Cap1 & CCA return

[lexis200]

I've just been fiddling with a generic SAR request template to try and exclude any chance for them to send the same document and say it's enough - would someone mind just having a look and seeing it it's ok please?

 

This is what I've come up with (obviously there is more to the whole request, just in case anyone thinks that's it:)).

 

- Full copies of all contracts which you believe exist or have existed between myself and your organisation, including true copies of any original documents and their original associated terms and conditions you hold in support of the same. I do not require or want any blank/generic documents, but only actual copies of signed documents and their associated terms etc. If you no longer hold these, or can not fulfil my legal request in any other way, I require you to inform me of this in writing, including the reasons for not supplying anything mentioned, or for supplying anything that varies from the specific format I have requested.

 

Is that ok?

 

 

Thanks

 

 

Lexis:)

[Viscount Stair]

I am in a very cynical mood this morning so am tempted to say that it is excellent for all the notice that will be taken of it!!!

 

It does make clear exactly what you are asking for and rules out any wiggle room but judging by the responses I have had to my 2 SARs so far, I don't think that letters even get read (let alone understood).

 

The other snag is that - strictly speaking - the DPA only gives you a right to information, not documents.

 

That said, it is how the letter looks in the court file at the end of the day. For that purpose, I think that what you have written looks great.

[foolishgirl]

I've just been fiddling with a generic Subject Access Request request template to try and exclude any chance for them to send the same document and say it's enough - would someone mind just having a look and seeing it it's ok please?

 

This is what I've come up with (obviously there is more to the whole request, just in case anyone thinks that's it:)).

 

- Full copies of all contracts which you believe exist or have existed between myself and your organisation, including true copies of any original documents and their original associated terms and conditions you hold in support of the same. I do not require or want any blank/generic documents, but only actual copies of signed documents and their associated terms etc. If you no longer hold these, or can not fulfil my legal request in any other way, I require you to inform me of this in writing, including the reasons for not supplying anything mentioned, or for supplying anything that varies from the specific format I have requested.

 

 

Is that ok?

 

 

Thanks

 

 

Lexis:)

 

Being nit picky, think this should read copies of actual signed docs. - all copies will be actual.

 

I'm with Viscount though, IMO it will just look good in the court file & will not make a scrap of difference to what they actually send you.

[lexis200]

Thanks for that Viscount Stair - and I hope your mood improves through the day:)

[FANTASY CHARGES]

Woodchester v Swayne:

 

Is the text of the Assistant Recorder's judgment at first instance available anywhere?

 

 

 

just want to point out regarding the above case on the internet and this site their are numerous spellings of the word swayne

.......... meaning swain swaine

 

 

by using the above version of swayne we can find the case on bailli but this does not necessary mean swayne is the correct spelling

 

perhaps a mod could clarify the situation ???

 

 

Woodchester v Swayne & Co [1998] EWCA Civ 1209 (14 July 1998)

[lexis200]

Cheers for the nit-picking foolishgirl, you're quite right:D

 

I'll change it and send it off as soon as I can. Really if it doesn't do any harm to add it then I think it's worth putting in for exactly the reasons you and VS have stated.

 

I'm not quite as cynical as you both with the SAR just yet though - I've asked for two so far and they've both had exactly what was required...I'm sure I'll be disillusioned pretty damn quickly though with the next ones to go:rolleyes:

[jax007]

I have a number of CCAs which do not have the prescribed terms and are thereby unenforceable. I have therefore stopped making my monthly payments.

 

I continue to receive statements and/or letters re 'fulfilling my obligations' and there does not seem to be an end to it. I have written many times stating that they have not complied with my CCA request and because they have sent 'something' they consider they have.

 

Is there any point (or has anyone done this) in sending them a letter actually stating that what they have sent does not comply with the conditions of the Consumer Credit Act 1974 and is therefore unenforceable?

 

If the answer is 'yes' what exactly should I say to these people and should I be quoting the relevant sections of the Act?

 

Hope this makes sense (btw they are all credit cards).

 

Many thanks

jax

[mejules7]

hello,

could someone please help - my husband has a RBOS credit card, we sent them the cca which eventually after 2 months they sent us the application form stating that now they have provided the documents the debt is enforceable and they would be passing the debt to a collection agency. the collection agency have sent a letter that i have just recieved.

the letter states that they are passing this debt to their field team to visit my house, can they do this?

I still have not recieved the signed cca so are both RBOS and Intrum Justitia breaking the law.

Really confused as to what to do now can anybody help please?

 

Julie:confused:

[lexis200]

Hi jax

 

This is one I have used. It's an amalgam of a couple of letters I stowed away from these threads. The bits in bold regarding true copies were, from memory, from the OFT guidelines rather than something I have made up.

 

It also covers illegibility (as it was relevant to my application), but obviously it that's not the same for you you need to remove it and anything referring to it!

 

TBH, they don't need half the detail that's in there; they know all of it, they just assume you won't (which is why it's there, to show you do). They also won't stick their hands up shouting 'it's a fair cop, we'll zero your account' when they receive it. More likely is you'll get a generic letter touching half the points raised and ignoring the rest. It may however give you a bit of peace and quiet whilst they 'deal with your complaint'.

 

Oh, I've just remembered, don't sign it with your real sig, and you need to pop in a line about no calls regarding financial matters, everything in writing please.

 

There are reservations as to whether not complying with a CCA request actually places the account into dispute, but unless it does harm having it there (if anyone in the know can answer this, please do:)), I don't see why you shouldn't leave it in.

 

FORMAL COMPLAINT

ACCOUNT IN DISPUTE

 

Thank you for your recent letter sent to me, postmarked xxth November and received on the xxth November, the contents of which are noted.

 

I note that you have replied to the request I made in date by sending a copy of an application form. I must inform you that this is not sufficient to comply with my request and that your company is still in default under the Consumer Credit Act 1974 (the Act).

 

The Act demands that I be supplied with a true copy of any properly executed credit agreement that exists in relation to the above account, providing that a fee of £1.00 is paid. This fee was sent with my original letter, received at your offices on the xxth August.

 

You will be aware that sending an application form only is a breach of the Act and Consumer Credit (Agreements) Regulations 1983 as, apart from the information that the regulations provide that you may exclude, the copy must be a “true copy” of the agreement. For the avoidance of any doubt section 3(1) of the 1983 regulations shows that, subject to certain limited exceptions, any copy of an unexecuted agreement must be a ‘true copy’. This means that it must be identical to the agreement as presented or sent to the debtor for signature.

 

Section 3(2) of the same regulations states what may be excluded from copy documents: There may be omitted from any such copy- (a) any information included in an executed agreement, security instru*ment 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 there under as to the form and content of the document of which it is a copy.

What you have sent me does not have the required inclusions, and is not in the correct form.

 

As you will know, under the Consumer Credit Act 1974, a judge is not permitted to make any enforcement order unless the creditor can provide a true signed copy of the original credit agreement. This means that unless you can produce such an agreement, this alleged debt is not enforceable in law, as shown below.

 

s127(3) provides that the court may not make an enforcement order unless a document containing all the prescribed terms of the agreement was signed by the debtor

If therefore any of the prescribed terms is missing, or incorrect, the agreement is not enforceable against the debtor, and the court is precluded from making an enforcement order.

The document sent purporting to be a credit agreement does not contain any of the prescribed terms as required by section 60(1) Consumer Credit Act 1974. The Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) made under the authority of the “1974 Act” sets out what the prescribed terms are, I refer you to Schedule 6 Column 2 of SI 1983/1553 for the definition of what is required. I have not written them here for you as I’m sure you are well aware of them, suffice to say none of the terms are present in the document

 

I also am unable to read the information on one page of the Application form due to the utter illegibility of the copy. This in itself contravenes the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557).

 

Regulation 2 states:

2 Legibility of notices and copy documents and wording of prescribed Forms

(1) The lettering in every notice in a Form prescribed by these Regulations and in 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, apart from any signature, be easily legible and of a colour which is readily distinguishable from the .

 

You had until the 15th September 2008 to provide me with the true copy I requested. After that date you entered into, and currently remain in, default of my request.

 

In addition, I draw your attention to the Office of Fair Trading’s guidance on debt collection which was issued July 2003 (updated December 2006), relating to debt collections and what the OFT considers unfair. I have enclosed an excerpt from page 5 of the guidance which states:

 

2.6 Examples of unfair practices are as follows:

h. Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment

 

 

2.8 Examples of unfair practices are as follows:

k. not ceasing collection activity whilst investigating a reasonably queried or

disputed debt.

 

Whilst the account remains in dispute (for clarity, the lack of a compliant credit agreement is a very clear dispute), under section 78(1) of the Consumer Credit Act 1974 you may not enforce the agreement. This includes, but is not limited to, the following:

 

-You may not demand any payment on this account, nor am I obliged to offer any payment to you.

-You may not add any further interest or charges to this account.

-You may not pass this account to any third party.

-You may not register any information in respect of this account with any of the credit reference agencies. The requirement for consent to share data is a clear requirement of the Data Protection Act 1998. Any such attempts to share my data without my consent (given in the form of a signed credit agreement) will be met with a complaint to the Information Commissioners Office.

-You may not issue a default notice related to this account.

 

Please note that to register information with the credit reference agencies, or to issue a default notice, would also be in breach of Section 13.6 of The Banking Code, which stipulates that you can only register such information if the amount owed is not in dispute.

 

I am also giving formal notice that under Section 10 of the Data Protection Act I require you to cease processing any data in relation to this account with immediate effect.

 

I would ask that if it is not your intention to fully investigate my complaints, that you advise me of your final response at the earliest opportunity in order for me to escalate my complaint to the Financial Ombudsman Service.

 

Also, please ensure you enclose a copy of your standard complaints procedure so that I am aware of the timescales afforded to you.

I look forward to your prompt reply.

 

Hope this helps

 

Lexis:)

[lexis200]

Hi mejules

 

Send them this recorded delivery (amended to suit if you've not been getting the letters/phone calls), and keep one by the door in case someone does turn up (if you read through you'll see this actually rarely happens). If on the offchance you do find yourself face to face with a DCA monkey, hand them the letter and shut the door in their face.

 

Dear xxxx

 

Account Ref xxxx

 

Please be advised that I will only communicate with you in writing. I have noted your repeated attempts to contact me by telephone over the past few weeks/months and these have been duly logged by time and date.

 

Furthermore, should it be your intention to arrange a “doorstep call”, please be advised that under OFT rules, you can only visit me at my home if you make an appointment and I have no wish to make an appointment with you.

 

There is only an implied license under English Common Law for people to be able to visit me on my property without express permission; the postman and people asking for directions etc (Armstrong v. Sheppard and Short Ltd [1959] 2 Q.B. per Lord Evershed M.R.). Therefore take note that I revoke license under Common Law for you, or your representatives to visit me at my property and if you do so, then you will be liable to damages for a tort of trespass and action will be taken, including but not limited to, police attendance.

 

Yours faithfully/sincerely,

[jax007]

Thanks Lexis

 

Well I've sent letters pretty much stating these points (not spelt the sections out word for word - they can their own research on that one!!) but really stating they are legally obliged to send me a properly executed document containing all the prescribed terms, etc. This they have not done as a number of mine don't have any prescribed terms and they are still trying to collect, default me AND passing it around the DCAs like pass-the-parcel!!

 

Don't really want to ignore them but I have heard that Trading Standards are little if no use here - do you have any experience of them or have you gone on to a 'next stage' yourself?

 

jax

[Missy Allen]

My husband had a lease purchase agreement with Lombard for a trailer. At the time he was trading as a sole trader. I have a complaint with Lombard and they have informed me that I cannot take my complaint to the Financial Ombudsman as the agreement he has is non-regulated by the Consumer Credit Act. My husband sold the trailer and there is a shortfall under the agreement but it is in dispute and going through the complaints procedure.

 

What does this mean when the agreement is non-regulated? Is that good news for us or not?

 

Missy Allen

[lexis200]

Hi again jax

 

Just a quickie as I'm meant to be off on the school run:D

 

My experience has varied, Co-Op have ignored the above letter completely, HBOS sent 3 copies of the same illegible agreement with no prescribed terms, then proceeded to threaten court, then when that didn't work sent it on to another DCA (was already with BlairOS as on payment plan), who also sent a court notification. DCA 2 has been sent back under it's rock, and BOS/HBOS seem strangely reluctant to carry on with any legal threats...

 

Cap1 simply wrote and said 'our blank approximated application form covers us, so sod off' or words to that effect.

 

I'm really just trying to give them all the run around for a while, then hoping they get desperate/bored/frustrated enough with me that when I say they may as well zero the balance as they've got naff all chance of getting any money, they actually do think about it!

 

It's always worth complaining to the FOS. Aside from the fact the banks get charged £450 odd when a complaint is dealt with (:D), it give you a reference number which you can just keep quoting at them when they ignore you - ie; 'this is subject to a complaint to the FOS, leave me alone'. You will need a final response from the bank though, or it has to be 8 weeks since you sent in a formal complaint and it hasn't been replied to. Whilst it's unlikely to do too much instantly (the banks are just too rich and too powerful for a government body to want to do too much about them being gits), my hope is that if enough people complain when they treat us and the law with such contempt, eventually they will be forced to act.

 

must go now, I have to deliver cakes for the crimbo fair before getting kids out - it's all go here, the excitement never ends:D

[foolishgirl]

I have a number of CCAs which do not have the prescribed terms and are thereby unenforceable. I have therefore stopped making my monthly payments.

 

I continue to receive statements and/or letters re 'fulfilling my obligations' and there does not seem to be an end to it. I have written many times stating that they have not complied with my CCA request and because they have sent 'something' they consider they have.

 

Is there any point (or has anyone done this) in sending them a letter actually stating that what they have sent does not comply with the conditions of the Consumer Credit Act 1974 and is therefore unenforceable?

 

If the answer is 'yes' what exactly should I say to these people and should I be quoting the relevant sections of the Act?

 

Hope this makes sense (btw they are all credit cards).

 

Many thanks

jax

 

IMO there is no point in responding to these letters. If they thought they had a case they would issue court proceedings & if they did take it to this stage you would then have the absolute defence in that they haven't supplied an enforceable agreement. Writing to them just reminds them they are rattling your cage & will promote even more mail in the hope that you will get cheesed off enough to send them a big fat cheque.

 

I know they are annoying when they drop through the letter box but treat them the same as any other junk mail - ignore them but get a big box & file them away in a corner just in case you need to show them to a judge as eveidence of harrassment at some stage.

[mejules7]

Thanks for your advise, will keep you updated just printed off letters will send recorded in the morning.

Thanks again

[jax007]

I'm really just trying to give them all the run around for a while, then hoping they get desperate/bored/frustrated enough with me that when I say they may as well zero the balance as they've got naff all chance of getting any money, they actually do think about it!

Thanx Lexis - just really wondering how long this is REALLY going to go on for??!!

IMO there is no point in responding to these letters. If they thought they had a case they would issue court proceedings & if they did take it to this stage you would then have the absolute defence in that they haven't supplied an enforceable agreement. Writing to them just reminds them they are rattling your cage & will promote even more mail in the hope that you will get cheesed off enough to send them a big fat cheque.

 

I know they are annoying when they drop through the letter box but treat them the same as any other junk mail - ignore them but get a big box & file them away in a corner just in case you need to show them to a judge as eveidence of harrassment at some stage.

 

Thanx to you too FG - this is basically what I have been doing - most of those on the DCA-merry-go-round have given up and handed back to OC anyway. Even some of the solicitors have crawled back under their stones! Each new DCA gets a letter saying this account is in dispute with OC and the usual stuff about them not being able to chase a disputed debt and they too disappear or acknowledge that the account is in dispute.

 

You write and ask them for their proposals for a resolution but they never answer that question - just keep chasing the debt!

 

Do they EVER come back and write these debts off or can this go on for literally years?? Not sure how long my nerves will stand it LOL!! And if they do write it off, do they have to remove any defaults??

 

Thanks again guys

jax

[foolishgirl]

 

Do they EVER come back and write these debts off or can this go on for literally years?? Not sure how long my nerves will stand it LOL!! And if they do write it off, do they have to remove any defaults??

 

jax

 

The statute of limitations clicks in 6 years after you last acknowledged the debt, usually your last payment to them, so the letters can go on that long Learn to ignore them.

 

They are unlikely to write it off unless you offer a F&F settlement & even if they do, they won't admit that they don't have an enforceable CCA so you'd have difficulty removing the default although you could try. There are other threads on this forum dealing with this. Good news is that the defaults drop off after 6 years form their implementation anyway.

[jax007]

And there's no point tempting fate and taking THEM to court is it - or I have been advised?!

 

jax

[FANTASY CHARGES]

can the team please look at the following thread

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/171945-modified-credit-card-agreements.html#post1855065

[noomill060]

jax,of course you can take them to court.

 

You can ask the court to declare the rights of the parties.

 

This means the judge looks at whatever nonsense they supplied in response to your CCA request and, assuming it doesnt comply with the regs, makes an order that it cant enforced,ever.

[jax007]

jax,of course you can take them to court.

 

You can ask the court to declare the rights of the parties.

 

This means the judge looks at whatever nonsense they supplied in response to your CCA request and, assuming it doesnt comply with the regs, makes an order that it cant enforced,ever.

 

 

Yes Noomill I realize you CAN take them to court ... however, as we've seen on these threads you need a judge who understands fully the Act and I just wonder whether it's worth risking it even though you know your'e in the right!

 

It would be nice to draw a very thick black line under these though AND get any defaults, etc removed

 

jax

[lexis200]

IMO there is no point in responding to these letters. If they thought they had a case they would issue court proceedings & if they did take it to this stage you would then have the absolute defence in that they haven't supplied an enforceable agreement. Writing to them just reminds them they are rattling your cage & will promote even more mail in the hope that you will get cheesed off enough to send them a big fat cheque.

 

I know they are annoying when they drop through the letter box but treat them the same as any other junk mail - ignore them but get a big box & file them away in a corner just in case you need to show them to a judge as eveidence of harrassment at some stage.

 

I would say, playing devils advocate, that while ignoring them is probably fine when this has been going on for months and months, I'd consider it a bit risky to start doing it early on.

 

The trouble is as I see it, when bodies such as the FOS consider 4-6 months perfectly reasonable when looking into complaints regarding banks, and the banks themselves are afforded 8 weeks just to come up with a final decision, I don't feel it would reflect too well on you to get to court and have to say 'well your honour, yes they did write, and I have all the letters here, but quite frankly they'd irritated me by week 6 so I didn't bother replying'

 

Also, would I be right in saying if you happen to ignore some of the court documents they can end up winning simply because you haven't filed a defence/turned up? Not sure on that one, but it's ringing a bell I think:confused:

 

I'm probably at the over-cautious end of the scale though, as if I ever get to court with any of these I want to show how completely reasonable I have been, and how unreasonable they have been. If that means having to write a few more letters, I'm (at the moment!) happier to do that than leave it. Having said that we're only 5/6 months in, and I put a stop (mostly anyway) to phonecalls pretty early on so haven't really had that to deal with, which I would say is a far larger issue to cope with than having to deal with letters that can be answered in your own time.

 

Also, I spent a good few hours (by that I mean about 50:D) trawling for letters I could use as templates for the various c**p they send. I don't use them verbatum, but it certainly helps to have a frame so that it doesn't take too long. And I'm going to be claiming compensation from the FOS for all the letters sent/received!! Whether I'll get it or not is another matter, but it's worth a try!

[bad_manager]

i asked for a cca from halifax with whome i have a credit card. They sent me two pages. one page is the applicatioon form and the other cca. Now the cca has been scanned and printed. I belive they don't keep hard copies. The intresting part is that page is not readable. The print quality is very bad.

 

Is such an agreement enforceable. any advice from anyone.

[foolishgirl]

I would say, playing devils advocate, that while ignoring them is probably fine when this has been going on for months and months, I'd consider it a bit risky to start doing it early on.

 

The trouble is as I see it, when bodies such as the FOS consider 4-6 months perfectly reasonable when looking into complaints regarding banks, and the banks themselves are afforded 8 weeks just to come up with a final decision, I don't feel it would reflect too well on you to get to court and have to say 'well your honour, yes they did write, and I have all the letters here, but quite frankly they'd irritated me by week 6 so I didn't bother replying'

 

IMO very sensible, my policy too.

 

i asked for a cca from halifax with whome i have a credit card. They sent me two pages. one page is the applicatioon form and the other cca. Now the cca has been scanned and printed. I belive they don't keep hard copies. The intresting part is that page is not readable. The print quality is very bad.

 

Is such an agreement enforceable. any advice from anyone.

 

Could you post up the docs. for CAGers to see bad manager (without personal stuff obviously) please? You'll get more accurate advice that way.

[car2403]

Yes Noomill I realize you CAN take them to court ... however, as we've seen on these threads you need a judge who understands fully the Act and I just wonder whether it's worth risking it even though you know your'e in the right!

 

It would be nice to draw a very thick black line under these though AND get any defaults, etc removed

 

jax

 

If we all thought like this, we'd wouldn't have a National Lottery.