Consumer Credit Act - Resources Workshop

[zubo]

MOD NOTE: Please be aware that the templates shown in this thread may not have been created, or legally checked, by CAG. This thread is purely a discussion and critique of letters posted on the forum, or found elsewhere on the internet. Members are advised to seek legal advice before using any of these resources.

 

Thanks Guys

Z.

 

 

 

All

 

I have been threatening to do this since it occurs to me that we get the same requests time and time again.

 

Please understand this: CCA and all subsequent regs and TSO guidelines are highly complex and the information you are presented with is not definitive but the contributors best view. At the end of the day, you should always consider the risks you face should you be involved in litigation. Even if you argue your case, the judge may well have a different viewpoint.

 

This thread is intended for people to submit their template/letter to assist other folk who are embarking on a similar path with their CCA requests. If you should review any of these resources and spot any problems or qualifications you feel need to be made, please pm the post's owner and should he/she agree with you then they will edit their own post.

 

Coming soon:

 

• What IS the Consumer Credit Act 1974 and how does it affect me?
  
• What are the CCA fundamentals which place doubt on agreements?
  
• What are the prescribed terms of an agreement?
  
• Overall Strategy to assess status of your agreement
  

 

• The Consumer Credit Act 1974 is a consumer protection law in the UK. It requires certain businesses to obtain Consumer credit licences and protects individuals receiving credit up to £25,000. Appeals under the Consumer Credit Act are made to the Office of Fair Trading. Cancellable agreements have a cooling-off period starting on the day the customer signs. This period is 14 days for goods bought from a mail-order catalogue. Otherwise, it is five days from the day the customer receives either a second copy of the agreement or a separate copy of a notice of cancellation rights. (source Wikipedia)
  
• Consumer credit licences are issued by the Consumer Credit Licensing Bureau which is part of the Office of Fair Trading (OFT). Examples of businesses that may be required to obtain consumer credit licences are:
   
  * [[Retailers]] who arrange credit
  * finance companies
  * debt collectors, debt advisors or negotiators
  * credit reference agencies
  * hire and leasing business
   
  However, it is possible to lawfully lend money to consumers without holding a consumer credit license if certain conditions are met.
  
• How does it affect me?
  
• This is MY strategy.
   
  We have all believed we owe people who chase us for money and in times of difficulty have made a variety of offers or been forced to do so. This is done on the basis that we believe we owe the debt because we are told so or people have written to us details of what we owe. Very few people actually deny the debt. We do so on the understanding that there exists a fully executed agreement and the creditor is using his rights under that agreement.
   
  The CCA 1974 is a huge complex document providing all the legislation for financial transactions (excluding mortgages) from £50 upwards. It legislates every aspect of a variety of differing agreements, including where surety is required. It is relevent from 1975? its in the Act cant remember, but does not apply in Scotland and I think N Ireland. There have been other subsequent Statutory Instruments which have modified this in later years, but nothing significant that we can see which affects our use of it.
   
  The primary reason for using CCA is to establish that you do have an enforceable agreement. The Sections referred to provide you with the right to obtain every detail of that agreement - the prescribed terms. According to a reference I recently read from the OFT, unless the creditor can provide a fully executed agreement which means every aspect required of the prescribed terms, then the creditor cannot go to court seeking enforcement.
   
  This leaves an unenforceable debt. Further - the creditor has no right to provide any CRA details of the alleged debt, nor communicate any information nor request a DCA collect the debt, nor make charges on the debt.
   
  I always copy any DCA into these letters to avoid misunderstanding and more importantly so that they know you are being reasonable and lawful.
   
  I allow more than 12 days - 21 seems reasonable. I issue a follow up letter pointing out that they are in Default on the alleged agreement and that the alleged agreement is now unenforceable and consequently I will make no further payments to them until they obtain a court order to lift the default.
  After 30 days - well again I allow an extra week, I inform them that they have now committed a criminal offence liable to £2500 fine or imprisonment. At this time I will issue them in a seperate letter a request for a S.A.R - (Subject Access Request).
   
  The purpose of the S.A.R - (Subject Access Request) is quite simple. Remember this is only my strategy but it is a good one. Nobody to my knowledge has obtained an outcome at this stage (except it seems to have forced my creditor to write off a £6k debt.
  The SAR when they comply, will give you details of ALL their charges and your payments during the lifetime of the alleged agreement. Not just penalties but all their interest too. We will discuss restitution next.
  
• Definitions and references (kindly supplied by Richard Spud) It might be helpful if I explain my understanding that the legal authority to cite with regard to the "Prescribed period" for "Giving" the information to a debtor by a creditor as stipulated under ss. 77 (i.e. for a loan), 78 (i.e. for a credit card) or 79 (for hire agreements) of the Consumer Credit Act 1974 (CCA 1974) is: the Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 (SI 1983/1569).
   
  Regulation 2 of the above stipulates the "Prescribed period" to be "12 working days".
   
  For the definition of "Giving", s.189 of the CCA 1974 defines this as: "Deliver or send by post". I suggest that the date of posting is service.
   
  For the definition of "Working day", s.189 of the CCA 1974 defines this as: "Any day other than - (a) Saturday or Sunday, (b) Christmas Day or Good Friday, © a bank holiday within the meaning given by section 1 of the Banking and Financial Dealings Act 1971".
   
  With regard to a "Copy of the executed agreement"; I understand that the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557) provides at r.3 thus:
   
  "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 [CCA 1974] and delivered or sent to a debtor, hirer or surety under any provision of the Act shall be a true copy thereof [my emphasis added]".
   
  I suggest that any copy of the terms and conditions of a regulated agreement should be legible, although the above Regulations provide for the omission of certain items e.g signatures, dates etc.
   
  With regard to an "Offence" for failing to provide the information requested under ss.77, 78 or 79 of the CCA 1974 within "one month" of the termination of "12 working days"; I believe this is a summary offence (triable only in the Magistrates Court) and therefore I understand that generally (some exceptions exist) papers must be laid before the Court within 6 months of the offence being committed - thereafter action being time barred. However, I refer you to s.169 of CCA 1974 which provides for offences committed by Company Officers et al in particular circumstances.
   
  With reference to s.40 of the Administration of Justice Act 1970, I understand that Trading Standards can enforce this criminal element if cogent evidence is produced.
   
  With reference to "Harassment"; I understand that there are two primary legislative provisions: the Protection from Harassment Act 1977 which I believe created a statutory tort and the later 1997 Act enacted with stalking in mind. However, in the civil case of Marjrowski v Guy's & St Thomas's NHS Trust [2005] EWCA Civ 251 on 16th March 2005 reported at [2005] ICR 977, CA (also at [2005] IRLR 340) it was held that:
  
  • as a general matter, an employer can be vicariously liable for breach of a statutory duty imposed only on his employee;
    
  • as a specific matter, if an act of harassment is committed by an employee in the course of his or her employment (in breach of Protection from Harassment Act 1997 s.1 ) then the employer can be vicariously liable to pay the victim damages for any anxiety caused by the harassment and any financial loss resulting from the harassment (under Protection from Harassment Act 1997 s.3 ).
    

  I suggest that under the Law of Agency and the doctrine of Vicarious Liability, in addition to the above case, it could be argued that a creditor could be vicariously liable for an act of "harassment" committed by a debt collection company.

   

  Those with further interest in these matters should, I suggest, also consult the Malicious Communications Act 1998 and the Enterprise Act 2002 (Part 8 Domestic Infringments) Order 2003 (SI 2003/1593) - for action that may be taken by Trading Standards regarding consumer issues affecting a large number of domestic consumers.

   

Owners: please post/edit using the following format:

 

Ref: Post No

Owner: your cag name

Used for: Brief explanation of when you should use this.

Create/Update Date: todays date

Template:

 

Discussions: please make comments by referring to the Post No of the template:

 

eg: Ref #2

 

I think this assumes.....

etc.

 

Thanks

 

Z

 

 

Ref: #2

Owner: InKogneeToh for changes (Zubo for editing)

Used For: A gentle reminder that the application form they sent does not meet the CCA request you submitted.

 

Date Created/Updated: 02-Apr-2007

 

Template:

 

Just keep it simple, e.g.-

 

Thank you for the information you sent following my request under the CCA 1974.

 

However, I made a request to you on .... for a copy of the executed agreement applicable to the alleged debt. Under the CCA s77/78, you are obliged to send me a true copy of the actual credit agreement but have only sent me a copy of the initial application form.

 

A regulated credit agreement contains all of the prescribed terms, other required information and statements of my statutory rights.

 

I would therefore be obliged if you would send me a copy of that document as soon as possible.

 

Yours (but hopefully not for much longer :grin:)

 

I wouldn't remind them of the consequences of not complying - it's up to them to know that! Also if a creditor sends a true copy of the credit agreement after the 12 day limit has passed the default is lifted so it can then be enforced.

 

Ref: #3

Owner: JonCris for changes (Zubo for editing)

Used For: A sterner reminder that they have failed to meet the CCA request you submitted.

 

Date Created/Updated: 02-Apr-2007

 

Template:

 

 

 

Try this

 

Hello! Dear Plonker

 

CA 1974 (Consumer Credit Act)

 

As you are aware, I wrote to you on day/month/year requesting you supply me with the relevant information, which is my legal right under section 77-79 of the CCA 1974 and you had 12 days plus 30 days inclusive of holidays and weekends (ie until day/month) to respond to me with the information.

 

This time has passed and you have now committed a Criminal Offence under the said Act and it is my intention to report you for this criminal conduct to the appropriate authorities (Then do it in writing to TS & the Police. Don't make empty threats)

 

I also understand that under the Act, due to your failure to comply with my statutory request you or any acting agent are unable to enforce an agreement therefore I am ceasing any further payments forthwith and will seek to recover any payments made to date (assuming your making any)

 

 

DPA (Data Protection Act 1998

 

Furthermore under the Data Protection Act (D10), you are also denied the authority to pass on any of my personal data. To do so in the circumstances is I understand a breach of the Data Protection Act 1998, and also the OFT guidelines, and should you ignore my request it would again result in you being further reported to the relevant authorities.

 

 

I also require that you remove all my data from your files within the next 7 days and look forward to receiving a letter from you within 10 days confirming that you have complied with this request.

 

Yours faithfully

 

Mr. Stuff You

[tifo]

a few questions :

 

i understand that if they send an application form which contains some of the prescribed terms and is shown as signed by myself then it counts as an executed agreement? This is what a lot of the DCAs state.

 

i also think that the above letter asking them to cease and desist under s.10 of the DPA only gets the answer "we need to process for legal reasons" and the same answer from the CRAs.

 

in the end, the only way to make sure they stop is by the court and that can be risky as the judge may think they are right.

[zubo]

This thread is all about CCA templates and discussions related to CCA templates.

 

Please precede your comments with reference to the template post no. #3 I think?

 

Ref: #4

 

i understand that if they send an application form which contains some of the prescribed terms and is shown as signed by myself then it counts as an executed agreement? This is what a lot of the DCAs state.

there are split opinions on this topic - see thread

http://www.consumeractiongroup.co.uk/forum/general-debt/74733-credit-agreement-application-14.html#post698969

 

imho an application is exactly that - it is precontractual and the defining document is the regulated agreement containing all the prescribed terms. The difference of opinion on this site is not is it entitled application or agreement but rather does the document contain ALL the prescribed terms. If it does NOT then it is unexecuted and may only be enforced by order of a court provided that the omissions are not significant. An example of a serious omission is the absence of a debtor's signature - this in my view cannot ever become enforceable even by a court.

 

i also think that the above letter asking them to cease and desist under s.10 of the DPA only gets the answer "we need to process for legal reasons" and the same answer from the CRAs.

Ask the DCA to provide Statute or Regulation and they cannot - remember they are simply a business with NO place in our legal system and they MUST abide by the law. S10 can be supported quite logically by the fact that DPA provides you with regulations which protects you from abuse of data related to you. When you enter into any regulated enforceable agreement one of the conditions is that you will allow the creditor to share this data. A key requirement of the DPA is your consent. The absence of an executed agreement places all conditions of the agreement unenforceable. In other words you have NOT given consent. So the S10 to desist cannot be denied.

 

in the end, the only way to make sure they stop is by the court and that can be risky as the judge may think they are right.

Absolutely - the DJ interprets and determines the outcome based upon what is placed before him.

 

Z

[hellhasnofury]

Ref: #4

 

there are split opinions on this topic - see thread

http://www.consumeractiongroup.co.uk/forum/general-debt/74733-credit-agreement-application-14.html#post698969

 

imho an application is exactly that - it is precontractual and the defining document is the regulated agreement containing all the prescribed terms. The difference of opinion on this site is not is it entitled application or agreement but rather does the document contain ALL the prescribed terms. If it does NOT then it is unexecuted and may only be enforced by order of a court provided that the omissions are not significant. An example of a serious omission is the absence of a debtor's signature - this in my view cannot ever become enforceable even by a court.

 

Ask the DCA to provide Statute or Regulation and they cannot - remember they are simply a business with NO place in our legal system and they MUST abide by the law. S10 can be supported quite logically by the fact that DPA provides you with regulations which protects you from abuse of data related to you. When you enter into any regulated enforceable agreement one of the conditions is that you will allow the creditor to share this data. A key requirement of the DPA is your consent. The absence of an executed agreement places all conditions of the agreement unenforceable. In other words you have NOT given consent. So the S10 to desist cannot be denied.

 

 

Absolutely - the DJ interprets and determines the outcome based upon what is placed before him.

 

Z

 

Hello and thank you

[rippedoffagain]

Subscribing.

[InKogneeToh]

Ref: #4

 

The difference of opinion on this site is not is it entitled application or agreement but rather does the document contain ALL the prescribed terms. If it does NOT then it is unexecuted (no - IMPROPERLY executed) and may only be enforced by order of a court provided that the omissions are not significant.

 

Hi

 

There is a huge difference between an UNexecuted agreement and an Improperly executed one. The only time an agreement would be UNexecuted is if it had not been signed by both parties. It is important to emphasis this difference as an UNexecuted agreement has never been made!

 

Regards, Pam

[InKogneeToh]

Duplicate post!

[Rhia]

subscribing!

[conar686]

Constructive comments etc as usual will be welcome

 

Office of Fair Trading

OFT Enquiries

Fleetbank House2-6 Salisbury Square

London

EC4Y 8JX

 

 

FAILURE by xxxxxxx ltd Under Sections 77/78 of the Consumer Credit Act 1974. Account No.

 

Dear Sir or Madam

 

As is my right under Sections 77 and 78 of the Consumer Credit Act 1974, I wrote to xxxx on {date} requesting a true, signed (legible) copy of any credit agreement (inc statements) that exists in relation to the above account, including the statutory fee of £1.00.

 

Under the terms of the above Act, xxxxx had 12 working days to provide the requested document and a further calendar month to rectify this default. Both of these deadlines have now passed and I have received nothing in relation to my request.

 

This led me to only one conclusion that no signed credit agreement exists in relation to this account. An agreement that does not contain all of the prescribed terms, and/or is not signed by the debtor, is completely unenforceable, even in a court of law.

 

I have today sent a letter to xxxxxxx refuting the debt and stating that any legal action proposed by them will be vigorously defended as I believe that they may have committed an offence under the CCA punishable by a level 4 fine.

 

Additionally, as there has never been any regulated agreement in relation to this account, I maintain that xxxxxxx do not have my consent to process my data and have requested that they remove all data referring to them from the records of all 3 Credit reference agencies.

 

With respect to the above may, I respectfully request that you begin an investigation into the failures of xxxxxxxx and in the meantime your comments, advice & guidance in the above would be much appreciated.

 

Yours faithfully

 

 

Xxxxxxxxxxxx

[zubo]

Ref: #13

Owner: Zubo (I think it is a CAG template mod to include true)

Used For: Initial CCA request for a copy of your true agreement regardless of whether for a loan or a credit card (CCA refers to these as Credit Tokens).

 

Date Created/Updated: 03-Apr-2007

 

Template:

 

 

 

Send this recorded to the registered office of the Creditor.

 

 

 

Re: Ref No. XXXXXXXXX – Your Name

With reference to the above credit account, would you please send me a true copy of this credit agreement.

 

I do not acknowledge knowledge of any lawful debt.

 

I understand that under the Consumer Credit Act 1974 (Sections 77−79), I am entitled to receive a copy of the true credit agreement on request and this should be supplied within 12 working days. I enclose a payment of £1.00 which represents the fee payable under the Consumer Credit 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 defense to any court claim that is issued.

I look forward to hearing from you.

 

Yours faithfully

 

If you are not acknowledging the debt at this stage then be sure to say so (in CAPs) at the beginning of the letter and don't use the word 'my', e.g. my account, my credit card unless you have already acknowledged or are willing to. (thanks Pam)

[zubo]

Ref #14

 

Excellent point made by Inkogneetoh:

 

An agreement that does not contain all the required information is NOT UNexecuted - it is IMPROPERLY executed - and there is a HUGE difference!!

 

The only time that an agreement would be UNexecuted is if it has not been signed by BOTH parties - in which case it has not actually been made!!

 

An agreement that has been signed by BOTH parties is, and always has been EXECUTED. However, if that EXECUTED agreement does not comply with the form and content requirements of the CCA then it is IMPROPERLY executed.

 

It's VERY important that people do not confuse the 2 definitions, particularly if they are actively challenging the enforceability of their agreements.

[humbleman]

HOW ABOUT THIS, IF THEY FAIL TO PRODUCE THE AGREEMENT-I HAVE MERGED VARIOUS BITS FROM DIFFERENT CAGGERS.

 

 

 

 

THE COMPANY

 

 

 

I wrote to you by recorded delivery on 'DATE' asking for a copy of the agreement together with the relevant information under S77-79 of the Consumer Credit Act 1974, enclosing the fee payable. This letter was delivered and signed for on 'DATE' according to the Royal Mail.

 

The Consumer Credit Act allows 12 working days for this request to be carried out before your company enter into a default situation. If the request is not satisfied after a further calendar month, your company commits an offence. These time limits have now expired I have still neither received a copy of the agreement as required by S78 Consumer Credit Act 1974, nor any other information.

 

As you are no doubt aware that if the creditor under an agreement fails to comply with the above request

 

(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.

 

AS such this account has became unenforceable at law. Consequently I do not acknowledge any debt to your company, and no further payments will be made in respect of the above number.

 

 

As an offence of this nature may have an impact on your ability to hold a credit licence, it is important that you give this letter your immediate and prompt attention.

 

 

What I require.

1. Pursuant to the Data Protection Act 1998 I require you with immediate effect to ensure that all data held by you regarding the alleged agreement or any reference to it, is removed from any and all Credit Reference Agency database.

2. Ensure that all data held by you regarding me is destroyed.

3. Refund all monies paid to you by me.

4. Ensure that all correspondence is made in writing.

 

 

Failure to comply

• Failure to comply with my request under the Data Protection Act 1998 will result in the matter being referred to the Information Commissioner.
  
• Failure to comply with the requirements of the Consumer Credit Act will cause me to refer the matter to the Office of Fair Trading, and Trading Standards.
  
• Continued telephone contact will generate a complaint to the police.
  
• Failure to repay the paid sums shall cause me to report you to the OFT, Trading Standards and the Financial Services Authority.
  

I await your prompt response and in any case within the next 12 days.

[zubo]

Ref #16

 

Owner: DaveFireWalker (edit Zubo)

Used For: To Notify a Creditor that they have sent an application form and they need still to supply the true executed agreement

 

Date Created/Updated: 03-Apr-2007

 

Template:

 

 

Dear Sirs

Ref account **************

 

With regard to the documents that you sent me in relation to my request for information under the Consumer Credit Act 1974, I am still waiting for the signed executed agreement. You seem to have sent me an application form and a somewhat recent copy of your terms and conditions and a very recent copy of an agreement form unsigned by anyone. I’m sure this must be an oversight, so I will ask you again for the proper documents.

I draw your attention to section 61 of the consumer credit act 1974 (an excerpt enclosed for your perusal) in that

“(1) A regulated agreement is not properly executed unless a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner.”

Be also advised that your statutory time period has elapsed and YOU are now in default and very shortly you will have committed a criminal offence. As you are now in default NO further action can be taken on this account until such a time as the original SIGNED EXECUTED documents are made available to me.

This account is still in dispute and I still forbid the passing of any data to third parties, if any data has been processed illegally since my last request I shall take appropriate action.

Further if you cannot supply the proper documents and you have entered any defaults against my name I require that you remove them immediately.

I shall be carefully considering my options and next actions.

I await your response.

 

lets see if that rattles their cage....

 

also on a further note regarding agreements have a GOOD read of the doc at this link. its the OFT guidelines for credit agreements. its the 2004 version though. the 1983 version must exist somewhere.

 

http://www.oft.gov.uk/shared_oft/rep...it/oft786a.pdf

 

IT MAKES INTERESTING READING

 

Dave

 

Ref: #17

 

From Inkogneetoh:

 

Quote:

Originally Posted by m55dlc

Pam, are you sure on the bit in bold? I thought that could be enforced by a judge. If you signed it and they didn't, enforceable with a court order

 

Hi

 

No, I have to admit ( hope Peter ain't around!) that I am not SURE about the signatures bit.

 

It's confusing because s127(3) says:

The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

Which implies that just the debtor's signature will do, (as long as all the prescribed terms are present).

 

But my understanding is that the agreement is not executed until both parties have signed it.

 

In support of this:

 

62 Duty to supply copy of unexecuted agreement

 

(1) If the unexecuted agreement is presented personally to the debtor or hirer for his signature, but on the occasion when he signs it the document does not become an executed agreement, a copy of it, and of any other document referred to in it, must be there and then delivered to him.

 

This is where an agreement is sent to the debtor for his signature first and when signed it still does not become an executed agreement because the creditor still has to sign it. So an agreement that is not yet signed by both is still unexecuted!

 

Definitions:

 

“unexecuted agreement” means a document embodying the terms of a prospective regulated agreement, or such of them as it is intended to reduce to writing;

 

“executed agreement” means a document, signed by or on behalf of the parties, embodying the terms of a regulated agreement, or such of them as have been reduced to writing;

 

So, an unexecuted agreement is just a prospective agreement.

 

Does this make sense to you - it certainly does to me!

 

Regards, Pam

[davefirewalker]

subscribing

 

Dave

[Peterbard]

Hi Pam

 

Just to reassure i found the following on an OFT site.

 

Withdrawing from agreements

Borrowers can always change their mind and withdraw from an agreement before you sign it, even if they have already signed it.

Consumers have to be quick because there is no set time limit. They must notify the lender or owner, or another trader involved in the deal, before the lender or owner signs. They can do this by telephone, but it's a good idea to confirm withdrawal in writing to the lender or owner.

Proves your point i think.

 

Can't win em all

 

Peter

[Peterbard]

HI Again

 

Yes the agreement is not made unenforceable by the lack of a creditors signature but it does need a courts leave in order to enforce.

 

Seems odd since the agreement wouldn't have been executed without both sigs but there we are.

 

Regards

 

Peter

[Peterbard]

HI again nice to have a rest from the bailiff thread.

found this to support above

 

Section 127(3) precludes the court from making an enforcement order if section 61(1)(a) (signing of agreements) was not complied with, unless a document containing all the prescribed terms was signed by the debtor or hirer.

 

Regards

Peter

[paulandberyl]

Hi

 

Does anyone know what the situation is where a credit agreemnent has been signed but not dated. Also if a company has charged more then they should (only 20p) are there any guidlined for this as well.

 

Thanks

[zubo]

Updated Post #1

 

z

[donbracho]

hello all !

right i sent the cca request letter to lowells regarding a debt in dispute (capital one charges ) they sent the usual hang on we'll get back to you soon letter then i sent this letter to them (i didn't come up with it myself its been nabbed from another poster)

Refs: Account number 4023962001335351

Your ref:5419505 11 April ,2007

 

Dear Sir/Madam,

 

Before I continue I wish to establish that I am not seeking to avoid responsibility for any alleged debt or breach of any alleged agreement that I may have or have had.

I wrote to you on the 2xxxxxxrequesting a copy of the executed agreement under the Consumer Credit Act (1974).

I also asked for a statement of account.

A copy of that letter is attached for ease of reference.

I also requested an executed deed of assignment documenting your involvement; this too has not been supplied.

Accordingly, it is my consideration that you have been unable to supply an agreement because no such agreement exists.

Consequently I am unable to acknowledge any debt to your company

 

Your non-compliance with my request means that your company has committed an offence under Section 77 (4) of the Consumer Credit Act 1974, summarily punishable by a Level 4 fine on the standard scale.

A credit agreement that is not properly documented and signed by the customer is totally unenforceable under the Consumer Credit Act 1974 and is therefore a complete defence to any court claim that is issued.

Please take note that any legal action you may contemplate will be vigorously defended and contested.

Furthermore your actions arguably do not comply with the Office of Fair Trading (OFT) Debt Collection Guidelines of July 2003, in that you have ‘communicated with [me] in an inaccurate or misleading manner (section 2.1) by ‘presenting information in that it creates a false or misleading impression’ and ‘failing to provide [me] with information on the status of debts’.

 

Notwithstanding the above I believe that your operatives have sought to contact me on a number of occasions, I would imagine regarding your Company’s viewpoint on the above now disputed agreement.

I now consider that considering your failures as mentioned above, any telephone calls from you constitute harassment and so from this date any further calls to me will be reported to the Police.

In addition you are in breach of the OFT’s July 2003 guidelines in that you are wrongly pursing [me] contrary to Section 2.8(i).

Another worrying facet of this whole case is the unlawful dissemination of my data by your company to a third party. Under the Data Protection Act (1998) I have principled rights in that:

(Schedule I)

1. Personal data shall be processed fairly and lawfully.

2. Personal data shall be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with that purpose or those purposes.

(Schedule II)

1. The subject has given his consent.

2. The processing is necessary “for the performance of a contract to which the data subject is a party.”

I have recently conducted an audit of my personal credit reports supplied by Experian and Equifax.

Within both files, an entry referenced to the alleged debt is lodged.

 

This is recorded as “In Default”.

 

However, I note that files have been updated continually since then and I can only deduce that it is your firm updating my credit file without my consent or that your company is disseminating my information to a third party without my consent.

 

The fact that you have not provided me with a copy of the agreement negates any Notice of Default being served on me, as required by the conditions of the Consumer Credit Act 1974.

 

Incidentally, if the documentation were to be produced, you will be aware the default notice serves to cancel any original terms and conditions and as such cancels any right you or my creditor might have, implied or otherwise, to share my information without my consent.

 

I would then be looking to receive substantial compensation from your firm for this breach of my rights.

 

 

What I require

 

I require you with immediate effect to ensure that all data held by you regarding the alleged agreement/debt is removed from any and all Credit Reference Agency database.

Ensure that all data held by you regarding me is fully destroyed.

Ensure that no further telephone calls are made to me, or my place of work.

Ensure that all correspondence is made in writing.

I require written confirmation of the above together with a quarterly statement that no data has been processed by you regarding me.

Failure to comply

• Failure to comply with my request under the Data Protection Act 1998 will result in the matter being referred to the Information Commissioner.
  
• Failure to comply with the requirements of the Consumer Credit Act 1974 will cause me to refer the matter to the Office of Fair Trading, and Trading Standards.
  
• Failure to comply with the requirements Office of Fair Trading guidelines will lead to a report being submitted.
  
• Continued telephone contact will generate a complaint for harassment to the police.
  
• If you fail to comply with any or all of the above I reserve the right to take action against you without further contact.

I expect to hear from you within 12 working days from the date of this letter.

 

Failure to do so will be taken that you failed to comply with my request and I will consider the matter closed.

 

Any further action on your part or that of my alleged original creditor pursuant to your and/or their breaches of my statutory rights will be taken as a wilful act of harassment and each instance will be reported to the police.

 

 

 

Yours faithfully,

 

[InKogneeToh]

A suggested response where the creditor/DCA has sent a copy of an application form that does NOT (after careful checking!) contain all of the prescribed term and/or is NOT signed by the debtor and where they are still insisting (after a 2nd chance has been given them) that either the document complies with the CCA, or IS a true copy of a properly executed agreement, or IS proof of your agreement to pay the (alleged) debt:

 

Dear Sir/Madam

 

Ref:.........

 

On ( date) I sent you a request under s77/78 CCA for a true copy of the executed credit agreement that relates to this alleged debt.

 

To date you have failed to comply with your statutory obligations as you have only sent me a copy of an initial application form.

 

[since the statutory time limit for supplying me with the correct copy document has now been exceeded, I must advise you that you are not entitled to enforce any alleged agreement against myself and that you have also committed a criminal offence under the CCA.] Include if applicable

 

I therefore expect no further communication from you in respect of this matter.

 

Should you nevertheless choose to initiate legal proceedings against me, I will expect to receive, with any Letter before Action, a copy of the document that you will be relying on as proof that a properly executed agreement, complying in all respects with the form and content requirements of the CCA was signed by myself in respect of this alleged debt.

 

Yours etc.

[ripoffstopper]

Hi guys, fascinating read, well done Zubo for pulling it all together. Peter Bard, I saw reference in another thread - in another universe it seems, (because its so easy to follow links and get lost) - about a post you made regarding the DTI and I have yet to find it. Could you oblige by sending me a PM or posting a link here.

Many thanks and sorry for the partial hijack.

ROS

[redsue]

sorry to hi-jack, for clarification - if a creditor fails to send an agreement in time - Can I then report them to-

- Office of Fair Trading

- Trading Standards

- Information Commissioner

- Financial Services Authority

 

anyone else?

[zubo]

Sorry for late reply Sue,

 

I guess that would just about cover them all - we really need some good template letters for these....

 

also look at Perseus' post #324

 

http://www.consumeractiongroup.co.uk/forum/general-debt/82492-cca-agreements-mark-ii-17.html

 

 

 

Z

 

bump

 

This snippett should be used and modified when you are getting the runaround and have not been supplied with an executed agreement or similar. Note the wording - intention to consider litigation -

intention = you may change your mind

consider litigation = I may take you to court OR I may be considering preparing for when you take me to court

 

____________________________________________________

 

It is also my intention to consider litigation in this matter and your attention is drawn in particular to CPR 4.6 © enclose copies of documents asked for by the claimant, or explain why they are not enclosed;

I would therefore request, in compliance with CPR 4.6© a copy of the document that you will be relying on as proof that a properly executed agreement, complying in all respects with the form and content requirements of the CCA was signed by myself in respect of this alleged debt.

 

I expect, in accordance with CPR, your prompt response to this formal request without further delay.

 

 

____________________________________________________________

 

Z

 

From Ian1969uk (zubo for editing)

 

Comprehensiver chasing letter if there has been no response to a CCA request.

 

Dear Sir or Madam

 

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 fulfill 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. An unsigned credit agreement with my details simply printed onto it, like the one 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. A blank agreement 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 7th February 2007 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.

 

You now have until 7th March 2007 to comply with my request. Should you fail to provide me with a true copy of a properly executed credit agreement by this date, you will have committed a criminal offence and your conduct will be reported to the Office of Fair Trading, the Financial Ombudsman and Trading Standards. Any investigation undertaken by them may affect your ability to offer credit in the future.

 

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.

 

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

 

I am sending a copy of this letter to Nationwide Debt Recovery Limited who are currently dealing with my account.

 

I look forward to your reply.

 

Yours faithfully

 

ian1969uk

[Jeff2000]

Subscribing!

 

 

Jeff.