CCA's and Dave against the world !!!

[shane5408]

Hello Dave,

 

Looks like your having heaps of fun taking on the financial institutions world! I am currently fighting monument, natwest and capital one for my charges back. I read your thread earlier on noticed a particular letter that monument sent to you in relation to the CCA agreement not being valid they said:

 

''Dear Mr firewalker

Thank you for your letter dated 2 April 2007.

We note that you consider the documentation sent to you in our letter of 27 March 2007 not to satisfy section 78(1 )(a) of the Consumer Credit Act (“the Act”).

 

True Copy

Section 78(1) of the Act states that, amongst other things, the creditor shall give the debtor a copy of the executed agreement. The Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (“the Regulations”) provide that any copy of the agreement supplied to a debtor should be a ‘true’ copy. Regulation 3(2) provides that a copy may omit certain information, including the signature box, signature and date of signature. g

The copy provided by us to you is a ‘true’ copy even if the signature box and/or signatures are not included. ''

 

In particular the bold part is what interested me, as I'm sure you know all of Monuments CCA agreements are simply 'rapid reply type applications' that only contain the customers name address, signature and NO signature from monument, only a stamp which is dated!! I was hoping to challenge the validity of my CCA on these grounds. I was under the impression that the CCA had to have signatures from both parties. However, if what they said in the above letter is true and certain info can be omitted, well there goes my argument!! Some clarity would be most welcome!!!

 

kind regards,

shane

 

 

[shane5408]

Wow, that some answer!! It'll take me a while to digest all of that I think! So what it all comes down to is that regardless of whether or not they are 'allowed' to send a CCA which omits certain info they must have the original which does have their signature in order to enforce it.

 

you mentioned that:

 

'the consequence of IMPROPER execution is that they have to go to court to get it enforced'

 

I'm guessing that there is going to be a fee for them to do this, do you know how much it will cost them? Just thinking along the lines that my balance with them isn't huge and if it costs them a fair bit to have to enforce it they may chose not to.

 

kind regards,

shane

[shane5408]

Hey Dave,

 

thats great news about monument! did they not respond to your claim in the necessary time period and you entered judgement against them?

 

I'm also fighting monument, filed my claim a few weeks ago and they had until last fri 13th (of all days!!) to respond which they didn't S I've sent in a request for judgement to my court.

 

In relation to them changing your account to a barclays one i thought that they were taken over by raphaels bank? Seems a bit strange.

 

kind regards,

shane

[shane5408]

Hey Dave,

 

thats great news about monument! did they not respond to your claim in the necessary time period and you entered judgement against them?

 

I'm also fighting monument, filed my claim a few weeks ago and they had until last fri 13th (of all days!!) to respond which they didn't S I've sent in a request for judgement to my court.

 

In relation to them changing your account to a barclays one i thought that they were taken over by raphaels bank? Seems a bit strange.

 

kind regards,

shane

 

 

Ignore my last post Dave just spent the last few mins reading up on your thread and i can see You were only claiming PPI against monument. Out of interest though, did they owe you any charges as well?

 

regards,

shane

[shane5408]

you're right, i didn't read it properly!!

 

To harsh, not a chance!! I have to admit there are a few moments when i feel a bit sorry for the customer services agent whom i've just obliterated on the phone quoting this law and that literally not leaving him/her with a foot to stand on! A few seconds of feeling sorry then i remember it is the company you are dealing with not the individual and as a company of their size and standing it's utterly unacceptable for them to expect us to sit back and accept whatever charges or violations of the law they undertake. To harsh you say, NEVER!!

 

As you said with them holding a Consumer Credit license having a judgement of any kind against them probably wouldn't bode well for their future and i would think that for that reason alone they would want to settle ASAP!!

[shane5408]

I agree with Dave. There is plenty of information available on here. If you are not sure of anything just ask. You will get the TRUTH on here. Certainly any 'advise' you get from a DCA will be far from unbiased.

 

DCA's, tusk, tusk. I remember when I would quake in my boots whenever a DCA called me! One even threatened to advertise my debt in the local papers unless i paid up!!

 

Not anymore though; with the help of CAG there's always a solution!

[shane5408]

Didnt we all. The threats and sleepless nights I endured because of their lies. Now they are the ones with the sleepless nights as their Bully bonuses are decreasing. What a horrible job:lol:

 

 

 

"Bully Bonuses!' Such a fitting term!!

[shane5408]

Hi Dave , ODC and everyone else who wants to help! I was hoping you could have a look at my thread at:

http://www.consumeractiongroup.co.uk/forum/natwest-bank/101587-shane-natwest-credit-cards.html

 

and let me know your thoughts on the letter I want to send. I'm trying to challenge the CCA that Natwest, monument and several others have sent me!! I thought it best not to hijak your thread anymore dave!

 

kind regards,

shane

[shane5408]

Hi Guys,

 

I'm in the same situation as many of you. CCA requests sent to 5 different creditors, all sent back application forms signed by me only, not them. for the past few weeks i've been rigorously researching the legal veracity of these documents and if the alleged debt can be challenged on these grounds.

 

Where I stand at the moment:

 

The Creditors, if requested by the debtor are required under S78 (1) to provide the debtor with a copy of the executed agreement.

 

However, under the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 there is a loophole that says any copy supplied to the debtor must be a 'true' copy and that this true copy can omit certain information such as the creditors signature.

 

Then again, this 'true copy' loophole only applies to the banks doing exactly that, providing a copy to you of the agrement. They must keep a copy of the original, signed agreement signed by both them and you (if it exists that is!) In order for them to enforce it, ie have you carry on making payments, etc they need to provide a legally binding regulated correctly executed agreement which, among other things MUST contain both signatures as mentioned below in S61 (1)

 

A Regulated agreement is not properly executed unless:

 

a.) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner BOTH BY THE DEBTOR OR HIRER AND BY OR OR ON BEHALF OF THE CREDITOR OR OWNER,

b.) the document embodies all the terms of the agreement, other than the implied terms, and

c.) the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible.

 

So, in lamen terms yes they can send you a copy of the agreement omitting their signature and hide behind the 'true copy' law aformentioned above however if they do this they cannot enforce it.

 

This is the point where my confidence falters slightly. I can argue that the debt is unenforcable and stop paying them and either i can take them to court or they take me to court to resolve this. the big problem here is that, if during the case the actual agreement is produced then I am in trouble. more than likely if this happens depending on the temperament of the judge i will lose and have to pay costs for wasting the courts time.

 

So now i am researching ways to avoid having to take this risk. I also hold the belief that some creditors might use this as a strategy, send a true copy and then wait and see if the debtor challenges the debt, if he does take them to court and all of a sudden after a more thorough search provide the agreement and win!

 

I'm looking into disclosure and fraud arguments at the moment. the idea is that they have misrepresented to me and had me believe by their actions that the debt is unenforcable by providing me with their 'true copy' of the agreemnent which omits their signature even after i requested the original one. being that my claim was based solely on that and they did not provide evidence to me (being the original agreement) which, if i received would of dropped the claim they can be found guilty of fraud:

 

The Fraud Act is small as it contains only 16 sections plus 3 schedules.

 

All Theft Act deception offences are abolished to be replaced by 3 new fraud offences: fraud by misrepresentation.......f raud by failing to disclose information and fraud by abuse of position..

 

Under section 1 a person is guilty of fraud if they are in breach of any offences in sections 2,3,4.

 

Under Section 2 representation must be made dishonestly which is established under the two-stage test as set out in Rv Gosh (1982) QB 1053, 75 Cr App R 154 in which the defendant was dishonest by the standards of ordinary people

 

Subsection (1)(b) requires that the representation is made with the intention of making a gain for himself or causing a loss or risk of loss to another. Loss and gain are defined in section 5 as being money or property

 

Section 3: Fraud by failing to disclose information

18. Section 3 makes it an offence to commit fraud by failing to disclose information to another person where there is a legal duty to disclose the information. A legal duty to disclose information may include duties under oral contracts as well as written contracts. The concept of "legal duty" is explained in the Law Commission's Report on Fraud, which said at paragraphs 7.28 and 7.29:

"7.28 ..Such a duty may derive from statute (such as the provisions governing company prospectuses), from the fact that the transaction in question is one of the utmost good faith (such as a contract of insurance), from the express or implied terms of a contract, from the custom of a particular trade or market, or from the existence of a fiduciary relationship between the parties (such as that of agent and principal).

7.29 For this purpose there is a legal duty to disclose information not only if the defendant's failure to disclose it gives the victim a cause of action for damages, but also if the law gives the victim a right to set aside any change in his or her legal position to which he or she may consent as a result of the non-disclosure. For example, a person in a fiduciary position has a duty to disclose material information when entering into a contract with his or her beneficiary, in the sense that a failure to make such disclosure will entitle the beneficiary to rescind the contract and to reclaim any property transferred under it."

 

More specifically, section 3 states:

3 Fraud by failing to disclose information

A person is in breach of this section if he-

(a) dishonestly fails to disclose to another person information which he is under a legal duty to disclose, and

(b) intends, by failing to disclose the information-

(i) to make a gain for himself or another, or

(ii) to cause loss to another or to expose another to a risk of loss

Gain and Loss Specified

5 "Gain" and "loss"

(1) The references to gain and loss in sections 2 to 4 are to be read in accordance with this section.

(2) "Gain" and "loss"-

(a) extend only to gain or loss in money or other property;

(b) include any such gain or loss whether temporary or permanent;

 

My apologies for this rather long post, but i would really appreciate any feedback to the above arguments, has anyone else tried these, does anyone know of a section of subsection that can be used by the banks to dispute the arguments above etc. I'm hoping to try and set a precedent here. as i always say, i am no legal expert but it seems to me the arguments are pretty strong and backed up by UK statue law.

I look forward to your comments.

[shane5408]

Im sure your aware that a creditor had 12days plus a further 30 days to produce your agreement, if not they commit an offence.

 

So if you start court proceedings and the time limit is up, then the creditor would have to own up to fact that they have committed an offence, an offence which has a punishment fine of £2,500.

 

So if you owe them £1,500, would they rather write that off or own up, pay £2,500 in a fine and collect £1,500 from you?

 

I will be taking 2 creditors to court within the next week, neither have produced an agreement, i just want a court order saying the debt is unenforcable.

 

A judges word would be final? Well i hope it is

 

 

Hiya,

 

thanks a lot for replying, i eagerly await to hear your court outcome. My dilemma is that if the correctly executed agreement is produced during the court proceedings then the debt becomes enforable again and then you run the risk of having to pay their legal costs as well. Is there some way, some legal action/requirement that will allow me to effectively request that the creditor provide this properly executed agreeement before it is heard infornt of a judge, that way if they cannot supply it then i know that for a fact and any surprises in court the might suddenly uncover later on could be classes as inadmissable?

[shane5408]

They cannot just spring it on you on the day of a court. They would have to produce it before then to give you a chance. If they did go down the court route you could enter as your defence that they failed to comply with your request for a copy of an executed agreement. Personally I think they are bluffing with the application form ploy. Who is the DCA and what is the alleged debt for. Go ahead and say it CRAPone and RWC or Clownells

 

Actually no DCA's involved here, creditors are Capital One, Monument, Lloyds TSB and Natwest Card Centre and Solution Finance (all credit cards).

 

OK So my defence would be they failed to respond to my CCa request but did they? I mean, what they sent me was, in my opinion not a Correctly executed agreement but then under the consumer credit regulations 1983 aformentioned all they need do is provide a true copy which can omit the info. What i am worried about is if sometime down the line after i have filed my claim they claim that 'after yet more rigorous attempts at locating yor agreement we have now found it' then what, i will loose the case, run the risk of having to pay costs and more than likely have a CCj then threatened against me. I know its unlilely thay they have the correct agreement but not impossible.

 

 

If they try and produce it in court on the day then they will have to explain to court why it ewasn't produce re your CCA request. They face a fine of £2500 for the offence and you will most certainly not have costs awarded against you.

 

Actually i wasn't aware there was a financial penlalty for them not complying to my CCa request if lapsed over 30 days. i know they commit a crim offence after this time; i read somewhere that it may be possible to actually send them a default notice if they do this, is this possible? also, in regards to them commiting a criminal offence does this apply to the 'true copy' or the correctly executed agreement containing BOTH signaturs? if the latter then i think i could use it, if not then surely by supplying me what they deem to be a 'true copy' even though we know it to be simply an application form they are within the law under the consumer credit regulations 1983?

[shane5408]

hi! bluedawn

 

Once you have sent you CCA request they have 12 +2 Working Days from receipt to comply, if after this time no CCA is forthcoming then after another 30 days the Creditors are in Criminal Default and the debt becomes enforceable only by a Court Order.

 

minky xxx

 

hiya,

 

sorry but i don't think the Creditors need a court order to enforce the debt if and when they provide the CCA be it 30 days or up to 6 years after the debtor requests it. I am under the impression that as soon as they provide it the debt becomes enforcable again and the creditor is no longer deemed in default?

[shane5408]

Hopefully it wont go to court

 

Hiya,

 

yeah definitely, if they settle out of court it only strengthens our cause. In some ways i do envy you, in your case the creditor didn't provide any agreement at all which is tantamount to criminal, they really dont have a leg to stand on!

 

In my cases i've got back what they say is a true copy and are backed up by statue law. i need to prove the document is not correcly exexuted and that one does not exist; i run the risk ok them suddenly producing it suffering the reprecussions

[shane5408]

Don't know fully the legal way of saying this but if a creditor takes you to court and you defend due too previous CCA request and creditor representing application as executable agreement and you feel it not enforceable then creditor has to disclose to you copies of all documents/evidence they are going to use in court. This gives you option to withdraw and arrange payment of debt before the case get to court. If creditor produced enforceable agreement in court at last minute but not before case was in court (if a judge would allow this) then the judge would want to know why they had not produced document before entering court, and would I think be very much against awarding costs against debtor.

 

As I say this is my opinion not law.

 

dpick:mad:

 

Hi Dpick,

 

thanks for expressing your views, I like what you are saying! granted, the judge will not think kindly if the creditor, aftter numerous requests from me and before the claim was filed failed to provide the agreement suddenly produced it at a later stage in the case and may infact have the case awarded in my favour because of it.

 

Then again, the creditor could claim thay have been inundated with these requests in recent months and have now been able to locate the correct agreement. the judge might not like it but allow it to be included and base the case on those merits, in which case i'm amfraid i would be the underdog!

I know there is a lot of speculation going on here and 'ifs' and 'but's' don't allways cometo pass but i just want to understand the situation and possible consequences as best i can before i commit to it. once again, i thank you all for your comments, please keep them coming!!

 

kind regards,

shane

[shane5408]

Shane

 

After this great letter Josie's done for you, please don't come back still wearing your pessimistic hat. Think positive and be optimistic!

 

Hi Joe,

 

I don't mean to be pessimistic, just realistic! lol, I know what you're saying though and besides from all the comments i see here it really has strengthened my resolve.

 

Oh and thanks very much to Josie for that kick ass letter! Will definitely be adding that to my arsenal! I was reading a thread a few days ago and came accross this very interesting letter from the OFT, well worth a read!

 

A letter from the OFT outlining sec77-79.

Dear mr xxxx

Consumer Credit Act 1974 (‘the Act')

Our Ref: Epic/Enq/E/1760

Thank you for your email received on 31 March about your enquiry into the Consumer Credit Act Sect 77 & 78.I apologise for the delayed response.

The general effects of sections 77-79 requires the creditor/owner (in the case of a hire agreement) under an agreement for (fixed-sum credit, running account credit and hire agreement) to provide the debtor/hirer with a copy of the executed agreement and a statement of account on request.

If a creditor/owner fails to comply with a valid request within a period of 12 days (not including the date of receipt of the request) he may not enforce the agreement at all. This prevents enforcement with or without a court order. If a default lasts for a month (for example a calendar month) it constitutes an offence. We understand your concerns in this matter but please do remember however that once the creditor/owner complies with the request albeit out of time, he may once again enforce the agreement.

A ‘true copy’ of an agreement principally consists of the terms and conditions of the agreement and the statutory content of the agreement. The name, address and signature of the debtor do not have to be provided. Additionally, the creditor must supply the total sum paid under the agreement by the debtor; the total sum which has become payable under the agreement but remains unpaid; and the total sum which is to become payable under the agreement by the debtor (the latter two must include the various amounts comprised in that total sum and the date when each is/was due). However, the copy must be a copy. It need not be exact on immaterial points, but it cannot be a conjectured reconstruction. If the trader has no original copy, the trader will have difficulty showing that he has complied with the regulation by supplying a ‘true copy’, since nobody would know what was in the original. When the trader comes to enforce the debt in court, he needs to have a signed copy of the agreement in order to enforce. As the law stands currently he cannot otherwise.

We note your concerns that in the absence of a copy of the original agreement someone's liability for a debt can only lead to further query. However in circumstances like this we would view it is as unfair practice under section 25(2) (d) of the Act and relevant to licence fitness if a trader failed to investigate and/or provide details as appropriate when a debt is queried or disputed.

If you would like to make a formal complaint. Please fill in the attached complaint form.

Thank you again for writing to us.

Yours sincerely

[shane5408]

Hi Dave,

 

Sorry for hijaking your post, even though i said i wouldn't! Just needed some technical questions answered. Looks like monument really don't stand a chance, they actually wrote to you asking your permission for a setaside! priceless!

 

looks like my monument case is going down the same route as yours, i sent in judgement request last week.

 

regards,shane

[shane5408]

thanks dave really appreciate it, seems all the experienced caggers are subscribed to this thread!! Makes for some good advice. Incidentally, did you see the letter from the OFT i posted? Its good to hear the 'no signature no enforcement argument' confirmed from them, even if they won't prosecute!

[shane5408]

Sorry to sound dim or if i have missed it but what is an N1 form and where can I find one?

 

 

no worries! N1 is the alternative to MCOL for filing a claim, it can be found on the link below. I def recommend using N1, no limit on POC's and possibility of filing orders and motions later on if needed. MCOL can be quite restricted.

 

http://www.hmcourts-service.gov.uk/courtfinder/forms/n1_0102.pdf

 

regards,

shane

[shane5408]

no worries! N1 is the alternative to MCOL for filing a claim, it can be found on the link below. I def recommend using N1, no limit on POC's and possibility of filing orders and motions later on if needed. MCOL can be quite restricted.

 

http://www.hmcourts-service.gov.uk/courtfinder/forms/n1_0102.pdf

 

regards,

shane

 

ok, for some reason when i posted this daves' post previously saying the same thing didn't show up! feel free to delete!

[shane5408]

Nice response Dave! isn't it great being able to quote something useful for a change from the OFT! I was not aware you were conversing wlith Monument via email, any chance you could post or pm me any email addresses you have for them? I sent in my judgement request last week and can feel a 'pay up now or deal with bailiffs' email coming on!!

[shane5408]

The left hand doesnt know what the right is doing....

 

My monument account has apparently been transferred to a barclaycard account, complete with new acct. no.....i am arguing over this anyway.

 

got a letter from Monument this morning...here are your terms and conditions

 

jeeeeez......i could write a book

 

don't they speak to each other nowadays?

 

more fuel for the fire...lets see what the courts make of this one

 

rgds

 

Dave

 

 

Hi Dave,

 

It seems that Barclays class you as a 'good account'! From my understanding Raphaels Bank who operate under CompuCredit bought a whole lot of Monument Accounts the majority of which were classed as 'bad debt' accounts (one of which was mine!). Aparrently they specialise in providing credit to people with adverse credit ratings. Barclays kept roughy 2% of accounts, the ones that they believe are in good working order and won't cause to much trouble for them!!

[shane5408]

OK.....

 

Ive got the judgement for the monument charges as previously said..........but no cheque. The cheque had been promised in 48 hours, that was last week sometime

 

Just emailed them yesterday threatening all sorts of bad things, and expected a response (foolish really)

 

No response

 

So I will wait until tommorrrow and then send the bailiffs in

 

should be fun

 

Dave

 

hey Dave looks like i'm in the same situation judgement received though no cheque. When you mention sending in the bailiffs I assume you mean getting a warrant of execution from the local courts? As I understand it this process can take up to 4 weeks believe or not before the bailiffs even turn up to the premises! I think what might do is send a final request for payment to monument giving them a 7 days to pay up, if they don;t then i will go to a third party debt collector who can send in their 'collectors' a lot quicker all they need is proof of the judgement i believe.

 

 

For business, a statutory demand is FAR more satisfying, as if they don't pay up in 18 days, you can close the b*ggers down.

 

Not, however, a step to be taken against someone you still owe money to:)

 

Tomterm, are you referring to a winding up petition order? I'm filing mine in court next week though it has nothing to do with charges, overdraft etc, another company I used to work for that owes me money won't pay up. I would love to take down monument in the same way though they would pay up pretty quick before that happened, only downside of a winding up order is the balance you are required to pay that goes towards the official receivers deposit 860 quid!!

[shane5408]

I'm talking about a statutory demand... Statutory demands - What they are and how creditors use them .

 

Don't forget to publicise it:)

 

Ah ok, the step before the winding up order! I gave them their 21 days, no response! I will publicise in the local gazette paper.

[shane5408]

hi guys..

 

default judgement was on 5th july.......

 

well.........

 

what SHOULD I do

 

dave

 

5th of July! Ages ago! What do they think they're playing at! I would suggest you send a letter demanding payment via cheque within 7 working days else you will have the court enforce the order and send in bailiffs. For good measure also send them a filled in warrant of execution form, should get their attention i think!

[shane5408]

OK...

 

Further update. Just aske dthe court for a warrant of execution....(NO i'm not going to kill them..though...mmmmmm)

 

I have to go to court on MON and fill it in....cant get there today

 

then I'll have a look at my options.

 

heres the lates email I sent

 

......................

 

I do not know why you are prevaricating!

 

You have promised payment and it has not materialised this could be classed as breach of contract.

You have a debt to me, I have your written assurance that I would be paid by nnnnnn

This is in fact a contract. I shall be looking into the legal aspects of this

 

This seems to be a case of “WONT PAY” as opposed to “cant pay”

 

If you are having financial difficulties or are not sure what to do,

I suggest that you immediately contact a solicitor, your local trading standards or the Citizens Advice Bureaux

 

If you don’t pay a county court judgement Will be registered against you, this may make getting credit difficult.

 

I suppose you would then fail the “fitness” test to hold a consumer credit licence.

 

I suggest that you read CCA1974 s25 (2)….especially (d)

 

I shall be applying for the warrant on MONDAY 6 August without fail

 

ACT NOW!!!

 

You may fax or email your answer

 

..........................................

 

I mean it wont break the bank (so to speak) its ONLY £200....jeez why cant they just pay!!!

 

Just got the allocation to the small claims track for my PPI, 26 Sept ah well.........

 

Cant wait !! will show the court the "agreement" such as it is and ask for a decision on its enforceability as well.

 

rgds

Dave

 

Hi Dave,

 

I'm in the same situation, received judgment today against monument but it's dated 20th july! Buggers owe me 1800 quid!

Keep in mind that a warrant of execution will cost you, i think the fee in your case will be 35. as i understand it it could also take 4-5 weeks before the bailiffs even turn up to monuments premises. first they write to them and only if the ignore them for i think 21 days do they then go in person. I'm thinking about using a third party debt collection company, i'm hoping all they need to send their 'bailiffs' is proof of the judgment.

 

I've also contacted the consumer credit licensing dept of the oft and asked what the implications are for monument should they have a CCJ against them, will post the reply when i receive it