HBOS CCA Request - Reconstituted Copy s78 Compliant??

[DJM10118]

update.

 

 

Received two responses from Lloyds Bank today.

 

 

Loan account - need signature to process the letter etc etc. funny that as I have received a response for my credit card account without a signature!

Credit Card account - sent s78 recon docs. They have also sent the original signed 1974 agreement which does have my signature on it. Does the form have to be counter signed by the lender as per s61 (1)

 

 

Esure (BOS) - sent signed agreement form with t+c on the back so looks ok under s60/61. No statement of account as per my s78 request.

[BRIGADIER2JCS]

Was the Lloyds letter a SAR? These should always be signed.

[fletch70]

Hi

For the info request no there is no requirement for it to be signed.

Seems odd they are sending you the original and a recon.

Again really needs to be looked at

 

As far as if it was a SAR , as far as I know yes it does need to be signed BUT the question of what counts as a signature is open to interpretation

[DJM10118]

These are all responses to my CCA requests, not SAR. I haven't had chance to do the SAR's yet but will work on these at the weekend. For instance the CCA 1974 from BOS (Esure) has my signature and a signature on behalf of the lender. The BOS (Esure) also includes all he prescribed terms i.e Apr amount etc. The LLoyds Bank only has my signature on it and the place to be signed by Lloyds is blank. Reading the S61 (1) then unless it is signed on behalf of LLoyds Bank then it is UE??

 

 

Signing of agreement.E+W+S+N.I.

(1)A regulated agreement is not properly executed unless—

(a)a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and

 

 

 

 

 

 

　

 

[BRIGADIER2JCS]

My apologies badly phrased, there have been many amendments to CCA'74 plus the creditors/DCAs can now provide reconstituted agreements which if properly constructed

may satisfy a sct, 77/78 request made under the Act

 

 

Do not have to have any signatures.

 

 

File copies of agreements like file copies of letters are unlikely to have the 'lenders' signature.

[fletch70]

DJM

 

I have a feeling that there has been a case where it was ruled that the agreement does not have to be signed by the lender however why I have that feeling I do not know. I know that I keep rattling on but without seeing what they have sent no one can really give an opinion.

 

Just to be accurate I am fairly sure there has been no actual amendment to the act allowing recons but the Carey case which was a High court decision and therefore is ninding on lower courts says that a recon is acceptable so long as it is accurate

 

Maybe you could PM a user called Dodgeball to come and have a look, he is more knowledgeable than me or a member of the site team called sequenci

[citizenB]

I wasnt aware that the CCA had actually been amended to allow recons !

 

I think what you will find is that the lender will simply be allowed to sign the agreement and then it endures.

 

If YOU havent signed it, then that is a different matter.

[DJM10118]

getting a bit confused myself as to what is required and what isn't. This is how understand it but correct me if I'm wrong

 

 

s78 This can be a recon (true copy) of the original agreement at the time of inception - no sig required. Used for info only and statement of account.

s60 This must be the executed agreement and include prescribed info such as apr, total amount, duration, signature (debtor and lender?)

s61 For the agreement to be enforceable by court order in must comply with s60 as above.

 

 

From what I understand after the CCA the lender should send me a statement of account as per S78 and a copy of the signed executed agreement as per s60. So 3 of the 6 CCA letter have had a response.

 

 

1. HBOS sent statement of account S78 compliance but will apparently send a copy of the original agreement to comply with S60/61 in due course. They insist that by law they do not have to supply the executed agreement and the account is still enforceable -

 

 

Should I send a letter stating they haven't legally complied with the request under s60/61 and I am therefore withholding payments until such time they can present this?

 

 

2. Lloyds Credit Card - sent statement of account and a copy of the original signed agreement. This is signed by myself but not the lender. There is some debate as to whether the lenders signature is required to be enforceable under S61 (1). I have other agreements which are counter signed by the creditor so I assume this is a legal requirement as there is a box provided to do this.

 

 

3. Lloyds Loan - sent a response suggesting they need a signature to process my s78 and s60/61 request.

 

 

I will be sending a letter saying they don't need a signature to process the request and I expect the documents to be sent through. Can I notify them that I will be holding payment until they send the documents or do I need to send them another letter giving them another chance to rectify?

[fletch70]

Ok my understanding is this

http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/OFT1272.pdf

 

That is quite useful

Also have a look at this..section 1

http://www.legislation.gov.uk/ukpga/1974/39/section/77

 

and this section 1

http://www.legislation.gov.uk/ukpga/1974/39/section/78

 

This tells you what they need to send but from the Carey judgement it can be a recon . I think that is explained in the OFT guidelines

 

Remember there need to be terms from inception i.e the start and terms from default(or current)

 

Now all that is well and good, if they don't provide it they can not enforce but that can be put right

 

Then we go to the execution of the agreement. It must be set out in the right way and if it isn't then it is unenforceable and can never be put right. A good example might be on a loan where there is an arrangement fee which they have included in the total charges but it should all be listed separately. Without looking at them no one can really say

 

Now sometimes they will send you a recon so that ticks the S78 bit but if you have good reason to say I did not sign that or what I signed did not comply then they will not be able to enforce. A lot of that is down to you and the judge on the day . I have an example where they have sent what I believe to be a recon but with my signature, now I will argue that I did not sign that document because the penalty charges that are showing were not in force at that time

 

As someone else said, it might be a recon with a telephone number that was not in use at the time for example when did london go from 0171 to 0207 and leicester from 01533 to 01162. If they are sending that sort of stuff it is not a true copy

 

Then we have application forms that have all the prescribed terms on them, well they then have to show they had a good system in place to send out the terms and conditions with the card

 

Finally we have default notices (if you have them) . Very often these are wrong as they are not set out in the proper way. If the account is still with the original creditor generally they can just reissue one but if it has been sold they can not.

 

I really hope that makes sense.

 

I can not pm but I will contact Dodge and ask him if he can look in

 

It really would help if you could scan (or take pictures) of everything they have sent you and post them up . Remove any personal details but whatever you do just block them out so the original stays complete(do not put marker pen or tape over them in case you ever need to show them).

 

 

As for a signature, they most certainly do not need one

 

Account No: XXXXXXXX*

Thank you for your letter dated XX/XX/XXXX, the contents of which have been noted. In your letter you make reference to requiring my signed authorisation before you will comply with my CCA Request.*

I'd like to draw your attention to the fact that the Consumer Credit Act 1974 does not require that I supply you a copy of my signature. If it is for Data Protection purposes then I can supply you with documentation to substantiate my identity to you. However, I note that to date you have been sending statements and correspondence containing sensitive information to my address. If you have doubts that you are corresponding with the wrong person, why has it taken you so long to raise this?*

As you are aware, disclosing data without adequate checks of identity is contrary to the 7th principle of Data Protection, listed in schedule 1 of the Data protection Act 1998:​

Appropriate technical and organisational measures shall be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data.​

There is no provision that removes the requirements of the Act to provide this information on time, even if you are unsure of my identity, therefore this account looks likely to become unenforceable until such time you actually respond to my lawful request for a copy of the agreement. I look forward to receiving the documentation requested, within the next 14 days.​

Yours faithfully,

​

Sign using a computer font

 

I have used this with some success and then Dx100uk posted this something from the select commitee on trade and industry but I am afraid I can not post attachments on this thread

[ims21]

Dx100uk posted this something from the select commitee on trade and industry but I am afraid I can not post attachments on this thread

 

It is here in post #5

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?411841-Signature-required-for-CCA-request

[SWLABR9]

Fletch did you get this right? "Then we have application forms that have all the prescribed terms on them, well they then have to show they had a good system in place to send out the terms and conditions with the card" The problem with application forms is they send out photocopies of just the front of them complete with signatures along with assurances that all or part of any relevant terms and conditions were on the back. The problem then is they don't have T&Cs with them and while (in my case anyway) they've sent out several loose pages of T&Cs with my name and my then address typed on them there's nothing to suggest these were anything to do with any agreement that's anything to do with me, certainly no signature of mine nor anyone else's on there nor any space for signatures either. All they prove is that someone can type, that's all.

[DJM10118]

Thanks for your help and I will read through the oft guidelines. I will try and post up some scanned images over the next day or so to see if we can get some feedback.

[DJM10118]

Hi All,

 

 

Hopefully I have attached some pdf files of the HBOS response to my CCA request as discussed in another thread.

 

 

So according to their letter they have no obligation to supply the signed executed agreement for the account to be enforceable. They did suggest that they will send it later as per my s60/61 request.

 

 

Is this correct?

 

 

What should I do next?

Edited February 13, 2014 by dx100uk
attachments merged and redacted - dx

[ims21]

Two threads merged

[sequenci]

Further info can be found in Under the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 - Pay particular attention to section 3(2)(a):

 

General requirements as to form and content of copy documents

 

3. (1) Subject to the following provisions of these Regulations, every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall be a true copy thereof.

(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 cancellable 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); .

©in the case of any copy of an unexecuted agreement delivered or sent to the debtor or hirer under section 62 of the Act, the name and address of the debtor or hirer; and .

(d)in the case of any copy given to the debtor under section 77(1) of the Act of an executed agreement for fixed-sum credit under which a person takes any article in pawn, any description of the article taken in pawn.

 

You will then apply that along with the findings within Carey.

 

As far as a lender's signature is concerned - an agreement without one can be enforced by leave of the court - regardless of when it was entered into. It's a bit of a non-starter given that.

[DJM10118]

Hi IMS21

 

 

Did I merge them by accident or is this something you have done to keep consistency?

[ims21]

Hi IMS21

 

 

Did I merge them by accident or is this something you have done to keep consistency?

 

Yes I did it so that all of the history is in the one place.

[DJM10118]

Sequenci,

 

 

Looking briefly at the reconstituted "copy" documents they appear to be the same (inception and current). What does this prove other than somebody can copy my old address into the apparent recon documents. It would seem that unless I have my own copy of the original paperwork than there is no way of saying whether it is a "true copy", other than taking the creditors word for it. It would appear that the only difference between CCA (1) and CCA (2) as per the attached files are that the address has been changed.

 

 

How can the debtor/lender prove that this is in fact a true copy without the original. Could I not simply state that I never signed an agreement in accordance to the recon copies thus putting the account in dispute?

 

 

So the purpose of S78 is to gain access to information with respect to the account. The creditor can provide what they consider a true copy of the agreement as long as it complies with Reg 1983 section 3 etc. Whether this is accurate I will never know without the original which they don't have to supply by law. Isn't this a case of debtors been unable to challenge the info as the original is held by the lender. Surely if they hold the original they must supply rather than a recon?

[fletch70]

Fletch did you get this right? "Then we have application forms that have all the prescribed terms on them, well they then have to show they had a good system in place to send out the terms and conditions with the card" The problem with application forms is they send out photocopies of just the front of them complete with signatures along with assurances that all or part of any relevant terms and conditions were on the back. The problem then is they don't have T&Cs with them and while (in my case anyway) they've sent out several loose pages of T&Cs with my name and my then address typed on them there's nothing to suggest these were anything to do with any agreement that's anything to do with me, certainly no signature of mine nor anyone else's on there nor any space for signatures either. All they prove is that someone can type, that's all.

 

What I was saying is that if they send you a copy of the application form that have all the PTs visible they would still need to send you the T&C's however my understanding is that so long as the T&C's were delivered with the card they would have executed it properly. Just the application form in itself is not enough.

 

I do believe that if they could show that everything had been there they could still win but that is a mountain for them to climb, I think they would have to show a blank application form of that time which I doubt very much they would have.

 

Sadly IMO as there are more badly defended cases that proof will become easier.

[fletch70]

DJM

 

When exactly was the agreement taken out?

 

If the terms and conditions are identical as in , interest rates, penalty charges etc I would suggest they are wrong. Penalty charges changed in 2006 (I think) and by their own admission the interest rate is now 0 .

 

I am now getting more and more confused as to exactly what you have sent them and what they have replied with

[DJM10118]

Hi Fletch

 

 

Sorry if I am confusing the matter but I am a little confused myself. I have attached the cover letter and first page of each recon copy to show you what they look like (there are more pages included but not copied these) The only thing I have sent to HBOS is a CCA request as previously discussed in the thread and the response is attached.

 

 

Account opened 12/07/1999 - default April 2009 therefore on DMP with 0% interest. with Blair Oliver & Scott DCA

 

 

At present I am struggling to understand why a CCA request would be beneficial as all they have done is sent me a statement of the account, a recon of the PT for apparently when the card was taken out back in 1999 and a recon PT which I assume are the current terms at the time of default back in April 2009.

 

 

What does this tell us other than they can use a word processer? Apparently according to their cover letter they have complied under S78 by providing the two recon PT documents and the account is still enforceable. Who's to say these are what I signed if I signed them at all back in 1999?

 

 

What is the point of requesting a s60/61 if its not legally required to enforce the account.

 

 

This is all information I knew already so what difference has the CCA request made?

[dx100uk]

the original idea was from you initial thread here:

http://www.consumeractiongroup.co.uk/forum/showthread.php?415099-Best-Course-of-Action-Outstanding-Debt

 

this is obv a debt that is still with the OC

all be it their in house pet dca.

 

typically we find they have the info...

would say what they have and what they can prove is good enough

so

for this debt

 

carry on paying

 

why not get an SAR and check the statements for charges/PPI?

 

i'd be moving on to the next debt.

[DJM10118]

Cheers dx

 

Maybe a misinterpreted the value of the CCA request.

 

I mistakenly assumed that they would need to provide some evidence that I had signed the agreement

and had taken out the finance in accordance with their PT.

 

So if you are a victim of identity fraud how would you prove you never took out the finance if under s77-79 all they have to supply is a true copy?

 

Surely if you challenge the creditor under these circumstances they will say they have it even if they don't and its enforceable, unless you can prove otherwise.

 

Now I'm not saying the banks will have a tendency to lie to get some money out of you!!

 

What is the point of having S60/S61 if not to protect the consumer?

 

Never took out PPI with loans etc (if you haven't got the money they cant take it philosophy)

I will have to look at the charges part under a SAR.

I know I did get a lot of failed DD charges at £25 a time with HBOS if these are applicable?

[fletch70]

Thanks DX for the link

 

It is halifax that have confused me saying about you 60/61 request. I thought you had asked them for something else

 

From experience Halifax do not sell on debts that are being repaid, certainly two of mine stayed with them even though the agreements made the UE. Once I stopped paying they sold them on.

 

It seems to me that they have sent a recon to cover themselves under S78 and are now looking for the actual agreement. It does concern me that you say the two sets of terms are identical, certainly if the ones from 1999 include penalty fees of only £12 then they are not accurate and equally if the ones from default include fees of more than £12 they are not accurate.

 

Based on what you say the accounts sound a bit dodgy but you are in a riskier position than me in that you have a house and income.

My feeling is that they will not be able to provide the original agreement but I don't feel confident enough to advise what to do.

[dx100uk]

if fraud were to be involved

then obv there needs to be a different 'tac' to the way you proceed.

 

that should ideally be via say actionfraud or alike

whereby other matters would be brought into play during any investigations.

in those instances, there would be more emphasis toward who did sign the paperwork

or other such proof a creditor would have to provide.

 

as for the DD charges,

in a nutshell, any 'fixed sum' fee like returned DD, late/over/letter/phone/debt management fees are a PENALTY

thus they are unlawful and reclaimable.

 

dx