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

[mandym501]

Are you certain that it is a copy of the original- and not a copy, of a scan, of the original.

It has been known for the original to be scanned onto a computer and the original destroyed. This scenario would mean (IMHO) that the debt would be unenforceable.

Hi, It is a fax so i'm not entirely sure.

 

Thanks for replying

 

Mandy

[hsbcfiddled]

Hi, It is a fax so i'm not entirely sure.

 

Thanks for replying

 

Mandy

 

Try writing to them and ask to 'view' the original because the copy doesnt satisfy your request. Remind them that the original would be required if it went to court.

fiddled

[marshallka]

Can anyone clarify this one. I have a dispute going with Firstplus about the settlement figure i PAID to them and i requested a S.A.R - (Subject Access Request). I then received a copy of the agreement being only the front side. I wrote to them again and said the agreement was not a true copy and executed agreement and they subsequently wrote back sending out a blank copy of the front/reverse of the agreement and said that they did not have a back copy of the original agreement (with terms and conditions and their signature) as they would expect. I have already paid this amount but am disputing this at the moment. My complaint is recent and lies with FOS. How do i stand now. Can i write back and say that without an executed agreement then i want back what i have paid to you as this makes my orginal loan voidable in line with cca. Any thoughts. My dispute is with regard to not having any documentation with regard to rule 78 and that my settlement was totally unfair. My agreement has loan, ppi and then total. It does state the APR and monthly interest but no total charge for credit.

Edited June 7, 2008 by marshallka

[car2403]

Can anyone clarify this one. I have a dispute going with Firstplus about the settlement figure i PAID to them and i requested a S.A.R - (Subject Access Request). I then received a copy of the agreement being only the front side. I wrote to them again and said the agreement was not a true copy and executed agreement and they subsequently wrote back sending out a blank copy of the front/reverse of the agreement and said that they did not have a back copy of the original agreement (with terms and conditions and their signature) as they would expect. I have already paid this amount but am disputing this at the moment. My complaint is recent and lies with FOS. How do i stand now. Can i write back and say that without an executed agreement then i want back what i have paid to you as this makes my orginal loan voidable in line with cca. Any thoughts. My dispute is with regard to not having any documentation with regard to rule 78 and that my settlement was totally unfair. My agreement has loan, ppi and then total. It does state the APR and monthly interest but no total charge for credit.

 

The right to the agreement under s.77/s.78 ends when the debt is repaid. As you've paid a settlement, they aren't obliged to send the agreement under the CCA.

 

If you've requested the agreement under the SAR, they have replied with what they have. That's probably enough to cover the DPA requirements, if they are willing to make a statement that the back of the original agreement is no longer stored. They will also say that the T&C's aren't relevant to you as a Data Subject, as you aren't named/mentioned in the data, so aren't entitled to it under the DPA.

 

I don't think you'll recover the amount you've already paid, but there are others that would disagree with me. Effectively, you're asking for restitution to recover the amount you've paid under the agreement.

[marshallka]

The right to the agreement under s.77/s.78 ends when the debt is repaid. As you've paid a settlement, they aren't obliged to send the agreement under the CCA.

 

If you've requested the agreement under the S.A.R - (Subject Access Request), they have replied with what they have. That's probably enough to cover the Data Protection Act requirements, if they are willing to make a statement that the back of the original agreement is no longer stored. They will also say that the T&C's aren't relevant to you as a Data Subject, as you aren't named/mentioned in the data, so aren't entitled to it under the Data Protection Act.

 

I don't think you'll recover the amount you've already paid, but there are others that would disagree with me. Effectively, you're asking for restitution to recover the amount you've paid under the agreement.

So can i ask for compensation here or is my case completely useless. Also was my agreement right.

 

I shall still pursue my claim of rule 78 because it has now been deemed unfair and oppressive so what is unfair and oppressive now would of been then.

Edited June 7, 2008 by marshallka

[car2403]

So can i ask for compensation here or is my case completely useless. Also was my agreement right.

 

What would you be claiming compensation for? You may have suffered under the agreement, but there needs to be a legal basis for bringing the case, with justification for any claim for damages.

 

I shall still pursue my claim of rule 78 because it has now been deemed unfair and oppressive so what is unfair and oppressive now would of been then.

 

Deemed by who?

[marshallka]

What would you be claiming compensation for? You may have suffered under the agreement, but there needs to be a legal basis for bringing the case, with justification for any claim for damages.

 

 

 

Deemed by who?

The OFT deemed the rule 78 to be unfair and oppressive

 

http://www.oft.gov.uk/shared_oft/reports/consumer_credit/oft192v2.pdf

 

section 57 early redmeption

 

I was never explained this at the time i took out my loan (no paperwork was given) and i look at this as mispresentation along with the ppi and there was no total charge for credit on the agreement. I want back whats right and fair. I borrowed £17,000 with compulsory ppi added of £4163, repaid £11,000 over 3 years and then settled with £21,500 so i think it was unfair terms in consumer contracts.

 

I don't want actual compensation, i used the wrong words there... I want a fair rebate at settlement (plus interest). My claim for the ppi is outside the FOS jurisdiction. I just wanted to know if my actual agreement had all that it should have on.

Edited June 7, 2008 by marshallka

[Sunshine Girl]

Hello,

Strange request but would really appreciate your help.

6 months ago I was isuued with a CCJ court request for a debt I owed from 10 years ago. I had been paying this monthly but having missed 2 months, the DCA issued the CCJ request to the court.

At this point I had not come across this site and so I borrowed £3000 on my friends credit card and paid them in full to avoid a CCJ.

I now realise I should have asked them for a CCA!!!

Could I write to them requesting this and then take them back to court to get my money back??

Long shot but I now have £3k on a credit card and this is being paid of at a minimum per month

Thanks

[yaffsimone1]

Hello,

Strange request but would really appreciate your help.

6 months ago I was isuued with a CCJ court request for a debt I owed from 10 years ago. I had been paying this monthly but having missed 2 months, the DCA issued the CCJ request to the court.

At this point I had not come across this site and so I borrowed £3000 on my friends credit card and paid them in full to avoid a CCJ.

I now realise I should have asked them for a CCA!!!

Could I write to them requesting this and then take them back to court to get my money back??

Long shot but I now have £3k on a credit card and this is being paid of at a minimum per month

Thanks

 

You can write to them asking for a copy of the credit agreement, but you wont be able to disoute the debt and claim all of your money back as you have effectively admitted the debt by paying it off and in reality you owed them the money anyway. What you could claim back is any PPI, interest, charges etc should the agreement turn out not to be enforcable.

[Sunshine Girl]

Ah, thanks for that.

As far as I know I didn't have any charges or PPI on that loan so probably best to let sleeping dogs lie!

Thankyou again.

[iconoclash]

Hi - look in the templates library and get a SAR off to them for the full file. Regardless of whether the Agreement is unenforceable, you have a right to claim back the penalty charges on the statements, any PPI (insurances) that were mis-sold on the loan, plus interest. At the time you paid off the loan under threat of court action you were no doubt unaware of your rights and options, however, do not think backtracking on that will be easy now. It also strikes me that a ten year old debt is unenforceable under the statute of limitations, however, you had a payment plan in force by the sound of things. When was that agreed? - hopefully not after six years - what kind of loan, was this linked to anything else etc etc. You need the files:)

[yaffsimone1]

Ah, thanks for that.

As far as I know I didn't have any charges or PPI on that loan so probably best to let sleeping dogs lie!

Thankyou again.

 

It still might be worth sending an SAR. If it was passed to a DCA there are possibly unlawfull charges applied by the creditor for late / non payment etc

[iconoclash]

Hi - I would think it highly likely that there are charges, albeit not written in a manner to be obvious to you - so many people have discovered PPI also that they never knew about it......

[Sunshine Girl]

Charges such as what?? Sorry for my ignorance!!

[ginger whinger]

Hi guys n gals

 

I have requested CCA's from credit card companies and all I have received from most of them is an unreadable photocopy (the magnification is too small) mostly of the bit of my original application which has my signature and states that it is a consumer credit agreement under the 1974 act, some also supplies wads of terms and conditions . Is that small bit where my signature goes a CCA ?

 

Ginger Whinger

[bathgatebuyer]

I contacted the FOS to complain about Sainsburys failing to send a copy of the original terms and conditions of my credit card. Sainburys say that have complied, I don't think they have so there's a dispute there.

 

The FOS have responded and say that they are 'not there to police banks or ask them to improve their procedures'. I hadn't asked them to police anything but requested them to act as mediators in a dispute.

 

Any suggestions where to go next?

[car2403]

Do you have a thread, BGB?

 

Sounds like you need to escalate your complaint within the FOS itself, or take Court action to take the fight to them personally.

 

Another example of the toothless Tiger in action, sadly...

[Valhalla]

Hi Caggers,

 

I'm trying to understand what a lender or DCA may and may not do whilst an agreement is in disupte. Can they continue to write threatening letters? Can they register a default ? Can they add interest to the alleged account ?

 

Going back one step from there, what's the definition of an account being "in dispute " and at what point does an agreement enter into dispute?

 

One specific point too please.

Does the act of making a request for a true copy of the agreement ( section 77/78 of the CCA 1974 ) mean that the agreement enters into dispute from the date of the request ?

 

If so, am I right in thinking that the lender and/or DCA can't take any action about the alleged debt until and unless the true copy of the agreement is produced ?

 

I am asking because I wrote to Moorcroft on 27th June making a section 77/78 request and have received a letter form them dated 3rd July threatening home visits and more if I don't reply by 10th telling them how I intend to repay the amount they are looking to recover.

 

Thanks

Valhalla

[bazaar]

Hi Valhalla

Home visits? they are the typical empty threats, basically, No Credit Agreement, Not enforceable.

Put the kettle on for the home visit, although you'll probably be sitting there on your own.

You could always accidently let the dog out on them, or a nice baseball bat may suffice. ( This will probably only work in the USA, but you'd have to drag the body into your house and say you were frightened for your family's safety. Also, make sure they are very dead.).

Enjoy your cuppa.

[hsbcfiddled]

Hi Caggers,

 

I'm trying to understand what a lender or DCA may and may not do whilst an agreement is in disupte. Can they continue to write threatening letters?

Can they register a default? -No! but they probably will.

Can they add interest to the alleged account? Again No! but they probably will.

 

Going back one step from there, what's the definition of an account being "in dispute " and at what point does an agreement enter into dispute?

 

 

One specific point too please.

Does the act of making a request for a true copy of the agreement ( section 77/78 of the CCA 1974 ) mean that the agreement enters into dispute from the date of the request ? - IMHO if you stated during your request that you dispute the agreement ....then yes.

However it is in dispute if not supplied after 12 working days plus 2.

 

If so, am I right in thinking that the lender and/or DCA can't take any action about the alleged debt until and unless the true copy of the agreement is produced? True...Once a true copy of a correctly executed agreement has been produced then your request has been satisfied.

 

I am asking because I wrote to Moorcroft on 27th June making a section 77/78 request and have received a letter form them dated 3rd July threatening home visits and more if I don't reply by 10th telling them how I intend to repay the amount they are looking to recover.

Write back and tell them that they have failed to comply with your legal request- and that when they visit bring along a true copy of the agreement that you have requested.

 

Thanks

Valhalla

 

 

I hope this helps.

[N.P]

Hi Valhalla

Home visits? they are the typical empty threats, basically, No Credit Agreement, Not enforceable.

Put the kettle on for the home visit, although you'll probably be sitting there on your own.

You could always accidently let the dog out on them, or a nice baseball bat may suffice. ( This will probably only work in the USA, but you'd have to drag the body into your house and say you were frightened for your family's safety. Also, make sure they are very dead.).

Enjoy your cuppa.

 

 

LOL, nice one bazaar, my kind of humour ;-)

 

Although it`s a wonder your post hasn`t been flagged up for being in bad taste. My blummin` avatar was

 

The body could also be fed to some Pigs which will eat the bones, eliminating the evidence of a stiff ;-)

 

 

N.P

[marikasj]

Whilst the debt does continue to exist if the creditor fails to produce a properly executed 'signed' agreement that is a complete defence against enforcement. If they continue to pursue a debtor for a debt they know to be unenforcable (this includes debts out of time) they can be reported for criminal harrasment & risk losing their CCL

 

As for enforcement. Yes it is upto TS to mount a criminal prosecution but you can commence a civil action for none compliance.

Please can you help a newbie poster? I CCA'd Buchanan Clerk and Wells and they sadly found my original credit agreement but over a month and a half later. I now realise that this £346 pound debt (Evans - GE Capital Bank) includes a £90 court fee from when a different dca obtained a CCJ against me a couple of years ago. I quite probably stupidly also ignored the Court Order ( I was coming to terms with a diagnosis of Multiple Sclerosis) and made no payments toward this debt but I need to know if they can use this existing order against me or if they would have to try again? A carer of mine had phoned the previous DCA and explained the circumstances I was in at the time and they were really nice and said not to worry, I just needed to return the paperwork to them, which i did and they then went ahead with the court case without me, I just got the result in the post!

I don't recall having a new deed of assignation to this lot now but I am worried they will either use the pre-existing CCJ against me or push for bankruptcy? Please can you help?

[Guest malissa7999]

Hi,

i read quite a lot on this thread and others alike, talking about debts being unenforcable if the creditor fails to produce a true copy of an executed agreement, and about offering a full and final settlemt, and about later if the creditors come up trumps, with the agreement allowing them to enforce the debt and so on,..... but what happens in my instance when i had a credit card with hsbc owing around £2000, they have terminated the account/agreement without providing me with any notice/warning, they say they have withdrawn my credit card facility because i owe £57 on a current bank account with them,...but my credit card account as always been paid upto date,without any missed payments,..as they have chosen willfully to terminate my account,..does this free me of any liabilty i have towards them for this debt?....i am very sure that they have breached the cca1974 from what i have previously read,....but once they have terminated my account,can they decide to change there minds and reinstate my account/agreement,....i just want to know basicaly what now happens to the debt?...baring in mind that i have never missed a payment or defaulted with this credit card account, and that they have never sent me any warning that they intend to termintae my agreement...some advice please???:-|:-|

[car2403]

Hi,

i read quite a lot on this thread and others alike, talking about debts being unenforcable if the creditor fails to produce a true copy of an executed agreement, and about offering a full and final settlemt, and about later if the creditors come up trumps, with the agreement allowing them to enforce the debt and so on,..... but what happens in my instance when i had a credit card with hsbc owing around £2000, they have terminated the account/agreement without providing me with any notice/warning, they say they have withdrawn my credit card facility because i owe £57 on a current bank account with them,...but my credit card account as always been paid upto date,without any missed payments,..as they have chosen willfully to terminate my account,..does this free me of any liabilty i have towards them for this debt?....i am very sure that they have breached the cca1974 from what i have previously read,....but once they have terminated my account,can they decide to change there minds and reinstate my account/agreement,....i just want to know basicaly what now happens to the debt?...baring in mind that i have never missed a payment or defaulted with this credit card account, and that they have never sent me any warning that they intend to termintae my agreement...some advice please???:-|:-|

 

That's a difficult one, really, as there is a contractural relationship on both accounts (overdraft/credit card) that probably allows them to consider your circumstances overall when reviewing your situation with the bank.

 

In essence, they are saying they are terminating your credit card agreement because you are in debt and haven't paid your overdraft, right? It would depend on what the agreement terms say, but this is a similar situation to that we had with Egg terminating agreements because of checks performed against customers credit files and them deciding you are too high a "risk", so they close your account.

 

Unfortunately, the debt will still exist. Have you sent them a CCA request for the overdraft and credit card? It might be worth it, as the debt may be unenforceable anyway.

 

On the issue of notices, they should have sent you notice of their intention to terminate your agreement - without that, the termination may be unlawful and ineffective in law. If that happens, though, what's to stop them sending you one now? Or worse, claiming they've sent you one and you haven't received it? The best way to challenge them now is to get the CCA requests off, IMHO.

 

Oh - and you really, really need to change banks before they terminate your overdraft agreement, close your account, and pass the debt to a collector, which will probably be their next step.

[Guest malissa7999]

That's a difficult one, really, as there is a contractural relationship on both accounts (overdraft/credit card) that probably allows them to consider your circumstances overall when reviewing your situation with the bank.

 

In essence, they are saying they are terminating your credit card agreement because you are in debt and haven't paid your overdraft, right? It would depend on what the agreement terms say, but this is a similar situation to that we had with Egg terminating agreements because of checks performed against customers credit files and them deciding you are too high a "risk", so they close your account.

 

Unfortunately, the debt will still exist. Have you sent them a CCA request for the overdraft and credit card? It might be worth it, as the debt may be unenforceable anyway.

 

On the issue of notices, they should have sent you notice of their intention to terminate your agreement - without that, the termination may be unlawful and ineffective in law. If that happens, though, what's to stop them sending you one now? Or worse, claiming they've sent you one and you haven't received it? The best way to challenge them now is to get the CCA requests off, IMHO.

 

Oh - and you really, really need to change banks before they terminate your overdraft agreement, close your account, and pass the debt to a collector, which will probably be their next step.

 

 

hi,

hsbc is an old account, i dont use it anyway, i had no overdraft on the account, and out of the £57..£12 is a charge!

they themselves have not served any default for the bank account, nor have they closed my bank account,..which is the account that i have been 'bad' with!

my credit card with hsbc has always been paid on time (not in full though), but never missed a payment, and certainly not defaulted on it!

they have basicaly said that because you have misbehaved with your bank account, we will still keep that open, but close your credit card account even though you havent defaulted or missed any payment with that,..from what i have read they have breached the cca1974 by what they have done,.... sure i am going to send them a letter asking for a copy of my cca anyway,..but i am also writing seperatly asking which part of the cca 1974 do they have the authority to terminate my account?.... again from what i have read on this site they have none at all... this is what i read somewhere...

 

''I understand that the law regulating termination of credit card agreements is CCA 1974. Under that law, and any associated regulations, Hsbc has no legal entitlement to terminate a credit card agreement without first giving the alleged defaulter a default notice, and complying with the necessary subsequent procedures, such as under S88 and S89 of CCA 1974.''

i put this in my letter to them, and i will post it tomorrow, cant wait to see their reply:rolleyes:,

ive also not paid this months payment on the account,..not sure if i am doing the right thing here or not..as i dont really want to start getting defaults/ccj's..ect,..but i have included in my letter that i revoke permission to process my data...so guess it will be interesting to see how things go:confused: