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

[ian1969uk]

[Their address]

 

[Date]

 

[Your address]

 

Account number: xxxxxxxxxxxxx

 

Dear sir or madam

 

Request for true copy of Credit Agreement under Sections 77/78 of the Consumer Credit Act 1974

 

I wrote to you recently requesting a true, signed copy of any credit agreement that exists in relation to the above account. This is my right under Sections 77 and 78 of the Consumer Credit Act 1974 on payment of the statutory fee of £1.00. This payment was included with my original request.

 

Under the terms of the above Act, a creditor has 12 working days to provide the requested document. Should they fail to do this, they have a further calendar month to rectify this default. Failure to comply within these timescales is a criminal offence.

 

Both of these deadlines have now passed and I have received nothing in relation to my request. This can lead me to only one conclusion, that being that no signed credit agreement exists in relation to this account.

 

As I am sure you are aware, an agreement that does not contain all of the prescribed terms, and/or is not signed by the debtor, is completely unenforceable, even in a court of law. This will be a complete defence to any court action that you may consider taking.

 

On the advice of the Financial Ombudsman, I am now requesting a final decision in this matter from you. Should this decision not meet with my satisfaction, then I will pursue the matter through the Ombudsman. The maximum timescale for you to give a final response to any complaint is 8 weeks. This time runs from the date of my original complaint, in this case that is the request for a true copy of the credit agreement. Therefore, you must provide me with a final response in this matter, including your proposed actions for this account, by [insert date].

 

Please note, you may also consider this letter a statutory notice under Section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect. This means you must remove all information regarding this account from your own internal records and from my records with the credit reference agencies. Should you refuse to comply, you must within 21 days provide me with a detailed breakdown of your reasoning behind continuing to process my data. It is not sufficient to simply state that you have a ‘legal right’, you must outline your reasoning in this matter and state upon which legislation this reasoning depends.

 

There has never been any regulated agreement in relation to this account, and therefore you have never had my consent to process my data. I also do not see how you can state that you have a legitimate interest in processing my data as we have never had any contract that would enable you to do this.

 

Should you fail to respond within 21 days, I will expect that this means you agree to remove all such data.

 

Furthermore, you should remember that a creditor is not permitted to take any action against an account whilst it remains in dispute. The lack of a credit agreement is a very clear dispute and therefore the following applies:

• You may not demand any payment on this account, nor am I obliged to offer any payment to you.
  
• You may not add any further interest or charges to this account.
  
• You may not pass this account to any third party.
  
• You may not register any information in respect of this account with any of the credit reference agencies.
  
• You may not issue a default notice related to this account.

Be warned, the CCA 1974 is clear that a default can only be issued for breach of a valid, regulated agreement. If there is no agreement, as in this case, then you cannot issue a default as I have not breached any valid, regulated agreement.

 

I look forward to your final decision on this complaint within 21 days. This should include your proposed actions in relation to the lack of a credit agreement.

 

Yours faithfully

 

[Your name]

[gill5blue]

Hi

Ian thankyou, I presume there is not a template but your letter looks good.

as i have just recieved my short application form in response to my cca request to CAP1 i will be using this letter soon

Thanks again.

Maybe you could request your letter to be used as template.

Gill

[yaffsimone1]

Ok after reading many pages i have a few questions about credit agreements.

 

I have in front of me a document that is three pages in total that make up an application / agreement:-

 

 

Page 1 clearly says 'Summary of your Application' and goes onto give other waffle about credit checks and such. Now stamped right in the middle of this page is a stamp saying 'Received for and on behalf of the Issuer' A date is underneath, then under the date a little squiggle. (the issuer is Tesco Credit Card / RBS). Not anywhere on this first page are the words 'Credit Card Agreement Regulated by The Consumer Credit Act 1974)

 

Page 2. On this page the title is 'Credit Card Agreement Regulated by the Consumer Credit Act 1974). It has the debtors name and address. It has all the key financial information. APR, Timing of payments, amount of payments, other information, how charges are calculated etc. There is not a credit limit.

 

Page 3 there is key information namely default charges which are all set at £20.00. It says missing payments will affect your credit file, theft loss or misue of the card, and a right to cancel. The right to cancel says 'Once you have signed this agreement you will have a shorty time in which you can cancel it. We will send you exact details of how and when you can do this' Under the right to cancel box is the signature of the debtor.

 

Now to me this seems like it is an enforceable agreement. But want i want to know is even though Tesco have been in default and committed a criminal offence they have produced an agreement that may be enforcable but is it only enforcable by the court?

 

Should thier 'signature' or stamp be on the same page that refers to the agreement and signature of the debtor? (It is currently on the application page)

 

The charges are unlawfull so doesn't this automatically render the agreement unenforcable as under contract law for a contract to be legally binding the purpose of the agreement must not be illegal?

 

Is a application / agreement acceptable under the CCA 1974?

 

Does it make a difference that the detailed statement of account that was requested with the CCA was not supplied?

 

All of this was probably answered somewhere but CAG has grown so big it takes ages to find anything.

 

Maybe i am being a tad pedantic but hey why shouldnt i be!

[so*fed*up]

Ok after reading many pages i have a few questions about credit agreements.

 

I have in front of me a document that is three pages in total that make up an application / agreement:-

 

 

Page 1 clearly says 'Summary of your Application' and goes onto give other waffle about credit checks and such. Now stamped right in the middle of this page is a stamp saying 'Received for and on behalf of the Issuer' A date is underneath, then under the date a little squiggle. (the issuer is Tesco Credit Card / RBS). Not anywhere on this first page are the words 'Credit Card Agreement Regulated by The Consumer Credit Act 1974)

 

Page 2. On this page the title is 'Credit Card Agreement Regulated by the Consumer Credit Act 1974). It has the debtors name and address. It has all the key financial information. APR, Timing of payments, amount of payments, other information, how charges are calculated etc. There is not a credit limit.

 

Page 3 there is key information namely default charges which are all set at £20.00. It says missing payments will affect your credit file, theft loss or misue of the card, and a right to cancel. The right to cancel says 'Once you have signed this agreement you will have a shorty time in which you can cancel it. We will send you exact details of how and when you can do this' Under the right to cancel box is the signature of the debtor.

 

Now to me this seems like it is an enforceable agreement. But want i want to know is even though Tesco have been in default and committed a criminal offence they have produced an agreement that may be enforcable but is it only enforcable by the court?

 

Should thier 'signature' or stamp be on the same page that refers to the agreement and signature of the debtor? (It is currently on the application page)

 

The charges are unlawfull so doesn't this automatically render the agreement unenforcable as under contract law for a contract to be legally binding the purpose of the agreement must not be illegal?

 

Is a application / agreement acceptable under the CCA 1974?

 

Does it make a difference that the detailed statement of account that was requested with the CCA was not supplied?

 

All of this was probably answered somewhere but CAG has grown so big it takes ages to find anything.

 

Maybe i am being a tad pedantic but hey why shouldnt i be!

 

Hiya,

 

Is it the same as this one of mine(#7777): http://www.consumeractiongroup.co.uk/forum/general/33174-consumer-credit-act-agreements-389.html

 

If so, it looks like it's enforcable

[yaffsimone1]

Hiya,

 

Is it the same as this one of mine(#7777): http://www.consumeractiongroup.co.uk/forum/general/33174-consumer-credit-act-agreements-389.html

 

If so, it looks like it's enforcable

 

 

Thank you for that, i was in fact trolling the pages of that thread but didn't quite get 300 odd, was getting a bit fidgety!

 

It looks like it is the same, out of a three page document the first is an application the last two are agreements. I realised it was probably enforecable when i saw it but i thought i'm buggered if i'm going to let this go without a fight considering it has taken them since April to provide it. I would love to hear them explain to the judge why it took them so long! ( can you have an application and agreement in the same document?)

 

what is bugging me is the fact that the charges in the agreement are unlawful so that should make the agreement unenforcable:? ( i refer back to my bit about contract law)

 

I will try my luck, i cant see what i got to lose, they have given me until the 8 August to respond...how nice of them

 

What avenue did you take after receiving yours?

[yaffsimone1]

I'm sure i read that even if they produce the agreement after the 12+2+30 days the fact they have committed a criminal offence means it can only be enforced with a court order.

[rory32]

They don't need to provide a credit limit as long as they put in a general statement like "we will from time to time determine your credit limit". They do however need to tie the two pages of the agreement together.

 

Also to be enforceable they would have needed to sign and date the agreement.

[yaffsimone1]

They don't need to provide a credit limit as long as they put in a general statement like "we will from time to time determine your credit limit". They do however need to tie the two pages of the agreement together.

 

Also to be enforceable they would have needed to sign and date the agreement.

 

 

This is what i am trying to find out. They have not signed or dated the agreement element of the document they have rubber stamped the application.

 

I dont see why though this company should be allowed to enforce a debt when they have committed a criminal offence!

[yaffsimone1]

Please can somebody with any legal knowledge on the CCA 1974 have a look at my questions:-

 

 

Tesco have been in default and committed a criminal offence but now they have produced an application / agreement is this only enforcable by the court?

 

Should thier 'signature' or stamp be on the same page that refers to the agreement and signature of the debtor? (It is currently on the application page)

 

The charges are unlawfull so doesn't this automatically render the agreement unenforcable as under contract law for a contract to be legally binding the purpose of the agreement must not be illegal?

 

Is a application / agreement acceptable under the CCA 1974?

 

Does it make a difference that the detailed statement of account that was requested with the CCA was not supplied?

[monopoly23]

The charges were only unlawful if they were set at £20 AFTER the OFT decided they should be £12.

It is only enforceable on the order of the court, but I would think if all the required info is there, they would probably win.

 

Don't know about the rest sorry.

[yaffsimone1]

The charges were only unlawful if they were set at £20 AFTER the OFT decided they should be £12.

It is only enforceable on the order of the court, but I would think if all the required info is there, they would probably win.

 

Don't know about the rest sorry.

 

Thank you....

 

But I tend to disagree with the charges bit..... The charges have always been unlawful if they were only unlawful after OFT stepped in then no-body will be able the 6 years worth of previous.

 

I have since found out that the creditors signature MUST be on the agreement document along with the signature of the debtor. The creditors stamp on my document is on the application and is only a received stamp therefore it is improperly executed.

 

They may win in court but not untill i put up a stinking fight has to how they have committed a criminal offence, withheld information, tried to enforce an improperly executed agreenment and applied unlawful charges

[monopoly23]

Yes the charges have always been unlawful if they were at £20 or £12 but that alone doesn't make the agreement illegal or unenforceable, thats what I was trying to say. You can still claim them back.

[yaffsimone1]

Yes the charges have always been unlawful if they were at £20 or £12 but that alone doesn't make the agreement illegal, thats what I was trying to say. You can still claim them back.

 

 

Getting a little too excited!! I have been informed the charges are not illegal, they are unlawful, which is a very significant difference. Also, the CCA overrides contract law.

 

The fact remains that they have not executed the agreement so therefore they need to explain how they complied with s63.

 

Also, they did not send me a copy of my cancellation rights, all they said was is that they would do so (which they haven't)

[so*fed*up]

Thank you for that, i was in fact trolling the pages of that thread but didn't quite get 300 odd, was getting a bit fidgety!

 

It looks like it is the same, out of a three page document the first is an application the last two are agreements. I realised it was probably enforecable when i saw it but i thought i'm buggered if i'm going to let this go without a fight considering it has taken them since April to provide it. I would love to hear them explain to the judge why it took them so long! ( can you have an application and agreement in the same document?)

 

what is bugging me is the fact that the charges in the agreement are unlawful so that should make the agreement unenforcable:? ( i refer back to my bit about contract law)

 

I will try my luck, i cant see what i got to lose, they have given me until the 8 August to respond...how nice of them

 

What avenue did you take after receiving yours?

 

Hiya

 

I'm about to send them an offer of monthy payment I think - it won't be much ££ per month, but it truly is all that I can afford at the moment. They're currently threatening to take me to court as I haven't paid anything for a while. I've been asking pretty much the same questions as you on the forum, but I've received conflicting info about whether or not it matters that they haven't signed the agreement (is it an agreement or an application form ). Though the majority of replies have said that it IS an agreement, and their sig wouldn't be needed for the courts to enforce it.

 

So, I'll await the replies to your questions with baited breath!! I really need to contact them in the next couple of days though.

 

Keep in touch with how you get on

[yaffsimone1]

Hiya

 

I'm about to send them an offer of monthy payment I think - it won't be much ££ per month, but it truly is all that I can afford at the moment. They're currently threatening to take me to court as I haven't paid anything for a while. I've been asking pretty much the same questions as you on the forum, but I've received conflicting info about whether or not it matters that they haven't signed the agreement (is it an agreement or an application form ). Though the majority of replies have said that it IS an agreement, and their sig wouldn't be needed for the courts to enforce it.

 

So, I'll await the replies to your questions with baited breath!! I really need to contact them in the next couple of days though.

 

Keep in touch with how you get on

 

Hold fire with that letter, it may have the prescribed terms but if it is not signed it is improperly executed.

 

Here is a quote from a knowledgeable source:-

 

There has been some debate as to whether an agreement that contains all of the prescribed terms and is signed by the debtor but NOT by the creditor comes within the category of agreements that might be enforced by a court under s127(3):

(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with _unless a document_ (whether or not in the prescribed form and complying with regulations under section 60(1)) _itself containing all the prescribed terms of the agreement was signed by the debtor or hirer_ (whether or not in the prescribed manner).

My opinion is that if the agreement has not been signed by the creditor then it has never been executed at all and as **** says, how can a creditor possibly have complied with s62 or 63?

Also, IMO the creditor is never going to be able to comply with an s77/78 request because the requirement is for a copy of the _executed_ agreement - so the debt will remain unenforceable.

I will PM you

[so*fed*up]

Hold fire with that letter, it may have the prescribed terms but if it is not signed it is improperly executed.

 

Here is a quote from a knowledgeable source:-

 

There has been some debate as to whether an agreement that contains all of the prescribed terms and is signed by the debtor but NOT by the creditor comes within the category of agreements that might be enforced by a court under s127(3):

 

(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with _unless a document_ (whether or not in the prescribed form and complying with regulations under section 60(1)) _itself containing all the prescribed terms of the agreement was signed by the debtor or hirer_ (whether or not in the prescribed manner).

 

My opinion is that if the agreement has not been signed by the creditor then it has never been executed at all and as **** says, how can a creditor possibly have complied with s62 or 63?

 

Also, IMO the creditor is never going to be able to comply with an s77/78 request because the requirement is for a copy of the _executed_ agreement - so the debt will remain unenforceable.

 

I will PM you

 

Fantastic - will wait to hear from you then

 

If I'm not quick to reply, it's cause of the kids , but I'll get back to you asap!

 

Thanks for helping me

[Boon72]

ok here's one for you all to ponder, what if you never signed a loan form, you just called them up and they gave you the money 2 days later?

[Josie8]

Then thye would be stuffed wouldn't they!

[rory32]

Congratulations Boon72 on your first post, but why has it taken you 15 months?

[Boon72]

i didnt remember joining

[bathgatebuyer]

Hi - currently the Halifax have failed to provide me with the CCA requested by me in April, and have since written to me to tell me that they are not revoking the charges and interest they have added to my account during the period of their failure to provide this. They are insisting that monthy payments be made.

 

Can anyone highlight which part of legislation prohibits them from adding additional sums to my accounts during the period of their default?

[Josie8]

Hi - currently the Halifax have failed to provide me with the CCA requested by me in April, and have since written to me to tell me that they are not revoking the charges and interest they have added to my account during the period of their failure to provide this. They are insisting that monthy payments be made.

 

Can anyone highlight which part of legislation prohibits them from adding additional sums to my accounts during the period of their default?

 

Send a 14 day LBA for refund of interest charges etc imposed during period of default. State that under cpr46.1 you are asking disclosure of agreement & that you will be making court to make a declaration as to the enforceability of agreement. Then 14 days later issue N1.

 

If they do produce a true copy of the executed agreement prior to court then just amend claim for interest charged .

 

If they are in default for that period they are not entitled to enforce the agreement.

 

Court action will kerp the account in dispute & should focus their mind

[redsue]

great idea Josie8 - may try that with MBNA

 

Section 78(6) of the Consumer Credit Act 1974, states – (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.

[redsue]

nearly forgot!

laughable reply back from MBNA regarding my ongoing CCA issue with them if anyone would care to comment

http://www.consumeractiongroup.co.uk/forum/mbna/81907-mbna-ding-ding-round-3.html#post984080

[bathgatebuyer]

Cheers! I think I will do just that - always good to stick it right up 'em!