Shop Direct CCA, is it correct? I am confused now!

[minmoo]

Hi all,

 

I was wondering if someone could have a look over this CCA i have recieved back from Shop Direct.

It has come back very quickly.

 

First, a quick bit of back story

 

I opened this Kays account in either 1999 or 2000 but never really used it. Then got together

with girlfriend, now my wife who used it herself although it was still in my name.

Anyway, i have just found out she has fallen into arrears so i phoned up but they want too high

installments so i sent off a CCA request and it has come back.

 

I have included the covering letter which states the account was opened in February 2010, what

they claim is the original agreement which is dated 2007 and what they call an update to the

agreement which comes on two seperate pieces of paper stapled together with areas for signature

but not actually including them.Just to reiterate, on the updated pieces there are no signatures

and no account numbers. It looks like stock terms printed out. It even has dates at the bottom

from the middle of the year for when it was printed with the words 'weekly run'. There is nothing

to tie it into me.

 

Firstly, the dates are wrong. I know this account is much older. Secondly i dont believe all the

terms are shown on the sheet with the signature.

 

Also to add, the signature isnt mine but my wife says it is her writing and she must have done it

although she cant remember it or what it was for. She says the account number which is printed on

the sheet has changed from what it originally was and wasnt put on there by her. So i am not sure

how this affects things

 

Can anyone give me some advice? I would be very grateful. I arent looking to not pay but i cant

 

afford what they are asking in the installments they want.

 

Many thanks and sorry for the waffle.

 

Edited December 8, 2010 by minmoo

[minmoo]

Will the fact that they have given me two dates and they are both wrong be relevant? I know this account is at least ten years old.

It looks like the extra pieces that are stapled are what i should ideally have signed as there are spaces for dates and signatures but none of it is filled in at all.

I could do with knowing whether to send an account in dispute letter or not. My feeling is that i should but i could do with some advice from someone with

more experience ;-)

I didnt sign that one above in 2007 either!

[Tingy]

Were you ever notified by letter of any changes to terms and conditions?

[minmoo]

Not that i am aware of. Are they supposed to show the original statement from when the account was opened?

[Tingy]

I think you should certainly place the account in dispute as this is clearly not the agreement you signed. Point out on the letter that the dates are totally inaccurate, but do not give them the correct dates as they may not have this info anymore. State until they comply with a true agreement with the correct date on the account will remain in dispute.

 

You could also consider (though I'm a great believer in one step at a time) sending an SAR which should give you everything they hold about you.

 

Good luck - keep us updated!

[minmoo]

Thanks Tingy, i value your opinion. It certainly isnt right so i will do that.

[Tingy]

Us Welsh dwellers have to stick together!

[minmoo]

Should i mention that the signature isnt mine either or just the dates? Thank

[Tingy]

I'd mention both. No question then of it being in dispute.

[minmoo]

Okay, will do. I just dont want to get the other half into trouble.

[Tingy]

WAIT! I'm being an idiot. The account is 10 years old. When did you last acknowledge the debt to them or make any payment at all?

[minmoo]

It has been used earlier in the year because although it is in my name, it is the missus who used it. Then she got behind, never told me and ignored it.I only found out because i had a day off work really ill and a nasty letter came through the door telling me it would be passed over to nationwide debt recovery at which point i phoned and made a payment for as much as i could afford (which wasnt enough according to them).I was told there was nearly 150 pounds in late fees over the past year aswell. So now they are chasing money and want unreasonable amounts over christmas. Its all come out of the blue in the last week or so. So i figured i would ask for a CCA in the hope it might make negotiation easier. What they have sent me certainly isnt what i signed all those years ago. No mention of late payment fees, credit limits or anything. So my feeling is it should go into dispute.

[Tingy]

Back to plan 1 the. Had it been over 6 years you wouldn't have had to pay.

[minmoo]

Hi again, could someone have a look over my adaptation of an account in dispute letter. I would be really grateful as i havent done anything like this before. Here it is:

 

 

Dear Sir/Madam

 

Thank you for your response to my request under the Consumer Credit Act section 78.

In your response you confirm this as a true copy of the original agreement executed by yourselves on the XXXXX.

 

As you must realise this agreement does not conform to sections 60(1) and 61(1) of the Consumer Credit Act 1974 and would therefore only be enforceable by a court under s65. However, the absence of any (prescribed terms / signature) means that a court would be prevented from enforcing it under s127(3).

 

I draw to your attention the dates on which you claim the agreement was signed. This is stated by you as being either xx/xx/xxxx or x/x/xxxx both of which are inaccurate. It also needs to be pointed out that the signature on the paperwork you have supplied is not one by me. This suggests that it is not a copy of the original agreement.

 

I am granting to you a further 21 days to produce a copy of an executable agreement. After that I will consider that the above account is closed and that you will no longer pursue the alleged debt.

 

After this period you should close the file and cease processing an personal data relating to me on this matter.

 

 

Should the part at the end regarding the account closing be included? Many thanks for any advice.

Edited December 15, 2010 by minmoo
Dates removed, paranoia setting in!

[Tingy]

Haven't checked the CCA references, but assume you have. It reads well!

[minmoo]

This is the problem for me. I have used a stock template from the library on CAG and added my bit in the middle about dates and signature. I tried looking up the sections 60/61/65 etc but got totally confused so was hoping someone could point me in the right direction. I am such a novice at the moment and the learning curve is steep

[minmoo]

Sorry to sound stupid and go on a bit but i am just wanting to get this right first time, so stick with me lol.

 

Here is one from another thread which was given by the user Cerberusalert, its longer but doesnt point out certain sections that are in the template i used. Would it be a better bet with my bit about the dates thrown in? It certainly sounds good! i am confused now

 

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. The items 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. It 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’. This is in the main due to the account not being opened on either of the dates you suggest and nor is it my signature on the paperwork you have provided.

 

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/XXXX 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

 

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.

 

Should you not have any signed credit agreement in relation to this alleged debt, please confirm this in writing to me.

[Tingy]

This seems very clear to me and your refs are spot on - well done! You could quote the bit below and refer to the Rankine case

 

Posted by CCA 1974

(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)

[minmoo]

Thanks for the support Tingy, it really is much appreciated. Are you referring to the first letter as being the better option or the second. Mind you i could be being a bit dim, it has been a long day lol

[Tingy]

Thanks for the support Tingy, it really is much appreciated. Are you referring to the first letter as being the better option or the second. Mind you i could be being a bit dim, it has been a long day lol

 

I was looking at your first letter. Don't worry - I'm always dim, long day or not lol! I think it's a good letter, the references are clearly accurate, but I would consider adding the bit about the Rankines case and especially 61(1)(a)(signing of agreements) not being complied with. I'd probably put the whole quotation in, but I'm no expert, so it's entirely up to you.

[minmoo]

Okay then, i have had a reply to the account in dispute letter.

The lovely shop direct have ignored my reasons for why the CCA they have send me is useless. To recap, when i requested a cca they sent me one that was dated in 07 and didn't have my own signature on it. It was my name but not my writing. Now i know i opened this account in the late 90's and i pointed out to them that the dates were very wrong and would like a copy of the original.

They have said that the copy sent to me WAS a copy of the one signed at the time i opened the account.

 

So what next, i clearly know it isn't. In the meantime i have written and offered a reduced payment providing they stop any charges or interest but that has been ignored up until now.

 

Is one final letter pointing out the flaws in the alleged agreement worthwhile? I mean, for goodness sakes, there is nearly ten years difference between when they say i opened the account and when i actually did! I am assuming they dont have the original by now.

[miss muppet]

No need to write on that score again, presuming you did send by recorded delivery, they know the score and are just mucking about which is usual behaviour for them. As already suggested send in an SAR, they have 40 days to comply and you send them a postal order for £10. that should produce all the info they have on you, if they don't comply then you can send in a complaint to the Information Commissioner.

[minmoo]

Thanks miss muppet.

 

Yes, i send everything recorded delivery and file it away nicely. CAG is a good teacher. I will send them a SAR then but that will have to wait until payday

I have no idea how they can class 2007 paperwork as an agreement from opening the account in about 1999! Madness. Heres hoping they accept my payment proposal (which wasnt even a token, quite generous actually). I am more than happy to pay the debt as long as they stop charges and interest.

[minmoo]

Well at least they have acknowledged my payment offer even if they have refused it. Seems that my 25 pound a month doesnt fit their criteria. Time for a letter i guess stating i am quite upset that they dont want me to pay off my liabilities as best i can and to please reconsider, especially in light of no correct cca yet.

[Tingy]

I wouldn't bother. I'd write to them with the SAR, and state that since you consider you have not received a correct CCA you are formally placing the account into dispute until you receive the SAR and have had time to respond to it. Until then all collection activity on the account should cease until such time as the dispute is settled.