Cca I.f. Received Is It Legal

[sunflower99]

Account in dispute recieved by them 09/07/09, have had no reply as yet, allthough I am still recieving statements with charges on them, last two letters from them were dated after they recieved my accont in dipute. They can stick it where the sun dont shine untill I recieve a letter responding to my request of account in dispute, I have proof of delivery. Now do I send another letter titled LBA or wait, comments please

Hi Carpinjoy

I cant advise you on LBA as i never really did any of those letters or gone down that road.I just send them account in dispute letters telling them i dont think their alleged cca is legally enforceable and asking for informal visit to view it at thier offices i am just playing the waiting game! makeing a bit of a paper trail!,I wait to see if they take me to court and then go for them!:Di am locked in battle with MBNA and their scummy solidtors Restons now who have issued a court claim against me but with the help of CAG im going to give em a good fight!

[sunflower99]

Having fun with Debitas - MoneySavingExpert.com Forums a link to some hilarious calls from Debitarse!

[carpinjoy]

I had a phone call today asking for payment, I told them acount in dispute and that I have had no reply to my letter, she told me that there was nothing on the file to state that they had recieved my letter and that there was still charges being added to my account would I like to clear them now. Told her since it is in dispute and that I have proof that they have recieved my letter, that it was against the law to put charges onto my account also that they should not be asking for payment untill this matter is resolved. She then tried to get me to say that I have cancelled my agreement with them and that I was no longer using the services of the CCCS, this I stated to her was not the case, I had suspended my monthly payment in lue of the dispute and that the CCCS were still helping with all of my other issues untill resolution of my dealings with I.F. I think a piece of sculldugery was afoot but to no avail. conflab ended with, will put you on a ten day grace untill my letter can be answered, and can I send another one. NO CHANCE I HAVE PROOF YOU HAVE THE FIRST ONE GOODBYE.

[sunflower99]

Good for you carpinjoy! !

[carpinjoy]

They keep trying all sorts of tricks to trip us up, I have been getting phone calls from a number that I dont know, when I answer it , it immediately goes dead 02920 468908, dont know who or why, it makes you wonder though, if anyone knows it or starts to recieve calls from the number let me know please. regards to all.

[kiptower]

searching it comes up with this

 

its Aqua credit card company part of Halifax

[carpinjoy]

In other words it is I.Finance trying to badger me, thank you very much kiptower, I will now start to log the calls, I have been called at least 6 times so far as I stated as soon as you answer the phone it goes dead on you so you cant record anything. I have a answer machine, however that does not kick in soon enough. Why oh why do they pull strokes like this, what do they gain from it.

[carpinjoy]

I have had several phone calls from Halifax this week regarding payment, I told each one that account in dispute, they are stating still nothing on file to say they have recieved my accont in dispute letter. I have told each caller that I have proof that they have got it (even told them the date that it was signed for). and to leave me alone untill this is settled. The phone calls from Aqua cc company have stopped for the moment, I wonder if they have read this thread. PROBABLY!!

[carpinjoy]

I recieved this today, (anyone else got one) I dont think it changes anything regards my account in dispute, which they still have not answered since recieving it.

[sunflower99]

Glad you still giving them grief Carpinjoy:D

[carpinjoy]

I am still punching away, they wont get a penny from me untill they provide a valid agreement. I sent a second account in dispute, which I know they have recieved but not acknowledged, so their problem not mine. ha ha

[carpinjoy]

Latest from I.F. I am going to phone this mob as I dont like the threats that they are making. Then I shall follow it up with a letter.

[carpinjoy]

I have spoken to this mob on the phone, they are part of the lloyds group, so they are internal, just like debitarse, nothing to worry about. I have sent them a letter, telling them to pass it back and to confirm that no one has permission to call at my property and the outcome police wise if anyone did. that should do it. Give them the same threats that they give to us so readily.

[sunflower99]

Hi Carpinjoy!

Snap! I just got a letter from reliable collections they are sending the heavies i am getting a visiter today,Oh well i think they will turn tail and run if my OH answers the door !i cant help feeling worried about the dca as i dont want to find a DCAS bits splattered all round our home as i am a bit worried my OH will go a bit mad and start waving his baseball bat round,I wouldent wish that even on a DCA:eek:

[carpinjoy]

HA HA good for you, hope your OH splats him or her, they deserve all that comes to them.

[citizenB]

You might find this letter from the OFT useful.. BRW reproduced it in Text format.. the original can be seen in the following link posts # 35 and 37

 

Miss Muppet v MBNA - *** WON + COSTS ***

 

 

 

 

This may be of use, it's the OFT letter above, but in Text Format, so people can Copy/Paste anything they need:

 

 

 

THE CONSUMER CREDIT ACT 1974 - Sections 77 and 78

Summary

On request and when accompanied by £1, a consumer has the right to:

• a copy of their executed agreement

• any other document referred to in it

• a statement showing

- the total sum paid under the agreement by the debtor

- 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. If the creditor is unable to give this information, he can state instead how the dates and amounts fall to be ascertained.

The copy of the executed agreement need not be an exact copy but it must be a ‘true copy’ and not some reconstruction of what the original might have been and it must contain the same terms as the original. Where the terms have been varied as provided for within the agreement, the copy of the original agreement must be accompanied by a document setting out the current terms, as varied. Certain details may be omitted from the original agreement eg the signature but the debtor must be in no doubt as to the true nature of his obligations under the loan.

Should no original agreement be in existence it is very hard to say that the copy the creditor offers to the debtor is, in fact, a true copy as there would be no original with which to compare it. In our view the onus of proof would be on the creditor to show that the copy is a true one and where none existed he may have difficulty discharging this. Neither should creditors suggest that a consumer has signed a credit agreement where they are unable to provide evidence to support this — to do so is likely to be a misleading action under Regulation 5 of the Consumer Protection from Unfair Trading Regulations 2008 (the CPRs) and would also constitute an unfair or improper business practice.

In our view a debt collector who has bought the debt is the ‘creditor’ and as such takes on the liabilities of section 77.

Under section 77(4), if the creditor is unable to provide this information, he is not entitled to enforce the debt while he remains in default (Decriminalised from 26 May 2008 on the coming into force of the CPRs).

Legal Argument

A copy of the executed agreement

 

Under the prescribed condition, section 77 of the Act requires the debtor to (Typo, she means Creditor I think) ‘...give the debtor a copy of the executed agreement (if any)....‘. The ‘if any’ most naturally refers to the exception for agreements older than 1985 (Not sure this is correct, "if any" was inserted to cover Verbal Agreements).

Where a creditor receives a request to supply a copy of the executed agreement, the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (‘1983 regs’) apply. Regulation 3(1) sets out the basic position that ‘every copy of an executed agreement... shall be a true copy’.

Regulation 3(2) goes on to concede that there may be omitted from this true copy various information such as details which are not required to be in the agreement by law: the signature box, signature (it should be noted that sub-ss 3-5 of section 127 do not apply to agreements entered into after 1 April 2007.A Court may then, for example, enforce unsigned agreements if it considers it is just to do so.) and date of signature. In our view the effect of Regulation 3(2) is that the creditor is only obliged to send out a generic copy of the agreement the debtor has signed up to. The creditor is not obliged to make an actual photocopy of the agreement.

However, the copy does have to be a ‘true copy’. This is a technical term, which has been discussed in a number of cases, mostly relating to bills of sale and the need to register a ‘true copy’ of the bill with the High Court. These cases come from the days before typewriters, when copies were made by hand. The consequences of filing a copy which was not a true copy were severe, since the bill would then be void and the creditor deprived of his security.

Meaning of ‘true copy’

 

In this context, the courts decided that a ‘true copy’ need not necessarily be an ‘exact copy,’ but it must be ‘so true that nobody reading it can by any possibility misunderstand it’ or be misled by it (In re Hewer ex parte Kahen (1882) LR 21 Ch.D. 871 at 875). The copy must contain ‘every material provision which is contained in the original’ (except that if the defect is made good by reading the document as a whole, the omission will not be fatal) (Court of Appeal in Burchell v Thompson [1920] 2 KB 80 at 98-99). Further, it is not sufficient for the copy merely ‘to state with complete accuracy in a summary form the effect of the stipulations contained in the original. It is not merely a document that is to state the true legal effect of the original; it is to be a copy of the original’ (per Atkin LJ in Burchell at 105).

Hewer, ex parte Kahen - the filed copy of the bill omitted the precise day of the month on which payment was to be made. The court held this was trivial, and no debtor would be misled by it.

Sharp v McHenry (1888 ) LR 38 Ch.D. 427- the copy contained blanks which were not in the original. The court decided that the blanks were unimportant, since the omitted words were not required for the original bill to be valid.

Burchell v Thompson [1920] 2 KB 80 - the copy failed to include the words ‘per annum’ after the interest rate of 55%. The reader of the copy would have to guess whether the interest was per annum, per month or something else but as one could sensibly assume, correctly, that it was per annum it was a true copy.

Commercial Credit Company of Canada Ltd v Fuiton [1923] AC 798 - suggested further that where there are a raft of smaller differences in a bill of exchange copy, this could prevent it being a true copy. However where the differences were such as to make the copy contract actually different to the original, the copy will not be true. Lord Sumner, speaking of the man who may wish to refer to the copy, concluded that ‘the Act promises him ... a true copy, not a puzzle. He is to inspect it, not to recover the original by a process of conjectural emendation’ (at 807).

Terms and Conditions

 

Regulation 7(1) of the 1983 Regs requires that a requested copy of an agreement which has been unilaterally varied under section 82(1) of the Act, shall be accompanied either by the latest notice of variation or a copy of the terms and conditions as varied. Regulation 7(2) extends the principle to copies of varied securities supplied either to the consumer or the surety.

Debt collectors as creditors

A consumer credit debt can be assigned in two ways: in law under the Law of Property Act 1925 or in equity but in practice we need to be concerned only with statutory assignments.

For a debt to be assigned in law, there are three conditions:

• the assignment must be absolute.

• the assignor must make the assignment in writing.

• express notice of the assignment must be given in writing to the debtor (see section 136 of the Law of Property Act 1925).

 

The reason the debt is assigned is immaterial. For instance, books of loans may be sold on to be collected as an asset rather than as a discounted debt.

In some instances, the debt collector may have purchased a debt but not have the relevant agreement. Whilst, in general, ‘liabilities’ cannot be assigned there must be a question mark over whether ‘duties’ are the same. This is important since there is a rule, expressed in Tito v Waddell (No 2) [1977] Ch 106 at 289 to 302, that where a benefit is conditional upon some burden, the assignee must also take the burden. An example is where the contractor has the right to mine on condition that they pay compensation to those disrupted by the mining. If they assign their right to mine, the assignee takes this right subject to the duty to pay compensation.

Therefore, there is a strong argument that under the Act, the right to payment is never absolute. It is always subject to duties (many of which are imposed under the Act). For instance, the right to enforce the credit agreement at all is subject to the duty to comply with section 77 or 78. This duty is not a ‘liability’ as such under the credit agreement but is a condition of the right to repayment.

 

There has been a suggestion that debt collectors can avoid complying with section 77 and 78 by claiming that the agreement is no longer `live’ in some way as it has been ‘terminated’ based on section 103 of the Act. This talks of a ‘trader’ who was the creditor under a regulated agreement, implying that ‘trader’ is no longer a creditor once an agreement is ended. Section 103, however, deals with where the customer no longer owes any money at all and therefore it is correct to say that he is no longer a debtor and the trader is no longer his creditor. Where money is still owed, section 103 would not apply, since the consumer would not be entitled to a termination statement.

The first issue on when the debt collector becomes the creditor is relatively simple. Section 189(1) of the Act defines ‘creditor’ as ‘the person providing credit under a consumer credit agreement or the person to whom his rights and duties under the agreement have passed by assignment or operation of law.’

 

Where the debt collector is not acting as the creditor’s agent, or otherwise on his behalf, the only legal basis he can have for demanding payment from the debtor is if the creditor’s rights and duties have been assigned to him. Therefore we can be reasonably confident that a debt collector who has bought the debt is the ‘creditor’.

 

Unpalatable though section 77 and 78 may be for some creditors, if the debt collector is unable to prove the debt, they should be more careful about the debts they buy. They cannot complain that the sections are somehow unfair as it is in the Act and so must be complied with. It is up to them to ensure they purchase and maintain sufficient records to be able to prove the debt and comply with the other requirements of the Act.

 

Misleading statements to debtors

 

Sections 77 and 78 refer to supplying a copy of the ‘executed’ agreement within 12 working days of receiving a written request from the debtor. Failure to do so makes the agreement unenforceable against the debtor until a copy is provided. In addition, if the default continues for a period of 1 month the creditor is in breach of the Act.

Execution involves signing the agreement. If no agreement has been executed, it is impossible to supply a true copy of the agreement. Should a creditor supply a copy agreement, even though the debtor has never signed any agreement with that creditor, no indication should be given that it is a true copy or a copy of an executed agreement. To do so may contravene Regulation 5 of the CPRs and be an unfair or improper business practice.

 

The consequence of the debtor not having signed a credit agreement with the creditor is that the agreement is unenforceable except where the court orders that enforcement may take place. Where the agreement was made before 6th April 2007 the court is not able to make such an order unless the agreement was signed by the debtor.

 

Therefore it is misleading to state, when complying with a section 77 or 78 request, that the debtor has signed or would have signed (or similar) the enclosed agreement where the debtor has not done so. From 26 May 2008 such a statement will be a breach of the Consumer Protection from Unfair Trading Regulations 2008 (CPRs). Regulation 5 of the CPRs states that a commercial practice is a misleading action if it contains false information in relation to the main characteristics of the product (amongst other matters) and is likely therefore to cause the average consumer to take a transactional decision he would not have taken otherwise. The product in question is the credit agreement and the main characteristics include the ‘execution of the product’ (Regulation 5(5)(d) of the CPRs).

Telling a consumer that he signed such an agreement is also a misleading statement about his rights and the risks he might face as covered by Regulation 5(4)(k) of the CPRs. It is our view that it is likely that a consumer will take a transactional decision to make a payment under the credit agreement or to refrain from exercising his rights under the agreement as a result of being misled about whether he signed it.

 

Breach of Regulation 5 of the CPRs is a criminal offence under Regulation 9 and can also be enforced under Part 8 of the Enterprise Act 2002. Under section 218A of the Enterprise Act, where an application for an Enforcement Order is made the court may require the Respondent ‘to provide evidence of the accuracy of any factual claim’ (such as a claim that a debtor has signed a credit agreement).

In addition, it should be noted that threats to take action that cannot be taken is listed as one of the factors that will be considered in assessing aggressive practices in Regulation 7(2) of the CPRs.

May 2008

 

Susan Edwards

Head of Credit Investigations and Enforcement, Office of Fair Trading

Cheers,

BRW

[sunflower99]

I have had several phone calls from Halifax this week regarding payment, I told each one that account in dispute, they are stating still nothing on file to say they have recieved my accont in dispute letter. I have told each caller that I have proof that they have got it (even told them the date that it was signed for). and to leave me alone untill this is settled. The phone calls from Aqua cc company have stopped for the moment, I wonder if they have read this thread. PROBABLY!!

Hi Carpinjoy

Snap again! Halifax sending me two or three messages a day on my phone.They somtimes ring at 8.30 in the morning which is rather early .i sent them over a £100 last month you think seeing i often make some sort of payment even if a bit on late side would make them leave off me a bit

[sunflower99]

You might find this letter from the OFT useful.. BRW reproduced it in Text format.. the original can be seen in the following link posts # 35 and 37

 

Miss Muppet v MBNA - *** WON + COSTS ***

Yes that is a great letter from CitB,I will be using that one in my next Wescott lettter who Barclayshark set on me if they carry on threatening me! Prioroty one who helps me on my Barclayshark thread pens some great letters too! i will post their last one on this thread for you as it may come in handy for your DCA wars:grin:

[sunflower99]

Dear xxxxx

 

Your Ref xxxxxx

 

I do not acknowledge any debt to your company or to any company you claim to represent.

 

A request for my Consumer Credit Agreement (Consumer Credit Act, 1974) was received by xxxxxxx (name of company) on xx/xx/xx. Since they are now in serious fault of a legal request, I can only assume that xxxxxxx have either failed to inform you before supplying instructions to contact me or, have failed to inform you you before your purchase of this account; in which case, they would not be your clients in the sense that you imply. I therefore suggest that you liase with xxxxxxx before contacting me again.

 

In the meantime, please be aware that no action can be taken against a disputed account and this includes the following :

 

You/your "client" may not demand any payment on the account, nor am I obliged to offer any payment to you.

 

You/your "client may not add any further interest or charges to the account.

 

You/your client may not pass the account to any third party.

 

You/your "client" may not register any information in respect of the account with any of the credit reference agencies.

 

You/your "client" may not issue a default notice related to the account.

 

In addition, please be awre that your recent telephone calls (delete if N/A) and letter to my home could, under the Administration of Justice Act 1970 section 40, be construed as unlawful harrassment in the absence of such an Agreement. As you claim in your letter to have been "instructed" by xxxxxxx, please note that any court claim regarding harrassment would be brought against both xxxxxxx and yourselves should this be necessary; since you would be complicit in this action (delete if N/A).

 

You may therefore consider this letter a statutory notice under Section 10 of the Data Protection Act 1998 to cease processing any data in relation to this account with immediate effect. This means that you must remove all information regarding this account from your own internal records and from any records with any credit reference agencies. Should you refuse to comply, you must within 14 days provide me with a detailed breakdown of your reasoning behind continuing to process my data. It is not sufficient to simply state that you have a legal right; you must outline your reasoning in this matter and state upon which legislation this reasoning depends.

 

I look forward to a favourable response within 14 days of the date of this letter, informing me that on this occasion you have made a genuine mistake and that you files are now closed. Failure to respond favourably however, will result in me reporting this matter to Trading Standards, Office of Fair Trading, The Financial Crimes Branch of HM Treasury and any other authorities as I see fit.

 

I look forward to your reply in due course.

 

Yours faithfully,

 

 

[sunflower99]

The above is a letter PriorityOne posted on my Barclayshark thread to use! I thought it might come in handy for you too! I just sent it to Wescott who Barclayshark set on me and i think it upset them as the rather posh lady from Wescot who kept leaving me annoying messages on my answer machine seems to have stopped and i just got an aplogetic letter saying they will look into things:D so hopefully i have seen them off as if they dont stiop will be complaining about them to OFT!

[carpinjoy]

Thank you all for your responses, I will use most if not all the information that you have so kindly posted for me. As usual I will keep all of you updated as we go. Where help is URGENT is with threads by Beachcomber and myself regards unregulated car loans is the legal sect: disaster with M.B.finance. Views much needed. Thanks again to all.

[Keasby]

Hi there-

 

I have a similar situation, my CCA arrived today and I've started a thread on it. Mine is all but identical to Carpinjoy's but mine has my name and address at the top in section 1- Parties.

 

Does that simple change make it enforceable.

 

They also added a sheet to the letter outlining

1/. Balance

2. Credit Limit

3. Interest rates

4. Arrears

5. Currently payable (arrears + next payment)

 

Is this enough to make it a legit CCA?

[sunflower99]

Hi there-

 

I have a similar situation, my CCA arrived today and I've started a thread on it. Mine is all but identical to Carpinjoy's but mine has my name and address at the top in section 1- Parties.

 

Does that simple change make it enforceable.

 

They also added a sheet to the letter outlining

1/. Balance

2. Credit Limit

3. Interest rates

4. Arrears

5. Currently payable (arrears + next payment)

 

Is this enough to make it a legit CCA?

Hi Keasby Is it signed by you ?What year was your card taken out?

[Keasby]

It was either the end of 2005 or the start of 2006 but there is not hint of signature, nor place to sign in agreement.

[carpinjoy]

If you did not sign it then not enforcable.