SLC Cannot Supply The Original Agreement

[Typhoon]

I've followed this thread with great interest. Its a fantastic resource with some heated debate at times but always factual and helpful. A couple of points I'd like to add.

 

1. There is nothing in the CCA that states you must pay a statutory fee by way of a postal order. The reason many people do this is that a postal order must be taken at face value unlike a cheque which is subject to clearance. It is just as acceptable to make a bank transfer of the £1 fee using your account number with the company concerned as a reference number. This is of particular interest to those who may now live outwith the UK or for some reason or another have no access to postal orders.

 

2. A creditor or DCA may have the provision in law to send you an agreement ommiting signature boxes, this however DOES NOT constitute a true copy of an executed agreement. If you sent them an unsigned credit agreement, they would not be able to act upon it due to the lack of a signature and therefore authorisation on your part to proceed with the agreement. Do not under any circumstance accept an unsigned thus unexecutable agreement as fulfillment of a creditors statutory obligation to provide you with proof of an executed agreement. An unsigned agreement carries no legal weight whatever.

 

The letter below should cover all of the bases with a Creditor or DCA to ensure that they understand you will not accept an unsigned agreement. It is partly my own wording and partly gleaned from other sources, not least the members of this forum. The section advising of payment of the £1 statutory fee should be altered depending on the payment method you have used. If you pay by bank transfer it is the Creditors/DCA's bank details that go in the payment section, not your own and you should use the agreement number as the reference number when sending payment by bank transfer. I hope it is helpful.

 

 

 

 

Your Name

 

Address

Address

Address

Postcode

 

 

 

 

 

Creditors Name

Creditors Address

Creditors Address

Postcode

 

Date

 

Dear Sir/Madam

 

Re: Account Number: Enter Account number here

 

With reference to the above agreement, I would be grateful if you would send me a signed true copy of the executed credit agreement.

 

Under the Consumer Credit Act 1974 (Sections 77−79), I am entitled to receive a copy of any credit agreement concerning me, on request. *** I enclose a postal order for £1*** / ***I have today made a payment of £1.00 directly to your bank account with account no: (creditor’s acc no here) and sort code (creditors sort code here) *** which represents the statutory fee payable as determined by the Consumer Credit Act 1974. This payment was sent with the reference number of xxxxxx and my bank has confirmed its transmission. (only include this sentence if you made payment by bank transfer)

 

I understand a signed true copy of any credit agreement you hold concerning me must be supplied within 12 working days. Please be aware that any agreement you send me that does not bear my signature will be rejected as unverifiable. I therefore would suggest that a true copy including my signature be sent. If I am unable to verify the authenticity of the document, the terms of section 77 of the Consumer Credit Act 1974 will not have been met and the timescale for production of the documentation will still apply. You are further notified that you are obliged to supply these documents, whether you are the original creditor or not under section 189 of the Consumer Credit Act 1974.

 

I understand that under the Consumer Credit Act 1974, creditors are unable to enforce an agreement if they fail to comply with a request for a copy of the agreement under these sections of the Act. Failure to fully comply with this statutory request within 12 working days will place you in default of any agreement that you may hold concerning me. Furthermore, failure to fully comply with this statutory request within one month will mean that you have committed a criminal offence under the terms of the Consumer Credit Act 1974 and this in itself will constitute a complete defence to any action you may seek to take against me.

 

I look forward to hearing from you.

 

 

Yours faithfully

 

 

 

 

Your Name

 

 

 

All information in this post is given without prejudice but may not be relied upon in any way. You should use your own judgement when making use of the information given in this post. I cannot accept any responsibility for claims arising from the use of the information given in this post.

[tamadus]

T

 

Yes most of the agreements we work with are as you say and if you read the act again it is precisley those that are required to have a signature or rather are not covered by the section 3 instruction.

 

 

Cheers Peter

 

Regards Peter

 

Hmmm I just looked at it again with a slightly different frame of mind and you could very well be right. In which case even the OFT have got it wrong.

[tamadus]

I've followed this thread with great interest. Its a fantastic resource with some heated debate at times but always factual and helpful. A couple of points I'd like to add.

 

1. There is nothing in the CCA that states you must pay a statutory fee by way of a postal order. The reason many people do this is that a postal order must be taken at face value unlike a cheque which is subject to clearance. It is just as acceptable to make a bank transfer of the £1 fee using your account number with the company concerned as a reference number. This is of particular interest to those who may now live outwith the UK or for some reason or another have no access to postal orders.

 

I agree payment can be by any method you choose. I would never advocate using debit card or direct transfer though as both these methods could give some unscrupulous person the ability to set up a direct debit. Cheque or postal order is far better as both are traceable. Also as your request has to be in writing there is no rush to send payment.

 

2. A creditor or DCA may have the provision in law to send you an agreement ommiting signature boxes, this however DOES NOT constitute a true copy of an executed agreement. If you sent them an unsigned credit agreement, they would not be able to act upon it due to the lack of a signature and therefore authorisation on your part to proceed with the agreement. Do not under any circumstance accept an unsigned thus unexecutable agreement as fulfillment of a creditors statutory obligation to provide you with proof of an executed agreement. An unsigned agreement carries no legal weight whatever.

 

not strictly true. According to SI 1557 (1983) a 'true copy' does not need signatures under sec. 77/78/85 although as others have already said not sending the real thing inc. signatures is a pointless exercise as they need to produce this anyway if they apply to the court for enforcement.

 

The letter below should cover all of the bases with a Creditor or DCA to ensure that they understand you will not accept an unsigned agreement. It is partly my own wording and partly gleaned from other sources, not least the members of this forum. The section advising of payment of the £1 statutory fee should be altered depending on the payment method you have used. If you pay by bank transfer it is the Creditors/DCA's bank details that go in the payment section, not your own and you should use the agreement number as the reference number when sending payment by bank transfer. I hope it is helpful.

 

 

 

 

All information in this post is given without prejudice but may not be relied upon in any way. You should use your own judgement when making use of the information given in this post. I cannot accept any responsibility for claims arising from the use of the information given in this post.

 

 

Other than those points it's a good letter.

[tamadus]

One other thing:)

 

The time limits are 12 days from delivery of the request and then a further MONTH not 30 days.

[Typhoon]

Thanks for your comments Tamadus. The reason I advocated a direct bank transfer is due to the fact that some people living outwith the UK like myself, may have no access to postal orders. Some may no longer hold a British bank account. I'd be stunned if a UK based Creditor or DCA were to make an unauthorised direct debit from a debtor's account, they'd land themselves in all sorts of hot water and any debt would surely be irrecoverable thereafter.

 

I personally cannot see how an unsigned copy can be a "true" copy of an executed agreement. An unsigned agreement is un-executable and therefore cannot reasonably be thought of as a true copy.

 

Your point about the time limit is taken onboard and the original post has been edited.

[tamadus]

Thanks for your comments Tamadus. The reason I advocated a direct bank transfer is due to the fact that some people living outwith the UK like myself, may have no access to postal orders. Some may no longer hold a British bank account. I'd be stunned if a UK based Creditor or DCA were to make an unauthorised direct debit from a debtor's account, they'd land themselves in all sorts of hot water and any debt would surely be irrecoverable thereafter.

 

Your point about the time limit is taken onboard and the original post has been edited.

 

I fully understand the reasons for a direct transfer but I'm not comfortable with them having that sort of level of access to my account details.

 

It wouldnt be the first time one of these companies pulled a fast manouvere :o

 

A bit like the crowd who just 'bought' an alleged debt of mine and 1 week before it was assigned to them they issued a default without proper notice. I also note that although a debt management plan was in place throguh CCCS the creditor involved has been throwing interest on it all along. so it now allegedly totals something like 500 more than when the DMP started :o Nice way of helping people and provinmg how much of a responsible lender you are.

[Typhoon]

I fully understand the reasons for a direct transfer but I'm not comfortable with them having that sort of level of access to my account details.

 

It wouldnt be the first time one of these companies pulled a fast manouvere :o

 

A bit like the crowd who just 'bought' an alleged debt of mine and 1 week before it was assigned to them they issued a default without proper notice. I also note that although a debt management plan was in place throguh CCCS the creditor involved has been throwing interest on it all along. so it now allegedly totals something like 500 more than when the DMP started :o Nice way of helping people and provinmg how much of a responsible lender you are.

 

Surely to goodness that default is illegal and they are duty bound to remove it?

 

Reasons like this are exactly why these pondlife should be taken to the cleaners. If they step outwith the remit of the CCA by as much as a millimetre, we should take them for all they're worth. GE Capital Woodchester/GE Money made my home life pretty unbearable for months. They were never off the phone, early in the morning and quite late at night. The quietened down after receiving a few payments from my informal arrangement and a few weeks ago without any warning and after over a year of fairly substantial informal arrangement payments totalling almost £1.5k, they passed the debt to a DCA (Asset Link Capital (no 1) Ltd) who didn't even have the courtesy to contact me by letter. Straight to the solicitors.

 

I asked the solicitors for the contact details of this company so that I could S.A.R - (Subject Access Request) them for a copy of the alleged agreement. Solicitors reply that they are dealing with the case and any such request can be made directly to them. So I did.

 

I'm not sure if they have a copy of a signed agreement or not but this thread was inspiration enough for me to make an SAR. If they do have a signed agreement I'll comply but if they don't, I'll take tremendous pleasure in telling them where to stick it. I may even think about going after all payments made to date.

[tamadus]

Surely to goodness that default is illegal and they are duty bound to remove it?

 

Reasons like this are exactly why these pondlife should be taken to the cleaners. If they step outwith the remit of the CCA by as much as a millimetre, we should take them for all they're worth. GE Capital Woodchester/GE Money made my home life pretty unbearable for months. They were never off the phone, early in the morning and quite late at night. The quietened down after receiving a few payments from my informal arrangement and a few weeks ago without any warning and after over a year of fairly substantial informal arrangement payments totalling almost £1.5k, they passed the debt to a DCA (Asset Link Capital (no 1) Ltd) who didn't even have the courtesy to contact me by letter. Straight to the solicitors.

 

I asked the solicitors for the contact details of this company so that I could S.A.R - (Subject Access Request) them for a copy of the alleged agreement. Solicitors reply that they are dealing with the case and any such request can be made directly to them. So I did.

 

I'm not sure if they have a copy of a signed agreement or not but this thread was inspiration enough for me to make an S.A.R - (Subject Access Request). If they do have a signed agreement I'll comply but if they don't, I'll take tremendous pleasure in telling them where to stick it. I may even think about going after all payments made to date.

 

 

OMG how uncanny is that???

 

How did you know this was GE Money woodchester/home lending and asset Link ????

 

I'll be posting in my thread Tamadus v GE Money as soon as I have a fresh coffee, if your interested

[Typhoon]

OMG how uncanny is that???

 

How did you know this was GE Money woodchester/home lending and asset Link ????

 

I'll be posting in my thread Tamadus v GE Money as soon as I have a fresh coffee, if your interested

 

Definitely my friend.

[tamadus]

ok posted it and I need to go finish my grocery shopping so be back in about 30 minutes Hopefully the manic crowds have all gone home by now and left some stuff for me

[Peterbard]

2. A creditor or DCA may have the provision in law to send you an agreement ommiting signature boxes, this however DOES NOT constitute a true copy of an executed agreement. If you sent them an unsigned credit agreement, they would not be able to act upon it due to the lack of a signature and therefore authorisation on your part to proceed with the agreement. Do not under any circumstance accept an unsigned thus unexecutable agreement as fulfillment of a creditors statutory obligation to provide you with proof of an executed agreement. An unsigned agreement carries no legal weight whatever.

 

Going over old grounmd i know but.

 

The point of sending for a 77 copy usually is to check that the required information it contains ie the interest rate charges, length of repayment period etc. is the same as the one you signed. Also there are other things that you may have to check like if default interest is applicable or when you are entitled to return the item under the VT terms and a hundred other terms and conditions.

I say that if a verifiable copy of this information is not available the agrement is void.

The purpose of the signature box is to enable you to verify the that this was the agrement you agreed to when you acccepted the contract.

A coppy of a current agrement is not acceptable, the interest rates are bound to have changed and god knows what other changes in company policy have occured that have altered the terms.

I know i am labouring the point but i think it is important that we do not accept as a true copy any agreement that does not have our signatre on it as i have said before the burden of proof is on thm to proove it is a true copy not on us to show it isn't.

This is made all the more important because in April next year the safety net of the section127 3-5 will be removed and the court will be able to enforce with or without a signature thanks to the CCa2006 section 15.

After this the section 77-requests willl be the only method of stoping the courts from enforcing the contract so we need to be setting a standard for what we accept as a copy of the executed agreement now.

 

Regards Peter

[Peterbard]

A Wake up Call

 

In addition to the above I have a number of applications issued for information unfder the CCA section77-79 . A large proportion of these have refused to reply and are therefore risking being reported to the OFT.

However they have also stoped trying to persue the debts(i must add here that i have a large familly and the debts are not all mine).

It is essential in my opinion that these defaults are followed up and brought to a conclusion before the new regs come in in 2007.

(The temptation is to let sleeping dogs lie and as long as they are not persuing you for the money leave well alone.)

Unfortunately when the new legistion comes in next year i have a feeling that those sleeping dogs will all wake up when the are given the recourse to enforce because of the lack of the 127 3-5 legislation.

You could find yourself being persued through the courts for debts that were unenforceable.

 

Peter

[soli2006]

A Wake up Call

You could find yourself being persued through the courts for debts that were unenforceable.

 

Will the changes in the law be able to be applied retrospectively? Thats not usually the case with any legislation.

 

From my own point of view, I'm waiting to see if my alleged creditor either (a) Replies to my CCA follow by admitting they don't have a true SIGNED copy or (b) Provides a signed copy. My money is on the former as i see no reason why any any company wouldn't simply send a signed copy in the first place if they had one.

[Typhoon]

A Wake up Call

 

In addition to the above I have a number of applications issued for information unfder the CCA section77-79 . A large proportion of these have refused to reply and are therefore risking being reported to the OFT.

However they have also stoped trying to persue the debts(i must add here that i have a large familly and the debts are not all mine).

It is essential in my opinion that these defaults are followed up and brought to a conclusion before the new regs come in in 2007.

(The temptation is to let sleeping dogs lie and as long as they are not persuing you for the money leave well alone.)

Unfortunately when the new legistion comes in next year i have a feeling that those sleeping dogs will all wake up when the are given the recourse to enforce because of the lack of the 127 3-5 legislation.

You could find yourself being persued through the courts for debts that were unenforceable.

 

Peter

 

Will the changes in the law be able to be applied retrospectively? Thats not usually the case with any legislation.

 

From my own point of view, I'm waiting to see if my alleged creditor either (a) Replies to my CCA follow by admitting they don't have a true SIGNED copy or (b) Provides a signed copy. My money is on the former as i see no reason why any any company wouldn't simply send a signed copy in the first place if they had one.

 

In my view:

 

Courts, creditors, owners, debtors and hirers will have to comply with the CCA in the form it was in at the commencement of an alleged agreement as these are the guidelines covering the agreement at the date of its inception and the guidelines both parties sign the agreement to.

 

Jast as a creditor can not apply terms and conditions introduced in 2006 on a debtor who's agreement was executed in 2004, the courts are also bound by the law as it stood on the date of signing the agreement. Agreements executed after April 2007 will be covered by the 2006 ammendment to the CCA but not those executed before. This is how I see it.

 

More to the point. The exclusion of Section 127 sub-sections 3-5 does not absolve the creditor of responsibility for keeping a correctly executed (ie signed) agreement. It does not give them any right to ignore or otherwise fail to comply with a Subject Access Request for a true copy of an executed agreement. If they do not produce it within 1 month they are still in criminal default. It merely removes the restriction of the court not being allowed to make an enforcement order unless there is a properly executed credit agreement.

 

Creditors/DCAs will still be committing an offence if they do not produce a true copy of a properly executed agreement within 30 days of receiving a request from a debtor or alleged debtor. Creditors are still going to be the party who turns up in court having to admit before anything else is said that they are in direct contravention of section 77/78 of the Consumer Credit Act and as such have committed an offence. There are no ifs or buts about that.

 

I for one would not like to be in court when the first point of law raised is that I have undeniably and inexcuseably commited an offence. The Creditors/DCAs are not going to put themselves in this position. Doing so would be risking their license to provide credit.

[Typhoon]

One more thing. A creditor who does not possess a properly executed (signed) credit agreement is in default of said agreement. While they remain in default of the agreement, they have no right to enforce anything agreed to in that agreement. They can't go to court (this is a method of enforcement) without a signed agreement, its as simple as that.

[ecobabe]

the new Act is not retrospective and will only apply to agreements taken out after that date, so existing "debt" will not be affected by it. as far I have been led to believe the amendements affecting s 77-78 & 127 wil not come into being until April 2008.

[poochball]

Hi,

 

Just to make it clear, if a creditor fails to comply with a request for a copy of the Original Agreement and this continues for one month, they are commiting a cival offence and not a criminal offence.

[JonCris]

No its a criminal offence say so in the Act.............Also you can't commit a civil offence

[noomill060]

Punishable by a fine of up to £2500 and/or six months imprisonment.

[noomill060]

Would demands for payment be classed as enforcement?

[JonCris]

Would demands for payment be classed as enforcement?

 

If they continue to demand payment whilst in default which they should not be doing they are commiting an offence in that it is criminal harassment

[me_n_my_kids]

i am not planning on pursuing this personally, but out of interest, has the creditor commited an offence by providing credit with no proper executed agreement? or is it failing to produce it on demand which is actually the offence?

[Peterbard]

"Will the changes in the law be able to be applied retrospectively? Thats not usually the case with any legislation.

 

From my own point of view, I'm waiting to see if my alleged creditor either (a) Replies to my CCA follow by admitting they don't have a true SIGNED copy or (b) Provides a signed copy. My money is on the former as i see no reason why any any company wouldn't simply send a signed copy in the first place if they had one."

 

The section comes into force on 6th April 2007 according to the published timetable.

In my view the act will be applied to any case coming to the court after that date as that will be when the complaint is made.

 

"More to the point. The exclusion of Section 127 sub-sections 3-5 does not absolve the creditor of responsibility for keeping a correctly executed (ie signed) agreement. It does not give them any right to ignore or otherwise fail to comply with a Subject Access Request for a true copy of an executed agreement. If they do not produce it within 1 month they are still in criminal default. It merely removes the restriction of the court not being allowed to make an enforcement order unless there is a properly executed credit agreement.

 

Creditors/DCAs will still be committing an offence if they do not produce a true copy of a properly executed agreement within 30 days of receiving a request from a debtor or alleged debtor. Creditors are still going to be the party who turns up in court having to admit before anything else is said that they are in direct contravention of section 77/78 of the Consumer Credit Act and as such have committed an offence. There are no ifs or buts about that.

 

I for one would not like to be in court when the first point of law raised is that I have undeniably and inexcuseably commited an offence. The Creditors/DCAs are not going to put themselves in this position. Doing so would be risking their license to provide credit."

 

The removal of section 127-3 does not do any thing but enable the creditor to enforce an improperly formated or executed agreement even without a signature.

 

A subject acces request is nothing to do with the CCA.

 

The non pruduction under the 77 act is a different issue and could be got round by the creditor sending an unsigned doc and then contending they had complied.

 

"One more thing. A creditor who does not possess a properly executed (signed) credit agreement is in default of said agreement. While they remain in default of the agreement, they have no right to enforce anything agreed to in that agreement. They can't go to court (this is a method of enforcement) without a signed agreement, its as simple as that"

 

Sorry you are mistaken even currently not possesing a signed agreement does not put the creditor in default.

 

Post April the creditor not producing a signed copy of an agreement will not put him in default of anything nor will it stop the court from enforcing the claim.

Neither does the non disclosure of a signed agrement under 77 if that is what is meant.

 

The precontractual route to stopping the court enforce under secton 127 will dissapear on April 6th.The post contractual route to the same end can be cisrcumvented due to the SI 1983 section 3 clause.

 

Most of this is a repeat of what has been gone through earlier by me and others earlier in this thread.

 

I sence some hostility to my earlier warning i assure you it was made with the best of intensions to avoid people problems post 6TH April .

 

Merry Chistmas

 

Peter

[poochball]

No its a criminal offence say so in the Act.............Also you can't commit a civil offence

 

I could be wrong it saying that it is a civil offence, but I am pretty sure I am correct. Also a Civil Offence can be committed.

 

For example "Copyright infringement is both a criminal and a civil offence"

 

But I am only offering what I beleive to be correct information so take it as is really.

[JonCris]

Copywrite infringment is NOT a criminal offence nor is bootlegging. Selling counterfeit products is under the Trades Description Act