Cap1 & CCA return

[meagain]

Wait until 13/12/2006?

[clint1974]

Ok thanks!

[meagain]

URGENT

 

I need chapter and verse, as well as the actual text to back it up, to demonstrate that R3 of the 1983 regs does not apply to S78 requests, and thus the request remains unfulfilled. I have received a final demand this morning giving 14 days. It is dated 12 days ago (went to my old address, despite being notified of my current address). I have no money with which to buy a stamp (I am not joking).

[Number6]

URGENT

 

I need chapter and verse, as well as the actual text to back it up, to demonstrate that R3 of the 1983 regs does not apply to S78 requests, and thus the request remains unfulfilled. I have received a final demand this morning giving 14 days. It is dated 12 days ago (went to my old address, despite being notified of my current address). I have no money with which to buy a stamp (I am not joking).

 

That can't be done I'm afraid.

 

The Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 clearly states that R3 applies to all requests for documentation made under any section of the CCA 1974.

 

Has the lender sent you anything by way of an agreement? Anything at all? If so what have they sent?

 

If they haven't sent anything then they are in default.

 

If they have sent something unsigned then they can argue that they have fulfilled their obligations under S78 BUT they still haven't proven the agreement exists, to do this they will still have to provide the properly executed and signed agreement, if necessary before a judge.

 

What's the current position exactly?

 

Pete

[clint1974]

After speaking to both Barclaycard & Rbs they have both said they are going to send me "something" Does not sound to me like that "something" is what was requested though, so i shall wait and see

[meagain]

That can't be done I'm afraid.

 

The Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 clearly states that R3 applies to all requests for documentation made under any section of the CCA 1974.

 

So, in that case, I was right in the first place back when you lot were telling me it didn't apply?

 

Has the lender sent you anything by way of an agreement? Anything at all? If so what have they sent?

 

What I have is:

 

S78(1) says we have to send you this, but R3(2) lets us take some licence with it. So we don't have to send you a photocopy. R7 also says that if we change anything, we have to send you up-to-date terms as well. That's all there, with a statement, and a blank copy of the agreement.

 

Main details are set out below. $limit, $fee.

 

Then, what appears to be a document printed from a word processor rather than the actual form:

 

This is a copy of your Agreement for you to keep. It includes a note about your cancellation rights, which you should read.

 

Credit Card Agreement regulated by the Consumer Credit Act 1974.

 

$parties, $limit-blurb, $repayment-blurb, $apr, $total-charge, $interest-rates, $interest-blurb, $allocation-blurb*, $charges "You must also pay our costs ..."

 

Yours sincerely

 

What immediately stands out there is the lack of note about cancellation rights.

 

Next in bundle is a statement for October.

 

Then is a photocopy of the entire leaflet for the original T+C. Then the amendments. Then comes the photocopy of parts of the blank form - namely the T+C, the cancellation form (missing the information presented on the first page, the original rates, charge, etc.)

 

If they haven't sent anything then they are in default.

 

The overdraft response was "not covered by CCA", despite the very clear example that the CCA provides to the contrary. Which should be good, because that one's bigger.

 

If they have sent something unsigned then they can argue that they have fulfilled their obligations under S78 BUT they still haven't proven the agreement exists, to do this they will still have to provide the properly executed and signed agreement, if necessary before a judge.

 

So, can I force them to fork over a signed copy beforehand, since evidently I can't rely on the non-fulfilment of S78 as things are.

[meagain]

PS - the final demand also says this will be recorded with the CRAs, despite the fact that I have served S10 notices on them. Should I get in touch with I.C.O. as well?

[Number6]

After speaking to both Barclaycard & Rbs they have both said they are going to send me "something" Does not sound to me like that "something" is what was requested though, so i shall wait and see

 

I wouldn't hold your breath re either of those. I'm still waiting..... for them to send me anything at all! Three months now nearly and despite them being informed several weeks ago that I don't acknowledge any agreement or debt!

 

Pete

[Number6]

So, in that case, I was right in the first place back when you lot were telling me it didn't apply?

 

Now don't be cheeky It's complicated! The problem is it does seem to apply but it's illogical because why would a lender send you a "generic" copy if they have the original when they know full well that to prove the agreement they'll have to provide a copy of the original and properly executed agreement anyway - it's not a sensible course of action. Anyone that does this doesn't have the original IMHO.

 

 

So, can I force them to fork over a signed copy beforehand, since evidently I can't rely on the non-fulfilment of S78 as things are.

 

You can't say that they haven't complied with S78. What you can do is say to them that they haven't proven the agreement, please send a copy of the properly executed agreement according to S61 of the CCA 1974. If they plan to take you to court then they'll have to provide the agreement anyway so point out that it wouldn't look too good if they refuse to send it and then later rely on it in court.

 

Pete

[Number6]

PS - the final demand also says this will be recorded with the CRAs, despite the fact that I have served S10 notices on them. Should I get in touch with I.C.O. as well?

 

You can but the ICO is as much use as a chocolate fireguard. The bank will go ahead regardless; you can threaten them with court action if they do but then you'll have to follow that through if needs be and that can get messy.

 

Pete

[meagain]

At this point, since it's now over 3 weeks since the date on the response (which might have arrived within the 12+2 - I'd have to double-check my original request), I'm wondering whether it would be seen as bad faith if I were to wait just a little longer to make such a request, citing that the deadlines from the original request (i.e. "You will have committed an offence within X days of this letter"). Of course, I have my excuse for the delays - I am taking counsel from many different people at vast distances from home (while also keeping my own - very important, that part).

[breadline]

I have a situation which needs the original copy to be viewed, upon signing the original copy I belive i had requested PPI, thisis crossed and signed for on teh original agreement, however there has been no PPI set up on the loan. They can send me what the agreement would have looked like but it won't solve the problem.

 

I was hoping my request for the original on grounds of my complaint would warrant even more the original being made available to me.?

 

any thoughts appreciated.

 

BL:)

[emmaphill]

Hi All

 

Was wondering if you could help a little! I sent a cca request to Droyds debt collection agency regarding a debt to Vertbaudet for £130.41. This was because i can honestly not recall it. Today i received a letter which included a blank credit agreement and a computer printout stating a balance owing of £130.41 but not stating what for. They are saying that these enlosures comply with the request as a signed copy is not required under regulation 3. My question: does that mean i just have to pay up even if i dont know what for?

 

Thanks in advance!

 

Emma

[breadline]

Hi All

 

I sent a cca request to Droyds debt collection agency regarding a debt to Vertbaudet for £130.41.

 

have you done a SAR at any time?

[emmaphill]

No not yet. Will this mean i may get the info i need? I know its only a small amount but why should i pay for something i cant recall!

[breadline]

If its a debit that originated form lloyds the S.A.R - (Subject Access Request) will tell you every thing.

You shouldnt have to pay for anything you have no information about.

 

Get the SAR off with £10 and they have 40 days to reply.

 

If you have a debit collection company on your back you could ask them for the written documment which gives them the right to collect the loan. The documnet would have been given to them as they took over the debit

 

LLoyds are the hardest and in my eyes the most unlawfull players in main stream Banking and how they are getting away with thier bullying is discussting.

[clint1974]

i recieved a copy from rbs signed by me, but Barclaycard have just sent a copy of the act no box to sign or sinature and just asterixed the main point of it!

[tamadus]

It's starting to look like the scenario we talked about a few weeks ago is coming true.

 

Does nobody think it strange that so many are only sending out blank agreements, application forms etc ?

 

I may be way of base here but I think they don't have these agreements, otherwise they would be able to settle everything with one letter.

 

Barclaycard are still very quiet after I told them I was cancelling all payments until they could show me the proper agreement. I have a sneaky feeling they are going to regret trying to hide behind the microfiche argument as a lot of people are now sending sec.77/78 requests which they can't satisfy fully.

[MoonHawk]

Does nobody think it strange that so many are only sending out blank agreements, application forms etc ?

 

I may be way of base here but I think they don't have these agreements, otherwise they would be able to settle everything with one letter.

 

Maybe they saw this coming and it is the reason they pushed the amendment in CCA 2006 to remove the total unenforceability of an agreement due to it not being properly executed.

 

Best Wishes

MoonHawk

[Number6]

I have just received the following letter from the DTI, via my MP:

 

Foreign & Commonwealth Office

November 2006 Rt Hon an McCartney MP

MINISTER FOR TRADE, INVESTMENT AND

FOREIGN AFFAIRS

 

Michael Foster MP Our Ref: TG1598480

House of Commons

London

SW1A OAA

 

Re: Consumer Credit Act 1974

 

Thank you for your letter of 31 October to Alistair Darling, enclosing correspondence from your constituent, Number6 of Worcester, about the Consumer Credit Act 1974 (CCA) and its operation in conjunction with the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (CCR). I am replying as this matter falls within my portfolio.

 

Your constituent has noted that the CCA gives the borrower the right to demand a signed copy of the agreement between the parties. Your constituent is aware the Department has replied to his colleague within the CAG stating it believes that the CCR does indeed apply to CCA S. 77 and 78 - Interesting. Yes I am aware but how does the DTI know that I'm aware?. The CCR exempts the lender from having to provide the signed versions of the documents. Your constituent believes that this opens the door to ‘unscrupulous lenders’, who may use copies of application forms received by them to falsely allege the existence of a contract where there is none; for example, where the application was rejected by the lender or no such contract ever existed.

 

Your constituent states his belief that vulnerable consumers may be at a disadvantage as they could be led to believe that they have a contract with the company when they do not. Your constituent believes that ‘unscrupulous lenders’ may allege contracts and require consumers to pay money that they don’t owe by presenting copies of, for example, failed application forms. As the companies do not need to present signed copies of any alleged agreement, your constituent believes this creates a legal loophole which may be used to entrap consumers. Also, your constituent believes that consumers lack the opportunity to get free advice about debt and they could be deterred from taking legal action on a cost basis.

 

In the situation described above, ‘unscrupulous lenders’ are breaking the law by demanding money not owed to them and this would be a matter of fraud rather than consumer credit. While the potential exists for the scenario outlined above, we have yet to receive evidence that this is a real problem that affects many consumers.

 

If this situation was to arise, I believe a vulnerable consumer should have access to good, free legal advice. The Government is particularly concerned to ensure that consumers are able to access timely and appropriate advice.

The Government funds Consumer Direct which offers free help to all consumers and can be called on any consumer matter. Ifa consumer were to ring them, then it is possible that they may be able to point out the falseness of the contract.

 

On specific issues of consumer debt, we have been working extremely closely with the free debt advice sector to improve its capacity to deal with clients, introduce sustainable funding thus preventing the uncertainty currently being experienced, and improving standards within the sector.

Increasing capacity is obviously a vitally important part of this work. We aim to do this by developing a Gateway to the free debt advice sector, particularly telephone-based services. These will ensure consumers are directed to the most appropriate service for the circumstances reducing pressure on services, which are often overwhelmed by callers who would best be helped elsewhere. This goes alongside increased funding for the free telephone based services, which allow them to deal with more clients.

 

The Government has awarded the £45 million of the Financial Inclusion Fund allocated to free face-to-face debt advice to 14 projects across England and Wales. The funding will be split over a 2-year period - £15m in 2006-7 and £30 million in 2007-8 and will fund around 450 new advisors.

 

The primary aim of this project is to deliver an increase in the number of advisers, and in the number of hours of advice provided, within financially excluded areas and to disadvantaged social groups.

 

IAN McCARTNEY

 

 

I'm writing back to query certain aspects and I'll update when I know more.

 

Pete

[Guest The Terminator]

Pete: Just read the response from the MP that you posted.My first thoughts are that he has tried to paper over the cracks.It is obvious to everyone on this forum that if there is no evidence of a valid contract being in place then any alleged debt is unenforceable.It's amazing that the Minister didn't pick up on this and about" unscruplous lenders" which I beleive are very valid points.It's a typical response from a politican and it may be an idea if the group as whole put on more pressure as it is evident that the lenders are not fullfilling their obligations under the Act.

[Guest The Terminator]

It's starting to look like the scenario we talked about a few weeks ago is coming true.

 

Does nobody think it strange that so many are only sending out blank agreements, application forms etc ?

 

I may be way of base here but I think they don't have these agreements, otherwise they would be able to settle everything with one letter.

 

Barclaycard are still very quiet after I told them I was cancelling all payments until they could show me the proper agreement. I have a sneaky feeling they are going to regret trying to hide behind the microfiche argument as a lot of people are now sending sec.77/78 requests which they can't satisfy fully.

 

The point is Tam that they don't have the agreements.I have specifically asked MBUSA and Humpty for a copy of the original agreements and they have informed me that they are only kept for a period of three years.Surprise Surprise!! Which leads me to another point about these showers of s--t.If this is their policy then after three years they destory the original agreement then where is the evidence that it actually existed.The whole point of the judical system is that evidence is 9 parts of the law so the way that I see it is that no agreement = no evidence = no debt.Onus of proof is on the lender if he cannot produce the original documents then the contract is null and void.

[Joons2]

Terminator,

 

Two issues are getting confused and must be seperated.

 

First is the meaning of the legislation as clarified by the MP. This is clear and on re-reading all the relevant legislation there is not reasonable scope to interperet this is any other way that the court will accept. The courts take things quite literally.

 

Second issue whether there is any evidence of a contract between the parties outside of the signed agreement itself. Banks will be able to show whether someone has been paid a loan and if so where it has been paid to, ie another bank account in the borrowers name. If the agreement is for a credit card or overdraft then the bank will be able to show the financial history and usage of the account. They will also be able to show all of the correspondence exchsnged over the years.

 

The courts are not stupid and will infer from reasonable evidence that you do have an account or loan with them.

 

On a more important note you should realise that in any contract with a bank there is a clause saying that you will indemnify them for any costs they incur in recovering monies from you. If you force them to go to court on the basis of (1) a clear missinterpretation of the legislation which you ther is no chance of winning on, and (2) by just denying that you have any contract with them just to be difficult, then you should be aware that this will not be looked upon very favourably by the judge and will end up paying costs that could be substantial.

 

I am not saying dfon't do what you want to do but these are jsut a couple of important points to remember.

[Number6]

I intend to submit this request for further clarification. I would welcome comments before I send it:

 

Dear MP,

 

Thank you for your letter of 21st November enclosing a copy of a letter from the Rt Hon Ian McCartney MP concerning the Consumer Credit Act 1974 (The Act) and the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (CCR).

 

Ian McCartney confirms that the CCR exempts a lender from providing copies of the signed original documents in fulfilment of a Statutory Demand under Sections 77 and 78 of The Act.

 

For the benefit of myself and my collegues within CAG could the DTI please confirm what, in the opinion of the DTI is an acceptable form of copy for a lender to provide following such a demand?

 

Section 77 and 78 of The Act states:

 

"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"

 

Note the reference to "executed agreement". In order for an agreement under The Act to be properly executed Section 61 of The Act states:

 

"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 or owner, and

 

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

 

©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.

 

So The Act states that the agreement must be signed by both parties to the agreement, must contain all of the terms of the agreement and be clearly legible. Unless ALL of these conditions are met the agreement is not properly executed and cannot be enforced except by a court order.

 

Could the DTI then please explain the purpose behind the CCR allowing a lender to send an unsigned piece of paper which may or may not contain the terms of the original agreement and does nothing to confirm the legibility or otherwise of the original?

 

In the case of a disagreement between a lender and an alleged debtor the only way the lender could prove the debt exists would be to provide the original signed and executed agreement so why not produce it in the first place? The only reason that I and my CAG colleagues can think of for a lender to produce an unsigned "copy" is if the original does not exist, in which case no purpose is served. In fact no purpose is served either way, whether the agreement exists or not except possibly to coerce an individual who is unaware of their rights into accepting an unlawful agreement.

 

Furthermore it has been drawn to my attention that the 2006 Consumer Credit Act (CCA2006) will remove the safeguards currently conferred by Section 65 of The Act (1974), namely that an improperly executed unsigned "agreement" cannot be enforced by a court. I am advised that the CCA2006 will allow enforcement of a debt without requiring the production of any agreement. Would the DTI please clarify this point urgently.

 

Would the DTI also confirm on what date the CCA2006 comes into force and whether agreements allegedly entered into prior to this date will be subject to its new provisions.

 

To summarise can the DTI:

 

1) Please confirm for the benefit of myself and my collegues within CAG what, in the opinion of the DTI is an acceptable form of copy for a lender to provide following such a demand?

 

2)Please explain the purpose behind the CCR allowing a lender to send an unsigned piece of paper which may or may not contain the terms of the original agreement and does nothing to confirm the legibility or otherwise of the original?

 

3) Explain the apparent removal of the current safeguard afforded by Section 65 of The Act.

 

4) Confirm the date that CCA2006 comes into effect and whether agreements made prior to the enactment date will be subject to it's provisions in any way.

 

Once again, thank you for you help.

 

 

Yours sincerely,

[mcuth]

Looks good to me Pete - nice one

 

Cheers

 

Michael