1st Credit

[canbrilla]

Hi

 

I requested a copy of my credit agreement after 1st Credit apparently bought my account from Citifinancial. After 2 years of waiting I today received what they say is a 'True Copy' of the relevant agreement. Below is the wording of the letter:

 

"We hereby enclose a 'True Copy' of the relevant agreement recently requested.

 

Please note that 1st Credit Limited is only required to provide you with an agreement which is compliant to the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983.

 

Pursuant to these Regulations, we are required to provide you with a 'true copy' of the agreement. Specifically I would refer you to Regulation 3(2) which states that the agreement is not required to be an exact replica of the original document but may omit certain information including any signature box, signature, or date of signature.

 

We consider that this document fulfils our legal requirement and that this debt is now enforceable'.

 

Is the above correct because if there's no signature or date this agreement could belong to anyone, all they need to do is put my name and address on it.

 

I've no problem with paying the debt in instalments but I don't like the way 1st Credit go about their business although I know they've been told by OFT to clean up their act!

 

I'm awaiting their next move.

 

Thanks, any help would be welcome.

 

canbrilla

[Huff&Puff]

If they actually had a copy of your CCA then they would send you a copy of it. When they start spouting all that guff bout "true copies" and all that, you can be reasonably confident that they don't have anything. Especially after such a long period. I'd just ignore the muppets.

[canbrilla]

Hi Huff&Puff

 

I'm not going to contact them, just wait and see what they do next.

 

On looking through the many pages they've sent me I came across a page which states at the top '0022 - Citi & bmibaby Cards 11 01 2008. Credit Card Agreement regulated by the Consumer Credit Act 1974'.

 

Don't what all that's about, I took my card out years ago, can't remember exactly how long ago, unfortunately.

 

Is the Regulation 3(2) right?

[debt4get]

since the manchester case dca's are trying it on, saying they dont have to provide a signed agreement..however if they are going to take it too court then they are gonna have to come up with it..as huff and puff says if they given you this rubbish you can be pretty confident they aint got it

[debt4get]

Re: my request under the Consumer Credit Act 1974

 

 

Thank you for your letter dated xx/xx/xx, the contents of which are noted

 

I note that to date you have not complied with my request for a copy of the credit agreement for this alleged debt which you are pursuing me for

 

The Consumer Credit Act 1974 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. Without production of the said agreement I am unable to asses 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’.

 

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.

 

 

For the avoidance of any doubt I have included section 78(1) of the Consumer Credit Act 1974, which states…

 

78 Duty to give information to debtor under running-account credit agreement

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of [£1], shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a) the state of the account, and

(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

 

(6) If the creditor under an agreement fails to comply with subsection (1)—

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

(7) This section does not apply to a non-commercial agreement, and subsections [(4) to (5)] do not apply to a small agreement.

 

 

Clearly the agreement which was supplied in no way complies with the requirements of the Consumer Credit Act 1974 and I now draw your attention to section 78 subsection 6 which states If the creditor under an agreement fails to comply with subsection (1) he is not entitled, while the default continues, to enforce the agreement;

 

Clearly this is a situation as described in s78(6) Consumer Credit Act 1974 and the debt is unenforceable at this time. In addition, I draw your attention to section 127 (3) Consumer Credit Act 1974 which states

 

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

This situation is backed by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the Consumer Credit Act 1974 the agreement cannot be enforced.

 

 

To clarify s61(1) states

 

(1)A regulated agreement is not properly executed unless—

 

(a) 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, and

 

(b) the document embodies all the terms of the agreement, other than implied terms, and

 

© The document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible

 

In addition the prescribed terms referred to in section 60 CCA1974 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—

 

1.Number of repayments;

2.Amount of repayments;

3.Frequency and timing of repayments;

4.Dates of repayments;

5.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

 

 

Therefore based upon the Consumer Credit Act 1974 this debt as it stands is unenforceable and should this proceed to litigation, a court is precluded from making an enforcement order under section 127(3) unless a true copy of the signed agreement is produced. I will re-iterate that this is clearly not a true copy of the executed agreement between xxxxxxx and myself.

 

In addition, I draw your attention to the Office of Fair Trading’s guidance on debt collection

 

The OFT guidance which was issued July 2003 (updated December 2006) relating to debt collections and what the OFT considers unfair, I have enclosed an excerpt from page 5 of the guidance which states

 

2.6 Examples of unfair practices are as follows:

 

h. Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment

 

 

What I Require.

 

I require that you send me a true copy of the executed agreement and all documents referred to in it as required by the Consumer Credit Act 1974. If you are unable to supply the requested documentation because no such agreement is in existence I require written clarification as such.

 

I require that you comply with my request within 7 days of the date of this letter. I will not correspond any further with you until I either receive a copy of the requested documents as laid down in section 78(1) CCA 74 or clarification that such agreement doesn’t exist.

 

No other correspondence will be accepted

 

 

you can try this if you like

[veryweary]

Once you have sent d4g's excellent letter, youi've put the account into dispute. Then once 12+2days have passed since you first requested your CCA , you can withold payments if you wish even if previously making them. You're in control now not 1stCredit.

 

1stCredit will huff and puff but realising you mean business, and knowing they probably can't find a compliant copy, they 'll eventually start sending you begging, once in a lifetime settlement discounts, and offers of a free plasma TV if only you will pay them.:D:D

 

.

[canbrilla]

Thank you to you all! debt4get, that's magic, I'll definitely send that letter, can't thank you enough.

[canbrilla]

1st Credit rang my mobile on 5 March, luckily I missed it. Sent letter recorded delivery so I know they received it. Just a waiting game now.

[diddydicky]

it would be better if you posted up the agreement they sent you- the fact of the matter is that if what they sent you is legible, they may well have complied with s78 -

[canbrilla]

Hi diddydicky, it is legible as it looks as though it's one that's had details entered onto a blank agreement then been printed and so is not photocopied. It's not signed anywhere and there are no dates. There're also lots of pages, however, I'll see if I can post the relevant ones.

 

Thanks for your reply.

 

canbrilla

[canbrilla]

Unfortunately, I can't post the agreements 1st Credit sent as my copier is not cooperating.

 

However, I'll put on here the main points on their 'CCA'.

 

HEADING ON BOTH 'CCA's.

 

CREDIT CARD AGREEMENT REGULATED BY THE CONSUMER CREDIT ACT 1974.

 

FIRST: The original creditor Associates Capital Corporation, there's my name and address, their name and address, APR,

BUT NO CREDIT LIMIT, it says they will determine the credit limit and notify me direct, OR REPAYMENT AMOUNTS, just £5 or 3% of outstanding balance.

 

SECOND: My name and address, Citifinancial name and address, APR, BUT as above no credit limit or repayment amounts, just £5 or 2.25%. It also says they will set a credit limit and keep me informed of what it is.

 

Lots of other info about late repayments, missing payments etc.

 

No date, no signature. Is this enforceable?

 

I've found a Default Notice from Citi dated 15 January 2008 but no Notice of Assignment from them. Letter from 1st Credit dated 27 February 2008 indicating that Citifinancial had assigned my account to them and that the letter was a notice of assignment. It actually says: 'We write to introduce 1st Credit Ltd to you', although it's from 1st Credit themselves.

 

Another letter from 1st Credit dated 12 March 2008 stating that they were considering taking legal action, although I had spoken to them on the phone as I wanted to make monthly payments as I had been doing to Citi. They weren't interested, just wanted full payment immediately.

 

Then a letter from LCS Solicitors dated 26 March 2008 asking for full payment within 7 days or they will take Court action.

 

Letter from 1st Credit dated 9 April 2008 attaching statutory demand. I had this set aside, I went to Court they didn't.

 

Any help appreciated.

 

canbrilla

[debt4get]

no date no signature....unenforceable...and they didnt even bother turning up in court for set aside? i hope you claimed costs against them? if they didnt bother what does that tell you?

[canbrilla]

Hi, had a reply from 1st Credit the body of which is below.

 

Further to the above and your letter of the 7th March 2010, a true copy of the agreement was posted to you on the 26th February 2010.

 

It appears necessary to clarify the definition of a 'true copy' of an agreement.

 

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 apply. Regulation 3(1) sets out that 'every copy of an executed agreement... shall be a true copy'.

 

Regulation 3(2) goes on to state that there may be various information omitted from this true copy. Details which are not required to be in the agreement by law include the signature box, signature and date of signature. Therefore 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.

 

Please find below statement of account as required by the Consumer Credit Act 1974 as amended 2006:

 

(1) the state of the account..current outstanding balance of £ ........

(b) the amount, if any, currently payable under the agreement by the debtor to the creditor.... £.......

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.... £.......

 

Section 15 of the Consumer Credit Act 2006 repealed sections 127(3) to (5) of the 1974 Act (subsection (5) is consequential on subsection (3)), which means that a court will have the power to determine in its discretion whether agreements are enforceable in accordance with section 127(1) and (2) regardless of the breach in question.

 

We look forward to hearing from you within 14 days of the date of this letter with your proposals for settling the debt failing which we shall have no alternative than to consider our options.

 

Yours sincerely

 

 

Audrey Shim-Quee

Compliance Manager

 

Thoughts anyone?

 

Thanks.

 

canbrilla

[diddydicky]

the credit limit is properly specified

 

you can buy a cheap scanner on e bay or from your local paper for around £10 and this is going to be essential if you want proper advice on the docs you will come across

 

the agreement they sent you does not need to contain the signatures or even the signature boxes

 

when did you take the agreement out/and what are the penalty charges on the agreement also look at the bottom left and right of the agreement and either horizontally or vertically there should be a printers code (date)

 

if the agreement they sent you is ammended from the original then they have not complied unless they also send you the original agreement with terms and conditions as at the outset of the agreement

[debt4get]

in essence they are correct however you have also made your position clear until they supply a 'true' copy they can bog off...they need one if they want to enforce in court...they couldnt even be bothered to turn up to set aside...what does that tell you? no agreement..not enforceable

[debt4get]

Your ref

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 fulfill 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. The documents 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 alleged account. This document 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 xx/xx/xxx(12+2 working days after the request was made) to provide me with the true copy I requested. You will then be 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 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 information industry.

I expect you to confirm in writing that the account has been closed and no further action will be taken,

 

Yours faithfully

 

 

you can try this one if you like

[PGH7447]

All I got was a letter saying see carey v hsbc, pity I was not disputing the application form format - fools

[canbrilla]

Thanks for your replies. I'll have a look at the papers they sent me for any printers code.

 

I'll try to get my copier working and post the papers 1st Credit sent me.

 

Once again, thanks.

 

canbrilla