Cap1 & CCA return

[davefirewalker]

What bank / CC provider / loan co. ?????

 

Dave

[pford]

Pford

 

You are quite correct - they are wrong.

 

Write back and ask them where exactly in the 2006 Act does it specifically relate to agreements prior to its implementation date. Then tell them that they have run out of time and have committed an offence and are in default under the Act. spell it out what they cannot do.

 

Z

 

Thanks for the reply any suggestions on the content of the letter

[angry cat]

Hi Guys!

 

Thought that you might enjoy seeing the two bright white shiny new pieces of paper that were sent to me by MS on 17 February 2007.

Please note the differing dates on the front, MA100040N9999 05/06 and at the bottom MS Bnk Cut 12/04

credit limit zero and on the reverse penalty charges are quoted at £12 as opposed to £20!

 

 

and the reverse:-

 

MS do not have an agreement...so it appears that they knocked this up

 

Incidentally, I do not have a MS cc Therefore obviously nothing, no card was attached.

 

 

AC

[elizabeth1]

Waheeeey just received a cheque for my sec 85 claim. Post details later.

 

Paul

Hey well done!!! Nice to see that won!!!

[Guest Battleaxe]

Opps MS are playing the silly games Crap One played with us, gave us one with the £12.00 charges on it. hahahahaha

[angry cat]

Firstly, paulwlton...excellent news!! and good for you.

 

Secondly, yes Battleaxe...I thought that you would enjoy my photobucket pics.

 

MS are reliant upon 1983 Regs..regulation 3.

TS do not agree, due to regulation 7.

 

TS have insisted that MS write to me to explain their view!?

Nothing has arrived yet. However I will post the waffle if and when it arrives.

I am aware of what they said to davefirewalker...I guess that I will probably receive the same kind of explanation of the MS view.

 

Love AC

 

Love AC

[pford]

put this together any suggestions

 

Thank you for your letter dated the 3rd May 2007 and you comments are noted.

 

As advised in my last letter dated the 30th April 2007 you have a LEGAL OBLIGATION under the Consumer Credit Act 1974 section 78 to supply this information upon request which was made on the 11th July 2006. Failure to comply with a valid request within a period of 12 days (not including the date of receipt of the request) he may not enforce the agreement at all. This prevents enforcement with or without a court order. If a default lasts for a month (for example a calendar month) it constitutes an offence under the said ACT summarily punishable by a Level 4 fine on the standard scale.

 

Consequently I do not acknowledge any debt to the Halifax.

You have had more than enough time to comply with my request. Yet you believe that you are under no such legal obligation to supply the documentation in question under the new terms of the Consumer Credit Act section 15, where exactly in the Consumer Credit Act 2006 does it specifically relate to alleged agreements entered into prior to its implementation date of the said ACT?

 

In any event, I shall expect a written confirmation from you acknowledging the contents of this letter within 5 working days, as per the requirements of section 15.3 of the Banking Code.

 

Yours faithfully

[rippedoffagain]

The Halifax have sent me a copy of an application form, no prescribed terms etc.

They then sent me a set of terms and conditions. I have read the application form, the terms and conditions and the banks standard current account terms and conditions, and nowhere does it state that they can transmit my personal data to third parties, other than insurance companies with regard to PPI or card protection.

[paulwlton]

My Letter

Date 19/03/07

Dear Madame

In response to your letter dated 13 March 2007.

I dispute the debt on two grounds. You state in your letter that you have complied with sec 78 of the Consumer Credit Act 1974. I contend that you have failed in your obligation has your response does not comply with the requirements under the SI 1983 The Regs No 1557 2 (1). You also state in the above letter that my Credit Card has never been renewed; this statement appears to be incorrect. I would like to draw your attention to sec 85 of the said Act, sec 85 is clear and unambiguous it clearly states that one of the required documents i.e. a copy of the executed Agreement is to be supplied when a Credit Card is renewed and by not supplying one you fail in your obligation under the Act.

On the first of May 2005 my Credit card was renewed. I contend that the Agreement has been unenforceable from this date due to a state of default and has subsequently led to an unjust enrichment. To remedy this I require the refunding of monies taken, I have calculated this to be £224.57.

I will not be making any more payments towards this debt until the dispute has been resolved I hope we can reach an amicable agreement and settle our differences without the need for court action. However, if need be I will vigorously contest any court action you decide to take.

Yours Faithfully

 

 

 

The response

 

I write further to your letter of 19th March 2007 the contents of which have been noted.

 

Hwever, following our telephone conversation today, i am very pleased that we were able to reach an agreement to settle this enquiry for the amount outlined in your letter.

 

Please, therefore, find enclosed a cheque for £224.57 in full and final settlement. In addition to this payment, i have refunded the two charges of £12.00, which wereapplied to your acount whilst this account continued to be in dispute.

 

Paul

[ian1969uk]

Nice one Paul, which lender was it?

 

It will be interesting to see what happens when the amount at stake is much larger, some S85 defaults must run into thousands.

[voyager9]

hi sorry to jump in but could anyone have a look at a agrement in my thread and comment on letter i have written thanks

voyager

 

http://www.consumeractiongroup.co.uk/forum/other-institutions/87130-voyager9-littlewoods.html

[Peterbard]

Hi

Regarding earlier comments on this thread about how a document could be enforced if it had the sigs and prescribed terms.

Just to add, of course anything could be enforced the court has the power, no more section127(3) on contracts dated on or after 6th April so all bets are off. No more unenforceable agrements they could enforce a bus ticket.

The question is, is it likely.

I would say as likely as a judge confusing an application form for an aggreement.

 

Lets hope i am right

 

Peter

 

Peter

[pford]

Hi

Regarding earlier comments on this thread about how a document could be enforced if it had the sigs and prescribed terms.

Just to add, of course anything could be enforced the court has the power, no more section127(3) on contracts dated on or after 6th April so all bets are off. No more unenforceable agrements they could enforce a bus ticket.

The question is, is it likely.

I would say as likely as a judge confusing an application form for an aggreement.

 

Lets hope i am right

 

Peter

 

Peter

 

Just to add to this very interesting post about the implications of the cca 2006 s.15 aspect by Richard Spud

 

http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/87159-balir-oliver-scott-2.html#post797483

[davefirewalker]

Hi Guys!

 

Thought that you might enjoy seeing the two bright white shiny new pieces of paper that were sent to me by MS on 17 February 2007.

Please note the differing dates on the front, MA100040N9999 05/06 and at the bottom MS Bnk Cut 12/04

credit limit zero and on the reverse penalty charges are quoted at £12 as opposed to £20!

 

 

MS do not have an agreement...so it appears that they knocked this up

 

Incidentally, I do not have a MS cc Therefore obviously nothing, no card was attached.

 

 

AC

 

Hi AC

 

they sent me the exact same thing....... and a few fob off letters since

 

but the have picked on the wrong guy if the want an easy ride......

 

I am so having a go at them

 

Dave

[InKogneeToh]

Sorry - wrong thread!

[angry cat]

Hi AC

 

they sent me the exact same thing....... and a few fob off letters since

 

but the have picked on the wrong guy if the want an easy ride......

 

I am so having a go at them

 

Dave

 

Hi Dave...I take comfort in the fact that I am obviously not alone!

 

As you know I have reported the Offence to my local TS who in turn reported it to the Tower Hamlets TS.

MS are reliant upon 1983 Regs. regulation 3 and because of that reg., state that they have complied.

TS do not agree due to 1983 Regs. regulation 7.

 

To date MS have not put into writing to me regarding their regulation 3 argument. However, TS have insisted that MS write to me setting out their view and apparently I should receive their letter shortly...Hmmm!?

I am sure that if I receive the aforementioned correspondence, it will be jargon and waffle.

Perhaps a similar letter to yours:-

http://www.consumeractiongroup.co.uk/forum/general-debt/84285-ccas-dave-against-world.html?highlight=davefirewalker#post760385

 

Morgan Stanley have picked on the wrong person if they think that they can get away with this blatant deception, I will fight them to the bitter end.

 

AC

[InKogneeToh]

Hi Dave...I take comfort in the fact that I am obviously not alone!

 

As you know I have reported the Offence to my local TS who in turn reported it to the Tower Hamlets TS.

MS are reliant upon 1983 Regs. regulation 3 and because of that reg., state that they have complied.

TS do not agree due to 1983 Regs. regulation 7.

 

To date MS have not put into writing to me regarding their regulation 3 argument. However, TS have insisted that MS write to me setting out their view and apparently I should receive their letter shortly...Hmmm!?

I am sure that if I receive the aforementioned correspondence, it will be jargon and waffle.

Perhaps a similar letter to yours:-

http://www.consumeractiongroup.co.uk/forum/general-debt/84285-ccas-dave-against-world.html?highlight=davefirewalker#post760385

 

Morgan Stanley have picked on the wrong person if they think that they can get away with this blatant deception, I will fight them to the bitter end.

 

AC

 

Hi

 

If all that MS has sent you is this new generic version of

'an agreement' (complete with the new default charge of £12!) then they definitely have not complied, because this is not the agreement that was executed. A copy of the agreement that you signed would show the original default charge amounts for a start! It also would not have quoted a Total Charge for Credit, as this is a new requirement under the 2006 CCA amendments.

 

But I am very confused as to why TS are referring to section 7 of the 'copies and Notices' regs:

 

7.--(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.

(2) Where a security provided in relation to a regulated agreement has been varied, every copy of the security instrument relating to it given to a debtor, hirer or surety under any provision of the Act shall include either-

(a) an easily legible copy of any document varying the security; or (b) an easily legible statement of the terms of the security as varied.

As far as I can see, this section applies where an agreement has been varied (where this is allowed in the agreement) and requires that in addition to the copy of the executed agreement, the creditor must send a copy of any notice of variation that might have been previously sent to you, or a statement of the varied terms.

 

The rest of this section applies to agreements where security has been provided.

 

I don't see how this relates in any way to the core requirement for the creditor to send a copy of the original executed agreement (with or without signatures, as is permitted)?

 

Regards, Pam

[davefirewalker]

Hi Pam

 

I am also confused now....

 

in my letter they ARE relying on reg 7

 

--------------

 

True Copy

 

Section 78(1) of the Act states that, amongst other things, the creditor shall give the debtor a copy of the executed agreement. The Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (“the Regulations”) provide that any copy of the agreement supplied to a debtor should be a ‘true’ copy. Regulation 3(2) provides that a copy may omit certain information, including the signature box, signature and date of signature.

 

The copy provided by us to you is a ‘true’ copy even if the signature box and/or signatures are not included.

 

An agreement which has been varied

 

As the terms of your Agreement have varied since you originally applied for a credit card, Regulation 7 of the Regulations allows us to provide you with a “true copy” which sets out the terms and conditions current at the time of provision of the copy.

 

As the copy of the agreement sent to you on 27 March 2007 represents the present terms of your agreement, we have provided you with a copy of the executed agreement as prescribed by section 78 of the Act.

 

----------------------

 

they are so wrong

 

Dave

[InKogneeToh]

 

I am also confused now....

 

in my letter they ARE relying on reg 7

 

--------------

 

 

Well, I am EVEN MORE confused now!

 

AC has stated that TS are relying on section 7 to show that MS have not complied, but you are now saying that MS are relying on section 7 to show that they have!! :???:

 

Regards, Pam

[ripoffstopper]

Hi guys, just subscribing.

Cheers ROS

[ripoffstopper]

HELP PLEASE.......

 

NatWest are in breach of a CCA 1974 Section 77/78 request. They have written to me saying that they cannot provide a properly executed copy of my credit card agreement. However they have passed the debt to Triton Credit Services who have written to me about settlement.

 

Am I right in thinking that whilst they are in breach of a CCA request they cannot pass the debt to a DCA?

 

Coincidentally Capital One have just done the same - different DCA though - no copy of card agreement but pursuing the debt.

I requested advice in a seperate thread - see below - but none was forthcomming

 

"NatWest in breach of CCA 1974 what now?"

 

Any advice will be gratefully received, Cheers ROS

[Rhia]

Natwest has said that? In writing? Perfect. Write to the DCA include a copy of the letter. Tell them you do not recognise this debt and that without a properly executed agreement (in this case any agreement) it is unenforceable in court. Any attempts to pursue this will be vigorously defended. Also check if they have any defaults against you and you must insist they remove them within five days. If they don't send a letter before action and take out an N1 against whoever is registering your personal data. You would also be entitled to complain to Trading Standards and the Information Commissioner and I would do so.

[davefirewalker]

you are correct in that whilst in default they can no longer take any action regarding the debt. this includes passing it on to third parties.

 

I would write them a letter telling them that they are in default of your s78 request and until they produce the docs they cannot take any further action. however as they are in default and have comitted an offence you will be reporting them to the regulatory bodies concerned. cc this to the dca and sit back and wait for the fun to start.

 

rgds

 

Dave

 

send something like this, suitably edited of course

 

---------------------------

 

I refer to my letters dated XXXXXXXX which was delivered via recorded delivery to your offices on XXXXXXXX, and my follow up letter dated XXXXXXXX.

 

In my letter xxxxxxI made a formal request for a copy of the signed, executed credit agreement for the above numbered XXXXXXXX account under section 77(1) and section 78(1) of the Consumer Credit Act. In addition a statement of my account should have been sent along with any other document mentioned in the credit agreement.

 

The Consumer Credit Act allows 12 working days for this request to be carried out before your company enter into a default situation. If the request is not satisfied after a further 30 calendar days, Your company commit an offence. These time limits expired on XXXXXXXX and XXXXXXXX respectively.

 

As you are no doubt aware subsection (6) states:

 

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.

 

Therefore as at XXXXXXXX this account became unenforceable at law and it is now my intention to refer this matter to the enforcement authorities.

 

Any default notices or adverse comments your company have recorded on my credit reference file should be immediately removed.

 

Failure to respond favourably to this letter within seven (7) days of receipt will result in immediate litigation being commenced against your company without further notice.

 

I await your rapid response.

[ripoffstopper]

Thank you Rhia and davefirewalker for your replies. Dave, I did send a letter along the lines of your suggested draft on the 23rd April and I copied the OFT and FSA informing them of the breach of the CCA.

 

The OFT have not responded and the FSA replied that they are unable to intervene in individual cases. They go on to say that CCs do not come under their remit.

 

In the meantime NatWest have done what they will always do and that is to carry on sublimely ignoring anything that they choose to regardless of the law or public opinion.

 

So they have sold the debt whilst being in breach of the CCA1974 S77/S78 for failing to provide a copy of the properly executed document and I quote..."It is not that I am refusing to send you a copy of the original agreement, the reason I am not able to send this to you is because I have not been able to locate it. After a number of extensive searches, it has not been possible to find the original agreement for this account" ... and this was signed by a senior customer advisor.

 

So Rhia in the light of this info is it OK to write to the DCA along the lines you've suggested? Cheers ROS

[Rhia]

Yes. Most definitely and the DCA should refer it back to Natwest. I wouldn't let up on either party though as it may come back to bite you. Lay it to rest once and for all and use all the statutory bodies you can.

I would send it in writing to your local Trading Standards office. I and others have amixed experience of TS but I think this is so obvious they must act.

What you want is for Natwest to say officially that because they cannot find this agreement the debt will have to be written off. If they really don;t respond there is nothing to stop you taking out a civil action. If you have written as Dave suggests alter it slightly with a clear heading LETTER BEFORE ACTION. Tell them that they have failed to reply to your letter dated XXX.Unless they produce the agreement you will have no option but to start court action. Give them a get out and say if they have no agreement they will be unable to pursue you, process your personal data or assign this debt to a DCA so you would like a letter saying that they agree not to do any of that and give them a reasonable amount of time to reply - say 14 days and warn them you will issue an N1 and mean it. It may concnetrate their minds. Also justa thought I would find out the name of their legal person and not bother with customer services. they have no legal training and will be unable to appreciate just how much trouble Natwest is in. Illegally processing your personal data alone can attract a prison sentence. Hope this helps