Cap1 & CCA return

[JonCris]

Answered Animal

[JonCris]

Hi Guys!

You will see from this link that I have been recently advised by TS, who disagree that Morgan Stanley have complied with my S78 CCA 1974 request.

http://www.consumeractiongroup.co.uk/forum/general/33174-consumer-credit-act-agreements-346.html?highlight=angry+cat#post845003

 

TS had requested that MS inform me in writing exactly how they consider that they have complied. The MS letter has not been forthcoming, therefore I complained to TS and they again requested the promised letter from MS Law Dept...MS, Oh we sent it on 30th April...AC, Oh no your didn't!

TS, please send it again!

 

Anyhow, eventually the long awaited letter has arrived and it is from Karla Kenny and not MS Law, it reads as follows:-

 

"Dear AC

 

Thank you for your letter dated 23 February 2007. (3 months to answer!)

 

Further to our discussions with Trading Standards, I write in order to provide clarification on the points you have raised in your correspondence. Whilst I can appreciate your request that we communicate with you throught Trading Standards I wanted to ensure that you received a direct response to your queries. (I reported them to TS for non compliance resulting in a Criminal Offence)

 

I note that you do not accept that the copy of the executed agreement provided to you satisfies our obligations to you under section 78 of the Consumer Credit Act 1974 ("the Act"). You also request that we remove the default registered against you with the credit reference agencies. Whilst our view regarding the correct provision of a copy of the executed agreement currently differs with that of Trading Standards, Well it would wouldn't it our position remains as follows.

 

TRUE COPY OF THE EXECUTED AGREEMENT

 

Because you are raising a technical point under the Act, the only way we can fully address your query is to set out some of the law on the way the Act operates.

 

Section 78(1) of the Act states that amongst other things, the creditor shall give the debtor a copy of the executed agreement. You execute an agreement only when you sign it. In case theres any misunderstanding an unsigned agreement is NOT executed

 

HOW DOES THE ACT DEFINE AN 'EXECUTED AGREEMENT'?

 

'Executued agreement' is defined in section 189 of the Act as, "a document, signed (shooting themselves in the foot then) by or on behalf of the parties, embodying the terms of a regulated agreement...". & they think they are cleverer than you

 

WHAT DO THE RULES SAY ABOUT PROVIDING A COPY? Nothing other than it MUST be a true! copy

 

The Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 ("the Regulations") made under the Act deal with how we are to provide a 'copy' of an agreement.

 

These Regulations provide that any copy of the agreement supplied to a debtor should be a 'true' copy. A true copy must include signatures otherwise it ain't what it claims to be (not exactly brain surgery) & again aren't they contradicting themselves. 1 minute it's a 'true' copy) see above) & the next it's simply a copy. Regulation 3(2) provided that a copy may omit certain information, including the signature box, signature and date of signature. correct but it ain't a true copy

 

So, a "copy" of an agreement will satisfy the requirements even if the signature box and/or the signatures are not included. No it won't. This regulation is there to allow creditors to fullfill their obligations as per cancellation not to enforce the debt or T's & C's

 

WHAT HAPPENS ID THE ORIGINAL AGREEMENT HAS BEEN VARIED SINCE IT WAS ORIGINALLY SIGNED. Quite! It will depend on your contract but even so they will have to establish that you were advised of any variation well BEFORE it was enacted

The Regulations also set out what should happen where the agreement has been varied since it was signed, which happened in your case.

 

Regulation 7 provides creditors with a choice of including in the copy of the executed agreement either a copy of the latest notice of variation relating to each discrete term which has been varied, or an easily legible statement of the terms varied.

 

CONCLUSIONS IN RELATION TO THE DOCUMENT WE HAVE TO PROVIDE

 

1. a "copy" of an agreement will satisfy the requirements even if the signature box and/or the signatures are not included;

 

2. the definition of "executed agreement" refers to a document EMBODYING THE TERMS of the regulated agreement. When this is read with Regulation 7 -for agreements that have been varied - a copy of the original agreement would not embody its terms. A copy of the agreement as varied would embody its terms.

 

3. we have provided you with a copy of the agreement as varied.

 

All just waffle. If they are unable to provide a properly executed 'signed' 'non varied' agreement then they are stuffed for whatever reason

 

DEFAULT STATUS

 

Due to the circumstances on your account at the time we issued the notice of default, we cannot agree that the filing of the default information was incorrect. We therefore cannot agree to your request that we remove the default applied and amend the payment history recorded on your credit file in relation to your Morgan Stanley account. This is because, as responsible lenders, we have a duty to record accurate information with the credit reference agencies we report to. As you were in arrears on your account, we were obliged to issue the notice of default and subsequently register with the credit reference agencies. We all know the arguments but if there is no valid agreement there is no consent given to process data

 

I trust this satisfactorily explains matters for you. However, should my explanation in any way not meet with your expectations or you have additional information please do not hesitate to contact me directly or through Trading Standards.

 

Thank you for taking the time to provide us with your comments. We do take customer feedback on board as an integral way to improve both our procedures and products.

 

Yours sincerley

Karla Kenny".

 

Sorry for any typos.

 

I will discuss the MS letter with TS on Tuesday, but in the meantime I would be grateful for any learned opinions.

 

Love AC

 

See red above Suggest you write back with a copy to TS pointing out there own contradiction in terms of their argument.

 

It was probably kicked back because the solicitors aren't prepared to get into this argument & try to mislead particularly as TS are taking an interest

[JonCris]

Thanks JonCris-

 

Interestingly enough you will note that the following letter sent to davefirewalker is almost identical-

http://www.consumeractiongroup.co.uk/forum/show-post/post-760385.html

 

TS's view in respect of regulation 7 which states-

 

"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 the debtor, hirer or surety under any provision of the Act other that 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 terms of the agreement as varied in accordance with section 82(1) of the Act.

 

We are of the opinion that reg 7 refers to a copy of the executed agreement and that sub sections a) or b) are in addition to this and not any alternative to sending the actual executed agreement".

 

MS do not have a copy of the true executed agreement and stated last May 2006 in their Defence of my claim against them re charges, that they could not find it!

MS of course, settled prior to going to court. However I realise now that they could not have defended against my claim because they did not have the agreement...Hmm, Naughty!

Also re the unfair default that was registered against me, the charges amounted to more than the amount on the NOD default.

MS agreed and I have it in writing to remove the default as part of my settlement and it was removed but recently it has been re-added to my CRA file.

They removed it once but after re-applying it...MS refuse to remove the default.

 

Love AC

 

You may wish to quote the following:

 

The Information Commissioners opinion re unenforceable agreements dated 7th September 2006

 

According to LACORS (The Local Authorities Coordinators of Regulatory Services)

Quote:

In their opinion that where a creditor accepts there is no enforceable agreement they should not be permitted to ‘punish’ the consumer by placing a record of the default on their credit reference file. To do so would be unfair and unreasonable. It would also lessen the impact of the provisions of the CCA which makes it clear that a creditor should not be allowed to enforce a credit agreement where the agreement is improperly executed

 

Clearly this MUST apply to non existent agreements & as I have stated repeatedly on here where there is no valid agreement placing a default on record IS enforcing an unenforceable debt which is NOT permitted by LAW

[JonCris]

AC show TS the LACORS statement. It's originaly meant for them. They probably glanced at it then through it in the nearest bin

 

& what the hell do they mean there's "no case law" There doesn't have to be it's a criminal offence

[JonCris]

Almost forgot if TS will still not help tell them that you will report them to the Ombudsman for maladministration then do it!

 

It's about time that we started taking these chocolate teapots to task over their failure to do their task

[JonCris]

ncf you may wish to include this

 

The Information Commissioners opinion re unenforceable agreements dated 7th September 2006

According to LACORS (The Local Authorities Coordinators of Regulatory Services) Trading Standards

Quote:

In their opinion that where a creditor accepts there is no enforceable agreement they should not be permitted to ‘punish’ the consumer by placing a record of the default on their credit reference file. To do so would be unfair and unreasonable. It would also lessen the impact of the provisions of the CCA which makes it clear that a creditor should not be allowed to enforce a credit agreement where the agreement is improperly executed

Clearly this must also apply to non existent agreements

[JonCris]

Right, this is going to them first thing in the morning:

 

Rachel Mason

Trading Standards Officer

Community Protection Services

Trading Standards

PO Box 65

Vancouver House

Gurney Street

Middlesbrough

TS1 1QP

 

30/5/2007

 

 

Dear Ms Mason

 

Re: Alliance and Leicester Credit Card (provided by MBNA).

 

I am in receipt of your letter dated 25th May 2007, the contents of which are noted.

 

I am somewhat astonshied with your conclusions and would ask you to reconsider them as a matter of urgency. Your response contains many inaccuracies, and these misconceptions appear to have affected the conclusion you have reached.

 

You state that MBNA have provided me with a copy of my agreement. This is clearly not the case as they have supplied me with a copy of an application form which cannot in anyway be mistaken for a regulated agreement as required in law.

 

I draw your attention to the fact that the Right Honorable Mr Ian McCartney Minister of State at the DTI has replied, when writing about this precise issue, that it is a breach of the Act to send an application form rather than an agreement in response to a request under Section 78 of the CCA 1974. Yet this is precisely what MBNA have done an unlawful action which you have supported.

 

If you require a copy of the said correspondence I refer to I should be only to happy to provide it.

 

Furthermore, the application form they sent me has never been signed by MBNA, so any assertion from them that this document constitutes an executed agreement is clearly very wrong.

For your information an agreement is only executed on the signature of both debtor and creditor. Therefore, MBNA cannot claim to have ever had an executed agreement in relation to this account. As it is a copy of the EXECUTED agreement that they are required to send me in response to a Section 78 request, they simply cannot have complied as you mistakenly assert

 

Moreover, the application form they sent me lacks every single prescribed term required under the CCA 1974. You state that there are different rules for different agreements. This may be true to an extent but ALL agreements for fixed sum or running account credit must have at least the following terms:

• A credit limit
  
• A rate of interest
  
• A schedule of repayments

This document sent to me by MBNA has none of these, and so cannot possibly constitute an enforceable agreement.

 

Finally, your letter makes no mention of the serious breach of Section 85 (CCA 1974) committed by MBNA in relation to this account. I explained previously what Section 85 requires of the creditor, and as I have now demonstrated without doubt that MBNA have no executed agreement in relation to this account, it follows that they can NEVER have complied with Section 85. I still await your comments on this issue.

 

I have demonstrated clearly that MBNA remain in breach of my request under Section 78 of the CCA 1974. I would like to add that, as well as the issues already described, Section 78 requires that they also send a signed statement of account and a copy of any documents referred to in the agreement. MBNA have done neither. A creditor cannot have fully complied with Section 78 until all of the required documents have been produced. How then can you state that MBNA have complied when they haven’t supplied these documents at all?

 

Please be advised that I am well versed in these matters and now I have again brought these to your attention I ask that you reconsider your present position.

 

Please also be advised that should you maintain that you will not take any further action regarding this blatant disregard for the law by MBNA I will, as well as considering civil action, institute a complaint against both you and your agency at the highest level.

 

I apoligise for being so forthright but if we the ordinary consumer cannot rely on a reglatory authority to both understand and enforce the law to whom do we turn?

 

I await your reply at your earliest convenience.

 

Yours sincerely

 

ian1969uk

 

Few suggested admendments in red

[JonCris]

It's not upto TS to 'have' an opinion, that's what the courts are for. It's upto TS to enforce the law & if they won't I suggest makng a complaint for maladministration

[JonCris]

Try this

Dear Sir Acc. No.

The above account is currently in dispute and I remind you that it is an offence to attempt to enforce such an alleged debt, particularly as there has been repeated failures on the part of the creditor to comply with the statutory obligations under sec 77-79 of the Consumer Credit Act.

 

If you continue to harass me I remind you of the following:

 

Protection from Harassment Act 1998

 

(1) A person commits an offence if, with the object of coercing another person to pay money claimed from the other as a debt due under a contract,

 

(a) harasses the other with demands for payment which, in respect of their frequency or the manner or occasion of making any such demand, or of any threat of publicity by which any demand is accompanied, are calculated to subject him or members of his family or household to alarm, distress or humiliation;

 

Please note your contact is now being recorded and that should you continue to harass me I will have no alternative but to report you to the police

 

Furthermore as per my right under the Data Protection Act 1998 I do not consent to you processing my data and require that you remove all such data from your records forthwith. I shall expect you confirmation of this within the next 14 days from the above date

 

Your faithfully

[JonCris]

alamand Before giving advice can you say if they owe you more than you owe them?

[JonCris]

ncf Please either scan or copy verbatim the order onto here

[JonCris]

If they didn't supply true copies of your defaults then apart from not complying with your SAR they almost certainly didn't send them this time because they never sent them in the 1st place.

 

Irrespective of the CA agreement you should now demand there removal & report them to TS & the OFT & the ICO for non-compliance

[JonCris]

I agree with the above & would point out that instead of you paying them anything your child probably has a civil claim for personal injury - I should contact a solicitor asap

 

Accidental injury is one thing & to be expected in a physical sport but to deliberately cause harm is another matter. Something the school will find hard to deny in view of the fact that this opponents conduct was reported before the injury

[JonCris]

I suggest the contract is now void as a result of what has happened & I would cancel the S O forthwith.

[JonCris]

You'll need to check but I think you will find that small fixed sum agreements are not subject to the CCA

[JonCris]

maybelline Do you have a copy of your agreement T&C if so check to see if there is a clause allowing interest after judgment

[JonCris]

What I complete & utter waste of space TS really are.

 

We really need to go after them almost as much as the lenders.

[JonCris]

What Peter means that although the agreement is unenforceable the debt still exists.

 

Therefore whilst not being able to take any court action to recover the debt the creditor is permitted to ask you for the money:wink: .

 

However, if they harass by repeatedly asking you to pay a debt which they know is unenforceable (because you have probably told them) they will be in breach of not only the OFT guidelines but may even be guilty of criminal harassment:grin:

[JonCris]

If an agreement is unenforceable then you CANNOT be defaulted because defaulting you IS in fact just another form of enforcement:rolleyes:

[JonCris]

Elizabeth is correct

 

You have to present the argument to court

However if the debtor has never defended nor addmitted the debt formaly they may be successful in applying to have the CCJ set aside

[JonCris]

pratick 'without prejudice' would not be relevant in these circumstances

[JonCris]

You will never the reply my sis got from a CCA request we did....what the hell are they on?

 

They confirmed they don't have the agreement and that the debt is unenforcable.

 

They then say that they have taken legal advice and that the debt still exists so they will still contact her for it. They also said that they will enter a default notice so it's harder for her to get credit.

 

How the hell can they say it's unenforcable but then say that they will enforce it?

 

I'm gonna write to tell em they can't do anything, which they will ignore, so I'm gonna have to take them t o court.

 

They are correct in that the debt does exist. However if they attempt to enforce it, which includes registering a default, they are in breach of the OFT guidelines which could bring their fitness to hold a licence into question.

 

In addition by trying to enforce the unenforceable they could also be guilty of not only criminal harassment but also fraud under the 2006 Fraud Act.

 

I should point all this out to them whilst warning them that you will report them to the authorities if they persist

[JonCris]

Hi Jon,

 

would issuing a default be classed as enforcement? Some banks argue that whether a regulated correctly executed agreement exists or not, if a debt exists between debtor and creditor that constitutes a contract between themselves and as such under the data protection act they (creditor) are allowed to process data in relation to the debt to CRAs'

 

SCHEDULE 2

CONDITIONS RELEVANT FOR PURPOSES OF THE FIRST PRINCIPLE: PROCESSING OF ANY PERSONAL DATA

2. The processing is necessary-

(a) for the performance of a contract to which the data subject is a party,

 

Before everyone starts shouting at me can i just say i Disagree with this and am very interested in everones point of view to counter it:)

 

what are your thoughts?

 

regards,

shane

 

Despite what the ICO or the creditor might claim those organisations overseeing the statutory authorities, such as Trading Standards, argue that registering a default IS part of enforcing a debt. Therefore if the debt is unenforcable than ANY attempt to enforce is wrong & to argue otherwise fly's in the face of the law

[JonCris]

The reason these companies think they know best & ignore the law is because, often aided by the so called regulator, they have acted to suit their needs & not those of the consumer.

 

Additionally the staff of the regulator are poorly trained & have never been questioned to such an extent as now. Now that the consumer is becoming much more informed & questioning the lack of proper training & understanding of the law they are supposed to police is becoming painfully obvious.

 

As these sites have shown some of the advice being handed down, by the regulators, would be funny if it where not so serious

[JonCris]

Reallymad. I strongly advise that you DON'T send anything as proof of ID that contains your signature. The reasons are obvious.

 

It may delay things but I would wait until they ask then send them a Utility Bill unless they have already been communicating with you in which case ask them why would they need to establish your ID at this late stage? & is it not just a ploy to delay compliance

 

Also no matter what tell them you consider the time for the to camply continues from the date of your original request