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

[kizzi.i]

Hi everyone, I've had a lok trough these threads but I'm still struggling to understand a few things and I've tried to 'Google' them but I'm even more confused! To elaborate, I had a RBS child account when I was 15 which is supposed to turn into a route21 account when I turned 21. Now I had a saftey deposit box entered in this account when I was 15 which my mum wanted me to store, it just had documentation in it. Now I used the account every now and then and went abroad when I turned 19. I began being charged for an overdraft at th age of 17. To the best of my knowledge, an overdraft facility is available to over 18's but maybe I'm wrong. Anyhow I took the complaint to the headoffice at RBS who told me that I can never have an account with them. Through all that time, RBS never contacted me in writing to advise me of this. And the statements they have provided me do not show where the balance has incurred. The only thing showing is the overdraft charge for the safety box. The debt has been purchased by CapQuest who are not very helpful. They claim to have spoken to RBS who have advised them I have never spoken to them and are unwilling to provide me a copy of the agreement due to the CCA 1974 as it is a debt for a personal current account. This has severely affected my credit file to the point where I cannot apply for another current or even basic account with any bank, and as I have no debit card, I have now sent off for my credit file! They have managed to mess up my credit rating and I'm only 21! Please help someone! I am unsure how to now go forward as CapQuest own the debt and have stated they cannot provide me the agreement. The statement they have sent isn't correct. And I'm being called a liar from RBS. I don't understand what to do! And I cannot apply for jobs due to the credit check!

[Wanda2008]

Hi everyone, I've had a lok trough these threads but I'm still struggling to understand a few things and I've tried to 'Google' them but I'm even more confused! To elaborate, I had a RBS child account when I was 15 which is supposed to turn into a route21 account when I turned 21. Now I had a saftey deposit box entered in this account when I was 15 which my mum wanted me to store, it just had documentation in it. Now I used the account every now and then and went abroad when I turned 19. I began being charged for an overdraft at th age of 17. To the best of my knowledge, an overdraft facility is available to over 18's but maybe I'm wrong. Anyhow I took the complaint to the headoffice at RBS who told me that I can never have an account with them. Through all that time, RBS never contacted me in writing to advise me of this. And the statements they have provided me do not show where the balance has incurred. The only thing showing is the overdraft charge for the safety box. The debt has been purchased by CapQuest who are not very helpful. They claim to have spoken to RBS who have advised them I have never spoken to them and are unwilling to provide me a copy of the agreement due to the CCA 1974 as it is a debt for a personal current account. This has severely affected my credit file to the point where I cannot apply for another current or even basic account with any bank, and as I have no debit card, I have now sent off for my credit file! They have managed to mess up my credit rating and I'm only 21! Please help someone! I am unsure how to now go forward as CapQuest own the debt and have stated they cannot provide me the agreement. The statement they have sent isn't correct. And I'm being called a liar from RBS. I don't understand what to do! And I cannot apply for jobs due to the credit check!

 

 

This sounds very stressful! If I were you I would take any paperwork I have to your local citizens advice bureau and ask them to help you deal with it. they have excellent 'debt' workers and should be able to get this sorted out

[Valhalla]

Heloo,

 

May I go back to the letter Lexis200 posted earlier in this thread and in particular to the last paragraph but one

 

 

 

........

 

If you still reject this, please provide clarification on the status of the Original Credit Agreement and confirm either that you hold the original signed agreement on file, or a copy of it on microfiche, or that you no longer hold the file

 

Please be aware I do not accept phone calls or text messages regarding financial matters, so please ensure all correspondence is in writing.

 

 

I look forward to receiving this information within the time frames as indicated above.

 

Yours faithfully

 

 

This letter is great and very clear, however the last but one paragraph asks the lender to confirm that they have either the original signed agreement or a copy on microfiche.

 

I thought that the lender was obliged to keep the original document and produce it in court if necessary. I was under the impression that a copy was not sufficient.

 

Can anyone clarify this point please?

 

Many thanks,

 

Valhalla

[car2403]

This sounds very stressful! If I were you I would take any paperwork I have to your local citizens advice bureau and ask them to help you deal with it. they have excellent 'debt' workers and should be able to get this sorted out

 

In my experience, the CAB will tell you to acknowledge the debt and get you in to a informal payment plan - most of which you can do yourself. The benefit is they will confirm your income and expense report, which most creditors want.

 

IMHO, there is far more experienced and helpful advice available on this forum - unless of course you don't legally dispute the debt, or it's enforceability, as in those cases CAB (and most DMP's) probably won't help.

[andynsue]

Hi everyone,

Had a response from Empire catalogue today, unfortunately they are unable to locate a copy of an executed agreement, shame!

Plz advise what next, any templates out there? I would be grateful for any pointers.

 

Regards

[car2403]

Hi everyone,

Had a response from Empire catalogue today, unfortunately they are unable to locate a copy of an executed agreement, shame!

Plz advise what next, any templates out there? I would be grateful for any pointers.

 

Regards

 

What do you want to happen next?

[andynsue]

Nothing! I take it is unenforceable. Should I not tell them that or leave it?

Thanks.

Edited February 19, 2009 by andynsue
spelling!

[lexis200]

The benefit is they will confirm your income and expense report, which most creditors want.

 

Completely true that they may want proof of your I/E sheet, but unfortunately for them they have no right to insist you give them any. If you have a bank asking for statements/utility bills/inside leg measurements etc, you can tell them the only info they need is the form you have provided as this is a true statement of your financial affairs.

 

I had issues with this until I confirmed to the creditor that I'd spoken to National Debtline and been informed I needn't send anything else in. They wrote back very quickly accepting my offer and did not ask again.

 

Hi Valhalla

 

I thought that the lender was obliged to keep the original document and produce it in court if necessary. I was under the impression that a copy was not sufficient.

 

What the paragraph is getting at is trying to identify whether they hold a copy in any form, if so in what form, or if it has been destroyed/lost.

 

Yes, they are meant to keep the original for 6 years after the account has closed in order to comply with data retention laws (and from reading another very interesting thread, I believe also money laundering laws), but you need to know whether they have actually done this or not. It just gives you another level to your understanding of the status of your account - assuming of course that they actually comply with the SAR:rolleyes:

 

I think there has been some discussion lately about the use of copies in a court. They shouldn't be used, as only an original can be shown to be genuine, but I don't think I'm wrong in saying that one or two people have had a judge accept a certified copy. Again, not sure how this can work seeing as it clearly doesn't comply with data retention, but there you go.

[Goldlady]

Something that has been crossing my mind of late is, if they don't have the original agreement and they then decide to send you a 'true copy' in response to your request, why the heck don't they have the brains to at least put the original credit limit, interest rate and penalty charges at the time on it? I have one that shows the credit limit as it was 15 years later, penalty charges of £12 - surely if you are going to recreate something you do your homework first:confused:

[underdog13]

But you need to have a brain and a modicum of common sense to do that, Goldlady:D We're talking about creds, remember;)

[sanrhythm]

You need criminal brain; as if proven any contractual document was fabricated they can strait go to jail it is criminal offence

[abroadgirl]

hi andynsue

i have had dealings with lovell, moorcroft, cahoot/carbot i hope this letter is of use to you let me know or pop in reliable collections abroadgirl

 

********************************************************

Dear Sir/Madam,

 

With reference to my previous letters, I wish to draw you attention to your company's lack of compliance with my legal request.

 

On **DATE** I made a formal request for a true signed agreement for the alleged account under consumer credit Act 1974 s77/8.

 

The document that you are obliged to send me is a true copy of the executed agreement that contained all of the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself as defined in section 61(1) of CCA 74. If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document.

 

As you may not be aware , failure to comply with this request within 12 working days renders the alleged debt UNENFORCEABLE in law.

 

Furthermore you should be aware that a creditor is not permitted to take ANY action against an account whilst it remains in dispute.

 

The lack of a compliant credit agreement is a very clear dispute and as such the following applies.

 

* may not demand any payment on the account, nor am I obliged to offer any payment to you.

* may not add further interest or any charges to the account.

* may not pass the account to a third party.

* may not register any information in respect of the account with any credit reference agency.

* may not issue a default notice related to the account.

 

Therefore this account has become unenforceable at law.

 

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

 

After taking advice, I am of the opinion that your continued pursuit is in violation of the Administration of Justice Act 1970 section 40 as well as breaching a number of the OFT Collection Guidelines.

 

I reserve the right to report your actions to any such regulatory authorities as I see fit.

 

You have 14 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint.

 

I hope that you will enter into a sincere dialogue with me about this matter and I am writing this letter to you on the assumption that you would prefer to do this than merely respond with standard letters and leaflets.

 

I would appreciate your due diligence in this matter.

 

I await your rapid response.

 

 

Regards.

[kizzi.i]

Hmmm thanks Wanda2008 and Car!! I agree with you Car, the CAB will not do much. I've asked them to provide me further proof. I also asked for an original deed of assignment letter, they completely overlooked it and sent me a really cheeky letter stating as am requesting 'suject to information' they require £10. Now I am aware that the fee may be up to £10 but the knowledge I have s that most people just send a £1 fee for thi information. Also they keep writing to me stating MS and although I have asked them to change that also, they have ignored it. It was a very rude letter. I also forwarded an e-mail I sent to them requesting the statmen back in March 2008, for which I had no reply and now that I mentioned in my e-mail please explain why I received no reply and it seems that they have surpassed the dspute and complaints time period, I can go to the FOS. Again they have ignored this!!! I don't understand what my next step should be!!! Help please!!!

[N.P]

Write an even ruder letter back

[car2403]

Write an even ruder letter back

 

There's only 2 options, really - sue them, or don't sue them. Time to decide.

[kizzi.i]

I may just try that! They're really annoying me now!!!! Arghhh

[adrian1972]

Daft question, who do i request the credit agreement from if my balance has been transfered to another card company? The current company or the original lender?

 

thanks

[SteveH2508]

Daft question, who do i request the credit agreement from if my balance has been transfered to another card company? The current company or the original lender?

 

thanks

 

The current company - they are the ones who would be trying to enforce the agreement against you so they need the correct paperwork (and they often do not ;-) ).

[adrian1972]

The current company - they are the ones who would be trying to enforce the agreement against you so they need the correct paperwork (and they often do not ;-) ).

 

 

Cheers, here we go with round 4 then

[photoman]

Hi all,

 

Just helping a friend out with a cca on a loan.

 

Could someone please clarify what the situation would be if a creditor actually does eventually come up with a valid copy of an agreement (albeit outside the 12 +30 days).

 

I understand that whilst they haven't produced a copy they cannot enforce the debt or expect payments, as is clearly defined under section 77.

 

Quote:

 

Sec 77;

.....

 

(4) If the creditor under an agreement fails to comply with subsection (1)—

(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.

 

 

So, if this happens and one then stops making payments under 4 (a), what happens to the debt if they do eventually actually come up with an agreement, and it then also proves to be enforceable ?

 

What happens regards interest upon the account?

 

Is there any proviso in this or any any other act as to how interest should be treated ?

 

ie: Whilst they are unable to enforce due to not complying with sec 77, you've stopped making payments, but then they do later produce a valid CCA

 

.... are they then entitled to calculate and add interest for the period that no valid CCA was provided?

 

Or... do they have to freeze interest upon the account during such period of non compliance, and the obligation of the debtor to pay interest only resumes from the time a valid agreement is produced?

 

.....perhaps instead with the period of the loan simply being extended to cover the period that payments were not made?

 

Can someone clarify, and perhaps post some links, statutes etc ?

 

 

PM

Edited March 18, 2009 by photoman
typo's

[N.P]

Hi photoman,

 

I`m no expert, but I usually once you have missed payments and then start chasing you up, they usally demand payment in full.

 

That`s just based on my own experiences, not that I`m actually paying anything as from then on, you can pick faults with your CCA and still dispute that the CCA does not comply with legislation.

 

But like I say, they then begin to chase the full balance and want payment in full.

 

Hope this helps.

 

 

 

N.P

[Dougal16T]

Good morning all,

 

Just poking my nose in as usual.....I note that in post no 842 Adrian1972 says 'debt transferred'.....this has no legal status.

 

There has to be an assigment of the debt, and you should have been provided with a copy of the assignment from the original creditor, and also from the new creditor to 'prove' they have the account from now on.

 

It is vital for you to be supplied with these documents, otherwise how do you know that what you are being told by the new creditor is true?

 

I have had first hand experience of this, with a new 'creditor' asking me to pay them, when they have NOT been assigned the loan!!

 

Their rights of collection are therefore non-existent, and I consider them to be contrary to the Fraud Act 2006 - well worth a read, specially Section 3.

 

Sorry to just 'but in' like this, but in this day and age you must be VERY careful!!

 

Sincere good wishes to all as always

 

Dougal

[car2403]

Good morning all,

 

Just poking my nose in as usual.....I note that in post no 842 Adrian1972 says 'debt transferred'.....this has no legal status.

 

There has to be an assigment of the debt, and you should have been provided with a copy of the assignment from the original creditor, and also from the new creditor to 'prove' they have the account from now on.

 

It is vital for you to be supplied with these documents, otherwise how do you know that what you are being told by the new creditor is true?

 

I have had first hand experience of this, with a new 'creditor' asking me to pay them, when they have NOT been assigned the loan!!

 

Their rights of collection are therefore non-existent, and I consider them to be contrary to the Fraud Act 2006 - well worth a read, specially Section 3.

 

Sorry to just 'but in' like this, but in this day and age you must be VERY careful!!

 

Sincere good wishes to all as always

 

Dougal

 

Ah ha... This is the discussion that is going on here;

 

http://www.consumeractiongroup.co.uk/forum/general/33174-consumer-credit-act-agreements-723.html#post2042406

 

To recap the main points (that thread is a bit of a monster) the Legal Assignment of debts is covered by the Law of Property Act 1925. The relevant section is s.136. This states notice should be sent to the debtor for the Assignment to be effectual in Law, but not by whom it should be sent. There's some discussion (follow the links above) going on as to whether or not that should be the original creditor, mainly for the reasons Dougal has mentioned above.

 

I completely agree that debt assignment notices should be sent to the debtor by the OC, not the DCA, for the reasons Dougal mentions, I hasten to add.

 

The only thing I'd disagree with the post, is where the assignment is equitable, such as in cases where the DCA is collecting on behalf of the OC, but doesn't assume it's legal obligations in the process. Where the DCA is simply collecting, there is no legal requirement on it to provide any notice of equitable assignment, to my knowledge. This leads to the same issues as above, so the question, while not relevant to the circumstances of equitable assignment, still remains unresolved for the same reasons.

 

The moral of the story seems to be;

"Don't pay anyone other than the OC anything, until you have confirmation from the OC that you should be paying that amount to that party"

 

I can't see how you can go wrong with that, personally? (I'm prepared to be corrected though, so feel free...)

 

[photoman]

A good answer and good advice Car.

 

However, matters do seem to get a bit confusing when there is a lack of transparency as to who exactly the dca are ?

 

By this, I mean that many Creditors have their own DCA's, which are simply sub-divisions of the parent company, and these also have different names and even different addresses !!

 

I recall that someone started a thread somewhere in which a list was started of Creditors and their in-house collections departments.

 

Do you happen to recall such a thread, and could you post it here ?

 

If not, perhaps one would be a good idea ?

 

PM

[photoman]

Hi all,

 

Just helping a friend out with a cca on a loan.

 

Could someone please clarify what the situation would be if a creditor actually does eventually come up with a valid copy of an agreement (albeit outside the 12 +30 days).

 

I understand that whilst they haven't produced a copy they cannot enforce the debt or expect payments, as is clearly defined under section 77.

 

 

So, if this happens and one then stops making payments under 4 (a), what happens to the debt if they do eventually actually come up with an agreement, and it then also proves to be enforceable ?

 

What happens regards interest upon the account?

 

Is there any proviso in this or any any other act as to how interest should be treated ?

 

ie: Whilst they are unable to enforce due to not complying with sec 77, you've stopped making payments, but then they do later produce a valid CCA

 

.... are they then entitled to calculate and add interest for the period that no valid CCA was provided?

 

Or... do they have to freeze interest upon the account during such period of non compliance, and the obligation of the debtor to pay interest only resumes from the time a valid agreement is produced?

 

.....perhaps instead with the period of the loan simply being extended to cover the period that payments were not made?

 

Can someone clarify, and perhaps post some links, statutes etc ?

 

 

PM

 

Just bumping this question.

 

Thanks for your answer NP, but it doesn't answer my question regards interest.

 

Any further thoughts anyone ?