Lowell - Legally do not have to provide a true signed copy of credit agreement.

[miss_boriz]

Hi,

 

Can anyone advise

 

if a debt has been sold,

do the original creditor has to provide a true signed copy of the credit agreement

or is it the company that has bought the debt has to provide the agreement??

 

I just recently had a letter back from Lowell stating that they do not have to provide the agreement

as the default notice was received from the original creditor.

 

According to Lowell it was not them that recorded the default it was the original creditor.

 

Therefore, do I need to contact the original creditor to provide me with a true signed copy of the credit agreement.

 

Also, I have noticed that the account was first opened in 2004 which would definitely make me underage.

 

Please can anyone advise.

[Mike_hawk]

True copy...... yes, signed copy, no

 

Probably easiest to decipher if you could post a copy of your request for information and its response [less identifying data]

 

Underage, has the potential to be an issue for both parties.

[miss_boriz]

I will try and upload both letters tomorrow,

 

With regards to the account opening whilst I was underage, is it not up to the company to check these type of information and also if they cannot provide a true copy of the agreement then it is in their best interests to removed the default?

 

Can you advise on how i should proceed next?

[Mike_hawk]

I will try and upload both letters tomorrow,

 

With regards to the account opening whilst I was underage, is it not up to the company to check these type of information and also if they cannot provide a true copy of the agreement then it is in their best interests to removed the default?

 

Can you advise on how i should proceed next?

 

Probably best that we see the correspondence first.......... should it check, yes is the simple answer but without knowing your age or intent at inception I wouldn't like to form an opinion.

[maroondevo52]

Thread moved to Debt Collection Forum.

[Peterbard]

Neither party are under an obligation to provide a signed copy of the agreement.

 

A section 77-79 request made under the CCA requires them to send a true copy as defined by the regulations. but this does not have to contain a signature.

 

a request for a true copy can be sent to the DCA and they must action it themselves or pass it on to the creditor (section 175 CCA)

[Peterbard]

Oh and the creditor does have a statutory obligation to ensure that the prospective lender is over 18

[miss_boriz]

Thanks,

 

Therefore, are you saying i should contact the original creditor and asked them for a true copy of the Credit Agreement?

[Peterbard]

No you can contact the dca and quote that you require a true copy as per the cca section 77-79, there should be a template on her somewhere.

 

If you ask for a true signed copy they will probably refer you to the original creditor(who will probably just say sorry we do not have to supply one).

[Mike_hawk]

Depends on your understanding of which is the creditor......

 

Creditor means the person providing credit under a consumer credit agreement or the person to whom his rights and duties under the agreement have passed by assignment or operation of law, and, in relation to a prospective consumer credit agreement, includes the prospective creditor.

[miss_boriz]

Thanks,

 

Thats what i did, asked for a true signed copy of the agreement and they have told me that it wasnt them that recorded the default it was the original creditor.

[miss_boriz]

Depends on your understanding of which is the creditor......

 

Creditor means the person providing credit under a consumer credit agreement or the person to whom his rights and duties under the agreement have passed by assignment or operation of law, and, in relation to a prospective consumer credit agreement, includes the prospective creditor.

 

Sorry, i really don't understand. I just need to know do i write to the original creditor or to lowell.

[Peterbard]

Thanks,

 

Thats what i did, asked for a true signed copy of the agreement and they have told me that it wasnt them that recorded the default it was the original creditor.

 

It doesn't matter who you send it to section 175 says that the request should be forwarded on to whoever is the creditor anyway, the point is that no one is under any obligation to send a signed true copy.

 

A "true copy" as defined under the act does not have to be signed.

[miss_boriz]

oh ok. How do I get them to send me a copy of the agreement? I need to proof that the default recorded was illegal as I have not signed an agreement with them. Sorry for asking these simple questions but I have no idea what to do.

[Mike_hawk]

Sorry, i really don't understand. I just need to know do i write to the original creditor or to lowell.

 

Per Dodges response......... no signed copy required - doesn't matter how you frame the question there is no obligation for it [assignee or assignor] to comply if a stat request for information.

[Peterbard]

You could try a SAR under the data protection act 1998, again there is a template on here, this will cost you £10 and remember to state that you require a copy of the agreement as well as any other data.

 

It may result in a copy of the original agreement it may not(it depends if they have one), if it doesn't it cannot be used as proof that one was/was not signed sadly.

[Desperate Daniella]

Who was the original creditor?

[havinastella]

oh ok. How do I get them to send me a copy of the agreement? I need to proof that the default recorded was illegal as I have not signed an agreement with them. Sorry for asking these simple questions but I have no idea what to do.

 

It's not illegal.

[dx100uk]

correct unlawful its a civil matter not criminal

 

however.

 

tell us about the debt please.

 

what it all about and what was it.?

 

dx

[citizenB]

 

While DCA argues they are not the Creditor, the law says different, as such when DCA purchased the account they are now obliged by law to provide you with any document you ask for within the timescales set by the original agreement, if DCA having bought the account do not know what the terms and conditions of the original agreement were, and are unable to provide a copy for you, IMHO they are in breach of 16.5 of Section 82 CCA

 

Effectively the original creditor is history, having served a default notice upon the borrower the original creditor is entitled to pursue litigation of his own accord or sell the account on.

 

The assignee is treated as a new entity and the case must reflect what has happened since the date of assignment, the assignee now held in law as the creditor is required to send the borrower monthly statements of account, failure to make payments by the due dates the assignee must send notice of arrears and default notices as per CCA rules.

 

The particulars of claim can be defended, whereas before claimants such as Arrow Global make a vague statement of case based on perception it is very easy to put a spin on it whereby the claimant has no hiding place.

 

Section 82 Consumer Credit Act 1974 a new directive issued, which reflects the new European Union Directive Assignment of Rights

 

16. ASSIGNMENT OF RIGHTS

 

16.1 Where any rights of a creditor under a consumer credit agreement (for example the right to be repaid the money) are sold or transferred to a third party, notice of that assignment must be given to the borrower as soon as reasonably possible, except in the circumstances described below. This requirement applies to all regulated consumer credit agreements other than agreements secured on land. This requirement is in new section 82A of the CCA43.

 

 

16.2 It is the responsibility of the assignee (the creditor acquiring the rights) to ensure that notice is given. However, he does not have to give notice himself, but can agree with the assignor (the creditor assigning the rights) that the assignor will give notice instead, depending on what is more sensible in the circumstances. It is important, however, that notice is given as soon as reasonably possible and in a way that is clearly understandable by the borrower.

 

 

16.3 Notice does not have to be given where arrangements for servicing the credit are unchanged as far as the borrower is concerned. For example, if Creditor A sells his rights under a credit agreement to Creditor B but Creditor A still collects the borrower’s repayments in the same way and is the only point of contact for the borrower on matters regarding the agreement, notice does not have to be given.

 

 

16.4 Where notice has not been given, and arrangements for servicing the credit do subsequently change, the borrower must be informed of the assignment on or before the date that change happens. Again, this must be readily comprehensible to the borrower.

 

 

16.5 The definition of "creditor" in section 189 of the CCA applies to this new requirement on assignment of rights. This means that when an assignee purchases debts (or otherwise acquires rights under a credit agreement) it also acquires certain obligations to the borrower including the duty to comply with CCA requirements (such as the rules on statements and notices and other post-contractual information). The assignee becomes the creditor under the agreement. This ensures that essential consumer protections under the CCA cannot be circumvented by assigning the debt to a third party."

 

 

 

It is my understanding that it is for the "new owner" to provide the document requested ?

[BRIGADIER2JCS]

What makes you think the default may be incorrectly placed?

 

Please also be aware there is no obligation on the creditor to supply a copy of the agreements with a Subject Access if you specifically ask for it or not, sections 77/78 of The Consumer Credit Act 1974 (as amended) are in place to allow you to obtain the agreement.

 

An compliant agreement may also be provided as a reconstituted copy, i.e., All the terms & conditions applicable to the original agreement from inception to closure, any amendments to those conditions, and any other document mentioned in them.

 

The recon Must have your name/address at the inception of the agreement and the creditors name and address at the inception.

 

This can satisfy a section 77/78 request and may with other data/evidence such as statements showing usage of a credit facility, e.g. payments to the account and drawings made upon it.

 

Agreements made prior to April 2007 are exempt from some parts of the amend Act and the original agreement or a proper copy thereof must be provided to enforce it in court.

[Peterbard]

Under the SDA data ontrollers are compelled to produce all data relevant to the data subject of course , no matter if it is agreements or statements or letters, it is all data.

 

The question of the production of signed documents has nothing to do with 2007 or the repeal of section 127(3-5) of the act, in fact there has just been a documented case where an agreement has been enforced which was dated pre 2007 without any agreement at all.

 

All the creditor need do is show on the balance of probabilities that an agreement was signed.

[Desperate Daniella]

But in a lot of cases we know that "agreements" weren't signed. Application forms with no prescribed terms were signed. Therefore they did not comply with the Regulations of the CCA 1974 and can't be enforced.

[Peterbard]

But in a lot of cases we know that "agreements" weren't signed. Application forms with no prescribed terms were signed. Therefore they did not comply with the Regulations of the CCA 1974 and can't be enforced.

 

Far better to be able to prove this by presenting the improperly executed agreement in this case, otherwise it is down to the court to decide on balance of probabilities and that could go either way.

[new-me2010]

Dear Miss B

 

If you want the best and correct advice it's best to answer the questions you are asked and give the whole story then you will get the advice needed.