Cap1 & CCA return

[MAGDA]

Hi, I have requested a CCA from Redcats (Empire) and this is the reply I have received:

"I attach a sample of Your guide to shopping with Empire sent to you with appropriate instructions on completing the agreements. Copy statements (these are simply statements showing payments I have made since the account fell into default) These enclosures satisfy the requirements of section 77-78 of the Consumer Credit Act 1974 in regard to supplying a copy of the agreement and accounts statements. I must however correct your statment that we are under an obligation to provide a facsimile copy of a signed agreement. (I sent the standard letter from National Debtline's site, asking for a true copy) the regulations only require us to providea copy of the agreement and it is not necessary to provide a signature box. I refer you to regulation 3 - consumer credit (cancellation notices and copies of documents) Regulations 1983 (SI No. 1557)." It also states that I appear to have acted in a way that indicates that an agreement was signed as I had conducted the account for some time , placing orders etc.

The paperwork they have enclosed is simply a blank payment card, showing how it should be completed and a second sheet which is headed "With confidence" containing Conditions of Sale, reference to Data protection Act 1984, reference to consumer credit act 1974 stating that the payment card issued by my agent or direct to me by empire is in the form of an agreement which complies with the requirements of the Act and must be signed by me. (they haven't provided a copy of this, if it did exist), and finally a heading : Your right to cancel, no signature boxes for either Empire or myself. Where do I stand on this? Many thanks, Magda

[paulwlton]

Hi, I have requested a CCA from Redcats (Empire) and this is the reply I have received:

"I attach a sample of Your guide to shopping with Empire sent to you with appropriate instructions on completing the agreements. Copy statements (these are simply statements showing payments I have made since the account fell into default) These enclosures satisfy the requirements of section 77-78 of the Consumer Credit Act 1974 in regard to supplying a copy of the agreement and accounts statements. I must however correct your statment that we are under an obligation to provide a facsimile copy of a signed agreement. (I sent the standard letter from National Debtline's site, asking for a true copy) the regulations only require us to providea copy of the agreement and it is not necessary to provide a signature box. I refer you to regulation 3 - consumer credit (cancellation notices and copies of documents) Regulations 1983 (SI No. 1557)." It also states that I appear to have acted in a way that indicates that an agreement was signed as I had conducted the account for some time , placing orders etc.

The paperwork they have enclosed is simply a blank payment card, showing how it should be completed and a second sheet which is headed "With confidence" containing Conditions of Sale, reference to Data protection Act 1984, reference to consumer credit act 1974 stating that the payment card issued by my agent or direct to me by empire is in the form of an agreement which complies with the requirements of the Act and must be signed by me. (they haven't provided a copy of this, if it did exist), and finally a heading : Your right to cancel, no signature boxes for either Empire or myself. Where do I stand on this? Many thanks, Magda

 

Your position appears to be, that you have an unenforceable debt.

 

Paul

[sytra]

Im sure someone with more experience will look at this for you, but if you read previous posts about Empire or any catalogue co for that matter you will find they are notorious for not getting the agreements signed.

 

IMO I suppose in theory as orders have been placed then an agreement was made BUT NOT AN ENFORCEABLE AGREEMENT.

 

usually they just say that the agreement is in the catalogue, at least they sent you something.

 

Sytra

[sytra]

Beat me to it..

[car2403]

Hi, I have requested a CCA from Redcats (Empire) and this is the reply I have received:

"I attach a sample of Your guide to shopping with Empire sent to you with appropriate instructions on completing the agreements. Copy statements (these are simply statements showing payments I have made since the account fell into default) These enclosures satisfy the requirements of section 77-78 of the Consumer Credit Act 1974 in regard to supplying a copy of the agreement and accounts statements. I must however correct your statment that we are under an obligation to provide a facsimile copy of a signed agreement. (I sent the standard letter from National Debtline's site, asking for a true copy) the regulations only require us to providea copy of the agreement and it is not necessary to provide a signature box. I refer you to regulation 3 - consumer credit (cancellation notices and copies of documents) Regulations 1983 (SI No. 1557)." It also states that I appear to have acted in a way that indicates that an agreement was signed as I had conducted the account for some time , placing orders etc.

The paperwork they have enclosed is simply a blank payment card, showing how it should be completed and a second sheet which is headed "With confidence" containing Conditions of Sale, reference to Data protection Act 1984, reference to consumer credit act 1974 stating that the payment card issued by my agent or direct to me by empire is in the form of an agreement which complies with the requirements of the Act and must be signed by me. (they haven't provided a copy of this, if it did exist), and finally a heading : Your right to cancel, no signature boxes for either Empire or myself. Where do I stand on this? Many thanks, Magda

 

This is a standard response - suggest you send them this; (adapted from Peter Bard)

 

Dear Sirs,

 

Account Number: XXX

 

Re; your recent reply to my request under section 77-79 of the Consumer Credit Act 1974

 

I note that you have replied to the above by sending a copy of an application form and your companies current Terms and conditions I must inform you that this is not sufficient to comply with the request and that your company is still in default under the act.

 

To clarify, just sending the Terms and Conditions is a breach of the Act and Regulations as, apart from the information that the Regulations provide that you may exclude, the copy must be a “true copy” of the agreement.

 

This breach of the agreement can be demonstrated as follows;

As you will know section 180(1) (b) authorises, “the omission from a copy of certain material from the original, or the inclusion of certain material in condensed form.” This refers to statutory instruments made under the heading Copies of document regulations and in this care in particular to SI 1983/1557.

 

Before leaving section 180 there are two other sections that should be remembered these are:

 

Section 2(2) (a) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not satisfied unless the copy supplied is in the prescribed form and conforms to the prescribed requirements;

 

And more importantly

 

Section 2(b) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not infringed by the omission of any material, or its inclusion in condensed form, if that is authorised by regulations.

 

You will see that this quite clearly states that whilst certain items may be left out of the copy document the rest of the document must be in the form and contain all items as prescribed by the regulations.

 

Turning to the regulations regarding what may be omitted from these copies these are contained with SI 1983/1557.

 

The regulations state:

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

(a) any information included in an executed agreement, security instrument or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations thereunder as to the form and content of the document of which it is a copy;

(b) any signature box, signature or date of signature (other than, in the case of a copy of a cancelable executed agreement delivered to the debtor under section 63(1) of the Act, the date of signature by the debtor of an agreement to which section 68(b) of the Act applies);

 

It is quite clear what can be omitted from the copy document, this again asserts that all other details of the agreement should presented in form and content as required by the regulations.

 

The requirements of the Agreement regulations 1983/1553 are very explicit in describing the form and content of an agreement and this as I have demonstrated also applies to the copy of any such agreement with the above mentioned proviso.

 

Nowhere within these regulations does it state that part of the agreement can be presented on a separate document headed terms and conditions.

It does state that all terms and conditions should be within the agreement document and is explicit of the form in which it is presented.

 

I hope this explains why your reply was unacceptable I await a True copy of my agreement and would remind you again that whilst the request has not been complied with the default continues

 

Yours faithfully

[MAGDA]

Thanks all of you for the replies and thanks Car for the letter. Will get something off to Empire now and see what they have to say!

 

Magda

[star_scream]

I am confused! Whatever a creditor sends you in response to a s77-79 request, I thought that that was the only thing they could then rely on in their defence.

 

172 Statements by creditor or owner to be binding (1) A statement by a creditor or owner is binding on him if given under— section 77(1), section 78(1), section 79(1), section 97(1), section 107(1)©, section 108(1)©, or section 109(1)©.

 

This means that the document they have sent is the only document they may now rely on in any attempt at enforcing this alleged debt. Any further documentation they may present is irrelevant as they did not provide it in response to a lawful request.

 

 

Why then should we give them more time or any more chances to send a CCA?

[paulwlton]

I am confused! Whatever a creditor sends you in response to a s77-79 request, I thought that that was the only thing they could then rely on in their defence.

 

172 Statements by creditor or owner to be binding (1) A statement by a creditor or owner is binding on him if given under— section 77(1), section 78(1), section 79(1), section 97(1), section 107(1)©, section 108(1)©, or section 109(1)©.

 

This means that the document they have sent is the only document they may now rely on in any attempt at enforcing this alleged debt. Any further documentation they may present is irrelevant as they did not provide it in response to a lawful request.

 

 

Why then should we give them more time or any more chances to send a CCA?

 

I think you'll find a court has discretion on a creditor producing a further copy document.

 

Paul

[car2403]

I think you'll find a court has discretion on a creditor producing a further copy document.

 

Paul

 

Agreed, Paul;

 

s.172(3) Where in proceedings before any court—

(a) it is sought to reply on a statement or notice given as mentioned in subsection (1) or (2), and

 

(b)

the statement or notice is shown to be incorrect, the court may direct such relief (if any) to be given to the creditor or owner from the operation of subsection (1) or (2) as appears to the court to be just.

 

Of course this is open to the Courts discretion, so we should be arguing prejudice by allowing the new statements - if they think the prejudice outweighs the injustice of not allowing the new statement, they probably wouldn't allow them to rely on it.

 

In practise, I can't see this happening, as it would be clear grounds for an appeal on the creditors behalf, IMHO.

 

Personally, I can't see the point of Parliament enacting this section then giving the Court a get-out clause by referring to justice.

[star_scream]

So let me get this right................

 

The country makes laws and then totally bl**dy ignores them when we try to enforce them?

 

I understand they are only civil laws, but laws are laws, what's the point of bringing in legislation only for the courts to overrule them whenever they deem fit.

 

How in hell can we ever know what we are supposed to be doing when they are no hard and fast rules?

[car2403]

So let me get this right................

 

The country makes laws and then totally bl**dy ignores them when we try to enforce them?

 

I understand they are only civil laws, but laws are laws, what's the point of bringing in legislation only for the courts to overrule them whenever they deem fit.

 

How in hell can we ever know what we are supposed to be doing when they are no hard and fast rules?

 

Ah, the joys of litigation.

 

You've hit the nail on the head, star_scream.

[MAGDA]

Hi, wonder if you can help with this. Requested a copy of my CCA from Hillesden last Oct/Nov, which they have been unable to provide. I now get letters every few weeks from them basically stating that they are still trying to get a copy from their client Citi. Are they doing this so that if a period of time passes, say six years, they can still claim this is a valid debt. I know this company are a very unpleasant lot, who have taken a lot of people (many of whom are elderly) to court recently and obtained charges on their properties for unsecured debt, which they purchased from citi for a pittance. Should I write and state that they should not contact me until a valid CCA has been provided, or do as I have been, and ignore them. Many thanks, Magda

[car2403]

Magda, they shouldn't be chasing a debt in dispute - especially without an agreement! (Er, where's your consent to them contacting you exactly?)

 

It will be statute barred in 6 years from the last time it was acknowledged/paid, but why wait? Send them this, then complain to the Police, the OFT, TS, the FOS and your MP if they continue;

 

I refer to your recent letter dated XX/XX/XXXX.

 

You will see from your files that this account is “in dispute” and you have failed to reply to my s.77/s.78 Consumer Credit Act 1974 request dated XX/XX/XXXX.

 

I am writing to inform you that this dispute still stands and has not been resolved by your company.

 

 

 

As this account is in dispute and you were aware of this and are continuing to carry out collection activity, I now feel that you are in breach of your obligations under;

§

The Office of Fair Tradings Collection Guidelines – ;

o

“failing to investigate and/or provide details as appropriate, when a debt is queried or disputed, possibly resulting in debtors being wrongly pursued”

§

The Banking Code –;

o

“not ceasing collection activity whilst investigating a reasonably queried or disputed debt.”

§

Your Consumer Credit License

 

As such, I must ask you to take notice that you must cease all collection activity with immediate effect. You have failed to produce a properly executed credit agreement and as such I dispute the entire balance of the alleged debt is unenforceable. As there is no agreement between us, you also do not have permission to continue to contact me regarding this account, either by post or by personal contact, be that by telephone or visits to my property. In fact, OFT rules and regulations clearly state that 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 persist in sending "doorstep callers" to my home, you will be reported for harassment and be liable for damages for a tort of trespass. You would also be liable for conspiring in a tort of trespass by acting in defiance of my instructions and sending someone to visit me nevertheless. Should it be necessary, I will obtain an injunction from the Court.

 

I also deem any further collection activity, of any nature that involves contacting me in relation to this account, an act of personal harassment, for the reasons outlined in this letter. Please ensure that your system is updated to reflect this, as I will bring any further letters or phone calls to the attention of the Police, to whom I will make a formal statement regarding your conduct given I have already warned you your behaviour causes me to feel harassed.

 

I am of the view that your continued harassment of me puts you in breach of Section 40 of the Administration of Justice Act 1970, and the Protection from Harassment Act 1997.

 

If you continue to harass me by calling me, you will also be in breach of the Communications Act (2003) s.127 and I will report you to OFCOM, Trading Standards and The Office of Fair Trading, meaning that you will be liable to a substantial fine.

 

Be advised that any further telephone calls from your company will be recorded and used as evidence in any further formal complaint.

 

If you wish to resolve my complaint, as has been suggested in your recent letters to me, you must supply the documentation previously requested to substantiate your claims against me under the alleged agreement. Failure to do so will result in my ignoring any further letters from you and the actions outlined herein being taken in complaint against you. I will not correspond further with you regarding this issue unless you can fully substantiate your claim as I have outlined.

 

Yours faithfully

[MAGDA]

Thanks for that Car. Your help as always is much appreciated. Will get this off to Hillesden and hopefully it will stop them in their tracks! It's awful that they have managed to enforce so many debts when I'm pretty sure they don't have the Agreements for those either. Just that an awful lot of people still don't realise they even have a defence if the creditor doesn't have the CCA, so this site is really a God send for people like me, who otherwise wouldn't have a clue! THANKS Magda

[121o121]

Can anyone tell me where there is a s78 CCA request letter template. No luck in the library.

[Goldlady]

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/20758-creditors-dcas-letter-templates.html

 

Letter N. I bookmarked this as I can never find it when I need it.

[121o121]

Thanks Gold Lady

 

I took out a loan a while ago with HFC. I agreed to take out some sort of insurance with it (I can't remember what exactly, it was back in 2003).

 

A couple of weeks after I took the loan out, a guy from HFC called me to see if I was happy with the process and the way the staff treated me. I told him I felt pressured into taking the insurance and felt I was bullied into it.

 

He cancelled the insurance and sent me a cheque for the premium that was due. But although I received the insurance premium back, The loan paperwork was never altered, which I think was wrong.

 

I've been paying interest on money in the loan which was for the cancelled insurance.

 

I'm not sure where I stand yet but I want to get my paperwork in house so I know if I can take it further.

[MAGDA]

Hi, can a creditor (in reply to a CCA request) simply send an application form, which by the way doesn't contain any of the prescribed terms. I have received three from barclays (one visa mine, one my husbands and one is a mastercard) they have for the first and second account enclosed a separate sheet with their standard terms and conditions containing the info such as APR etc. For the 3rd a/c they have sent only a copy of their standard terms and conditons, nothing else. The only signatures at all are on the application forms and these do not make any reference to any terms and conditions being shown overleaf or anything. Are these valid 'Agreements' do you think? Barclays seem to think that they are.Thanks, Magda

[car2403]

Hi, can a creditor (in reply to a CCA request) simply send an application form, which by the way doesn't contain any of the prescribed terms. I have received three from barclays (one visa mine, one my husbands and one is a mastercard) they have for the first and second account enclosed a separate sheet with their standard terms and conditions containing the info such as APR etc. For the 3rd a/c they have sent only a copy of their standard terms and conditons, nothing else. The only signatures at all are on the application forms and these do not make any reference to any terms and conditions being shown overleaf or anything. Are these valid 'Agreements' do you think? Barclays seem to think that they are.Thanks, Magda

 

Same applies as here;

 

http://www.consumeractiongroup.co.uk/forum/general/33174-consumer-credit-act-agreements-570.html#post1404642

[lickthewallfatboy]

it appears Barclaycard are mistaken

[car2403]

it appears Barclaycard are mistaken

 

Hush your dirty mouth, ltwfb! How dare you! Do you know who "Barclaycard" are?

 

[Goldlady]

I am having same problem convincing Barclaycard that an application form is not an agreement.

[MAGDA]

thanks for that. They will keep trying to fob us off! Glad you agree that they are not valid agreements though. Magda

[davefirewalker]

In preparation for my "big go" at them (barclaycard), and to try and get some sort of response from them I sent them a "Go away and never bother me again" letter hoping it might hit a nerve.........

 

As the diana ross song goes " I'm still waiting "

 

methinks they must realise something is afoot (and its not 12" )

 

not a peep........hmmmmm

 

Dave

[Goldlady]

I have sent them every letter possible and get longer and longer replies telling me how right they are. I have even asked them to put their money where their mouth is and sue me if they are so convinced - but they won't - just get their idiot DCA to ring me many times a day. Nothing else they can do.