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

[gizmo111]

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.

 

The debt remains unenforceable for as long as the creditor fails to produce the signed credit agreement – this means if they produce the agreement some months down the line, they are quite within their rights to enforce it. They do not need to take any further action to enforce the debt. A debtor cannot take any action against the creditor for failing to produce the signed credit agreement within the prescribed time, because that is up to the agencies that the offence has been reported to. Any sanctions that may be imposed are at the discretion of these agencies, and it is not a matter that the debtor can take to the civil court.

 

If a CCJ has already been entered against a debt, then there is no point in requesting the agreement under the CCA, if your intention is to argue that the debt is unenforceable, since the debt has already been enforced. You can however request a true copy of the original signed credit agreement if you wish to check original terms and conditions etc. If they do not supply it then your only recourse is to report them to the aforementioned agencies. It would be very difficult to prove that they didn’t have the agreement at the time judgment was entered.

 

It is imperative that you continue to pay any debt under the terms of a CCJ.

 

Issuing a court claim for non-compliance of a CCA request in all probability achieves nothing to benefit to the debtor, as a court claim is likely to spur a detailed search which could well end up with them producing a perfectly acceptable original signed agreement in court – which would result in the debtor losing the case, and being made liable for the creditor’s costs.

 

If after requesting a true copy of a signed credit agreement the creditor fails to produce it, it does not mean that the debt does not exist, because at the end of the day the debtor spent the money and therefore they owe it and need to pay it back The debtor may now however be in a good position to make a full and final offer to clear the debt.

Edited February 10, 2010 by maroondevo52
Removed 30day 'offence'

[CAGisforME]

Thanks Gizmo.

 

Sensible advice. I think your post clears up a lot of myths etc about the disclosure of Credit Agreements.

 

In my own case I have a lot of questions, but your post certainly makes sense.

 

[singletracker]

Thanks Gizmo for clarification on this. Very informative.

 

So there is a possibility of agreeing a final settlement if the CCA cannot be supplied - although only of use if you happen to have the odd wad of cash lying around. No chance of that here!

Glad I've avoided CCJ's so far, default notices are bad enough.

[jubaxt]

i dont quite grasp why you need to do the cca request-is it necessary?

[joesoap]

Good point regarding the CCJ Gizmo, it's a good job I haven't posted the letter off to Amex. However, surely they can't turn around and more or less say "we can't be bothered to send a CCA"? They are not above the law. I will still go ahead and ask for an original copy of the CCA only. What happens when the CCJ falls off the credit references? Next year in my case. Will it make any difference?

[Pliny the Penuriosus]

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 – this means if they produce the agreement some months down the line, they are quite within their rights to enforce it. Not without the consent of the court They do not need to take any further action to enforce the debt. A debtor cannot take any action against the creditor for failing to produce the signed credit agreement within the prescribed time, because that is up to the agencies that the offence has been reported to. Any sanctions that may be imposed are at the discretion of these agencies, and it is not a matter that the debtor can take to the civil court.

 

If a CCJ has already been entered against a debt, then there is no point in requesting the agreement under the CCA, I disagree if your intention is to argue that the debt is unenforceable, since the debt has already been enforced. in error & is grounds for appeal as no court may make an order without a properly executed signed agreement being produced. However the court may consider any signed form with the prescribed terms as being part of that agreement You can however request a true copy of the original signed credit agreement if you wish to check original terms and conditions etc. If they do not supply it then your only recourse is to report them to the aforementioned agencies. It would be very difficult to prove that they didn’t have the agreement at the time judgment was entered. In their failure to supply one it would be for them to provide evidence that they did

 

It is imperative that you continue to pay any debt under the terms of a CCJ. Agreed

 

Issuing a court claim for non-compliance of a CCA request in all probability achieves nothing to benefit to the debtor, as a court claim is likely to spur a detailed search which could well end up with them producing a perfectly acceptable original signed agreement in court – which would result in the debtor losing the case, and being made liable for the creditor’s costs.

 

If you have not admitted or defended the debt or even if you have then the best way forward is to apply to have the CCJ set aside & start from scratch

 

If after requesting a true copy of a signed credit agreement the creditor fails to produce it, it does not mean that the debt does not exist, because at the end of the day the debtor spent the money and therefore they owe it and need to pay it back The debtor may now however be in a good position to make a full and final offer to clear the debt.

 

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.

[sortingitout]

The debt remains unenforceable for as long as the creditor fails to produce the signed credit agreement – this means if they produce the agreement some months down the line, they are quite within their rights to enforce it. Not without the consent of the court They do not need to take any further action to enforce the debt. A debtor cannot take any action against the creditor for failing to produce the signed credit agreement within the prescribed time, because that is up to the agencies that the offence has been reported to. Any sanctions that may be imposed are at the discretion of these agencies, and it is not a matter that the debtor can take to the civil court.

 

From all that i have read on here, this is what i thought were true and if they went to court they would have to admit non compliance.

[paulwlton]

If a CCJ has already been entered against a debt, then there is no point in requesting the agreement under the CCA, if your intention is to argue that the debt is unenforceable. You can however request a true copy of the original signed credit agreement if you wish to check original terms and conditions etc. If they do not supply it then your only recourse is to report them to the aforementioned agencies. It would be very difficult to prove that they didn’t have the agreement at the time judgment was entered.

 

 

I disagree if a debt has been subjected to a CCJ and the agreement is being paid off at an agreed monthly amount then a request under the CCA is still legally binding, if the creditor fails to comply then he cannot enforce the agreement.

 

I don't think the debt has been enforced, the creditor obtains the CCJ to get the contract between the parties established in Law. Enforcement would come at a later date for non compliance by the Judgement debtor.

 

Paul

[joesoap]

Gordon Bennet, thank god I'm away on the hoy for two days tommorrow, my head is spinning!

 

Ian

[gizmo111]

From all that i have read on here, this is what i thought were true and if they went to court they would have to admit non compliance.

 

But if they had the agreeemnt - the court would just agree it could be enforced and probably award costs against you for bringing an unreasonable claim.

[InKogneeToh]

 

If after requesting a true copy of a signed credit agreement the creditor fails to produce it, it does not mean that the debt does not exist, because at the end of the day the debtor spent the money and therefore they owe it and need to pay it back The debtor may now however be in a good position to make a full and final offer to clear the debt.

 

This is not correct. Failure to comply with a CCA s77/78 request (where that request is relevant and valid) means that the creditor is not entitled to enforce the agreement.

 

Yes, the debt still exists, but the debtor has no obligation whatsoever to make further payments where a creditor cannot/does not comply and is thus barred from enforcing the agreement.

[gizmo111]

This is not correct. Failure to comply with a CCA s77/78 request (where that request is relevant and valid) means that the creditor is not entitled to enforce the agreement.

 

Yes, the debt still exists, but the debtor has no obligation whatsoever to make further payments where a creditor cannot/does not comply and is thus barred from enforcing the agreement.

 

 

Thsi is exactly what the above statement says - and makes reference tothe fact that the debtor spent the money and therfore morally owes it. there is no reference here to enforcing the agreemnt.

[InKogneeToh]

Thsi is exactly what the above statement says - and makes reference tothe fact that the debtor spent the money and therfore morally owes it. there is no reference here to enforcing the agreemnt.

 

Sorry, but your statement actually says:

 

because at the end of the day the debtor spent the money and therefore they owe it and need to pay it backThe debtor may now however be in a good position to make a full and final offer to clear the debt.

 

This is misleading because it implies that there is still an obligation to pay back the money in such circumstances, whereas the fact is that there is NO obligation.

 

Also your final sentence could influence a reader of your post who is in this particular situation with a creditor into making an offer to clear a debt that they have no legal obligation to do.

[make them aktiv runners]

2 little questions

 

1) CCA says 12 + 30 days. DCA's often write back with a different timescale which the general consensus is to ignore and let them default. Although CCA is legally binding is there anything in what they are responding with that suggests they have found a loophole to add interest as by ignoring their letters it can be construed you are accepting their new terms?

 

2) Again after the 12+30 expiry the general consensus is not to remind them. Just in case they do later supply the CCA is it not better to have already obtained an up to date account balance (ensures they do not later add interest etc for their default that they are not entitled to do)?

[JonCris]

As for paying the banks when not required. purely on moral grounds my view is that when the banks start showing some decency towards their victims is the time I will care about them getting paid. In the meantime stuff'em

 

PS Pam your correct..............Sorry Gizmo

[ian1969uk]

I agree Jon.

 

Every letter I get threatening me with something, whilst they remain in default of S78 requests, just makes me more determined to give them not another penny of my money.

 

The only one I am considering paying is Cahoot, who have been more than pleasant throughout my dispute with them, and have not demanded a penny. They need to realise that their attitude towards us, and their treatment of us, directly affects their chance of getting payments.

[sortingitout]

But if they had the agreeemnt - the court would just agree it could be enforced and probably award costs against you for bringing an unreasonable claim.

 

Why would it be unreasonable? The bank would have to take me to court to enforce the agreement, if they don’t produce a valid CCA with the allocated timescale, they would also have to admit they have committed a criminal offence.

[gizmo111]

Why would it be unreasonable? The bank would have to take me to court to enforce the agreement, if they don’t produce a valid CCA with the allocated timescale, they would also have to admit they have committed a criminal offence.

 

No they wouldn't if you read the act the debt is only unenforceable whilstthe default continues, when they produce the agreeement they are no longer in default and can enforce, issuing a claim to say they didn't comply but now they have would acheive just a very fed up judge, and the risks of costs. What exactly would you be claiming?

 

With regards to the offence report them to the rrelevant authorities, it is up to them what sanctions they impose.

[ian1969uk]

Why would it be unreasonable? The bank would have to take me to court to enforce the agreement, if they don’t produce a valid CCA with the allocated timescale, they would also have to admit they have committed a criminal offence.

 

Agreed, how could it be construed as unreasonable?

 

The customer makes a lawful request for a true copy of the agreement. The response, or lack of response, from the creditor gives the customer valid reason to suspect the agreement is unenforceable.

 

The debtortakes it to court and the creditor produces the original signed agreement. Far from admonishing the customer for bringing the claim, the judge is far more likely to ask the creditor why they didn't just provide it to the customer when asked for.

[redsue]

Far from admonishing the customer for bringing the claim, the judge is far more likely to ask the creditor why they didn't just provide it to the customer when asked for.

 

agreed - why waste court time when they have had the agreement all along?

[gizmo111]

agreed - why waste court time when they have had the agreement all along?

 

This is in response to taking the creditor to court for defaulting and then producing the agreement after the offence period, so they admit the offence, that would be unreasonable.

[paulwlton]

The CCA is intended to protect the consumer the fact a CCJ has been obtained by the Judgement creditor does not effect the rights of the Judgement debtor under the Act, in my opinion the CCA 77 78 Request is still legally binding and if the Judgement debtor fails in its obligation to provide documents proscribed under the Act then the agreement cannot be enforced.

 

The above was confirmed in writing this week. My account has been frozen untill the agreement has been located.

[sortingitout]

No they wouldn't if you read the act the debt is only unenforceable whilstthe default continues, when they produce the agreeement they are no longer in default and can enforce, issuing a claim to say they didn't comply but now they have would acheive just a very fed up judge, and the risks of costs. What exactly would you be claiming?

 

With regards to the offence report them to the rrelevant authorities, it is up to them what sanctions they impose.

 

This is what i said, they would have to admit non compliance, no bank to my knowledge has yet. I have not said I would be taking the bank to court, I have no interest in that (i agree that there is no point at all in the debtor taken the creditor to court), but if they (bank) fails to comply within the allocated timescale, they need to take me to court to enforce it, if they think they have a proper executed agreement that is.

[gizmo111]

The CCA is intended to protect the consumer the fact a CCJ has been obtained by the Judgement creditor does not effect the rights of the Judgement debtor under the Act, in my opinion the CCA 77 78 Request is still legally binding and if the Judgement debtor fails in its obligation to provide documents proscribed under the Act then the agreement cannot be enforced.

 

The above was confirmed in writing this week. My account has been frozen untill the agreement has been located.

 

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

[bobinramsey]

Hi, with refernce to the CCA agreement I am helping my daughter sort some problems but we have become bogged down and could do with some guidance. Her account is with Droyds and in response to our letter they sent a photocopy of an unsigned credit agreement. They have argued that under Regulation 3 - Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI No 1557 That they do not need to provide a signed copy of anything.

I have spent ages trying to find the relevant Statutory Instrument without success. I have also studied the CCA itself and am worried by the wording, it says in section 77 .....shall give the debter a copy of the excecuted agreement (if any) and any other document referred to in it....

What worries me is the IF ANY in brackets. Does this mean that there may be situations where an excecuted agreement may not exist but a debt still be legally enforceable???????

Bob and Aleesha