Cap1 & CCA return

[Peterbard]

3. You are notified that you are obliged to supply these documents, under S189 of the Consumer Credit Act 1974.

Hi T

I don;t understand section 189 is about definitons of terms?Am i being thick?

Peter

[Peterbard]

MY personal opinion (and others disagree with me ) is that as long as the application form carries all the required details and summary boxes then it can double up as the main document of a credit agreement. Terms and conditions at the time of signing are also part of it and should have also been sent. Any copies should be legible. The terms and conditions they print on statements can only be applicable if they supply a copy of the ORIGINAL terms and conditions which is what allows them to alter them.

 

An application form will NOT be classed as part of the agreement unless it carries all the stipulated components. I have one which a certain company claim to be the agreement but carries none of the items required. Hence I am persuing them for non compliance.

 

I am also making official complaints with TS about 1 call a day from another company who refuse to acknowledge my letters let alone answer the questions in them. I consider daily calls from India a breach of my privacy, harassement, and it raises the question of them passing my personal data to a company outside the EU let alone the UK. I am convinced that is an offence under the Data Protection Act without my explicit permission.

 

2007 is certainly going to get a lot warmer as I am lighting a lot of fires.

 

I have been in contact with the DTI over my continuing disagreement with them on the use of the 1983 regs in regard to post contractual agreement information requests under sction 77-79 of the act. In the most recent letter to me via my MP they state,"It is also a breach of the Act and the regulations to send the application form rather than a true copy of the Agreement."

 

Peter

[Peterbard]

My Pleasure T

 

I Haven't posted any of the responses on here didn't want to upset my MP who so far is being extremely helpful and who just in case he is reading this well deserves the pay rise they are requesting.(nothing wrong with a bit of creeping) i will copy and E-mail it to you.

Peter

 

Peter

[Peterbard]

“creditor” means 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, and in relation to a prospective consumer credit agreement, includes the prospective creditor;

 

Wonderful stuff

 

This will help me with a couple of DCA information requests that are being less than forthcoming at the moment.

 

Thanks for the explination.

 

Peter

[Peterbard]

Quick, call a doctor! Tamadus is having an attack of the over-excited vapours!

I am not allowing myself to be over excited by this latest development. If it is true I will be in a vastly different situation than I first thought. Anyway if it is possible to have a copy of the letter would you mind letting me have one as well peterbard. I will buy you a drink one day!

 

Sorry i wasn't aware of the discussion on this thread or i would have volunteered it earlier i will send you a copy.

[Peterbard]

Now my question is how come Peter got a much better reply from Ian McCartney than I did ??

 

Perhaps he saw that i wasn't as well informed as you T and let his guard down.

Would you like to see the full letter and my response.

 

Peter

[Peterbard]

Under the defs of the CCA I don't think so, but it's worth a discussion because I think they should have to

 

I don't think the cca's are regulated by the cca, isn't it the dpa they answer to.

Anyway don't the only hold info sent to them by the creditor and registry on defaults ccjs etd they don't have access completete agreements.

 

Peter

[Peterbard]

My understanding is that when you sign your contract with the creditor you give them the right to share data on certain aspects relating to how the account is maintained,notice of any defaults date account open etc.

The bone of contention has always been that the creditors continue to provide this information or the cra's hold onto this data long after your consent has expired (at the end of your contract).

I do not think that the CRA ever have acces to the complete agreement.

 

Peter

[Peterbard]

The DPA is not one of my strong points but i was under the impression that the Data controler at the source ie the creditor was responsible for giving the correct data to the cra.

That is who I have been refered to when i have queried an incorrect default on my record.

Is this the section you frefered to Tide Turner.

14. - (1) If a court is satisfied on the application of a data subject that personal data of which the applicant is the subject are inaccurate, the court may order the data controller to rectify, block, erase or destroy those data and any other personal data in respect of which he is the data controller and which contain an expression of opinion which appears to the court to be based on the inaccurate data.

 

Peter

[Peterbard]

I am aware of this Peter, but my contention is that when you have told them the informaiton is held unlawfully or is incirrect, I don't see that it is sufficient for the CRA to say, "well the original creditor says it's right, so i is"

 

In My experiance that is exactly what the do say, which is why you have to contact the Data controler at the bank.

 

THis is what i have done successfully with both Barclays and the Nat Wewst in both cases getting my defaults removed.

Have I missed a short cut.

would like to see that diagram of your TT

Cheers

Peter

[Peterbard]

But The CRAs are Data Controllers in their own right Peter, so they have all the same responsibilties that the "orginal" data controllers have too!

 

Please don't think i am trying to start an argument this is a learning experiance for me but isn't the only Data controler at the Bank the one with all the information(The agreement) .The cra only gets the data that your consent on the contract or the Data Prtection Act allows him to pass on.

 

Cheers

Peter

[Peterbard]

Hi UB

Look At Setion139(1) and particularily 171(7) of the cca

 

Peter

[Peterbard]

I think terminator was just using that as a illustration.

I have in my work with the credit union come across companies that wee opperating on an APR of 350%.

 

How do they get away with it ? they get away with it because the people that they lend to can't afford to make a complaint.

 

Peter

[Peterbard]

Folowing the letter i recieved from the DTI regarding the 77-79 CCa request and the mater of how to validate an unsigned agreement as a true copy I have sent the folloing reply which has been forwarded to them via my MP.

RE Consumer Credit Act 1974

 

Thank you for your response to my query regarding the Sections 77-79 of the consumer Credit Act 2006.

 

I have read the reply and have the following comments

 

Perhaps I was not clear in my original correspondence; I am aware that Sections77-79 applies to executed agreements and is therefore post contractual. My point was this: I can understand why the production of unsigned copies of a contract might be understandable on a pre-executed document; the prospective client may want to examine the terms and conditions before signing.

 

When a debtor requests a copy of executed agreement it is usually to, check on the amount owed on the account, or to facilitate a voluntary termination settlement, or to check an early settlement penalty’s, interest rates applied to the accounts etc. Therefore it is essential that the copy he/she receives is a true copy of the original.

 

The question is: how the creditor to validate the agreement as a true copy without a signature?

 

The agreement may have been made some years ago realistically there is no telling haw many changes have been made on it due to changes in company policies or interest rates etc. As we all know just a word or even a punctuation mark in a contract can alter the meaning completely. It seems a little unlikely that the normal person would be able to authenticate what could be a five page document as being a true copy of the original.

 

 

 

 

The answer from the DTI is that, if you disagree with that a true copy has been sent then it will be up to the court to judge whether to enforce without a signed agreement. I am sure that the judge would not be impressed with an action being brought when it could have been resolved by the inclusion of a signature on a duplicate document.

 

The facts of the matter are that most people do not want to go to court to prove the existence of a contract they would just leave it at that and accept the creditor’s word , is this good enough?

 

Realistically and with the best will in the world is the creditor going to send a copy of an agreement that may be 6 years old, is it suggested that creditors keep copies of all unsigned agreements even though they are out of date? What will be sent is a copy of the current documenting which undoubtedly will have been altered over the interceding period.

 

If the creditor was going to send an unsigned copy of the original he would have to cover the signature box and again why he would bother as a complete document would prove its validity.

 

I am worried that this will impact on the less well off in our society mostly, the ones who have to deal with high interest rate or doorstep lenders where the CCA is already being flaunted outrageously and remove one of the few legal recourses that they have to ensure that they are being treated fairly.

 

The position is made worse by the rescinding of section 127 sections 3-5 of the CCA when the CCA2006 comes into force; these sections prohibited the courts from enforcing an incorrectly or unexecuted agreement. This was a safety net and prohibited the enforcement of incorrectly executed documents which include those that were not signed.

 

Also with the removal of the £25000 limit on the agreements being regulated by the act I would have thought that total accuracy of financial information was more than ever required due to the sums involved.

 

I would welcome your comments and recommendations

 

 

Peter

The correspodance recieved form my MP indicates that I should have a reply within a month.

I will Keep you posted.

Cheers Peter

[Peterbard]

You know meagain your abloloutly right.

 

Still I think they might get the idea

 

Rears

 

Peter

[Peterbard]

Thanks we will see if it does any good.

 

Regs

Peter

[Peterbard]

Hi

The letter is pretty similar to the one i recieved earlier the reply to which is posted in this thread.

It does seem that there seems to be a difference of opinion between the transitional arrangments in the CCA 2006(Below) and the response in your letter.

ODD

 

"1 The repeal by this Act of—

 

(a) the words “(subject to subsections (3) and (4))” in subsection (1) of

section 127 of the 1974 Act,

(b) subsections (3) to (5) of that section, and

© the words “or 127(3)” in subsection (3) of section 185 of that Act,

has no effect in relation to improperly-executed agreements made before the commencement of section 15 of this Act. "

 

In other words all agreement improperly execued and unsigned prior to April 6th are unenforceable even after the act is introduced

[Peterbard]

Yep

Pretty much word for word only the one i recieved had a bit in it about a application form not being accepatable as an agreement.

By the way if you want to look it up the transitional provision i quoted above is Schedule 3 section 11 of the 2006.

It is worth looking at some of the other transitional arrangements there as not all commence at the inception of the section of the act.

 

Peter

[Peterbard]

Hi

Below is a copy of the letter sent from Ian Mcartney after a arepresentation made by me to my MP, sorry about the delay in posting but I was awaiting my MP OK.

 

It is not complete as ihave removed refernce to certain issues not relavant to this thread. I have underlined some interesting points and have added some comments at the end.

 

dti

 

21 December 2006

 

Re consumer credit act 1974

 

Thank you for your letter of the 7th of December on behalf of your constituent Mr Peter Bardsley of******************* about a possible irregularity in the Consumer Credit act 1974.

 

The Consumer Credit (Prescribed Periods for Giving Information) Regulations apply to all the situations that ate listed in the Schedule to the Regulations and this include Sections 77 and 78 of the Act, which are about copies of the executed agreement and not pre contractual information

 

The Cancellation Notices and copies of Documents Regulations are made under Section 180 of the Act ) power to prescribe the ford etc of documents) and Section 180 enables Regulations to be made to provide for including/excluding certain information from copies sent out under the Act. The Regulations apply to all copies sent our under the Act unless specifically excluded in the Regulations themselves.

 

Mr Bardsley describes a situation in which he was sent a copy of a company’s standard Terms and Conditions when requesting a copy of a signed agreement form. 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**

 

If Mr Bardsley feels that the rules are being flouted he should report the companies concerned to Trading standards and the Office of Fair Trading. It is also a breach of the Act and the Regulations to send the application form rather that a “true copy” of the Agreement.

On the point that Mr Bardsley makes about unscrupulous companies adjusting agreements, If there were a dispute about an agreement, the lender would need to prove to a court that there was an agreement and, it is highly likely that the lender would have to produce the original signed document to prove they had and agreement with the consumer to start with,

The lender should need to prove to a court that there was and agreement **and, it is highly likely that the lender would have to produce the original signed document to prove they had an agreement with the consumer to start with. If the lender can’t prove the existence of the agreement, winning any court case would prove difficult.

 

 

Approved By the Minister and signed in His presence

 

Pp Ian Mc Cartney

 

 

**This confirms that the burden of proof is on the creditor to provide proof of the existance of an agreement and not on the debtor to prove it's none existance.

 

My response to this letter is posted earlier in this thread.

 

Peter

[Peterbard]

Firstly I would not accept an unsigned copy of the agreement as being a true copy and would write back and say so, see earlier postings and sample letter.

Secondly yes the judge would certainly require a copy of the signed agreement in order to proceed.

See section127 of the act and the earlier posting of the letter from the dti.

Hope that helps

 

Peter

[Peterbard]

The iissue is that whilst the section 77 request can .courtessy of the SI be an unsigned true copy , I would say that there is no way that i would be able to verify it.

If it had my signature on it,then to me they would be complyng with the request and i would say thank you very much and accept that they had fulfilled their obligation. (I think even the banks would draw the line at forgery). If this was the case it would not be appropriate or logical to use it as a defense.

 

Regards

Peter

[Peterbard]

Got phone call today from a dca I think

Ring Ring

Hello

Is that Mr Bardsley

Speaking

Could I have your address and date of birth?

Who am I speaking to?

Michele

Hi Michele do I know you

No will you give me you r address and date of birth

Why would I give you that information?

So that we can identify you

So who are you?

I can’t tell you it’s the law.

I can’t tell you my mother always told me not to talk to strangers.

Click

Strange beings these debt collectors

[Peterbard]

Also, does a credit card agreement have to be signed. just applied for an MBNA card online and they sent the card without my signing any agreement. Would the debt stil be enforceable. The card has arrived and has been used.

 

The CCa 2004 Electronic agreements regulations works under section 7 of the the 2000 electronic comunications act which states "

Section 7 of the Electronic Communications Act makes provision for electronic signatures and related certificates. It provides that in any legal proceedings, an electronic signature incorporated into or logically associated with a particular electronic communication shall be admissible in evidence in relation to any question as to the authenticity or integrity of the communication.

and modifiaes the 1974 act in order to enable on line execution of agreements.

This came into force in December 2004 and adapts the pre contractual sections of the act(sections 60etc)to evable the agreement to be made by electronic means.

 

Asfar as the sigature goes

"Reg 6(5), as inserted by the Order, provides that where an agreement is intended to be concluded by the use of electronic communication, the creditor or owner may include (as part of the signature box) information about the process or means of providing, communicating or verifying the signature to be made by the debtor or hirer.

Such wording may not however be included if the agreement is not intended to be concluded electronically. "

 

Regs Peter

[Peterbard]

HI Uni

 

Yes Uni

I looked it up some time ago whin i was questioning a purchase made by my daughter online.

Any enforcement defaults or terminations of contract still have to be done by post however.

 

Peter

[Peterbard]

Originally Posted by maybelline

I am also searching around re supplyying copy of agreement but I have seen a thread (cca and tme limit) with info stating that copies dont have to have a signature box etc, so now I am confused again?

 

also - I have a reply from a CCA request, stating 'a copy agreement cannot be provided. we have therefore closed this account due to the information being unavailable. please note this will not be removed from your file and may prevent you from obtaining credit in the future.' my query is regarding continuing to process information for a debt that effectively does not exist? I know there are some threads that have gone into this query but I cant remember where.

You know this makes my blood boil. Instead of just holding their hands up and saying we have lost the agreement they have to try and get at you some other way.

I would write back a very strongly worded letter threatening them with reporting them to the OFT getting their credit liscence revoked Contravening the Administration of justice act. and then if they have put placed a remark on your credit report sue for deformation of charector and non conformance with the DPA. Ba*****s

Peter