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

[means2anend]

check it out

 

http://www.oft.gov.uk/news-and-updates/press/2010/101-10

 

m2ae

[means2anend]

i and manyothers on this forum in various threads have received these types of letters.i received one from RED on bhalf of Cap one but put them on the back foot to supply a CCA.If they have not provided you with s78 compliance it cannot be enforced 'whilst the default' continues.

 

why do you say that a request for a CCa s78 is now a 'moot point'

 

s78 clearly expressly states that whilst non-compliance with s78 continues they cannot enforce...

 

Mguffick clearly stated that the sending out of these letters and behaviour that amounted to the same...was not intself enforcement but a step

[means2anend]

If they dont have the original then how can the copy be a true copy of it.

 

AND as they have said that they do not have the original they cannot misrepresent that fact...but that is the situation as present..as Car2403 above said it has not been unknown for lenders to pull the rabbit out of the hat at the last minute.

 

However in Carey HHJ Waksman said that it need not be taken from the original itself but could be constructed from 'other sources' that existed at the time the original was in existence provided that it was an 'Honest and Accurate, and True Copy provided in good faith.

He also said that that case was not concerned with s61 but when a claimant requests a s78 copy, does not himself [claimant] provide any positive supportive evidence, and simply relies on the defendant to not supply a copy by default and then say that that is proof that there was no execution of the original or that an original is not in existence.However in that case they did supply a copy...BUT the burden was not on HSBC to show that an original had been signed the burden was on the claimant to show that it had not....that is why the position of a defendant or claimant is crucial as to WHO bears the burden...best sit back and let them bring the proceedings according to the above.

 

If as you say lloyds have said that they do not have the original....it will be risky for them to bring proceedings as they will have to show that s189 and s61 was complied with you do not.

 

s78=information purposes NOT proof of executiion.

 

But then that still does not prove that YOUR [copy] agreement satisfies s189 and s61

 

m2ae

[means2anend]

It is a thorough letter and well put and one that I shall copy ,paste and keep for the 'appropriate' institution.

 

The letter is beyond the requirements to put to a DCA as putupon12 has mentioned.

 

A privity of contract exists between you and Lloyds....there is no evidence of an absolute assignment to THAT dca that is threatening legal proceedings.Therefore it has not had assigned to it those rights to take legal action against you.

 

It is merely collecting on behalf of Lloyds.

 

Sending that DCA is like cracking a peanut with sledgehammer...sorry for that but that is how it is.

 

The fact of the matter is that Lloyds will have difficulty proving that s189 and s61 were complied with and that the address that was current at the time of s189 being executed was correct honest and accurate as per HHJ Wakman in Carey.

 

As to the DCA making threats as to legal proceedings this is as putupon12 states against OFT guidelines 'cos they know that if there is no executed agreement then there can never be any enforcement so why make empyty threats likelyto cause distress.

 

Once again you are advised to do nothing and let them take the initiative.

 

My own experiences and also my help towards Freinds has always been the same...'they go away after you remain stubborn with them'...

 

I dont even bother to reply to them now...but that is what my experience has taught me...and experience brings confidence in predicting the outcomes.

 

m2ae

[means2anend]

Also if they have not been assigned a RIGHT to take legal action...then they are misrepresenting that fact and fall foul of CPUTR 2008...you could write THEM (DCA) a letter as simple and effective as this upon pain of reporting them to OFT on this specific matter.

 

DCA's hate their licenses being threatened or subject to revocation.Use this angle as the benefit of pursuing you will be outweighed by the cost of having that license revoked.

 

Simple economics at the end of the day.....

 

m2ae

[means2anend]

Here is a real factual illustration as to how OFT deals with DAc's that contravene OFT guidelines...I posted this upon another thread but for your specific purposes it is relevant........click on the link

 

http://www.oft.gov.uk/shared_oft/press_release_attachments/1stcreditrequirements.pdf

[means2anend]

The page is currently at this time undergoing maintenance but keep trying it and it will be back on.

 

m2ae

[means2anend]

Courtesy of Seriouslyfedup

 

Re: Chalkitup v Citi / 1st Credit

 

Not much to add to what M2AE and Enron have said Chalkitup. I have a letter in the post to them that goes like this (borrowed from Vint and adapted ever so slightly)

"Dear Sir or Madam,

 

Your ref xxxxxxxxxx

Re: my request under s78 of The Consumer Credit Act 1974

Thank you for your response (undated), to my above request and also your letter of (this refers to their second follow up letter).

I note that you have responded my above request, by supplying a reconstructed copy of the alleged agreement, which is perfectly acceptable, but only, of course, for information purposes.

Under section 78(1) of the Consumer Credit Act 1974, you have a duty to provide the following information, as part of the request.

a)

a copy of the executed agreement (if any) and of any other document referred to in it and

any further documents

subsequently varying the agreement

terms and conditions

as required by HHJ Waksman in his judgement in the case of Carey v HSBC

(see in particular paragraph 85). You will be aware, that where the agreement has been varied over time, a copy of the original agreement must be available and supplied. This has not been supplied in full, as all you have only provided current and what you claim to be original terms and conditions

, but no notice of variations in between, unless you wish to claim that there were none.

b)

The state of the account –

this has not been supplied

c)

The amount, if any, currently payable under the agreement by the debtor to the creditor, and –

this has not been supplied

d)

The amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor. –

this has not been supplied

I would advise, that I do not recognise the terms contained within the reconstructed agreement that you have supplied and would remind you of the OFT position on this matter, detailed below:

“The copy of the executed agreement need not be an exact copy but it must be a ‘

true copy’ and not some reconstruction of what the original might have been and it must contain the same terms as the original

. Where the terms have been varied as provided for within the agreement, the copy of the original agreement must be accompanied by a document setting out the current terms, as varied. Certain details may be omitted from the original agreement eg the

signature

but the debtor must be in no doubt as to the true nature of his obligations under the loan”

You will no doubt agree, having read the above provisos regarding s78 requests and the OFT statement, that you have yet to provide full and accurate information regarding this agreement.

As you will be aware, a reconstructed agreement must be a true and exact copy of the original, omitting only such information as the act permits. I again refer you to the excellent clarification by the OFT on this point, detailed below.

“

Should no original agreement be in existence it is very hard to say that the copy the creditor offers to the debtor is, in fact, a true copy as there would be no original with which to compare it

.

In our view the onus of proof would be on the creditor to show that the copy is a true one and where none existed he may have difficulty discharging this

.

Neither should creditors suggest that a consumer has signed a credit agreement where they are unable

to provide evidence to support this

— to do so is likely to be a misleading action under Regulation 5 of the

Consumer Protection From Unfair Trading

Regulations 2008 (the CPRs) and would also constitute an unfair or improper business practice.”

Therefore what I require is.

1.

A true copy of the executed agreement as required by the Consumer Credit Act 1974 and if varied, I require a copy of the original agreement, as the act and the law dictate, as well as copies of intermediate variations.

2.

If you maintain that the reconstruction that you have supplied, IS a true Copy of the original agreement, then I require you to state this fact in writing, signed by a duly authorised person.

3.

I also require you to confirm in writing that the “True Copy” of this agreement was taken directly from the original agreement bearing my signature. Again I require confirmation by this document being signed by a duly authorised person

4.

If you are unable to supply the requested documentation because no such agreement is in existence I require written clarification as such as the OFT require.

5.

I require that you comply with my request within 7 days of the date of this letter. I will not correspond any further with you until I either receive a copy of the requested documents, or clarification that such agreement doesn’t exist.

I am advised that should you persist in pursuing this debt while in breach or section 78 of the act and ignoring the above, you will be in breach of the provisions of the Consumer Credit Act 1974 and the Administration of Justice Act 1970 section 40 also.

No other correspondence will be accepted, and until provided I see no reason to contact your “DEBT TEAM”, as your letter of 7th June suggests I should do.

Should you attempt litigation it will be vigorously defended and the failure to supply adequate documentation under the CCA 1974 is a complete defence to any legal action and your actions will be vexatious and unlawful

I trust this outlines the situation"

Since they sent the recons, I have had another letter from them encouraging me to contact their DEBT TEAM (they used upper case, so why shouldnt I?) as you will see in the letter, to settle this matter - aye right ! - concluding that if they dont hear from me within fourteen days (they will - see above) - that I do not wish to address this matter (actually that's true. I would rather not, but they wont let me)

 

I fully expect them to come back with that they have fulfiled requirement 1. I suspect they will assert that 2 has been satisfied as well on much the same kind of argument as you got (computer records). Its numbers 3 and 4 that are going to pose them problems as if they dont have a signed document, as Enron points out they have had it. At that point they might well come back with their willingness to put the matter before a judge.

 

What would be very helpful to me Enron, and I hope others, is further information on the condition imposed by OFT on 1st credit

not to threaten legal action without the intention of carrying them out. I suppose they would reply that they did so intend but changed their mind if it came to it, but it would be useful to know something of the background to these conditions imposed by OFT. Something else to throw at them.

 

Damselfish I gonna give u a link that is currently only 10 pages long and you will get a feel for how to deal with DCA's and experiences of a particular fellow cagger whose thread it is and the input of other caggers

[means2anend]

Damselfish i reconmmend that you read this thread

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?150014-Chalkitup-v-Citi-1st-Credit

 

m2ae

[means2anend]

Maybe I'm leading a charmed life..but A simple request to Lowells c/o Cap one has led to my file today being closed..reason being''due to the length of the agreement...'' we cannot locate the original ....''

 

chins up brethren

 

m2ae

[means2anend]

If I can get my scanner to work and 'NEW POLICY' to allow me to put this up .....

 

m2ae

[means2anend]

First...

 

MgGuffick v RBS entitles them to pursue you for the debt even though they cannot enforce it..as this is just 'a step in bringing proceedings'...HOWEVER in Harrison v MBNA there is a limit to the nature of this type of harassment and it was held that in the Harrison case it amounted to torture

 

It may be possible to demonstrate that you do have an account with them as you may have actually taken money from that account...so at Common Law there may be in existence a contract...However that is not the same thing as the agreement being LEGALLY ENFORCEABLE under the Consumer credit Act 1974 and it's associated Regulations..as Acts of Parliament under the Rules of Supremacy take precedence over Common Law

 

FW have admitted that it is not enforceable...secondly, if your agreement was before 06/04/2007 then it cannot be enforced through the courts...per s189, s61,s65 s127(3) CCA 1974

 

Your request was merely a s78 request for information purposes...even then they have admitted that they do not have a signed original executed agreement...therefore how can the copy they have sent you be an 'honest and true copy' from an EXECUTED agreement.

 

In Carey v HSBC HHJ Waksman did say that the copy can be reconstructed from ' other sources that existed at the time of the executed agreement'....BUT if there is no EXECUTED agreement then it has not been legally executed properly in the first place....However he also said that this case was not about s61 issues but s78 information purposes only.

The claimants in the above case sought to bring the case and prove that creditors did not have executed agreements on the back of s78 issues when all that was required of the defendant creditors was to supply a reconstructed agreement form sources that existed elsewhere but at the time of execution of original agreement.The burden upon claimants was much higher.

 

However that letter of admission also satisfies the Kneale v Barclays requirements when seeking disclosure of original agreement in that you now have prima facie evidence instead of going on a 'fishing expedition' when BRINGING a claim under Civil Procedure Rule 31:16(2)

 

Also if your alleged agreement had any of it's terms unilaterally varied since May 06...then according to paragraphs 108 and 234 in the above case there are strict REQUIREMENTS upon the creditor/DCA to supply you that copy directly from the original executed agreement in IT'S ORIGINAL FORM...note those words at paras 108 and 234.

 

 

There may ALSO be elements of misleading or unfair practices involved here by Moorcroft if they 'suggest' that they can enforce...see here...

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?291468-Fighting-back-with-CPUTR-2008....

 

 

There is also an obligation on Lenders/'DCA's to send you a notice of assignment EU Consumer Credit Directive 2010...

 

 

 

 

SEE ALSO this extract from

 

Susan Edwards, Head of Credit Investigations and Enforcement, Office of Fair Trading May 2008 Misleading statements to debtors

 

''Sections 77 and 78 refer to supplying a copy of the ‘executed’ agreement within 12 working days of receiving a written request from the debtor. Failure to do so makes the agreement unenforceable against the debtor until a copy is provided. In addition, if the default continues for a period of 1 month the creditor is in breach of the Act.

 

Execution involves signing the agreement. If no agreement has been executed, it is impossible to supply a true copy of the agreement. Should a creditor supply a copy agreement, even though the debtor has never signed any agreement with that creditor, no indication should be given that it is a true copy or a copy of an executed agreement. To do so may contravene Regulation 5 of the CPRs and be an unfair or improper business practice.

 

The consequence of the debtor not having signed a credit agreement with the creditor is that the agreement is unenforceable except where the court orders that enforcement may take place. Where the agreement was made before 6th April 2007 the court is not able to make such an order unless the agreement was signed by the debtor.

 

Therefore it is misleading to state, when complying with a section 77 or 78 request, that the debtor has signed or would have signed (or similar) the enclosed agreement where the debtor has not done so. From 26 May 2008 such a statement will be a breach of the Consumer Protection From Unfair Trading Regulations 2008 (CPRs). Regulation 5 of the CPRs states that a commercial practice is a misleading action if it contains false information in relation to the main characteristics of the product (amongst other matters) and is likely therefore to cause the average consumer to take a transactional decision he would not have taken otherwise. The product in question is the credit agreement and the main characteristics include the ‘execution of the product’ (Regulation 5(5)(d) of the CPRs).

 

Telling a consumer that he signed such an agreement is also a misleading statement about his rights and the risks he might face as covered by Regulation 5(4)(k) of the CPRs.It is our view that it is likely that a consumer will take a transactional decision to make a payment under the credit agreement or to refrain from exercising his rights under the agreement as a result of being misled about whether he signed it.

 

Breach of Regulation 5 of the CPRs is a criminal offence under Regulation 9 and can also be enforced under Part 8 of the Enterprise Act 2002. Under section 218A of the Enterprise Act, where an application for an Enforcement Order is made the court may require the Respondent ‘to provide evidence of the accuracy of any factual claim’ (such as a claim that a debtor has signed a credit agreement).

 

In addition, it should be noted that threats to take action that cannot be taken is listed as one of the factors that will be considered in assessing aggressive practices in Regulation 7(2) of the CPRs''

 

 

 

The above would be applicable to handwritten EXECUTED signatures and online agreements where the box HAS been ticked and there has been consent for that Consumer Credit Agreement to have been TRANSMITTED (consensually solicited) to an electronic address...see below

 

You opened your account ONLINE and I think that consent to have that document 'transmitted' to you in accordance with procedure in s176A CCA 1974 might be sufficient to show that it was EXECUTED properly provided it was NOT accompanied by a pre-ticked box..OPT-OUTS are no longer treated as you having CHOSEN to tick the box.It must be an OPT-IN.

 

The Consumer Credit Act 1974 was amended by Consumer Credit ( Electronic Communications) Order 2004/3236 which inserted 176A 0n 31/12/2004 and amongst other things deals with an 'appropriate method' by which an agreement can be sent within the context of 'improper execution'

 

You say that you opened an account in May '06

 

below is an extract from that provision...

 

176AElectronic transmission of documents

 

 

(1)A document is transmitted in accordance with this subsection if–

 

(a)the person to whom it is transmitted agrees that it may be delivered to him by being transmitted to a particular electronic address in a particular electronic form,

 

(b)it is transmitted to that address in that form, and

 

©the form in which the document is transmitted is such that any information in the document which is addressed to the person to whom the document is transmitted is capable of being stored for future reference for an appropriate period in a way which allows the information to be reproduced without change.

(2)A document transmitted in accordance with subsection (1) shall, unless the contrary is proved, be treated for the purposes of this Act, except section 69, as having been delivered on the working day immediately following the day on which it is transmitted.

 

(3)In this section, “electronic address” includes any number or address used for the purposes of receiving electronic communications.]

 

 

NOTE: the wording in1©...if they do not have it in THAT form without being able to RE-PRODUCE it without any change..then they did not transmit it in the manner required.

 

To my mind that means that the INFORMATION must be able to be REPRODUCED accurately if shown in another form

 

They transmitted to you in electronic format....yet they have given you a copy in a PAPER FORMat....

 

The question IS!!!.....

 

Does the INFORMATION in that PAPER copy (form) faithfully reflect the information in the ELECTRONIC copy (form)

 

For a fuller read see here...

http://www.legislation.gov.uk/id/uksi/2004/3236

when you click on the above link you will see a number of amendments including this relevant one...

http://www.legislation.gov.uk/uksi/2004/3236/article/4/made

..and this the important part regarding electronic signatures in a box..look at section 4(2) (b) below...

 

 

Amendments to the Consumer Credit (Agreements) Regulations 1983

 

4.—(1) The Consumer Credit (Agreements) Regulations 1983(1) shall be amended as follows:

 

(2) In regulation 6 (signing of agreement)—

 

(a)In subsection (2) for “colour of the paper” substitute “background medium upon which the information is displayed”; and

 

(b)After subsection 4 insert—

 

“(5) Where an agreement is intended to be concluded by the use of an electronic communication nothing in this Regulation shall prohibit the inclusion in the signature box of information about the process or means of providing, communicating or verifying the signature to be made by the debtor or hirer.”.

 

The Amended Agreements Regulations as per SI 2004/3236 clearly expressly states that you must have INTENDED to conclude an electronic communication...and once again you/they must go back to s176A subsection 1(a) [AGREED] to see whether an intention existed in the first place quite apart from a signature...Naturally the facts surrounding your own circumstances will highlight this....s1(a)+(b)+©=AGREEMENT for transmission

 

AS to the signature itself it appears that the Regulation will not disallow ANY 'mark' provided the actual box in which that 'mark' resides in clearly explains what that mark represents(signature).

 

In effect you could put your own thumbprint in that box(to represent your signature) IF that box required it of you because the Regulation does not disallow in terms of INFORMATION as to HOW the creditor wishes the signature to be represented e.g a tick

 

rgds

 

m2ae

Edited May 26, 2011 by means2anend
change 'simple agreement' to 'consent'...

[means2anend]

Thanks for that Car2403...

 

Opening an account is not an agreement per se......but s59 only states that the agreement would be void...does not mention anything about putting parties back into position they were before the contract was 'entered into'...this would be the domain of the Common Law....and Acts take precedence over the common law.

 

However s59 is 'silent' as to monies being paid back and there is no POSITIVE EXPRESS STATEMENT in that section that monies must not be paid back.... and therefore any 'gaps' may be filled in by common law...you would be correct in that sense.

 

I was focusing on the issue of electronic signatures within context of Consumer Credit Agreements and whether a mere tick is sufficient for s61....

 

However Shelley.....says that there was no memory of even 'signing' an agreement.

 

There is also inconsistency between FW and Moorcroft.

Edited May 28, 2011 by means2anend

[means2anend]

If THEY cannot comply...then it is unenforceable..you are correct in that the DUTY is on them to supply NOT you to help them supply.

 

You should see this..this ia currently hot thread on 'challenging reconstituted agreements'

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?314597-Challenging-Reconstituted-Agreements...

 

 

 

m2ae

[means2anend]

Yes...as the account is in dispute it will continue to be so

 

- Customer loan sort code (6 digits)

- Customers loan account number (8 digits)

- Address and post code at time loan was taken (if different from above..must be correct at time of executing alleged agreement..without it they cannot present it an an 'honest and accurate copy' for information purposes.... see HHJ Waksman as per Carey v HSBC in relation to Name and Address..

[means2anend]

Hi ddelo

 

My friend has received a 'doorstep' THREAT of a visit from CALDERS..are they the same as whom you are referring to above...I do know that Barclaycard are the Original Creditors and still are in the absence of any Legal Assignement..as they state at the top of their Letter Calders debt Legal rRecovery..Liverpool..etc...I wlll be back over weekend to look over your letter...mention the costs implication to them in the event that they fail to satisfy s78 and insist on taking you still to court as Claimant and you Defendant ...see Brookes v HSBC 26th March 2011..

 

I will get you the link

 

m2ae

[means2anend]

Here is the link

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?307385-CPUTR-2008-questions-and-advice....&p=3529451&viewfull=1#post3529451

[means2anend]

They can send an alleged executed agreement without a signature pursuant to Consumer Credit Agreements Regultaions 1983...but this does not PROVE that an agreement was executed properly and legally in the first place...even more so when the agreement has been varied they are required to send a copy of the original in it's original form as well as an up to date statement of the terms as they currently are...as per HHJ Waksman in Carey v HSBC et al...and the critical words used by HHJ Waksman were 'SHALL INCLUDE[/I]'...to denote a meaning of in addition to ...rather than all the varied terms...undeleted terms... and up to date terms being ALL on one document...in this context I personally think that a request under s82 is much more apt and will cause them much more problems in adhereing to the legal requirements.

 

m2ae

[means2anend]

A mere tick in the siggy box is sufficient...HOWEVER...you can make ir difficult for them to PROVE this under Electronic Communications Act 2000 and I rhink that require an INTENT to tick that box...and that that tick WAS BY YOU...

 

I did this with a DCA on behalf of a friend and they decided to close the account it was to much bother for them.The amendment is in the CCA 1974.... credit agreements concluded online

 

s176A states the form and procedure....but in the Consumer Credit agreements Regulations 1983 there is a requirement for intent....

 

After all when hacking into someones account is so prevalent today ...it may not be disputed that a particular computer from a particular IP address was responsible but can they prove that it was NOT someone else at that address...INTENT from THAT alleged applicant needs to be proved needs....

 

This only relevant if the alleged debtor denies or cannot remember ever having ticked the sig box...

 

The amending instrument is in SI 2004/3236 the relevant section is...

http://www.legislation.gov.uk/uksi/2004/3236/article/4/made

 

Notice the point made in subsection 5...although a tick can be sufficient to show that A agreement was concluded in the MANNER required...the word INTEND is also used...the power of that should not be underestimated

Edited February 6, 2012 by means2anend

[means2anend]

Article 4 amends the Consumer Credit (Agreements) Regulations 1983 to enable agreements to be concluded electronically and to enable the creditor or owner to include in the signature box information about the process or means of providing, communicating or verifying the signature made by the debtor or hirer.

 

If there is no tick(the alleged debtors) in the box then it cannot comply with s61 a legally 'signed' executed agreement

 

IF there is NO BOX then they have not complied with FORM

[means2anend]

They probably cannot even comply with a s78 request for information as one of the requirements stated by HHJ Waksman in Carey is that amongst other things 'the address at the time which the agreement was legally executed must be correct as of that date'..(roughly speaking)

 

There may also be issues as to time limitations...

[means2anend]

Is cover letter from DCA or OC?

[means2anend]

The fact that a tick is missing...or any thing that the informatuon describes as conveying your signature amounts to the fact that in accordance with Subsection 5 of Article 4 above that iNTENT per se is lacking ...let alone YOUR intent

[means2anend]

Yes...that could be used as 'secondary evidence'....

Also a copy agreement without a tick is analgous to one sent under s78 without a signature as oer CCA 1983...but again it does not PROVE a legally 'signed' agreement...I am exploring all the angles..

[means2anend]

Answer to q.1 is Yes as long is not less than one month the previous request as per s78 CCA 1974

 

Ans to Q.2 is that the onus is upon them to give you a notice of assignment whenever a debt is sold on.however you need to distinguish whether they are still the agent of the Original Creditor or are truly the new purchasers of the debt in which case you would need to request them

 

I think I read once (but can’t remember where) that when a debt is sold the recipient does not have to provide a copy of the agreement

because when they bougt the debt it was a given that the debt was legally enforceable.

There is nothing in the ACT that expressly says this unless someone can correct me...in fact it would be MORE favourable to sell on a useless debt for 'something than to sell on an legally enforceable debt..otherwise they would have pursued it themselves for the full amount