Cap1 & CCA return

[Peterbard]

hI

There seems to be a spate of replies from the OFT lately.

I got this yeterday. Reading between the lines it would appeat that i am getting up someones nose, the letter is the best example of how to avoid an issue I have seen in a long time.

 

Dear Mr Bardsley

I refer to your email to Ms Edwards dated 19 September 2007 concerning requests made under Section 77 of the Act. Your email contains a letter regarding which you are seeking the Office of Fair Trading's (OFT) opinion as to the content of the letter and advice on where to direct it.

Unfortunately, the OFT cannot express an opinion on the matters set out in your letter since it has not had sight of the information upon which your views are based. I should add that the OFT cannot in any event express such an opinon. Equally, as it appears that you have already contacted Local Authority Trading Standard Services and the Department for Business, Enterprise and Regulatory Reform (formerly the Department of Trade and Industry) in addition to the previous correspondence with the OFT, I am unable to suggest other avenues of approach.

I note your comments in respect of the intention of Section 77 of the Act. Our understanding is that Parliament intended that the debtor should, on request, be able to access sufficient information in order that he might know the full extent of his financial obligations under an agreement at any time during the currency of that agreement. It was not intended primarily as a method of challenging agreements or, as appears to be occuring more frequently, as a mechanism for avoiding legitimate obligations.

You assert that the OFT appears to have advised businesses on this matter. The OFT does not provide advice to consumers or to businesses but rather may express a view which ultimately a court may or may not agree with since only a court can render a definitive view of the law. I am unable to comment on views expressed by Local Authority Trading Standards Services since they are separate bodies and under no obligation to agree with the OFT's view.

I further note that you refer to conflicting advice given by the OFT and Trading Standards Services. As already indicated the OFT does not give specific advice to consumers or businesses. As a general point the OFT does suggest to consumers that they may wish to seek professional assistance relevant to their own particular circumstances, such as that available from Citizens Advice Bureaux amongst other organisations.

You also refer to a particular letter from the OFT to a consumer stating that it was sufficient for the creditor to 'reconstruct' an agreement where the original was not available. The OFT's view is that rather than supplying a carbon copy of the original agreement a creditor may supply a 'reconstruction' only in the sense that it is providing exactly the same information as appeared on the original agreement. By definition this requires that the creditor has the original in order to be certain that the details are accurate. If it cannot be certain then it will have considerable difficulty in complying with a request made under Section 77. Further the creditor would still have to have the original in order to enforce the agreement. We are not aware of any letter making the assertion you suggest, however if you have details we would welcome sight of it.

Where it has evidence, the OFT can and does take action against businesses which act unfairly or improperly or fail to comply with the requirements of the Act. Your email indicates that you are aware of instances where, in your opinion, creditors have not complied with the Act. If you have evidence of such non-compliance we would be happy to receive it.

I hope the above clarifies matters.

Yours sincerely

Henry Aitchison

Consumer Credit Enforcement

 

 

Yes Henry it certainly clarifies a lot to me particularrily the attitude of the OFT towards consumers "It was not intended primarily as a method of challenging agreements or, as appears to be occuring more frequently, as a mechanism for avoiding legitimate obligations."

It would seem that in the OFT's opinion this is what we are doing when we insist the creditors comply with regulations.

 

 

"The OFT does not provide advice to consumers or to businesses "

Who exactly are thoe thousands of pamphlets and information leaflets issued every year by the OFT aimed for?

 

 

"I am unable to comment on views expressed by Local Authority Trading Standards Services since they are separate bodies and under no obligation to agree with the OFT's view."

NO but the TS and the banks are quite happy to quote the OFT guidlines when questioned .

 

 

"The OFT's view is that rather than supplying a carbon copy of the original agreement a creditor may supply a 'reconstruction' only in the sense that it is providing exactly the same information as appeared on the original agreement. By definition this requires that the creditor has the original in order to be certain that the details are accurate"

 

So something for us here if unintentional it seems the agreement cannot be reconstruced if the orriginal is unavailable so in future if a copy you recieve is reconstructed quote mr A in your S.A.R - (Subject Access Request) for the orriginal.

 

 

"We are not aware of any letter making the assertion you suggest, however if you have details we would welcome sight of it."

All the letters that have been sent regrding this issue and they are still unaware.

 

 

Best regards

Peter

[MoonHawk]

*sigh!*

The OFT does not provide advice to consumers or to businesses

Begs the quesion what they are there for. They don't give advice. They don't take businesses that are breaking the law to task (unless they are a market stall using scales with pounds instead of kilograms). They leave the consumer to take business to court when they are breaking the law in their dealings. And they give advice that the court may or may not agree with.

 

re·dun·dant (r-dndnt)

adj.

1. Exceeding what is necessary or natural; superfluous. Hmmm ring any bells anyone?

2. Needlessly wordy or repetitive in expression: a student paper filled with redundant phrases. replace 'student paper' with 'OFT e-mails'

3. Of or relating to linguistic redundancy.

4. Chiefly British Dismissed or laid off from work, as for being no longer needed. Hmmmm! No comment

5. Electronics Of or involving redundancy in electronic equipment.

6. Of or involving redundancy in the transmission of messages.

 

Sorry. Just had to get that off my chest.

 

Best Wishes

MoonHawk

[Having_A_Knightmare]

Peter

 

OFT are getting worse.

 

It was not intended primarily as a method of challenging agreements or, as appears to be occuring more frequently, as a mechanism for avoiding legitimate obligations."

 

 

It makes you think if the banks tell OFT what to do.

 

 

agreement cannot be reconstruced if the orriginal is unavailable so in future if a copy you recieve is reconstructed

The RBS are not going to be happy. Most of there agreements are computer scanned and they do not have the originals. More amo for T/S

HAK

[ncf355]

 

"The OFT's view is that rather than supplying a carbon copy of the original agreement a creditor may supply a 'reconstruction' only in the sense that it is providing exactly the same information as appeared on the original agreement. By definition this requires that the creditor has the original in order to be certain that the details are accurate"

 

 

 

(at this point I must state that I have had an EXTREMELY hard job not swearing, but this is a public forum and in the interests of those with kids etc, I shall not)

 

I have not seen such a load of utter "rot" in a long time

 

They have quite clearly stated to me in the past "it may not be a conjectured reconstruction"

 

If they clearly have the original, then a reconstruction of any kind would be a waste of their resources, all they need to do is photocopy and then blank out anything they are allowed to by regs (debtors name and address, sig, and any details not required by the regulations)

 

When I finally get my day in court I shall make a point (assuming I win, which I believe wholeheartedly I will) of stating for the court that such action on my part may not have been needed had regulatory bodies have carried out their duties.

 

[Peterbard]

*sigh!*

Begs the quesion what they are there for. They don't give advice. They don't take businesses that are breaking the law to task (unless they are a market stall using scales with pounds instead of kilograms). They leave the consumer to take business to court when they are breaking the law in their dealings. And they give advice that the court may or may not agree with.

 

 

 

Sorry. Just had to get that off my chest.

 

Best Wishes

MoonHawk

 

Absolutely

 

Petr

[Peterbard]

Hi again

 

Just drafting a replyto the OFTand am finding it very difficult not to endulge in sarcasm.but.

"By definition this requires that the creditor has the original in order to be certain that the details are accurate. If it cannot be certain then it will have considerable difficulty in complying with a request made under Section 77"

What planet is this fella from "they would have dificulty in complying" They make one up! Thats the whole point it isn't dificult at all what is difficult is getting the OFT to act to make sure they can't.

Regards

Peter

[Having_A_Knightmare]

Peter

 

Dont hold back!!!

 

Its about time they got paid to do a job properly.

 

HAK

[Having_A_Knightmare]

Hi

 

Just emaied my T/S regaring the comment on original documents have to be original

This is the reply

 

I have been trying to contact the local authority for the past couple of days however they are not answering the phone. I will try them again today. I will take into consideration the information below but must advise you that scanning is a widely used practice for storing data such as this and I would of thought that these issues would have been raised when the system was brought into place initially. I will contact you again as soon as I receive a response.

 

What planet are they on!!!

 

HAK

[paulwlton]

Sorry but that does not make sense to me. If there is a CCJ the creditor is legally obliged to freeze interest and charges, contractual or otherwise.

 

Also if the debtor keeps to the payment terms agreed in a CCJ, then they can not take any further action. e.g. they can not try to enforce the debt by taking attachment to earnings etc.

 

So it would make sense (to my non-legal eyes anyway) that if they can not take "further action" if you keep to the terms of a CCJ, then if creditor defaults, then it would be the same. I would check it with a lawyer first though

 

Best Wishes

MoonHawk

 

When a judgment is obtained the contract is merged into the judgment and the principle becomes payable under the terms of the judgment, however, if there is a clause in the agreement that allows for interest to be applied after judgment then the contact runs independant and ancillary to the judgment.

 

There has been many cases where debtors have paid the judgment debt off only to find they owe thousands in interest accrued under the contract, though to force you to pay this interest the creditor would have to sue you again . Most creditors settle out of court after negotiating a settlement figure.

 

Paul

[MoonHawk]

Thank you for the clarification Paul , I was not aware of that.

 

Best Wishes

MoonHawk

[paulwlton]

hI

You also refer to a particular letter from the OFT to a consumer stating that it was sufficient for the creditor to 'reconstruct' an agreement where the original was not available. The OFT's view is that rather than supplying a carbon copy of the original agreement a creditor may supply a 'reconstruction' only in the sense that it is providing exactly the same information as appeared on the original agreement. By definition this requires that the creditor has the original in order to be certain that the details are accurate. If it cannot be certain then it will have considerable difficulty in complying with a request made under Section 77. Further the creditor would still have to have the original in order to enforce the agreement. We are not aware of any letter making the assertion you suggest, however if you have details we would welcome sight of it.

Where it has evidence, the OFT can and does take action against businesses which act unfairly or improperly or fail to comply with the requirements of the Act. Your email indicates that you are aware of instances where, in your opinion, creditors have not complied with the Act. If you have evidence of such non-compliance we would be happy to receive it.

I hope the above clarifies matters.

Yours sincerely

Henry Aitchison

Consumer Credit Enforcement

 

Hi Peter

 

Seems the OFT are covering their backs now.

 

I have a letter dated 05/09/2007 from the OFTs Chief Executive John Fingleton : It is sufficient for the lender to reconstruct a document from his records provided it contains the information that appeared in the original agreement.

 

Mr Aitchison's letter i received dated 07/09/2007 confirms this view.

 

I have forwarded a leaked internal document to the OFT which clearly shows a UK High street bank recreating lossed agreements. The OFT believe this to be ok as long has the recreated agreement is a "true copy".

 

I think i shall be giving Henry a call tomorrow.

[paulwlton]

Thank you for the clarification Paul , I was not aware of that.

 

Best Wishes

MoonHawk

 

Neither was i untill i requested information pursuant to a sec 77 request and found that the bank have been applying quarterly compound contractual interest on fictitious loan agreements that the bank claimed were subsumed in the judgment.

 

Paul

[Having_A_Knightmare]

Hi

 

what the point reconstructing one if the banks have the true copy.

 

Whats going on with this world.

 

HAK

[MoonHawk]

Hi

 

what the point reconstructing one if the banks have the true copy.

 

Whats going on with this world.

 

Don't be overly harsh mate. I know most use this as an excuse, but in some cases it is possible to be legitimate. For example, actual copies could be stored securly offsite (I know this is done with computer backups for fire safety) and it may be take time and be costly to access, whereas a reconstructed copy can be easy to produce. Having said that, with the document management systems available nowadays to store scanned copies and to print them it is a very poor excuse.

 

Best Wishes

MoonHawk

[Having_A_Knightmare]

Good point Moonhawk

 

HAK

[Peterbard]

hI

You also refer to a particular letter from the OFT to a consumer stating that it was sufficient for the creditor to 'reconstruct' an agreement where the original was not available. The OFT's view is that rather than supplying a carbon copy of the original agreement a creditor may supply a 'reconstruction' only in the sense that it is providing exactly the same information as appeared on the original agreement. By definition this requires that the creditor has the original in order to be certain that the details are accurate. If it cannot be certain then it will have considerable difficulty in complying with a request made under Section 77. Further the creditor would still have to have the original in order to enforce the agreement. We are not aware of any letter making the assertion you suggest, however if you have details we would welcome sight of it.

Where it has evidence, the OFT can and does take action against businesses which act unfairly or improperly or fail to comply with the requirements of the Act. Your email indicates that you are aware of instances where, in your opinion, creditors have not complied with the Act. If you have evidence of such non-compliance we would be happy to receive it.

I hope the above clarifies matters.

Yours sincerely

Henry Aitchison

Consumer Credit Enforcement

 

Hi Peter

 

Seems the OFT are covering their backs now.

 

I have a letter dated 05/09/2007 from the OFTs Chief Executive John Fingleton : It is sufficient for the lender to reconstruct a document from his records provided it contains the information that appeared in the original agreement.

 

Mr Aitchison's letter i received dated 07/09/2007 confirms this view.

 

I have forwarded a leaked internal document to the OFT which clearly shows a UK High street bank recreating lossed agreements. The OFT believe this to be ok as long has the recreated agreement is a "true copy".

 

I think i shall be giving Henry a call tomorrow.

Hi Paul

I was hoping you would bring up the subject of your letter would it be possible to draw Mr A's attention to it as he seems to be unaware of the advice,oops sorry they don't give advice do they erm guidance no that is n't right either err what ever it is they do.

Please feel free to use my letter.

 

It seems that all the letters i have sent to the DtI as was, the current version of the same office, the OFT and the TS have ended up on his desk i wondered why I hadnt had any replies.

 

I am drafting a reply at the moment to several of the points raised in his letter regarding his percieved responsibilities and the function of the OFT in protecting consumer rights in light of the commments about the act.

In particular to it being used by people to avoid their liabilities. It seems to me that this attitde is behind a lot of the "advice" that has been perculating down through the various consumer advice agencies, no matter what he says they all take their lead from the OFT.

 

The fact is that if he doesn't agree with the legislation he should try and get it changed he and others should not attempt to short circuit it by getting people to accept anything less than what they are entitled to under the law.

If section 77 says their should be a true copy then that is what there should be and if none is provided then the debt is unenforceable untill it is produced, his opinion about whether this is right or wrong is irrellavent his office is are there to enforce the legislation not to make judgements about someones motives in using the rights that they are given under the law.

 

Best regards

Peter

[paulwlton]

hI

You also refer to a particular letter from the OFT to a consumer stating that it was sufficient for the creditor to 'reconstruct' an agreement where the original was not available. The OFT's view is that rather than supplying a carbon copy of the original agreement a creditor may supply a 'reconstruction' only in the sense that it is providing exactly the same information as appeared on the original agreement. By definition this requires that the creditor has the original in order to be certain that the details are accurate. If it cannot be certain then it will have considerable difficulty in complying with a request made under Section 77. Further the creditor would still have to have the original in order to enforce the agreement. We are not aware of any letter making the assertion you suggest, however if you have details we would welcome sight of it.

Where it has evidence, the OFT can and does take action against businesses which act unfairly or improperly or fail to comply with the requirements of the Act. Your email indicates that you are aware of instances where, in your opinion, creditors have not complied with the Act. If you have evidence of such non-compliance we would be happy to receive it.

I hope the above clarifies matters.

Yours sincerely

Henry Aitchison

Consumer Credit Enforcement

 

Hi Peter

 

Seems the OFT are covering their backs now.

 

I have a letter dated 05/09/2007 from the OFTs Chief Executive John Fingleton : It is sufficient for the lender to reconstruct a document from his records provided it contains the information that appeared in the original agreement.

 

Mr Aitchison's letter i received dated 07/09/2007 confirms this view.

 

I have forwarded a leaked internal document to the OFT which clearly shows a UK High street bank recreating lossed agreements. The OFT believe this to be ok as long has the recreated agreement is a "true copy".

 

I think i shall be giving Henry a call tomorrow.

 

Peter

 

This is the view of Chief Executive Mark Fisher of the RBS in a response to my MP.

 

The unsigned agreememt form provided by the bank to MR ------ is a "true copy" of the loan agreement. Regrettably, with the passage of time the bank has not been able to locate the original signed loan agreement. In such circumstances, section 77 of the Consumer Credit Act 1974 provides that the bank can produce to the debtor a "true copy" of the form, completed by using the loan details held in our records.

 

I will be sending this to Mr Aitchison and will be seeking clarification.

[Peterbard]

"The unsigned agreememt form provided by the bank to MR ------ is a "true copy" of the loan agreement. Regrettably, with the passage of time the bank has not been able to locate the original signed loan agreement. In such circumstances, section 77 of the Consumer Credit Act 1974 provides that the bank can produce to the debtor a "true copy" of the form, completed by using the loan details held in our records."

Paul

 

This is a prime example of what i was trying to say in my last post the Consumer Credit Act does nothing of the sort, where does it say anything like this, it just makes me so angry when the people that we trust to protect our rights use that trust to missinform and decieve.

 

Would it be possible for me to inlude copies of all these correspondences in my reply since apparently MR A is unaware of the situation it might be educational for him.

 

I would also be copying the response to the DEBRR the TS and my MP along with his letter.

 

Regards

Peter

[paulwlton]

"The unsigned agreememt form provided by the bank to MR ------ is a "true copy" of the loan agreement. Regrettably, with the passage of time the bank has not been able to locate the original signed loan agreement. In such circumstances, section 77 of the Consumer Credit Act 1974 provides that the bank can produce to the debtor a "true copy" of the form, completed by using the loan details held in our records."

 

Paul

 

This is a prime example of what i was trying to say in my last post the Consumer Credit Act does nothing of the sort, where does it say anything like this, it just makes me so angry when the people that we trust to protect our rights use that trust to missinform and decieve.

 

Would it be possible for me to inlude copies of all these correspondences in my reply since apparently MR A is unaware of the situation it might be educational for him.

 

I would also be copying the response to the DEBRR the TS and my MP along with his letter.

 

Regards

Peter

 

I will post the letters in the OFT DTI response thread when i get a new printer scanner. I have Mr Aitchison's direct line number so i will contact him tomorrow.

 

I spotted a conjectered agreement posted by a new member last night the figure involved is a whopping £25.000.

 

Paul

[Peterbard]

HI Paul

 

Thanks for that and will you give Mr A my regards.

 

Peter

[paulwlton]

HI Paul

 

Thanks for that and will you give Mr A my regards.

 

Peter

 

I will do just that.

[manjusha]

Hello Paul

 

Just a quick question, if I may, and its regarding default notices.

Does a default notice need to show the entire amount owed as well as the arrears that needs to be paid to remedy the breach? Say for eg the balance owed is £500 but the arrears are only £15. Does the Default notice under S88 of CCA 1974 needs to state that £500 is owed but £15 is needed to be paid?

 

Thanks for your help.

[Peterbard]

HI

 

Re the assertion that the OFT Do not give advice to the public

I refer to the OFTs own FAQ published in may 2005

“The OFT has a duty under section 4 of the Consumer Credit Act 1974 (‘CCA’) to disseminate to the public certain information and advice relating to the Act.”

So either they were incorrect then or they are incorrect now I wonder which it is.

Regards

Peter

[Having_A_Knightmare]

The OFT has a duty under section 4 of the Consumer Credit Act 1974 (‘CCA’) to disseminate to the public certain information and advice relating to the Act.”

 

It seams to me they dont know enough about the act and they are just assuming what they think. Do they not have hot shot lawyers there??

 

HAK

[ian1969uk]

That reply from the OFT is as useless as we would expect. However, let's focus on the positives, however small they may be.

 

They are now saying that a creditor must have the original document in order to comply with S77/78. They can either send a photocopy of the original, or they can use the information on this to make a 'true copy', which must have identical information as the original.

 

What does this mean in practice? Well, in a nutshell, most creditors are stuffed as long as we challenge them. There's very few that have the originals now, as we know, and many have scanned them as their retained copy. Had they scanned the whole document, they ould argue that they knew exactly what was in the original, and therefore any copy would be exact.

 

But it's clear that most creditors have simply scanned the signed page of the document, and not the reverse which often includes terms and conditions etc. What this means now is that this is no good at all. They cannot send terms and conditions and say they apply to our agreements (or applications!) as they cannot assert this without knowing what the original terms and conditions were.

 

So it would seem that any creditor who cannot access the original agreement cannot even comply with S77/78, let alone enforce in court (which would always require the original as far as I believe).