SLC Cannot Supply The Original Agreement

[angry cat]

I agree.

 

 

 

No, sorry, you are plain wrong here!

 

If the lender sent a document, even if it's unsigned and doesn't have a signature box then they HAVE complied. The CCA 1974 was amended by the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1984 (the CNCD), Section 3(1) and (2) [expurgated] of which states:

 

"(1)...... every copy of an executed agreement........ or other document referred to in the Act and delivered or sent to a debtor...... under any provision of the Act shall be a true copy thereof.

 

(2) There may be omitted from any such copy-

 

(a) any information included in an executed agreement ..... relating to the debtor......

 

(b) any signature box, signature or date of signature .....

 

So a "copy" of the agreement, so long as it contains all of the statutory terms and conditions does not need to be signed nor does it need to have any of the debtors details.

 

 

 

Very likely true but it doesn't change the fact that the lender has complied with S77/78.

 

Pete

 

I understand what you are saying Re:

(2) (a) (b)

However (1) states -

"(1)...... every copy of an executed agreement........ or other document referred to in the Act and delivered or sent to a debtor...... under any provision of the Act shall be a true copy thereof.

 

"A TRUE COPY"

 

How could a template of Credit Agreement be considered to be "A true copy of the executed Agreement".

 

You are probably right but it doesn't make sense to me. I think that we all need to obtain a legal opinion on the exact interpretation/view.

 

As you guys know, I have informed TS that MS are in breach of The Act. No doubt TS will contact me after christmas with their opinion which may help us all.

 

Love AC

[paulwlton]

Quote:

Originally Posted by paulwlton

Just received a threatening phone call from Barclaycard.

I made a CCA request in early October so i beleive they are in default and have commited an offence, i explained why i've stopped payments.

 

They have defaulted my account today.

 

That sounds remarkably like enforcement action Paul, Time for you to have words with Trading standards I think.

 

I made the nasty little lady aware that i shall be contacting the relevant authorities.

 

Barclaycard seem to think that a court will enforce an agreement which has not been signed,

 

If they default me today, get ready for a fight nasty little lady.

[soli2006]

"A TRUE COPY"

 

How could a template of Credit Agreement be considered to be "A true copy of the executed Agreement".

 

You are probably right but it doesn't make sense to me. I think that we all need to obtain a legal opinion on the exact interpretation/view.

 

I'm no legal-eagle and i have to confess that all this quoting of various laws makes my head spin, but i fail to see how a template of an agreement can have any legal standing. They've simply taken a blank form, stuck my name on it, filled in some numbers and PRESTO 'we have sent a true copy'. I could start a nice little business like that: pick a name out of the phone book, send them a demand for money, present a 'true copy' of an agreement, just as my creditor has, & say they must pay. It mystifies me. If this goes to court, will the courts enforce an agreement where no signed copy exists? How can they? Can i refuse to pay until they find what i want or the courts decide otherwise? CONFUSED!!!

[paulwlton]

Just contacted trading standards, apparently they are still in their rights to register a default but cannot enforce the debt whithout a copy of the agreement.

 

Barclaycard have commited an offence and i want to prosecute them, i think someone needs to take these bully boys to court and i think it just might be me.

[soli2006]

Just contacted trading standards, apparently they are still in their rights to register a default but cannot enforce the debt whithout a copy of the agreement.

 

More confusion. As I understand things, the debt can remain 'live' yet is unenforceable as without a signed contract, there is no contract. BUT - right at the beginning of this thread there was a poster (baconbuttyman i think) who found himself in just that situation yet had the debt reduced to zero, all defaults & negative references to the debt removed from CRA files, and had his payments returned. Everyone seemed to agree at that time that this was just as it should be - no agreement=no contract=never any debt in the first place=any payments taken to be returned/defaults etc removed. Now it seems that the general consensus is that although not being able to produce a signed agreement renders the debt unenforceable (and presumably uncollectable), its stays 'live' & can remain on your credit file. Which is it? They can't both be correct. EVEN MORE CONFUSED!!!

[noomill060]

Paul- Have a read through the whole of this thread. I found this letter but I'm sure there are better ones.

 

 

 

your bank plc

rip off st

tosserland

uk

 

16/06/2006

 

Letter Before Action

 

Dear Sir/Madam

 

I do not acknowledge ANY debt to your company. I require you to supply the following documentation before I will correspond further on this matter.

 

1. You must supply me with a true copy of the alleged agreement you refer to. This is my right under your obligation to supply a copy of the agreement under the legislation contained within s.78 (1) Consumer Credit Act 1974 (s.77 (1) for fixed sum credit) - your obligation also extends to providing a statement of account. I enclose a £1 postal order in payment of the statutory fee, PO Serial Number xxxxx.

 

2. A signed true copy of the deed of assignment of the above referenced agreement that you allege exists.

 

3. You are notified that you were obliged to supply these documents, whether you are the original creditor or not under S189 of the CCA 1974.

 

You had 12 days to comply. After 30 days of non-compliance you were in criminal beach of the CCA 1974.

 

Non-compliance with my request is a criminal offence under the above Act and will result in a report being submitted to the relevant statutory authorities.

 

Failure to provide the requested information is a criminal offence punishable by upto a £2500 fine and/or six months imprisonment

 

As you are aware, a credit agreement that is not properly documented and signed by the customer is totally unenforceable under the CCA and therefore is a complete defence to any court claim that is issued.

 

Take note at this stage, that any legal action you may contemplate will be both vigorously defended and contested.

 

 

Yours faithfully.

 

 

 

 

Paul

 

 

change it to your needs (but not too much)

[rosierose]

You and me too, Paul.

 

I recently sent a letter to a DCA that that ignored my CCA request and on reminding them that they had commited an offence were conveniantly completely unable to trace any record of me what-so-ever. Where do they get the gall???

 

Incidently, I spoke to a consumer law solicitor last week who was of the opinion that once the offence was committed under the Act court enforcement of the agreement was very unlikely and it was a case of my either considering the matter settled or going for repayment.

[noomill060]

Yes, the debt remains- but the agreement CANNOT be enforced.

 

(And the creditor has committed a criminal offence and could be sent to jail if he cant give a judge a damn good explanation.)

 

Hence creditors tend to fight shy of any further action, apart from defaulting you.

 

You could also report them to the OFT for their criminal default and take them to court to have EVERY PENNY returned which you paid them under the agreement.

[noomill060]

rosierose-

 

it matters not whether the company can find any trace of you request.

 

If you can prove the letter was delivered and signed for by them, (such as by Recorded Delivery) and can prove that you paid them the £1, (keep a record of the serial number of the Postal Order you send)

 

If you can produce this as evidence that you requested a CCA s.77 request, the creditor may as well admit they are lying to the court, admit they have no explaination as to why they cant produce the true copy and then take themselves off to jail for six months.

[soli2006]

Yes, the debt remains- but the agreement CANNOT be enforced.

 

(And the creditor has committed a criminal offence and could be sent to jail if he cant give a judge a damn good explanation.)

 

Hence creditors tend to fight shy of any further action, apart from defaulting you.

 

You could also report them to the OFT for their criminal default and take them to court to have EVERY PENNY returned which you paid them under the agreement.

 

Well, i have written again asking for a 'true SIGNED copy' but from whats been written here, they can now take as long as they like to comply with this request as they supplied a 'true copy' (ie. a 'copy of what the agreement would have looked like') in response to my original CCA. What i'm hoping is that they admit that they don't actually have a 'signed copy'. Commonsense would suggest that if the had such a copy, they would have sent it and avoided any dispute. We'll see. However, to get them back on a legal timscale that they seem to be avoiding by sending me what is effectively a template, can i simply issue a new CCA, together with a new £1 fee, requesting a "true SIGNED copy"? That would put them back onto the 12 day + one month time frame.

[tamadus]

Well, i have written again asking for a 'true SIGNED copy' but from whats been written here, they can now take as long as they like to comply with this request as they supplied a 'true copy' (ie. a 'copy of what the agreement would have looked like') in response to my original CCA. What i'm hoping is that they admit that they don't actually have a 'signed copy'. Commonsense would suggest that if the had such a copy, they would have sent it and avoided any dispute. We'll see. However, to get them back on a legal timscale that they seem to be avoiding by sending me what is effectively a template, can i simply issue a new CCA, together with a new £1 fee, requesting a "true SIGNED copy"? That would put them back onto the 12 day + one month time frame.

 

I wouldnt bother sending another letter soli.

 

Just make an official repoirt to Trading Standards / OFT as suggested by noomill.

 

They have hed their chance to supply the documentation and it's obvious they are not interested in the repurcussions that are now arising.

 

I will be making a claim in the new year for repayment of interest and charges at least one credit card where they have failed to supply the requested documents.

[me_n_my_kids]

one of my creditors sent me something saying this is what it would look like, and was signed by no one at all. in the same letter they said all they would do if i paid nothing more was register a default which id be stuck with for 6 years as they were aware that the debt was unenforceable.

[tamadus]

one of my creditors sent me something saying this is what it would look like, and was signed by no one at all. in the same letter they said all they would do if i paid nothing more was register a default which id be stuck with for 6 years as they were aware that the debt was unenforceable.

 

That 6 years they quote is only an industry standard and has no basis in law. Only items in the public domain and ordered by a court, like a CCJ can legally remain of your credit file for that long.

 

Any other item is only allowed to remain there for a 'reasonable' amount of time.

 

I suggest writing to them and demanding the default be removed. (something else I plan doing in the new year)

[rosierose]

[me_n_my_kids]

tamadus - all done and posted first class yesterday morning. i feel so organised LOL

[me_n_my_kids]

i think that without proof of your consent they cannot use or pass your data, thats what i have gathered from here myself, but someone else will clarify

[soli2006]

I wouldnt bother sending another letter soli.

 

Just make an official repoirt to Trading Standards / OFT as suggested by noomill.

 

They have hed their chance to supply the documentation and it's obvious they are not interested in the repurcussions that are now arising.

 

I will be making a claim in the new year for repayment of interest and charges at least one credit card where they have failed to supply the requested documents.

 

Noomill says that they are in default - but they aren't. They've supplied a 'true copy' that conforms with CCA, albeit not a signed copy. OK, they can't enforce the debt, and the debt remains, but they aren't in criminal default in the true sense of the word. And they now have no legal obligation to reply to my update letter asking for a signed agreement as its not a formal CCA request, merely a follow-up saying I'm not happy with what they've supplied.. Thats why i figured, for the price of a £1 postal order & recorded delivery letter, it would be worth a new CCA asking for a TRUE SIGNED COPY thereby meaning i COULD take legal action when they failed to comply. At the moment, I'm in limbo.

[Peterbard]

With respect I think we must agree to differ about this number 6.

The creditor has to send a true copy of "the executed agreemant" as per section 77 not a generic or current one but a copy of the one you signed"executed".

Now i contend that it is up to them to show that this is a true copy of the one you signed . It is not your responsibility to prove it isn't valid . The burden of proof is on them.

 

Therefore In my opinion the document is not a true copy unless you verify it as being so, and how is that possiible the agrement may be 5 pages long and are you supposed to remember and confirm all the criteria are the same as the one you signed years ago.

 

Let us not forget that credit companies are updating agreemnts all the time, to comply with new regulations and adjust interest rates if coppy they send you is their current one it is very unlikely to have the same terms and conditions as the one you signed.

 

To repeat The 1983 SI alows them to leave out certain information but it stil must contain a duplated copy of the terms and conditions of the contract you agreed to. If you say it dosen't then it is up to them to prove otherwise and again if they had the orriginal why would they not just send a copy of that.

 

No in my opinion if the copy does not bear your signature then you can not possibly verify it as a true copy of the executed agreements with all the orriginal terms and cnditions and therefore they have not compied with the act.

 

Peter

[soli2006]

With respect I think we must agree to differ about this number 6.

The creditor has to send a true copy of "the executed agreemant" as per section 77 not a generic or current one but a copy of the one you signed"executed".

Now i contend that it is up to them to show that this is a true copy of the one you signed . It is not your responsibility to prove it isn't valid . The burden of proof is on them.

 

Therefore In my opinion the document is not a true copy unless you verify it as being so, and how is that possiible the agrement may be 5 pages long and are you supposed to remember and confirm all the criteria are the same as the one you signed years ago.

 

Let us not forget that credit companies are updating agreemnts all the time, to comply with new regulations and adjust interest rates if coppy they send you is their current one it is very unlikely to have the same terms and conditions as the one you signed.

 

To repeat The 1983 SI alows them to leave out certain information but it stil must contain a duplated copy of the terms and conditions of the contract you agreed to. If you say it dosen't then it is up to them to prove otherwise and again if they had the orriginal why would they not just send a copy of that.

 

No in my opinion if the copy does not bear your signature then you can not possibly verify it as a true copy of the executed agreements with all the orriginal terms and cnditions and therefore they have not compied with the act.

 

Peter

 

Thanks Peter. That was my opinion when I originally joined this thread - namely that a 'true copy' needed to be a fully executed (therefore signed) copy - otherwise what is the point in a creditor supplying one? Its generally agreed that an agreement becomes unenforceable without a signed copy, so a generic copy is worthless. Its my belief that companies send these out in the absence of the correct documentaion hoping that Mr Average will believe they have complied & dutifully fall into line. As far as I'm concered, theyhaven't complied with my CCA, are now over the initial 12-day period (therefore in default) & into the one month period before they commit a criminal offence. As I say, i was considering sending a new CCA specifically requesting they supply a 'true SIGNED copy' thereby removing any ambiguity or loopholes for them to seize upon.

[tamadus]

Noomill says that they are in default - but they aren't. They've supplied a 'true copy' that conforms with CCA, albeit not a signed copy. OK, they can't enforce the debt, and the debt remains, but they aren't in criminal default in the true sense of the word. And they now have no legal obligation to reply to my update letter asking for a signed agreement as its not a formal CCA request, merely a follow-up saying I'm not happy with what they've supplied.. Thats why i figured, for the price of a £1 postal order & recorded delivery letter, it would be worth a new CCA asking for a TRUE SIGNED COPY thereby meaning i COULD take legal action when they failed to comply. At the moment, I'm in limbo.

 

I think you will only get a repeat of what they have already sent. If they could supply a 'true signed copy' they would already have done so. Another CCA request will get the same result as they dont have to supply a signed copy under section 77/78.

 

We have to remember that sections 77/78 only stipulate a TRUE COPY and signatures can be omited. Therefore your application for a TRUE SIGNED copy will only result in a TRUE COPY ( ie no signature) being sent. IMHO it's probably better to allow them to go into the criminal default situation and report them.

[paulwlton]

Re: the phone call this morning with Barclays, the word fraud was brought up by the nasty lady, she stated if your saying the debt has never existed then this is a fraudulent claim (i didn't say this) i said it's unenforcable in court without a signed agreement.

 

Scare tactics.

[Mike220359]

Just received a threatening phone call from Barclaycard.

I made a CCA request in early October so i beleive they are in default and have commited an offence, i explained why i've stopped payments.

 

They have defaulted my account today.

 

I agree with others the fact that they have defaulted you (and Barclaycard/Mercers are renowned for it) is contrary to section 2 (I think) of the OFTs guidleines on debt collection. If they are sharing your data with the CRAs and they have not provided a copy of the original contart they are in breech of principles of the DPA. The fact that they have defaulted you whilst the debt is in dispute is also a breech of your rights under the act.

 

Right a letter of complaint to the data controller of Barclays (address on the Information Commissioner) website, telling them that they are sharing your information with third parties without (you contend) your written agreement. If no reply within 12 working days reprt to the Information Commissioner.

 

The OFT and TS should also be informed of your complaint to the IC.

 

Mike

[Mike220359]

Re: the phone call this morning with Barclays, the word fraud was brought up by the nasty lady, she stated if your saying the debt has never existed then this is a fraudulent claim (i didn't say this) i said it's unenforcable in court without a signed agreement.

 

Scare tactics.

 

These 'phone calls are recorded make a complaint to the Company Secretary (address on companies house website) and ask for the person who rang to make an apology. Make alot of noise. I have and it keeps them on their back foot, whilst your saving up the money to take them to court!

 

LOL

 

Mike

[noomill060]

Re: the phone call this morning with Barclays, the word fraud was brought up by the nasty lady, she stated if your saying the debt has never existed then this is a fraudulent claim (i didn't say this) i said it's unenforcable in court without a signed agreement.

 

Scare tactics.

 

 

What fraud? They are pishhing in the wind, flailing against reality and clutching at straws. Their arrogance knows no bounds and they delight in trying to intimidate

 

You are merely exercising your right under the CCA.

 

If Barclays fail to comply with the law it is they who will ultimately suffer.

 

DO NOT ring them again.

 

 

As Corporal Jones used to say:

 

"They dont like it up them, Captain Mainwaring"

 

 

Keep all comunication by letter from now on and make complaint to OFT against Barclays for their criminal default.

 

 

 

Did you get the name of the nasty lady?

[noomill060]

By the way- Mercers are just a part of B@stardcard, not a separate company.