Cap1 & CCA return

[shooter001]

Hi all just need some input on my barclay loan, I have handed in this letter today giving them 14 days to pay my money back. All I received from my CCA request after they commited a criminal offence was a printed copy of an agreement with boxes for signatures but nothing is signed.

 

I am trying the approach of threatening to report the offence based on the fact that barclays will hold a criminal record and can not trade with such a record(if i understand this correctly), and if they settle I will accept the offer and thus they have no record.

 

Dear sir or madam

Request for true copy of Credit Agreement under Sections 77/78 of the Consumer Credit Act 1974

I wrote to you recently requesting a true, signed copy of any credit agreement that exists in relation to the above account. This is my right under Sections 77 and 78 of the Consumer Credit Act 1974 on payment of the statutory fee of £1.00. This payment was included with my original request.

 

Under the terms of the above Act, a creditor has 12 working days to provide the requested document. Should they fail to do this, they have a further calendar month to rectify this default. Failure to comply within these timescales is a criminal offence.

 

Both of these deadlines have now passed and after the offence I have received a copy of an unsigned agreement with a covering letter dated 27th July 2007. This can lead me to only one conclusion, that being that no signed credit agreement exists in relation to this account.

 

As I am sure you are aware, an agreement that does not contain all of the prescribed terms, and/or is not signed by the debtor, is completely unenforceable, even in a court of law. This will be a complete defence to any court action that you may consider taking.

 

Please note, you may also consider this letter 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 the credit reference agencies.

 

There has never been any regulated agreement in relation to this account, and therefore you have never had my consent to process my data. I also do not see how you can state that you have a legitimate interest in processing my data as we have never had any contract that would enable you to do this.

 

 

 

 

Be warned, the CCA 1974 is clear that a default can only be issued for breach of a valid, regulated agreement. If there is no agreement, as in this case, then you cannot issue a default as I have not breached any valid, regulated agreement.

 

To resolve this matter I expect the account to hold a zero balance and any monies I have paid to you to be refunded within 14 days. I have calculated the monies I have paid to you based on my attached schedule to be £7008.

Failure to resolve these issues within this time period will leave me no other choice but to report any possible Criminal activities to the Office of Fair Trading, The Information Commissioner, Trading Standards, Merseyside Police and Watchdog for investigation.

 

I look forward to your final decision on this complaint for settlement within 14 days. This should include your proposed actions in relation to the lack of a credit agreement.

 

Yours faithfully

 

 

 

 

[shooter001]

Also I have a friend who i did a CCA request regarding a Hire Purchase Vehichle through MBNA. They havent produced any agreements after the offence. If it is true that a creditor needs a proper executed agreement to process data, then also under the consumer credit act they can not default you. This would then mean that they could not reposes the car because in order to do this they must default the person twice before requesting the car back.

[Peterbard]

Peter,

 

if they were going to rely on this as the agreement shouldnt it also be signed by them which this isnt unlike others i have recieved off mbna with the stamped signature .

also i find it hard to believe that they would already have given a credit limit of 2k on an application form, if this isnt the case surely thay are not allowed to tamper with the agreement by adding things on that werent their originally.

 

j

Hi J

 

Yes it should be signed but that is not a prescribed termand the lack of it would not make the agreement unenforceable. Although you could argue that it has not been executed at all, big grey area.

 

As far as the application form businessis is concerned, if they send a reply back to a request for an agreement then it should be treated as an agreement the question is, is it properly executed and does it meet the requirments set out in the regs if not call it what you like it is unenforceable. As to the £2000 limit with respect i think they can offer what they like, the querstion is do you accept it. As for tampering no they are not supposed to it would be fraud.

 

Regards

Peter

[Peterbard]

Also I have a friend who i did a CCA request regarding a Hire Purchase Vehichle through MBNA. They havent produced any agreements after the offence. If it is true that a creditor needs a proper executed agreement to process data, then also under the consumer credit act they can not default you. This would then mean that they could not reposes the car because in order to do this they must default the person twice before requesting the car back.

 

HI

If they are in default due to none compliance with a sction 77 request then they cannot enforce the agreement since reposetion or issuing a default would be a form of enforcement they would be in breach of the regulations and acting unlawfully should they attempt to do so.

 

Regards

peter

[shooter001]

thanks for the reply Peter. Am I also correct in understanding that the banks have a limit to the amount they can loose under the CCA of £25,000 as the Hire Purchase agreement exceeds this limit, especialy with the value of the car.

[Peterbard]

**thinks** BCard have sent me two versions of their T&Cs.

 

Neither of them are the same. One is dated as as 7/99 and the other 8/99.

 

Both came with a letter saying

 

1) herewith are enclosed copy of your executed agreement in the prescribed format. (unsigned photocopy of the T&Cs)

 

2)A copy of your Barclaycard signed Credit Agreement regulated by the CCA 1974, which you signed in agreement that you were legally bound by the Barclaycard Terms and conditions. (my application form/mailshot- no prescribed terms)

 

HI

YOu are not bound by anything unless it was within the agreement you signed.

As the OFT guidlines put it

"

1. 2.4 Can I include cross references?

Reg 2(4) provides that the information specified may be interspersed with cross references to the terms of the agreement – see Q2.3.

It is not however permissible in the OFT’s view to include cross references to information appearing otherwise than as part of the terms of the agreement – for example, in a separate information sheet or booklet or an accompanying letter.

Best regards

Peter

[clearmydebts]

HI

 

I have an idea

 

Peter

 

Hi Peter,

thanks for your help thus far, but I am still waiting for this idea you or ayone else may have.

Sorry work pressures have meant i am not on the banks case as much as i want to.

thanks all the same

clearmydebts

[monopoly23]

HI

YOu are not bound by anything unless it was within the agreement you signed.

As the OFT guidlines put it

"

1. 
   
2. 2.4 Can I include cross references?

Reg 2(4) provides that the information specified may be interspersed with cross references to the terms of the agreement – see Q2.3.

It is not however permissible in the OFT’s view to include cross references to information appearing otherwise than as part of the terms of the agreement – for example, in a separate information sheet or booklet or an accompanying letter.

Best regards

Peter

 

Probably just me being stupid, but can you explain this?

 

Under the signature on the mailer sized photocopy I was asking about before it says-

'This agreement incorporates the terms and conditions set out in the long form version of this agreement, of which you already have a copy. By signing this agreement you agree to be bound by those terms and conditions.'

 

Is this permissable? Especially as they have not sent the 'long form version of this agreement' they mention.

[rich2568]

Reg 2(4) provides that the information specified may be interspersed with cross references to the terms of the agreement – see Q2.3.

It is not however permissible in the OFT’s view to include cross references to information appearing otherwise than as part of the terms of the agreement – for example, in a separate information sheet or booklet or an accompanying letter.

Best regards

Peter

 

 

Yes Peter-this is an interesting post. Bearing in mind EGG state on their agreement "You are, by signing this agreement, legally bound by its terms."

However ,they state earlier in the agreement " You have read and accept the EGG CARD Credit Agreement Conditions, a copy of which we enclose, especially conditions 1.2 and 16 (Personal Information)"

 

Is this a similar argument whereby they are stating parts of the agreement within a seperate booklet?

[daarab]

I CCA`d robinson way for a copy of my credit card agreement and this is what they eventually sent. it clearly states an application, but i'm a bit concerned about the statement in the signature box.

 

ANY HELP?ADVICE WOULD BE GRATEFUL.

 

[Josie8]

I CCA`d robinson way for a copy of my credit card agreement and this is what they eventually sent. it clearly states an application, but i'm a bit concerned about the statement in the signature box.

 

ANY HELP?ADVICE WOULD BE GRATEFUL.

 

 

 

1. Its an application

2. There are no prescribed terms present therefore unenforceable

[spiritgirl59]

Hi daarab

 

This is clearly an application form as you say. It would not stand up as a "properly executed credit agreement" because it does not contain the necessary terms & conditions.

 

Note what Peter has said earlier in this thread :-

 

As far as the application form businessis is concerned, if they send a reply back to a request for an agreement then it should be treated as an agreement the question is, is it properly executed and does it meet the requirments set out in the regs if not call it what you like it is unenforceable.

 

As for the statement in the signature box, I would love to hear others opinion here, because its my view that as this document is clearly an application form, once it was received by the Halifax they should THEN have sent a properly executed agreement which, upon your signature, would then have the statement you mention. Am I right Peter?, other members?

 

Love Spiritgirl x

[un1boy]

Guys,

 

Just to let you know I have entered an N1 for breach of sec 78. The thread is here:

 

un1boy - N1 issued for breach of CCA request

 

It will be updated all the way!

[gettingthere]

Can anyone give me an opinion on this please - it was a mailshot to my wife where I crossed her name out and inserted mine - then completed it and sent it off.

 

I've treated it as an application form but perhaps some of the more experienced would confirm this for me before I get into deeper territory with them,

 

 

 

The small print under the stamp is illegible to the normal eye but I have managed to read it with a magnifying glass:

 

It basically refers to 'The conditions of use as set out overleaf' - these were not sent.

 

1. RBS will determine credit limit

2. Pay 3% within 25 days of statement.

3. Details of APR - 18.3%

4 APR may be varied

 

Then goes on to say 'I confirm that this is an application .............. I have read the conditions of use overleaf.

[Jeff2000]

Can anyone give me an opinion on this please - it was a mailshot to my wife where I crossed her name out and inserted mine - then completed it and sent it off.

 

I've treated it as an application form but perhaps some of the more experienced would confirm this for me before I get into deeper territory with them,

 

 

 

The small print under the stamp is illegible to the normal eye but I have managed to read it with a magnifying glass:

 

It basically refers to 'The conditions of use as set out overleaf' - these were not sent.

 

1. RBS will determine credit limit

2. Pay 3% within 25 days of statement.

3. Details of APR - 18.3%

4 APR may be varied

 

Then goes on to say 'I confirm that this is an application .............. I have read the conditions of use overleaf.

 

 

Hi,

 

 

The letter from Mint says "Please find enclosed a copy of your application form as requested".

 

They are admitting that it is an application form. But I don't suppose that this is what you requested, is it?

 

 

Regards, Jeff.

[Vulture_Bank]

Hi,

 

 

The letter from Mint says "Please find enclosed a copy of your application form as requested".

 

They are admitting that it is an application form. But I don't suppose that this is what you requested, is it?

 

 

Regards, Jeff.

 

 

just ask them

=======================

78 Duty to give information to debtor under running-account credit agreement

(1) 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 £1, 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,—

 

simply ask them for a copy of the original terms and terms and conditions when you joined and i can guarrantee they will write the debt off !!!

[monopoly23]

Hi can someone take a look at this letter I drafted to send to vanquis please? It needs work, esp. para's 3 and 4, so any suggestions will be more than welcome.

Also, I need the section of the CCA which says that signatures must be on the same page as the prescribed terms, to insert after para 4.

Thanks.

 

ACCOUNT IN DISPUTE

Dear Sir/Madam,

 

Thankyou for your letter dated 26/07/07. In this you mention that I should feel satisfied that my complaint has now been fully resolved. This is not the case.

I originally requested a true copy of the credit agreement in relation to this account on 01/06/07. On 03/07/07 I received a letter marked ‘WITHOUT PREJUDICE’ concerning default charges and specific, sensitive account information which should only be supplied under a Data Protection Act request. A Data Controller should know this.

I wrote back on 18/07/07 to confirm that I had not made a Subject Access Request under the DPA, also to remind you that you still had not fulfilled my original Consumer Credit Act request. Your continued non-compliance with my request means that your company has committed an offence under Section 78 (6b) of the Consumer Credit Act 1974, summarily punishable by a Level 4 fine on the standard scale.

 

You have been in default under the Consumer Credit Act 1974 since 18th July 2007.

You are still in default.

 

The documentation that you have supplied me in your response does not meet with the requirements of the Act. One photocopied sheet shows some prescribed terms and a pre-printed name and address which easily suggests that this is an application form. There are no signatures on this page by either Vanquis or myself, and no space for them to have ever been there, therefore I have not signed a properly regulated agreement.

The second photocopied sheet is clearly a mail shot and bears no relation to the previous page. There are no prescribed terms, only Your Right To Cancel, a few contact phone numbers and a signature. The size and shape of the documents are completely different, therefore they cannot be the two sides of an agreement, and there is nothing to connect these two documents; i.e. a reference number on each page.

The Terms and Conditions you have supplied do not appear to be those mentioned within the application either. The application clearly states that each default charge will cost £20, yet in the T&C’s provided it states they will be just £12. These are obviously current terms, changed since the OFT’s ruling in 2006. Therefore you have not complied with my section 78 request.

I also notice that you have been charging for payments towards a Repayment Option Plan, at 79p per £100, of which there is no mention of anywhere in this alleged agreement. Since I never requested this ‘Plan’ or signed anywhere for the money to be taken, and you have not provided me with the documentation to say I have, please refund all previous payments back into the account.

As you may or may not know, the information you have provided is binding in court, and as you have not shown anywhere that I requested this plan, any evidence you may have would be inadmissible in court should it be taken that far.

You have also failed to comply with any of section 78 (1) –

78.—(1) 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.

I have not received any of this.

 

The documents that you are obliged to send me are - a true copy of the executed agreement that contains all of the prescribed terms, all other required terms and any statutory notices signed by both your company and myself, the terms and conditions in effect when this account was opened and a full statement of account.

 

The above account is still 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. Whilst in default you are not entitled to enforce the agreement. (CCA 1974 Section 78(6)a)

I am therefore returning to you your most recent request for payment and ask that you return the account balance to the status it was at when you received my first request on 01/07/07. You will be further breaching the CCA 1974 should you fail to do this immediately.

 

I now require that you provide me with a copy of the correct documents, or your written acknowledgement that you are unable to do so.

 

[Peterbard]

Probably just me being stupid, but can you explain this?

 

Under the signature on the mailer sized photocopy I was asking about before it says-

'This agreement incorporates the terms and conditions set out in the long form version of this agreement, of which you already have a copy. By signing this agreement you agree to be bound by those terms and conditions.'

 

Is this permissable? Especially as they have not sent the 'long form version of this agreement' they mention.

Mi M

 

The agreement has to contain certain parts of the regulations. There are regulations that do not have to be in the agreement itself.

So the agreement will incorrporatethe neccesarry conditions as per the cca, and the T and cs contain a copy of those conditions plus everything else inclucing information not cantained within the cca but in conection with the credtitors terms of busines.

 

As stated in the OFT guidlines this information sheet is not to be linked to from the agreement itself,Only terms within the agreement can be linked.

 

REgards

Peter

[Peterbard]

Hi

I just got off the phone with consumer direct .I wanted to see if they have got the message about Creitors sending a signature document and some Tand cs.

I must admit i was prepared for an argument as i have had dealings with them before and have found them not to be up to the mark on the cca.

However i was pleasantly supprised when she said "no they have not conformed write back and give them 14 days to respond if they don't get back to us and we will report them to the Trading Standards.

Seems like the message is getting through.(Although they still have to work on understanding the time scales for conforming to the regulation)

 

Regards

peter

[shane5408]

hi guys,

 

has anyone here actually taken these arguments to court, I know Uniboy is in the process of doing so, I too will shortly be filing an N1 for non compliance and unenforcable agreements. If anyone has already been through this in court or knows people that have please can you let me know how you/they got on!

 

At the end of the day we know the law is in on our side in the majority of these cases where prescribed terms are lacking, current t&c's etc etc. now we need to know the procedure when it does get taken to court and what kind of defence the banks put up and how judges generally look at cases like these.

 

 

kind regards,

shane

[oneofakind]

has anyone here actually taken these arguments to court,

 

Looking around the site, I can't see much evidence of this. Generally it seems the DCA gives up when they realise they don't have the proverbial leg to stand on.

 

Legally, if the correct CCA is not produced as requested, this is a complete defence to any attempted court proceedings. Taking you to court without proof of the alleged debt is likely to be looked on quite unfavourably by the judge...

 

(someone please correct me if any of this is wrong, and point us to any court-related threads?)

 

[noomill060]

Peter- My local Consumer Direct doesnt seem at all clued up on this, they told me that an application form and a copy of T&Cs is fine, where about is your Consumer Direct?

 

I sometimes get the feeling the guy I spoke to is so impartial that he feels the need to act as advocate for the creditor and is out of his depth.

[noomill060]

Apart from uniboy, no one I know has gone to law over this.

 

By the same token though, i havent seen any example of any DCA going to court and winning when CAG members have challenged a duff credit agreement. Plenty of examples of DCAs crawling back under their stones, though.

[monopoly23]

Hi does anyone have any comments or suggestions for my letter in post 8307 please? Or know where the section of the law is that I need? Id like to send this off today if possible.

[noomill060]

Thats a long post, I'll have a read of it later on.