Shop direct no cca a blank agreement

[honeyb1234]

Hi Guys!

 

This is my first post so please excuse me if I have posted in the wrong location! Basically I really need as much help as I can get I am currently having problems with littlewoods who have placed various charges on my account. I sent a cca request with the fee on the 16/07/2010 which they sent back to me on the 6th August, minus the fee with a note attached saying

 

"Please provide correct account reference/ previous address details"

 

Now silly me I missed a digit of my account number on the cca request, but I am wondering why they would need my previous address as surely they already have it on file as that is where the account was originally started, plus they have my name and current address on the letter which is on my account with them.

 

I am not sure what to do next should i send them the information requested and what would happen in regards to the timescale for them to respond. i.e would the 30 calender days and 14 working days timescale start over again????

 

Any information on the subject or templates would be grately appreciated.

 

Thanks guys

[letsdothis]

You need to send them the info that they need, the 40 days starts from when they are happy it is you that is the subject if it is a SAR. Once you provide the correct account number, then they have no excuses.

 

If it is a CCA request, then it is 12+2 days.

[honeyb1234]

:confused:Hi Guys,

 

I recently sent a CCA request to Marshall Ward (16/07/2010) and a few days ago received a response stating that they could not locate a copy of an executed agreement for my account also for my informaiton they enclosed a copy of the current agreement which applied to my type of account. They then told me the date that the account was opened, the amount currently owed and the amount paid in the last 12 months.

 

I dont think that they complied with the CCA request and I would like some advice as to what the next step would be, if anyone has a template letter that I could send I would be very grateful.

 

Kind Regards

[honeyb1234]

Thank you I will send the info now

[count orlok]

I wouldn't send them your previous address, but you must give them the correct account number, as they will need that to identify the account. The reason i say don't send them your last address is because they will send you a new agreement with your name and address on it claiming it is a true copy. If they do not have your old address they will put your new one on it and it will not be a true copy as the details are wrong. Tell them they know your address as they have sent letters to you at that address. If you have not moved since you opend the account they do not need to know your old addy.

 

The 12 days will start from when they receive the correct details, the 30 day bit was repealed in 2006.

[silverfox1961]

Hi

I would be tempted to either send letter 9 from here:

 

http://www.consumerforums.com/resources/templates-library/86-debt-collectors.html

 

OR this little beauty.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?270666-prrof-of-outstanding-debt#post3061534

[honeyb1234]

ok great so if i send the letter tomoz i should expect a reply by the 23rd?

[honeyb1234]

i must admit i do like the second letter although as I sent my original letter on 16th August, they have not passed there time limit of 40 days so I think I will have to send them number 9!

[harrassed senior]

They have admitted that they do not have the Agreement, so, the account remains un-enforceable in Court. The decision is now yours to make. You can offer payments at a rate acceptable to you, or you can put the account into (permanent) dispute saying that until the Agreement (that they don't have) is supplied you will be making no further payments.

 

Also, bear in mind your CRA files. This alleged debt will remain on your files until 6 (5 in Scotland) have passed since last payment/acknowledgement. If you start making payments, this will prolong the length of time this alleged account remains on your files.

[blueboy6970]

Think I've read somewhere, but Isn't a CCA request done on the account number rather than the person/address?

 

I wouldn't give them your previous address.

[honeyb1234]

8):!:Hi Guys,

 

I am in the middle of trying to remove charges put on my account by marshall ward, after firstly sending them a letter requesting CCA they replied with a unsigned agreement, after sending a second letter stating that this is not what I asked for and that they should sort it out or consider the account being non existant, they then replied with exactly the same letter as the first a unsigned agreement. I am not sure as to what I should do next so could you please make some suggestions??? Also I would like to know if I could email them in order to speed up the process???

 

Thanks

[cerberusalert]

Try this one;

 

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. 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’.

 

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/2008 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.

 

If you intend to send a reconstituted copy of the CCA you must declare the reason why it has been reconstituted and if the original exists and in what form (microfiche) etc.

 

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

 

 

I look forward to your reply.

 

Yours faithfully

Print name do not sign

 

**amend to suit your circumstances.**

[honeyb1234]

Hey guys,

 

As some of you know I have been having problems with shop direct for some time, I have sent them a CCA which they replied with by telling my how many payments have been made on the account and a blank agreement. I then sent another request and they sent the same thing so I decided to sent another letter which looked like this

 

 

ACCOUNT IN DISPUTE

 

Date: 3/11/2010

 

 

Dear Sir/Madam

 

Thankyou for your letter of 21/09/10, 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 two separate occasions.

 

On 02/09/10 Imade a second formal request for a true signed agreement for the

alleged account under consumer credit Act 1974 s77/8.

You have failed to comply with my request, and as such the account entered

default on 16/10/2010.

 

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 counter claim 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 21 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 21 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

 

I later received a letter back stating:

 

We will not be pursuing the above account for the outstanding balance.

 

However, as the debt remains unsatisfied, this will be noted on our internal file for future reference.This information will also form part of your records at the Credit Reference Agencies where we share information.

This information will remain on your credit reference file for 6 yeards and may affect your future ability to obtain credit with other companies.

To avoid this detriment to you credit file, please contact us to make a payment

.

Now this has angered me as it is quite clear they dont have the agreement and in my last letter it was stated that they should not put any marks on my Credit report yet they insist on doing so. I am not sure what to do next as I dont want my credit file to be damaged please help me.

 

Thanks in advance xxx

[alfwithhair]

Unfortuately this is par for the course.

 

As you say they have no signed agreement so cannot enforce the debt in court, hence them not pursuing the account further.

 

But the debt does not simply disappear, it is just they cannot enforce it in court.

 

Don't be suprised years down the line that it is not sold to some **** bag DCA who will demand payment as 'THEY' now owe the debt.

 

This happened to me on an old Grattens account. Grattens said no longer pursuing, but then sold it to Lowells two years later.

 

As for the mark on your credit file, the ICO has ruled it is ok for a creditor to record the history of the account, ie non payment, default, ect, regardless of the lack of an agreement. So the chances of it being removed are slim.

 

However it is not impossible, contact the credit agencies and dispute the entry as inaccurate due to no signed agreement, they then have to contact the creditor for an explanation, sometimes the creditor can't be bothered to reply, so after 30 days you can ask for it to be removed.

 

Also write to Shop Direct and ask them as there is no signed agreement and they are not pursuing the balance, will the remove the adverse data,

It is unlikely they will, but you never know until you try. Some people have got them removed after a bit of letter ping pong.

 

It is just the creditors way of getting it own back on the debtor.

Will can't get the money out of you so we will stuff your credit file for 6 years instead.

 

As a last resort there is always the county court route.

Sue them for harrassment.

The OFT has said collection on stature barred or unenforceable debts is viewed as harrassment

Even though they are not physically collecting they are still causing undue stress and harrassment via your credit file

[42man]

Have a read of this honey - you should be delighted they aren't going to chase you for it !! - http://www.hammonds.com/FileServer.aspx?oID=22700

[honeyb1234]

Hey guys,

 

As some of you know I have been having problems with shop direct for some time, I have sent them a CCA which they replied with by telling my how many payments have been made on the account and a blank agreement. I then sent another request and they sent the same thing so I decided to sent another letter which looked like this

 

 

ACCOUNT IN DISPUTE

 

Date: 3/11/2010

 

 

Dear Sir/Madam

 

Thankyou for your letter of 21/09/10, 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 two separate occasions.

 

On 02/09/10 Imade a second formal request for a true signed agreement for the

alleged account under consumer credit Act 1974 s77/8.

You have failed to comply with my request, and as such the account entered

default on 16/10/2010.

 

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 counter claim 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 21 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 21 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

 

I later received a letter back stating:

 

We will not be pursuing the above account for the outstanding balance.

 

However, as the debt remains unsatisfied, this will be noted on our internal file for future reference.This information will also form part of your records at the Credit Reference Agencies where we share information.

This information will remain on your credit reference file for 6 yeards and may affect your future ability to obtain credit with other companies.

To avoid this detriment to you credit file, please contact us to make a payment

.

Now this has angered me as it is quite clear they dont have the agreement and in my last letter it was stated that they should not put any marks on my Credit report yet they insist on doing so. I am not sure what to do next as I dont want my credit file to be damaged please help me.

 

Please please pplease help me can i not stop them from marking my file even though they dont have a signed agreement

Thanks in advance xxx

[42man]

Unfortunately they can send a reconstitured agreement now - http://www.consumeractiongroup.co.uk/forum/showthread.php?244118

[Tingy]

I would write the data controller stating you are aware of the eight fundamental principles underpinning the DPA 1998:

 

 

• Processed fairly and lawfully.
  
• Processed only for one or more specified and lawful purpose.
  
• Adequate, relevant and not excessive for those purposes.
  
• Accurate and kept up to date - data subjects have the right to have inaccurate personal data corrected or destroyed if the personal information is inaccurate to any matter of fact.
  
• Kept for no longer than is necessary for the purposes it is being processed.
  
• Processed in line with the rights of individuals - this includes the right to be informed of all the information held about them, to prevent processing of their personal information for marketing purposes, and to compensation if they can prove they have been damaged by a data controller's non-compliance with the Act.
  
• Secured against accidental loss, destruction or damage and against unauthorised or unlawful processing - this applies to you even if your business uses a third party to process personal information on your behalf.
  
• Not transferred to countries outside the European Economic Area - the EU plus Norway, Iceland and Liechtenstein - that do not have adequate protection for individuals' personal information, unless a condition from Schedule four of the Act can be met.
  

By my reckoning they could be seen as in breach of principles 1,2,4 and 5. The data controller of any organisation is personally responsible for all data that is processed by that organisation, and for adequate training of any staff who have to process data. In my view if the account is in dispute they know they should not be sending the information to a CRA so send them a lba stating that they confirm to you in writing they will not give your data to any CRA, and if they do not comply within 7 days (14 days?) with your request, you will be taking action against them for serious breach of the Data Protection Act 1998. Their letter clearly states their intent to make this breach.

 

I have found arguing on these eight principles is often more effective than arguing detailed nitty gritty points, as they are clear, enforceable statements which underpin the entire act. If they go against these, they really are in trouble!

[the_shadow]

Not wanting to cause a downpour on anyones parade here but you do need to be aware that as has been posted above by 42man, reconstructions are allowed (although carey vs HSBC have indicated what is a correct reconstruction and the requirements if terms have been varied.) Did the blank agreement have your name and address on it? (Carey states it has to be the address that was current when the agreement was taken out)

 

Also the OFT have stated what they believe the consequences are of not complying with a s77/78 request are... which basically is not a lot. They can still report you to the relevant CRA's for non-payment and still add interest according to the OFT backed up by the ruling of Carey vs HSBC)

 

If you complain to the ICO they will simply state you have had the goods and despite the lender being able to show a signed agreement a relationship must have existed and hence they will be satisfied that some sort of agreement is in place and hence can report.

 

S.

[Tingy]

Not wanting to cause a downpour on anyones parade here but you do need to be aware that as has been posted above by 42man, reconstructions are allowed (although carey vs HSBC have indicated what is a correct reconstruction and the requirements if terms have been varied.) Did the blank agreement have your name and address on it? (Carey states it has to be the address that was current when the agreement was taken out)

 

Also the OFT have stated what they believe the consequences are of not complying with a s77/78 request are... which basically is not a lot. They can still report you to the relevant CRA's for non-payment and still add interest according to the OFT backed up by the ruling of Carey vs HSBC)

 

If you complain to the ICO they will simply state you have had the goods and despite the lender being able to show a signed agreement a relationship must have existed and hence they will be satisfied that some sort of agreement is in place and hence can report.

 

S.

 

I don't think any of this is being disputed. However the DCA has stated in writing they are not going to enforce the debt - there must be a good reason for this. If they can't enforce it then they should not be reporting to CRA's and hence breaching the DPA. Also the OP has withdrawn consent for them to process his data, though I realise this could be easily disputed when you actually read S10 DPA.

 

I don't think showing the DCA's data controller that you are aware of the details of the DPA is a bad thing. Certainly when I was fighting the DWP over the past 8 years their data processors are surprisingly ignorant of the law. The data controller obviously didn't get involved as it's the Secretary of State, but they've put themselves in an invidious position through their pure lack of knowledge. They have access to some very good advisors, so if they can mess up so badly I'm sure a DCA could.

[the_shadow]

I don't think any of this is being disputed. However the DCA has stated in writing they are not going to enforce the debt - there must be a good reason for this. If they can't enforce it then they should not be reporting to CRA's and hence breaching the DPA. Also the OP has withdrawn consent for them to process his data, though I realise this could be easily disputed when you actually read S10 DPA.

 

I don't think showing the DCA's data controller that you are aware of the details of the DPA is a bad thing. Certainly when I was fighting the DWP over the past 8 years their data processors are surprisingly ignorant of the law. The data controller obviously didn't get involved as it's the Secretary of State, but they've put themselves in an invidious position through their pure lack of knowledge. They have access to some very good advisors, so if they can mess up so badly I'm sure a DCA could.

 

I'm just trying to ground the OP so they dont think its plain sailing and that thanks to recent rulings and the OFT the creditors can do lots and the debtors almost nothing.

 

As to not reporting to the CRA because they have stated they are not enforcing the agreement... err why not? its not an enforcement action as defined in Rankine or Carey and as such if there has been a prior transactional agreement the ICO will allow it and the courts more than likely to back this up.

 

S.

[Tingy]

I'm just trying to ground the OP so they dont think its plain sailing and that thanks to recent rulings and the OFT the creditors can do lots and the debtors almost nothing.

 

As to not reporting to the CRA because they have stated they are not enforcing the agreement... err why not? its not an enforcement action as defined in Rankine or Carey and as such if there has been a prior transactional agreement the ICO will allow it and the courts more than likely to back this up.

 

S.

 

How does this fit with the following taken direct from ICO guidance:

39 Records

Any default record should be accurate. We normally expect a lender to keep records that are necessary to show an agreement exists and to support filing a default. We would also expect a lender to be able to produce evidence to justify a default record they had placed on a credit reference file. Not having any supporting records may indicate a breach of the data protection principle requiring personal data to be adequate, relevant and not excessive for the purpose for which it is processed."

 

ps Totally agree it may not be plain sailing - these things rarely are.

[the_shadow]

How does this fit with the following taken direct from ICO guidance:

39 Records

Any default record should be accurate. We normally expect a lender to keep records that are necessary to show an agreement exists and to support filing a default. We would also expect a lender to be able to produce evidence to justify a default record they had placed on a credit reference file. Not having any supporting records may indicate a breach of the data protection principle requiring personal data to be adequate, relevant and not excessive for the purpose for which it is processed."

 

ps Totally agree it may not be plain sailing - these things rarely are.

 

Ok break it down... firstly we "normally" expect, so there will be exceptions... also "to show an agreement exists" so financial records of agreement will suffice imho as it doesnt state "that you hold a signed agreement". The ICO will always take the opinion that you have borrowed the money and hence they can report it as its in the legitimate interests principle.

 

As to evidence of a default, well they can show the previous payments, a period of non-payment and then hey presto bobs your uncle etc there is a default.

 

S.

[Tingy]

Ok break it down... firstly we "normally" expect, so there will be exceptions... also "to show an agreement exists" so financial records of agreement will suffice imho as it doesnt state "that you hold a signed agreement". The ICO will always take the opinion that you have borrowed the money and hence they can report it as its in the legitimate interests principle.

 

As to evidence of a default, well they can show the previous payments, a period of non-payment and then hey presto bobs your uncle etc there is a default.

 

S.

 

Agree with you on most of this thank you! Still unsure about the agreement bit. I don't think this would come under exceptions. Also, following your same argument of dissecting the words it clearly states, "that an agreement exists" not existed -ie- it should still exist.

 

Also in this case I would question whether they can actually produce the evidence even if you are totally right. I guess the only way to know for sure is to SAR them.

[the_shadow]

Agree with you on most of this thank you! Still unsure about the agreement bit. I don't think this would come under exceptions. Also, following your same argument of dissecting the words it clearly states, "that an agreement exists" not existed -ie- it should still exist.

 

Also in this case I would question whether they can actually produce the evidence even if you are totally right. I guess the only way to know for sure is to SAR them.

 

Ok, this is just my opinion but I think you need to think outside of the box, where does it state that an agreement must be in paper format or a specific document... evidence of an agreement existing could just be my monthly repayments couldnt it? I'm convinced the ICO will take the least bit of convincing tbh.

 

S.