SHERLOCK-v-studio 08/01/07

[SHERLOCK]

Hi all,

 

New thread to request help with regard small owed amount and PPI with Studio Cards of Preston.

 

Sent for statements and spoken with Chezt and now would like a little help with reply from Studio.

 

The letter states:

 

In regards to your statements on liability under the CCA 1974, please note that both the OFT and Trading Standards have acknowledged that, as defined by Section 78 of the CCA 1974, the supply of an exact copy of the credit agreement that would have been signed when the account was opened and, if required, any relevant financial information relating to the account since its inception is sufficient to comply with requests to provide a copy of the credit agreement. A sample credit agreement is enclosed for this purpose together with a full financial statement of your trading activity with this company.

 

We would remind you that the original credit agreement was sent with your first order when the account was opened in September 2004.(Partner has no recollection of this) Our customers are asked to sign both copies, to return one copy to us and to keep their copy in a safe place should they decide to choose repayment by credit terms instead of making immediate payment in full for the goods and or services supplied. Your subsequent repayment decision demonstrates that the first option was your clear and obvious choice. (Never made a payment)

 

Both the OFT and TS acknowledge that it is reasonable for a creditor to ask for and be provided with appropriate information concerning their financial situation when the customer, or their representative, is seeking the creditor's indulgence and a suspension or reduction of payment.

 

Also one assumes this alleged agreement will show PPI, (NO RECOLLECTION)

 

it goes on:

 

It is clear a debt exists and that, at present, we realise the courts could not grant an enforcement order should a default summons be issued by us because of non payment and it was defended on a challenge to produce our copy of the original signed agreement and we were unable to produce the said document in support a claim of non payment of goods and services supplied. It is only in such circumstances that it would be justified to recover originals from our archives. (Are they saying they would only produce the original agreement if I take them to court!! I'M SURE THE JUDGE WILL BE PLEASED)

 

Statements show PPI and 'Service Charge'........balance 230.00.......PPI + SC 81.00........any comments

 

SHERLOCK

[Jimbo44]

Hi all,

 

New thread to request help with regard small owed amount and PPI with Studio Cards of Preston.

 

Sent for statements and spoken with Chezt and now would like a little help with reply from Studio.

 

The letter states:

 

In regards to your statements on liability under the CCA 1974, please note that both the OFT and Trading Standards have acknowledged that, as defined by Section 78 of the CCA 1974, the supply of an exact copy of the credit agreement that would have been signed when the account was opened and, if required, any relevant financial information relating to the account since its inception is sufficient to comply with requests to provide a copy of the credit agreement. A sample credit agreement is enclosed for this purpose together with a full financial statement of your trading activity with this company.

 

Methinks Studio are slightly incorrect insofar as their first paragraph is concerned. I believe the word "executed" is missing (conveniently, perhaps?)! Certainly the word "executed" does appear in the wording of Section 78.

 

Perhaps if "executed" was substituted for "exact" they may be more correct? Obviously this substitution would change the meaning of what they may have to send you somewhat.

 

I don't believe that the "...supply of an exact copy of the credit agreement that would have been signed when the account was opened..." satisfies the requirements of the CCA. Supplying a copy by their definition need not necessarily be a copy of what you actually signed.

 

Also, if I am right, and if they cannot supply an executed copy, the debt is unenforceable. It still exists but……..

[SHERLOCK]

SO.......Do I claim the amount plus interest and let them acknowledge and pay this (which I am assuming they will be happy to do IF they know they do not have the Signed Original agreement).........OR do I push for the agreement stating that I will not be paying another penny until I receive such and maybe try to get it written off??

 

Not sure how to approach it,

 

SHERLOCK

[chezt]

Sherlock I'm sure they are NOT right what they say about not having to supply a signed copy as this is not a true copy!! Have you written requesting one?

 

Have a read through this thread as it may help....

 

http://www.consumeractiongroup.co.uk/forum/general-consumer-issues/32080-my-mums-catalogue-bill.html

 

Also I would have thought that if they cannot supply a signed copy of the original agreement then they are commiting an offence - here is what I've put in my letter to Littlewoods based on the advice given on here ...

 

"With reference to the above account, please supply me with a true copy of the credit agreement under which this account is conducted.

 

I understand that under the legislation contained within s.78 (1) Consumer Credit Act 1974 (s.78 (1) for running – account credit) I am entitled to receive a copy of the credit agreement on request - your obligation also extends to providing a statement of account. I enclose a payment of £1.00 which represents the statutory fee payable under the Consumer Credit Act. Also, I am aware that you are obliged to supply these documents within 12 days.

 

You are notified that you are obliged to supply these documents, under S189 of the Consumer Credit Act 1974. I understand that under the Consumer Credit Act, creditors are unable to enforce an agreement if they fail to comply with a request for a copy of the agreement under these sections of the Act.

Non-compliance with my request is a criminal offence under the above Act and will result in a report being submitted to the relevant statutory authorities.

 

As you are aware, a credit agreement that is not properly documented and signed by the customer is totally unenforceable under the CCA and therefore is a complete defence to any court claim that is issued.

Furthermore you are reminded that under s78 sub section (6) whilst the default continues you are not entitled to enforce the agreement in law

 

I look forward to hearing from you."

 

Dunno if this helps as this bit is all new to me too but the way I see it what they are saying is a load of drivvle!

 

[SHERLOCK]

Hi chezt,

 

that reply was to a CCA request most of which contained your wording.

 

I think I will send them a non-compliance letter outlining missing information and give them til the 12 days + 1 month deadline but I really need the part of the CCA that states the requirement for the original copy.

 

Thanx Chezt, will keep u posted,

 

SHERLOCK

[chezt]

Hi chezt,

 

that reply was to a CCA request most of which contained your wording.

 

I think I will send them a non-compliance letter outlining missing information and give them til the 12 days + 1 month deadline but I really need the part of the CCA that states the requirement for the original copy.

 

Thanx Chezt, will keep u posted,

 

SHERLOCK

 

So even tho the letter states you require a true copy you mean you want to find the bit within the legislation that states this?

 

i don't think anyone else has actually had to refer to this from what I've read ... I haven't actually got a link to the actual Consumer Credit Act 1974 s78 (1) but I'm sure someone must have ... I'll have a scoot around this evening when I get a mo ... let me know if u find what ur looking for in the meantime ...

[SHERLOCK]

cannot find the thread which had a link to the cca.

 

I need to check what they say bcoz I'm not 100% if it is correct or not. If I could add the section 78 to combat them then all the better.

 

I'll check again

 

Also it seems if I question this they have stated they would only produce the agreement in court, (at least I think thats what they are saying)??

[chezt]

Found a huge thread discussing CCA here ...

 

http://www.consumeractiongroup.co.uk/forum/general/33174-consumer-credit-act-agreements.html?highlight=Consumer+Credit+Act+1974+s78+%281%29

 

Dunno if the answer will be within it but I don't have time to read all now as I'm off to work ... it's only 54 pages long ... happy exploring!:o

[chezt]

Search Results: consumer credit act

 

 

The answer may be here but it's gonna take some SERIOUS reading n searching ... I'll check my info later to see if I may have the quote ur lookin for ... in the meantime - good luck!

[chezt]

thanks for the click Sherlock!! Glad you managed to find what ur looking for in the info I found ... be sure to post an update for all to see .... it may well help someone else down the line so to speak!

[SHERLOCK]

Will be sending off prelim for charges + contractual interest + PPI refund.

Any suggestions defore I do this?

 

Incidently, even if they refund, I assume I can still ask for the agreement, was tempted to also send a non-compliance letter.

By refusing the claim for PPI, they will have to produce the original agreement though and I don't think my partner signed one!!

 

Now, people will tell me to push for Agreement and stop paying, thus forcing their hand.

 

Decisions, Decisions

 

SHERLOCK

[Jimbo44]

Sherlock!

 

You'll find the whole Act here:

 

http://www.consumeractiongroup.co.uk/forum/statutes-library/27535-consumer-credit-act-1974-a.html

 

Scroll down, find s.78 and include the relevant section verbatim in your letter.

[tamadus]

Sherlock,

 

Found your thread now and subbing into it.

 

If you have sent the letter chezt posted above then simply wait for the 12 days + 1month to expire then write to them quoting section 78(1) and 78(5) telling them any credit agreement they may have had for this alleged debt is unenforceable owing to their failure to supply the legally requested information, without a court order. Tell them you no longer acknowledge the alleged debt without the aforesaid court order and your ceasing any payments made towards it.

 

They can of course send a copy without signatures but will have to produce that in court. The rest of the agreement must be a true copy of the EXECUTED agreement, which means all your details should be on it. A blank generic piece of paper is not sufficient. Also terms and conditions and a statement of the account form part of the CCA 78 request.

 

They then have to take you to court to enforce the debt, which of course means they will have to defend their criminal act of non compliance.

 

The entire act is here Consumer Credit Act 1974

 

Hope this helps.

[tamadus]

Just as a sidenote I have already raised the matter of sample agreements being supplied with the OFT and my MP. The reply from Ian McCartney (secretary of state) and OFT was that no evidence exists that this is happening so it may be worth sending a copy of their letter to the OFT and your MP asking them to investigate it.

[Movingon]

That really F*&^*$ annoys me, when MP's sidestep an issue being brought to their attention by saying "There's no evidence to say that this is happening".

 

Write back to them and say "There's no evidence because nobody has LOOKED!!! Please find enclosed some evidence!!"

[SHERLOCK]

The above letter was a reply to the CCA request.

They state themselves they know it is unenforceable but state thay will not produce the agreement.

I duly requested my charges back + interest + PPI (not had a reply back) does this now interfere with a refusal to pay or not to acknowlede the debt?

[Movingon]

No. They are separate issues.

[Movingon]

___

[harrythehawk]

Hi Sherlock, I am very glad I stumbled across this thread, I have just sent a CCA to Studio and an SAR, the debt is my wifes which I have only recently discovered along with countless others (lucky me) and I have decided to tackle this now as the debt has already gone to a DCA (Legal & Trade) and I am encouraged that I can get the numerous charges back and that it may be the case that what she has paid to the DCA shouldn't have been made as the amount they are asking for is clearly wrong and made up largely of charges and also the situation re the probably non-existent CCA and how this affects the debt and the ability of the DCA and Studio to enforce it. Must admit it cut the phone call from L&T very short on Sunday when I revealed my course of action to them, got a "well of course we have checked, we have lots of solictors, we are a big company" ..... the fact she didn't ask for any more money from me in that phone call from me makes me believe I could be on the right track here, in fact I never found out what she wanted, she just scurried off when I mentioned this. I will keep you posted and check in to see how you are going on too.

[Movingon]

For the avoidance of doubt, the Law is very clear as to what documentation is required to be produced under s78(1) which appears below. "Executed Agreement" is defined as one which is signed by both parties. Even if the OFT and/or TS DID make such a statement they have NO AUTHORITY to make this binding on either party, and therefore the statement would be meaningless. I would forward a copy of this letter to your local Trading Standards Department requesting their clarification on the matter and quoting the Law. ONLY A JUDGE can decide, and therefore JUDGE, such matters of legal meaning; but I am confident that a Judge would rule (as many have) as per my belief.

 

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 £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.

[SHERLOCK]

OK, received reply for reclaim of charges (seperate from CCA Non-Compliance etc. and his will also be addressed)

 

In light of OFT investiigation we are currently reviewing our admin charges

 

without prejudice AND as a gesture of goodwill, admin charges removed from account!!

 

My request for contractual interest refused but have refunded at rate permissible by court 8%!!

 

The claim with contractual is only small and their refund falls £20 short of the full claim!!

 

My dilemma, Boys and Girls - Not withstanding they haven't produced my agreement yet -

 

A) Accept (NOT recommended)

 

B) Inform them that it is for the judge to decide what interest I can claim, accept their offer as part refund and commence with LBA (Recommended)

 

 

Bear in mind I also claimed for Payment Protection and they have also refunded..........IF, this was signed for as per.....AHEM.......agreement WHY would they be refunding??

[chezt]

Sounds like the same sorta letter i got. Also they did the same with me .. refunded all charged & 8% interest not contractual. It makes a difference on my claim of £110 short though.

 

I don't know what to advise as what to do next 'cos as you say if the don't come up with a signed agreement they can't enforce the debt & if you still have a balance .....

 

I haven't a balance on my account (although I do now they've charged the cheque & goodness knows what to it - watch out for that one BTW!)

 

I've sent them allsorts of letters tryna get them to pay the balance of my claim but they appear not to want to shift! I was hoping to get another statement this month showing what the so called balance on my account is so I can get an overall picture & make sure they clear the whole lot but as yet it hasn't arrived.

 

See my thread if you want more detail as I'm slightly ahead of you. be interesting to see if they apply your refund cheque to your account too!

[SHERLOCK]

Hi Chezt,

 

this account went to default so the amount will come off debt either way.

Can I request default removal if they don't supply my agreement even if they have statements??

[chezt]

Hi Chezt,

 

this account went to default so the amount will come off debt either way.

Can I request default removal if they don't supply my agreement even if they have statements??

 

You can request default removal at this moment intime as the information they have submitted is incorrect as it is made up of unfair charges etc. You should really have requested this when you sent your prelim ... did you do this?

[SHERLOCK]

nope.

 

I could send a reply to their response to my prelim and place the removal notice, non-compliance and give them 14 days before LBA (HOW DOES THAT SOUND??)

 

I'm in no rush