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

[car2403]

how many of you have had a letter with a paragraph in it that states :

 

 

 

"aLTHOUGH we have been able to provide you with a copy of the credit card application and the latest terms and conditions we have been unable to obtain a copy of the original terms of the account.In view of this the remaining balance on the card account has been written off and your obligations to us under the agreement are discharged." :-D

"

 

They should start posting on CAG for past T&C's! I'm sure they've thought of this - and are probably doing it!

[Oh Boy!]

When does a a loan become over 25.000

 

If you got a loan for 17.000, but with interest it came to 27.000, is it then classed as over 25.000 does anybody know???

[rory32]

If you got a loan for 17.000, but with interest it came to 27.000, is it then classed as over 25.000 does anybody know???

It's the original amount of the loan that is relevant to the Act. The interest on the loan makes no difference to the 25K limit.

[Oh Boy!]

Thank you GOD32, i mean rory.

[creditcrunch]

This is a very interesting thread..................BUT I have one question that I would like the LATEST thoughts on.I have sent the appropriate letter to my Credit Card provider requesting a copy of the agreement.Its getting close to the 12 + 30 days now.Is it BEST PRACTICE to...............(1).........Write a second letter to them........informing them you have had no reply........if so is there a TEMPLATE LETTER ?.....................(2)...............Do nothing............................but then do you explain it all to them when DEBT COLLECTION department ring you in the evening ?.......................which they may not understand.

[FANTASY CHARGES]

This is a very interesting thread..................BUT I have one question that I would like the LATEST thoughts on.I have sent the appropriate letter to my Credit Card provider requesting a copy of the agreement.Its getting close to the 12 + 30 days now.Is it BEST PRACTICE to...............(1).........Write a second letter to them........informing them you have had no reply........if so is there a TEMPLATE LETTER ?.....................(2)...............Do nothing............................but then do you explain it all to them when DEBT COLLECTION department ring you in the evening ?.......................which they may not understand.

 

PLEASE REPEAT AFTER ME

 

THE GOLDEN RULE

"I DO NOT DISCUSS FINANCIAL MATTERS ON THE PHONE"

 

everybody with experience on this site will tell you this !!!

[car2403]

Hi creditcrunch.

 

The simple answer is that you do nothing. They are in default of your request and can't enforce the debt in Court unless they provide what you've asked for.

 

What were you hoping to achieve with the original request?

[creditcrunch]

THANK YOU both for your swift replies.I will go and write your GOLDEN RULE out 100 times !

[Boon72]

ive got a quick question. my loan with Barclays has been passed to RMA / NCO and now ive got a letter from Scotcall, saying to contact them within 7 days or they will arrange a doorstep collection.

this is all despite me requesting a CCA from Barclays 27th July and being told that i dont have anything signed as it was all done over the phone.

ive even forwarded a copy of the letters and reply from Barclays to RMA / NCO.

[car2403]

You need to request a CCA from anyone claiming to be recovering any debt - sending a CCA request to the original creditor, then relying on that to Defend against a DCA is probably unwise. Anyone claiming to collecting must be able to supply a properly formatted, correctly executed agreement under s.189 CCA 1974.

[Boon72]

right so your saying i should mail out a CCA to both RMA/NCO and now Scotcall? rather than sending them a copy of the Barclays one.

 

Barcalys have said thier reply letter there isn't a signed copy of an agreement as one was never issued.

 

i was thinking of sending a SAR but im not sure who to send it to?

[car2403]

I would be sending a s.77/s.78 CCA request to each DCA claiming to have an ability to collect on the account - I think the Act is clear that the responsibility lies with the company seeking enforcement to provide the agreement. Where the OC can't, the new DCA can't neither - but you'll strengthen your case against them when they call and you can say "you are in default of my request", rather than relying on "Barclays are in default of my request".

 

Worth the £1 fee, IMHO.

 

This is only my opinion and how I would manage your situation if I were you - might not be the "right" thing to do, but it's my advice...

[shane5408]

Hi Boon,

 

Also send the following to Scotcall:

 

Dear xxxx

Account Ref xxxx

Please be advised that I will only communicate with you in writing. I have noted your repeated attempts to contact me by telephone over the past few weeks/months 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 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 and Short Ltd [1959] 2 Q.B. 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, then you will be liable to damages for a tort of trespass and action will be taken, including but not limited to, police attendance.

Yours faithfully/sincerely

[rory32]

right so your saying i should mail out a CCA to both RMA/NCO and now Scotcall? rather than sending them a copy of the Barclays one.

 

You don't need to continually waste money (albeit only a pound) on CCA requests, you just need to send them a copy of the original request and a covering letter stating that the account has been in dispute since x date. You may also wish to attach a copy of the letter from Barclays confirming that there is no agreement and tell them to berger off.

 

i was thinking of sending a S.A.R - (Subject Access Request) but im not sure who to send it to?

Are there a lot of charges on the account?

[Boon72]

so i can send copies of the 2 letters i sent Barclays (1st was the CCA template & 2nd was the reply template) , along with Barclays reply to them all with a covering letter.

 

the letter from Scotcall has got the figure up from the original Barclays send to RMA letter amount of £10020 to £10210.03. not all of that is from them tho, RMA added some

[rory32]

so i can send copies of the 2 letters i sent Barclays (1st was the CCA template & 2nd was the reply template) , along with Barclays reply to them all with a covering letter.

 

Yes.

[creditcrunch]

After reading the thread the most confusing thing for most people seems to be WHAT THE LAW SAYS the creditor has to supply you in his reply to your request.Among a number of answers was one that stated that the CONSUMER CREDIT ( CANCELLATION NOTICES AND COPIES OF DOCUMENTS ) REGS 1983 stated EXACTLY what should be sent back to you..................Is this still the case ???....................and if so where is it possible to VIEW THE REGS ??????...................there is a file in the STATUTES LIBRARY on this site.........but its in File Format.........and I cannot get it to download..........it only seems to have had 3 views anyway..................I tried to put it in my search engine..........but got 600,000 on the list !!.......................Is there anywhere on the web/elsewhere you can VIEW the Regs..............or is it a trip down to the Library.......................and of course I am sure its been UPDATED since 1983.

[shane5408]

hi,

 

if you pm me ur email address i'll send u a copy

 

regards,

shane

[shane5408]

With regard to the creditors duties to supply a 'true copy' thought i would reporoduce the relevant parts for the benefit of all viewers:

 

3 General requirements as to form and content of copy documents

 

(1) Subject to the following provisions of these Regulations, every copy of an executed agreement, security instrument

or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act

shall be a true copy thereof.

 

(2) There may be omitted from any such copy--

 

(a) any information included in an executed agreement, security instrument or other document relating to the debtor,

hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the

Act or any Regulations thereunder as to the form and content of the document of which it is a copy;

 

(b) any signature box, signature or date of signature (other than, in the case of a copy of a cancellable executed

agreement delivered to the debtor under section 63(1) of the Act, the date of the signature by the debtor of an

agreement to which section 68(b) of the Act applies);

 

© in the case of any copy of an unexecuted agreement delivered or sent to the debtor or hirer under section 62 of

the Act, the name and address of the debtor or hirer;

 

 

 

 

The implication is that a 'true copy' should be exactly that, a copy of the original agreement however due to the omissions allowed creditors are trying to get away with sending non complaint agreements that fall foul of s127(3) and then hoping debtors will just accept it as it is. If we look at 127(3) of the act it states that as a bare minimum in order for a judge/court to consider an agreement to be legally enforcable the creditor must have an agreement that both contains all the prescribed terms and is signed by the debtor, otherwise the debt is irredeemably unenforcable.

 

Creditors are trying to misled debtors when they send alleged agreements that omit the debtors signature and/or any prescriibed terms, we as debtors should always question and challenge them on these grounds.

 

kind regards,

shane

 

 

If my post has been useful please click the scales

[fernack]

Am a little lost now ... does the CCA have to have signature or not?

Thanks

[shane5408]

Am a little lost now ... does the CCA have to have signature or not?

Thanks

 

Hi,

 

When you send a CCA request to a creditor any copy of the agreement they provide you must be a 'true copy' as stated in my previous post. In providing this 'true copy' the creditor is allowed to omit the debtors signature.

 

However for the debt to be enforcable the creditor has to have an agreement that is signed by the debtor otherwise the debt is unenforcable by vitue of s127(3) of the Act.

 

So basically the creditors are hiding behind the omission in the regulations to mislead debtors into thinking the debt is legally enforcable. Whenever they reply to a CCA request with an agreement that doesn't have the debtors signature they are very careful in their wording, they will say we have satisfied our obligations under the Act in providing you with a 'true copy' of your request. This is true, however what they will not tell you is that unless they can provide the agreement with your signature on it (ie the original) legally speaking the debt is unenforcable.

 

 

 

Hope I haven't confused you to much, please ask if you need clarification on anything else.

 

kind regards,

shane

 

 

 

If my post has been useful please click the scales

[creditcrunch]

SHANE.............Thanks again for bring up your explanation again.So to bring things DOWN TO BASICS..............for me and fellow readers................what they return to you................................MUST BE..................(1)...........Prescribed in the..........................CONSUMER CREDIT ( CANCELLATION NOTICES AND COPIES OF DOCUMENTS ) REGS 1983..............................(2)..........AND must be SIGNED by yourself ( catchall is the sect 127 (3) provisions.

[shane5408]

SHANE.............Thanks again for bring up your explanation again.So to bring things DOWN TO BASICS..............for me and fellow readers................what they return to you................................MUST BE..................(1)...........Prescribed in the..........................CONSUMER CREDIT ( CANCELLATION NOTICES AND COPIES OF DOCUMENTS ) REGS 1983..............................(2)..........AND must be SIGNED by yourself ( catchall is the sect 127 (3) provisions.

 

Hiya,

 

Yes as a bare minium for an agreement to be enforcable it must be legible signed by the debtor and contain the prescribed terms as laid down in the Regs.

 

However, for a creditor to satisy the requirements of a CCA request they can send a 'true copy' which omits the debtors signature.

 

given that creditors hide behind the omissions what we should do is write back to them after they have sent what they deem to be the 'true copy' and explain unless they send a copy of the original agreement which you (the debtor) has signed then the debt is unenforcable. Always challenge them on these grounds.

 

kind regards,

shane

[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

[car2403]

I actually think that creditors do this because of the difficulties in document management - given this was enacted in 1974 and the regs are dated back to 1983, I reckon they use this today as it is expensive to store and retrieve original documentation from document stores. In essense, they can comply with a CCA request by providing information relating to the content of the agreement by providing a copy and statements, etc - but if they want to enforce they will have to have the original paper agreement.

 

This is just an opinion, as I still think it's wrong - but I don't think the volume of legal agreements that are completed today could have been foreseen in 1974. (The DPA has 40 days for a SAR and was enacted 10 years later, which lends itself to this argument) The 12+2 days prescribed period was acceptable in 1974, but is probably unreasonable in today's terms.

 

The issue they have in sending these copies is that - because they've provided the agreement unsigned - they can't refute that evidence as being inaccurate if you start a claim against them.

 

I agree with Shane in that whatever you get back from a CCA request must be challenged in these terms in return. I'd imagine that no Judge would be happy with a claim coming to Court (either creditor, or debtor intiated) where the Creditor produces a properly executed agreement, but failed to provide that as part of a CCA/D.P.A/CPR request!