Cap1 & CCA return

[BLADES65]

My feeling exactly Peter.

 

Surely to anything else is akin to burying your head in the sand. I would rather deal with the situation and get it over and done with than having a niggling doubt in the back of my mind.

[BLADES65]

NEW LETTER BASED ON PETER's Comments:

 

xxxx

xxxxxxxxxx

xxxxxxxxxx

xxxxxx

 

 

Dear Sir/Madam

 

Re: Account/Reference Number xxxxxxxxxxxxxxxxxxxxxxxxxx

Thank you for the information you sent following my request under the CCA 1974.

 

The request was made to you on 4th May 2007 for a copy of the executed agreement applicable to the alleged debt. Under the CCA s77/78, you are obliged to send a true copy of the executed agreement.

The application form which you have furnished as a true copy of the executed agreement does not meet the requirements laid down in the CCA s77/78.

A regulated credit agreement contains all of the prescribed terms, other required information and statements of statutory rights. Any separate terms and conditions (which should have been referred to in the original agreement) should also be provided and must be those applicable at the time that an agreement is signed.

I do not acknowledge any debt to your company and as the document does not meet the requirements of the CCA 1974 it is unenforceable and as a consequence no further payments will

be made.

Mr xxxxxxxxxxxx

 

Thoughts please

[ian1969uk]

Blades, that letter still implies that we are disputing the satisfaction of S77/78, which is not what Peter is saying. Any letter should now thank them for the copy of the agreement, and state that under Sections 61 and 127, the agreement is unenforceable.

[BLADES65]

Hows this:

 

 

 

 

 

xxxx

xxxxxxxxxx

xxxxxxxxxx

xxxxxx

 

 

 

Dear Sir/Madam

 

Thank you for the information you sent following my request under the CCA 1974.

 

The request was made to you on 4th May 2007 for a copy of the executed agreement applicable to the alleged debt. Under the CCA s77/78, you are obliged to send a legible true copy of the executed agreement.

As I am sure you are aware a regulated credit agreement contains all of the prescribed terms, other required information and statements of statutory rights. Any separate terms and conditions (which should have been referred to in the original agreement) should also be provided and must be those applicable at the time that an agreement is signed.

Could I therefore ask why you have furnished an application form as a true copy of an executed agreement? this does not meet the requirements laid down in the CCA s61/127 as such it is unenforceable and as a consequence I do not acknowledge any debt to your company and no further payments will be made.

 

 

 

 

Mr xxxxxxxxxxxx

[sortingitout]

I had this response today..

 

The consumer credit (cancellation notices and copies of document) regulations 1983 make clear that copies of agreements may omit certain information, including for example, the signatures.

 

Is this correct? what response can i put

[un1boy]

I had this response today..

 

 

 

Is this correct? what response can i put

 

Yes, they are right - you could write back saying though that you are questioning the agreement's validity and in order for you to do that, you require a copy with your signature on it.

[ian1969uk]

Hows this:

 

 

 

 

 

xxxx

xxxxxxxxxx

xxxxxxxxxx

xxxxxx

 

 

 

Dear Sir/Madam

 

Thank you for the information you sent following my request under the CCA 1974.

 

The request was made to you on 4th May 2007 for a copy of the executed agreement applicable to the alleged debt. Under the CCA s77/78, you are obliged to send a legible true copy of the executed agreement.

 

As I am sure you are aware a regulated credit agreement contains all of the prescribed terms, other required information and statements of statutory rights. Any separate terms and conditions (which should have been referred to in the original agreement) should also be provided and must be those applicable at the time that an agreement is signed.

 

Could I therefore ask why you have furnished an application form as a true copy of an executed agreement? this does not meet the requirements laid down in the CCA s61/127 as such it is unenforceable and as a consequence I do not acknowledge any debt to your company and no further payments will be made.

 

 

 

 

Mr xxxxxxxxxxxx

 

I wouldn't mention anything about application forms, the idea is to accept what they send as a true copy. If you state it's an application form, then it still leaves them open to send an agreement instead. We should just be saying:

 

"Thank you for the true copy of the regulated credit agreement that was sent to me. I regret to inform you that this agreement does not correspond in form and content to the requirements of the Consumer Credit Act 1974, and therefore is completely unenforceable.

 

As a result, I will be making no further payments towards this alleged debt.

 

Any court action you may take will be vigourously defended using Sections 61 and 127 of the CCA 1974, which will preclude a judge from making an enforcement order in this instance"

 

or something like that.

[Sparkie1723]

With regard to Experian failing to remove the info from your credit file write and tell them that ...

a..You hereby give notice under sectiion 10 of the Data Protection Act ( The right to the prevention of processing of data causing damage or distress, ...send them a "data subject notice" requiring them to "within a reasonable time to stop the processing of the said data.

Remind them that they must comply within 21 days or give you their reasons for not complying with your data subject notice.

 

b)...Inform them that in their reasons will need the requirment that they are "lawfully" processing data and will be used in the court action you will take under section 10 of the Data Protection Act and furthermore will consider taking further action against them under the Defamation Act.

As the agreement is unenforceable and the supplier is committing a criminal offence under the Consumer Credit Act they are complicit in committing the same offence.

 

sparkie

[sortingitout]

Yes, they are right - you could write back saying though that you are questioning the agreement's validity and in order for you to do that, you require a copy with your signature on it.

 

Thanks, what does this bit mean in relation then?

 

(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner

[sortingitout]

Also this...

 

also 1983 agreements regs require two sigs

 

Signing of agreement

6.—(l) The terms specified in Column 2 of Schedule 6 to these Regulations in relation to the type of regulated agreement referred to in Column I (and no other terms) are hereby prescribed for the purposes of section 61(l)(a) of the Act (the terms which must be contained in a document if a regulated agreement is not to be improperly executed) and of section 127(3) (the terms which must be contained in a document before any enforcement order can be made under section 65(1), if section 61(l)(a) was not complied with).

 

(2) The lettering of the terms of the agreement included in the document referred to in section 6l(l)(a) of the Act, containing all the prescribed terms of the regulated agreement, and of the information contained in that document for the purpose of conforming to these Regulations shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the colour of the paper.

 

(3) The signature of the said document shall be made in the following manner—

 

(a) by the debtor or hirer, or by or on behalf of the debtor or hirer in the case of a partnership or an unincorporated body of persons, in the space in the document indicated for the purpose, and, subject to sub¬paragraph © below, the date of the signature shall be inserted in the space in the document indicated for the purpose;

 

(b) by the creditor or owner, or by a person on his behalf, outside any signature box in which the debtor or hirer may sign and, subject to sub-paragraph © below, the date of the signature shall be inserted outside any such signature box;

 

© in the case of a regulated agreement which is not a cancellable agreement, the date on which the unexecuted agreement becomes an executed agreement may be inserted in the document and in such a case any other date specified in paragraphs (a) and (b) above need not be inserted;

The Office of Fair Trading Debt collection guidance document Final guidance on unfair business practices July 2003 (updated December 2006) which states that unfair business practices include:

and this..(so confused!)

 

Section 127(3) precludes the court from making an enforcement order if section 61(1)(a) (signing of agreements) was not complied with, unless a document containing all the prescribed terms was signed by the debtor or hirer. Section 127(4) precludes the making of an enforcement order if certain provisions relating to cancellation were not complied with.

[out of cash]

hi there,

 

ths egg so called cca doesent have your sig i think it needs both to be enforced by a court?

[Sparkie1723]

Just adding to my previous post and section 10 of DPA

If the agreement is unenforceable the the permission to process data under that agreemnt is also unenforceable " No lawful legitimate reason"

4.2 Prevention of Processing Causing Damage or Distress (section 10)

If an individual believes that a data controller is processing personal data in a way that causes, or is likely to cause, substantial unwarranted damage or substantial, unwarranted distress to them or to another, section 10 of the Act provides that the individual has the right to send a notice to the data controller requiring him, within a reasonable time, to stop the processing (the "data subject notice").

This right to serve a data subject notice applies whether the individual objects to the processing taking place at all, or whether the objection relates specifically to processing for a particular purpose or in a particular way.

When a data controller receives a data subject notice he must, within 21 days, give the individual a written notice stating either:-

that he has complied with the data subject notice, or intends to comply with it; or

 

the extent to which he intends to comply with the data subject notice (if at all) and explaining the parts of the data subject notice he considers to be unjustified in any way.

• • • • • •

4.2.1 Does this right apply to all data?

An individual can only serve a data subject notice that relates to personal data in respect of which he is the data subject. However, an individual is not entitled to serve a notice if any of the first four conditions of processing contained in Schedule 2 apply i.e.

he has given a valid consent to the processing (although consent may be withdrawn);

 

the processing is necessary for the taking of steps, at the data subject’s request, with a view to entering into a contract, or the processing is necessary for the performance of a contract to which the data subject is a party;

 

the processing is necessary for compliance with any legal obligation to which the data controller is subject, other than an obligation imposed by contract;

 

the processing is necessary to protect the individual’s vital interests (i.e. it is a life or death situation).

The Secretary of State may prescribe additional circumstances where this right is not exercisable. No order has been made to date to this effect.

What is "substantial, unwarranted damage/distress"?

 

sparkie

It is for a court to decide in each case whether the damage or distress is substantial and unwarranted.

The Commissioner takes the view that a data subject notice is, therefore, only likely to be appropriate where the particular processing has caused, or is likely to cause, someone to suffer loss or harm, or upset and anguish of a real nature, over and above annoyance level, and without justification.

.

[Pliny the Penuriosus]

Sorting it would also be a good idea to advise the CRA that as you

 

"have advised you of your erroneous data you can no longer rely on the 'good faith' argument to support your position which is to be remembered as being in direct violation of the Data Protection Act 1998. Therefore if I find your action together with your client has caused me any loss whatsoever I will seek recompense through the courts in necessary"

[un1boy]

To be honest guys, I've done all that and to no avail! The CRA's just aren't interested!

[Pliny the Penuriosus]

Ok then go ahead with your threat issue proceedings It'll cost £30 which of course is recoverable

[un1boy]

Ok then go ahead with your threat issue proceedings It'll cost £30 which of course is recoverable

 

Ok

[angry cat]

Ok

 

How are you un1boy?

 

I have been waiting to hear from you!?

 

Love AC

[rory32]

As pliny says until you actually start court proceeding against the CRA they will continue to just ignore you.

[TideTurner]

How are you un1boy?

 

I have been waiting to hear from you!?

 

Love AC

 

un1boy,

 

You spreading more than the word?

 

Love Tide

[ripoffstopper]

FORGIVE THE HIJACK - BUT THOUGHT YOU WOULD BE INTERESTED IN THIS POST.

 

My original thread started 5th May 2007:

 

Re: NatWest in breach of CCA 1974 what now?

 

 

So things have finally happened.

 

I wrote to Sir Fred Goodwin on the 9th May explaining everything that had transpired, contacted TSO who were not interested - said they would pass it on to their London office as NatWest HO in London. Still waiting for a response from the OFT & FOS.

 

Now, nearly a month after my letter to the top man at RBS I received the reply below. It just goes to show that The Banks are in turmoil and haven't been following the letter of the law in the way that they have been processing our paperwork.

 

RBS

Gordon F.Pell

Chief Executive

The Royal Bank of Scotland Croup

Retail Markets

1 June 200712th Floor

280 Bishopsgate

 

 

Dear Mr RIPOFFSTOPPER

Thank you for your letter dated 9 May 2007 addressed to Sir Fred Goodwin. Sir Fred is away from the office at present and I am replying on his behalf as Card Services' operations fall within my area of responsibility.

I regret that Card Services has been unable to provide a true copy of the agreement relating to your NatWest Dual Credit Card account. They have tried to meet your requirements and I am sorry that you are unwilling to accept liability for the debt, particularly as you have clearly done so in the past. As we are, at this time, unable to retrieve from our records sufficient information to enable us to satisfy your request under section 78(1) of the Consumer Credit Act (CCA), we are treating the outstanding balance as discharged and the credit agreement as ended. Triton Credit Services have been advised of this decision.

The bank will not be refunding those monies you have already paid in reduction of the account balance. There is no requirement to do so under section 78(1) of the CCA. Our position is that the monies you owed under the agreement were properly due and payable.

The default notice was properly served and your failure to remedy the default within the prescribed period resulted in the bank reporting the position to credit reference agencies. While we are unable to provide a copy of the agreement, the default entry registered with credit reference agencies is considered as correct and the entry will therefore not be removed. However the entry will be updated to confirm that the default balance has been 'satisfied'.

The bank considers that our processing of your data has been fair, lawful and warranted in the circumstances. The registering of the default information was done in accordance with long established procedures and these are acknowledged within the Banking Code. We are satisfied that the default was properly notified to credit reference agencies, and you were sent the appropriate Data Protection Act notifications on the reporting of defaults. If you disagree you have the right to apply to court to have inaccurate personal data rectified, blocked, erased or destroyed. Further information in this is available from the information Commissioner's

website at Information Commissioners Office – Information Commissioner's Office.

Yours sincerely

 

Gordon F Pell. Chief Executive Retail Markets

 

The Royal Bank of Scotland Group pic Registered in Scotland No 45551 Registered Office: 36 St Andrew Square, Edinburgh. EH2 2YB

 

So, another victory for common sense and a great thank you to the members of the

" Consumer Credit Act Agreements" forum and the many, many opinions that have been voiced.

Thanks ROS

[noomill060]

Email I recieved from the ICO.

 

8th June 2007

Case Reference Number RFA0xxxxxxxx

Dear noomill060

Further to your email dated 31 May 2007 I understand that Barclaycard do not have any credit agreement signed by you.

You believe that this means that there is no reason for them to process your data at all or place default notices on your credit record and have asked if you will need to make another complaint to get the default removed.

I should advise that in cases such as this, where an individual has requested a copy of a credit agreement and the Bank has been unable to supply this document this does not automatically make the default inaccurate, nor does it mean that Barclaycard has no reason to process your data at all.

From the correspondence you have sent it would appear that you do not dispute the existence of the debt with Barclaycard. It may be helpful to explain that the failure of a creditor to produce a copy of the signed credit agreement is not, on its own, evidence that your debt does not exist and should therefore not appear on your credit file. If the credit grantor can supply some other evidence of the agreement and you have no evidence to contradict this then it is likely to be proper for the debt to continue to be recorded on your credit file.

The Information Commissioner’s Office regulates and enforces the Data Protection Act 1998, amongst other legislation, and we have no involvement in regulating this aspect of the CCA. The CCA is regulated by the Office of Fair Trading and as such the matter you have raised (the lack of credit agreement) does not fall within our remit.

We would therefore suggest that if you wish to pursue this matter further you contact the Office of Fair Trading. For your information their contact details are:

Office of Fair Trading

Fleetbank House

2-6 Salisbury Square

London

EC4Y 8JX

www.oft.gov.uk

Enquiries – 08457-224-499

I trust that this clarifies the matter. This case will now be closed.

Yours sincerely

Laura Hennessy

Casework and Advice Officer

[Pliny the Penuriosus]

Perhaps you would like to send them & the bank the following:

 

Our Ref: WM/BS/Information Commissioners Office – England 090306

 

Information Commissioner's Office - England

Wycliffe House

Water Lane

Wilmslow

Cheshire SK9 5AF

 

 

 

9 March 2006

 

 

 

 

Dear Sir/Madam

 

Information Commissioner's Opinion re: Unenforceable Credit Agreements and Credit Reference File Default Entries

 

LACORS (the Local Authorities Coordinators of Regulatory Services) provides advice and guidance to help support local authority regulatory and related services. It was set up in 1978 to coordinate the enforcement activities of trading standards. Since 1991, LACORS has also worked on food safety and is currently responsible for a range of other regulatory and related services.

 

LACORS is a local government central body created by the UK local authority associations which comprise of the Local Government Association (LGA), Welsh Local Government Association (WLGA), Convention of Scottish Local Authorities (COSLA) and Northern Ireland Local Government Association (NILGA).

 

LACORS Consumer Advice and Education group is seeking clarification of the Information Commissioner's opinion on the issue of defaults being noted on credit reference files where a creditor has accepted that an agreement is unenforceable.

 

A specific example of this type of case would be where a catalogue company has supplied goods to a consumer on credit without entering in to the required credit agreement with the consumer. The consumer has made some repayments (certainly enough to cover the cost of the goods received but not enough to cover all interest and charges) but has been advised that the agreement is unenforceable and has therefore informed the trader that she will not make any more payments on the account. The trader has conceded that there is no enforceable agreement but is threatening to make a default entry on the credit reference file.

 

The opinion of LACORS is that where a creditor accepts that an agreement is unenforceable against a consumer they should not be permitted to 'punish' the consumer by placing a record of the 'default' on their credit reference file. To do so would be unfair and unreasonable. It would also lessen the impact of the provisions of the Consumer Credit Act which make it clear that a creditor should not be allowed to enforce a credit agreement where the agreement is improperly executed.

 

 

 

In reaching this opinion LACORS have taken note of the Information Commissioner's instruction (reported in "Which?" September 2003) that On:line Finance Ltd should remove a default notice that the company had placed on a consumer's file despite their decision that it would be uneconomical to take the matter to court.

 

As there seems to be some inconsistency in the advice received from the Information Commissioners helpdesk we feel it would be beneficial for trading standards departments, consumers and businesses to have written guidance from the Information Commissioner on this issue which can be circulated to consumer advisors nationally and ensure consistent advice on this issue in future.

 

 

Yours sincerely

 

 

 

 

Margaret Humphreys

Policy Officer – Consumer Credit

LACORS

email: [email protected]

direct line: 020 7840 7213

[un1boy]

How are you un1boy?

 

I have been waiting to hear from you!?

 

Love AC

 

Hi AC,

 

I am fine thank you!

 

I'll PM you soon....

[un1boy]

un1boy,

 

You spreading more than the word?

 

Love Tide

 

[un1boy]

FORGIVE THE HIJACK - BUT THOUGHT YOU WOULD BE INTERESTED IN THIS POST.

 

My original thread started 5th May 2007:

 

Re: NatWest in breach of CCA 1974 what now?

 

 

So things have finally happened.

 

I wrote to Sir Fred Goodwin on the 9th May explaining everything that had transpired, contacted TSO who were not interested - said they would pass it on to their London office as NatWest HO in London. Still waiting for a response from the OFT & FOS.

 

Now, nearly a month after my letter to the top man at RBS I received the reply below. It just goes to show that The Banks are in turmoil and haven't been following the letter of the law in the way that they have been processing our paperwork.

 

RBS

Gordon F.Pell

Chief Executive

The Royal Bank of Scotland Croup

Retail Markets

1 June 200712th Floor

280 Bishopsgate

 

 

Dear Mr RIPOFFSTOPPER

Thank you for your letter dated 9 May 2007 addressed to Sir Fred Goodwin. Sir Fred is away from the office at present and I am replying on his behalf as Card Services' operations fall within my area of responsibility.

I regret that Card Services has been unable to provide a true copy of the agreement relating to your NatWest Dual Credit Card account. They have tried to meet your requirements and I am sorry that you are unwilling to accept liability for the debt, particularly as you have clearly done so in the past. As we are, at this time, unable to retrieve from our records sufficient information to enable us to satisfy your request under section 78(1) of the Consumer Credit Act (CCA), we are treating the outstanding balance as discharged and the credit agreement as ended. Triton Credit Services have been advised of this decision.

The bank will not be refunding those monies you have already paid in reduction of the account balance. There is no requirement to do so under section 78(1) of the CCA. Our position is that the monies you owed under the agreement were properly due and payable.

The default notice was properly served and your failure to remedy the default within the prescribed period resulted in the bank reporting the position to credit reference agencies. While we are unable to provide a copy of the agreement, the default entry registered with credit reference agencies is considered as correct and the entry will therefore not be removed. However the entry will be updated to confirm that the default balance has been 'satisfied'.

The bank considers that our processing of your data has been fair, lawful and warranted in the circumstances. The registering of the default information was done in accordance with long established procedures and these are acknowledged within the Banking Code. We are satisfied that the default was properly notified to credit reference agencies, and you were sent the appropriate Data Protection Act notifications on the reporting of defaults. If you disagree you have the right to apply to court to have inaccurate personal data rectified, blocked, erased or destroyed. Further information in this is available from the information Commissioner's

website at Information Commissioners Office – Information Commissioner's Office.

Yours sincerely

 

Gordon F Pell. Chief Executive Retail Markets

 

The Royal Bank of Scotland Group pic Registered in Scotland No 45551 Registered Office: 36 St Andrew Square, Edinburgh. EH2 2YB

 

So, another victory for common sense and a great thank you to the members of the

" Consumer Credit Act Agreements" forum and the many, many opinions that have been voiced.

Thanks ROS

 

That's great, well done.

 

Now, in terms of the default being entered - how can they process your data if the agreement is unenforcable?

 

Also, why not ask them to provide a copy of the ORIGINAL so you can make sur eit conforms with sec 88 of the CCA?