Bos Cca Reply Please Help!

[the_shadow]

and further to that something the excellent CitizenB posted...

 

 

The very act they are stating allows them to remove the signature, the (Cancellation notices and copies of documents )regulations also states:-

 

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.

 

If you put together a letter and post up prior to sending.

 

S.

[the_shadow]

Apologies for overloading

 

This post might help give you some pointers....

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/211306-new-tack-supplying-cca-4.html#post2446578

 

Its along the track that I'm taking with one of my creditors.

 

S.

[david999]

thanks shadow, im just reading through the letters just now,,however straight away i can see

 

"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".

 

and this is the very documents they have stated they have sent me..

 

how can they prove it an excact copy?,, do we just have to take their word for this?

 

also how can they prove that my sister ever singed any agreement?, she signed an application form dated 1995, however this does not even prove that the application was even successful..

 

thanks shadow,,, im not sure where to go from here, do we keep asking for a copy of the agrement, or do something els?, i will wait for your letter, and send it to them

[the_shadow]

thanks shadow, im just reading through the letters just now,,however straight away i can see

 

"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".

 

and this is the very documents they have stated they have sent me..

 

how can they prove it an excact copy?,, do we just have to take their word for this?

 

also how can they prove that my sister ever singed any agreement?, she signed an application form dated 1995, however this does not even prove that the application was even successful..

 

thanks shadow,,, im not sure where to go from here, do we keep asking for a copy of the agrement, or do something els?, i will wait for your letter, and send it to them

 

The only way they can prove its an exact copy is to show the original

 

S.

[david999]

shadow on that link you provided i found this information,, this relates to the in formation the bos has stated in the letter, saying that the customer would have signed the agrement!

 

 

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.

[david999]

hi all,, a quick update,, recieved another letter from bos yesterday, its dated 29 sep 2009, the post must be running late, its 2 pages, here it is

 

 

 

 

a couple of points before i ask for your help with what to do.

Between this letter and the last letter they sent us, should i reply by pointing out every law they have broken?

1) starting with the last letter they sent, they state the reconstruction of the terms and conditions and the application form they sent is good enough to be a properly executed agreement...

THE CONSUMER CREDIT ACT 1974 - Sections 77 and 78

 

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.

 

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

 

2)In the letter they state in regards to the account being in dispute " you have given no basis for this dispute and in our opinion the agreement is enforcable" is failure to provide an agreement not a good basis for a dispute?

3)they state " whilst the actual credit limit is not shown as this is not known at the point the customer would have signed the agreement..

 

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).

 

4) the first thing i noticed with this letter is the address, its no longer from Dunfermline Fife, this one's from Trinity road Halifax, is this the Head Office?

5) they state "clause 2.2 of your terms and conditions contain details of the minimum payment you must make each month...

how do they know this? when they dont have a true copy of the original agreement with the terms and condition?

6) they are still demanding payment and adding penalties onto the account whilst the account is in dispute, the reason the account is in dispute is, they have faild to provide a the agreement.

7) they are threating to terminate the agreement and close the account?,,, there is no agreement as if there was an agreement they would have sent this to us..

8) they a threating " we may take legal proceeding against you and/or instruct a DCA to recover any amount you owe us.. they may take legal action,however they do not have any agreement to prodcue in court,, 1974 act , says they can not pass the debt to a DCA whilst the account is in dispute..

9)they state " we may also transfer money from any other accounts you may have with us to reduce the debt outstanding?,, are they allowed to do this?,, in any case our other account is already overdrawn.

10) if you have not paid the amount requested within 28 days of this letter, or made satisfactory proposal to dod so, we will pass details of the default to a credit ref agency... are they allowed to do this?

 

the issue here at the moment seems to be the account in dispute, they say i have no basis,, im saying their failure to provide an agreement is a valid reason for the account to be in dispute..

could someone let me know, what we should do now

David

Edited October 8, 2009 by david999