Curious response from Original Creditor

[afcwben]

After recieving a letter from a DCA I sent off a CCA request to them.

 

Today I have recieved a letter from the original creditor who the DCA had sent on my CCA request.

 

Basically in their letter they say the following

 

"Section 78 only applies during the lifetime of the agreement.

 

As the above numbered account has been closed,

 

and the balance paid off in full, there is no longer a regulated agreement between ourselves."

 

Does this mean this is now unenforcable?

[BRIGADIER2JCS]

No, unfortunately not, to get a CCA in this case you

will need to make SAR., and specifically ask for the

agreement.

 

When was the last payment or acknowledgment in writting

made?

Is the debt showing on credit reference files?

[afcwben]

No, unfortunately not, to get a CCA in this case you

will need to make SAR., and specifically ask for the

agreement.

 

When was the last payment or acknowledgment in writting

made?

Is the debt showing on credit reference files?

 

It's so old I don't remember but what action can be taken if no credit agreement is available. I have made a request for the agreement and they have said they do not have it.

[BRIGADIER2JCS]

They cannot enforce judgement in court but can continue to

press for payment, so check CRA files if it does not show then

it was defaulted more than 6 years ago, and may already be

statute barred, get the credit report and we can workout when

the last payment was made.

[cerberusalert]

I'm a bit confused, I take it you are requesting the CCA because a DCA says you owe a debt yet the original creditor says the debt is paid in full?

[postggj]

i believe that it is the DCA who has to comply with any CCA request in this case

 

the judgement in godebt v critchley stipulated that it was who ever was demanding payment had the obligation to provide the agreement once requested.

 

the DCA will never have the original agreement and will in most cases have to go to the original creditor to retrieve it.

 

but it will be the DCA who the debt has been assigned to that will have the obligation to provide a copy of the CCA, not the original creditor

[BRIGADIER2JCS]

I was to at first it appears that the OP has been informed that the

account is closed not paid off so S78 request is not valid.

DCA has attempted to aquire the agreement, OC states correctly

CCA '74 sect 78 no longer applies as the account is close (correct).

[postggj]

the account may be closed from the original creditors point of view as they would have sold (assigned) the account to the DCA

 

if the DCA is demanding payment then they would be responsible for providing a copy of the original agreement on request as they have taken on the rights and duties (depending on the assignment) of the original agreement

 

the DCA and creditor both cant have their cake and eat it

 

as stated

 

it is the DCA who have to produce the agreement

 

if the OC refuse a request from the DCA, thats tough luck on the DCA

[BRIGADIER2JCS]

The purpose here is to try and assist the OP not to complicate matters for them.

[postggj]

as far as i see it the poster requires a copy of the agreement as to his CCA request

 

the DCA passed that request onto the original creditor who has replied "get lost" not my problem

 

i have just stated under case law that it is the DCA who has the ultimate responsibility in producing the agreement, not the OC

[cerberusalert]

I was to at first it appears that the OP has been informed that the

account is closed not paid off so S78 request is not valid.

DCA has attempted to aquire the agreement, OC states correctly

CCA '74 sect 78 no longer applies as the account is close (correct).

 

"Section 78 only applies during the lifetime of the agreement. As the above numbered account has been closed, and the balance paid off in full, there is no longer a regulated agreement between ourselves."

[postggj]

so i ask the question

 

if the account has been paid in full and closed down by the OC

 

what credit agreement then has been sold to a DCA

 

the OP can rightly state that their is no debt owing as confirmed by the OC

 

A DCA only pays a percentage of the debt, never pays off the balance in full unless it is a live account when sold

Edited July 28, 2012 by squaddie

[huggy41]

subbing

[dx100uk]

It's so old I don't remember but what action can be taken if no credit agreement is available. I have made a request for the agreement and they have said they do not have it.

 

is this debt on your cra file please

 

dx

[afcwben]

I will have to look at my cra file.

 

But as Stated it seems no one has a copy of the original CCA.

 

The dca does not have it that is why they sent the request to the original creditor

who state the account is paid in full.

 

I never paid it off so it is a bit confusing.

 

I am assuming that this debt can not be enforced because at the end of the day I can supply a letter from the original creditor who state the account has been paid in full

[BRIGADIER2JCS]

It could be it's paid because a DCA has bought the debt.

[afcwben]

That may be the case but who knows

[cerberusalert]

It could be it's paid because a DCA has bought the debt.

 

Even if that were the case if it were true what they are saying then no creditor would have to provide a CCA under s.77/78 once a debt is sold which as we all know is total bowlarks.

[postggj]

i will say it again, and again

 

under a CCA request, the person (DCA) demanding payment has the legal obligation to provide the debtor with a copy of tghe agreement as to godebt v critchley if requested by the debtor and enclosing the £1.00 fee

 

that is case law

 

end of

[Ivan56]

But how often do we see the DCA telling the debtor to contact the original creditor. Is there a template letter for a CCA request where the DCA tell the debtor to contact the original creditor?

[dx100uk]

at the end of the day it matters not.

 

from the date you send THE DCA a CCA request

THEY have 12+2 working days to produce it.

 

matters not HOW they/you get it, the clock is ticking.

 

IF they dont, fire off the failure to comply - stop payments.

 

dx

[ScarletPimpernel]

The OC can't claim that they no longer have the agreement, either, since anti money-laundering regs require them to be kept for six years after the account is closed.

[afcwben]

The OC can't claim that they no longer have the agreement, either, since anti money-laundering regs require them to be kept for six years after the account is closed.

 

They are not claiming they dont have the agreement what they are saying is

 

"Section 78 only applies during the lifetime of the agreement.

 

As the above numbered account has been closed,

 

and the balance paid off in full, there is no longer a regulated agreement between ourselves."

 

[Bandit127]

When a DCA purchases a debt, they also gain the benefits and duties that come with it. One of those duties is to provide true copies of agreements and statements of account under the CCA.

 

Therefore the owner of the debt has the duty to comply with a CCA request. In this case the DCA. The OC quite rightly denies that they are responsible - because they are not - they do not own the debt so do not have the duties.

 

They will (or should) hold the original agreement for 6 years after the account was closed. On your CCA request, the DCA will apply to them for a copy of it so that they can satisfy the request.

 

If you want to see a copy of the original, you need to do a SAR under the Data Protection Act 1998. This costs £10 and you should search for a template letter to send to get this right. Obviously, the SAR will go to the OC as you want a copy of the original agreement which they should (i.e might) still hold. As above, the DCA won't have it

 

The whole system would work a lot better if DCAs got the paperwork along with the debt. (Partly because they wouldn't have the archive and retrieval systems the banks have and that would do us poor, bullied debtors a favour).

 

One bank - HSBC - still seem to insist on a proper signature on the SAR request before they will action it. I am testing this myself at the moment...

Edited July 31, 2012 by Bandit127

[BRIGADIER2JCS]

BUT on very many occassions the DCA has to request

a copy of an agreement from the OC as it is not often

if ever provided at the point of sale!