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

[gordonsanderson]

Hi Gizmo, i dont no wether you've seen my post but i've a question (im looking through the consumer act 1974) i've been to the ombudsman with HFC bank and had my case reviewed twice and failed BUT!!! i have lots of documentation that states that HFC bank has lied to the ombudsman in loads of areas concerning my account, i looked about for a while and took your advice on the uneforceable understood it and have acted upon it, 2nd issue is that HFC defaulted me in 2005 and i didn't find out till jan 2007 so thats how it all started, i'm trying to find if i can request any documentation concerning this default as it was news to me, any links/advice to put me in the right direction would be greatley recieved..

 

Cheers bud:)

[shane5408]

Hi Gizmo, i dont no wether you've seen my post but i've a question (im looking through the consumer act 1974) i've been to the ombudsman with HFC bank and had my case reviewed twice and failed BUT!!! i have lots of documentation that states that HFC bank has lied to the ombudsman in loads of areas concerning my account, i looked about for a while and took your advice on the uneforceable understood it and have acted upon it, 2nd issue is that HFC defaulted me in 2005 and i didn't find out till jan 2007 so thats how it all started, i'm trying to find if i can request any documentation concerning this default as it was news to me, any links/advice to put me in the right direction would be greatley recieved..

 

Cheers bud:)

 

The FOS are so incompetent at times, it beggars belief! Are there any charges on the account that was defaulted? If so you can use precedent set in Woodchester Lease Management Services Ltd v Swain and Co to have the default rendered void and subsequently removed, ask your solicitor to take a look.

 

regards,

shane

[Honey1932]

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. Had three letters so far requesting to write again with signature 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 and I am not feeling confident.

[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?

[Honey1932]

Hi there

 

This is a Cap 1 Platinum credit card account, yes I sent all three letters recorded delivery (hence three replies asking for my signature) but only typed my name at the bottom of the page. I used the formats set out on this site, which I am still finding hard to navigate.

[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.

[Honey1932]

Hi

 

No I haven't signed any of the letters because I wasn't sure how to and like most people I don't trust them not to transpose my signature onto a new document. I just typed my full name under "yours sincerely" and on the third letter I printed my name in pen. The third reply actually says they can't action my request because my signature does not match their records - its catch 22

 

Honey1932

[Goldlady]

I have used a slightly altered version of my signature on a few occasions - good enough to look right if checked, but with an extra letter in my first name. So I would know straight away if anyone did a Blue Peter special with it.

[car2403]

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. Had three letters so far requesting to write again with signature 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 and I am not feeling confident.

 

This should help;

 

http://www.consumeractiongroup.co.uk/forum/welcome-consumer-forums/107001-how-do-i-dummies.html (I know you aren't a dummy, but this really will help you!)

 

[last1standing]

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. 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.

 

i have done all this and it has been 8 months with the Trading standards since then. I went through all the proper procedures?

[JonCris]

Hi

 

No I haven't signed any of the letters because I wasn't sure how to and like most people I don't trust them not to transpose my signature onto a new document. I just typed my full name under "yours sincerely" and on the third letter I printed my name in pen. The third reply actually says they can't action my request because my signature does not match their records - its catch 22

 

Honey1932

 

As usual they are playing silly buggers. I doubt they have no problems writing to your current address when demanding payment.

 

You could point this out to them or as has already been suggested sign with a slightly different Sig making sure you retain a copy.

 

If they then cut & paste your Sig to a CCA that is a criminal offence & should be reported to the police.

 

This should be an occasion when they might be interested particularly as you would have the evidence they have committed forgery

[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

[ian1969uk]

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.

[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?

[ian1969uk]

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.

[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.

[ian1969uk]

Until they produce the agreement. Yes, if they never produce then under 77/78 they can't enforce, but this is different to an unenforceable agreement due to it lacking prescribed terms.

 

And still, if they do produce it, they can enforce again immediately without having to take action through the Court, even if this is 3 years after the 77/78 request.

[Nickolarge]

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.

 

IMO once they have failed to comply with your CCA request they cannot enforce, even if they later find the agreement, without going to court.

 

Therefore it would be them bringing the matter to court, not you. You would not be 'bringing a claim', reasonable or not.

[car2403]

IMO once they have failed to comply with your CCA request they cannot enforce, even if they later find the agreement, without going to court.

 

Therefore it would be them bringing the matter to court, not you. You would not be 'bringing a claim', reasonable or not.

 

I agree in a perfect World, but when creditors Default you and you struggle to get credit while they continue to ruin your life by refusing to remove the Default because they don't have an agreement, there's little you can do but bring proceedings against them to resolve the issue.

 

Also, if this were the truth in practise, what is s.142 and s.172 CCA 1974 for?

 

142.—(1) Where under any provision of this Act a thing can be done by a creditor or

owner on an enforcement order only, and either—

(a)the court dismisses (except on technical grounds only) an application for an

enforcement order, or

(b)where no such application has been made or such an application has been

dismissed on technical grounds only, an interested party applies to the court for

a declaration under this subsection

the court may if it thinks just make a declaration that the creditor or owner is not

entitled to do that thing, and thereafter no application for an enforcement order in

respect of it shall be entertained

 

172.—(1) A statement by a creditor or owner is binding on him if given under—

section 77(1),

section 78(1),

section 79(1),

section 97(1),

section 107(1)©,

section 108(1)©, or

section 109(1)©.

(2)

Where a trader—

(a)gives a customer a notice in compliance with section 103(1)(b), or

(b) gives a customer a notice under section 103(1) asserting that the customer is

not indebted to him under an agreement,

the notice is binding on the trader.

(3)

Where in proceedings before any court—

(a)it is sought to rely on a statement or notice given as mentioned in subsection

(1) or (2), and

(b) the statement or notice is shown to be incorrect, the court may direct such

relief (if any) to be given to the creditor or owner from the operation of

subsection (1) or (2) as appears to the court to be just

[ian1969uk]

IMO once they have failed to comply with your CCA request they cannot enforce, even if they later find the agreement, without going to court.

 

Therefore it would be them bringing the matter to court, not you. You would not be 'bringing a claim', reasonable or not.

 

There is absolutely nothing in the legislation to back up this view.

[Nickolarge]

There is absolutely nothing in the legislation to back up this view.

 

If I refuse to pay or even acknowledge a debt how exactly would any creditor 'enforce' without going to court?

 

If I had gone through the process of sending CCA letters and they had failed to meet the requirements of that process I would take a dim view of any claim that the documents had surfaced some months later. It would take some very unusual circumstances for me to pay up without a court case.

[car2403]

If I refuse to pay or even acknowledge a debt how exactly would any creditor 'enforce' without going to court?

 

They can Default you and make your life a knightmare without going to Court, which is one method of enforcement under the CCA.

 

If I had gone through the process of sending CCA letters and they had failed to meet the requirements of that process I would take a dim view of any claim that the documents had surfaced some months later. It would take some very unusual circumstances for me to pay up without a court case.

 

I'm sure the Court would too, but that wouldn't stop them allowing the enforcement - the worst that could happen, IMHO, is that a Judge probably wouldn't allow them to claim costs against you as they had litigated vexatiously. This doesn't mean the agreement won't be enforced, however.

 

Also, the Act specifically allows them to enforce while in default of your request if they can produce the agreement when ordered by the Court.

[Josie8]

They can Default you and make your life a knightmare without going to Court, which is one method of enforcement under the CCA.

 

 

 

 

Also, the Act specifically allows them to enforce while in default of your request if they can produce the agreement when ordered by the Court.

 

 

Which section of the Act are you referring to here?

[car2403]

Which section of the Act are you referring to here?

 

s.77(4)/s.78(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

 

To bring such a claim while in default, without being able to produce an agreement, is suicide.

 

I'll explain that a bit more - only a Court can enforce an agreement against a debtor. A creditor, seeking enforcement, must produce the originally executed agreement to rely on the Act for the Court to enforce it. A debtor that requests a copy of the original that isn't provided can say the creditor is in default of that request - that doesn't stop the creditor seeking enforcement while in default, it just means that the agreement must be submitted for enforcement to take place.

[Nickolarge]

s.77(4)/s.78(6)

 

 

 

To bring such a claim while in default, without being able to produce an agreement, is suicide.

 

I'll explain that a bit more - only a Court can enforce an agreement against a debtor. A creditor, seeking enforcement, must produce the originally executed agreement to rely on the Act for the Court to enforce it. A debtor that requests a copy of the original that isn't provided can say the creditor is in default of that request - that doesn't stop the creditor seeking enforcement while in default, it just means that the agreement must be submitted for enforcement to take place.

 

 

The debts that I am about to use this process on are already in default so there is no prospect of that aspect being a viable form of enforcement from the creditors side.

 

When I think of enforcement I generally take that to mean being forced to pay some or all of the debt.

 

I think in most cases this argument would be more theoretical than actual because I would imagine that it's not often that the agreement turns up later.

 

Could be wrong of course. If it is just that they can't be bothered to meet the deadline and then eventually get their ar*e in gear then maybe agreements are turning up late on a regular basis.

 

I still doubt it though. My reckoning is no agreement within 6 weeks almost certainly means there isn't one at all.