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

[hsbcfiddled]

I believe they have passed it back to OC , The O C tried ringing me yesterday , they left a message to ring them , oH YES okay I,ll do that then ! NOT !

 

Cap Quest did the same to me-They passed it back Cap One- I phoned both - neither wanted to acknowledge the debt...I was disappointed..LOL

[stapeley]

I have two with clap quest . One they purchased from sky card .

[hsbcfiddled]

I have two with clap quest . One they purchased from sky card .

 

 

CLAP Quest- Love it!..How appropriate.

[stapeley]

Good morning, hopefully my final question for awhile . The DCA have failed to supply a copy of the CCA . I,ve done eveything required correctly ., its been over the time limit . They have informed me that they have requested it from the OC . I sent the letter informing them they were in breech of the Act. What should I do if ,which I VERY MUCH DOUBT, a copy is produced now. Surely non complance within the time limit has reprecussions for them? Has this happened to any one else here , what was the out come ?

[car2403]

YES YES YES!

 

Non-compliance within the timescales is a criminal offence, but unless you're rich and daft enough to bring a private prosecution in the Magistrates Court or can convince Trading Standards to do it for you, there's very little you can do about it. (Complaining to your local TS is the first step)

 

They are only blocked from enforcing while in default - if they find the agreement, they can enforce it regardless of not complying. They just can't do that while in default.

 

I wouldn't worry about what could happen "if" they find an agreement. They haven't yet, so are highly unlikely to do so now - though it isn't impossible.

 

The ball is in your Court - you either stop paying and hope they take you to Court where you'll have a complete defence, or you start a claim against them for a declaration under s.142 CCA 1974 that the debt is unenforceable, Default removal, etc...

 

Have you sent them the Surleybonds s.10/s.12 Data Protection Act letter/Notices? Without an agreement they shouldn't be processing/sharing your data!;

 

http://www.consumeractiongroup.co.uk/forum/legalities/24013-defaults-proposed-method-removal.html

[stapeley]

Thankyou , Just one more ! I,m off on holiday to CAPE VERDE next week , would Clap Quest like a nice post card ???

[car2403]

Thankyou , Just one more ! I,m off on holiday to CAPE VERDE next week , would Clap Quest like a nice post card ???

 

As long as it has Surleybond's letter attached!

[hsbcfiddled]

Thankyou , Just one more ! I,m off on holiday to CAPE VERDE next week , would Clap Quest like a nice post card ???

 

It would be better if you were going to Afganihistan then you could send them a ' Wish you were here' postcard- then you could go on Cape Verde after- LOL

[gaz2006]

Im helping friend on monday re claim re business claim back to 1996 . Nat West trying to throw out under limitation act . ive read up on this section 32 etc and can see I can say when we knew ait wasnt legal etc but how can I enforce the fact they tried to conceal it ? I also want Nat west Terms and Conditions back to 1996 any ideas where to look ? i have also seen the law cases put by Zoot on the site re limitations anything else I need to be thinking about regards Gaz

[hsbcfiddled]

Im helping friend on monday re claim re business claim back to 1996 . Nat West trying to throw out under limitation act . ive read up on this section 32 etc and can see I can say when we knew ait wasnt legal etc but how can I enforce the fact they tried to conceal it ? I also want Nat west Terms and Conditions back to 1996 any ideas where to look ? i have also seen the law cases put by Zoot on the site re limitations anything else I need to be thinking about regards Gaz

 

Hi gaz2954.

 

I adapted this to my own case....if it is any help?

 

 

 

1

The relationship between the Claimant and Defendant is that of Customer and Banker. This was held by the House of Lords in Foley v Hill (1848) 2HL Case 28 to be a relationship of contract. The classic definition of the contract is derived from Atkinson LJ speech in Joachimson v Swiss Banking Corporation [1921] 3 KB 110 and stated at paragraph 7.3 of Paget's Law of Banking

Limitation

 

2

The relevant part of the above definition is the last line Atkinson LJ speech ‘I think it is necessarily a term of such a contract that the bank is not liable to pay the customer the full amount of his balance until he demands payment from the bank at the branch at which the account is kept.’ It is a demand for payment by the customer which sets time running for the purposes of the Limitation Act.

This is explicitly stated at paragraph 7.14 of Paget's Law of Banking.

 

 

3

In the present proceedings the Claimant submitted a demand for payment on 31st July 2006. The Claimant sent a letter to the Defendant asking for a refund of the Charges and Debtor Interest then outstanding on the Account. It follows on from the settled law that the Limitation Act will bite on the Claimant on 31st July 2010.

 

 

4

On this basis the Defendant’s application to strike out the Claim by way of the Limitation Act must fail.

Alternative Rebuttal of the Defendant’s Application

 

5

In the alternate even as argued by the Defendant his application must fail.

 

 

6[snip irrelevant bit]

7[snip irrelevant bit]

8[snip irrelevant bit]

 

 

9

The Defendant seeks to apply limitation to recovery under the provisions of various pieces of consumer protection legislation.

While the Claimant may allege breach of a statutory provision is not for the Claimant to decide that the breach has occurred.

That falls to the appropriate statutory authority. In the present case that is the Director General of Fair Trading.

Therefore the cause of action accrues on the date of his finding that charges above £12.00 are always unlawful and will trigger enforcement action.

The appropriate date is the publication of his report Calculating fair default charges in credit card contracts on 5 April 2006.

 

In that case time runs until 5 April 2012.

 

NOTE THAT’S FORWARD NOT BACKWARD

 

 

 

 

10

Turning to Section 32 of the Limitation Act 1980, the House of Lords has decided (See Cave (Respondent) v. Robinson Jarvis & Rolf (A Firm) (Appellants) [2002] UKHL 18 attached at MLH-A pp 4-19 particularly p17):

 

 

A claimant who proposes to invoke section 32(1) (b) in order to defeat a Limitation Act defence must prove the facts necessary to bring the case within the paragraph. He can do so if he can show that some fact relevant to his right of action has been concealed from him either by a positive act of concealment or by a withholding of relevant information, but, in either case, with the intention of concealing the fact or facts in question. In many cases the requisite proof of intention might be quite difficult to provide. The standard of proof would be the usual balance of probabilities standard and inferences could of course where an omission rather than a positive act is relied on, is often very difficult be drawn from suitable primary facts but, nonetheless, proof of intention, particularly Subsection (2), however, provides an alternative route. The claimant need not concentrate on the allegedly concealed facts but can instead concentrate on the commission of the breach of duty. If the claimant can show that the defendant knew he was committing a breach of duty, or intended to commit the breach of duty - I can discern no difference between the two formulations; each would constitute, in my opinion, a deliberate commission of the breach - then, if the circumstances are such that the claimant is unlikely to discover for some time that the breach of duty has been committed, the facts involved in the breach are taken to have been deliberately concealed for subsection (1)(b) purposes.

 

11

The Defendant contends that the bank did not conceal anything from the Claimant.

It is incidental to the Claimant’s claim that he knew when the charges were made or the reason given for the charge.

 

 

However the rest of point 11 & 12 prove why the argument of 'no concealment is utterly destroyed….sending statements and perhaps the occasional letter is not evidence of 'no concealment'!

 

The Claimant’s action stands or fails on the fairness of each charge.

If each charge reflects the Defendant’s recovery of the limited administrative costs incurred by him or a genuine pre-estimate of those costs then the Claimant’s claim will fail.

If they have the object of raising more in revenue than is reasonably expected to be necessary to recover those limited administrative costs then they are an unfair and unlawful penalty.

The Claimant contends that the Defendant has knowingly concealed the costs associated with the charges in breach of his duty as a fiduciary to the Claimant. The cost to the Defendant of processing any charge is directly relevant to the Claimant’s claim.

 

 

12

The Claimant has not previously alleged fraud, because he has had no need to.

The Claimant alleges that the Defendant knew at the time that the charges were unlawful penalties and knew that a customer has no method to discover the true cost underlying the charges and as such was and is fraudulently applying them. The word 'fraud' here is not used in the common law sense. It is used in the equitable sense to denote conduct by the Defendant such that it would be 'against conscience' for him to avail himself of the lapse of time. The authorities show that, if a man knowingly commits a wrong; or a breach of contract, in such circumstances that it is unlikely to be found out for many a long day, he cannot rely on the Statute of Limitations as a bar to the claim (See Cave (Respondent) v. Robinson Jarvis & Rolf (A Firm) (Appellants) [2002] UKHL 18 - bundle pp4-19 particularly p8).

 

The Claimant cites as evidence the testimony of the Defendant’s former chief executive Mr James Crosby before the Treasury Select Committee on 19 October 2004, particularly Q135

(See Bundle pp20-23 particularly p23):

Q135 Mr Mudie: … one area you have refused to even tell us any details on is the penalty charges and fees. Now, you consistently refused to tell us how much you make, how much you bring in, how much profit. PricewaterhouseCoopers said you are growingly reliant on the income from these fees. Would you care to comment, any of you?

Mr Crosby: to kick off, we do not disclose the nature of those fees publicly to our shareholders so we cannot be more specific….

 

13

In addition the Claimant contends that suitable primary facts that the Court should draw inference from are the Office of Fair Trading presumption that charges above £12.00 are unfair and the refusal of the Defendant to disclose its costs when requested by the Claimant in his original letter of 31 July 2006 (See Bundle Document 17):

I now understand that the regime of fees which you have been applying to my account in relation to direct debit refusals, exceeding overdraft limits and so forth are unlawful at Common Law, Statute and recent consumer regulations. If you say that they are not, then will you please demonstrate this by letting me have a full breakdown of the costs to which you have been put by as a result of my breaches, in order to reassure me that your penalties really do reflect your costs.

 

 

14

The Defendant alleges that with reasonable diligence the Claimant could have discovered that he was being charged unlawful penalties. As shown at paragraph 12 above the Court of Parliament, by way of the Treasury Select Committee with all its powers and sanctions, was unable to arrive at the true costs underlying the Defendant's charging regimes.

Equally the Office of Fair Trading, which has statutory powers and full time investigators, stated in a press statement issued on 7 September 2006 that it will take between three to six months to analyse banks penalty charging regimes. Therefore it is totally unrealistic to assert that a private individual such as the Claimant could discover the true nature of the charges levied against him without an inordinate and unreasonable level of diligence.

 

 

15The Defendant advances the submission that the Claimant was aware of the charges and their nature by way of the entries on periodic bank statements, examples of which are included in his bundle (See AWH 26a-36). In Tai Hing Cotton Mill Ltd v Liu Chong Hing Bank Ltd [1986] AC 80, [1985] 2 All ER 947 PC the Privy Council held that there is no duty on a bank’s customer to check his statements cited at paragraph 11.5 of Paget's Law of Banking.

 

The Defendant cannot therefore rely on a statement entry to start time running for the purposes of the Limitation Act.

 

 

16

Therefore even as argued by the Defendant the Claimant can maintain this action within the time limits imposed by the Limitation Act 1980. There are therefore no grounds on which the court should strike out the Claimant’s particulars of claim by reason of limitation.

 

 

Fresh Accrual

 

17

Furthermore The Defendant wrote to the Claimant on 18 October 2006 offering to settle the amount claimed in Charges £2,756.00 and £800.44 in respect of interest together with £250.00 in respect of the Court fee (See TB Document 24).

 

The Defendant unilaterally deposited these sums into the Account. The Claimant accepted these sums as partial payment of the monetary aspects of his claim. Consequently on the basis of the term “…or makes any payment…”

 

The Claimant has accrued fresh rights under section 29(5) (a) of the Limitation Act 1980 (See below) running from 18 October 2006.

 

 

 

 

(5) Subject to subsection (6) below, where any right of action has accrued to recover--

(a) any debt or other liquidated pecuniary claim; or

(b) any claim to the personal estate of a deceased person or to any share or interest in any such estate;

and the person liable or accountable for the claim acknowledges the claim or makes any payment in respect of it the right shall be treated as having accrued on and not before the date of the acknowledgment or payment.

(6) A payment of a part of the rent or interest due at any time shall not extend the period for claiming the remainder then due, but any payment of interest shall be treated as a payment in respect of the principal debt.

 

Good Luck..Anyone please feel free to add.

hsbcfiddled

[gaz2006]

Thats brilliant reply thanks ill use and adapt regards gAZ

[stapeley]

hi, had letter from Clap quest today .I had CCA requested them back on 3rd dec. Had nothing from them ,till now , saying they are no longer dealing with the account . I am to refer to the OC . As they were acting as agents for the OC , its them that committed the offence under the terms of the ACT ? So now what ???

[Edz11]

I'm wary of using the "agent" route in terms of the CCA. I would write to the OC and say the agent they appointed were sent the £1 and request and ask when they are going to deal with it as they are (now?) in default and have committed an offence.

[Goldlady]

I have had two replies from Lowell after sending them CCA requests saying that they had asked the OCs for the CCAs and then later (in one case) a letter saying they had returned the debt to the OC and in the other case nothing since June last year. I have heard nothing further regarding either but I understand that if you send CCA request to the agent or assignee they should pass it back to the OC and you should not have to pay your £1 twice.

[car2403]

I'm wary of using the "agent" route in terms of the CCA. I would write to the OC and say the agent they appointed were sent the £1 and request and ask when they are going to deal with it as they are (now?) in default and have committed an offence.

 

That Agent stuff comes under s.175 - there is also the "Debt collector" status under s.145(7) to consider.

IMHO, these 2 titles, along with the fact that "some" contract must exist between the OC and the DCA should mean they are under a contractually, legal obligation to pass on the request and should respond accordingly.

Notice the word "should" in that last paragraph - I personally feel it's worth the extra £1 to send the CCA request to the OC and the DCA, as it covers all bases and means the OC can't continue to pursue you if the DCA gets scared and passes the account back, as has happened here.

This issue needs to be resolved, but it will be done on a case-by-case basis, with a Judge making the decision over who has to do what - which is never a good thing! ("Judge lottery", anyone?!)

[gaz2006]

Some time ago i asked for Nasty Westy credit agreemennt for credit card and recieved nothing and now guess what ive received court summons today From Royal Bunk OF Scottie Dog credit card today re a credit card all it says is signed by NELSON GUEST AND PARTNERS and it says " the claimant claim is in respect of a credit agreement between the claimant and the defendent , full particulars whereof having been given " Also claiming interest (though no particulars have been given )

 

Now they dont say card number agreement number date of card or anything and its been accepted by the court . It will relate to some Nasty Westy card rather than Royal Bunk of Scotty Dog credit card and I did ask the Nasty westy around 6 montsh ago for credit agreemnt in fact for 3 credit agreemnets for 3 cards and they sent nothing in 12 days or in 30 so are now in default and in fact have committed an offence etc .

 

Any guidence what i should say in defence to this claim guys & girls regards Gaz

[stapeley]

Guess I,ll just have to wait now for the OC to get in touch . Having been pressureized into making some payment to the DCA .This happened before I had discovered CAG . With them acting as agents for the OC ,and with their failure to supply a deed of assignment and a true copy of the Agreement. Thus committing an offence ,should I claim repayment of money forwarded to them , and damages for harassment ? I will certainly report them to the office of fair trade !

Cheers for your advice chaps .

[stapeley]

I'm wary of using the "agent" route in terms of the CCA. I would write to the OC and say the agent they appointed were sent the £1 and request and ask when they are going to deal with it as they are (now?) in default and have committed an offence.

 

As the request was made to the DCA who were acting on behalf of the OC. the OC can also be held responsible for the non compliance of the CCA request. Therfore as the 12+ 1 month has past ,the debt can now only be enforced by order of the court . Can anyone confirm this is the case ?

[car2403]

As the request was made to the DCA who were acting on behalf of the OC. the OC can also be held responsible for the non compliance of the CCA request. Therfore as the 12+ 1 month has past ,the debt can now only be enforced by order of the court . Can anyone confirm this is the case ?

 

Yes, but only until they supply the agreement.

[ian1969uk]

The debt cannot be enforced even by the court until they comply with your request.

[JonCris]

I suggest sending the CCA request and £1 to the OC with a copy of your letter to the DCA whilst at the same time pointing out that until the OC complies the debt is in dispute & for them to attempt to enforce the debt is an offence as well as a breach of the OFT guidelines

[stapeley]

Thanks chaps, thats how I understood it to be . It must also be the case, that now the account is indispute the OC should not pass any imformation to any other 3rd party , Which would include not passing it to another DCA ?

[KJB]

Hi, I'm new to this forum but am trying to get copies of agreements to dispute information on my credit file. Am having trouble with 1 of the companies but hope someone here can help.

 

I'm trying to get hold of a signed copy of the agreement, which I know they dont have, however I've recieved a letter back wiv a copy of the agreement without my signiture saying they can ommit certain details: address and signiture box. Is this right or not??? Any help appreciated.

[hsbcfiddled]

Hi, I'm new to this forum but am trying to get copies of agreements to dispute information on my credit file. Am having trouble with 1 of the companies but hope someone here can help.

 

I'm trying to get hold of a signed copy of the agreement, which I know they dont have, however I've recieved a letter back wiv a copy of the agreement without my signiture saying they can ommit certain details: address and signiture box. Is this right or not??? Any help appreciated.

 

Hi KJB,

 

Yes. They can send you an agreement without certain details- indeed 'daft as it seems' without your signature.

However write and tell them that although they have complied with your request it does not prove that they actually hold a copy of the executed agreement- which they will be required to enforce agreement should an appearance in court be neccessary.

Remind them that you requested a copy of the executed agreement 'not a cut and paste version that could belong to anyone-even the Judge'

[stapeley]

Just a little story you may like.

 

Having watched with great interest ,some preceeding court cases ,where cost were awarded . A lady of the night ,having won her case ,requested to be awarded costs . The Judge asked how many hours she had lost due to attending court . See replied , "THREE HOURS YOUR HONOUR ". "And how much do you earn per hour " asked the JUDGE . "£150 PER HOUR YOUR HONOUR " came the reply .. " OH NO YOUR HONOUR . WE OBJECT TO THAT " the other parties barrister said .

 

" Objection overruled, I believe that to be very good value for a Domotrix . I usaully pay between £200 and £250 per hour !"