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

[steve1963]

Hi all,

This is my first post although I have to admit to loitering for quite some time so please be gentle with me.

I requested a cca from Cap One 10 days ago and today recieved a reply, containing a Credit Card Agreement with my name and address printed on it but no signatures and I think it is the current copy because the charges mentioned are all £12.00 which is the current rate. This sheet also has the terms and conditions on it.

 

The covering letter states.

 

Thank you for your letter requesting copy documents for your account.

 

You requested copies of the executed credit agreement and a statement of your account under section 78 of the consumer credit act 1974.

 

Please find enclosed a copy of the current terms and conditions of your agreement, in compliance with section 78 of the consumer credit act 1974.

 

It then goes on to summerise the state of my account.

Have they complied in the correct way?? If not what should I do next?

 

Many thanks in advance and sorry for the long post.

[car2403]

Hi Steve and welcome to the forums - you're in good company that can help you here!

 

Firstly though, you need to start your own thread in the relevant section of the forum to get the help you need - not least because this thread doesn't have all the details of your case, but you'll find it easier to get advice quickly if you have your own thread up and running.

[steve1963]

Hi Steve and welcome to the forums - you're in good company that can help you here!

 

Firstly though, you need to start your own thread in the relevant section of the forum to get the help you need - not least because this thread doesn't have all the details of your case, but you'll find it easier to get advice quickly if you have your own thread up and running.

 

Thanks I have done that but so far I don't seem to have attracted much interest, hope this link works.

http://www.consumeractiongroup.co.uk/forum/general-debt/110971-cap-one-cca-default.html

Any input would be most welcome as I'd like to get this moving asap.

Thanks

Steve

[Boon72]

Ok this is the reply is sent them after there letter saying i hadn't signed an agreement:-

 

With reference to the above agreement, thank you for the reply confirming that no agreement exists. Due to this, the debt is unenforceable under Section 127 of the CCA 1974. Could you please remove any mention of this account from my credit record and advise RMA, that the debt is now clear and no further action is required from them

 

I have no response from Barclays on this since i sent it on 13/8/07, but the ever nagging RMA have made a few calls wanting full payment (cos i keep that in my back pocket as small change) or a payment to keep my account on hold.

whats next?

[hsbcfiddled]

On the subject of Credit agreements I have noticed that some agreements have three signatures on them;

1. Customer

2. Creditor

3. Witness

 

My question is can the Creditor and witness be the same person?

[rhsymonds]

Surely if that was the case, there would be no need for a witness signature ?? The signature of the creditor would prove they had witnessed it ????

[JonCris]

hsb a witness cannot be a beneficiary (creditor) of the agreement they sign.

 

Also any signature must be applied in front of the witness otherwise the document is void unless a court orders otherwise

[seawrack]

gizmo111 vbmenu_register("postmenu_742396", true);

 

Reading your original post could you clarify something for me please?

 

If one gets to the stage of going through the 12+2+30 and receiving no CCA how can one negotiate a settlement figure? If the DCA cannot prove they own the debt to whom can one apply for a settlement?

 

I am keen to know this becaue the time period I am involved in reaches the end on 23rd September and I will then need to try and negotiate a full and final settlement.

[JonCris]

seawrack why would you want to negotiate a settlement? - if they don't have the agreement you don't have to pay them anything. If you do pay your paying them despite their negligence & criminal conduct.

 

Just write to them & tell them as follows:

 

as a result of your failure to comply with my lawful request as set out in the CCA 1974 I consider any alleged debt to be unenforceable & as a result shall not be making any further payments forthwith

[hsbcfiddled]

On the subject of Credit agreements I have noticed that some agreements have three signatures on them;

1. Customer

2. Creditor

3. Witness

 

My question is can the Creditor and witness be the same person?

 

I know I shouldnt but I telephoned the DCA's solicitor today and I put the subject of creditor & witness being same signature.

 

His reply was there was no legal reason or requirement for their to be a witness signature on the document therefore it could be the same person:confused:

[car2403]

seawrack why would you want to negotiate a settlement? - if they don't have the agreement you don't have to pay them anything. If you do pay your paying them despite their negligence & criminal conduct.

 

Just write to them & tell them as follows:

 

as a result of your failure to comply with my lawful request as set out in the CCA 1974 I consider any alleged debt to be unenforceable & as a result shall not be making any further payments forthwith

 

Hmmm... I'm not quite sure that that is right - any debt you owe is still "owed" even if the debt is unenforceable under the CCA. In other words, just because they haven't produced an agreement, you still owe them the balance but they have no legal method of enforcing their contract against you, nor do they have your legal permission to process any data against you. It doesn't mean that you don't owe them the balance.

 

I'm not sure if that argument will work, as any creditor worth their salt will make extra effort to find an agreement to enforce their debt against you if you argue you aren't paying any more. Surely it's better to either continue (or offer and start making!) reduced payments that you can afford to clear the debt - legally enforceable or not - or offer a reduced, full and final settlement.

 

I won't be advocating that outstanding debts shouldn't be paid, but I am interested in enforcing legal rights against unenforceable debts and improving financial situations.

 

I know I shouldnt but I telephoned the DCA's solicitor today and I put the subject of creditor & witness being same signature.

 

His reply was there was no legal reason or requirement for their to be a witness signature on the document therefore it could be the same person:confused:

 

I think he's right, hsbcfiddled - the CCA has no requirement for a witness signature. As long as the customer/executor signatures are there and signed, that satisfies the Act's requirements.

[Boon72]

RMA called me and asked if i had any response from Baclays yet from my last letter and as i haven't and they haven't told RMA to drop it they asked for the letters. so ive sent them copies of my 2 letters and the 1 from Barclays. just waiting now hopefully they'll drop it

[gizmo111]

gizmo111 vbmenu_register("postmenu_742396", true);

 

Reading your original post could you clarify something for me please?

 

If one gets to the stage of going through the 12+2+30 and receiving no CCA how can one negotiate a settlement figure? If the DCA cannot prove they own the debt to whom can one apply for a settlement?

 

I am keen to know this becaue the time period I am involved in reaches the end on 23rd September and I will then need to try and negotiate a full and final settlement.

 

If they cannot produce the CCA the debt still exists you know what you could afford to get the matter ended once and for all. You negotiate wiht whoever is chasing you.

[ian1969uk]

If they have no agreement (or one that is unenforceable), I see no benefit to the debtor in offering to pay anything at all. If you don't pay anything, they can't enforce and the worst that can happen is a default on your credit file.

 

If you make reduced payments, or offer a lower sum in final settlement, then this too will be recorded on your credit file.

 

Either way, you will have trouble getting credit for the next 6 years.

 

If you don't pay, though, then you can challenge the default and possibly get it removed. If you make a reduced payment, this is voluntarily and so you cannot challenge the credit record entry to this effect.

[car2403]

They can't default you without a legally enforceable agreement and having followed the prescribed terms for terminating/defaulting you - issuing a "Default notice" under the CCA is a legal enforcement of their rights against you.

 

My point is that this shouldn't be used to avoid making payment.

[ian1969uk]

They can't default you without a legally enforceable agreement

 

You should try telling the creditors, the credit reference agencies and the ICO that!

[ian1969uk]

 

My point is that this shouldn't be used to avoid making payment.

 

That's a matter of opinion.

[seawrack]

If they cannot produce the CCA the debt still exists you know what you could afford to get the matter ended once and for all. You negotiate wiht whoever is chasing you.

 

Precisely gizmo but if they cannot prove they own the debt how can I negotiate a F&F settlement? As I said I want to do this but have to be able to ensure that they are the right people to negotiate with and if they cannot produce proof of that how do I know they are?

[hsbcfiddled]

Car2403 - thanks for your reply to my post.

 

However, I cant agree with you regarding making payments when a debt is unenforceable-

If I or you (I assume) do not carry out our duties at work correctly then we would find ourselves out of work.

These DCA's prey on people who cant get credit, their terms and conditions, the way they threaten and harrass, do not in my opinion deserve the common decency that we would afford them by offering any payment.

They default without carrying out proper procedure and get payments by people paying through ignorance of the law. (me included- until now)

 

My thoughts are if they have not got the correct documentation- Dont pay them. They dont deserve it. Remember your mistakes in going to them in the first place and never go down that road again.

I for one will not be asking for credit again. If I cant afford it I will buy it when I can.

[JonCris]

hsbc.

 

They haven't produced an agreement so don't pay.

 

Its the price they pay for their own avarice & persecution of the consumer

[Goldlady]

And in a lot of cases, like mine, they are 100% guilty of irresponsible lending - preying on vulnerable people and whacking up credit limits by several thousand pounds when you are only making the minimum payment.

[tr03bor]

can someone check my posty please

 

http://www.consumeractiongroup.co.uk/forum/general-debt/108348-cca-response-help-please.html

[Boon72]

ok, Barclays have now said that despite my letters they sent the account to RMA to recover the debt & as i am contesting it i need to seek my own legal advise, but they didnt know who i had to deal with (just a person from the BRU helpdesk) so im not sure what to do next, as RMA keep calling and after running round the houses looking for Linda @ Barclays.(no not the song ) they said its nothing to do with them.

 

the current situation is i have no written agreement as i was staff and they've agreed that, i wrote back regarding section 127 saying it was therefore unenforsable and to let RMA know, but they dont seem to want to and RMA wont stop as only a clear debt or Barclays can stop them.

[Perseus]

If they cannot produce the CCA the debt still exists you know what you could afford to get the matter ended once and for all. You negotiate wiht whoever is chasing you.

 

Sorry to disagree with this Gizmo...

 

Not only are you then acknowledging liability for an unenforceable debt, you are volunteering a payment against a debt that (other than moral if this is of concern) whilst the creditor is in default of supplying the CCA, you have no legal obligation to do so.

As many have said here - morals are less than abundent when OC's or DCA's are hounding/ harassing / failing in their legal obligations. I personally would not advocate acknowledging or admitting liability in this scenario, and given the correct approach, could not be forced to do so without THEIR obligations being met.

Each to their own I suppose!

[Perseus]

ok, Barclays have now said that despite my letters they sent the account to RMA to recover the debt & as i am contesting it i need to seek my own legal advise, but they didnt know who i had to deal with (just a person from the BRU helpdesk) so im not sure what to do next, as RMA keep calling and after running round the houses looking for Linda @ Barclays.(no not the song ) they said its nothing to do with them.

 

the current situation is i have no written agreement as i was staff and they've agreed that, i wrote back regarding section 127 saying it was therefore unenforsable and to let RMA know, but they dont seem to want to and RMA wont stop as only a clear debt or Barclays can stop them.

As Joncris quoted earlier, have you checked your Terms & Conditions / employment contract to see if there is any mention of preferential staff finance schemes etc?

Unless it is covered under that, The original creditor and RMA are in breach of OFT664, CCA s77/78, breach of your principled rights from their disclosure to RMA (as no agreement exists expressly consenting to the sharing or disclosure of your personal data!)

Have you got it in writing that Barclays acknowledge no agreement exists?

Thats a good start....