Companies Wriggling out of CCA Requests

[spurious]

I've recently asked MEM Consumer Finance Ltd to provide a copy of my original loan agreement with them.

 

They have sent through a copy of the agreement, but have omitted various sections, and wrote the following in the cover letter:

 

"Please note, that pursuant to Regulation 3 of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983, MEM are required to provide a 'true copy' of the executed Agreement in accordance with the terms of the Regulations. In providing that true copy, we are permitted to omit any signature box, signature date or signature from the copy of the Agreement that is provided to you. In providing the enclosed copy of the Agreement, MEM has complied with the terms of the Regulations and with Section 77 of the Consumer Credit Act."

 

How true is this? I suspect the reason they have done this is because they don't have the original document any more. Does anyone have any tips for something I can send back forcing them to send me what I have asked for under law?

[Alphageek]

Hi, take a look at this thread.

 

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

[harrassed senior]

Can you post up the Agreement after removing personal details and we can look and see if this is enforceable or not.

[andydd]

A CCA request shouldnt be seen as the be all and end all, it is in fact just the first step, it is correct that the credit company can omit so much information to make it virtually meaningless.

 

Now in my experience if a company has a perfectly valid, signed and dated CCA agreement then there is no reason for them not to send it to you (I received a 'perfect' one from Nemo loans), BUT if a company never had one to start with or has lost it then it is not suprising that they wiggle and squirm and try to hide behind the 'true copy' arguements.

 

The next step would be to follow the CPR or SAR route which should in theory provide you with an actuall copy of the said agreement, if it existed in the first place

 

Andy

[lickthewallfatboy]

CPR works for me!!

[vint1954]

If they have no agreement, they will ignore the CPR, so it will tell you something and it's free. They generally have to have threatened legal action before you can make a request under CPR 31.16, or you intend to take action against them.

 

This is a particular bug of mine. The intention is that under CCA 1974, you get a true copy of your agreement. They can omit signatures and dates from your copy and some other security points. This part of the law comes forward from the very old regulations. It is worded so that the agreement could be coppied out by hand, (Pen of quill), when obviously a signature would not be available. Does not take account of technology. But it has to be a true copy of the document that you have signed, if indeed you did.

 

Companies are now bending or ignoring these rules, as they either do not have the agreement or it is archived somewhere inaccessible, especially for £1. This does not let them off of the hook however.

 

The OFT enforcement view is below.

 

“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 second parragraph is the killer for the credit companies. They agree that you must be left in no doubt, that it is a copy of the agreement that you signed. Without the origonal, that is they can confirm that they have coppied it from the origonal without adding bits to it, It is not a true copy. If they had the origonal to hand, in these days they would simply copy it to avoid the problems.

 

The only reason that I can see personally, for sending a reconstitution document, is to mislead. They either do not have one or the prescribed terms are not there. Why send you a document that you can hang them with, if they can muddy the waters.

 

A suitable response could be:

 

 

xxxxxx 2009.

 

Dear xxxxxxxxx,

 

ACCOUNT IN 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 is now subject to a 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, instead supplying me with a copy of 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.

 

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 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.

 

I look forward to your response.

 

They know that they have not complied and are just trying to wriggle.

[vint1954]

I've recently asked MEM Consumer Finance Ltd to provide a copy of my original loan agreement with them.

 

They have sent through a copy of the agreement, but have omitted various sections, and wrote the following in the cover letter:

 

"Please note, that pursuant to Regulation 3 of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983, MEM are required to provide a 'true copy' of the executed Agreement in accordance with the terms of the Regulations. In providing that true copy, we are permitted to omit any signature box, signature date or signature from the copy of the Agreement that is provided to you. In providing the enclosed copy of the Agreement, MEM has complied with the terms of the Regulations and with Section 77 of the Consumer Credit Act."

 

How true is this? I suspect the reason they have done this is because they don't have the original document any more. Does anyone have any tips for something I can send back forcing them to send me what I have asked for under law?

Can you post a copy of the agreement.

[2Grumpy]

There's a difference between a conjectured reconstruction and a true copy

 

I read somewhere that the "true copy" is from pre photocopier days when legal documents had to be transcribed by hand. It makes sense that there might be minor differences - spacing etc.

 

But it still has to be a copy of the original document. I would ask why they go to rediculous lengths to justify what they have sent when they could presumably have sent a photocopy of the agreement!

[vint1954]

There's a difference between a conjectured reconstruction and a true copy

 

I read somewhere that the "true copy" is from pre photocopier days when legal documents had to be transcribed by hand. It makes sense that there might be minor differences - spacing etc.

 

But it still has to be a copy of the original document. I would ask why they go to rediculous lengths to justify what they have sent when they could presumably have sent a photocopy of the agreement!

Correct,

 

This part of the act relates to hand coppying, where it was obvious that you could not send a copy bearing the debtors signature. The intention was clear however that it was to be a copy of the document that you signed, hence "true copy"

 

I think that companies have now decided that they have indeed messed up and fallen foul of the act. They then reconstruct a document, selling this as a true copy. What they are trying to tell us is that they have coppied the origonal document, just as they would have done by hand years ago.

 

The crux will come when, just like years ago, they have to produce a copy of the original either in court, SAR or CPR.

 

My thoughts have always been that if they had it, they would send it.

 

Some have also relied on application forms as agreements. Wrong, these are pre contractural documents. The CCA says that the agreement signed by both parties must be sent to the debtor within 7-14 days of the agreement being executed. ( signed by both parties). There is usually nowhere for the OC to sign on an application foprm, so it could never become a contract!

[spurious]

Thanks for the responses. Since they haven't (yet) threatened legal action, it seems the best way forward is to hit them with a SAR and see what they produce from that.

[2Grumpy]

Or look at post #2

[volvo]

subbing

[vint1954]

Or look at post #2

For when they threaten legal action or you are going to take action against the creditor.

 

They tend to ignore these, unless you progress to court to get disclosure. Not much point unless you are going all the way, but it adds to the pressure on them.

 

If they do not supply a copy of the origonal and try to wriggle, it's a fair bet that they do not have one.