phoeni/ Els and Cole Sols claimform - HSBC credit card **WON _ DISC'D**

[kp278]

hi, i requested a CCA a while ago which i never received. i'm no longer being

chased for the debt. my credit file still shows a #8 default- can i have this removed?

thanks, kristian

 

hi,

i sent a request for a CCA but didnt use recorded. i did however enclose a cheque that was cashed- is this sufficient to prove they received the request?

its been a couple of months.

what is the next step? ive read snippets of "they are commiting a criminal offence" and "complain to oft, ts, etc" but i cant remember where i read it and i cant find it anywhere.

please help! who do i contact and is there any templates?

 

thanks, kris

[kp278]

hi, i sent a letter to a collection agency requesting a copy of my credit agreement and enclosed the £1 cheque. the £1 was cashed but no credit agreement received. i havent heard anything for 2 months. all good i thought. i asked experian to remove the default on my credit file and they said i couldnt, i would have to contact collection agency directly. i did this and was advised that my request for a copy of the credit agreement under the Consumer Credit Act 1974 does not cover credit cards, it only covers fixed term loans. or something like that. the lady i spoke to did seem to know what she was talking about. who's right? here's a copy of the letter i sent:

 

Dear Sir/Madam

 

Re:− Agreement Number ****, Your Reference Number ****

 

With reference to the above agreement, I would be grateful if you would send me a copy of this credit agreement.

 

I understand that under the Consumer Credit Act 1974 (Sections 77−79), I am entitled to receive a copy of my credit agreement on request. I enclose a payment of £1.00 which represents the fee payable under the Consumer Credit Act.

 

I understand a copy of my credit agreement should be supplied within 12 working days.

 

I understand that under the Consumer Credit Act creditors are unable to enforce an agreement if they fail to comply with a request for a copy of the agreement under these sections of the Act.

 

I look forward to hearing from you.

 

Yours faithfully

 

 

Mr Kristian Matthews

[buzby]

You don't say who the debt was with, but if it was genuinely a credit card, then it would be regulated under the Act. There are some exceptions, like a 'Deferred Debit' card, but more info is required.

[2Grumpy]

If you don't know already, you need to write to them asking what the debt is for and when it was taken out, who the original creditor is, original balance, current balance and any other information that they have.

[kp278]

hi, it's for a credit card with halifax. the balance is approx £1500. i dont remember ever having a card with the halifax.

[buzby]

Wouldn't it have been far easier to say you have no knowledge of any Credit Card in your name with the Halifax, and ask for further details to support their claim? Doing a CCA request instead of disputing it seems highly unusual.

[kp278]

Wouldn't it have been far easier to say you have no knowledge of any Credit Card in your name with the Halifax, and ask for further details to support their claim? Doing a CCA request instead of disputing it seems highly unusual.

i did, but they wanted a photocopy of my passport!

[Curlyben]

This is why you NEVER talk to these "people" on the phone as they WILL say anything to get your money.

Credit Cards ARE covered by CCA74 Section 78 variable sum.

As they haven't complied with your request then this account is currently unenforceable and needs to court action to reverse that.

 

You're next step is to take this to Trading Standards for resolution.

 

Buzby, a CCA request puts the "debt" into legal dispute and as such is the correct way to go.

You should ALWAYS ensure that any DCA has the legal right to collect on a debt.

[buzby]

Buzby, a CCA request puts the "debt" into legal dispute and as such is the correct way to go.

 

Did you overlook the fact the DCA responded that the CCA did not apply and therefor the request was invalid? I'm unaware of anything in the act that instigates a 'legal dispute'. A dispute yes, which is then referred back to the original debtor.

[buzby]

i did, but they wanted a photocopy of my passport!

 

Ah that's the time-served 'the debtor is pretending to be someone else' approach. I always say I don't have a passport/driving licence, but the issue isn't for me to prove who I am, but for them to prove that I'm not! Until then, all mail is returned.

[Curlyben]

CCA 74 s78 aplies to this case

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 15 new pence, 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.

AND

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;

and

(b) if the default continues for one month he commits an offence.

 

Now the ONLY cards that aren't covered by this Act are charge cards such as Amex.

So in this case the DCA is talking out of their rear.

Also the fact that they have taken the supplied fee puts them in serious trouble and this comment wouldn't stand up in court anyway.

Now if they had written saying that then that's a different matter, but this was a phone call.

As you know these "agents" aren't versed in CCA and anything off their prepared script throws them for six.

[buzby]

They will. however get the benefit of the doubt if the issue isn't clear cut. (In addition to charge cards, deferred debit cards are also outwith the scope). Since a DCA will not be unfamiliar with the CCA, saying that a card isn't covered will either be correct, or a gross error. Great if the latter - but if not, the OP needs to establish this once and for all, and at the time of posting, this has not been forthcoming.

[Curlyben]

True debit cards aren't covered, but they are an instrument of a bank account anyway.

IF this ever went to court I believe that the fact a CCA request was sent AND the fee cashed would be a full defence under s127 of the Act.

The onus would be on the DCA to prove otherwise.

[itsamomentintime]

True debit cards aren't covered, but they are an instrument of a bank account anyway.

IF this ever went to court I believe that the fact a CCA request was sent AND the fee cashed would be a full defence under s127 of the Act.

The onus would be on the DCA to prove otherwise.

 

 

exactly

[kp278]

its been a couple of months since the cheque was cashed.

however they said on the phone the other day that they would be refunding the payment made for the CCA...

[kp278]

i should also point out that i was receiving at least one form contact a week (either letter or phone) but since i requested the cca they havent contacted me.

[Curlyben]

KP, untill something arrives IN WRITING this is all hearsay and has NO standing at all.

Once/If they do write, we'' tackle them then.

As has been said they are talking out of there rear ends on this.

Now remember, NEVER talk to them on the phone as things like this happen.

Don't answer their security questions and the call MUST end there otherwise they are in breach of DPA 98

[buzby]

True debit cards aren't covered, but they are an instrument of a bank account anyway.

IF this ever went to court I believe that the fact a CCA request was sent AND the fee cashed would be a full defence under s127 of the Act.

The onus would be on the DCA to prove otherwise.

 

As the OP has not provided any further details, the whole subject is kinda academic.

[gymfreak1978]

open a bottle of champaigne IMO

[Brassed off]

hi,

i sent a request for a CCA but didnt use recorded. i did however enclose a cheque that was cashed- is this sufficient to prove they received the request?

its been a couple of months.

what is the next step? ive read snippets of "they are commiting a criminal offence" and "complain to oft, ts, etc" but i cant remember where i read it and i cant find it anywhere.

please help! who do i contact and is there any templates?

 

thanks, kris

 

To be honest Kris, if you sent the CCA request and they have cashed your cheque that is proof that they've received it. I would be inclined to leave it at that, they've obviously passed the 12+2+30 now and have committed a criminal offence. If they start sending letters requesting payment, just post on here and you will get good advice.

 

Could you let us know what the debt was for?

Presumably, the CCA request was sent to the DCA?

 

Regards

 

Bo

[kp278]

ive posted this info on another thread with slightly different queries so hope i dont get flamed for duplicating, but....

 

i had to contact them the other day as i wanted them to remove the default on my credit file.

they said they couldnt as i owed them £1912.

i said id requested a copy of my CA which they had failed to provide.

they said that CCA 1974 77-79 doesnt cover variable balance credit, only fixed term credit..

i didnt know at the time, but im sure now that section 78 specifies variable rate credit eg credit cards.

they said they would refund the £1 fee they had cashed and send me an application form for me to apply for a copy of my credit agreement.

 

i want to get in there quick before they refunds

the £1 fee and start making life difficult.

 

the debt is for a halifax credit card that i dont remember having. yes the CCA was sent to the DCA.

[Brassed off]

ive posted this info on another thread with slightly different queries so hope i dont get flamed for duplicating, but....

 

i had to contact them the other day as i wanted them to remove the default on my credit file.

they said they couldnt as i owed them £1912.

i said id requested a copy of my CA which they had failed to provide.

they said that CCA 1974 77-79 doesnt cover variable balance credit, only fixed term credit..

i didnt know at the time, but im sure now that section 78 specifies variable rate credit eg credit cards.

they said they would refund the £1 fee they had cashed and send me an application form for me to apply for a copy of my credit agreement.

 

i want to get in there quick before they refunds

the £1 fee and start making life difficult.

 

the debt is for a halifax credit card that i dont remember having. yes the CCA was sent to the DCA.

 

Firstly Kris, and you will see this all over the forum, DO NOT SPEAK TO THEM ON THE PHONE. Make sure all correspondence is in writing only. Do not enter into a conversation with them on the phone, do not answer their "security" questions. Just state that if they wish to correspond with you at all that it must be in writing only.

 

I have just been reading section 78 of the CC Act (wow, it's about time I did my homework;) ) and from what I can see, I agree with you - so they are talking bowlarks (as usual - nothing new there then). At the end of the day, they would still have to supply you with a copy of the executed Agreement (NOT APPLICATION FORM).

 

Can I just ask, are you still making payments to the DCA?

 

The only reason for asking is that if they have failed to provide a copy of the CCA after 12+2 working days, then they are in default and under section (6) of section 78 - it states:-

 

"If the creditor, under the agreement, fails to comply with subsection (1) - (a) he is not entitled, while the default continues, to enforce the agreement; and

 

(b) if the default continues for one month, he commits an offence.

 

Now I'm no expert, and I'm sure that there will be more experienced CAGers to advise you in the morning:) but in my opinion, if they have have passed the 12+2 working days I would stop paying them (i did:D !) as they are not legally entitled to obtain payments from you whilst in default.

 

I hope this makes sense as at this time in the morning, my brain is not functioning as it should;)

 

I hope this has helped

 

Good luck

 

Keep your post updated

 

Regards

 

Bo

[kp278]

hi bo, im good now with the writing only/no phone calls thing.

no im not paying them. i never have as i genuinely dont believe i ever had a halifax credit card.

when i said application form, i meant that they are going to send me a form i can use to apply for a copy of the credit agreement.

they havent contacted me at all since i requested the CCA, which was great as they had been contacting me a couple of times a week previously. im pretty sure it would have stayed that way too, but i wanted to get the default removed and now this!

[gizmo111]

Personally if I was sure I didn't owe someone anything and had never been in a contract with then I would send a letter pointing it out, with 14 days to reply and then I would be taking court action

[Brassed off]

hi bo, im good now with the writing only/no phone calls thing.

no im not paying them. i never have as i genuinely dont believe i ever had a halifax credit card.

when i said application form, i meant that they are going to send me a form i can use to apply for a copy of the credit agreement.

they havent contacted me at all since i requested the CCA, which was great as they had been contacting me a couple of times a week previously. im pretty sure it would have stayed that way too, but i wanted to get the default removed and now this!

 

Sorry Kris, it's getting pretty late now;)

 

Obviously, you've checked out your CRA file - I presume there is a default registered on the Halifax Credit Card. Sorry, I've not heard of someone sending you an application form to apply for a copy of your credit

agreement:confused: , I thought this would have been covered by your CCA request. But if, as you say, you've never had a Halifax Credit Card then I can't understand why this would've been on your CRA file in the first place?

 

When was the default registered?

 

Do you have any correspondence at all from the DCA?