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

[Holdred]

I'm at the point with my own CCA struggle where I'm trying TS to put a bit of pressure on the DCA. I just had a call back and I was trying to explain the situation but the woman I spoke to has said I should speak to the money advice people, who I'm not sure are part of TS.

 

How should I be phrasing this to TS to make the fact more on the failings of the DCA, rather than making it appear like I'm trying to avoid the debt which I'm not!

[car2403]

I'm at the point with my own CCA struggle where I'm trying TS to put a bit of pressure on the DCA. I just had a call back and I was trying to explain the situation but the woman I spoke to has said I should speak to the money advice people, who I'm not sure are part of TS.

 

How should I be phrasing this to TS to make the fact more on the failings of the DCA, rather than making it appear like I'm trying to avoid the debt which I'm not!

 

Depending on TS's approach, it won't matter how you appear to them - if they think you are trying to avoid the debt (which seems to be the collective consciousness with other TS areas we've seen) you'll struggle to get any action out of them. If they don't think like that, you might be surprised at the action they take and how quick it is. This is the lottery we're all facing due to this issue, sadly.

[Holdred]

Depending on TS's approach, it won't matter how you appear to them - if they think you are trying to avoid the debt (which seems to be the collective consciousness with other TS areas we've seen) you'll struggle to get any action out of them. If they don't think like that, you might be surprised at the action they take and how quick it is. This is the lottery we're all facing due to this issue, sadly.

 

The point I tried to make, which perhaps wasn't easy to make over the phone was trying to focus on the DCA's legal right to collect said debt, rather than the debt existing.

 

The person I spoke to advised me to ring another person who was the money specialist, but is quite busy. I'll try and get down the office and lay out exactly what the DCA have done wrong and back this up with the CCA 1974 rather than focusing on the debt.

 

I kinda got the impression that because they didn't really know what I was trying to explain they had made their minds up straight away.

[Holdred]

I've just taken some time to compose an email to the officer to focus on exactly what aspects I want TS to investigate, here's the email with the essentials xxxx'd out:

 

Dear XXXX,

I have made a complaint through Consumer Direct regarding the practises of a Debt Collection Agency, XXXX that I am dealing with and I have been advised to speak with you regarding the matter.

Firstly, I'm not trying to avoid paying the debt, but I am trying to ascertain that XXXX have the legal right to collect payment for this and I have grave concerns over the way in which XXXX operate.

On the XXXX I made a request under section 78(1) of the consumer credit act 1974 for a copy of the agreement I entered into originally with XXXX. This was sent recorded delivery and confirmed as delivered on the XXXX. On the XXXX XXXX wrote to me to acknowledge my request and acceptance of my £1 postal order.

They entered into default of my request on XXXX and as per the CCA 1974, I withheld payment until such a time that XXXX can prove to me they are legally entitled to demand payment. The act states I am not obliged to make during this time.

After 30 calendar days they commit an offence as laid out in the CCA 1974, this date was XXXX. I have yet to receive my agreement as requested.

I wrote to XXXX again after receiving a letter demanding payment, which once again is a breach of the CCA 1974 when the right to collect the debt is in dispute. On XXXX I sent more letters. One a request for all communication to be in writing, as I no longer wished to receive telephone calls. This has partially been respected, although I consider them to be in breach of Communications Act (2003).

In addition to this was a complaint to be dealt with under their complaints procedures, which has been ignored.

On XXXX, I once received a sternly worded letter advising me that I need to contact XXXX to arrange payment or the account would be passed to XXXX for further collection and possible legal action. XXXX are another trading name of XXXX, and this is in clear breach of the OFT guidelines for debt collection.

 

I have copies of all correspondence and confirmation of delivery of my letters and I would very much like to discuss the practises of XXXX:

1) Failure to act on my legal request under the CCA 1974

2) Breach of the OFT Guidelines for Debt Collection

3) Breach of the Communications Act 2003.

Please could you contact me to arrange an appointment to further discuss this and for me to give you copies of all correspondence to act upon.

 

I thought that was as clear and concise as I could make it to drive the points that I feel TS should be looking into.

 

Thoughts?

[stapeley]

Not sure TS know what to do on this subject ,it maybe better with the FOS. http://www.financial-obudsman.org.uk

[Holdred]

Not sure TS know what to do on this subject ,it maybe better with the FOS. www.financial-obudsman.org.uk

 

I spoke to them yesterday and they're sending me out the documents I need to complete and return to them to look into it as well

[stapeley]

A DCA have sent me three copies of an APPLICATION FORM . I pointed out that no where on this form does it say , The APPLICANT AGREES to the OC being able to sell the account on to A THIRD PARTY . So if this DCA are calling this APPLICATION FORM an AGREEMENT . The terms of this so called AGREEMENT have been broken . Therefore on that point alone could not be deemed enforceable . Would the legal eagles on here agree ?????

[JonCris]

Assuming there are penalty charges applied to the debt & If the DCA continues to insist the application IS valid & they attempt to enforce the debt advise them that you will be counter claiming that the debt is unenforceable & seeking an order to that effect or in the alternative, as they are the owners of the debt you will be claiming all unlawful penalty charges from them

[car2403]

A DCA have sent me three copies of an APPLICATION FORM . I pointed out that no where on this form does it say , The APPLICANT AGREES to the OC being able to sell the account on to A THIRD PARTY . So if this DCA are calling this APPLICATION FORM an AGREEMENT . The terms of this so called AGREEMENT have been broken . Therefore on that point alone could not be deemed enforceable . Would the legal eagles on here agree ?????

 

The issue of assignment doesn't receive the attention it deserves from these companies.

 

Is there a thread on this issue, as the answer to this depends on the type of assignment that has taken place and that is far too complicated to answer in response to this post?

[stapeley]

HI , My point is IF this form is accepted as an agreement then the terms in that form have been broken .

[car2403]

HI , My point is IF this form is accepted as an agreement then the terms in that form have been broken .

 

I can't see how. Assignment is a contractrual relationship between the debt seller and the debt buyer - it has nothing to do with the agreement itself, especially if the assignment is equitable rather than legal, as the obligations may/or may not pass from the OC to the DCA, again depending on the type of assignment.

 

You are right that you should have received a NOA when it took place, but that is a question of fact rather than law surrounding the agreement terms, IMHO.

[Soo43]

I think unenforceable, as the rate of interest is missing. The APR is shown, but that includes fees, compound interest, etc, so isn't a specific rate of interest applied to the account. As rate of interest is a prescribed term, which is missing, the agreement is unenforceable, IMHO.

 

 

Thank you for this car2403 - can you tell me which is the best way to approach this as we have a court hearing - they got a forewith judgement against us (trying to make an unsecured loan a secured loan) - i need to sound as if i know what i am talking about when we go to court.

 

I will argue the above point re unsecured v's secured

 

i wish to argue your point also but need to fully understand what i am saying - could you point me in direction of a letter i could send either the creditor or judge pleaseeeeeeeeee - btw what does IMHO stand for?????

[gerona]

Hello soo43

I can't help you very much but I think IMHO means in my humble opinion.

 

I had this happen to me for a £10000 credit card debt. I attended the hearing to offer my payment by installments and not forthwith. The judge wanted to know if any of my other debts were secured on the property and how I was helping myself out of the situation.

I had a list of all my debts and proof of my regular lowered payments and said that non of my other creditors had charges.

The judge ruled that installments could be paid and the creditor was not allowed to appeal again.

Donot let them know if you have equity or not.

 

IMHO if you are not a law person but a person trying to look out for himself then I think the judge takes this into consideration. You cannot know all the law and may not be able to afford a lawyer. I have had to go to court several times and although the judge will not fight your case he will not let the claimant take the p..ss.

[robcag]

I can't see how. Assignment is a contractrual relationship between the debt seller and the debt buyer - it has nothing to do with the agreement itself, especially if the assignment is equitable rather than legal, as the obligations may/or may not pass from the OC to the DCA, again depending on the type of assignment.

 

You are right that you should have received a NOA when it took place, but that is a question of fact rather than law surrounding the agreement terms, IMHO.

Hi Chris

 

There was an interesting thread on assignment here http://www.consumeractiongroup.co.uk/forum/general-debt-issues/123771-validity-debt-assignment-re.html although I must confess I do not fully understand it all.

 

Rob

[car2403]

Hello again,

 

Can I come back to your post to make sure I understand all the details ?Tried to start my own thread, but can't get my head around that yet despite reading the dummies guide as you suggested.

 

When I requested the copy of the original credit card application form ( which I assumed would incorporate the T & C's - they usually do ) I was really wanting to see if the bank - Vanquis in this case - had signed the form.

As I understand it, the application/agreement must be signed not only by the applicant but also by, or on behalf of, the bank ( section 61 (1) of the CA 1974 refers I believe).

If the bank had NOT signed the original form as has been the case with 2 other banks I'm dealing with, this means the agreement is unenforceable without the agreement of the court. Am I correct so far ?

 

There seem to be two main points to your comments, First - that the T & C's MAY NOT be omitted from the agreement.

 

What I received was a blank application form ( single page front and back ) and the T & C's which were on seperate photocopied sheets ( single sided ) , BUT it's not really possible to tell whether, on the originals, the T & C's were sent as a seperate document entirely or were actually continuation pages of a single application document. I suspect that they were NOT part of a single application form, but I cannot be 100 % sure about arguing the toss on this issue.

(I suppose I could always write back on the assumption that the T & C 's were separate and just see how they react )

 

The second point of your reply concerned the fact that the copy must be a 'True copy' of the original.

 

However, it would appear from point 2 of your reply that the signature may, under certain circumstances, be omitted from a copy provided in reply to a request under section 77-79 of the CCA

 

Leaving aside the question of whether or not the T & C's were sent as a seperate document, can the document I received in answer to my request i.e. a blank application form - be deemed a 'true' copy if it shows neither my signature, nor a signature by on on behalf of the bank ?

 

Equally can it be deemed a 'true copy ' if there is no way of telling whether or not the T & C's were ,or were not, presentated on a seperate document to the application form.

 

As far as I can see, what the bank has sent me proves nothing, certainly not the existence of a valid agreement. It's tantamount to them saying

' Believe us, we have an agreement but we're not going to show it to you '

 

Does the reply letter you suggested I send the bank, still hold true in light of the above ?

 

If the reply I have received is NOT a true copy, am I correct in thinking that this puts Vanquis in breach of their obligation to provide true copy within the 12 days allowed and equally that if they don't come up with a true copy within a further 21 days thay have commited an offence ?

 

Sorry if this seems that I am splitting hairs, but I'll feel better if I understand exactly where I stand.

 

Thanks and more thanks

 

Valhalla

 

I think we need to get a Mod/Site Admin to create a thread for you, Valhalla, then I can answer this there, as we're a little off topic here.

[stapeley]

A DCA have sent me three copies of an APPLICATION FORM . I pointed out that no where on this form does it say , The APPLICANT AGREES to the OC being able to sell the account on to A THIRD PARTY . So if this DCA are calling this APPLICATION FORM an AGREEMENT . The terms of this so called AGREEMENT have been broken . Therefore on that point alone could not be deemed enforceable . Would the legal eagles on here agree ?????

When I asked for copy of a notice of assignment , all I recieved was a simple letter from the OC , addressed to me but sent to the DCA , saying the account had been sold and I should contact them .

[car2403]

When I asked for copy of a notice of assignment , all I recieved was a simple letter from the OC , addressed to me but sent to the DCA , saying the account had been sold and I should contact them .

 

It depends what type of assignment has taken place, so it's worth asking the question.

 

Ref this post from Moonhawk in my RBS thread;

 

Hi,

 

I need to check triton out before I can advise. I'll take a look tomorrow as Companies House is offline on Sundays.

 

Just to help a little in terms of understanding legalities, the debt/account can be assigned in a couple of ways, which have different effects. As you will understand, they will be very vague in admitting what the type of assignment it is, as it will corner them in terms of what they can do and what is expected of them.

 

First type of assignment is "Absolute". This means that the account is sold in it's entirety to a third party. The third party (in your case Triton) would then become the new creditor and also hold all duties as well as liabilities. So the CCA will go to them and any action for penalty charges etc will be brought against them. They can also, as the creditor, take you to court for non-payment. From the cases I have seen on this and other consumer sites, I have found this to be a very rare type of assignment.

 

The more common type of assignment is that the "debt" is sold and not the account. (The wording in your assignment letter suggests this). This means that the assignee holds the rights to collect upon the debt, but the original creditor holds the duties and liabilities. This means that you send the CCA to the OC and sue the OC for penalty charges etc. It also means that the assignee becomes an "equitable owner" (legal for joint owner) and they can not sue for non-payment by themselves. They might try, but if you know this you can counter it in your defense. The OC must be included in any legal action.

 

With either type of assignment, the assignee can not act if a request is made under section 77/78 of the CCA, until it has been complied with. They will argue otherwise, but either they are responsible for duties as the "creditor" (in an absolute assignment) or they hold the title of "agent" under the CCA. No-one else apart from the creditor or their agent can collect on a debt under the CCA. AK have stopped all correspondence and are sulking when I mentioned this in response to them saying they are not the creditor or an agent.

 

I will take a look into Triton and see what else I can advise. The assignment letter says "Ltd". Sometimes these companies are dormant, which means they should not be trading but do. I'll check tomorrow and get back to you. I hope the above helps.

 

Best Wishes

MoonHawk

[hsbcfiddled]

It depends what type of assignment has taken place, so it's worth asking the question.

 

Ref this post from Moonhawk in my RBS thread;

 

Thanks for that car.

moonhawks post is superb.

[stapeley]

We need to look at a court case where a claim has been thrown out on the grounds of non production of a copy of a true signed agreement . Everyone seems to be putting their own opinions or their reading of the CCA. It seems a never ending question !

[stapeley]

I can't see how. Assignment is a contractrual relationship between the debt seller and the debt buyer - it has nothing to do with the agreement itself, especially if the assignment is equitable rather than legal, as the obligations may/or may not pass from the OC to the DCA, again depending on the type of assignment.

 

You are right that you should have received a NOA when it took place, but that is a question of fact rather than law surrounding the agreement terms, IMHO.

 

Hello again , I,ve just read a C C AGREEMENT that my partner has for a sofa . It states clearly, It is a C C AGREEMENT , all the prescribed terms are there clearly , and on the back it has terms and conditions. One of these conditions state, WE MAY ASSIGN OR TRANSFER OUR RIGHTS UNDER THE AGREEMENT . Which is very clear and understandable . My point is as the APPLICATION FORM i signed does not contain any statement on ASSIGNMENT , if this DCA are attempting to class this form as an AGREEMENT . The terms of this SO CALLED AGREEMENT have been broken !

[car2403]

We need to look at a court case where a claim has been thrown out on the grounds of non production of a copy of a true signed agreement . Everyone seems to be putting their own opinions or their reading of the CCA. It seems a never ending question !

 

That's because it's based on opinion and experience - the only person in the World that can say if an agreement is enforceable or not is a Judge, where you'll find you get different opinions also.

 

The threads/opinions posted just reflect the real World - much better been prepared for the worst, than expecting the best and not getting it, IMHO.

 

Hello again , I,ve just read a C C AGREEMENT that my partner has for a sofa . It states clearly, It is a C C AGREEMENT , all the prescribed terms are there clearly , and on the back it has terms and conditions. One of these conditions state, WE MAY ASSIGN OR TRANSFER OUR RIGHTS UNDER THE AGREEMENT . Which is very clear and understandable . My point is as the APPLICATION FORM i signed does not contain any statement on ASSIGNMENT , if this DCA are attempting to class this form as an AGREEMENT . The terms of this SO CALLED AGREEMENT have been broken !

 

Assignment is a contractural relationship between the assignee and the assignor - to my knowledge, this doesn't require a specific term in the agreement unless the assignment is to be absolute.

[SB10]

what if the original agreement on an existing credit card was signed with a provider who has subsequently sold on the credit card business to someone else? Am I still entitled to ask for a copy of the original agreement? I would like to check the small print for something and also to see how much the new provider has changed the terms and conditions of the card since buying the business. This relates to MBNA issues

[JonCris]

It doesn't matter if the company has changed hands. The original agreement is the contract you signed & entered into. Nor can they change the T's & C's without your express consent

 

If the buyer didn't insist on receiving copies of the original documents from the seller then that's their problem. In fact the shareholders could sue the directors & their advisors for failing to exercise due diligence.

 

This certainly would be the case if because of their oversight much of the book debt became unrecoverable

[SB10]

thanks JonCris. will take this up with MBNA. The forum has proved yet again how useful it is with helpful advice. It certainly provides lots of food for thought on many issues. MBNA have told me so far that they do not need to provide a copy of the original agreement. But that was the view of one of their contact centre staff not through the complaints procedure - which Ill now take up.

[redsue]

thanks JonCris. will take this up with MBNA. The forum has proved yet again how useful it is with helpful advice. It certainly provides lots of food for thought on many issues. MBNA have told me so far that they do not need to provide a copy of the original agreement. But that was the view of one of their contact centre staff not through the complaints procedure - which Ill now take up.

Be prepared for the long haul - MBNA have consistenly lied to me and then defaulted my account - they are a law unto themselves. Oh yes and they also haven't complied with my SAR, never sent my a Default Notice, the list is endless...

 

This certainly would be the case if because of their oversight much of the book debt became unrecoverable

 

Mine is a A&L cc card from 1993 which they have managed to retrieve an application form for - however they seem to think that a template of 1995 T&Cs means they have complied.

 

my thread is here if you wanna check out the gory details for research

 

http://www.consumeractiongroup.co.uk/forum/mbna/81907-mbna-ding-ding-round.html#post729106