Mail Order Co refuse to comply with CCA request.

[beds_male]

Hi first time posting, but long time using this site.

 

I am after some advice in regards to a request for a cca from a company called Paladin commercial acting on bahalf of Compton and Woodhouse. The reply i recieved from them is below.

 

As you will be aware, due to the nature of the serivce provided - namely mail order goods - there is no signed credit agreement. You acceptance of the agreed repayment schedule was concluded when you accepted the goods (the delivery note containing the relevant terms and conditions), made payment towards these and did not return the goods within the specified statutory period.

For online orders, the electronic nature of these agreements also precludes a traditional signature, such agreements are concluded in the manner above in addition to your deemed acceptance by ticking the check box which states this in order to proceed and process your order.

The debt owed is still entirely valid and enforceable, should payment not be received to satisfy this we will have no other option than recourse to the courts. Such a course of action may add further costs to your debt and may also affect your ability to obtain credit in the future."

Now, i dont have the delivery note which i believe was from 2003 or 2004 and i am not sure if the above in enforceable, and as such i sent them the Failiure to provide a copy of the agreement within the prescribed timescale template, which states if after 12 days i do not recieve a true copy of the credit agreement and other relevent documents the account enters a default situation and thus becomes unenforceable by law.

Am i correct in sending them the failure to provide a copy template, and if so, does Paladin have any come back to continue to chase me for the debt they say i owe?

Many thanks for your help on this matter, and i look forward to hearing you advice.

[foolishgirl]

Hi beds male

 

You might like to try something like this instead of the 12 day letter in the hopes of seeing them off -

 

Thank you for your recent letter dated xxx, the contents of which are noted.

I must inform you are quite wrong in stating that mail order is not subject to the same law as any other consumer credit agreement. Your response is not sufficient to comply with my request and your company is still in default under the Consumer Credit Act 1974 (the Act).

 

The Act demands that I be supplied with a true copy of any properly executed credit agreement that exists in relation to the above account, providing that a fee of £1.00 is paid. This fee was sent with my original letter dated xxxx.

 

For the avoidance of any doubt section 3(1) of the 1983 regulations shows that, subject to certain limited exceptions, any copy of an agreement must be a ‘true copy’. This means that it must be identical to the agreement as presented or sent to the debtor for signature.

 

Section 3(2) of the same regulations states what may be excluded from copy documents: There may be omitted from any such copy- (a) any information included in an executed agreement, security instrument or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations there under as to the form and content of the document of which it is a copy.

 

As you will know, under the Consumer Credit Act 1974, a judge is not permitted to make any enforcement order unless the creditor can provide a true signed copy of the original credit agreement. This means that unless you can produce such an agreement, this alleged debt is not enforceable in law.

 

For clarity, S127(3) provides that the court may not make an enforcement order unless a document containing all the prescribed terms as required by section 60(1) Consumer Credit Act 1974. The Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) made under the authority of the “1974 Act” sets out what the prescribed terms are, I refer you to Schedule 6 Column 2 of SI 1983/1553 for the definition of what is required.

 

I have therefore to inform you that until you can provide a true copy of any agreement that you claim exists between us, this account is in dispute & I will be remitting no further payments to your company.

 

Please be aware that any legal action you may contemplate taking in respect of this alleged debt will be vigourously defended on the above grounds.

[cerberusalert]

You should also make a complaint to the OFT because of their deceptive practices; [email protected] include a copy of their letter.

[beds_male]

Thank you for your help, have posted them the letter, and will look forward to the reply back.

 

Keep up the good work.

[MARTIN3030]

Good -will move your thread and retitle.

Keep us posted on anything further.

[seftonview]

You don't need to send any further letters - they've already admitted that they didn't ask you to sign a credit agreement.

[coledt]

Hi I could really do with some help. I have wrote to a catalogue and asked for a True Copy - which they sent me. I then asked to have a copy of my signature as I have not signed anything as it was an online account. They did not supply this. I wrote to them saying that they should then agree my account is settled. I also stated that as we are in legal dispute they can not give my details to a collection agency - as they said they would, and that this would break the data protection act. I have now received a letter from a legal firm, which I have added. I did not sign anything, they do not have a signature. Please any advice on the next move and any help with what to write.

 

 

 

I have been asked to respond to your letters of the 3rd August 2009,.

 

We have complied with our obligations to supply you with a “True Copy” of your credit agreement. A “True Copy” is defined by Regulation 3 of the consumer Credit (Cancellation Noticies and Copies of Documents) Regulations 1983. The “True Copy” need not, by law, contain either the signature of the debtor or the date of the signature in our case.

The purpose of sections 77 and 78 of the Consumer Credit Act 1974 is to enable consumers to obtain a copy of the cureent terms applicable to their agreement. A “True Copy” for the purpose of section 78 Consumer Credit Act 1974 therefore, need not be an exact copy or photocopy of the original executed/ signed argreement so long as it contains every material provision of agreement tha was signed.

The copy agreements sent to you on 18th and 23rd June 2009 fulfil thi requirement. No default therefore arises.

Having been provided with you “True Copy” there is no basis for you to either allege that your are exonerated from payment under the agreement or that we remain in breach of our obligations under the Act. Having established the legal position regarding the status of the document provided to you previosly, I know wish to return to the substance foe your refusal to pay your account. So that I can be absolutelty cleatr, is it your case that you:-

a) deny receipt of the agreement?

b) deny signing the agreement?

c) admit or deny receipt of the goods and service?

d) admit or deny performing your account as if you had signed the credit agreement?

Please answer ALL of the above questions, whereupon the matter will receive our further attention.

In your letter you appear to be making a connection between the existence of a signed credit agreement regulated by the Consumer Credit Act 1974 and the need, under the Data Protection Act 1998, to obtain consent to process customer data. There is no such connection and your allegation that no signed credit agreement exists, which is denied, is irrelevent in estalishing whether consent to process data exists under the Data Protection Act 1998. We obtain our consent to process your data independently and seperatelt from any decision to offer credit and accordingly your consent to process is NOT contained in the regulated credit agreement. The fact that you deny having signed any credit agreement does NOT therefore mean we do not have consent to process your data.

We obtain our consent to process your personal data at the time that you applied for one of our catalouges or when you opened your mail account. At the time you requested one of our catalougies or opened your account/s you will have seen or been referred to a very comprehensive Data Protection notification of the obvious and non-obvious uses to which we would put your personal data. This notice, inter-alia, will have notified you that, as part of our commitment to the responsible lending, we would record details of the manner which you conducted your account with a Licensed Credit Agency.

In summary, the lack of Consumer Credit Agreement, or your signature thereon, is not relevant to the issue of whether you have consented to the use of, or whether we have fairly obtained and lawfully processed, your personal data.

Please confirm your intentions with regard to future payments to this account.

[cerberusalert]

I did not sign anything, they do not have a signature. Please any advice on the next move and any help with what to write.

At the minute you do not have to do anything, you've already sent the 'In Dispute' letter & until they provide an enforceable agreement it will remain so.

 

a) deny receipt of the agreement?

b) deny signing the agreement?

c) admit or deny receipt of the goods and service?

d) admit or deny performing your account as if you had signed the credit agreement?

Ignore their letter above, there is enough case-law to show that in the absence of an enforceable agreement a court would have to look upon any goods you received as a gift.

[coledt]

Should i write back to them now and say that it's unenforceable, and let them know that i'm complaining to TS and the OFT?

 

what is the best way to word such a letter, are you be able to help me with what i should say to them and the OFT?

 

Im not sure if it makes any differance but it was an online catalogue?

 

Thank you for you advise Cerberusalert. It really helps.

[cerberusalert]

How long ago was it when you signed up online?

[coledt]

I opened it on 7/12/2005. so thats nearly 4 years ago.

[andie_303]

Hi cole - similar thing here.

 

Again they have admitted that they have no agreement and are relying on a proof of postage of the goods to an address.

 

Their initial letter said please write to us if you wish to have a copy of the information we hold on you so I duly did along with a CCA - no response except verbal confirmation (recorded of course) that they have no signed agreement of proof of receipt.

 

This was all over a month ago and heard nothing more until a funny phone call where I was asked to make a payment - I said no as they couldn't prove it was mine and until they do I can't help them.

 

I then asked when they were sending my information to be told that they could not send it anymore as they could have got something from C&W 2 months ago but not now!!

 

They then tried the threatening tactic of we will mark a default on your credit file - at which point I told Mr operator that my limited knowledge of consumer law states that unless they can prove a debt exists they cannot do such a thing and please do not try to mislead or lie to me.

 

At which point he backed down and said that I was correct.

[coledt]

I sent the following letter:

 

29/07/2009

Dear Sirs,

Account no

Re: my request under the Consumer Credit Act 1974

Thank you for your recent letter sent to me, the contents of which are noted. I appreciate your quick response to my original letter. However, the reply received by me does not fulfil your requirements under the Consumer Credit Act 1974.

The Act demands that I be supplied with a true copy of any properly executed credit agreement that exists in relation to the above account. I may ask for this on demand providing that a fee of £1.00 is paid. This fee was sent with my original letter.

My request remains outstanding. An unsigned credit agreement like the one you sent in your reply, does not constitute a true copy of any credit agreement that may or may not have been signed by me on the opening of this account. A blank agreement neither confirms that I am liable for any alleged debt to you, nor gives me any chance to evaluate whether any original agreement was ‘properly executed’.

I still require you to send me a true copy of the original credit agreement that you allege exists. As you will know, under the Consumer Credit Act 1974, a judge is not permitted to make any enforcement order unless the creditor can provide a true signed copy of the original credit agreement. This means that unless you can produce such an agreement, this alleged debt is not enforceable in law.

You had until 16/06/2009 (12+2 working days after the request was made) to provide me with the true copy I requested. You are now in default of my request. Any account I hold with you is now in legal dispute. Whilst the account remains in dispute, you are not permitted to ask for any payment, nor am 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 agency.

To register information with a credit reference agency, you must have written consent from the customer 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 + 2 working days of a proper CCA request. If you fail to comply with a legitimate request the account enters a default situation.

To sum up, I will not be making any further payments to you until you provide me with the document I have requested. Whilst you remain in default of my request, you are not permitted to take any action against this account. This includes adding further charges and passing any information to the credit reference agencies

I expect you to write to me confirming that the account has been closed and no further action will be taken.

I look forward to your reply.

I did not hear anything from the company for a few months then I received a phone call requesting that I make a payment. I informed the person that I was in dipute with them and that this was in letters that I sent as I have not received a copy of the original true copy. I was told that this could lead to more phonecalls. So Ii asked the person to take my number of th system as I do not give persmission for them to have it no more. I also looked a my credit report and noticed that for the months that I had not got any contact from them I was listed as "U" on my credit report, now I have 3 miss payments. Can anyone give me any advise please, as I am really stuck. Thank you