Debt Collection Agencies & Consumer Credict Act 1974

[stiffnuts]

Yes, I read page 25, which is what brought me round to your way of thinking. I suppose I should read the whole lot together and try to get a clearer idea but I don't think I have the time or the peace to do so. Are there no published authorities on this which give opinions to back up your arguments?

 

It just concerns me that there is so much interpretation involved in this. It would be nice if there was an independent source we could refer to.

 

This is the thing its not opinion or interpretation. It is a matter of fact. The reason why I have shown you the OFT PDF file is that it is written for ordinary people. Page 25 is the best way of conveying this fact.

 

If you dont deal with the law then its very hard to get your head around (and please dont think Im being rude to you Im not).

 

The regulations are very prescriptive on this matter.

[martinpar]

This is the thing its not opinion or interpretation. It is a matter of fact.

Well that's just your opinion as you interpret it. Sorry- couldn't resist that

 

The reason why I have shown you the OFT PDF file is that it is written for ordinary people. Page 25 is the best way of conveying this fact.

Yes but looking at page 25 in isolation does not spell out how it refers to the copy we are all talking about. I would actually read it as reinforcing the argument that a signed copy is not required but I accept what you say, that it is meant to refer to only the original documents.

 

If you dont deal with the law then its very hard to get your head around (and please dont think Im being rude to you Im not).

I understand what you're saying but if it's so clear, as you say, why are we all arguing? There is always an element of interpretation in any legal document. The final say will always rest with a judge.

 

You, or perhaps not you, earlier in the thread made the point 'why do creditors supply a signed copy if it's not needed?' This is a good point but I myself am in possession of a letter from an assigned creditor who have stated:

'If we are unable to forward a copy of the original agreement, we will be able to supply a true copy of the document which will comply with section 78 of the Consumer Credit Act 1974'

 

That tells me that they don't believe that a signed copy is required, depending on what exactly they mean by 'true copy of the document'.

 

I really want you to be right and I instinctively feel you are but I also feel I need to test this more tightly, that is why I am appearing awkward.

[zootscoot]

A SIGNATURE IS REQUIRED. If it wasnt the it would totally defeat the purpose of section 77/78.

 

 

The main thrust of s.77/8 is that the debtor is provided with a statement of account and setting out how much remains to be paid. The inclusion of copy agreement is ancilliary to this and ensures that the debtor is aware of the terms in order to check the correctness of the statement. s.77/8 is not about proving the agreement.

 

Zootscoot it is more and more starting to look like you have an alteria motive in this subject, and I would go as far as to say that you are hoping that a signature is not required.

 

My only motive is to ensure people on this forum are given the correct advice and do not run the risk of further defaults or CCJs.

 

In fact Zootscoot do you know anything at all

 

I have a law degree and have lectured in law for 6 years including contract and consumer law.

 

Yes they are all wrong.

 

What makes you think everybody else is wrong and you are right? You have still not stated any statutory provision which excludes s.77/8 from Regulation 3. The Reg 3 refers to a copy of any executed agreement under any section of the Act.

 

Reg 3(2)(b) only refers to copies under s.63 being excluded no where does is state s.77/8 is excluded. Reg 3(2)(d) provides for an additional ommission in relation to S.77/8 in the form of no requirement to refer to pawn. It does not state that this then exempts s.77/8 from Reg 3 (2)(b).

 

The piece on p.25 also does not support your interpretation of the Regulations

 

In the case of both first and second copies, unless the box containing the appropriate statement of cancellation rights appears prominently on the first page of the copy, the first page must include a box as follows.

"This is a copy of your agreement for you to keep. It includes a notice about your cancellation rights which you should read."

The trader can, if he wishes, omit any signature boxes, signatures and dates except that the date of the customer’s signature must be shown in the case of first copies of agreements made by traders who have obtained a determination from the Office of Fair Trading exempting them from the requirement to send a separate notice of cancellation

rights (see below).

 

It states that a signature is required for first copies ie those given under s.63 ( the one given out within 7 days of making the agreement) which is specifically excluded from Reg 3(2)(b) whereas a second copy ie any copies following the first, do not require a signature.

[stiffnuts]

Well that's just your opinion as you interpret it. Sorry- couldn't resist that

 

Yes but looking at page 25 in isolation does not spell out how it refers to the copy we are all talking about. I would actually read it as reinforcing the argument that a signed copy is not required but I accept what you say, that it is meant to refer to only the original documents.

 

I understand what you're saying but if it's so clear, as you say, why are we all arguing? There is always an element of interpretation in any legal document. The final say will always rest with a judge.

 

You, or perhaps not you, earlier in the thread made the point 'why do creditors supply a signed copy if it's not needed?' This is a good point but I myself am in possession of a letter from an assigned creditor who have stated:

'If we are unable to forward a copy of the original agreement, we will be able to supply a true copy of the document which will comply with section 78 of the Consumer Credit Act 1974'

 

That tells me that they don't believe that a signed copy is required, depending on what exactly they mean by 'true copy of the document'.

 

I really want you to be right and I instinctively feel you are but I also feel I need to test this more tightly, that is why I am appearing awkward.

 

 

Personal Comments removed

[stiffnuts]

The main thrust of s.77/8 is that the debtor is provided with a statement of account and setting out how much remains to be paid. The inclusion of copy agreement is ancilliary to this and ensures that the debtor is aware of the terms in order to check the correctness of the statement. s.77/8 is not about proving the agreement.

 

 

 

My only motive is to ensure people on this forum are given the correct advice and do not run the risk of further defaults or CCJs.

 

 

 

I have a law degree and have lectured in law for 6 years including contract and consumer law.

 

 

 

What makes you think everybody else is wrong and you are right? You have still not stated any statutory provision which excludes s.77/8 from Regulation 3. The Reg 3 refers to a copy of any executed agreement under any section of the Act.

 

Reg 3(2)(b) only refers to copies under s.63 being excluded no where does is state s.77/8 is excluded. Reg 3(2)(d) provides for an additional ommission in relation to S.77/8 in the form of no requirement to refer to pawn. It does not state that this then exempts s.77/8 from Reg 3 (2)(b).

 

The piece on p.25 also does not support your interpretation of the Regulations

 

 

It states that a signature is required for first copies ie those given under s.63 ( the one given out within 7 days of making the agreement) which is specifically excluded from Reg 3(2)(b) whereas a second copy ie any copies following the first, do not require a signature.

 

 

Page 25 supports my point have you read it. Under the box the first paragraph relates to 3(2)(b) and the second paragraph relates to (3)(2)©.

 

Reference is made to section 77/78 in 3(2)(d) in square brackets shows that (b) and © do not apply read what it says.

[andrew1]

Go easy lads... we are all here for the same debate, try not to let personal bits come out...

[zootscoot]

So which provision exempts s.77/8 from Reg 3?

[stiffnuts]

So which provision exempts s.77/8 from Reg 3?

 

What do you mean what provision exempts s 77/78 from reg 3. Its not a matter of whether its exempt or not Reg 3 is quite clear in that the only thing that may be left out of an agreement given under section 77/78 is a description of pawn.

[zootscoot]

[(d) in the case of any copy of an executed agreement given to the debtor under section 77(1) of the Act for fixed-sum credit, or under section 78(1) for running-account credit, under which a person takes any articles in pawn, any description of the article taken in pawn.]

 

Where?

[stiffnuts]

 

Where?

 

errr yeah thats it, read the words

 

in the case of any copy of an executed agreement given to the debtor under section 77(1) of the Act for fixed-sum credit, or under section 78(1) for running-account.

 

page 25 supports my point have you read it. Under the box the first paragraph relates to 3(2)(b) and the second paragraph relates to (3)(2)©

 

DID YOU READ IT

[zootscoot]

Stiffnuts:What do you mean what provision exempts s 77/78 from reg 3. Its not a matter of whether its exempt or not Reg 3 is quite clear in that the only thing that may be left out of an agreement given under section 77/78 is a description of pawn.

 

 

[(d) in the case of any copy of an executed agreement given to the debtor under section 77(1) of the Act for fixed-sum credit, or under section 78(1) for running-account credit, under which a person takes any articles in pawn, any description of the article taken in pawn.]

 

Where is the word 'only'?

[elsinore]

As a very interested reader of this thread Stiffnuts, I for one am increasingly turned off by your pugnaciousness, arrogance and rudeness. I find it increasingly difficult to read the useful content of your posts because it is increasingly blanketed in bile.

You would help not only the members of this forum, but yourself as well, if you would just calm down a bit and engage in reasoned discussion rather than personalised rant.

Elsinore

[stiffnuts]

 

 

Where is the word 'only'?

 

It does not need to say only it is quite obvious that the regulations are primarily talking about section 62/63. Im not going to continue this anymore. Like I say go away and check your facts, write to the OFT or get a proper legal opnion.

 

Like I say I have a qualification in consumer credit law was taught by Bob Imrie (google his name), and specialise in this area, whilist having sat on a number of groups.

[stiffnuts]

As a very interested reader of this thread Stiffnuts, I for one am increasingly turned off by your pugnaciousness, arrogance and rudeness. I find it increasingly difficult to read the useful content of your posts because it is increasingly blanketed in bile.

You would help not only the members of this forum, but yourself as well, if you would just calm down a bit and engage in reasoned discussion rather than personalised rant.

Elsinore

 

What you have said is over the top and strong. Personalised maybe, but the rest I disagree with.

 

I have however amended my posts accordingly to remove the personal element.

[martinpar]

Stiffnuts, as I have said, I really want to believe you and common sense says you should be right but I too am being turned off by your attitude to someone who disagrees with you. All that is being asked is that you provide the evidence to back up your assertions. I cannot find fault with what Zoot says. What he says is what I read. It is no good you just sitting with your metaphorical hands folded saying 'I'm right'. Proof in the form of learned opinion must exist if it is correct. Just point me to it.

 

I may not be legally trained,as you have pointed out but I do understand English and this act is not couched in obscure legal terms and so should be easy enough to understand.

 

I too read 3(2)(d) as being additional rather than alternative to the previous clauses.

 

Perhaps you could prevail upon Bob Imrie to offer his opinion on here?

[andrew1]

From one of many who is interested in this debate it is a little sad that whenever we get to the nitty's of alot of these issues on points of law there's disagreement between the ' experts' and the argument dies in the water between those arguing parties.... the debate and knowledge is wonderful to have coming to be discussed - can it be so difficult to define the differences of opinion so that we are left with something factual to go on with? As Zoot says, "we are here to make sure that the information doesn't lead people to more defaults" I am sure both of you are only trying to help with the best possible intentions but I'd rather see you both thrashing this out peacefully rather than Stiffnuts getting upset because he is challenged intelectually. Stiffnuts your experience is welcomed on here with lights and bells try to keep going on an intellectual basis. Please...

[stiffnuts]

1. Bob Imerie will not give his opinion. If you are been turned off then Im sorry but this is an open forum and I dont believe my language was that strong. I have already stated my case, and i wont be writing on this board anymore.

 

2. Please fell free to seek clarification from the OFT that is what they are there for. Regardless of what the regs say or dont say and regardless of whether they are ambigous or not I will say that a signature is required. If it wasnt then any old creditor could make up anything they liked. I have given you my opinion and provided the evidence, now anyone else please feel free to either take up zootscoots advise or seek clarification from the OFT.

 

I wish all of you the very best.

[lookinforinfo]

Elsinore, thankyou for your intervention. You have saved the readers of this thread from a long diatribe from myself on the same subject.

One of the things I have liked about this forum, compared to many others,

is that despite differences of opinion, the arguments remain civilised for the

most part. And it is a credit to Zootscoot, that she has not responded in kind

when being treated so rudely.

 

Stiffnuts, I can't agree that Elsinores' comments were over the top. I feel

that your behaviour towards Zootscoot was more akin to that of a bailiff

[no offence Blf1uk] than a Trading Standards Officer. Would that your Office

and the OFT deal with our bete-noires as strongly!

 

Despite my criticism I am pleased you are contributing to the debates. Though

you must appreciate that when your statements appear to fly in the face of

those from other Trading Standards Offices and the ICO, that you are likely

to be closely questioned on them, in order for us to evaluate and come to

a conclusion, as to which statement to believe. Partly because we feel that

contacting organisations like your own is unlokely to resolve the problems

that we have, in this thread with DCA's and defaults, we have to muddle

through ourselves. And in our own way, we have built up methods of dealing

with dca's etc. I accept that our view not always coincide with yours, but until we are satisfied that your version is the right one, questions will

be asked of you, not because we don't believe you, but because we need

to sort out in our own heads, that in the balance of probabilities, your

facts fit the Law better than those from another office of Trading Standards.

All we ask in the meantime is that you use your forbearance as we go

through that realignment of thought with our questions.

[lookinforinfo]

OOps, it must have taken me 30 minutes to write that last post-what a lot

happened in between-and I missed it all.

I will be sorry to see you leave the forum if you decide to go. But that is for

you to decide. All I would say is that if Zootscoot has not stormed off, why

should you?

 

By the way, I do agree that a sgned original copy of the agreement is vital

as proof of ownership. What did surprise me was your contention that when

a dca buys a debt, they also inherit the original agreement and its terms.

This would answer one of Tberns' original queries in this thread. It would

follow on that dca's were entitled to register a default straight away if they

were so minded.

[stiffnuts]

OOps, it must have taken me 30 minutes to write that last post-what a lot

happened in between-and I missed it all.

I will be sorry to see you leave the forum if you decide to go. But that is for

you to decide. All I would say is that if Zootscoot has not stormed off, why

should you?

 

By the way, I do agree that a sgned original copy of the agreement is vital

as proof of ownership. What did surprise me was your contention that when

a dca buys a debt, they also inherit the original agreement and its terms.

This would answer one of Tberns' original queries in this thread. It would

follow on that dca's were entitled to register a default straight away if they

were so minded.

 

ooppps sorry I meant to say that I wont be writing on this post anymore (not on the board).

 

Sorry I couldnt help myself but I think that you may have misunderstood what I said. What I said was that following default of the account which is then passed onto a DCA then they are required to give a copy of an agreement.

 

Remember if the DCA buys the debt then the date of default is the original date and not the date that the DCA bought the debt

 

Please read towards the end of this http://www.experian.co.uk/downloads/compliance/dataprotection_guidanceondefaults.pdf

[andrew1]

ooppps sorry I meant to say that I wont be writing on this post anymore (not on the board).

 

Sorry I couldnt help myself but I think that you may have misunderstood what I said. What I said was that following default of the account which is then passed onto a DCA then they are required to give a copy of an agreement.

 

Remember if the DCA buys the debt then the date of default is the original date and not the date that the DCA bought the debt

 

Please read towards the end of this http://www.experian.co.uk/downloads/compliance/dataprotection_guidanceondefaults.pdf

 

 

 

Sorry to sound a bit dim here, but can you put this in laymans terms at all :

I take it this is what you meant.

 

The Assignment of Debts on Defaulted Accounts

 

48. When the rights to a debt are assigned to a third party the obligation to file accurate and adequate information is not automatically removed from the lender which will remain a data user for information which continues to be held on the credit reference file. However, the purchaser of the debt may agree as part of the purchase contract to become the data user for the account information filed with the credit reference agency. In this case the customer should be notified that the debt has been assigned. The credit reference agency file should show the name of the purchaser and indicate the fact that the rights to the debt have been assigned. The purchaser should ensure that the record is kept up to date including changes to the sum outstanding. The purchase should not affect the retention period of the record which should be removed 6 years after the default. Lenders who are concerned to see the continued reporting of their defaulted accounts on the credit reference file for the standard term of 6 years should make contractual arrangements which provide for this and in doing so should ensure the purchaser becomes the data user for information filed with a credit reference agency.

 

49. Where the purchaser of the debt does not agree to become the data user for the information about the debt on the credit reference file it will be under no obligation to amend the file and indeed would have no authority to do so. The original lender, and at least in part the credit reference agency, will remain data users if the original record is maintained on the file. When the debt is assigned the customer will no longer owe any money to the original lender. At this point the record can be removed, or if it is to be maintained, the fact that the debt has been assigned should be shown on the file. As no money is owed to the original lender then a nil balance should be shown. The customer should in any event be notified of the assignment of the debt.

Version 1 June 1999

How would we know if the DCA (Purchaser) has agreed or not to become a data user? Also, the part I have highlighted in blue, does this mean when a debt is passed to a dca the original contract ended?

[tbern123]

Wow

 

Am I the only person that was working today ??????? For various reasons this site is barred where I work, so I can't read it until I get home.

 

I think there is only one real way to settle this difference of opinion and that is to find examples of court cases, so that we can move away from the theory and discuss practical.

[martinpar]

It's been far too interesting to be working today:)

 

That's pretty much what I've been trying to say. We are at a point where everyone has their opinion, Stiffnuts and you taking the sensible line and Zoot taking the literal line. We need outside evidence from someone who is objective. Preferably from a court case.

 

I must say if I was looking at it dispassionately, using only the documents we've been referring to I would have to agree with Zoot. However, I keep coming back to the obvious point that if the current owner of the debt can't prove it exists how can they attempt to collect it? A copy of the signed agreement is the obvious way to do this. The only other way I can think of would be for them to produce evidence of payments previously made by the customer, thereby acknowledging the existence of the debt. Of course, this could be countered by a claim of identity theft, which then requires more proof that the debtor is the correct person.

 

 

I'd like to know more about this Bob Imrie. His website looks impressive but is a bit short on hard facts IMHO. Although I will admit I haven't studied it in depth.

[tbern123]

Just a thought, I was reading the CCA and I just noticed this:

189. Definitions

(1) In this Act, unless the context otherwise requires -

"Executed Agreement" means a document, signed by or on behalf of the parties emboding the terms of a regulated agreement, or such of them as have been reduced to writing'

 

I have taken this from the Cambridge Dictionary:

 

COPY: to produce something so that it is the same as an original piece of work.

 

If a DCA / Bank / Whoever, just provided a copy of the terms & conditions they are not supplying a copy of an executed agreement, but just a copy of an agreement.

[martinpar]

At the risk of going round in circles-

 

On the face of it, as zoot would contend, section 3 specifically says that, for the purposes of the CCA, a copy can exclude the bits which make it unique to a particular customer ie signature, date address etc.