform to the Regs under s60 CCA1974

 

On 28 July 2009 I made a formal request for a true signed agreement for the alleged account under consumer credit Act 1974 s77/8[/

 

On the 12 August 2009 made a 2nd formal request for a true signed agreement for the alleged account under consumer credit Act 1974 s77/8

 

You have failed to comply with my request, and as such the account entered default on 14 August 2009

 

]You are aware that the Consumer Credit Act allows 12 working days for a request for a true copy of a credit agreement to be carried out before you enter into a default situation

 

This period of 30 days since the first request has now lapsed and you are now committing a serious offence

 

]As you are no doubt aware section 77(6) states:

 

If the creditor fails to comply with Subsection (1),

[

a) He is not entitled, while the default continues, to enforce the agreement

[

]In addition

b), if the default continues for one month he commits an offence.[/font]

 

Therefore, this account has become unenforceable at law.[/font]

 

As you have failed to comply with a lawful request for a true, signed copy of the said agreement [/font

I am of the opinion that a court is precluded from enforcing this agreement by s127 (3) CCA1974 as it is improperly executed under s61 CCA 74, the consequences of improper execution are set out in section 65 CCA 1974 and s65 sets out that only a court can enforce an improperly executed agreement subject to certain qualifications, one of those is that the document is signed and contains all the prescribed terms. Since this document does not contain all the prescribed terms s127 (3) CCA 1974 strictly prevents the court from enforcing this agreement.[/font]

 

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.[/font]

 

Furthermore, I shall counterclaim that any such action constitutes unlawful harassment.[/font]

 

You should be aware that a creditor is not permitted to take ANY[/font]

 

The lack of a credit agreement is a very clear dispute and as such, the following applies.[/font]

 

You may not demand any payment on the account, nor am I obliged to offer any payment to you.[/font]

[You may not add further interest or any charges to the account.[/font]

You may not pass the account to a third party.[/font]

You may not register any information in respect of the account with any credit reference agency.[/font]

You may not issue a default notice related to the account.[/font]

 

 

]I respectfully request you that you supply me the required document or alternatively confirm in writing the account is closed and the debt written off with a zero balance, and [/font]remove all information regarding this account from your own internal records and from my records with any credit reference agencies

I respectfully request a reply within 14 days of the date of this letter

I look forward to your reply.

 

 

Yours faithfully[/font]

 

 

the bos then sent this letter with the very same application form enclosed..

 

 

as you will see in the above letter they are sayin "the original agreement would have contained the prescribed terms" in which they are addmitting they do not have the

original agreement..

 

We have now sent this letter to bos

 

[Bank of Scotland[font

Card Services

Pitreavie Business Park

Dunfermline

 

21 September 2009

Dear Sir / Madam

Re: Credit Card Account No:

Thank you for your letter dated... September 2009

Please allow me to explain my simple request, on the 28th July 2009, i request a true signed copy of the original credit agreementby law, i am entitled to request this, and by law, on request you are enforced to provide me with a true signed copy of the original credit agreement

However, you have once again provided me a copy of the same “application form” that you sent with your last letter.

As detailed in my letter dated 28 Aug 2009 this (application form) does not conform to sections 60(1) and 61(1) of the Consumer credit Act and is therefore unenforceable under section 127(3) of the same act. This application form, merely states that this is an application form, it does not even confirm if the application was even successful.[/

 

As previously detailed in my letter dated 28 Aug 2009, to comply with section 61 of the consumer credit act 1974 which refers to the signing of an agreement Not an application form), a document must conform to regulations made under the provisions of section 60(1) Consumer Credit Act 1974 otherwise it cannot be properly executed

 

 

Since the document you have supplied is a clear mailer (application form), I cannot believe that these very important terms would be contained on the opposite side of the form,. Therefore, they must have been contained in a separate document, which is prohibited by the SI1983/1553, as there is no clear link to them within the signature document.

 

Therefore, once again you have failed to supply an enforceable document, which is correctly executed as to be so; it must conform to the Regs under s60 CCA1974

 

You had failed to provide me with a true signed copy of the original credit agreement that I requested by law. And are in default of my request. [/font]

 

 

Whilst the account is in dispute, you are not permitted to ask for any payment, nor are I obliged to offer any payment to you. Furthermore, whilst the dispute remains, you are not entitled to charge any interest on the account, nor make any further charges to the account. Additionally, you are not entitled to register any information on this account with any credit reference agencies (or any third party).[/font]

 

To register information with a credit reference agency, you must have written consent from the data subject 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

 

The time limits, which are laid down in the Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 are clear

You must supply an executed credit agreement within 12 working days of a proper CCA request. If you fail to comply with a legitimate request, the account enters a default situation and if you fail to comply after a further 30 days, you commit an offence.

Therefore, you had 12 working days from my original request dated 28/07/2009, in which the 12 days ended 13/08/2009 to send me a true signed copy of the original credit agreement, otherwise the account will remain in dispute, and your conduct will be reported to the Office of Fair Trading, and Trading Standards.

 

It is now been 55 days since my request dated 28 July 2009, your failure to produce a a true signed copy of the original credit agreement, and your actions of requesting payments, is committing serious misconduct of the Consumer Credit Act 1974

 

Take further note that telephone calls will not be answered and after the receipt of a request not to call may constitute a criminal offence under Section 127 of the Communications Act 2003.

 

This account is in serious dispute and I will not be making any payments to you until you provide me with a true signed copy of the original credit agreement that I have requested.[/

 

Therefore, this account has become unenforceable at law.[/

a court is precluded from enforcing this agreement by s127 (3) CCA1974 as it is improperly executed under s61 CCA 74,

The consequences of improper execution are set out in section 65 CCA 1974 and s65 sets out that only a court can enforce an improperly executed agreement subject to certain qualifications,

Since you have failed to provide a

true signed copy of the original credit agreement with the prescribed terms s127 (3) CCA 1974 this strictly prevents the court from enforcing this agreement.[/

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS

Furthermore, I shall counterclaim that any such action constitutes unlawful harassment.

 

 

Please Be advised: As 55 days have now passed since my original request on the 28 July 2009, This is my final request that i respectfully request you that you either supply me the required document or alternatively confirm in writing the account is closed and the debt written off with a zero balance, also removing all information regarding this account from your own internal records and from my records with any credit reference agencies.[/

 

I respectfully request a reply within 14 days of the date of this letter.[/

I look forward to your reply

Yours faithfully[/font]

[

 

throughout this dispute the bos has continually demanded payments, they have added on charges, and the have phone the house 2 to 3 times a week trying to speak to my sister

and on top of this each time they telephone they are breaking the data protection act, as they are telephoning and stating they are the bank of scotland without confirming who they are speaking to. this is against the data protection act, we have continually wrote in the letters

 

all correspondance in writing only, have also stated to the bos, that whilst in dispute, they are not allowed to demand payment or add charges in which they keep doing

 

this application form only proves that an application was submitted, it does not prove that the application was susessful..

 

 

 

PS.. just recieved a letter this morning 24 sep 2009, from BOS, stating a representative will be attending our home on the 27th sep 2009,, first of all, the 27th sep 2009, is this Sunday???.. second,, are they allowed to come to your door when the account is in dispute??

 

Please give advice..

Edited by david999

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Hey guys, any chance of some feed back advice on this.. thanks

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Hi,

 

Post 9-the copy of the application form contains your name so best to remove it.

 

I'd be inclined to sit tight and await their next move.

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thanks for that, iv removed it now..

 

what do you make of the bos saying they were sending a representative to the house??

 

just to let you know, no rep turned up at the house..

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The thing to be doing now is to complain. Go to trading standards via the consumer direct website and complian through them. Complain to BOS and copy in the OFT.

 

The dispute is now your opinion against BOS's. They will say they have complied. You know they haven't. It's a case of who blinks first.

 

Did you SAR them?

 

BOS may just flog the debt on to a DCA but if that happens, we can help there too.

 

You could always get a judge(sherrif) to rule on the agreement supplied or wait and see if BOS get silly and take you to court


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thanks.

 

first of all, we have not requested a SAR yet, should i request one now?

 

are they allowed to flog the debt to a dca if the account is in dispute?.

 

their reply to our last letter is due 6th Oct 2009, so we will wait for their reply, and the follow your advice by starting the complaint at trading standard, and complain to bos, and oft,

 

basically complain to anyone who is willing to listen?

 

i would say at this point in time the judge sherrif route is upto bos if they wish to take action, at this time,

 

i would say this is a simple straight forward case, by law we requested a cca, it is now 60 somthing days later and bos has failed to provide a caa,

 

they may quote they have prived sufficiant documention, however as far as i am led to believe an application form does not to comply with section 61 of the consumer credit act 1974.

 

dont get me wrong, we are worried about this, its causing sleepless nights, but i beleive im on the right side of the law with this.

 

we will wait for their reply and then follow your instructions advice..

 

thanks again for all and everyones help with this..

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See the bits in red

 

thanks.

 

first of all, we have not requested a SAR yet, should i request one now?

 

This will show their hand. IF they have a valid agreement, they will have to enclose it

 

are they allowed to flog the debt to a dca if the account is in dispute?.

 

NO but that doesn't stop them. Easy enough to get sent back to them though

 

their reply to our last letter is due 6th Oct 2009, so we will wait for their reply, and the follow your advice by starting the complaint at trading standard, and complain to bos, and oft,

 

basically complain to anyone who is willing to listen?

 

i would say at this point in time the judge sherrif route is upto bos if they wish to take action, at this time,

 

i would say this is a simple straight forward case, by law we requested a cca, it is now 60 somthing days later and bos has failed to provide a caa,

 

they may quote they have prived sufficiant documention, however as far as i am led to believe an application form does not to comply with section 61 of the consumer credit act 1974.

 

dont get me wrong, we are worried about this, its causing sleepless nights, but i beleive im on the right side of the law with this.

 

Do try to let this flow over you rather than through you. At the end of the day, being in debt is not a criminal offence.

 

we will wait for their reply and then follow your instructions advice..

 

thanks again for all and everyones help with this..


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thanks for that.

 

its a terrible thing to say, but reading through other peoples stories, its a comfort to know we are not on our own and other people are in the same position, i know that sound terrible but it real does help to know your not on your own.

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It's not a terrible thing to say. It's just the truth.

 

What I found was that their was lots more people in a worse situation than me and while not very pc, it made me a bit happier about my situation but it also gave me the resolve to stay around and help as many peeps as I could. It's only by staying around that I have picked up so much info about debt and the tactics banks/DCA's use. I will keep learning the longer i lurk.:)


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It's not a terrible thing to say. It's just the truth.

 

What I found was that their was lots more people in a worse situation than me and while not very pc, it made me a bit happier about my situation but it also gave me the resolve to stay around and help as many peeps as I could. It's only by staying around that I have picked up so much info about debt and the tactics banks/DCA's use. I will keep learning the longer i lurk.:)

 

Same here... I couldnt afford to make a site donation so decided I'd help as many people who I could and learn from the site team in the meantime just in case a pesky DCA rears its head again :-)

 

S.


Are You as Anonymous on CAG as You Think You Are? *Link*

 

The CAG is a free help site,should you be offered help that requires payment,please report it to site team.

 

Deal with your debts:

STEP ONE - Dont Panic! | STEP TWO - Priority & Non Priority Debts | STEP THREE - Personal Budget Sheet | STEP FOUR - A SAFE bank Account | STEP FIVE - Dealing with Priority Debts | STEP SIX - Non-priority Debts | STEP SEVEN - Non-Priority Debt-Repayment Opt1 | STEP EIGHT - Non-Priority Debt-Repayment Opt2 | STEP NINE - Perils of Consolidation | STEP TEN - RE-Evaluate Frequently

 

***** SERIOUSLY IN DEBT, DONT KNOW WHAT TO DO, TRY NationalDebtLine's MoneySteps *****

 

 

IMPORTANT: Please take my advice in the spirit it is given and on the basis that I am expressing my opinion, These opinions are not endorsed by CAG in anyway and are offered informally without prejudice or warranty of any kind. These opinions are solely based upon the knowledge I've gained from this fantastic site and life in general. I have NO legal training.

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i can confirm from ourselves, your help and advice is very much appreciated, if it wasn't for this consumer forum, there would be no help available as due to our financial situation, solicitors fees are out of the question at this present time. so everyone who has helped and givin their advice.

 

thank you very much.

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HI david

I will be subbing your thread,just had a quick scan,can you post up what agreement has been sent and have you had a subject to access back yet.


 

 

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two thing happend with this credit card

 

1st i think about 7 or 8 years ago the bank changed it from visa to mastercard. sister did not request this, i think it was something to do with visa changeing.

 

2nd. 4 years ago sister asked for better rate and rate was chnged to a better rate, but the card and account stayed the same.

 

is this info any use to you?

 

db

 

same here

when your sister took out the card 17 years ago she will have signed for the visa....now its a mastercard...the first thing you will find when you get the sar back is ...change of account numbers.

 

so....Did she sign for a new account number,me thinks not,they will not have the original agreement and certainly will not have the prescribed terms on it matey.


 

 

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david

forget the petrieve address

 

send this to customer complaints and get a complaint refrence no-this is your ammunition-keep everything in a file in order.

 

Customer Priority team

Halifax

PO BOX 718

LEEDS

LS1 9GB Account no xxxx xxxx xxxx xxxx

ACCOUNT IN DISPUTE

Dear Sir/madame

 

I write with regards to the above accounts which i consider to be IN DISPUTE.

I am sure that you are aware that I have long since requested from Halifax, under both the Consumer Credit Act 1974 (The Act) and the Data Protection Act 1998, a copy of the agreement to which both you allege I am a signatory. To date this has not been provided to me and whilst I appreciate Halifax Bank has endeavoured to persuade me that the provision of a copy of an standard terms& conditions is sufficient to discharge you or Halifax collections team from further obligations under section 78 of the Act. Likewise I too have explained that the mere provision of a copy of an application form is not a legally permissable substitute for the provision of a true copy of the executed agreement as required under section 78 of the Act and as prescribed by Regulation 3 Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983.

 

I am sure you are also aware that under section 78(6) of the Act, whilst a creditor is in default of a request made under sub-section (1) they may not enforce the agreement.

 

Notwithstanding the foregoing and Halifax or retail collections persistent, unexplained and willful refusal to supply a copy of the executed agreement in accordance with its obligations (the permitted ommisions under Regulation 3(2) excepted),

To date i have received standard terms and conditions of the imformation i have requested , with no signed agreement,I must inform you that your company is still in default under section 77-79 of the consumer credit act 1974 and has been since xx xxxxxxx 2009

There is simply a way to resolve matters

I respectfully request that you provide me by return a copy of the credit agreement which bears my signature. I require this as i have reason to believe that there may be discrepancies within the agreement which may leave it improperly executed.

 

 

obviously if the agreement is improperly executed i would be entitled to ask the court to consider the agreement and make a declaration of the rights of parties to the agreement.

 

Please confirm if you still hold a copy of my signed agreement and that you will provide me with this document.

I do not view this as an unreasonable request given that by supplying the document which i have asked for it will allow me to assess if my case has merit and will help to resolve matters possibly without the need to involve the court and will undoubtedly save costs on both sides

 

I look forward to your reply and would ask for a response by 4pm on xx xxxxx 2009 (give them 2 weeks)

 

With regards to you passing this account to any recovery agents or call team please be aware that the Consumer Credit Act allows 12 working days for a request for a true copy of a credit agreement to be carried out before you enter into a default situation.

 

This limit has expired.

 

As you are no doubt aware section 77(6) states:

 

If the creditor fails to comply with Subsection (1)

 

(a) He is not entitled , while the default continues, to enforce the agreement.

 

Therefore this account has become unenforceable at law.

You have failed to comply with a lawful request for a true, signed copy of the said agreement and other relevant documents mentioned in it, failed to send a full statement of the account and failed to provide any of the documentation requested.

 

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

 

Furthermore I shall counterclaim that any such action constitutes unlawful harassment.

 

Please note you may also consider this letter as a statutory notice under section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect.

 

This means you must remove all information regarding this account from your own internal records and from my records with any credit reference agencies.

 

Should you refuse to comply, you must within 21 days provide me with a detailed breakdown of your reasoning behind continuing to process my data.

 

It is not sufficient to simply state that you have a ‘legal right’. You must outline your reasoning in this matter and state upon which legislation this reasoning depends.

 

Should you not respond within 14 days I expect that this means you agree to remove all such data.

 

Furthermore you should be aware that a creditor is not permitted to take ANY

Action against an account whilst it remains in dispute.

 

The lack of a credit agreement is a very clear dispute and as such the following applies.

* You may not demand any payment on the account, nor am I obliged to offer any payment to you.

* You may not add further interest or any charges to the account.

* You may not pass the account to a third party.

* You may not register any information in respect of the account with any credit reference agency.

* You may not issue a default notice related to the account.

 

Your telephone calls are in breach of the Office of Fair Trading guidelines. If you continue with them after the receipt of this letter an official complaint, together with a log recording the times and frequency of the calls will be passed both to that office and to the Trading Standards office. For your information note that ALL telephone calls are taped.

 

This type of debt collection method is contrary to the ‘Administration of Justice Act 1970’ in that it is intended to cause alarm and distress to the recipient. Your methods will not be tolerated. A formal complaint, containing copies of all correspondence including yours, may be submitted to the relevant authorities. This will be relevant to questions of your fitness to hold a licence under the Consumer Credit Act, whether or not it results in a prosecution.

 

Take further note that continued telephone calls after the receipt of a request not to call may constitute a criminal offence under Section 127 of the Communications Act 2003.

 

Communicate in writing and ONLY in writing, your telephone calls will NOT be answered.

 

HOWEVER, CALLS WILL TRIGGER COMPLAINTS TO THE REGULATORY BODIES.

 

I would appreciate your due diligence in this matter.

 

I look forward to hearing from you in writing.

 

Yours faithfully


 

 

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thanks gary,, very good letter, it clearly states the current situation..

 

i did post up the documents they sent, but i left some private info on them and had to remove them..

 

we have not requested SAR yet. their reply to our last letter is due 6th Oct, and they have been prompt with their reply letters, so waiting for that..

 

they sent out terms and conditions, when we wrote back they then sent out application form, we wrote again, and they sent the same application form..

 

not sure if you seen the application form, but you are correct, it was visa then changed to mastercard, but the application form they sent shows, its ticked for "visa only"

its signed and dated by my sister " 12th July 1995"

 

there are no terms and condition

no APR

no credit limits

no payment schedule

 

and someone has written at bottom "aprove in normal manner"

 

im not sure what year visa changed to mastercard, but i dont think it was as far back as 1995, which means angela did not sign for a new card, as im sure they would have sent that already.

 

i assume bos are not going to just fold with this, but its now 66 days since our first request.

 

they have also been telephoning the house at lest 3 times a week, also breaking the data protection act by informing whoever answers the phone that it the BOS and they want to speak to Angela, basically informing whoever answers the telephone, that angela has a bos account,,is this not against the law?

 

also adding penalties to the account for non payment.

 

and sending cards through the door asking angela to telephone a 0845 telephone number..

 

PS,, I DO APOLOGISE, i originally said the card was taken out 1992,, my mistake, it was 1995, 14 years ago.

 

 

David

Edited by david999

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Hi everyone,, as i mentione before bos reply was due on 6th oct 2009, as usual they have replied back well within this time limit,,

 

can you's have a look and let me know your thoughts on this letter?

 

Pub1.jpg

 

on reading this letter, im not 100% sure, but are they not basically saying they do not have the properly executed agreement?

 

also when you get down to the personal part of "i have found no previous record of this account being in dispute"

 

 

you can obviously tell that bos are very unhappy and annoyed with our request, as obviously they cant produce the agreement.. and yes bos is correct there have never been any previous dipute, for the simple fact that we have never requested the agreement before..

 

they also suggest that " you have had the benifit of this account since 1995"

 

is this account been for free?

did bos give us this account out of the goodness of their heart?

should we be thanking bos for the privilege of this account?..

 

what are bos suggesting?, are they suggesting we waiver our legal rights to ask for a true executed agreement, because they are annoyed?

.

 

where should we go from here?

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Ok, apolologies for this being so long, this is a response from the OFT to a customer on what a s77/8 request should be responded to... you need to extract from this the important bit about true copy and not a reconstruction.

 

This was typed up by BRW originally.

 

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 debtor 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.

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.

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.

 

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

 

Susan Edwards

Head of Credit Investigations and Enforcement, Office of Fair Trading

 

So firstly I'd quote back something from that letter just stating that the "oft head of investigations and enforcement is of the opinion that a true copy is ......"

 

S.


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