Request for information under section 77 of the consumer credit act 74

[whatcanisayimste]

PLEASE HELP WITH MY NATWEST LITIGATION

 

 

on the 22nd of feburary i sent a contract challenge to nat west asking for the following under section 77 of the consumer credit act 74:

 

 

• A copy of the loan agreement
  
• Account transaction history, statements and interest rates charged (APR)
  
• A copy of the original application form
  
• Terms and conditions relating to the account
  
• All correspondence relating to this account
  
• The accounting procedure used in formulating the agreement i.e. validation of the debt and its structure. The actual accounting process.
  
• Prima facie evidence identifying whose asset was used to initiate and fund the account, in question, in the first instance.
  
• A copy of the contract binding both parties
  
• Verification of the claim against me i.e. a sworn affidavit or invoice.
  

 

They did not reply within 12 days of this letter

so on the 24th of march i sent a second letter Re-requesting the above information and informing them that

 

" to date no such information has been presented and as a consequence you are therefore in default. Where the default continues for one month you the creditor commit an offence under the Consumer Credit Act 1974."

 

 

on the 29th of april i finally recieved a Reply from nat west Stating

 

 

"I refer to your letter of 16/03/2010 making a request under S.77(1) we regret to advice that te loan agreement has been misfiled and despite searching our records we have been unable to locate it. Regrettably we are unable to comply fully with your request made under s77(1) of the Consumer Credit Act but we are able to provide you with a statement of financial information which is inluded below."

 

 

Now i have electronic royal mail proof that they recieved my letters on 25/03/10 and 23/02/10 NOT 16/03/2010 for is this some sneaky bankster trick?

 

 

, Secondly because they cant find my loan agreement is this debt legally enforceable?

 

 

Thirdly since my first letter,. which points out the loan is in dispute they have added missed payment charges , interest on arrears Ect are they allowed to add charges on to the account while its in dispute?

 

 

and finally they write "notwithstanding this the loan remains valid and we expect you to continue to meet your obligations under the agreement. We should point out that if you do not resume making payments we will report the default to Credit Reference Agencies ("CRA's") in line with guidance issued by the Information Commissioners Office."

 

 

can they default me to credit agencies?

when i have stated clearly that:

"I will be happy to pay any financial obligation that I might lawfully owe as soon as I receive the following documents below:" (1-9)

 

Finally on this letter i recieved it also states the following:

 

"Other non statutory information- Interest rate 11.8%APR, Personal Loan protector Premium- £1,205.10 , Loan protection Insurance Cancelled 22/09/2009 Insurance rebate 1,205.10"

 

to this date i have never recieved a insurance rebate?

 

 

where shall i proceed next?

[postggj]

Letter used when a company fail to provide a copy of your agreement within the 12+2 working days timescale after your initial request for a copy of your agreement made under s 77/8 of the Consumer Credit Act 1974 (Highlights in red must be edited)

 

 

ACCOUNT IN DISPUTE

 

Date:

 

Ref:

 

Dear Sir/Madam

 

Thank you for your letter of xx/xx/xx, the contents of which have been noted.

 

You have failed to respond to my legal request to supply me a true copy of the original Consumer Credit Agreement for the above account.

 

On **DATE** I made a formal request for a true signed agreement for the alleged account under consumer credit Act 1974 s77/8. This was signed for as delivered on the **DATE**

You have failed to comply with my request, and as such the account entered default on **DATE** (12+2 days after you made the initial request).

 

The document that you are obliged to send me is a true copy of the executed agreement that contained all of the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself as defined in section 61(1) of CCA 74 and subsequent Statutory Instruments. If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document. In addition a full statement of this account should have been sent to me detailing all debits and credits to the account.

 

Furthermore, you are aware that the Consumer Credit Act allows 12 working days for a request for a true copy of a credit agreement to be carried out before you/your client enters into a default situation.

 

This limit has expired.

 

As you are no doubt aware section 78(6) states:

 

If the creditor fails to comply with Subsection (1)

 

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

 

Therefore this account has become unenforceable at law.

 

As you have failed to comply with a lawful request for a true, signed copy of the said agreement and other relevant documents mentioned in it, Failed to send a full statement of the account and Failed to provide any of the documentation requested. You will also be aware of the CPUTR 2008 and the OFT's guidelines on debt collection which state under the title Deceptive and/or unfair methods - Examples of unfair practices are as follows - 2.8

 

(i) - 'Failing to investigate and/or provide details as appropriate, when a debt is queried or disputed, possibly resulting in debtors being wrongly pursued'

 

(k) - 'Not ceasing collection activity whilst investigating a reasonable queried or disputed debt'

 

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

 

Furthermore I shall counterclaim that any such action constitutes unlawful harassment.

 

Please note you may also consider this letter as a statutory notice under section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect.

 

This means you must remove all information regarding this account from your own internal records and from my records with any credit reference agencies.

Should you refuse to comply, you must within 21 days provide me with a detailed breakdown of your reasoning behind continuing to process my data.

 

It is not sufficient to simply state that you have a ‘legal right’; You must outline your reasoning in this matter and state upon which legislation this reasoning depends.

 

Should you not respond within 14 days I expect that this means you agree to remove all such data.

 

Furthermore you should be aware that a creditor is not permitted to take ANY

Action against an account whilst it remains in dispute.

 

The lack of a credit agreement is a very clear dispute and as such the following applies.

 

* You may not demand any payment on the account, nor am I obliged to offer any payment to you.

* You may not add further interest or any charges to the account.

* You may not pass the account to a third party.

* You may not register any information in respect of the account with any credit reference agency.

* You may not issue a default notice related to the account.

 

I reserve the right to report your actions to any such regulatory authorities as I see fit.

You have 14 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint.

 

I would appreciate your due diligence in this matter.

 

I look forward to hearing from you in writing.

 

Yours faithfully

[postggj]

its 14 days for compliance now, not 30 and the criminal offence bit is no more now also

[whatcanisayimste]

postggj your last post has just confused me slightly, 'the criminal offence bit is no more now also'?

 

could you do me a small favour and just delete your sample letter and repost it with the amendments, i dont know which parts to change and which ones to keep

[avatari]

Hi WCISM, just to clear this up for you: postggj's letter is perfect, he was referring to YOUR letter where you state

 

" to date no such information has been presented and as a consequence you are therefore in default. Where the default continues for one month you the creditor commit an offence under the Consumer Credit Act 1974."

 

He is correct in pointing out that the above is no longer true, no criminal offence is committed.

 

The creditor merely has 14+2 days to respond.

 

No need to edit postjjg's letter except the bits he has already marked in red.

 

Hope this clarifies.

Avi

[whatcanisayimste]

Ahh oki i understand now,

 

One other thing! i forgot to mention in my original post that in the letter they sent me where they state they have misfiled the original loan agreement they DID send me the following

 

'statement of financial information'

which had the following

 

Name- trading name *****

loan account number *****

sort code *****

total loan amount *****

balance drawn on * ****

repayments due monthly thereafter of : *****

Total amount paid to date *****

total sum that remains payable on these arears *****

missed payments and dates are as follows *****

 

And 'Other non statutory information

 

Interest rate ****

personal loan protector premium ******

loan protection insurenace cancelled 22/09/2008

Insurance rebate- 1,205.10 ( WHICH IVE NOT RECIEVED)

 

and then they finish with,

 

"Notwithstanding this the loan remians VALID and we expect you to continue to meet your obligations under the agreement. we should point out that if you do not resume making payments we will report the default to the credit reference agencies in line with guidance issued by the informations commissioners office"

 

 

 

 

DOES any of this information i failed to mention in my original post

change the template letter whatsoever?

 

maybe to do with this? ---"Failed to send a full statement of the account and Failed to provide any of the documentation requested"

 

 

and one last question the (12+2 days) im presuming this is 14 working days? so if they recieved my first letter on the 22nd of feburary then they defaulted on the 15th of march?

 

thanks VERY much again

[postggj]

Letter when a debt collection agency refuses to comply with a CCA request (thanks again to Mark)

 

Address

 

Date

 

Dear Sir/Madam

 

I refer to your letter dated (date) in which you confirm that you are unable to comply with my formal request pursuant to s.78 to s.79 of the Consumer Credit Act 1974. However, despite being in default of my request, you have continued to make unlawful demands for payment contrary to s.78(6) of the CCA 1974 and the Consumer Protection from Unfair Trading Regulations 2008 (CPUTR).

 

I note that the Credit Services Association, in the first paragraph of its Code, state that members must act lawfully at all times. Furthermore, under the CPUTR 2008 failing to comply with a code of conduct to which you have subscribed is unfair trading.

 

In the circumstances, I will not enter into further correspondence with you, and any further unlawful demands or contact will be viewed as harassment and reported to the appropriate enforcement agency.

 

Finally, as you have failed to comply with my request, I require you to return the £1.00 fee without delay.

 

Yours faithfully.

Related Articles

 

 

 

 

 

 

if they fail to send your agreement

 

send this

[csirocks]

Please can you help me with a query relating to this?

 

I was contacted by a debt company (Debt managers Limited) saying I owed them and amount of money for a debt they had purchased. Upon asking for further information under the consumer credit act section 77 (i.e. for the original credit agreement) they wrote back to me saying they were requesting this from the original debtors which they said was Lloyds TSB.

 

They wrote again a few weeks later saying that they had requested the information and would revert back to me when they had it to hand. They stated no further action was being taken until they had this information. That letter was dated 11th April 2008.

 

This morning I received a letter from another company (Wescot Credit Services Ltd) stating I owe the identical amount to a company called Arrow Global Limited - who I have never heard of or had any dealings with - and who they are representing.

 

The original consumer credit agreement has never been forthcoming.

 

If I send the same letter requesting the original cosumer credit agreement along with the £1 does that start up a 12 day timescale again?

 

What would be the best course of action now?

 

Please help!

[whatcanisayimste]

everything is getting confusing now

 

POSTjj

 

you state "Letter when a debt collection agency refuses to comply with a CCA request"

 

the letters im refering to, have come directly from the Nat west

not a debt collection agency,

 

which letter do i send? :S im confused?

 

and u never answered on the 12+2 day question?

[postggj]

Please can you help me with a query relating to this?

 

I was contacted by a debt company (Debt managers Limited) saying I owed them and amount of money for a debt they had purchased. Upon asking for further information under the consumer credit act section 77 (i.e. for the original credit agreement) they wrote back to me saying they were requesting this from the original debtors which they said was Lloyds TSB.

 

They wrote again a few weeks later saying that they had requested the information and would revert back to me when they had it to hand. They stated no further action was being taken until they had this information. That letter was dated 11th April 2008.

 

This morning I received a letter from another company (Wescot Credit Services Ltd) stating I owe the identical amount to a company called Arrow Global Limited - who I have never heard of or had any dealings with - and who they are representing.

 

The original consumer credit agreement has never been forthcoming.

 

If I send the same letter requesting the original cosumer credit agreement along with the £1 does that start up a 12 day timescale again?

 

What would be the best course of action now?

 

Please help!

 

 

send this to westcot

 

 

 

A letter when the account has been passed to another debt collection agency/or from a bank/financial organisation/credit provider TO a debt collection agency whilst the account is in dispute due to non compliance with an CCA agreement request.

 

ACCOUNT IN DISPUTE

 

Date:

 

Dear Sir or Madam,

 

Account number: XXXX XXXX XXXX XXXX

 

I am in receipt of your letter dated XXXXX

 

This account is in dispute with **original creditor/DCA** and has been since DATE .

Not only is this a breach of the Consumer Protection From Unfair Trading Regulations 2008 in line with the Office Of Fair Trading's debt collection guidelines, but also in breach of the Consumer Credit Act 1974 and Data Protection Act 1998

 

My previous dispute from **DATE** has NOT been answered.

 

As **original creditor/name of debt collection agency** are now in default of my Consumer Credit Act agreementrequest and have also breached *s10 Data Protection Act request , I consider this account to be in SERIOUS DISPUTE.

 

As you are aware while my Consumer Credit Act request remains in default enforcement action is NOT permitted, under s127 this constitutes a complete defence at law.

 

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

 

Now I would respectfully suggest that this account is returned to the **original creditor/DCA** for resolution of these defaults and breaches, as **New DCA** cannot lawfully pursue any enforcement activities.

 

If **New DCA** chooses to ignore my dispute and attempt enforcement, I will initiate legal action and file reports with the appropriate authorities, including, but not limited to, Trading Standards, Office of Fair Trading, Information Commissioners Office, Financial Ombudsman Service and possible court action.

 

After taking advice, I am of the opinion that any continued pursuit is in violation of the Consumer Protection From Unfair Trading Regulations 2008 in line with the Office Of Fair Tradings Collection Guidelines

 

I hope that this will not be necessary and an acceptable solution can be accomplished.

 

I would appreciate your due diligence in this matter.

I look forward to hearing from you in writing.

 

Yours faithfully

[postggj]

same again whatcanisaymste

[whatcanisayimste]

sorry what do you mean same again?

 

as in send the first letter you suggested with no amendments?

 

or send this letter template you just suggested to csi rocks?

[whatcanisayimste]

please help,

[whatcanisayimste]

i Sent the letter template that

postggj kindly gave me near the top of this thread,

 

over 14 working days later on 5th of june i recieved their reply.

 

in response to my letter they are agreeing with me that they cannot enforce the debt in court, but are stating they dont care as they can still report the default to credit reference agencies, hand it over to debt collectors ect scary stuff.

 

theres information on the test case they are quoting on this link Important News - The Total Law Firm - Keith Park Solicitors

 

 

 

 

 

 

 

 

this is the letter

 

Re: request for information under section 77 of the consumer credit Act 1974

Loan account: ***********

 

Further to your letter dated 7th of may 2010, we have previously explained that until we comply we our obligation to send you a copy of your credit agreement pursuant to S.77(1) of the consumer credit act 1974 ("CCA") we cannot enforce your credit agreement through the courts. That is not in dispute.

 

We would ,however, remind you that whilst we are currently unable to take legal action to enforce the loan this does not affect the validity of the underlying debt. Section 77(4) of the CCA does not make the agreement void, therefore asthe debt still exists we are entitled to carry out any actions that do not amount to enforcing the agreement. This was upheld in the Recent case of MCGuffick V Royal Bank of Scotland plc. We therefore reserve our right to register any default with the credit reference agencies in the event that you fail to make repayments as they fall due. In respect of your claim about the meaning of the 'dispute' we agree that the agreement is unenforceable and we can prove that we lent money to you which has not been repaid so neither of those facts are in dispute.

We are also entitled to demand payment, charge interest, transfer the debt to a third party, register the debt with a credit reference agency and issue a default notice. Indeed we are legally obliged to issue a default notice in accordance with s.87 CCA. This is also explained in the Courts decision in MCGuffick.

 

Regaurding your request under s.10 of the Data Protection Act 1998 ("DPA") we refer you to s.10(2)(a) and Schedule 2, Paragraphs 1 and 2 (a) of the DPA. Given that you have previously given consent to the processing of your data in relation to your loan agreement, and we need to process that data in order to manage and operate the loan and comply with our legal obligation under the CCA to issue notices and statements in relation to the agreement, we are unable to comply with your request under s.10.

 

yours sincerely

customer service associate

 

 

 

they bluffing , or is it checkmate?

Edited June 5, 2010 by whatcanisayimste

[The Mould]

i Sent the letter template that

postggj kindly gave me near the top of this thread,

 

 

over 14 working days later on 5th of june i recieved their reply.

 

in response to my letter they are agreeing with me that they cannot enforce the debt in court, but are stating they dont care as they can still report the default to credit reference agencies, hand it over to debt collectors ect

scary stuff.

 

theres information on the test case they are quoting on this link

Important News - The Total Law Firm - Keith Park Solicitors

 

 

 

 

 

 

 

 

this is the letter

 

Re: request for information under section 77 of the consumer credit Act 1974

Loan account: ***********

 

Further to your letter dated 7th of may 2010, we have previously explained that until we comply we our obligation to send you a copy of your credit agreement pursuant to S.77(1) of the consumer credit act 1974 ("CCA") we cannot enforce your credit agreement through the courts. That is not in dispute.

 

We would ,however, remind you that whilst we are currently unable to take legal action to enforce the loan this does not affect the validity of the underlying debt. Section 77(4) of the CCA does not make the agreement void, therefore asthe debt still exists we are entitled to carry out any actions that do not amount to enforcing the agreement. This was upheld in the Recent case of MCGuffick V Royal Bank of Scotland plc. We therefore reserve our right to register any default with the credit reference agencies in the event that you fail to make repayments as they fall due. In respect of your claim about the meaning of the 'dispute' we agree that the agreement is unenforceable and we can prove that we lent money to you which has not been repaid so neither of those facts are in dispute.

We are also entitled to demand payment, charge interest, transfer the debt to a third party, register the debt with a credit reference agency and issue a default notice. Indeed we are legally obliged to issue a default notice in accordance with s.87 CCA. This is also explained in the Courts decision in MCGuffick.

 

Regaurding your request under s.10 of the Data Protection Act 1998 ("DPA") we refer you to s.10(2)(a) and Schedule 2, Paragraphs 1 and 2 (a) of the DPA. Given that you have previously given consent to the processing of your data in relation to your loan agreement, and we need to process that data in order to manage and operate the loan and comply with our legal obligation under the CCA to issue notices and statements in relation to the agreement, we are unable to comply with your request under s.10.

 

yours sincerely

customer service associate

 

 

 

they bluffing , or is it checkmate?

 

Hello whatcanisayimste,

 

Have they issued a default notice?

 

If so, can you post it up please.

 

They are right in saying that the debt does still exist and so too do your obligations under the agreement, if they don't have the agreement then you could offer a settlement to the account, Full and Final payment.

 

Kind Regards

 

The Mould

[whatcanisayimste]

what would be a reasonable final offer?

 

the original debt was 10k business loan

 

 

 

 

 

and

 

as they cant take me to court, could i just ignore it?

and just accept my credit rating will be poor for 6 years?

[Martthemanc]

You really don't need to make an offer at all as long as you are prepared to accept the phone calls and letters for the next 6 years .

 

Yes, your credit file will be blemished but if you seriously can't afford to pay them or you don't want to pay them then there is very little they can do about it .

 

Yes they can sell the debt to a third party , yes they can write or call you about the debt but they cannot take you to court to obtain a judgement and as long as you don't acknowledge that you owe the debt then after 6 years it becomes statute barred .

 

If they do sell the debt just send a copy of the letter stating that Nat West are unable to provide a copy of the original agreement and then they will back off !

[fraserkelly]

In reply to a comment above about Keith Park Solicitors (who are Liverpool solicitors), I can confirm that they did a very good job with my case. The other 2 recommended solicitors also seem reliable after further investigation.