Guidance on CCA templates, esp. 'true copy', please

[clairemp]

Hey

 

Just had a very dispiriting telephone conversation with West Yorkshire Trading Standards to whom I complained about MBNA's enforcement action whilst they've failed to comply.

 

I've been using the templates off CAG in dealing with MBNA and reading through the guidance which has informed my understanding of the CCA. But what Trading Standards say is opposite to the text of the CCA templates, that:

 

(1) it's no longer an offence for any financial company to fail to comply with a CCA request within 12+30 days under Repeals and Revocations in Schedule 4 of the Consumer Protection from Unfair Trading Regulations 2008 which came into force on 26/5/08. So the timescales mean nothing, and it's therefore no wonder that they don't send you anything at all but carry on harassing you while they're not complying.

 

(2) With regard to taking enforcement action while they're in breach by not sending you the CCA, it's only a breach which 'would not be looked upon favourably'. I then referred to the Credit Services Association's code, the Consumer Protection from Unfair Trading Regulations (CPUTR) 2008 and the OFT's guidelines on debt collection unfair methods, saying that my understanding was that failing to comply with a code of conduct to which you have subscribed is unfair trading. The response was they could only ask the company to explain its actions and it would be a breach, but one which would not require them to put it right. So they're allowed to register a default and harass you, and if you're lucky they only get a slap on the wrist which doesn't resolve the situation?!! Why is it worth doing it at all, taking up more of your time and effort whilst not preventing the harassment and defaults? How is this remotely protecting the consumer from unfair trading/unfair contract terms?

(3) While it's true they can't enforce an agreement without a true copy, it can apparently be a reconstituted copy which doesn't have to be signed or dated (under Consumer Credit Cancellation Notices and Copies of Document Regulations 1983). It doesn't matter if it doesn't have your signature and date (which it doesn't because they've never sent it to me, but they don't have to prove they ever did send it to me) and they can claim it IS a true copy reconstituted without providing the original to compare it to in order to prove it as being a true copy, or prove I ever saw this. So they CAN send me my application form without their corresponding signature or date and these blank terms and conditions which may or may not be anywhere near the same, and this would be considered both compliance with the legislation AND an enforceable agreement.

 

This seems to be to be opposite to all the CAG guidance and templates. Now the documentation I've got from any of the credit companies don't have both signatures on and my understanding was that this was an absolute; if they want to enforce the agreement, they must provide a true original copy with both signatures on it. How can you prove it's not enforceable, and conversely the company prove it IS enforceable, without having to comply with the absolute minimums? If it's a contract upon which the company wants to rely, surely they should have to prove I agreed to that contract?

 

So, they don't have to provide the original copy AND don't need to provide a copy with signatures or prescribed terms, even if they are relying on those documents to prove enforceability. I know that not providing a true copy/complying with the CCA doesn't mean that the alleged debt itself doesn't exist, but surely it has to be proved somehow? They can just whip up an A4 terms and conditions which makes it enforceable, never send to to me or get my signature, not even date it, and then use that to prove a contractual agreement?

 

Trading Standards say I can send evidence of their enforcement actions and prove they breached the guidance and code, but if they only then ask the company to explain its actions and don't even take any action, why is it remotely worth my time and effort? It's not even a midge up against an elephant in terms of MBNA giving a darn or putting it right.

 

Can someone please explain the discrepancy between the templates and the legislation? Where is the protection for the individual consumer in all this? I'm loathe to carry on with using the templates for my other credit companies if they're wrong or I've misunderstood.

 

Thanks in advance for your help.

 

Cheers

Claire

[Bosund]

Subbing, very interesting comments Claire...

 

Will be watching for the Site Teams input with a great amount of interest as Citi cannot provide my CCA so was about to challenge them.

 

Regards,

 

Bosun.

[Guest blackie]

Can someone please advise what is going on here.

[Bosund]

Bump

[upferret]

Hi, I am in the same boat here! I also need to know if sending a reconstituted agreement complies with my SAR, I am in the process of taking them to court for non complience, but I have just been given the same advice as you from someone who , so now I think I have to stop the case as I am unlikely to win. It does conflict with the advice I have got from here.

Edited November 12, 2009 by upferret

[Garfs]

I'm in exactly the same position - i am being taken to court http://www.consumeractiongroup.co.uk/forum/general/232027-please-help-they-threatening.html

 

please help

[B3rty]

They can reconstitute for a s.78 request and for a SAR they can provide the raw data not a copy of the agreement...they do not have to provide the original.....however to enforce in court they should produce a copy of the original signed agreement in the prescribed manner and this is such a grey area there are many point of view

 

This is what Susan Edwards from the OFT said recently in a private letter to a CAG member to support her case

 

HE 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

[upferret]

does this just cover CCA requests or subject acess requests too? Sorry for being dim. Thanks very much for posting this.

[Guest blackie]

If I am reading the letter from OFT correct, it would appear that a DCA can not take you to court unless they have actually purchased the debt, the must have sole rights to it. Am I correct. PLEASE HELP

[loverboy74]

just got a letter back from Vanquis card after request CCA s78 and then a challenge to that agreement requesting signed copy they say "WITH REGARD TO MEETING YOUR REQUEST UNDERS ECTION 78 CONSUMER CREDIT ACT. WE ARE ONLY REQUIRED TO PROVIDE YOU WITH A TRUE COPY OF THE EXECUTED AGREEMENT(which they did absent of signiture, just terms abd conditions).

WE ARE NOT HOWEVER, REQUIRED TO PROVIDE YOU WITH A COPY OF THE EXECUTED AGREEMENT BETWEEN US IN THE FORM OF A PHOTOCOPY.PLEASE BE ADVISED THAT IT IS ONLY NECESSARY FOR US TO PROVIDE THE SIGNED COPY OF YOUR AGREEMENT TO WHICH YOU ALLUDE,IN A COURT OF LAW SHOULD LEGAL PROCEEDINGS BE UNDERTAKEN BY US, AND NOT AT ANY TIME PRIOR.

I still dont think they have a executable copy for the courts to make a judgement on. However I have replied with a request for original copy under the Civil Procedure Rules ( Pre action protocols and Part 31.16) and therefore unsigned copy will not suffice, only a copy of the original contract in its unaltered form will suffice in these circumstances

See what happens ,

any comments, \tips?

[Guest blackie]

I've given in, it seems to me that these companies are a law unto themselves. Who owns the debt, Capquest, Abbey, who can take you to court, anyone it seems. They don't even need to prove you really owe it them. I don't remember anyone asking to see an agreement signed by me when Link took me to court. Of course I had not found this site then, but its a mine field. My advice, don't deal with DCA, go straight to the company your credit was originally with and refuse to deal with anyone else. At least you will know where you are working.

[loverboy74]

nah , you have to just box clever, use any argument you can, you also have to present these arguments as a defense the judge is not going to if you dont

[loverboy74]

send this

Dear Sirs,

 

With regard to the documents that you sent me in relation to my request for information under the Consumer Credit Act 1974, I am still waiting for the signed executed agreement. You seem to have sent me a somewhat recent copy of your terms and conditions and a very recent copy of an agreement form unsigned by anyone. I’m sure this must be an oversight, so I will ask you again for the proper documents.You also ask me to include documented evidence in future enquiry?? I am not sure what you mean by this and can only highlight you to the relevent law as below:

 

I draw your attention to section 61 of the consumer credit act 1974 (an excerpt enclosed for your perusal) in that

“(1) A regulated agreement is not properly executed unless a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner.”

Be also advised that your statutory time period has elapsed and YOU are now in default and very shortly you will have committed a criminal offence. As you are now in default NO further action can be taken on this account until such a time as the original SIGNED EXECUTED documents are made available to me.

This account is still in dispute and I still forbid the passing of any data to third parties, if any data has been processed illegally since my last request I shall take appropriate action.

Further if you cannot supply the proper documents and you have entered any defaults against my name I require that you remove them immediately.

I shall be carefully considering my options and next actions.

I await your response.

[upferret]

send this

Dear Sirs,

 

With regard to the documents that you sent me in relation to my request for information under the Consumer Credit Act 1974, I am still waiting for the signed executed agreement. You seem to have sent me a somewhat recent copy of your terms and conditions and a very recent copy of an agreement form unsigned by anyone. I’m sure this must be an oversight, so I will ask you again for the proper documents.You also ask me to include documented evidence in future enquiry?? I am not sure what you mean by this and can only highlight you to the relevent law as below:

 

I draw your attention to section 61 of the consumer credit act 1974 (an excerpt enclosed for your perusal) in that

“(1) A regulated agreement is not properly executed unless a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner.”

Be also advised that your statutory time period has elapsed and YOU are now in default and very shortly you will have committed a criminal offence. As you are now in default NO further action can be taken on this account until such a time as the original SIGNED EXECUTED documents are made available to me.

This account is still in dispute and I still forbid the passing of any data to third parties, if any data has been processed illegally since my last request I shall take appropriate action.

Further if you cannot supply the proper documents and you have entered any defaults against my name I require that you remove them immediately.

I shall be carefully considering my options and next actions.

I await your response.

Hi, is this advice for the OP? thanks

[thrubolt]

Good evening all, I seem to be on the correct pages here for discussion, my wife and I seem to be getting more lost as the days go by.

We have just had a reply from the Finaancial Ombudsman who claim to take an impartial view to complaints - NOT.

After a long drawn out process they have sided with Vanquis and see no reason why We should not pay them the minimum payments - my wifes minimum payment with illegal charges and so called protection charges comes to about £400/month, yeah right - she is on Jobseekers.

their wording was/is " You operated a credit card with Vanquis" they go on "We believe that the underlying problem concerns Vanquis not supplying a copy of credit agreement, my understanding is that Vanquis IS PERMITTED to take REASONABLE stepsto recover such a debt WITH OR WITHOUT A COPY OF THE CREDIT AGREEMENT, INDEED, SO ARE DEBT COLLECTION AGENCIES. it is however for a court to decide whether a debt is unforceable in the absence of a credit agreement.

In our opinion, you have had the benefit of the use of a Vanquis credit card., and reasonable that you repay your debt.

 

Now, forgive me if I am wrong, in my business, I can supply goods to customers without them having to sign a binding document, then invoice at end of month. NOTE - If their delivery note is NOT signed and printed - I don't have a leg to stand on. They can simply say NO SIGNATURE- NO PAYMENT>

[loverboy74]

ignore them they are goverment tossers lol stick to your guns keep fighting , claim harrasment, hit them with anything can think of

[loverboy74]

Ombudsman is a **EDIT**

Edited January 15, 2010 by citizenB
language

[Guest blackie]

I think what they are trying to say is that if money is borrowed then the creditor can normally expect for it to be paid back, which is fine, I woud like to think that no one on this site is saying they don't want to pay the debt they have borrowed. I feel it is the ridiculous fees and charges and the lack of help we get from these companies when things go wrong for us. No one is going to borrow money they feel they can not pay back. But circumstances in life do not always guarantee we will be in a position to make the said repayments. The way they have worded their letter makes it sound as if you just dont want to pay. Why does everyone assume this.

[thrubolt]

Yes, thank you for that. I note with great interst that all these companies now have an "Application Form" worded so that all the prescribed terms are set out, but this was not the case for us, it was a throught the door name, address piddley affair, and they cant come up with the original. So untill they come up with it - No pay hose. Anyways, they have stuck it with a DCA so I will get them to do the legwork and start all over with CCA/Notice of Assignment etc,etc, why dont they just take me to court to sort it out before judge??

[coledt]

Hi I have sent this letter to a catalouge that I have an account with:

 

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 received a reply :

 

26/8/2009

 

Dear Mr xxx

 

I have been asked to respond to your letters.

 

We have complied with our obligations to supply you with a “True Copy” of your credit agreement. A “Tru Copy” is defined by regulation 3 of the Consumer Sredit (Cancellation Notices 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 section 77 and 78 of the Consumer Credit Act 1974 is to enable consumers to obtain a copy of the current terms applicable to their agreement. A “True Copy” for the purposes of section 78 Consumer Credit Act 1974 therefore, need not be an exact copy or photocopy of the original executed/ signed agreement so long as it contains every material provision of the agreement that was signed.

 

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

 

Having been provided with your “True Copy” there is no basis for you to either allege that you 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 previously, I now wish to return to the substance for your refusal to pay your account. So that I can be absolutely clear, is it your case that you :-

a) Deny receipt of the agreement?

b) Deny signing the agreement?

c) Admit or deny receipts 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 irrelevant in establishing whether consent to process data exists under the Data Protection Act 1998. We obtain our consent to process your data independently and separatley from any decision to offer credit agreement. Th 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 you applied for one of our catalogues or when you opend your mail order account. At the time you requested one of our catologues or opened you 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 persojnal data. This notice, inter-alia, will have notified you that, as part of our commitment to be responsible lending, we would record details os the manner which you conducted your account with a Licensed Credit Reference Agency.

 

In Summary, the lack of a 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 you intentions with regard to future payments to this account.

 

I did not hear from them for a few months then I received a phone call asking about a payment. I have also noticed that on my credit report I had a "unlisted" whilst I did not hear from them now I have 3 missed payments recorded. Can anyone please help me on whay my next move should be.