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Section 78 HELP Please


debtkiller
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I should like some help with exactley what documents are required under section 78 of the CCA.

 

I have sent the section 78 letter with my £1 to all my credit card debts and DCA's and have had a mixed response. To my supprise Scotish Power sent me a copy of my application form, together with statments and T&C's and said they could not supply a copy of the agreement when it was made, when I questioned this they wrote off the balance of my account:) . However other card companies are simply sending photocopies of my application form (statments and T&C's) and when questioned, they say that they have fulfilled their obligations under the CCA - is this right? I understand that following a sucessful application for a credit card the card company sends you a form with your credit limit, interest rate and gives you so long to cancel the agreement, now this is what I understand that they SHOULD be supplying and what Scotish Power cannot is this right can somebody clarify this for me please.

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now this is what I understand that they SHOULD be supplying and what Scotish Power cannot is this right can somebody clarify this for me please.

 

do you mean a copy of the executed agreement under ss60-66 of the act?

 

from what i gather you being entitled to a copy depends on where you signed it (i.e at home/away from their premises)

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Yes I do mean a copy of the executed agreement and it was signed at home.

 

you are due a copy of the fully executed agreement showing their signature 7 days after it being executed (i.e. them signing it). this should show both signatures although the regulations state that it can only show the creditor's signature.

 

if the creditor signed it at the same time as you (i.e. they were at your house) then no further copy would be due apart from the one you would have been given there and then.

 

i'm guessing they were not present, right?

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Thanks sequenci I thought that the card companies were trying to "fob me off" with the application form.

 

All the correspondance WAS through the post, not in person.

 

are they sending you a copy which is unsigned?

 

it is section 127(3) which would deem an agreement unenforceable if it has not been signed by the debtor.

 

under ss77-79 a "true" copy doesn't have to be one which has been signed by you.

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All they are sending me is a photocopy of the original application form which is signed by me in my own home and posted to them.

 

so i wonder if this means that they can only enforce the debt with the leave of the court?

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  • 4 weeks later...

I would like to know if a court will hold you responsible for debt that a Credit Card Company has on your ststements? I have disputed these ststements (going back about 3 years now) and asked for a copy of the credit card reciepts signed by myself - these have been refused!!

 

How do I stand??

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Having several debts chasing me, I am confused about my situation.

 

After sending the CCA request to them all, most are in default now, but can somebody please clarify the situation what is default?.

 

I understand that they have 12 days to give you the info required (Working days?) is there also 2 extra days for postage allowed? Is after this time they are in default - what does this mean. I also see that after another 30 days the debt is unenforcable except through a court? I thought that all debts no matter what were only enforcable through a court?

 

Clarification on what the 12 day and then the + 30 day actually means would be great and very much appreciated. Thanks in advance

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Hi Debtkiller,

 

Under the Consumer Credit Act 1974, if you enter into a credit agreement, the Company, if you ask for it, has to provide you with a copy of the contract. If they cannot provide it, the debt is legally unenforceable. Unlike normal contracts, agreements made under the CCA 1974, have to comply with strict rules, so the fact that there are monthly statements is not sufficient to prove the existence of the contract, as bizarre as that may seem!:rolleyes:

 

There are changes to the CCA 1974 which will come into being in April this year, particularly in relation to when a debt can be enforced. It is unlikely in my opinion however, that the lack of a credit agreement even where statements can be produced will result in the debt being enforced by the Courts.

 

You need to establish though what the position is and whether an agreement exists. If it does then you will have to fight the Company on other issues. Do a CCA request to begin with and keep your fingers crossed that they haven't got the agreement!:)

 

I hope this is helpful.

 

Regards,

 

Laiste.:)

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I would like to know if a court will hold you responsible for debt that a Credit Card Company has on your ststements? I have disputed these ststements (going back about 3 years now) and asked for a copy of the credit card reciepts signed by myself - these have been refused!!

 

How do I stand??

 

Ok, the first thing you need to do is report the theft of funds from your credit card to the Police.. They won't do much but they will issue you with a crime reference number.

 

Write to your CC company and inform them that you have reported this matter to the police and quote your reference number. Ask them to provide you with a card dispute form (name may vary with company).

 

As I understand VISA has an agreement to only refund transactions for the last 6 months, this is agreed with most card providers.

 

Credit Card payments are usually protected... I will check up on the details for you tomorrow.

Remember if you find anything I say helpful, please click the scales

 

 

tbern123 vs Cabot

  1. Cabot again !!! Urgent Help Needed
  2. Litigation - tbern123 V Cabot Financial (Uk) Limited
  3. No more calls from Cabot... lol

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Hi,

 

If I've misinterpreted your post and these transactions have taken place and you dispute them, then as tbern states, you must report this matter to the police.

 

Best wishes,

 

Laiste.:)

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To be on the safe side, allow two days for the post and then a further twelve working days. You should receive a copy of the original agreement with

both your signature and another on behalf of the original creditor, a copy of

any other document mentioned in the agreement [eg T&Cs relating to the year

the agreement began] and a statement signed by the creditor of the amount

already paid by the debtor, any missed payments and their dates and how

much is still outstanding and their due dates.

 

Whilst these documents are outstanding, the creditor or DCA are not allowed to pursue you for the debt, and you can cease paying during that time.

If all the documents are not received within the time limit, the debt is in default and cannot be reinstated by the creditor with out a Court Order.

After a further 30 days expires, the creditor has committed an offence into

the bargain. Now, not only will they have to explain to the Judge why they

have broken the law, provide proof that they do own the debt, and the

Judge agree that they are allowed to pursue you for the debt [and it is not

always granted] but the creditor is liable to a fine of up to £5000. So if you

have a smallish debt, and the creditor has not produced the required

documents, they tend not to go to Court since they will pay more in fines than they could collect.

However if you take them to Court, whilst they will still face a fine, they will try to make sure that you will have to pay them.

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  • 2 weeks later...

Can anyone give any information about getting defaults removed from your credit file after a credit card company has NOT complied with the CCA request.

 

I have a number of cards where the credit card company has NOT complied with my CCA request and has issued a Default on my file BEFORE I asked for the CCA info. They do not chase me for payments and have become "quiet:) " they also update your credit file with OK each month, but the default is still there and they have refused to remove it.

 

Does anyone know if the Financial Ombudsman will force them to remove. I am worried about opening a can of worms as it were because so far I have a good result as I'm not struggling with debts I can't afford and constantley fighting these people off with there demands.

 

Any info greatly received.

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  • 1 year later...

section 78 only applies when a debt is sold on to a 3rd party, I work for a large bank and deal with this on a daily basis, your creditors legally only need to send statements and copy of orginal doc, you received t&c when you signed up for credit, they only send docs out a couple of times then seek legal action against you, one action can be to put a charge on your property then acquire a court order to force you to sell your home

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section 78 only applies when a debt is sold on to a 3rd party, I work for a large bank and deal with this on a daily basis, your creditors legally only need to send statements and copy of orginal doc, you received t&c when you signed up for credit, they only send docs out a couple of times then seek legal action against you, one action can be to put a charge on your property then acquire a court order to force you to sell your home

78. Duty to give information to debtor under running-account credit agreement.

 

 

— (1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of [F1 £1], shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,— (a) the state of the account, and

 

(b) the amount, if any currently payable under the agreement by the debtor to the creditor, and

 

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

 

 

 

 

(2) If the creditor possesses insufficient information to enable him to ascertain the amounts and dates mentioned in subsection (1)©, he shall be taken to comply with that paragraph if his statement under subsection (1) gives the basis on which, under the regulated agreement, they would fall to be ascertained.

 

 

(3) Subsection (1) does not apply to— (a)an agreement under which no sum is, or will or may become, payable by the debtor, or

 

(b)a request made less than one month after a previous request under that subsection relating to the same agreement was complied with.

 

 

 

 

(4) Where running-account credit is provided under a regulated agreement, the creditor shall give the debtor statements in the prescribed form, and with the prescribed contents— (a)showing according to the information to which it is practicable for him to refer, the state of the account at regular intervals of not more than twelve months, and

 

(b)where the agreement provides, in relation to specified periods, for the making of payments by the debtor, or the charging against him of interest or any other sum, showing according to the information to which it is practicable for him to refer the state of the account at the end of each of those periods during which there is any movement in the account.

 

 

 

 

(5) A statement under subsection (4) shall be given within the prescribed period after the end of the period to which the statement relates.

 

 

(6) If the creditor under an agreement fails to comply with subsection (1)— (a)he is not entitled, while the default continues, to enforce the agreement; and

 

(b)if the default continues for one month he commits an offence.

 

 

(7) This section does not apply to a non-commercial agreement, and subsections (4) and (5) do not apply to a small agreement.

 

 

Hi there,

 

please advise me as to where within section 78 of the Consumer Credit Act 1974 as amended a creditor can avoid their obligations as you suggest?

 

now i would hazzard a guess that you will fall back upon Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557) in particular regulation 3 which states

 

3 General requirements as to form and content of copy documents

(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 the 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 of an executed agreement given to the debtor under section 77(1) of the Act for fixedsum

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.]

 

 

now whilst you can circumvent some of the regulations by supplying an agreement with the signature box omitted you MUST supply a copy of the agreement containing the terms of the agreement

 

now if the original agreement refers to Terms and condition's you are duty bound by section 78 to supply a copy of the T&Cs from the time when the account was opened and also if the agreement stated You have the right to cancel then you are also duty bound to supply the cancellation notice which would have been sent when the agreement was opened

 

But

 

lets not lose sight of the fact that this is only for compliance with section 78

 

if you are going to start talking about charging orders then you need to get your documents in order, copies wont suffice thats for sure

 

not least because the CPR requires that you make the original available

 

Practice direction 32 states

 

3.1 Photocopies instead of original documents may be exhibited provided the originals are made available for inspection by the other parties before the hearing and by the judge at the hearing.

13.2 Court documents must not be exhibited (official copies of such documents prove themselves).

13.3 Where an exhibit contains more than one document, a front page should be attached setting out a list of the documents contained in the exhibit; the list should contain the dates of the documents.

top_icon.gif

 

 

and if that doesnt get you, the fact that the companies Act requires retention of original documents as does the money laundering regulations from various years

 

 

so i really relish the chance of taking a case to court where the view is that they dont have to provide the copy of the original agreement, as the DCA success forum will show;)

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  • 3 months later...

Hi everyone

 

I've posted this message in another forum also but this one may be more appropriate so if you're reading this again - sorry!

Sorry to be a dunce but I've just registered having heard about the unenforceable issue with the CCA 1974 yesterday. I left a hello post on the welcome forum and have searched for further info, which brought me here.

 

I have 6 credit card companies on my case having had a change in financial circumstances through the credit crunch. I've tried to keep them happy and in the end have been giving them and Nat West (for a loan taken out last year) token payments of £1 each. They aren't happy and a couple are talking about securing against my house, specifically Nat West and MBNA. Most of the credit card debts are from cards taken out before 2006, but the loan was taken out in May last year. Most of them have refused to reduce interest so I'm getting hammered for a further grand a month on top. Which ones could become unenforceable?

 

What exactly does it mean if I send them a CCA agreement letter each and they fail to reply? Does the debt get written off? Will they sit on my credit file? Forgive me asking basic questions but my head is wrecked by the constant phone calls and hassle.

 

Many thanks

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  • 2 years later...
ps docs do not need to be signed by creditors, olease ignore advise from ppl telling you to quote this to your credit companies as they as well aware of their right and will take action

 

I know my rights as well - please advise and refer your employers to the relevant law.

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