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

[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?

[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:

[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.

[hsbcfiddled]

The CCA (at least what i read of it) is unenforcable without a signed agreement. Period.

 

No interest, no bailiffs, No nothing.

 

Without your signature on a piece of paper, they cant touch you for anything. How could they ??? Surely that would defeat the whole object of getting a signature in the first place ???

 

Morals dont come into it, this is about a LAW. The fabric of our very society.

 

When you let people break the law and do nothing about it, you are a criminal yourself.

 

 

I agree.

 

No need to pay - dont pay. End of....

 

'Morals?' for people with 'no morals'- I dont think so.

 

I would like to see all these people who work for DCA's etc on the dole.

Better still in jail.

[hsbcfiddled]

In basics then;

 

Although you may request an a true copy of an agreement under CCA1974 and that they should provide with you it.

 

They can, send an agreement that does not have all the relevant details on it. Which lets face is a joke!

 

However they must be in possession of the original agreement to make the debt enforceable.

 

Question; So, why send a copy, that is not a copy of a fully executed agreement?

 

My answer on the banks behalf would be:

I havent got the original, but if I cobble together an agreement that fulfils the minimum required, I may be able to get them to believe that I do actually have the original, and that will get them to continue to make payments and get me out of the chit!

 

Quetion; What have the banks got to loose by sending a copy thats not an exact copy?

Answers;

1. Proper agreement = Enforceable debt, payments continue.

2. Cobbled agreement (some will accept it as enforcable agreement) = payments will continue.

1 & 2 both good for the bank = win win

 

However.

3. No agreement = No more monies coming in.

4. Cobbled agreement (but not accepted as executed agreement) = no more payments.

3 & 4 both bad for bank = lose lose

 

I summarise it as such;

 

If I send you an exact copy of a properly executed agreement between ourselves for a loan- You will not challenge it- you will continue to pay. End of problem.

 

So why dont I just do that in the first place?

Is it because I dont have it and I am up chit creek without a paddle? methinks?

 

hsbcfiddled

[hsbcfiddled]

I agree Car.

 

From my own experience my local branch had the executed agreement all along- and they still didnt get it to me in time- I am lucky that the agreement has been improperly completed.

 

However if my local branch is holding an agreement from February 2004 does this mean other branches are holding such agreements from the same period?

If so, there is no need to send cobbled agreements. unless the original is lost or improper executed.

[hsbcfiddled]

Hi Honey,

One of the mods will be along and move your thread into the relevant Cap One thread.

Here is some good advice though- Do not 'until you are confident and have a good knowledge of the relevant laws' ever speak to any bank or DCA on the phone. Some will say even when you are confident dont phone them....both are good advice.

 

You wrote....Forgive me but I don't seem to be able to start a thread of my own, could someone please direct me (unless this is it lol), I sent cca request in October to Cap 1 (Did you send it recorded delivery?). Had three letters so far requesting to write again with signature (I find this a little strange....Did you not sign it at all?) to authorise request. First tel call on Thursday requesting I bring payment up to date, I told them my request had not been complied with and the collections dept told me to ring another tel no and they would hold further calls for 12 days. I have read a lot of posts which are most helpful but am a little concerned because my balance is in excess of £9000 (Is this a loan?- if yes when did it commence?) and I am not feeling confident.

 

Dont worry there are plenty here to help you?

[hsbcfiddled]

Ok Honey,

 

I am not sure about credit card acounts. I need to gen up on them myself.

However someone will assist you.

 

Have you signed any of the letters?- I dont use my own signature because I dont trust them anymore.

 

hsbcfiddled.

[hsbcfiddled]

Originally Posted by gizmo111

A debt becomes unenforceable (in default- not 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 (NOW ITS UNENFORCEABLE) 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 (I DONT AGREE- then why do they have 30 days after going into default before the debt becomes unenforceable?), they are quite within their rights to enforce it(I dont agree). They do not need to take any further action to enforce the debt(I dont agree- unenforceable....its in the word). 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.

 

 

Question; How can an unenforceable become enforceable?

They have 12 working days plus 2 and then they are in default.

Then after a further 30 days the debt is unenforceable.

So why have 30 days and then unenforceable if they are able to produce it at any old time that suits them? Doesnt make sense does it?

Unenforceable means Unenforceable......not enforceable when we find it.

Just my thoughts...

hsbcfiddled

[hsbcfiddled]

6) 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.

 

 

The creditor is only barred from enforcement whilst in default. Once this default is rectified, however long that takes, they can once again enforce.

 

So when does unenforceable commence then?

[hsbcfiddled]

A debt only becomes unenforceable of there is no credit agreement or the agreement that exists lacks prescribed terms.

 

There is no point under Sections 77 or 78 when a debt becomes completely unenforceable for ever.

 

Or fails to produce the original agreement - then it would be forever.

[hsbcfiddled]

Nickolarge- Just a word of warning.

I sent cca request 8th June - got a reply about 16th July it was a copy of an agreement with alterations on it.

I contested the copy immediately- On or about 16th August I received a second version without alterations. However it still wasnt properly executed.

But my word of warning is-The current Bank Manager- who wasnt at the branch at the time of the loan-Told me "I dont know why they asked head office for the agreement, because it was here all the time"!

 

hsbcfiddled

[hsbcfiddled]

Hi Matt 5791

 

Thank you for the info. I first applied for CCA in October but Cap 1 won't release my agreement (which they assure me they have) until they have a signature that matches their records(just a thought.....if your signature doesnt match their records...maybe its not your signature that they hold!!!!!! .....or Once they have your signature...THEY WILL HAVE YOUR SIGNATURE..to cut and paste!!). Bearing in mind this was only taken out in Jan 2005, it is quite likely they have something enforceable. I am assuming this is their defence to not complying with my request as they state how seriously they take security. But can't understand why they won't send me my agreement/application if they are sending other correspondence to my address.

 

I too have consulted a solicitor as the debt is the same as yours and am waiting for his reply once he has gone through all the letters so far. However he can't do much without the agreement.

 

Whilst Cap 1 have been very courteous so far considering, the telephone calls have started and I am getting aprehensive. I stopped paying in December.

 

Any help and advice truly welcomed.

Honey 1932

 

 

hsbcfiddled

[hsbcfiddled]

Hi. This is my first post here. I have learnt so much from this group. Without it I feel certain I woudl have lost my house and my sanity. So thank you to everyone who takes the time to post.

 

I REALLY need some help please.

 

I have a £25,000 loan with Barclays. I sent them the CCA request and they returned what looked like an application form along with the £1 postal order as they said there was no charge for the requst. There was no signatures whatsover on the application form. I will scan and post it to the site later this evening. I didn't beleive this was the CCA so after the correct amount of time I sent them the follow up latter stating that they had failed to meet my requests and were now in default.

 

The day after receipt of this letter I received a short letter from Barclays saying they would contact me within the next 14 days. However the day after this I received County Court papers. I'm not sure if this is just a pure coincidence and the two things have crossed in the post.

 

Anyway I now do not have a clue what to do. I don't know what boxes to tick or what to say. I am guessing that I need to defend and counterclaim but I have no idea how. I am on Incapacity Benefit so cannot afford a solicitor to help me here.

 

Any advise or help would be greatly appreciated. I really don't know what to do. Also I have heard that I can request for the court to be changed. How do I do this as the court on the form is Northampton and that's a long way from me.

 

Thank you.

 

Hi Mobileminx,

I am helping my neighbour with his Barclayloan.

Barclays sent him a copy of his application loan also.

Then after the 12 working days plus two and 30 days had expired they sent him a cut and paste version.

If they take you to court they must be in possesion of the original..their copy of the application wont be good enough.

Write back telling them "bring along the original when we go to court"

hsbcfiddled

[hsbcfiddled]

Sorry MOBILEMINX i cannot get to a size that i can clearly read them.

 

hsbcfiddled

[hsbcfiddled]

Thats better.

 

Ok.

(1) This is an application form and is not acceptable on its own to enforce an agreement.

 

(2) The first line at the top of

Credit Agreement 04

 

states it is PRE-Contract Information

 

 

(3)

Credit Agreement 05

 

Is dated 12th January 2006 and states that the loan started THAT DAY.

 

(4)

Credit Agreement 02

 

Contains a box for you to sign and date- It is unsigned and undated

Below is the Banks space for the Manager to sign- It is unsigned However it is dated 12th January 2006 - Which is 7 days before they state the loan agreement was to start.

 

 

Please remember that I am not legally qualified and it is only my advice.

GOOD LUCK

hsbcfiddled

[hsbcfiddled]

Rubyrose and mobileminx. I sent this letter on my OH behalf to a solicitor acting for a DCA.

 

 

from; mrs hsbcfiddled.

4th December 2007

to; Solicitor

I DO NOT ACKNOWLEDGE ANY DEBT TO DCA

Dear Sirs,

I received today your letter dated 30th November 2007 and postmarked the 3rd December 2007 that was in reply to my letter to you of 12th November 2007

In your letter of 30th November 2007 you have stated that you refuse my offer of £1 per calendar month and suggest £5 PCM even though I have explained my circumstances to you in my previous letter of the 12th November 2007.

However, you appear to have overlooked the fact that my offer of £1 PCM was ONLY IF you were able to produce the original agreement in a court of law.

I have repeatedly requested ‘a true copy of the agreement’.

You are adamant that a reconstructed agreement is acceptable.

I accept that the CCA1974 does allow you to reconstruct an agreement, when requested.

But you must retain the original agreement- why not look up the relevant section in the Consumer Credit Act 1974? You should know! You’re the professionals!

If your client has decided to destroy the original agreement and is prepared to purely rely upon a microfilmed reconstruction then please proceed to court where you can try your theory out.

My advice to your client would be that you as his solicitors are wasting his money on a case that you cannot win without the original agreement.

When I appear in court I shall show the court evidence that I have repeatedly requested sighting of a ‘true copy of the original agreement’ and had it been provided to me my appearance in court would not be necessary.

I believe that you are wasting the courts, your clients, and my time.

I believe the refusal to provide a true copy of the original agreement is because you have NOT retained the original agreement and that by providing reconstructed copies from microfilm you hope to assuage me into further payments.

I repeat my offer of £1 per calendar month, BUT ONLY IF, the original agreement is produced for my or the courts inspection.

Produce it to me or produce it in court. The choice is yours.

You state that you do not intend to enter into protracted correspondence. Well that’s fine by me. Please accept this as my final correspondence in the matter.

Yours Sincerely,

mrs hsbcfiddled

 

I have had no reply to date.

The point of the letter being that should it go to court the judge would then see that you have done your very best to avoid the court action.

What do you or anyone else think?

hsbcfiddled

[hsbcfiddled]

Try it.......its a great feeling giving them their own medicine..

 

Go for it.

[hsbcfiddled]

hi chaps , just a quickie , is a form that clearly say,s SKYCARD APPLICATION FORM . And does not show the credit limit anywhere , a true signed copy of the CONSUMER CREDIT AGREEMENT ? thankyou .

 

 

 

 

In short .....No.

[hsbcfiddled]

This is VERY good news.

 

BBC News Player - Credit card debts wiped

 

 

have a look.

[hsbcfiddled]

Just as a follow up to the (edit) site that challenged the 6 Credit Card companies wiping out their debts and getting a court ruling in the process.

 

See the link from Midlands Today

 

http://news.bbc.co.uk/player/nol/newsid_7190000/newsid_7195100/7195126.stm?bw=bb&mp=wm&news=1&bbcws=1

 

Here are further details for people who dont have the belief that they can carry the process against the Lenders through to court.

 

 

 

 

 

The Consumer Credit Act

 

This is a very basic explanation as to why upto 75% of all credit card agreements are legally unrecoverable.

 

 

Below is an example of the print format a correct agreement should look like.

 

 

x y z

 

 

 

 

 

Below is how all the unenforceable agreements look, the difference is the xyz are in capitals not lower case and this would be a breach of the law.

X Y Z

 

 

 

The Court Case

 

We made a court claim against a lender stating that 50% of all of their agreements were improperly executed because they do not state xyz, but instead they state ABC. The lender claimed that as 50% of their agreements stated different letters the regulations do not apply, the court agreed with them.

 

A B C

 

Based on the Court of Appeal ruling which confirms what the regulations state, then any agreement that does not state xyz in lower case is improperly executed which is about 75% of all credit card agreements and it could be one or all of yours.

 

 

 

 

 

 

 

 

 

 

Does your Credit Card Agreement have the X-Factor?

We took our lender to court because we said the agreement was unenforceable because of a, b and c. The lender won the case because they proved that the agreement was enforceable because it did not contain X, the X-Factor we will call it. Based on our knowledge of other agreements we know that the majority of them, up to 75% do contain the X-Factor and are therefore unenforceable. It is not us that have made the other agreements unenforceable, it is the lender, a Court Recorder QC, a Rt. Hon Sir and a Lord Justice of the Court of Appeal who agreed with them. We are only using the lenders legal points that were used against us, if we are wrong then the lender and 3 judges are also wrong, so take it up with them. All we are doing is making use of what we have been told is the law.

Test Case already Won

Our case was the first of its kind and is now the leading case and sets a precedent as to how any lower court should treat enforcement of a credit card agreement that is improperly executed.

[hsbcfiddled]

I agree Jonchris it is expensive if you feel comfortable enough to take these people on yourself.

However some people arent as confident as you or I.

The important point is that this judgement will eventual come out and it will be of benefit to us all once it gets on here.

The Credit Companies must be frantic..Shame:D

[hsbcfiddled]

We could have an appalling scenario where the Credit Card Companies are seen as the victims - Now that would be terrible would it not.

 

Yes and No

People rarely feel sorry for SHARKS!.........LOL

hsbcfiddled

[hsbcfiddled]

hello, I,ve not recieved anything from my request to a DCA for the CCA It has past the time limit , I have informed them of this with the correct letter . What happens now? They are trying to contact me by phone now . I,m not answering ! cheers chaps

 

 

When did you CCA them?

[hsbcfiddled]

It,s been the required time , 12 days + month,+ 5 days !

 

 

Thats good then.

My advice just sit tight- you have done all you need to do.

No need to make any payments.

 

Although....You could summon up the strength to phone them and ask them-

Where is the copy of the agreement that I requested?

Do not phone me again until you have found the agreement!

Do not request money from me!

If you intend to take me to court MAKE SURE YOU BRING THE AGREEMENT WITH YOU.

Debt is unenforceable until you have produced the agreement!

 

You could add 'put that in your pipe etc' ....maybe not...we dont want to be accused of falling to their HIGH STANDARDS....not!

Go on Phone them You will feel better- just dont answer their questions only with yours- repeat them if neccessary- They hate that-then drop the phone and dont take their call backs