Is My Agreement Enforceable - Useful

[foolishgirl]

Did you place your account in dispute Suzanne, by sending them a letter after the 12+2 days telling them this?

 

If you did, they are not supposed to pass on the debt whilst it is in dispute but they will try if they think they can get away with it

 

If the new company attempts to collect from you you should write & tell them that the account was in dispute with XX DCA, that you do not therefore acknowledge any debt to them as it should not have been passed on.

 

They will prob. pass the hot brick back to XX DCA & you should not send again for your CCA to the new company.

 

Suspect the original DCA can't get hold of your CA & is trying to pass the bum debt on.

[suzannef]

thanks for that is there a letter you know of that I can send to them

[spartathisis]

Foolish girl, could you please have aquick look at this thread and tell me if you agree that it is not a CCA but an Application form. Sols claim it is a CCA and that an App form can be a CCA anyway.

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/186500-have-i-been-too.html

 

Not sure how to link properly.

 

Thank you.

[Muffintop]

Did you place your account in dispute Suzanne, by sending them a letter after the 12+2 days telling them this?

 

If you did, they are not supposed to pass on the debt whilst it is in dispute but they will try if they think they can get away with it

 

If the new company attempts to collect from you you should write & tell them that the account was in dispute with XX DCA, that you do not therefore acknowledge any debt to them as it should not have been passed on.

 

Foolish, I have sent the standard letter stating in dispute and you must not pass to dca etc but have been to trading standards about this and as they are obliged to send what they believe is a true copy they are getting away with this as they do not acknowledge that the debt is in dispute (and have written to me to say so) as they say they have sent what they believe to be a true copy... its rubbish of course but this enables them to place bad records on my credit file and continue to hound me for the debt and pass onto dca... this is the case with both my mbna and barclaycard ccas.

[foolishgirl]

Foolish, I have sent the standard letter stating in dispute and you must not pass to dca etc but have been to trading standards about this and as they are obliged to send what they believe is a true copy they are getting away with this as they do not acknowledge that the debt is in dispute (and have written to me to say so) as they say they have sent what they believe to be a true copy... its rubbish of course but this enables them to place bad records on my credit file and continue to hound me for the debt and pass onto dca... this is the case with both my mbna and barclaycard ccas.

 

It's a sad fact of life, muffintop.

 

Unfortunately the only surefire way of getting back at them is to fight them in court. In the meantime, you can withold the payments, file their reminders & keep your pennies in the bank . Small comfort, but should make you happy & them sad.

[Muffintop]

thanks thats what I am doing just hate my credit file being wrecked feels like it contrevenes my human rights and takes my choices away... I may need to rent in the future, I may need to buy a car, a phone etc etc and they have put paid to all this.

[omoeko]

Hi All,

 

Please can someone help me check my Halifax CCA, it was for a 10k loan. Its was taken out u july 2007, I suspect it might be enforceable, but I just want someone to clarify.

 

Now that I am also struggling, what can i do to reduce my payment, they are also charging me unpaid Direct Debit and some other charges, is this normal. If i cant even pay the loan, there must be a way for me to get them to cancel all those silly charges.

Edited April 11, 2009 by omoeko

[checkthatcredit]

any agreement taken out after April 2007 is already deemed as compliant and therefore "fair"

[FireFox1969]

I hav a question

 

In the CCA it says that on agreement (credit card type) the credit limit should be 'shown' or 'how it will be decided' or 'NO CREDIT LIMIT' or words to that effect.

 

As i would understand it and as i look at my credit card agreements they do not show how it is decided they just say 'we will notify you of your credit limit via letter and the limit will be displayed on your statements'. So in reality you have signed an agreement prior to knowing exactly what limit you will have. even if they show how they calculate the limit would give you a good idea of what you are signing.

 

Is this correct can they do that. i think they are just leaving it blank thus not conforming to on of the requirements.

 

anyone else on this matter

[FireFox1969]

as for the agreement above yes it is fair. you could write to them and ask them to lower the amount until you are in a better position. better to do a statement of your accounts so they can see that you are having problems

[checkthatcredit]

Firefox 1969 - the answer remains the same - if the agreement is dated after April 2007 then it is deemed compliant no matter what. If it is dated prior to the cut-off then if any of the prescribed terms are missing there is a good chance the agreement is unfair - the outcome depends on the size of stick used to beat the lender!!

[omoeko]

Hi,

 

I have a Credit card with Lloyds, its one of those where you also get the Airmiles due card as well, I wrote them asking for my CCA for the credit card, I noticed that they have replied me and also threathen that, they would not have any more conversation with regards to the matter, also as its a credit card my credit limit has been increased over the years, what does this mean in terms of a credit limit as obviously when the credit card was taken out, my limit could have been £1,000 but this could have gone up 5 times that amount over the years.

 

I am not sure whether the response they gave me is the right one.

 

[Howler14]

I wrote the following to Tesco Personal Finance:

 

ACCOUNT IN DISPUTE

 

Dear Sir/Madam

 

Thank you for your recent letter sent to me dated 13 February 2009, the contents of which are noted. However, the reply received by me does not fulfil your requirements under the Consumer Credit Act 1974.

 

The Act demands that I be supplied with a true copy of any properly executed credit agreement that exists in relation to the above account. I may ask for this on demand providing that a fee of £1.00 is paid. This fee was sent with my original letter, dated 29th January 2009. Upon receipt of the original request the specified account legally entered into disputed status.

 

My request remains outstanding. An application form does not constitute a true copy of a credit agreement and that which you sent doesn't even contain all the prescribed terms and is not 'properly executed'.

As you will know, under the Consumer Credit Act 1974, a judge is not permitted to make any enforcement order unless the creditor can provide a true signed copy of the original credit agreement. This means that unless you can produce such an agreement, this alleged debt is not enforceable in law.

 

You had until to provide me with the true copy I requested. After that date you entered into default of my request. Whilst the account is in dispute, you are not permitted to ask for any payment, nor am I obliged to offer any payment to you. Furthermore, whilst the dispute remains, you are not entitled to charge any interest on the account, nor make any further charges to the account. Additionally, you are not entitled to register any information on this account with any credit reference agencies (or any third party).

 

To register information with a credit reference agency, you must have written consent from the data subject to collate and share such information. This consent is given in the form of a signed credit agreement, so until you produce such an agreement, you may not do this.

 

The requirement for consent to share data is a clear requirement of the Data Protection Act 1998. Any such attempts to share my data without my consent will be met with a complaint to the Information Commissioners Office.

 

The time limits, which are laid down in the Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 are clear. You must supply an executed credit agreement within 12 working days of a proper CCA request. If you fail to comply with a legitimate request the account enters a default situation and if you fail to comply after a further 30 days you commit an offence. You entered into a default on 18th February 2009 and subsequently committed a criminal offence on 6th April 2009.

 

Therefore you have 7 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint, otherwise your conduct will be reported to the Office of Fair Trading, the Financial Ombudsman and Trading Standards. Any investigation undertaken by them may affect your ability to hold a consumer credit license in the future.

 

Take further note that continued telephone calls after the receipt of a request not to call may constitute a criminal offence under Section 127 of the Communications Act 2003.

 

After taking advice, I am of the opinion that any continued pursuit is in violation of the Administration of Justice Act 1970 section 40 as well as breaching a number of the OFT Collection Guidelines

 

Communicate in writing and ONLY in writing, your telephone calls will NOT be answered.

 

To sum up, I will not be making any further payments to you until you provide me with the document I have requested. Should you not have any signed credit agreement in relation to this alleged debt, please confirm this in writing to me.

 

 

I would appreciate your due diligence in this matter.

 

I look forward to your reply.

 

And I have had a response from Tesco Personal Finance with regard to the matter:

 

http://i656.photobucket.com/albums/u...4/scan0001.jpg

http://i656.photobucket.com/albums/u...4/scan0002.jpg

 

Seems they feel they have done enough, and my physical agreement to the CCA is not actually required. Record your calls Follow this link to read the review of the Truecall telephone recorder and call manager.

This is the Rolls Royce of call recorders.

It's a bit pricey but if you buy it with our special offer you will get it at cost: about 20% discount.

How much do we make on the deal? - Nothing at all.

You can also buy cheaper devices from Maplins. Truecall is the best - but the important thing is to record your calls.

[foolishgirl]

If this is all they sent you omeoko, it's just T&Cs - totally unenforceable as a credit agreement.

 

The following is a 'template' to use to send back to them (acknowledgment to peterbard for the original) Amend to suit

 

 

Dear Sirs,

 

Account Number: XXX

 

Re; your recent reply to my request under section 77-79 of the Consumer Credit Act 1974

 

I note that you have replied to the above by sending a copy of an application form and your companies current Terms and conditions I must inform you that this is not sufficient to comply with the request and that your company is still in default under the act.

 

To clarify, just sending the Terms and Conditions is a breach of the Act and Regulations as, apart from the information that the Regulations provide that you may exclude, the copy must be a “true copy” of the agreement.

 

This breach of the agreement can be demonstrated as follows;

As you will know section 180(1) (b) authorises, “the omission from a copy of certain material from the original, or the inclusion of certain material in condensed form.” This refers to statutory instruments made under the heading Copies of document regulations and in this care in particular to SI 1983/1557.

 

Before leaving section 180 there are two other sections that should be remembered these are:

 

Section 2(2) (a) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not satisfied unless the copy supplied is in the prescribed form and conforms to the prescribed requirements;

 

And more importantly

 

Section 2(b) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not infringed by the omission of any material, or its inclusion in condensed form, if that is authorised by regulations.

 

You will see that this quite clearly states that whilst certain items may be left out of the copy document the rest of the document must be in the form and contain all items as prescribed by the regulations.

 

Turning to the regulations regarding what may be omitted from these copies these are contained with SI 1983/1557.

 

The regulations state:

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

(a) any information included in an executed agreement, security instrument or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations thereunder as to the form and content of the document of which it is a copy;

(b) any signature box, signature or date of signature (other than, in the case of a copy of a cancelable executed agreement delivered to the debtor under section 63(1) of the Act, the date of signature by the debtor of an agreement to which section 68(b) of the Act applies);

 

It is quite clear what can be omitted from the copy document, this again asserts that all other details of the agreement should presented in form and content as required by the regulations.

 

The requirements of the Agreement regulations 1983/1553 are very explicit in describing the form and content of an agreement and this as I have demonstrated also applies to the copy of any such agreement with the above mentioned proviso.

 

Nowhere within these regulations does it state that part of the agreement can be presented on a separate document headed terms and conditions.

It does state that all terms and conditions should be within the agreement document and is explicit of the form in which it is presented.

 

I hope this explains why your reply was unacceptable I await a True copy of my agreement and would remind you again that whilst the request has not been complied with the default continues

[omoeko]

hi foolishgirl,

 

Thanks for the reply, thats all they sent me and yes I know its just a whole load of Terms and conditions, but in most cases after writing to them that look, what you sent me is just a list of terms and conditions, what normally happens, I sense that they just wouldnt accept liability and say, ohh debt written off.

 

Also, as I have other debts with them as well, these are enforceable, is it worth agreeing a payment plan with the other loans minus the credit card until this issue is resolved or what do you guys think ?

[foolishgirl]

hi foolishgirl,

 

Thanks for the reply, thats all they sent me and yes I know its just a whole load of Terms and conditions, but in most cases after writing to them that look, what you sent me is just a list of terms and conditions, what normally happens, I sense that they just wouldnt accept liability and say, ohh debt written off.

 

Too right!

 

Also, as I have other debts with them as well, these are enforceable, is it worth agreeing a payment plan with the other loans minus the credit card until this issue is resolved or what do you guys think ?

 

If they will do this, it sounds a good step forward. Suggest you don't send the above letter until you have agreed the payment plan

 

FG

[omoeko]

One other thing, as I am struggling with payments at the moment, they have setup a temporary payment plan where interest rate has been set to 0.01 and paying a nominal fee every month, what will be the consequences of taking this action and although I will sent a counter letter that foolishgirl posted above, I am scared that they might pass details onto Baliffs etc.

 

Which is what I am avoiding.

[foolishgirl]

One other thing, as I am struggling with payments at the moment, they have setup a temporary payment plan where interest rate has been set to 0.01 and paying a nominal fee every month, what will be the consequences of taking this action and although I will sent a counter letter that foolishgirl posted above, I am scared that they might pass details onto Baliffs etc.

 

 

What does 'temporary' mean?

Have you got any CCJs? They can't use baliffs without having a court order first.

 

Certainly the interest rate you are paying sounds particularly good, you are wise to think twice before rocking the boat I don't know all your personal cicumstances.

Have you considered CAB or similar taking along all your paperwork?

[omoeko]

What they said was they, they would allow me pay the nominal payment for the next 6 months, after which they will review my situation.

 

The problem is that, I have spoken to 2 charities and they have advised, IVA or Bankrupcy as DMP would carry my repayments pass my retirement and because my health is not the most stable as well, I am afraid of tying myself in for so long, but with the IVA, I know the payments will be totally affordable even though I might be approaching retirement and the fact that all debts will be totally written off, but I think IVA is what really suits me, what I am trying to do is trying to structure the loans, fight off CCAs to see which ones can/cannot be written off, fight off PPI claims etc, all these things take time.

 

So the plan is that within 6 months, I should know my fate with credit cards CCA and loan PPI, both of which should reduce my debts by about 30-40% then I will go with the IVA.

[omoeko]

What does 'temporary' mean?

Have you got any CCJs? They can't use baliffs without having a court order first.

 

Certainly the interest rate you are paying sounds particularly good, you are wise to think twice before rocking the boat I don't know all your personal cicumstances.

Have you considered CAB or similar taking along all your paperwork?

 

to also answer your question, I dont have any CCJ's yet

[Coffeetime]

Hello to all, would it be possible for someone to have a look at my post. Ive received two CCAs back & not sure if enforceable or not.

 

 

Many thanks in advance

 

http://www.consumeractiongroup.co.uk/forum/getting-out-debt/188640-received-two-ccas-they.html#post2031059

[tamarindo]

Hello I hope you do not mind attaching my qustions to this thread since I am desperate...

I need help and advice please!!!

I think 1st Credit Ltd stiched me up..

 

Anybody here???

 

does a credit card agreement need to be signed by the original creditor before it is enforced or executed since I did signed an application form for a credit card in 2001 but looking into the copy sent by 1st Credit Ltd it is not signed by any creditor!!. In other words would it be enforceable in court.

 

My situation is I have been paying them since then so would the court enforce it anyway!!! i.e is it valid??

 

thanks

Tam

[the_shadow]

Hello I hope you do not mind attaching my qustions to this thread since I am desperate...

I need help and advice please!!!

I think 1st Credit Ltd stiched me up..

 

Anybody here???

 

does a credit card agreement need to be signed by the original creditor before it is enforced or executed since I did signed an application form for a credit card in 2001 but looking into the copy sent by 1st Credit Ltd it is not signed by any creditor!!. In other words would it be enforceable in court.

 

My situation is I have been paying them since then so would the court enforce it anyway!!! i.e is it valid??

 

thanks

Tam

 

If its not signed and dated by the creditor then the document has not been executed properly but this can be fixed at a later date I believe, also the judge can rule an improperly executed document enforceable.

 

Have you checked the document for the prescribed terms which if missing would possibly make the document unenforceable

 

As always just my opinion

 

PmW

[tamarindo]

If its not signed and dated by the creditor then the document has not been executed properly but this can be fixed at a later date I believe, also the judge can rule an improperly executed document enforceable.

 

Have you checked the document for the prescribed terms which if missing would possibly make the document unenforceable

 

As always just my opinion

 

PmW

 

 

Hi

thanks for you reply.

There is not prescribed terms and conditions i.e they did not send it but

the copy is just a signature form without any pre-scribed terms and conditions. But it does refer to terms and conditions NOT provided.

 

Now, read this from the cca 1974 states

"shall give the debtor a copy of the executed

agreement (if any) and of any other document referred to in it, together with a

statement signed by or on behalf of the creditor showing, according to the information

to which it is practicable for him to refer,—"

 

since there is no statement signed by the creditor how can this be

a credit agreement regulated by the cca 1974 as they say???

 

any comments please

 

Tam

[the_shadow]

Now, read this from the cca 1974 states

"shall give the debtor a copy of the executed

agreement (if any) and of any other document referred to in it, together with a

statement signed by or on behalf of the creditor showing, according to the information

to which it is practicable for him to refer,—"

 

since there is no statement signed by the creditor how can this be

a credit agreement regulated by the cca 1974 as they say???

 

Think youre getting confused and reading the regs wrong... see below:

 

(1) The creditor under a regulated agreement for running-account credit, within the

prescribed period after receiving a request in writing to that effect from the debtor and

payment of a fee of [£1], shall give the debtor a copy of the executed agreement (if any)

and of any other document referred to in it, together with a statement signed by or on behalf

of the creditor showing, according to the information to which it is practicable for him to

refer,—

(b) the total sum which has become payable under the agreement by the

debtor but remains unpaid, and the various amounts comprised in that total

sum, with the date when each became due; and

© the total sum which is to become payable under the agreement by the

debtor, and the various amounts comprised in that total sum, with the date,

or mode of determining the date, when each becomes due.

So what its saying is they should give you a statement of the account when they reply back and that the document should be signed i.e. the bottom of the letter etc.

 

........Not that the application/agreement must be signed when they reply to your S78 as in practice this would already have been done else you have an improperly executed document (which is what you have) Have you scanned, edited out all personal info and posted up the agreement for people to check and advise?

 

PmW