SLC Cannot Supply The Original Agreement

[ian1969uk]

Here is the exact text from Cambridge TS:

 

It would appear that Amex should provide you with something (!) but note the words "executed agreement (if any)". A colleague from another Trading Standards service is quite categorical in saying that what this means is that in the absence of sending a signed copy, they can send you a copy of an agreement that you did sign.

 

I presume that because you have been paying the debt collection agency you actually accept that you entered into these agreements and are looking to avoid further re-payment as a consequence of alleged non-compliance with Section 78.

 

Whatever your motives for asking them to comply, I would suggest that you raise your enquiry/complaint formally with the Financial Ombudsman Sevice, who since April 2007 became responsible for dealing with complaints in relation to consumer credit agreements. As experts in the field I am sure they will be able to assist you further and, for ease of reference, their link is below:

 

FAQs - changes in consumer-credit complaints-handling

 

Best wishes

 

Hmm, do I smell something?

[Monty2007]

I agree..........and to be fair he was actually trying to be helpful. Another one from the main centre told me that I must have signed something and agreed to all their terms. She had not really heard of the Consumer Credit Act 1974, I gave up.......

[SteveH2508]

Here is the exact text from Cambridge TS:

 

It would appear that Amex should provide you with something (!) but note the words "executed agreement (if any)". A colleague from another Trading Standards service is quite categorical in saying that what this means is that in the absence of sending a signed copy, they can send you a copy of an agreement that you did sign.

 

I presume that because you have been paying the debt collection agency you actually accept that you entered into these agreements and are looking to avoid further re-payment as a consequence of alleged non-compliance with Section 78.

 

Whatever your motives for asking them to comply, I would suggest that you raise your enquiry/complaint formally with the Financial Ombudsman Sevice, who since April 2007 became responsible for dealing with complaints in relation to consumer credit agreements. As experts in the field I am sure they will be able to assist you further and, for ease of reference, their link is below:

 

FAQs - changes in consumer-credit complaints-handling

 

Best wishes

 

Just to clarify/amplify my previous post.

 

TS are responsible for investigating and possibly prosecuting criminal offences (e.g. failure to comply with a S78 request within 12 days + 1 month) (Not that they ever have as far as I'm aware). As far as advice about your civil rights goes, that may well be down to FOS now.

[Monty2007]

Dear Steve

Unfortunately for me, Cambridge TS don't agree with you.

[Peterbard]

HI

a few points

Firstly it is the OFT who issue prosecutions and enforce the CCA 1974.

If you go to their site you will see a record of previous prosecutions. (Such as they are).The Trading Standards is the consumer arm of the OFT and in effect is the same body ultimately coming under the control of the DTI.

As I said the creditor can pursue the debt once the default has been lifted without the need for a court order. See letter from OFT.

Dear Mr Bardsley

Thank you for your email dated 12 February 2007 concerning a creditor's ability to enforce an agreement where it has failed to comply with a request under Section 77 of the Act.

Unfortunately I have not had sight of the previous correspondence or information that you refer and as such am not aware of any particular circumstances which might be relevant. In general where a valid request has been made to a creditor under Section 77 of the Act and the creditor has failed, within the prescribed 12 day period, to supply the requisite information then the creditor is not able to take steps to enforce the debt with or without a court order. The commission of an offence, should the failure to supply the documents continue for a month, does not affect the long term enforceability of an agreement as far as the Act is concerned. Once the creditor does comply with the request, whether beyond the prescribed period or not, he will be able to enforce the agreement again.

I should note however that the above is a statement of the Act as only a court has the power to issue definitive statements of the law.

I hope that this is helpful, but please do not hesitate to contact me should you have any further queries on this matter.

Yours sincerely

Henry Aitchison

Consumer Credit Enforcement

Markets and Projects (Services) Group

Office of Fair Trading

I also have other evidence to the same effect already posted earlier in this and other threads

The offence is committed after 44 days not 12 days that is when the creditor has committed a default.

Finiancial Ombudsman service is not a regulatory body and do not have the remit to prosecute creditors they are a counselling service.

From their web site:

Does the ombudsman punish or fine businesses?

No. Our job is to settle individual disputes between consumers and businesses providing financial services – where consumers think they have lost out. Our service is confidential. We do not publish the names of the businesses and consumers whose complaints we handle.

We do not write the rules for businesses providing financial services – and we do not monitor (or regulate) businesses to make sure they follow the rules. This is the responsibility of the regulators – for example the Financial Services Authority (FSA) and the Office of Fair Trading (OFT).

Note the mention of the OFT regarding regulation.

Best regards

Peter

[noomill060]

Question regarding defaults on credit record:

 

Notwithstanding questions of enforceability, If a prescribed term in a credit agreement is missing or incorrect, is a credit provider still permitted to enter a default on that account to the credit reference agencies?

[JonCris]

If an agreement is unenforceable then the consensus is that to register a default is an attempt by the creditor to enforce the debt which is unlawful & you can demand it's removal.

 

If they refuse you would have to seek, as a 1st part of your legal action, a judgment that the agreement was/is enforceable before a court would order it's removal.

 

In other words both arguments would form part of your POC - 1st the agreement is not enforceable, by order of the court - 2nd assuming that is the case, then the default be removed, by order of the court

 

I whilst a great deal of what happens will rest on who deals with your complaint you can report them for this practice. Trying to enforce the unenforceable is breach of the OFT guidelines & questions their fitness to hold a credit license.

 

It may even amount to a criminal fraud under the new fraud act 2006 which came into force April 2007:D

[noomill060]

Thanks for the info joncris.

 

A suitably worded letter will be on its way to Barclaycard's CEO...

 

Fraud? Yikes!

 

(In connection with their failure to comply with my s.78 request, I sent a section 10 notice to his office well over a month ago, which has been ignored, save for the fact they appear to have been spurred into complying with the s.78 request. So an action enforcment of my s.10 notice is also possible, I believe)

 

I discovered my original credit limit is not that as stated in the original T&Cs by way of the data supplied by Barclaycard under my S.A.R - (Subject Access Request).

 

(Talk about giving them enough rope to hang themselves. They appear to have gone over to B&Q, bought a length of good stout rope and some strong timber, assembled a scaffold and put their neck in the noose and are inviting me to pull the lever!)

[hsbcfiddled]

(Talk about giving them enough rope to hang themselves. They appear gone over to B&Q, bought a length of good stout rope and some strong timber, assembled a scaffold and put their neck in the noose and are inviting me to pull the lever! Pull it- and just to be sure i will hang onto their legs)

[noomill060]

[ShootMePlz]

I know there is a link somewhere in this thread about the prescribed term in a credit agreements. But I have been unable to locate it again. Anyway could somebody please point me in the right direction more specifically the term about the time for them to sign and return a copy of the contract to you.

[The cobbett slayer]

I presume that because you have been paying the debt collection agency you actually accept that you entered into these agreements and are looking to avoid further re-payment as a consequence of alleged non-compliance with Section 78.

 

Not wishing to go back over old ground but does this not suggest that this individual TS officer agrees at least in part with my comments about implied agreement by virtue of previous repayment and that a committed credit company MAY attempt to use this in court. I know what has been said about courts being prohibited from making enforcement orders but it would be an interesting test case if a CC really wanted to risk it.

[ian1969uk]

Not wishing to go back over old ground but does this not suggest that this individual TS officer agrees at least in part with my comments about implied agreement by virtue of previous repayment and that a committed credit company MAY attempt to use this in court. I know what has been said about courts being prohibited from making enforcement orders but it would be an interesting test case if a CC really wanted to risk it.

 

How could a judge go so blatantly against what the law states?

 

Answer, they couldn't.

[Monty2007]

The problems we have are (i) TS are longer are nolonger a resource, not that many were very useful anyway and (ii) the FOS is months and months behind, they are inundated with millions of complaints and do not have the resources to deal with it all. I submitted a complaint in early May and it has still not been allocated to a case worked.

 

Many ccc are being challenged, as evidenced here since many documents simply do not hold up to scrutiny. I have found this aspect the most surprising since joining CAG. The agreement is the most fundamental document after all, they can prove you spent the money but have no legal reference as to the terms on which you were to repay so therefore the alleged debt in unenforceable. The only resolution is a compromised negotiation since as mentioned above the court has little ability to direct given the wording in the Act.

[The cobbett slayer]

I might have to eat my words:eek:

 

I made a request back in January under S77/78 and the response from Cobbetts (Natwests solicitors) was that thier client is unable to locate the original agreement.

 

Today, without any prior notice or discussion, they have helped themselves to £950 from my current account to cover "loan shortfall". This was an immediate "transaction". The money was there at 12.20 and gone at 3pm.

 

I have tried ringing the collections centre and all they keep telling me is that it is "in the terms and conditions that if funds are available they are can take them to cover shortfall".

 

I have tried to tell them that the loan is unenforceable at the present time due to their admitted inability to provide a copy of the agreement and they seem confused to say the least but are resolutely refusing to give me my money back.

[davey77]

blimey.. thats rough! Don't see why you don't have every right to call the Police and tell them someone has stolen monies from your account without your permission! grrrrrrr

[JonCris]

In that case CS send them a LBA then if that doesn't work issue proceedings

[angry cat]

Here is the exact text from Cambridge TS:

 

It would appear that Amex should provide you with something (!) but note the words "executed agreement (if any)". A colleague from another Trading Standards service is quite categorical in saying that what this means is that in the absence of sending a signed copy, they can send you a copy of an agreement that you did sign.

I presume that because you have been paying the debt collection agency you actually accept that you entered into these agreements and are looking to avoid further re-payment as a consequence of alleged non-compliance with Section 78.

Whatever your motives for asking them to comply, I would suggest that you raise your enquiry/complaint formally with the Financial Ombudsman Sevice, who since April 2007 became responsible for dealing with complaints in relation to consumer credit agreements. As experts in the field I am sure they will be able to assist you further and, for ease of reference, their link is below:

FAQs - changes in consumer-credit complaints-handling

Best wishes

 

Absolutely disgraceful!

 

Cambridge TS have no right to question your motives. TS are the enforcement officers of The Consumer Credit Act 1974 (The "Act") and if the creditor has failed to comply with legislation that has been laid down in that ("Act"), it is up to TS to deal with the matter. It is not correct fro TS to attempt to 'pass the buck' to the FOS, who are not a government body or authority, they are also not a regulator.

 

My advice, don't take no for an answer, complain to a higher level.

Write back to Cambridge TS and state that you demand that your complaint be escalated, or you will make a complaint about their maladministration.

 

Love AC

[davey77]

The problems we have are (i) TS are longer are nolonger a resource, not that many were very useful anyway and (ii) the FOS is months and months behind, they are inundated with millions of complaints and do not have the resources to deal with it all. I submitted a complaint in early May and it has still not been allocated to a case worked.

 

Many ccc are being challenged, as evidenced here since many documents simply do not hold up to scrutiny. I have found this aspect the most surprising since joining CAG. The agreement is the most fundamental document after all, they can prove you spent the money but have no legal reference as to the terms on which you were to repay so therefore the alleged debt in unenforceable. The only resolution is a compromised negotiation since as mentioned above the court has little ability to direct given the wording in the Act.

 

In reference to FOS timescales. I have had the 'acknowledgment' letter with case numbers from the FOS since reporting 3 creditors on the 2nd and 11th July this year. Albeit with the content that they 'have received high volumes of complaints and will contact me again soon etc'.

Would agree though that TS are a waste of space. All the non-CCA complaint letters i wrote.. and they have all been passed to Torbay TS who are, on the whole, ignoring them completely.

[ShootMePlz]

I know there is a link somewhere in this thread about the prescribed term in a credit agreements. But I have been unable to locate it again. Anyway could somebody please point me in the right direction more specifically the term about the time for them to sign and return a copy of the contract to you.

 

 

Bump any answers please

[noomill060]

Police and Trading Standards, Consumer Direct, Financial Crimes Unit at HM Treasury (as long as you have definate proof - ie actual letter from Cobblers stating that they dont have a copy of the agreement'

[noomill060]

Prescribed terms-

 

1) APR

 

2) Amount of credit

 

3) Repayment period

 

4) Borrower's sig.

[noomill060]

If any of these are missing or incorrect the agreement is improperly executed and can only be enforced on the order of a Court, but because of the wordig of s.127(3) the Court would be precluded from doing so under any circumstances.

[ShootMePlz]

Prescribed terms-

 

1) APR

 

2) Amount of credit

 

3) Repayment period

 

4) Borrower's sig.

 

I thought there was a time period for them to return a signed copy also signed by them in as well.

[noomill060]

You asked for the Prescribed Terms.