Nasty reply to my CCA request - please advise

[always fighting]

Hi

 

I have received a letter in response to my CCA request within the 12+2 days time limit.

 

I have never ever seen such a rude and nasty response from a large organisation.

 

They state that they have provided a 'reconstituted version of the executed agreement'. They also state in their fluffly jargon that the documents they have supplied can omit the signature, remains enforcable ( not that at any point have I said to them it isn't) and that they have satisfied their obligation under section 78.

 

They then repeat that it's enforcable and they will treat it as such. It then warns me of using a claims management company (?????) and states web sites from the Ministry of Justice and the CAB.

 

It refers repeatedly to 'your client' also ??????

 

It is rude, aggressive and shameful.

 

Now here is the technical stuff - the documents supplied are:

 

Credit Card Agreement regulated by the Consumer Credit Act 1974.

- stating it is a copy of your agreement for you to keep.

 

It states it is an agreement between Bank of Scotland plc ( BUT THIS WAS OPENED WITH HALIFAX WAY WAY BEFORE THE MERGE ????) my myself and my current address. - No date supplied either !!!

 

It mentions credit limits are set from time to time and does talk about repayments and interest rates.

 

What has made me very cross is the letter also quite clearly states:

 

We will not be entering into any further correspondance with you regarding ther equirements relating to the provision of copy agreement.

 

Please advise...........................

 

Is this document acceptable from them.

 

What do you think I should do next.??

 

With a letter like that - if they want a fight - lets go !!!!!!

 

Many thanks for any advice given.

[Desperate Daniella]

It's obviously complete and utter garbage and they are desperate. When I asked for mine they sent a copy on an application form with no prescribed terms on it, and a copy of an application for a Halifax card which they wouldn't give me, but that did that the terms and my signature. Realized afterwards that they wouldn't give me the Halifax card because I wanted an interest free balance transfer from the BoS card. They were clearly trying to pass of the Halifax application as part of the BoS one.

 

You can post it up for us to have a look at, but at the very least I think you should write back to them stating that you did not at any time apply for a BoS credit card so it's clearly not a copy of "your" agreement, and perhaps they would care to explain the document they have sent you.

[deckermbnahater]

I received a similar reponse to my request.

 

It seems that most of Halifax/BOS agreements may be unenforceable in that they do not contain the 4 prescribed conditions in the same form.

 

Also had a laugh when mine referred to Scottish law but I did not get a reponse from my threatagram telling the idiots the error of their ways.

[vint1954]

Well, they do try it on. Imagine being in their office, in their situation, completely devoid of the preverbial pot to pee in.

 

It is obviously not what is required by the act, although they will argue for months that it is. The letter below, points them to what is required, plus the opinion of the OFT on this matter. They are just trying to get you to go away.

 

xxxxxx 2009.

Dear xxxxxxxxx,

ACCOUNT IN DISPUTE

Re account no xxxxxxxxxxxxxxxxxxxxxxxxxxx

I write regarding recent communication regarding the above account. I acknowledge no dept to your organisation.

Further to my request under the above act, your attention is drawn to the fact that this account remains subject to a lawful serious dispute. On xxxxxxxx, by recorded delivery, I requested that you supply me a copy of the executed credit agreement covering this account pursuant to the Consumer Credit Act 1974 section 78, a copy of this request is enclosed. To date you have failed to comply with my request, supplying only a mere reconstruction, and generic terms & conditions, which cannot be linked to any agreement which you claim that I have signed. Without production of the said agreement I am unable to assess if I am indeed liable for any alleged debt to you, nor does it give me any chance to evaluate whether any original agreement was ‘properly executed’ as required by the Consumer Credit Act 1974.

Contrary to your assertion, xxxxxxxx have not complied with the terms of CCA 1974 s78. The documents that you have supplied, do not comply with your duties to supply a “True Copy” of any agreement you claim to have been signed by me, for pre 2007 agreements. As you will be further aware, an agreement is not executed, until signed by both parties, so the document that you have supplied, being a reconstruction, cannot be a True Copy of an Executed Agreement.

While this account remains in serious dispute, the relevant main points of the Law and OFT regulations while the account is in this state and xxxxxx remain in default are:

• You may not ask for payment against this account.
  
• I am not obliged to offer any payment against this account.
  
• You cannot register any data with a third party.
  
• You cannot take any enforcement action, including registering Defaults.
  
• You cannot pass the account on to a third party for collection.
  
• You cannot sell the account.
  

Let me explain here, what a true copy is:

In a recent letter from the enforcement department of the OFT, the text below was quoted, explaining what is required.

“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.”

 

I also refer you to the information below.

1. A valid credit agreement must contain certain terms within the signature document (s.60(1)(2) CCA 1974). These core terms are the credit limit, repayment terms and the rate of interest (SI 1983/1553 (6 Signing of agreement) which states that the prescribed terms must be within the signature document. (Column 2 schedule 6). s.61(1)(a) states the agreement must contain all the prescribed terms and be signed by both the debtor and on behalf of the creditor.

 

 

2. Further, s.127(3) CCA 1974 makes the account unenforceable if it is not in the proper form and content or improperly executed.

 

In Wilson and another v Hurstanger Ltd (2007) it was stated “In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties … and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s.61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement”.

 

2. The need for prescribed terms to be contained in the credit agreement is confirmed by the Author of the CCA1974 act, I quote ““As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97.

 

Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn’t be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I’m glad the House of Lords has now vindicated my reasoning and confirmed that nobody’s human rights were infringed.” - 167 Justice of the Peace (2003) 773.”

I am now granting to you a further 7 days to produce a copy of an executable agreement. After that I will consider that the above matter is closed and that you will no longer pursue the alleged debt. If you are insisting that the non enforceable document, that you have supplied, is the only alleged agreement in your possession, then I would suggest that the best course of action would be to immediately set the balance of the above account number to zero.

I look forward to your response.

[vint1954]

They actually shoot themselves in the foot by admitting that it is a reconstruction. Where in the CCA 1974 does it refer to a reconstruction of an agreement.