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

[DontPushMe]

Thanks for that. It's what I was hoping. The OC never sent a CCA or any statements which I thought odd but being busy running round like a blue ar5ed fly I never thought much of it. I do now...

 

DPM

[quark2009]

hey guys

please have a look at my CCAs i posted them here

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/270810-please-help-audit-my.html#post3062957

 

many thanks.

[ZENTRIX9]

I asked for a CCA and it looks like I have an unenforcable agreement. I am sending the dispute letter today. Do I now send an SAR letter?

Also I have noticed that on another CCA request I have sent for they have credited the £1 to my account. Is there a letter I can send them?

[means2anend]

what makes you think it is unenforceable?

[ZENTRIX9]

Its got no prescribed terms and its an application form.

[car2403]

I asked for a CCA and it looks like I have an unenforcable agreement. I am sending the dispute letter today. Do I now send an SAR letter?

Also I have noticed that on another CCA request I have sent for they have credited the £1 to my account. Is there a letter I can send them?

 

There isn't really anything else that you need to do, other than wait to see what their next action is - you may need a harassement letter template if they continue after your dispute letter

 

As for the SAR, it's belt and braces, really, as they should divulge everything relating to your as a Data Subject - including anything they 'may' have with held in your CCA response. It's also useful to reclaim any unlawful charges they may have applied.

 

The CCA payment is there for them to do with what they want - the Act requires a £1 payment to cover admin costs of replying, it shouldn't be used as a payment towards the account though. Watch out for this if it's a statute barred debt - that £1 payment should not be considered acknowledgment of the debt, thereby resetting the 6 year SB deadline. It's very sneaky, incredibly devious and probably totally unfair treatment of customers if that is the case.

[ZENTRIX9]

Thanks for that. I sent off the "in dispute Letters" for myself and my wife (7 cards in total) £37K.

A couple have credited the one pound to the account so I will send them a letter about the statute barred and demand it is taken from my account. Also sent the harrassment letter to 3 of them that are calling us all the time. I even get calls at work now! So I have also added they cant call at my home or I will take it that they are tresspassing.

I have done lots of reading on this site and thanks to CAG I have learned a lot and am a lot wiser in the laws and tactics that they use and abude.

My next step will be to send the SAR letter to see what they have not disclosed.

I am not sure if all the cards are unenforcable but I am gonna make it very difficult for them to get the money.

All my life I have played by the rules and nearly worried myself into an early grave! it stops now and I am gonna play them at their own game and they can see what a devious little sh*t I can be.

 

Thanks CAG for enlightening me that there is hope!

[means2anend]

If you want them to stop calling you ,you can register free for 0871 or 0845 numbers which keep your mobile and landline anonymous..and make money every time they call you..I learnt of this by kind courtesy of Tina Turner

 

here is the link

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?254345-letter-from-Egg

 

READ from POST 48 to 61

 

rgds

 

m2ae

Edited August 19, 2010 by means2anend

[trevor33]

I am confused........can a DCA take you to court without a "copy" of a credit agreement as long as they have sent you a copy of an "APPLICATION" form which has your signature on it and they included some T&c's. This was for a Credit Card from years ago.

[paulwlton]

I am confused........can a DCA take you to court without a "copy" of a credit agreement as long as they have sent you a copy of an "APPLICATION" form which has your signature on it and they included some T&c's. This was for a Credit Card from years ago.

 

In a nut shell yes. Some claim that the application is the agreement and some claim that the prescribed terms were on the reverse.

[trevor33]

In a nut shell yes. Some claim that the application is the agreement and some claim that the prescribed terms were on the reverse.

Thanks for the reply.

I have been dealing with RW and HF for some time over this and the latest upshot is they have sent this for litigation and they will make no further contact.

[putupon12]

I was under the impression that if they take you to court thet have to produce theactual signed agreement not an application form.

[trevor33]

So was I. So how can they claim that the prescribed terms were on the back, surely they have to prove that.

[putupon12]

i think under the 2006 changes to the act they can produce a mock up but at court they still need the original agreement.agreements taken out before 2004 need to have the prescribed terms and signatures dont they???

[means2anend]

For enforcement in court they need to prove execution took place s61

 

s77/78 reconstructions are for information purpose only as per Wakman in Carey....they will need to satisfy s61 in court to enforce...if not then s127(3) kicks in.

 

What you have will probably not be evidence to satisfy s61.

 

m2ae

[means2anend]

I was under the impression that if they take you to court thet have to produce theactual signed agreement not an application form.

 

To take you to court they will have to show that an EXECUTED agreement took place sometime in the past.

 

Simply taking you to court on a reconstituted agreement that satisfies the requirements in Carey will be insufficient

 

They cannot start spouting Carey as any authority for proof of execution.

 

HHJ waksman clearly stated in the opening paragraphs of that judgement that this case was not concerned with s61 but only what the lenders/creditors could do in the event of a request under s77/78

 

Enforcement issues were dealt with in depth in the Mguffick case...in which reprting to CRA's did not amount to enforcement but that bringing proceedings 'was a step' in relation to enforcement but that judgement would not be obtained as that would amount to enforceability.

 

Therefore whilst they can threaten bring proceedings if they cannot prove execution Judgement will not follow.

 

However for them to EVEN threaten to bring proceedings certain conditions must exist under OFT collection activity guidelines otherwise they risk falling foul of the Consumer Protecti0on From Unfair Trading Regulations 2008 [CPUTR REGS 2008]

 

m2ae

Edited August 27, 2010 by means2anend

[trevor33]

To take you to court they will have to show that an EXECUTED agreement took place sometime in the past.

 

Simply taking you to court on a reconstituted agreement that satisfies the requirements in Carey will be insufficient

 

They cannot start spouting Carey as any authority for proof of execution.

 

HHJ waksman clearly stated in the opening paragraphs of that judgement that this case was not concerned with s61 but only what the lenders/creditors could do in the event of a request under s77/78

 

Enforcement issues were dealt with in depth in the Mguffick case...in which reprting to CRA's did not amount to enforcement but that bringing proceedings 'was a step' in relation to enforcement but that judgement would not be obtained as that would amount to enforceability.

 

Therefore whilst they can threaten bring proceedings if they cannot prove execution Judgement will not follow.

 

However for them to EVEN threaten to bring proceedings certain conditions must exist under OFT collection activity guidelines otherwise they risk falling foul of the Consumer Protecti0on From Unfair Trading Regulations 2008 [CPUTR REGS 2008]

 

m2ae

Wow. I am glad that you answered my query m2ae. I was beginning to panic in that they could take me to court with only copy of an application form. I have had a bad experience with a judge who was biased before the case even started. I thought that the judiciary were there to help litigants in person as they were not familiar with court proceedings........not so.

[trevor33]

So what would be my next step if they decided to go to court.....hoping I would give in.

T33

[means2anend]

If they DID go to court they would not be able to prove execution took place...therefore I would just sit back and let them do all the hard work...The burden is on them....

 

Where debtors have fallen into difficulties is when they (the debtor) decide to take it to court..

 

The problem here is that in order to show that execution did NOT take place the burden now falls on the debtor and to prove something that did not take place is a very difficult threshold to overcome...and until Kneale...it was thought that making an application for the Originally signed EXECUTED agreement to be brought to Court or the lack of it was simply an application under CPR 31:16 in the hope that by default the lender could not show execution took place...

 

BUT...in Kneale it was said by the Judge that this was a mere 'fishing expedition' and that for debtor to succeed s/he had to support his/her application with prima facie evidence...

 

If THEY bring the case to Court you will not have to be damned to show the lack of existence of the executed agreement but that THEY will HAVE to in order to proceed to Judgement to prove the existence of the same...OR you then can use 31:14 and 15 for further information...i.e the original executed agreement AND if they then cannot provide you with one you have then achieved the same outcome that would have been the case under 31:16 without having to provide supporting evidence.

 

Hope that makes sense.

 

Just sit back for the meantime...

 

If all they have is the application form then USE the application form itself as the 'supporting evidence' for an application under 31:16 to state that that is NOT proof of execution under s61... OR maybe even a strike out ..Or as I said above 31:14 31:15 for further information because you are not now fishing

 

Here is a link to an excellent thread unless you are already subscribed to it...

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?173201-why-you-shouldnt-use-section-77-78-CCA-1974-if-you-want-the-signed-agreement

 

m2ae

Edited August 28, 2010 by means2anend

[means2anend]

So what would be my next step if they decided to go to court.....hoping I would give in.

T33

 

 

Also take note of the following extract form the OFT

 

 

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

 

 

rgds

 

m2ae

[freethemice]

Unless you are very legaly savvy I would advice caution in these matters. Look at the long term best result. Try to settle for a reduced amount without admitting anything.

These cases are not as straightforward as some would lead you to believe and alot of it is down to the judge to assess wether he/she is satisfied an agreement was signed. Be prepared to be asked how did this disadvantage you? Why you think you can avoid your debt on a technicallity.

Please do not take advice on these forums as gospel. Always check and if possible pay for a little legal advice.

[means2anend]

FTM

 

Your advice is sound...and like everything preparation IS the key....It is correct that if an agreement cannot be shown to have executed this does NOT mean that there is NO contract...They will fall back on the common law to show that there is an agreement via other avenues BUT if s61 is not satisfied s127(3) takes precedence over any common law and that section plainly states that the courts have no power to enforce....but that of course depends on when the alleged agreement came into existence.

 

m2ae

[trevor33]

Thanks FTM and m2ae.

I still think that these cases are down to the judge lottery.

The account in question was about 2000.

T33

[trevor33]

I received this today from a DCA with regard to a CC about 10 years old.

 

"Please note that DCA is only required to provide you with an agreement whch is compliant to the Consumer Credit (Cancellation Notices andCopies of documents) Regulations 1983.

 

Persuant to these regulations, we are required to provide you with a 'true copy' of the agreement. Specifically I would refer you to Regulation 3(2) which states that the agreement is not required to be an exact replica of the original document but may omit certain information including any signature box, signature, or date of signature.

 

We consider that this document fulfils our legal requirement and that this debt is now enforceable"

 

The "agreement" contained the following:

 

Their address

My address

Important - You should read this carefully - Your Rights

Financial and Related Particulars

(general bits and bobs)

APR

Loss or misuse of card.

T&Cs (8 pages)

 

Anyone know how I should respond to this or should I just wait for them to go legal?

T33

[putupon12]

they should only supply a recon if they actually have the original,and they are breaking the law if they intimate they have the original when they dont,The dca will quite often try this tack into getting people to accept the debt.You could ask them why if they have the original they cant just photocopy it and send it to you.I my self would wait for their next communication though.