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

[gh2008]

Well, there's a surprise, I received a reply today.

Gist is......Section 78 CCA does not reqire DCA to provide a copy of executed agreement.....bla....bla.

The Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 at Reg3 make it clear that 'copy of executed agreement' is not required to be an exact replica of the original.....bla.....bla.

The last sentance is as follows......

'In light of the above we are not in possession of a signed copy of the agreement and still cosider the above balance to be outstanding'.

WoW......does anyone think they have just commited an offence by disclosing that they do not have the original?

T33

 

They can supply you with a reconstruction using available info *IF* they can then back that up.

What they cannot do is guess that what they have sent you would 'most likely' have been the agreement.

 

BUT what they cannot do is threaten legal action as this would be an 'unfair practice' as determined by the OFT

 

If they, or their representatives, have threatened Court action already then report them.

[Damselfish]

Thank you. What would be the grounds for reporting them? The fact that their representative has threatened court action? lloyds themselves have only said that the provision of the reconstituted CCA is sufficient to make the agreement enforceable. I would contest that as the court ruling on this issue also said that the details should contain things like the address as it would have been at the time an agreement was taken out, not my current address.

 

Sorry, I am still wondering what I should do with regard to this current DCA? As I see it my options are:

- Nothing

- Letter requesting CCA

- Letter detailing what has already happened and that the reconstituted CCA is not compliant

- Complaint to DCA that the account is already in dispute and therefore should never have been passed, etc

 

Any of these possibly with reporting them to the authorities.

 

Thanks

[gh2008]

Ok, they are perfectly within their rights to set DCAs on to you demanding money (only 1 at a time though) basically they can do this for 6yrs after you last made payment/ acknowledged the debt.

 

However knowing there is no signed agreement they must not threaten legal action as they know it is bound to fail. (Unless you admit to having signed an agreement in which case you're in a dodgy position)

 

You report Lloyds to the OFT - they are the ones who have 'set the DCA on to you'

 

As the the DCA - as long as do not threaten Court action then there is little you can do other than the usual get stuffed type letters (or just ignore them .......) both tactics generally produce the same results .....

 

jmho

[Damselfish]

Thank you, that is very helpful. Lloyds haven't threatened legal action, only the DCA. I will write to DCA, requesting CCA again, and informing them that I will call police if they send a doorstop person (they have threatened this too).

 

Thanks.

[Damselfish]

Hi, Before I send this - how does it look to you?

 

Thank you for your letter of 24th September 2010, the contents of which have been noted.

 

I have requested from Lloyds and from previous DCAs a true copy of the original Consumer Credit Agreement for the above alleged account. No such document has been provided. Lloyds have informed me that they cannot find such a document, and previous DCAs have returned the account to Lloyds. In light of the lack of an executed CCA it is against OFT rules to threaten legal action, which I note you do in your letter of the 24th September 2010. I will therefore be reporting you to the OFT.

On my last request, Lloyds sent me a reconstituted CCA, however, as they have also admitted that they cannot find an executed agreement, this does pose the question of where this CCA has been reconstituted from. In addition, the rules for reconstituted CCAs clearly state that they should contain the same information that would have been present on an original CCA, e.g. address at the time of setting up an alleged agreement. The ‘reconstituted’ CCA that Lloyds have provided does not do this. It merely contains my current address!

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 and subsequent Statutory Instruments. If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document. In addition a full statement of this account should have been sent to me detailing all debits and credits to the account.

 

Furthermore, you are aware that the Consumer Credit Act allows 12 working days for a request for a true copy of a credit agreement to be carried out before you/your client enters into a default situation.

 

This limit expired on 7th June 2010.

 

As you are no doubt aware section 78(6) states:

 

If the creditor fails to comply with Subsection (1)

 

(a) He is not entitled , while the default continues, to enforce the agreement.

 

Therefore this account has become unenforceable at law.

 

As you have failed to comply with a lawful request for a true, signed copy of the said agreement and other relevant documents mentioned in it and failed to provide any of the documentation requested. You will also be aware of the CPUTR 2008 and the OFT's guidelines on debt collection which state under the title Deceptive and/or unfair methods - Examples of unfair practices are as follows - 2.8

 

(i) - 'Failing to investigate and/or provide details as appropriate, when a debt is queried or disputed, possibly resulting in debtors being wrongly pursued'

 

(k) - 'Not ceasing collection activity whilst investigating a reasonable queried or disputed debt'

 

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

 

Furthermore I shall counterclaim that any such action constitutes unlawful harassment.

 

Please note you may also consider this letter as a statutory notice under section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect.

 

This means you must remove all information regarding this account from your own internal records and from my records with any credit reference agencies.

Should you refuse to comply, you must within 21 days provide me with a detailed breakdown of your reasoning behind continuing to process my data.

 

It is not sufficient to simply state that you have a ‘legal right’; You must outline your reasoning in this matter and state upon which legislation this reasoning depends.

 

Should you not respond within 14 days I expect that this means you agree to remove all such data.

 

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 credit agreement is a very clear dispute and as such the following applies.

 

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

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

* You may not pass the account to a third party.

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

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

 

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.

Please also be advised that I will only communicate with you in writing. I have noted your attempts to contact me by telephone and these have been duly logged by time and date.

 

Furthermore, should it be your intention to arrange a “doorstep call”, please be advised that under OFT rules, you can only visit me at my home if you make an appointment and I have no wish to make such an appointment with you.

 

There is only an implied license under English Common Law for people to be able to visit me on my property without express permission; the postman and people asking for directions etc (Armstrong v Sheppard & Short Ltd [1959] 2 QB 384. per Lord Evershed M.R.). Therefore take note that I revoke license under Common Law for you, or your representatives to visit me at my property and, if you do so, you will be liable to damages for a tort of trespass and action will be taken, including but not limited to, police attendance.

 

I would appreciate your due diligence in this matter.

 

I look forward to hearing from you in writing.

 

 

 

Thanks!

[Damselfish]

Please can somebody advise as to whether the above is the right way to go? Thanks in anticipation!

 

Damsel Fish

[putupon12]

You have replied to previous dca and lloyds,I personnally would not offer the information in your letter.and would ignore this lastest letter,and wait, you can always send an account in dispute letter if the new dca actually get heavy,DCAs send these type of letter as a scare tatic it is they who have tp prove to the court that the agreement tooks place,I have had a debt passed to 8 different DCAs.

[Damselfish]

Thank you very much. As I understand it the DCA cannot instigate legal proceedings, it has to be Lloyds, is that right? I guess the DCA will hand it back to Lloyds when they get no response from me. I don't want a doorstep call though, so should I send a shorter letter just saying 'account in dispute', send CCA and don't come to the door etc etc?

 

Thanks,

[putupon12]

it the one who owns the debt who initiates the legal procedings,but they still have to have the paperwork which you say they dont.they always threaten visits, but again this is usually scare tactics and is agaist oft regs whilst in dispute,you have to have patience and let them make the moves.

[means2anend]

It is a thorough letter and well put and one that I shall copy ,paste and keep for the 'appropriate' institution.

 

The letter is beyond the requirements to put to a DCA as putupon12 has mentioned.

 

A privity of contract exists between you and Lloyds....there is no evidence of an absolute assignment to THAT dca that is threatening legal proceedings.Therefore it has not had assigned to it those rights to take legal action against you.

 

It is merely collecting on behalf of Lloyds.

 

Sending that DCA is like cracking a peanut with sledgehammer...sorry for that but that is how it is.

 

The fact of the matter is that Lloyds will have difficulty proving that s189 and s61 were complied with and that the address that was current at the time of s189 being executed was correct honest and accurate as per HHJ Wakman in Carey.

 

As to the DCA making threats as to legal proceedings this is as putupon12 states against OFT guidelines 'cos they know that if there is no executed agreement then there can never be any enforcement so why make empyty threats likelyto cause distress.

 

Once again you are advised to do nothing and let them take the initiative.

 

My own experiences and also my help towards Freinds has always been the same...'they go away after you remain stubborn with them'...

 

I dont even bother to reply to them now...but that is what my experience has taught me...and experience brings confidence in predicting the outcomes.

 

m2ae

[means2anend]

Also if they have not been assigned a RIGHT to take legal action...then they are misrepresenting that fact and fall foul of CPUTR 2008...you could write THEM (DCA) a letter as simple and effective as this upon pain of reporting them to OFT on this specific matter.

 

DCA's hate their licenses being threatened or subject to revocation.Use this angle as the benefit of pursuing you will be outweighed by the cost of having that license revoked.

 

Simple economics at the end of the day.....

 

m2ae

[means2anend]

Here is a real factual illustration as to how OFT deals with DAc's that contravene OFT guidelines...I posted this upon another thread but for your specific purposes it is relevant........click on the link

 

http://www.oft.gov.uk/shared_oft/press_release_attachments/1stcreditrequirements.pdf

[means2anend]

The page is currently at this time undergoing maintenance but keep trying it and it will be back on.

 

m2ae

[means2anend]

Courtesy of Seriouslyfedup

 

Re: Chalkitup v Citi / 1st Credit

 

Not much to add to what M2AE and Enron have said Chalkitup. I have a letter in the post to them that goes like this (borrowed from Vint and adapted ever so slightly)

"Dear Sir or Madam,

 

Your ref xxxxxxxxxx

Re: my request under s78 of The Consumer Credit Act 1974

Thank you for your response (undated), to my above request and also your letter of (this refers to their second follow up letter).

I note that you have responded my above request, by supplying a reconstructed copy of the alleged agreement, which is perfectly acceptable, but only, of course, for information purposes.

Under section 78(1) of the Consumer Credit Act 1974, you have a duty to provide the following information, as part of the request.

a)

a copy of the executed agreement (if any) and of any other document referred to in it and

any further documents

subsequently varying the agreement

terms and conditions

as required by HHJ Waksman in his judgement in the case of Carey v HSBC

(see in particular paragraph 85). You will be aware, that where the agreement has been varied over time, a copy of the original agreement must be available and supplied. This has not been supplied in full, as all you have only provided current and what you claim to be original terms and conditions

, but no notice of variations in between, unless you wish to claim that there were none.

b)

The state of the account –

this has not been supplied

c)

The amount, if any, currently payable under the agreement by the debtor to the creditor, and –

this has not been supplied

d)

The amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor. –

this has not been supplied

I would advise, that I do not recognise the terms contained within the reconstructed agreement that you have supplied and would remind you of the OFT position on this matter, detailed below:

“The copy of the executed agreement need not be an exact copy but it must be a ‘

true copy’ and not some reconstruction of what the original might have been and it must contain the same terms as the original

. Where the terms have been varied as provided for within the agreement, the copy of the original agreement must be accompanied by a document setting out the current terms, as varied. Certain details may be omitted from the original agreement eg the

signature

but the debtor must be in no doubt as to the true nature of his obligations under the loan”

You will no doubt agree, having read the above provisos regarding s78 requests and the OFT statement, that you have yet to provide full and accurate information regarding this agreement.

As you will be aware, a reconstructed agreement must be a true and exact copy of the original, omitting only such information as the act permits. I again refer you to the excellent clarification by the OFT on this point, detailed below.

“

Should no original agreement be in existence it is very hard to say that the copy the creditor offers to the debtor is, in fact, a true copy as there would be no original with which to compare it

.

In our view the onus of proof would be on the creditor to show that the copy is a true one and where none existed he may have difficulty discharging this

.

Neither should creditors suggest that a consumer has signed a credit agreement where they are unable

to provide evidence to support this

— to do so is likely to be a misleading action under Regulation 5 of the

Consumer Protection From Unfair Trading

Regulations 2008 (the CPRs) and would also constitute an unfair or improper business practice.”

Therefore what I require is.

1.

A true copy of the executed agreement as required by the Consumer Credit Act 1974 and if varied, I require a copy of the original agreement, as the act and the law dictate, as well as copies of intermediate variations.

2.

If you maintain that the reconstruction that you have supplied, IS a true Copy of the original agreement, then I require you to state this fact in writing, signed by a duly authorised person.

3.

I also require you to confirm in writing that the “True Copy” of this agreement was taken directly from the original agreement bearing my signature. Again I require confirmation by this document being signed by a duly authorised person

4.

If you are unable to supply the requested documentation because no such agreement is in existence I require written clarification as such as the OFT require.

5.

I require that you comply with my request within 7 days of the date of this letter. I will not correspond any further with you until I either receive a copy of the requested documents, or clarification that such agreement doesn’t exist.

I am advised that should you persist in pursuing this debt while in breach or section 78 of the act and ignoring the above, you will be in breach of the provisions of the Consumer Credit Act 1974 and the Administration of Justice Act 1970 section 40 also.

No other correspondence will be accepted, and until provided I see no reason to contact your “DEBT TEAM”, as your letter of 7th June suggests I should do.

Should you attempt litigation it will be vigorously defended and the failure to supply adequate documentation under the CCA 1974 is a complete defence to any legal action and your actions will be vexatious and unlawful

I trust this outlines the situation"

Since they sent the recons, I have had another letter from them encouraging me to contact their DEBT TEAM (they used upper case, so why shouldnt I?) as you will see in the letter, to settle this matter - aye right ! - concluding that if they dont hear from me within fourteen days (they will - see above) - that I do not wish to address this matter (actually that's true. I would rather not, but they wont let me)

 

I fully expect them to come back with that they have fulfiled requirement 1. I suspect they will assert that 2 has been satisfied as well on much the same kind of argument as you got (computer records). Its numbers 3 and 4 that are going to pose them problems as if they dont have a signed document, as Enron points out they have had it. At that point they might well come back with their willingness to put the matter before a judge.

 

What would be very helpful to me Enron, and I hope others, is further information on the condition imposed by OFT on 1st credit

not to threaten legal action without the intention of carrying them out. I suppose they would reply that they did so intend but changed their mind if it came to it, but it would be useful to know something of the background to these conditions imposed by OFT. Something else to throw at them.

 

Damselfish I gonna give u a link that is currently only 10 pages long and you will get a feel for how to deal with DCA's and experiences of a particular fellow cagger whose thread it is and the input of other caggers

[means2anend]

Damselfish i reconmmend that you read this thread

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?150014-Chalkitup-v-Citi-1st-Credit

 

m2ae

[Damselfish]

Hi,

 

Thanks m2ae.

 

I have now had another letter from Lloyds. They obviously realised their error on the reconstituted agreement, when they found an old executed one. They have now sent me a new reconstituted agreement with the address on it that I had when an agreement was taken out. They ahve also sent me the agreement. It was taken out in 1996 and I believe may not be enforceable because it does not have all the correct components. However, interestingly Lloyds also sent a statement of account in which they inform me that the balance I owe is £4000 less than the last letter, and the letter from the DCA! They also say in the statement that I ahve no arrears, and give me a payment and due date. Does this mean that they have looked at the agreement and realised some of the costs attributed to the account were illegal? Does it mean its an error? Its a signed statement of account, so presumably a legal document and hard for them to go back on?

Has anyone else experienced this?

I still haven't replied to the DCA but am tempted to ring Lloyds to check my balance?! What do you think?

 

Thanks

[Damselfish]

Any advice gratefully received! I am unsure as to whether to contact DCA, LLoyds or anyone now.

 

Thanks

DF

[Damselfish]

Also, here is a link to the CCA that Lloyds sent me, the original, is it enforceable please? http://s1035.photobucket.com/home/Damselfish_2010

 

Thanks

 

DF

[putupon12]

does it not say on the top that it is an application form,and it is not a credit agreement,there are not amounts or apr etc.

[gh2008]

IMHO it is enforceable with an order from the Court (which I would think they would get)

 

As long as they can show that the reverse is contemporaneous with the front that is. There is a reference on the front to the conditions on the rear and it would seem the prescribed terms are on the rear.

 

As to whether it is 'easily legible' ..... but again all they need do it type it out for it to be enforceable

 

all jmho

[Damselfish]

Thank you. Does anyone have any experience about the changing amounts? Does the latest statement stand? Why would they have reduced the amount by £4000?

 

Thanks

[bazaar]

Use their latest figures to offer a FF, once youve removed all the charges of course

[trevor33]

IMHO it is enforceable with an order from the Court (which I would think they would get)

 

As long as they can show that the reverse is contemporaneous with the front that is. There is a reference on the front to the conditions on the rear and it would seem the prescribed terms are on the rear.

 

As to whether it is 'easily legible' ..... but again all they need do it type it out for it to be enforceable

 

all jmho

 

What you are saying gh, is that an APPLICATION FORM can be enforced by a court.

[gh2008]

What you are saying gh, is that an APPLICATION FORM can be enforced by a court.

 

It's not really me saying .... it's the Consumer Credit Act ...

 

I am saying that any document, with the prescribed terms on can be enforced by the court. Simple as that - it could be written on the back of an envelope, as long as it has the prescribed terms it CAN be enforced.

 

If the document is not in the correct form (i.e. not laid out correctly or missing terms other than the prescribed terms that should be on it) then the Court has to decide how that has prejudiced the debtor and rule accordingly.

 

After 2006 things got even *more* 'wooly'

[means2anend]

Maybe I'm leading a charmed life..but A simple request to Lowells c/o Cap one has led to my file today being closed..reason being''due to the length of the agreement...'' we cannot locate the original ....''

 

chins up brethren

 

m2ae