Cap1 & CCA return

[andrewman]

thanks for reply but nothing says how to start a New Thread. if there is i can not see it, i see how to reply but not how to start one.

[Chalkitup]

Hello andrewman,

 

You want Post 1 on the link citizenB gave you .... which is Create a new thread:

 

 

Onwards and Upwards

 

Chalkitup

[IS IT ME?]

gentlemen and ladies,

can some one please answer one question, is the rules the same for a person who trades under his own name and has a cca contract which very clearly states ' customer account application form '

which is only a photo copy and does not match the form when laid out.

It also states a 'Chip and pin card' I never had a chip and pin card .

If thing I can do?????

[andrewman]

just started a new thread entitled littlewoods/cabot and attached copy of so call credit agreement. anyone who wants to have a look and comment or advice are welcome to do so. cheers:cool:

[B3rty]

Heres a thought that some of you might like to ponder

 

All the LOA I have received have been sent by the DCA not the OC....even those on the OC headed paper have come from the DCA....I just wondered how this might stack up legally and whether the OC has a legal right to notify....

 

If this is the process then any SAR to the OC would show that this was never sent and may make a resonable defence say should the DCA produce a legal CCA....

 

Any thoughts?

[ncf355]

Hi folks,

 

I've added my two pennethy to this thread regards monument response to a S78, please take a look and add as required:

 

HERE

[gh2008]

Hi folks,

 

I've added my two pennethy to this thread regards monument response to a S78, please take a look and add as required:

 

HERE

 

That post got me thinking

 

S.77 for example says (as we all know)

77 Duty to give information to debtor under fixed-sum credit agreement

(1) The creditor under a regulated agreement for fixed-sum 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,—

(a) the total sum paid under the agreement by the debtor;

(b) the total sum which has become payable under the agreement by the debtor but remains unpaid, and the various amounts comprised in that total sum, with the date when each became due; and

© the total sum which is to become payable under the agreement by the debtor, and the various amounts comprised in that total sum, with the date, or mode of determining the date, when each becomes due.

Now a 'copy' is quite clearly defined in S. 180 of the Act para 2 of s.180 states

(2) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document— and references in this Act to copies shall be construed accordingly.

 

(a) is not satisfied unless the copy supplied is in the prescribed form and

conforms to the prescribed requirements;

(b) is not infringed by the omission of any material, or its inclusion in

condensed form, if that is authorised by regulations;

IMHO, what that says is that any copy must be in the prescribed form and contain all the prescribed terms otherwise the copy is deemed not to have been sent.

 

So, with S.77 para 4 stating

 

(4) 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.

Surely this precludes any creditor applying for enforcement until they comply with a S.77/78/79 request .....

 

Or am I missing something .....

[citizenB]

just started a new thread entitled littlewoods/cabot and attached copy of so call credit agreement. anyone who wants to have a look and comment or advice are welcome to do so. cheers:cool:

 

 

This is andrewman's link

 

http://www.consumeractiongroup.co.uk/forum/welcome-consumer-forums/138070-littlewoods-cabot.html

[andrewman]

Thanks citizenB your help is much appreciated. cheers8-)

[citizenB]

Thanks citizenB your help is much appreciated. cheers8-)

 

Thank you , that was kind of you to tip my scales. {{}}

[car2403]

That post got me thinking

 

S.77 for example says (as we all know)

Now a 'copy' is quite clearly defined in S. 180 of the Act para 2 of s.180 states

IMHO, what that says is that any copy must be in the prescribed form and contain all the prescribed terms otherwise the copy is deemed not to have been sent.

 

So, with S.77 para 4 stating

 

Surely this precludes any creditor applying for enforcement until they comply with a S.77/78/79 request .....

 

Or am I missing something .....

 

No, that's spot on, IMHO anyway...

[patrickq1]

Surely this precludes any creditor applying for enforcement until they comply with a S.77/78/79 request .....

yes it is what it says whilst in default they are compelled to act within the agreement terms to comply by dealing with you direct and not passing off data to other parties,this usually the case when you do contact a third party for a sar request or CCA they usually pass the debt back to the OC.... IMO

patrickq1

[drob]

Sent off my £1 postal order to Monument for a copy of the CCA and received the following reply>>>>

 

"The agreement we have enclosed in this letter is a copy of your credit agreement which we are providing to you in accordance with our obligations under the requirements of section 78(1) of the Consumer Credit Act 1974 (as ammended) (the CCA). Section 78(1) requires that we provide you with a copy of your executed agreement within 12 days of receiving your request for such a copy and upon the payment of £1.00"

 

"It is perhaps worth us explaining a little about the "copy of the executed agreement" section 78(1) requires us to provide to you. "Copy" for the purpose of the CCA does not refer to an exact copy of the agreement you signed. We are therefore not required by the CCA to provide you with a photocopy of the agreement showing your signature. Section 78 requires us to provide you with a copy of the agreement that looks like the one you signed but which has been updated to contain the terms and conditions which currently apply to your agreement (rather than those which applied at the time you signed the agreement) Importantly, the copy is not required to include your name or signature".

 

"We hope that you are now satisfied with the documentation we have provided and that you will now recommence payments on your account"

 

Yours Sincerely

 

Naomi Wort.

 

All that monument have sent along with the letter is Monument Visa Conditions and a copy of the Monument Conditions. Can anyone comment on the above reply from Monument and advise me on how i should reply to Monument?????

 

I have attatched what they have sent me.

Monument Visa Conditions0001.pdf

Monument 20001.pdf

Monument 30001.pdf

[citizenB]

I still cant get my head round this..... IF they are so sure of their position and have a copy of the original signed document, what, exactly is their problem in sending a copy to the debtor on request ?. Alternatively,

 

If they are so sure that the document IS compliant.. why do they not just haul us into court and settle it there and then. Instead they devastate the rain forest with their letter writing then sell the account on ?. Surely that in itself is dubious if in their heart of hearts they know the debt is unenforceable. Or am I just being naive ?

[gh2008]

No, that's spot on, IMHO anyway...

 

so.......

 

what exactly does 'prescribed form' actually mean?

[paulwlton]

That post got me thinking

 

 

IMHO, what that says is that any copy must be in the prescribed form and contain all the prescribed terms otherwise the copy is deemed not to have been sent.

 

So, with S.77 para 4 stating

 

Surely this precludes any creditor applying for enforcement until they comply with a S.77/78/79 request .....

 

Or am I missing something .....

 

Regulations stipulate what is required to be contained in copy documents.

[car2403]

Surely this precludes any creditor applying for enforcement until they comply with a S.77/78/79 request .....

yes it is what it says whilst in default they are compelled to act within the agreement terms to comply by dealing with you direct and not passing off data to other parties,this usually the case when you do contact a third party for a S.A.R - (Subject Access Request) request or CCA they usually pass the debt back to the OC.... IMO

patrickq1

 

It does, IMO, too - a Judge may (wrongly!) decide otherwise, but that would give you decent grounds for an appeal, also IMO...

 

I still cant get my head round this..... IF they are so sure of their position and have a copy of the original signed document, what, exactly is their problem in sending a copy to the debtor on request ?. Alternatively,

 

If they are so sure that the document IS compliant.. why do they not just haul us into court and settle it there and then. Instead they devastate the rain forest with their letter writing then sell the account on ?. Surely that in itself is dubious if in their heart of hearts they know the debt is unenforceable. Or am I just being naive ?

 

Exactly - this is why we need to use the "put up or shut up" letter to force their hand.

 

so.......

 

what exactly does 'prescribed form' actually mean?

 

Paul answers this nicely;

 

Regulations stipulate what is required to be contained in copy documents.

[patrickq1]

yes car and it will get worse with regards to information being asked for very soon,due to the goverment decision to remove the FOI ACT from the northern rock fiasco,you will find that the banks will use the same terminoligy when it comes to the POC if the goverment can use this why cant they it is only a matter of time before they do start using this as sensitive information likely to make them anti competative ?

patrickq1

ps...after all the goverment are now BANKERS(northern rock)

[gh2008]

Regulations stipulate what is required to be contained in copy documents.

 

need to look into this further but from what I've read the copy of the agreement that 'we' request under s77-79 does not need to be a copy of the original.

In fact the OC should, it seems, send the latest copy of the agreement including any variations to the original.

The OC may, if it wishes, insert the debtor's details on the form, but it does not need to, nor does there have to be a signature present on that form.

 

Both the following quotes are from Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983

There are the regs. that govern the form & content of copies of documents requested

 

3 General requirements as to form and content of copy documents

 

(1) Subject to the following provisions of these Regulations, every copy of an executed agreement, security instrument

or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act

shall be a true copy thereof.

(2) There may be omitted from any such copy--

(a) any information included in an executed agreement, security instrument or other document relating to the debtor,

hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the

Act or any Regulations thereunder as to the form and content of the document of which it is a copy;

(b) any signature box, signature or date of signature (other than, in the case of a copy of a cancellable executed

agreement delivered to the debtor under section 63(1) of the Act, the date of the signature by the debtor of an

agreement to which section 68(b) of the Act applies);

 

7 Copies of agreements or security instruments where the agreement or security instrument has been varied

 

(1) Where an agreement has been varied in accordance with section 82(1) of the Act, every copy of the executed

agreement given to a debtor, hirer or surety under any provision of the Act other than section 85(1) shall include either--

(a) an easily legible copy of the latest notice of variation given in accordance with section 82(1) of the Act relating

to each discrete term of the agreement which has been varied; or

(b) an easily legible statement of the terms of the agreement as varied

in accordance with section 82(1) of the Act.

 

However, should it go to court then the OC would need to produce evidence to show that the debtor did in fact enter into an agreement.

 

They should also produce this in response to a s.a.r. request, but, it would seem, they do not need to produce it in response to a CCA.....

 

BTW I hope I'm rambling in the right thread .... tell me to go away (and point me in the direction where this would be more suited) if I'm not

[car2403]

need to look into this further but from what I've read the copy of the agreement that 'we' request under s77-79 does not need to be a copy of the original.

In fact the OC should, it seems, send the latest copy of the agreement including any variations to the original.

The OC may, if it wishes, insert the debtor's details on the form, but it does not need to, nor does there have to be a signature present on that form.

 

Both the following quotes are from Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983

There are the regs. that govern the form & content of copies of documents requested

 

 

 

 

 

However, should it go to court then the OC would need to produce evidence to show that the debtor did in fact enter into an agreement.

 

They should also produce this in response to a s.a.r. request, but, it would seem, they do not need to produce it in response to a CCA.....

 

BTW I hope I'm rambling in the right thread .... tell me to go away (and point me in the direction where this would be more suited) if I'm not

 

Go away...

 

 

 

 

 

Just kidding!

 

They do have to provide a copy of the agreement - they claim the regs allow them to supply a "reconstructed" agreement to satisfy the Acts requirements, but the Act is clear that there must be a copy of the agreement provided, not a copy of a agreement. It's a play on words.

 

If they are right, you just ask the question "do you have a properly executed credit agreement, under the Act and the regs made under it?". If they don't, they should say so - or hide behind the regs again, hoping you'll give up.

 

Either way, they need a true certified copy of the original agreement, which is properly executed, to enforce or successfully defend a claim against them under s.142.

 

The trick is to request the agreement, then ask the right questions to back them in to a corner if they try to wriggle out of it.

[IS IT ME?]

Is it the same for sole traders? ie some one who trades under his own name and has a agreement with a limit on the credit and from one surpplier only?

[un1boy]

Does anyone know who the body is at the European HQ that we could complain about the OFT to?

 

I notice that the act states something about someone being fit for purpose as a licensee unde the act must comply with the EEC's criteria and so I might look to make a complaint to them.

[patrickq1]

The legal basis for the enactment of regulations is article 249 of the Treaty establishing the European Community and, as such, regulations only apply within the European Community pillar of the European Union.

Article 249 In order to carry out their task and in accordance with the provisions of this Treaty, the European Parliament acting jointly with the Council, the Council and the Commission shall make regulations and issue directives, take decisions, make recommendations or deliver opinions. A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States. A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods. A decision shall be binding in its entirety upon those to whom it is addressed. Recommendations and opinions shall have no binding force.

[patrickq1]

Barroso Commission - Wikipedia, the free encyclopedia

[patrickq1]

European Parliament - News - Headlines - Economic and monetary affairs