Cap1 & CCA return

[lookinforinfo]

Ian, s.77-79 require that a copy of the executed agreement be provided-ie

that both parties have signed the document that contains all the prescribed trems.

Wednesday clearly was not provided with the executed copy. What he was sent is unenforceable in Court.

[ian1969uk]

No, S77 - 79 require a copy of the executed agreement, but they are allowed to omit the signatures. If this is indeed his original agreement, and they have merely covered up the signatures, they have complied.

[wednesday1867]

If they say they have left the signatures out and say they can do, how do i know if i signed it?

[out of cash]

hi ian1969uk vbmenu_register("postmenu_920946", true);

 

have a look at this extract

 

61.--(1) A regulated agreement is not properly executed unless--

(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

owner, and

(b) the document embodies all the terms of the agreement, other than implied

terms, and

Consumer Credit Act 1974 (c.39)

© the document is, when presented or sent to the debtor or hirer for signature,

in such a state that all its terms are readily legible.

64.--(1) In the case of a cancellable agreement, a notice in the prescribed form

indicating the right of the debtor or hirer to cancel the agreement, how and when that

right is exercisable, and the name and address of a person to whom notice of cancellation

may be given,--

(a) must be included in every copy given to the debtor or hirer under section 62

or 63, and

 

regards

 

out of cash

[ian1969uk]

Look, I'm not disputing that an agreement needs to be signed to be executed, nor that a creditor will need to produce the original agreement in court. I am saying that, for the sake of complying with S77/78 they can omit the signatures as per the 1983 regs. Therefore, if the agreement provided has all of the prescribed terms and the debtor's details on it, it's useless to keep harping onto them about non-compliance.

 

This is now the time to take the bull by the horns and say you don't believe you ever signed an agreement and are disputing liability of the debt unless you are shown the document you signed complete with your signature.

 

In this case, S77/78 are of no more use.

[joneshousehold]

Spot on Ian

[lookinforinfo]

Ian I didn't say they hadn't complied with s77. What I said was that their copy didn't comply with s65 [1] nor 127 [3].

 

In addition, Wednesday could push even more strongly by saying that as they

cannot provide a copy of the original executed document [if they had one, they would have sent it] then they do not have permission to process his

data with the Credit Reference Agencies.

[before signing up with CRAs, these companies have to give an undertaking that they do have the permission of the data subject to process their data]

Therefore, Wednesday should ask that they remove defaults etc form his credit file since they do not have a mandate to so process. Failure will lead

to a demand to the CRAs to provide proof of permission followed by Court action.

[ian1969uk]

Their copy for the purpose of S77/78 doesn't have to comply with those sections regarding the signatures, only the original does.

 

Sorry, but I don't believe you are giving good advice in this case.

[ecobabe]

hi folks, wonder if the brains could comment on this. helping a neighbour (who's been left with 4 kids and no money)with a cca request to provident(eek!); they sent copy and I used the loan checker link which someone posted. anyway it says that the figures are wrong at 17.7% APR, so i wrote to them and mentioned that this was innaccurate. they have written back saying that APR is 177% and figures are correct. loan checker thingy won't let me enter 177% APR, must be between 0-100%. can anyone tell me how to work this out? thanks

[Josie8]

Their copy for the purpose of S77/78 doesn't have to comply with those sections regarding the signatures, only the original does.

 

Sorry, but I don't believe you are giving good advice in this case.

 

They have to produce a true executed copy...............

They can blank out signatures and addresses etc but firstly it should be a copy of what you actually signed....therefore it should have your hand writing on it.

 

Usually when they are messing around sending unsigned copies etc its because they don't have your signed one.............otherwise why go to all the bother!!

[ian1969uk]

It doesn't have to be handwritten, what about agreements that are printed and sent out to be signed? More often than not, it's the application forms that are handwritten.

 

The rest of your post, Josie, is exactly what I said, but an executed agreement with the signatures blanked out would look exactly like the agreement provided here. And no matter what anyone says, they do not have to include signatures to comply with S77/78.

 

That's why I say it's time to move to the next level and question liability for the debt. Force them to reveal what signed documents they actually do have.

[lookinforinfo]

Ian I am not going to argue with you because I remember an earlier thread

where exactly the same point was raised [what is an executed document]

between Bookworm and a Trading Standards officer where the TSO argued that the document had to be signed. After a heated confrontation the TSO

guy had to apologise.

I am bound to say that I did agree with his interpretation of the Act and it

is the view of other officials that is wrong. And I read last week on here that

another TS office is disputing the interpretation by a DCA.

 

That being said, I fail to see how my advice is not good. What I am suggesting is that Wednesday says that the document he has been sent is

not enforceable in Court which it isn't. So if the creditor wants his money,

he will have to produce the executed copy

[ian1969uk]

Your advice is wrong because it is leaving the member open to a disaster. Let's imagine that the document sent is simply the actual signed agreement that they have with the signatures blanked out. He just writes back and says not enforceable, no payments. They take him to court, and produce exactly the same document, but this time with the signature there. A CCJ is then a formality for them to obtain. He cannot say they withheld the document because they provided it, and like it or not, they are allowed to blank out the sigs for a response to S77/78.

 

I am not arguing what an executed agreement must contain, that is clear. I am, though, saying that you can not say it's unenforceable just because the document they sent has the sigs blanked out. The 1983 regs allow them to do this on copy docs sent for the sake of S77/78!!

 

The member should now openly state the liability for the debt is in question and they want to see the signed document. That way, should the creditor take them to court, they can say they asked for it and it wasn't provided.

 

My opinion is that they probably would have sent the signed document if they had it. But note that's PROBABLY. We can't assume that, and it's assumptions like this that leave people with a CCJ that could have been avoided.

[wednesday1867]

Thanks Ian and Lookinforinfo.

 

So if i reply along the lines,

 

Thanks for the copy of the agreement, the reason i asked for the agreement was because i have no recollection (sp) of signing any such agreement. So obviously the agreement you sent to me is of no use, it may well be a copy of my executed agreement, but unless you can supply me with a copy of the executed agreement as asked for in my first letter dated to you xx/xx/xxxxx i will take it that there is and never was a signed agreement and the account and debt will be in dispute, until you can provide it.

 

Hows that?

 

Again thanks for all the info and advice

[un1boy]

Your advice is wrong because it is leaving the member open to a disaster. Let's imagine that the document sent is simply the actual signed agreement that they have with the signatures blanked out. He just writes back and says not enforceable, no payments. They take him to court, and produce exactly the same document, but this time with the signature there. A CCJ is then a formality for them to obtain. He cannot say they withheld the document because they provided it, and like it or not, they are allowed to blank out the sigs for a response to S77/78.

 

I am not arguing what an executed agreement must contain, that is clear. I am, though, saying that you can not say it's unenforceable just because the document they sent has the sigs blanked out. The 1983 regs allow them to do this on copy docs sent for the sake of S77/78!!

 

The member should now openly state the liability for the debt is in question and they want to see the signed document. That way, should the creditor take them to court, they can say they asked for it and it wasn't provided.

 

My opinion is that they probably would have sent the signed document if they had it. But note that's PROBABLY. We can't assume that, and it's assumptions like this that leave people with a CCJ that could have been avoided.

 

The best thing to do is thank them for proivding the agreement but explain that you are questioninf its enforcability and in order for you to confirm it is enforcable you require a copy with the signatures. Explain that if this isn't supplied you will begin legal action/enter as a defence to legal action that you believe it to be unenforcable and despite your various requests, they have failed to supply you with evidence you have asked for in order for you to stop it going to court.

 

The court won't like that as both parties are meant to do all they can to avoid court action.

 

I hope this is understandable.

[hellhasnofury]

Hello,

 

In my quest for info regarding the sending of application forms /re credit agreement. A very knowledgeable and informed cag member mentioned the fact that they were mis-leading consumers.

 

I have found a statement by the oft read below.

 

the statement issued by the OFT on the 21st May 2007.

 

Some of the fitness issues taken into account when revoking and refusing licences during this period included acts of physical violence, fraud, causing grievous bodily harm and obtaining property by deception, and breaches of the Consumer Credit Act.

 

In considering fitness, the OFT takes into account a number of factors carried out by the business or anyone involved in running the business including:

any offence or conviction of violence or dishonesty

 

failure to comply with the provisions of the Consumer Credit Act or other consumer protection legislation

consumer complaints

evidence of unfair business practices

evidence of discrimination on grounds of sex, colour, race or ethic/national origin.

 

If we all send complaints to the oft regarding this matter. I know many have, but if we did it in force, I also think the lovely peterbard had discussed it . they may do something about it. Well not that I believe what I just said but pigs might fly, eh

[un1boy]

Hi everyone,

 

I'm a little confused about who I should send my CCA letters to if the debts are being dealt with by debt collectors. I have sent them to the DCAs; some have defaulted. I sent one to the bank with whom I have the debt even though it is being dealt with by a DCA, and the bank has replied sending an Agreement and saying that I should deal with the DCA but that the debt has not been sold. Now that the DCAs have defaulted, do I then have to send the same letters to the actual banks before I assume that I don't have to send any money? Something else I don't understand: I've read that if the creditor doesn't produce the Agreement within the 12 days the debt is unenforceable, and that within 30 days they've committed an offence, but I've also heard that the debt is not therefore written off, and that if they do produce the Agreement at any time, they can then still demand payment. This doesn't seem to tie up - can anyone enlighten me?

 

Many thanks

 

Sirensinger

 

You can send it to the Debt Collector - it's the responsibility of the current "owner".

[un1boy]

Hello,

 

In my quest for info regarding the sending of application forms /re credit agreement. A very knowledgeable and informed cag member mentioned the fact that they were mis-leading consumers.

 

I have found a statement by the oft read below.

 

the statement issued by the OFT on the 21st May 2007.

 

Some of the fitness issues taken into account when revoking and refusing licences during this period included acts of physical violence, fraud, causing grievous bodily harm and obtaining property by deception, and breaches of the Consumer Credit Act.

 

In considering fitness, the OFT takes into account a number of factors carried out by the business or anyone involved in running the business including:

any offence or conviction of violence or dishonesty

 

failure to comply with the provisions of the Consumer Credit Act or other consumer protection legislation

consumer complaints

evidence of unfair business practices

evidence of discrimination on grounds of sex, colour, race or ethic/national origin.

 

If we all send complaints to the oft regarding this matter. I know many have, but if we did it in force, I also think the lovely peterbard had discussed it . they may do something about it. Well not that I believe what I just said but pigs might fly, eh

 

 

Yep. And in the end they will have to act - if they get thousands of complaints they won't be able to ignore them for long!!

[hellhasnofury]

Yep. And in the end they will have to act - if they get thousands of complaints they won't be able to ignore them for long!!

 

Sorry a bit tongue in cheek:D

 

Maybe one of the conditions of joining the site should be a compulsory cca request to all of the new cags creditors and when the crap ca comes in we report it to the oft:lol:

[un1boy]

Thanks Ian and Lookinforinfo.

 

So if i reply along the lines,

 

Thanks for the copy of the agreement, the reason i asked for the agreement was because i have no recollection (sp) of signing any such agreement. So obviously the agreement you sent to me is of no use, it may well be a copy of my executed agreement, but unless you can supply me with a copy of the executed agreement as asked for in my first letter dated to you xx/xx/xxxxx i will take it that there is and never was a signed agreement and the account and debt will be in dispute, until you can provide it.

 

Hows that?

 

Again thanks for all the info and advice

 

Yep, basically.

[un1boy]

Yep. And in the end they will have to act - if they get thousands of complaints they won't be able to ignore them for long!!

 

LOL, yeah let's make it a plan!!!

[hellhasnofury]

LOL, yeah let's make it a plan!!!

 

What do you suggest, I suggest that all newbies have to read this thread before they could join:lol:

 

Ive tried several times and eventually have to go to hospital suffering from a sore head, dehydration and starvation

[rich2568]

Hi All

 

What about a CCA without the `attached Card Agreement Conditions`(Prescribed Terms). I requested a CCA and the aforementioned Conditions didn`t come with it- just 2 pages- of which nowhere did it stipulate my actual card number anywhere! They`re now suing me & quoting this missing number on the Particulars Of Claim!. (My Sig. is on the CCA though- which means I suppose that you accept that you have read and have accepted these Card Agreement Conditions- -Grrrr- Doh!!!)!

[un1boy]

Hi All

 

What about a CCA without the `attached Card Agreement Conditions`(Prescribed Terms). I requested a CCA and the aforementioned Conditions didn`t come with it- just 2 pages- of which nowhere did it stipulate my actual card number anywhere! They`re now suing me & quoting this missing number on the Particulars Of Claim!. (My Sig. is on the CCA though- which means I suppose that you accept that you have read and have accepted these Card Agreement Conditions- -Grrrr- Doh!!!)!

 

The prescribed terms have to be on the agreement document, which we have decided COULD go over a few pages. However, if these are not there then it is unenforcable.

[un1boy]

What do you suggest, I suggest that all newbies have to read this thread before they could join:lol:

 

Ive tried several times and eventually have to go to hospital suffering from a sore head, dehydration and starvation

 

Well, I've practically been here since the start, lol so it's not been too bad for me - but I know what you mean - especially when I have needed to catch up about 2 days' worth and had like 75 pages to read, lol!!