Unenforceable agreements under the Consumer Credit Act

[nohappybunny]

cheeky bump http://www.consumeractiongroup.co.uk/forum/general-debt-issues/253083-checking-validity-credit-agreement.html any offers?

[simongc]

just wondering if any one can help, barclaycard have taken over a credit card account of mine,, i have asked and payd for a credit agreement , but all they have sent is a agreement that is unsigned , no date etc , they now refuse o speak to me and do not return any letters i send ????

[cerberusalert]

just wondering if any one can help, barclaycard have taken over a credit card account of mine,, i have asked and payd for a credit agreement , but all they have sent is a agreement that is unsigned , no date etc , they now refuse o speak to me and do not return any letters i send ????

I'd be tempted to send them Scotts letter below & see what their response is;

 

Re: my request under the Consumer Credit Act 1974

 

Thank you for your recent letter sent to me, the contents of which are noted. I appreciate your quick response to my original letter. However, the reply received by me does not fulfil your requirements under the Consumer Credit Act 1974.

 

The Act demands that I be supplied with a true copy of any properly executed credit agreement that exists in relation to the above account. I may ask for this on demand providing that a fee of £1.00 is paid. This fee was sent with my original letter.

 

My request remains outstanding. The items you sent in your reply, does not constitute a true copy of any credit agreement that may or may not have been signed by me on the opening of this account. It neither confirms that I am liable for any alleged debt to you, nor gives me any chance to evaluate whether any original agreement was ‘properly executed’.

 

I still require you to send me a true copy of the original credit agreement that you allege exists. As you will know, under the Consumer Credit Act 1974, a judge is not permitted to make any enforcement order unless the creditor can provide a true signed copy of the original credit agreement. This means that unless you can produce such an agreement, this alleged debt is not enforceable in law.

 

You had until XX/XX/2008 to provide me with the true copy I requested. You are now in default of my request. Any account I hold with you is now in legal dispute. Whilst the account remains in dispute, you are not permitted to ask for any payment, nor am I obliged to offer any payment to you. Furthermore, whilst the dispute remains, you are not entitled to charge any interest on the account, nor make any further charges to the account. Additionally, you are not entitled to register any information on this account with any credit reference agency.

 

To register information with a credit reference agency, you must have written consent from the customer to collate and share such information. This consent is given in the form of a signed credit agreement, so until you produce such an agreement, you may not do this.

 

The requirement for consent to share data is a clear requirement of the Data Protection Act 1998. any such attempts to share my data without my consent will be met with a complaint to the Information Commissioners Office

 

To sum up, I will not be making any further payments to you until you provide me with the document I have requested. Whilst you remain in default of my request, you are not permitted to take any action against this account. This includes adding further charges and passing any information to the credit reference agencies.

 

If you intend to send a reconstituted copy of the CCA you must declare the reason why it has been reconstituted and if the original exists and in what form (microfiche) etc.

 

Should you not have any signed credit agreement in relation to this alleged debt, please confirm this in writing to me.

 

 

I look forward to your reply.

 

Yours faithfully

Print name do not sign

 

**amend to suit your circumstances.**

[redmist61]

I have just missed a payment for my loan due to refusal of a direct debit by my bank with Hitachi Capital Consumer Finance. Now having received a defalt notice from Hitachi for the first time, and also at a higher rate than stated in my agreement with Liverpool Victoria, wonder if this loan agreement is actually valid and enforceable by Hitachi. I origianlly signed the contract with Liverpool Victoria in 2007 and do not consider Hitachi as the creditor? Could anyone give some advice regarding this and how to take steps to investigate if the loan can be written off?

[Bigdebtor]

First thing to do is to ensure they have an enforceable CCA - use the CCA request letter and send off the £1 fee to them to find this out.

 

BD

[caro]

I have just missed a payment for my loan due to refusal of a direct debit by my bank with Hitachi Capital Consumer Finance. Now having received a defalt notice from Hitachi for the first time, and also at a higher rate than stated in my agreement with Liverpool Victoria, wonder if this loan agreement is actually valid and enforceable by Hitachi. I origianlly signed the contract with Liverpool Victoria in 2007 and do not consider Hitachi as the creditor? Could anyone give some advice regarding this and how to take steps to investigate if the loan can be written off?

 

Why do you think the loan may not be enforceable? Don't forget that a judge can, and quite possibly would enforce it, and even if it isn't enforced it doesn't mean that the debt doesn't exist.

 

The fact that you've found your way to cag, missed payments (must be more than one for a default notice) suggests that times are hard for you and you're looking for answers.

 

I suggest that you do a lot of reading before deciding how to proceed, because although there has been some success in people getting rid of debts due to unenforceable agreements, there have probably been more it hasn't worked for. You need to be ready to read and understand lots of legal issues and in all probability be prepared to go to court to explain it to a judge.

 

I'm not saying it can't be done, because it can, but you must be prepared for a battle, which might cost you more than you owe now. Before you decide take a read of sequenci's blogs. http://www.consumeractiongroup.co.uk/forum/entry.php?256-Sequenci-s-Debt-Diaries-Blog-Home

 

Sorry if I haven't answered the question you asked, but Big Debtor has, and I just wanted you to know it's not the easy option it might appear on the face of it.

[redmist61]

Where do I find a template to customise for the CCA request letter please?

[cerberusalert]

Where do I find a template to customise for the CCA request letter please?

 

http://www.consumeractiongroup.co.uk/forum/content.php?414-CCA-request-letter.

[steven4064]

redmist

 

Please be aware that it is now inadvisable to try and get rid of a debt through athe unenforceable credit agreement route.

[Bigdebtor]

I agree with what Caro and Steven say about the dangers of just fighting on this front. However it CAN be very useful as a weapon to agree a low F&F.

 

The usual scenario quoted is a Judge saying "you've had the money - so now pay it back".

 

I've not yet HAD to go to Court - and would NEVER volunteer to do so as a Claimant - but if forced to go as a Defendant then I would ensure I knew if I had actually paid back MORE than the amount borrowed (or balance owing) so I could counter with... "I borrowed £xxxx and have so far repaid £yyyy (where y exceeds x) - so I've actually paid back more than I borrowed. I need the agreement to confirm if I've repaid all agreed interest or not - so without it I can't answer the question of how much I might still owe - and neither can the Claimant.

 

Just IMHO - and based on my F&F (not court) experience

 

BD

[steven4064]

BD

 

You are right. There is another aspect though - when the creditor comes up with a reconstituted agreement.

 

In the past, we have argued that these are not enforceable (they don't have a signature, they don't always have the prescribed terms, etc) but recent cases have ruled that reconstituted agreements nit ony satisfy s78 but are also enforceable. I strongly recommend that no-one starts a case based solely on an "unenforceable" agreement. IMHO, to stand any chance, you must also be reclaiming mis-sold PPI or late payment penalties.

[Bigdebtor]

Steven

 

I don't disagree - but for anyone in Scotland the situation is actually a lot better. The Claimant must aver to the Court that they have an original signed agreement before they can issue Court papers. Many DCA's will try their luck and do so anyway - but if their bluff is called they would be in seriuous trouble up here for abuse of process.

 

Is CPUTR 2008 not the best way to flush things out after just getting a reconsituted agreement - and hopefully avoid any risk of Court action if all they can produce is a reconstituted agreement - i.e. not even a legible microfiche printout of the signed original?

 

BD