Response from the OFT....

[PriorityOne]

Yesterday, I received a surprisingly positive reponse from the OFT, who seem prepared to investigate my complaint against several companies for non-compliance with a CCA request. However, there are several extracts of their e-mail which do not correspond with what I believe to be true under the law...

 

We investigate all complaints received about consumer credit licence holders and, where we have the necessary evidence, we do take appropriate action. In our initial investigation of all complaints we consider how many complaints we have received overall and how strong the evidence is to support any action. It is unlikely that a licence would be revoked on the strength of one complaint. Where we have strong evidence that unfair business practices have occurred, we may take steps to revoke or refuse the licence of the business in question. However, if we are to do this we need to take account of factors such as the number of complaints received how recent they are and how well evidenced. In cases where evidence is less strong we may issue a warning letter to the business putting it on notice that its behaviour, if repeated, will call their fitness to hold a licence into question. Any action we do take has to be proportionate. If an approach from the OFT makes a trader change its behaviour and treat consumers fairly in future, this is preferable to putting a trader out of business.

 

As you are aware the general effects of sections 77-79 requires the creditor/owner (in the case of a hire agreement) under an agreement for (fixed-sum credit, running account credit and hire agreement) to provide the debtor/hirer with a copy of the executed agreement and a statement of account on request.

 

If a creditor/owner fails to comply with a valid request within a period of 12 days (not including the date of receipt of the request) he may not enforce the agreement at all. This prevents enforcement with or without a court order. If a default lasts for a month (for example a calendar month) it constitutes an offence. We understand your concerns in this matter but please do remember however that once the creditor/owner complies with the request albeit out of time, he may once again enforce the agreement.

 

A ‘true copy’ of an agreement principally consists of the terms and conditions of the agreement and the statutory content of the agreement. The name, address and signature of the debtor do not have to be provided. Additionally, the creditor must supply the total sum paid under the agreement by the debtor; the total sum which has become payable under the agreement but remains unpaid; and the total sum which is to become payable under the agreement by the debtor (the latter two must include the various amounts comprised in that total sum and the date when each is/was due). However, the copy must be a copy. It need not be exact on immaterial points, but it cannot be a conjectured reconstruction. If the trader has no original copy, the trader will have difficulty showing that he has complied with the regulation by supplying a ‘true copy’, since nobody would know what was in the original. When the trader comes to enforce the debt in court, he needs to have a signed copy of the agreement in order to enforce. As the law stands currently he cannot otherwise.

 

We note your concerns that in the absence of a copy of the original agreement someone's liability for a debt can only lead to further query. However in circumstances like this we would view it is as unfair practice under section 25(2) (d) of the Act and relevant to licence fitness if a trader failed to investigate and/or provide details as appropriate when a debt is queried or disputed.

 

If we do take any licensing action against this trader it is likely that we would need to disclose your identity to this trader along with details of your complaint. I should therefore be grateful if you would provide me with written authorisation to disclose these details to the trader. I have enclosed a disclosure consent form for you to sign and return to the address provided below:

 

 

Any comment anyone ?

 

Also have to admit that I am not too comfortable giving my name and address out for them to know where the complaint has come from... probably the reason why they don't get enough complaints.

[diskmandave]

Time to compare notes

 

 

I must add, this is something that someone else posted a couple of months ago... I kept it to use in CCA requests. It's by no means my own work!

 

Keep up the good work P1 !

 

Regards, Dave.

[PriorityOne]

Hi Dave,

 

The signature of the debtor (and creditor) does have to be provided though.... otherwise it is not a properly executed Agreement.

 

[neil1821]

That doesn't make sense to me. My gripe with a DCA at the moment basically amounts to mistaken identity, they're chasing the wrong person.

 

So if they don't have to produce my name, address or signature on anything, not only is it not properly executed but in what sense would they have demonstrated that the debt genuinely belongs to me?????

 

Neil

[PriorityOne]

So if they don't have to produce my name, address or signature on anything, not only is it not properly executed but in what sense would they have demonstrated that the debt genuinely belongs to me?????

 

Neil

 

This is exactly how it reads to me.... unless I am missing the point. Do the OFT know the law under the CCA, 1974 ?

[PriorityOne]

We note your concerns that in the absence of a copy of the original agreement someone's liability for a debt can only lead to further query. However in circumstances like this we would view it is as unfair practice under section 25(2) (d) of the Act and relevant to licence fitness if a trader failed to investigate and/or provide details as appropriate when a debt is queried or disputed.

 

 

If this was to be investigated by the OFT, would it cause any real concern to DCAs... or would they just be able to laugh in the face of it, so to speak ?

[humbleman]

we consider how many complaints we have received overall and how strong the evidence is to support any action. It is unlikely that a licence would be revoked on the strength of one complaint. if repeated, will call their fitness to hold a licence into question. Any action we do take has to be proportionate. If an approach from the OFT makes a trader change its behaviour and treat consumers fairly in future, this is preferable to putting a trader out of business.

 

 

you get robbed, complain to the police, but whether the police prosecute that person depends on how many other people got robbed by the same person, it might be better to just caution in the fear of putting that person out of robbing people.

[MinnieMouser]

I'm getting quite confuzzled by this whole thing.. So if a creditor or dca fails to supply a copy (even if that's a suitable copy as far as OFT are concerned) of the agreement within the prescribed timeframe they commit an offence. But what exactly is the situation if they come up with an agreement copy 3 or 4 months down the road, does the original offence still apply?

 

Also, I note that the OFT are suggesting that even a shoddy copy of an agreement (ie one that is not properly executed under the CCA) still enables the dca to pursue/enforce collection. But, that shoddy copy would not be acceptable if they tried to enforce collection through a court?

 

MM

[PriorityOne]

Just wondering Humbleman.... as I paid them for over 4 years, before discovering that there was no CCA....

 

I was curious as to how the OFT would see that.

[PriorityOne]

I'm getting quite confuzzled by this whole thing.. So if a creditor or dca fails to supply a copy (even if that's a suitable copy as far as OFT are concerned) of the agreement within the prescribed timeframe they commit an offence. But what exactly is the situation if they come up with an agreement copy 3 or 4 months down the road, does the original offence still apply?

 

They can re-enforce it through the courts... just the same.

 

Also, I note that the OFT are suggesting that even a shoddy copy of an agreement (ie one that is not properly executed under the CCA) still enables the dca to pursue/enforce collection. But, that shoddy copy would not be acceptable if they tried to enforce collection through a court?

 

I don't undeerstand the logic of that one either....

 

MM

 

[tifo]

i got exactly the same reply from OFT which i posted in my 'Lowell 4 defaults' thread.

[PriorityOne]

i got exactly the same reply from OFT which i posted in my 'Lowell 4 defaults' thread.

 

Did you give permission for the OFT to use your name and adress in their investigations, tifo ?

[tifo]

yes, i printed and signed the declaration they sent me.

 

i got a reply back a few weeks later saying thanks for the complaint we will keep it on file and use it if we take any action based on the number of complaints we receive for Lowell. They stated that they do not work on individual consumer cases.

[neil1821]

This is exactly how it reads to me.... unless I am missing the point. Do the OFT know the law under the CCA, 1974 ?

 

As an aside, could someone tell me where I would go to find a copy of the relevant sections of CCA 1974? I'd like to know the precise wording of the text as it relates here.

[allykat]

Neil, the full CCA 1974 is here -

 

Consumer Credit Act 1974

 

Just a thought, but if the OFT will only act on complaints if they recieve several, then maybe we should all put multiple complaints in against every DCA we have had dealings with

 

That way, I reckon we could get the lot of em investigated at once

 

I'm completely confused by the wording in that letter from the OFT, I don't see the point of the DCA applying through the courts once they have produced a 'true copy' of the agreement, if the copy will not stand up in court?! and once they have already committed an offence? Am I reading it all wrong :-|

[neil1821]

Thanks for the link.

 

Take a look at this thread (I'm dealing with Capquest too):

http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/78758-capquest-unsure-what-do.html

 

So what are the point of the whole 12 day/42 day time limits to comply to a CCA request if they can blithely ignore them, commit an offence then still pursue you months down the line? :mad:

 

There is no mention in the CCA that they can take further action after committing an offence. I think I may be contacting the OFT to ask for clarification on this.

[ajjars]

Hi all,

 

I am totally confused now as well. The way I am reading it (and this is only my interpretation I could be wrong!!) is that if you CCA someone and they come up with an agreement - not necessarily yours - just a copy, then that satisfies the request. But in court they would have to provide your TRUE AGREEMENT. So a creditor could send you a copy of a blank agreement, saying they have the original, but they may not. If you think they have then you will carry on paying them and won't take them to court for non compliance in case they do supply it. Does anyone else read it like that - or is it just me?

 

Ajjars

[MinnieMouser]

That's kind of what it sounds like to me Ajjars...

 

MM

[diskmandave]

Hi all,

 

I am totally confused now as well. The way I am reading it (and this is only my interpretation I could be wrong!!) is that if you CCA someone and they come up with an agreement - not necessarily yours - just a copy, then that satisfies the request. But in court they would have to provide your TRUE AGREEMENT. So a creditor could send you a copy of a blank agreement, saying they have the original, but they may not. If you think they have then you will carry on paying them and won't take them to court for non compliance in case they do supply it. Does anyone else read it like that - or is it just me?

 

Ajjars

 

If the agreement isn't yours... What's the problem??!

 

If that was the case, it would be completely provable in court wouldn't it??!

 

Dave.

[ajjars]

Hi,

 

What I meant by not yours was not a copy of your true signed agreement, but just a copy of their agreement. Doesn't it say that? They can provide a copy of an agreement not necessarily the original, but they must have the original? Too much wine tonight ..... will take a look again tomorrow! lol

 

The more I read on the CCA, the more confused I get - oh well!!

 

Cheers all! Ajjars

[PriorityOne]

If the agreement isn't yours... What's the problem??!

 

If that was the case, it would be completely provable in court wouldn't it??!

 

Dave.

 

OFT are saying that it would be enough for a DCA/creditor to produce such an Agreement to satisfy a CCA request, Dave. Yet, despite such an Agreement not being enforceable in court.... OFT are saying that a copy of an unsigned Agreement would suffice in order for a DCA/creditor to pursue payment. :? :? ..Yeah, I don't get it either !!

[diskmandave]

Hi,

 

Too much wine tonight ..... will take a look again tomorrow! lol

 

Cheers all! Ajjars

 

Indeed LOL! Vodka is my crutch!

[davefirewalker]

just in the middle of a fight with Morgan Stanley at the mo.

 

in response to my CCA request the sent me a photocopy of t&c

 

a copy of my application my sig only (signed on the back as a true copy of the original)

 

and a new (very recent) copy of the unsigned agreement.

 

I have responded with a "where's my true SIGNED copy of the original agreement)

 

lets see what happens......ps they are now in default

 

Dave

 

rather fond of jacobs creek cabernet sauvignon myself

[JonCris]

OFT are saying that it would be enough for a DCA/creditor to produce such an Agreement to satisfy a CCA request, Dave. Yet, despite such an Agreement not being enforceable in court.... OFT are saying that a copy of an unsigned Agreement would suffice in order for a DCA/creditor to pursue payment. :? :? ..Yeah, I don't get it either !!

 

It might be enough for them to chase the debt but no court could enforce it without a signed copy being produced in court & when the court, which presently has no choice, rules the agreement unenforcable as follows:

 

The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and 63, section 127(4) precludes the court from making an enforcement order.

Section 65(1) provides that an improperly executed agreement shall be enforceable only "on an order of the court." Section 127 gives the court power to make orders for the enforcement of agreements that are, for various reasons, improperly executed. But subsection (3) provides that a court shall not make an enforcement order for an agreement that does not comply with section 61(1)(a) unless the debtor signed a document containing "all the prescribed

 

Furthermore any further pursuing of the debt would amount to criminal harassment

[sequenci]

OFT are saying that it would be enough for a DCA/creditor to produce such an Agreement to satisfy a CCA request, Dave. Yet, despite such an Agreement not being enforceable in court.... OFT are saying that a copy of an unsigned Agreement would suffice in order for a DCA/creditor to pursue payment. :? :? ..Yeah, I don't get it either !!

 

this is a loop hole in the right to information under s77-79 of the act.

 

it gets MANY people.