section 78 clarification

[BARFLY]

i had a dispute with a creditor over their failure to meet their requirements under a section 78 request. this was three years ago. they just provided an application form with no prescribed terms. no original terms and conditions, just the ones current at that time. since then the alleged debt has been sold to a DCA. they are adamant that there was no dispute with the previous creditor, even though i have the correspondence.

 

my question concerns the recent waksman case. do i still have a valid dispute that has not been rectified? waksman seems to make it clear that a reconstituted agreement is acceptable. is this retropective? does the fact that no original terms and conditions have ever been supplied mean that i still have a valid dispute?

 

thanks

[rebel11]

Hi Barfly,

 

Did the credit card company 'vary' the interest rate since you've had the card?

[rebel11]

In other words did the interest rate increase?

[BARFLY]

hello rebel

 

yes, the rate went from about 15.9% to 29.9%!

[rebel11]

Hi Barfly,

 

There was I thinking that it might have gone down;)

 

Do a bit more reading on this,

 

Judge Waksman also said the following:-

 

Where an agreement has been "varied" (eg, where the interest rate has risen), a copy of the original and the varied terms must be produced.

[BARFLY]

i've informed the DCA that the account was in dispute and should not have been sold to them. they've investigated and found no original dispute whatsoever! what a surprise! i will now show them some of the original correspondence with the OC. but i've a feeling they'll now respond with: so what if it was an application form etc we are allowed to omit all these details. however, neither they, nor the OC have ever been able to produce the original terms and conditions. so i'm thinking that would be my way of still claiming the account is still in dispute.

[rebel11]

So each time it's been 'varied' they need to provide T&C's each time.

[rebel11]

Yep, I think that is the avenue to pursue. It might be an idea to send them harrasment letters in advance.

[rebel11]

Strictly speaking the account should be handed back to the OC, there are template letters on this sight.

[BARFLY]

thanks rebel. so the OC was always in default of the section 78 request for not providing the original terms and conditions. i haven't sent a section 78 to the DCA but i can now state that the account was most definately in dispute and, if you are able, provide acopy of the original terms and conditions.

 

i'm always a bit wary of telling the DCA too much i case it ever goes to court. i'd rather let them, and the court, know that they have never sent the original t and c's and have sent a dodgy DN etc in response to the claim...

[BARFLY]

why can't you edit on here anymore?

[rebel11]

Maybe they are rationing the editing button, probably be my turn next week:D

[rebel11]

Agree, Keep it simple, the DCA probably know the account is in dispute, but probably playing silly buggers, otherwise they wouldn't have been able to buy it.

 

thanks rebel. so the OC was always in default of the section 78 request for not providing the original terms and conditions. i haven't sent a section 78 to the DCA but i can now state that the account was most definately in dispute and, if you are able, provide acopy of the original terms and conditions.

 

i'm always a bit wary of telling the DCA too much i case it ever goes to court. i'd rather let them, and the court, know that they have never sent the original t and c's and have sent a dodgy DN etc in response to the claim...

[rebel11]

Let us know how it's going and if you need anymore help.

[BARFLY]

thanks for the advice rebel. so just to be clear, Waksman says that the orginal terms and conditions and the original agreement have to provided under section 78 if any of the terms have been changed? including the rate of interest? and whether this section 78 request was last week or three years ago it makes no difference?

 

surely this would mean they would have to provide the original in most cases as the interest rate will inevitably change once they have you hooked...?

[rebel11]

Thats my understanding, My problem with the ruling is how does a person

know if the Terms and Conditions sent are the correct ones. What if the

credit card company just send any rubbish. I thing the Original Credit Agreement is the answer.

 

thanks for the advice rebel. so just to be clear, Waksman says that the orginal terms and conditions and the original agreement have to provided under section 78 if any of the terms have been changed? including the rate of interest? and whether this section 78 request was last week or three years ago it makes no difference?

 

surely this would mean they would have to provide the original in most cases as the interest rate will inevitably change once they have you hooked...?

[rebel11]

Copy of agreement can be a reconstituted version - Times Online