Guidelines - Requests For An Original Agreement Under The Consumer Credit Act 1974

[JonCris]

bob this has already been discussed at length.

 

The 83 regs refer to copy docs sent at the outset of the agreement & doesn't supercede the 74 regs

 

If they do not provide a properly executed 'signed' agreement it is a complete defence against enforcement

[Stornoway]

I have 4 credit cards where creditors have admitted there is no agreement and in every case the creditors are being very intransigent;

1. can anyone tell me what 'enforcement' actually means. Where there is no agreement and I stop paying can they continue to chase me for a debt which does still exist or is this regarded as enforcement ? I dont want to stop paying and end up with a debt collector at the door.

2. all the creditors are refusing to remove default information even though they dont have my consent to process. They say that I must have given consent when the account was opened as an agreement would have existed at that time and having spoken with the ICO they agree with the banks - (unbelievable). I want to take them to court to stop the processing but if i do am i running the risk of a counter claim for repayment of the debt and the judge finding in their favour on the basis of me having used the card etc.

[JonCris]

They can be as intransigent as they like but you can stop paying no matter what they claim.

 

They can ask you to pay as the debt does exist but if they are too persistent they could be guilty of criminal harrasment as there is no remedy for them to enforce a debt without the existent of a proper signed agreement. That's why this government has removed section 127 of the CCA 74 Nevertheless all agreements still need to be signed by the parties.

 

If you have DCA's threatening to visit just write to them telling them that no agreement exists & if the pester you you will report them for criminal conduct. Also send them a s77-79 CCA request (template in library)

 

The ICO are a joke & I should write back & ask them under which section of the DPA the data controller is permitted to process your data without your signed consent (the "you must have consented" is spurious & has no basis in law)

 

A court cannot make an order to enforce a debt without a properly executed 'signed' agreement.

 

Having said that it has happened but only because of the ignorance of the consumer & the agreement was never requested.

 

The judge is not going to fight the litigants battles & some don't even know it's a pre requiste of their abilty to make an enforcement order.

 

In other words you have to tell them (politley) of their obligations whilst quoting the relevant section of the CCA

[bobinramsey]

Thank you JonCris,

But how about the "IF ANY" in the sect 77 when it taks about providing a signed copy of an agreement? Surely if there Has to be an agreement they wouldn't have put in that get out clause.

Bob

[Pliny the Penuriosus]

'If any' refers to bank accounts. All other lending loans, credit cards etc MUST have a properly executed 'signed' agreement

[djdave]

I've found possibly the most useful document, which explains (amongst many other things) exactly what the OFT's interpretation of a valid agreement is:

 

8.1 What are ‘prescribed terms’?

 

S61(1)(a) CCA provides that, for a regulated agreement to be properly executed, it must contain all the prescribed terms of the agreement and conform to regulations under s60(1) – see Q1.14.

 

Reg 6(1) provides that the terms specified in Sch 6 to the Agreements Regulations are ‘prescribed terms’ for the purposes of s61(1)(a) and s127(3) – see Q8.2.

 

8.2 What if prescribed terms are missing or incorrect?

 

s127(3) provides that the court may not make an enforcement order unless a document containing all the prescribed terms of the agreement was signed by the debtor – see Q1.21.

 

If therefore any of the prescribed terms is missing, or incorrect, the agreement is not enforceable against the debtor, and the court is precluded from making an enforcement order.

 

 

8.3 What are the prescribed terms?

The prescribed terms specified in Sch 6 are as follows:

• amount of credit – see Q8.
  
• credit limit – see Q8.5
  
• rate of interest – see Q8.6
  
• repayments – see Q8.9.

Sch 6 was not amended by the 2004 Regulations.

 

So if and when you get your CCA reply, it is so important that you check its validity!

 

The document is here:

http://www.oft.gov.uk/shared_oft/reports/consumer_credit/oft786a.pdf

 

Sorry if it's been posted before, but it's just SO useful!

[hellhasnofury]

Hello,

 

I am extremely confused.

 

the debt is not enforceable if they do not produce the ca in the 12 days plus 1 month or now can they???????????

 

I have followed your post and you seems to have changed you opinion, can you clarify please

 

Originally Posted by gizmo111

Did you work out the charges amount?

 

As they cannot locate the agreement then you are in the position that they cannot enforce the debt.

This is the information I have followed:(

[make them aktiv runners]

Think you are confusing CCA and SAR requests. Gizmo has correctly answered all way through.

 

CCA not produced after 12 + 2 working days then they are in default, and if still not produced after another 30 days then an offence has been committed. You may stop payments until such time that they do supply CCA and they cannot charge any interest during the full default period. Without the CCA the debt becomes unenforceable even via court (unless there is already a CCJ).

 

SAR - you cannot report them to ICO if they have stated they do not have the agreement (CCA) but supplied everything else.

[Perseus]

A bank or a DCA can apply for a County Court Judgement without ever having provided proof of a True copy of the signed executed agreement.!!

If the creditor/dca apply for the ccj, and the debtor fails to defend or request a set aside in the allowed time period, the creditor/dca can apply for a judgement by default. The view is taken by the courts that if there is contention, the creditor/dca should be able to supply the supporting documentation - without the defence or contention the creditor/dca has nothing to prove. Guilty by absence of defence!

The CCJ then becomes proof of a debt which could/should have been challenged - Thats why the CCJ's are diffcult/near impossible to remove regardless of whether or not you request a CCA to confirm it's legitimacy.

 

The moral of the story is, if you are threatened or served CCJ papers, defend/contend/force the creditor to prove the debt. There are DCA's out there laughing at the judicial system, purely because it is so easy to serve a CCJ on the 'Last Known Address' for a client. Even if they are advised of the new address of a debtor, they can still 'Track and Trace' the last known info (correct or not), serve a CCJ, get judgement by default - all without the debtor knowing that it's going on. I know - my sister had this happen to her - and the court could do nothing, believing the DCA had taken all reasonable steps to prove the address of a 'Delinquent Account'.

 

Hope I haven't waffled too much.

 

Perseus

[paulandberyl]

I wrote to trading standards due to not getting a copy of the CCA and they wrote to the DCA concerned. The DCA solicitors wrote to Trading Standards saying that they are only obliged to keep the copy of the agreement for six years. Trading Standards are not sure what to do now!!!! what chance do I stand?? Anyone have any thoughts on this?

Thanks

[make them aktiv runners]

well yes that is true they do have a statutory duty to retain the CCA for 6 years BUT then taking such action to destroy a CCA before payments are complete means they no longer hold the very document to allow enforcement of the debt. Data protection allows them to keep documents for as long as is necessary which of course is more than 6 years in this case.

[Cornucopia]

This judge doesn't think so http://www.consumeractiongroup.co.uk/forum/general-debt/57495-1st-credit-mbna-applying-7.html#post752395

 

If you don't mind me saying, and as a subscriber to the above thread, this situation was rather more complicated. Thereshope did not know about CAG or the tools that were available to her prior to the CCJ being applied. She had already admitted the debt on Court papers, therefore, the fact that the creditor was unable to provide the agreement and other documents became irrelevant. Had Thereshope defended the application of the CCJ by stating that the Creditor could not provide the agreement etc, the outcome would probably have been very different. The fact is that the application she made was too late to halt the process. Unfortunately, had she found CAG earlier, she would have been armed to deal with it.

 

Also, I know of another case with HFO Services/MBNA where (only two weeks ago), they attempted to apply a charging order on the back of a conjectured "agreement". The Judge ruled the agreement inadmissable and struck out the charging order, awarding costs to the defendant. He did, however, give the claimant 30 days to provide the following :

 

True copy of the executed agreement.

A true copy of the alleged default notice (not received by the defendant)

A true copy of the deed of assignment.

 

They have stated that they are "confident" that they can supply this information. Given that they have not been able to supply it in six months and under the pain of a Subject Access Request, I very much doubt that they can.

 

I suspect that it is game, set and match to the defendant.

 

Unfortunately for MBNA, they are rather too handy with the Pritt Stick and scissors. I digress...........

 

In this case, the fact that a true executed agreement could not be supplied by the creditor, falls in full favour of the debtor.

 

I hope this is useful!

[paulandberyl]

Thanks for that. It makes sense. But I wonder if the courts would see it that way. As far as I can see not even Trading Standards seem to have much information or clout. Thanks again.

[Perseus]

Thanks for that. It makes sense. But I wonder if the courts would see it that way. As far as I can see not even Trading Standards seem to have much information or clout. Thanks again.

 

With Trading Standards, they seem reluctant to get involved in individual disputes, but once they receive enough complaints regarding a company on their patch, they'll start communications with them. OFT and even the FOS are a good bet, as immediately they begin their enquiries, it starts costing the company involved. So they start talking!

 

Failing that, the County Court is a good place to get things noticed, and with the right case/paperwork/support, there's no reason why you shouldn't achieve more, quicker and personally more gratifying.

 

[paulandberyl]

Thanks for that. I will contact the FOS.

[paulwlton]

I wrote to trading standards due to not getting a copy of the CCA and they wrote to the DCA concerned. The DCA solicitors wrote to Trading Standards saying that they are only obliged to keep the copy of the agreement for six years. Trading Standards are not sure what to do now!!!! what chance do I stand?? Anyone have any thoughts on this?

Thanks

 

This is nonsense in my opinion the creditor has a duty to keep all documents for the full lengh of the agreement, or until the agreement ends.

 

We all have credit cards and i know of a person who has had the same card for the last 20 years it would't make sense for a creditor to destroy the agreement after only 6 years.

 

 

Paul

[joesoap]

In a similar vein, I have a debt going back a few years (credit card originally taken out on 31/12/1994) and I am paying it off monthly, but just a token payment. As far as I can remember I never received an official letter saying the agreement had been terminated. Whether or not a DCA or bank is collecting the debt, as long as there is a debt, the agreement should not be "chucked away", surely it should be kept until the debt was paid or written off or whatever.

[humbleman]

The only statute I am aware of in respect of 6 year rule is that in regards to the accounting records for companies/traders/partnerships. Trading companies are supposed to keep the accounting records for a minimum period of 6 years. It would make business sense for any business that has ongoing agreements with anyone to keep the records until at least 6 years after the relationship has ended (to atleast comply with the revenue requirements)

[Glenn UK]

what makes sense to us and what makes sense to the banks is immaterial sadly, if they have written via their solicitor saying they don't have it then its unlikely without further evidence to the contrary that a could would be inclined to do anything about it.

 

If you have evidence that they do have your data then that is a different matter.

 

JMHO

 

Glenn

[paulandberyl]

Thanks for everyone's replies. I will keep everyone posted as and when I hear anything.

[gillytilly]

Right, sorry everyone i am confused. I have a friend who has had a IVA running for a year. The loan she has is part of the IVA agreement. She has written to the bank and they have ignored her totally. Does this mean that she has no legal grounds in stop paying towards this loan as she has not seen her orginal agreement. She is confused as she has sent all the letters recorded and rang them and sent them a final letter (not sure if she has a CJJ against her for it). She has send a copy to the people who manger her IVA but no one seems to know what to do next. Please help

 

Gilly

[yaffsimone1]

Ok many will not be in a position for a full & final settlement, but surely this now means the debtor has a strong case to negotiate payment arrangements? One other question though until the CCA has been supplied should you stop making all payments, is this right? i cannot seem to find this in the act.

[Cornucopia]

Ok many will not be in a position for a full & final settlement, but surely this now means the debtor has a strong case to negotiate payment arrangements? One other question though until the CCA has been supplied should you stop making all payments, is this right? i cannot seem to find this in the act.

 

I agree, however, this is personal choice, if you want to keep things nice and keep your record clean, it would be a very useful negotiating tool if they cannot provide a copy of the agreement. I wouldn't offer more than 10% in full and final though and, frankly, if it not enforceable, they would be lucky to get that. Bear in mind, they will sell the debt for around that amount.

 

Not everybody may agree with me, but I think that in some instances it may be worth using!

 

Regards,

 

Corn x:)

[InKogneeToh]

A debt becomes unenforceable under the CCA if a creditor does not supply a true copy of the signed ? credit agreement within 12 working days of it being requested, after a further month the creditor has committed an offence. This offence can be reported to the Trading Standards Authority (in the creditors area, not your local one), or the FSA.

 

The debt remains unenforceable for as long as the creditor fails to produce the signed credit agreement

 

Hi

 

For the purposes of complying with a request under CCA s77/78, the creditor may omit from the 'copy' agreement any signatures, the name/address of the debtor and 'office use' information. (Consumer Credit (cancellation notices and copies of documents) Regulations 1983).

 

I was hoping that this thread was going to contain full and accurate guidelines on all the facts relating to requests for copies of agreements because many members are becoming totally confused as to what constitutes a 'copy' of an agreement, what the agreement should contain and what their next steps are!

 

There is a dire need for accurate information and advice on these issues, (and many other CCA related ones) readily accessible for all.

 

For example:

 

What are the prescribed terms?

 

Which errors/omissions make an agreement totally unenforceable (pre April 2007) and which make it 'improperly executed'?

 

Is an application form acceptable as an executed agreement?

 

What if the copy agreement is illegible?

 

These are the sorts of questions that are being asked repeatedly and they need definitive answers. There is a fairly detailed FAQs section on penalty charges, with template letters and other resources available in the various libraries and as 'stickies', but no similar provision for this section of the forum.

 

The situation now is that some of the relatively few members who have been giving advice on this subject are now being inundated with PMs and emails asking for help.

 

Is this being addressed please?

 

Regards, Pam

[yaffsimone1]

Hi

 

For the purposes of complying with a request under CCA s77/78, the creditor may omit from the 'copy' agreement any signatures, the name/address of the debtor and 'office use' information. (Consumer Credit (cancellation notices and copies of documents) Regulations 1983).

 

I was hoping that this thread was going to contain full and accurate guidelines on all the facts relating to requests for copies of agreements because many members are becoming totally confused as to what constitutes a 'copy' of an agreement, what the agreement should contain and what their next steps are!

 

There is a dire need for accurate information and advice on these issues, (and many other CCA related ones) readily accessible for all.

 

For example:

 

What are the prescribed terms?

 

Which errors/omissions make an agreement totally unenforceable (pre April 2007) and which make it 'improperly executed'?

 

Is an application form acceptable as an executed agreement?

 

What if the copy agreement is illegible?

 

These are the sorts of questions that are being asked repeatedly and they need definitive answers. There is a fairly detailed FAQs section on penalty charges, with template letters and other resources available in the various libraries and as 'stickies', but no similar provision for this section of the forum.

 

The situation now is that some of the relatively few members who have been giving advice on this subject are now being inundated with PMs and emails asking for help.

 

Is this being addressed please?

 

Regards, Pam

 

 

If a creditor is ommitting the debtors signatures, names, addresses etc, then surely this defeats the whole object of asking for a copy of your agreement. If it does not contain that information then how is it proven that that particular agreement even relates to you.

 

I believed what constituted to a 'copy' was exactly that, a photocopy of what i had signed.