Debt Collection Agencies & Consumer Credict Act 1974

[stiffnuts]

This begs the question, what action will Trading Standards take against a DCA who is in breach of the CCA by not providing a copy of the original agreement ?

 

Do you want my honest answer or do you want the answer that will toe the party line.

 

The honest answer is not alot, and thats for so many various reasons such as no time, lack of understanding, more important things etc etc.

 

Unfortunatly you may receive the brush off in which case you have to kick up a fuss complain to the cheif executive, and threaten the local government ombudsman.

 

First and foremost Trading Standards have a legal duty to enforce the consumer credit act. You must point that out if you get stuck. Secondly if after 12 working days then a month has passed you must tell them that you are reporting a criminal offence. Some trading standards may try and say that this a civil part of the consumer credit act, but it is not.

 

You may get lucky and get the trading standards dealing with it right away. Remember though one thing is never be arsey as if you know it and you are telling them their job. Ultimately Trading Standards do not have to prosecute. Be polite and kick up a fuss if necessary but dont be rude. In the end they will assist.

 

Off the subject I would always advise that when you send the CCA letter that you insert one more paragraph asking for a genuine copy the default notice. The default has to comply with the The Consumer Credit (Enforcement, Default and. Termination Notices) Regulations 1983. If it doesnt then they will have a problem.

 

so always ask for

1. copy of agreement

2. Deed of assignment

3. Copy of default notice

[tbern123]

Do you want my honest answer or do you want the answer that will toe the party line.

 

The honest answer is not alot, and thats for so many various reasons such as no time, lack of understanding, more important things etc etc.

 

Unfortunatly you may receive the brush off in which case you have to kick up a fuss complain to the cheif executive, and threaten the local government ombudsman.

 

First and foremost Trading Standards have a legal duty to enforce the consumer credit act. You must point that out if you get stuck. Secondly if after 12 working days then a month has passed you must tell them that you are reporting a criminal offence. Some trading standards may try and say that this a civil part of the consumer credit act, but it is not.

 

You may get lucky and get the trading standards dealing with it right away. Remember though one thing is never be arsey as if you know it and you are telling them their job. Ultimately Trading Standards do not have to prosecute. Be polite and kick up a fuss if necessary but dont be rude. In the end they will assist.

 

Off the subject I would always advise that when you send the CCA letter that you insert one more paragraph asking for a genuine copy the default notice. The default has to comply with the The Consumer Credit (Enforcement, Default and. Termination Notices) Regulations 1983. If it doesnt then they will have a problem.

 

so always ask for

1. copy of agreement

2. Deed of assignment

3. Copy of default notice

 

Thanks, for the info.

 

I started this thread as I sent a CCA letter to a DCA in relation to 3 alledged debts they say they brought. I am still waiting after two months for a copy of one of the consumer credit agreements. The other two arrived after the allowed time frame. However, one of them was over eight years old

 

This particular DCA, have confirmed to me in writing that when they buy debts, they don't receive any documentation. Furthermore there is no way they can supply the information in the time frame allowed.

 

I am concerned as they regsitered a default against me without even having sight of the original agreement or contacting me about the debt.

[stiffnuts]

"At common law a creditor will be entitled to terminate a credit agreement if the terms of the agreement allowed him to do so or if the breach by the debtor was such that it amounted to a repudiation of the contract. The Act does not prevent the creditor from terminating the Agreement" - Business Law, Ewan Macintyre, ISBN 0-582-89422-0 (p.423)

 

"At common law" (all though not incorrect this phrase is not helpful as we have to remember that 99 times out of 100 the agreement will be a regulated d-c or d-c-s)and this is what section 98 CCA1974 is designed for termination when not in default and allowed in the context of the agreemnt.

 

I think that there are wires being crossed here. Your quite right in that the act does not prevent the creditor under section 87 1 a from terminating the agreement. But the statement from a practical and legal point is not helpful.

1. Because the creditor wishes to terminate the agreement it does not mean that it is terminated.

2. From a practical point of view default notice will never specify termination for a breach because there are other options available.

 

Remember we are arguing from a legal perspective, the ordinary lay person will not understand half what is being said and therefore I have tried to use language that conveys the message.

 

The upshot is I am of the opinion that section 77/78 will apply if the account is in default (even if the creditor has gone for termination which in the vast majority of cases that wont be specified in the default notice).

[tbern123]

Remember we are arguing from a legal perspective, the ordinary lay person will not understand half what is being said and therefore I have tried to use language that conveys the message.

 

Well I don't know about the other lay people.... but I get more and more confused with each post :confused: :confused: :confused:

[stiffnuts]

Thanks, for the info.

 

I started this thread as I sent a CCA letter to a DCA in relation to 3 alledged debts they say they brought. I am still waiting after two months for a copy of one of the consumer credit agreements. The other two arrived after the allowed time frame. However, one of them was over eight years old

 

This particular DCA, have confirmed to me in writing that when they buy debts, they don't receive any documentation. Furthermore there is no way they can supply the information in the time frame allowed.

 

I am concerned as they regsitered a default against me without even having sight of the original agreement or contacting me about the debt.

 

Because it arrived after the allowed time frame it does not effect the enforceability of them. Are you sure it was a copy of the original agreement with your signature on it. Im amazed that they have been kept for so long. Anyway the upshot is that they can not enforce the debt until they send you a copy of the original agreement.

 

You can get trading standards involved and yes they may or may not take action, but you have to remember that what ever Trading Standards decide to do that it will not benifit you very much as they will still be able to pursue the debt one they provide a copy of the original agreement.

 

I am no expert on data protection matters so Im not sure whether the new creditor is allowed to register the default.

 

Remember if you have not had contact for 6 years with any of the creditors then it is staute barred (providing there is no CCJ)

[zootscoot]

If there does exist a possibility that an agreement has been terminated and this is what the debtor is being told, is it not best to advise that person to err on the side of caution and find out for definate if the aggreement has indeed been terminated before embarking on a course of action in the vague hope that the debt is unenforceable which could lead to that person incurring a CCJ?

 

Are you sure it was a copy of the original agreement with your signature on it.

 

Can you tell me how you get around Regulation 3 of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 and are able to require them to send a signed copy in order to comply with s.77/8?

[lookinforinfo]

So to summarise Stiffnuts. If the original creditor wishes to sell on a debt,

if he-

1] terminates the contract, he loses everything as the debt is wiped

2]] defaults the agreement, then the company that buys the debt retains

all the terms of the original agreement

[saxon]

Hello, can I ask a question please?

 

I have a letter from a credit card dated 22/04/2003,

 

As you have not met the conditions of this default notice by paying the amount due, we are terminating our credit agreement with you. you must now return the card(s) to us, cut in two for security reasons.

If you do not comply with to the above within seven days from the date of this letter, your account will be referred to a collection agency or legal action.

 

So they have terminated the account, yet 5/11/2003 wrote to tell me they have sold it to Kings Hill on the 17/10/2003.

 

Yet when I CCA'd them on, they replied on the 17/10/2006, that the debt was sold to Cabot Finacial (UK) Ltd. on the 30/10/2003.

 

So as they have written telling me they have terminated the agreement, can they then sell the debt months later?

[stiffnuts]

So to summarise Stiffnuts. If the original creditor wishes to sell on a debt,

if he-

1] terminates the contract, he loses everything as the debt is wiped

2]] defaults the agreement, then the company that buys the debt retains

all the terms of the original agreement

 

>>

[stiffnuts]

If there does exist a possibility that an agreement has been terminated and this is what the debtor is being told, is it not best to advise that person to err on the side of caution and find out for definate if the aggreement has indeed been terminated before embarking on a course of action in the vague hope that the debt is unenforceable which could lead to that person incurring a CCJ?

 

Can you tell me how you get around Regulation 3 of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 and are able to require them to send a signed copy in order to comply with s.77/8?

 

If its terminated then no debt is payable under the agreement anymore (as the default notice has not asked for repayment of sums or asked for the debtor to bring the account up to date etc). Like I said before termination is only really useful in hire purchase agreements.

 

Sorry you last paragraph does not make any sense. Regulation 3 (what subsection)

 

3(1) refers to unexecuted agreements and 3(2) talks about the copy provisions. This has nothing to do with section 77/78 CCA1974 but to do with sections 62/63 CCA1974

 

But I see that you have quoted me as saying

 

"Are you sure it was a copy of the original agreement with your signature on it."

 

Yes very simple sec 77/78 talks about a copy of the executed agreement. The executed agreement will have the debtors signature on it.

[stiffnuts]

Hello, can I ask a question please?

 

I have a letter from a credit card dated 22/04/2003,

 

As you have not met the conditions of this default notice by paying the amount due, we are terminating our credit agreement with you. you must now return the card(s) to us, cut in two for security reasons.

If you do not comply with to the above within seven days from the date of this letter, your account will be referred to a collection agency or legal action.

 

So they have terminated the account, yet 5/11/2003 wrote to tell me they have sold it to Kings Hill on the 17/10/2003.

 

Yet when I CCA'd them on, they replied on the 17/10/2006, that the debt was sold to Cabot Finacial (UK) Ltd. on the 30/10/2003.

 

So as they have written telling me they have terminated the agreement, can they then sell the debt months later?

 

CCA cabot and see what happens.

[zootscoot]

Stiffnuts: 3(1) refers to unexecuted agreements and 3(2) talks about the copy provisions. This has nothing to do with section 77/78 CCA1974 but to do with sections 62/63 CCA1974

 

But I see that you have quoted me as saying

 

"Are you sure it was a copy of the original agreement with your signature on it."

 

Yes very simple sec 77/78 talks about a copy of the executed agreement. The executed agreement will have the debtors signature on it.

 

 

 

Really?

 

Reg 3(1) seems to refer to executed agreement to me, S.63 is specifically excluded under Reg 3(2)(b)

 

S.77 refers to copy provisions does it not?

 

3 General requirements as to form and contact of copy documents

 

(1) Subject to the following provisions of these Regulations, every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall be a true copy thereof.

 

(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 cancellable executed agreement delivered to the debtor under section 63(1) of the Act, the date of the signature by the debtor of an agreement to which section 68(b) of the Act applies);

 

© In the case of any of an unexecuted agreement delivered or sent to the debtor or hirer under section 62 of the Act, the name and address of the debtor or hirer; and

 

(d) In the case of any copy of an executed agreement given to the debtor under section 77(1) of the Act for fixed-sum credit, or under section 78(1) for running-account credit, under which a person takes any articles in pawn, any description of the article taken in pawn.

 

Why was a member on here told by Trading Standards that to comply with s.77 no signature was required in accordance with regulation 3?

[stiffnuts]

Really?

 

Reg 3(1) seems to refer to executed agreement to me, S.63 is specifically excluded under Reg 3(2)(b)

 

S.77 refers to copy provisions does it not?

 

 

Why was a member on here told by Trading Standards that to comply with s.77 no signature was required in accordance with regulation 3?

 

1. You have totally misunderstood the regs and I do not have the time to explain them to you in full. However I will get straight to the crux of the argument because you are looking more and more out of your depth.

 

The final crux is whether a signature is required under section 77/78

 

The only thing you have got right is that there is mention of section 77/78 in reg 3(2)(d) (easy for you really because you have a copy of the regs in front of you. I am trying to work from memory as I am not at work at present so dont have access to lexus nexus)

 

What the reg 3(2)(d) says is that the only thing that may be left out of the copy of an agreement sent under section 77/78 is a description of pawn (if a person takes in pawn to be used as surety).

 

Therefore a signature is required

 

Tell me who from trading standards gave that advice and I will take it up with them.

[JonCris]

Really?

 

Reg 3(1) seems to refer to executed agreement to me, S.63 is specifically excluded under Reg 3(2)(b)

 

S.77 refers to copy provisions does it not?

 

 

 

Why was a member on here told by Trading Standards that to comply with s.77 no signature was required in accordance with regulation 3?

 

Zootscoot If TS stated that (& it doesn't surprise me & frankly nor should it you) then they where wrong & as I recall that was said to the poster at the time. The regs you refer to cover the copy docs required to be supplied to the debtor after completion/cancellation. In the case of a CCA demand the document must be a 'true' copy & that means a copy as 'true' as that originaly signed.

 

The regs you refer to are the 1980's amendment introduced in part to avoid sending detailed signed docs through the post to the debtor which could be 'lost'

[zootscoot]

This is the letter Elsinore got from Trading Standards. Perhaps you would like to explain to Elsinore how TS have misinterpreted the Regulation. I'm sure they will appreciate any advice.

You can find the thread here:

http://www.consumeractiongroup.co.uk/forum/other-institutions/12020-elsinore-aktiv-kapital.html

Dear Elsinore,

Further to your letter dated 31st August 2006 concerning Aktiv Kapital and Lloyds TSB I would make the following comments and observations.

 

While we are happy to advise and guide on any consumer dispute there does need to be openness and transparency in the information provided. It is clear that you have or had a debt with Lloyds TSB and that this debt has been assigned by them to Aktiv Kapital. Whether this has been carried out correctly and whether the debt can be pursued depends on a number of factors which need to be explored.

 

I would suggest that it is in your interest to set out clearly your understanding of the arrangement you had with Lloyds TSB and the way the various accounts were managed and acted upon by you and by the bank. I am reluctant to speculate on the detail, but you accept you had a current account, an overdraft facility and a loan.

 

The current and overdraft facility while requiring being documented and referenced are normally covered by the banks standard terms of business which are accepted by you when the facilities were initiated. There is no necessity for the agreement to be specifically documented. The Consumer Credit Act S74 specifically excludes and covers this point. Similarly it should be noted that for an overdraft facility the provisions of S87 in respect of a default notice are not applicable. Facilities of this type can be immediately called in without the normal 7 day notice required by S76 of the Act.

 

The critical area where there could be some irregularity is in respect of the loan.

 

This should have been separately documented and you should have been provided with a copy of the agreement at the time it was signed. While you are correct that you are entitled to a copy of the agreement the term “copy”, under the provisions of the Consumer Credit Act, does not require it to be a facsimile or exact replication of the loan agreement originally signed. Specifically the copy can exclude signatures and dates of signatures. In effect there is nothing to stop a lender providing a document from the information he has recorded in his records in another format so long as the “copy” is recreated and has the necessary information that would have been in the original.

 

I can understand and accept that there is going to be a dispute as to the way the original debt was made up. It is consequently essential that you clearly and specifically split the debt between the overdraft and the loan. If you maintain you have paid the debt then you must ensure that you clearly explain how you have done so.

 

I am concerned that as you have clearly had these facilities at some stage that you need to be clear as to whether you made any agreement with the bank for payment. As the overdraft facility is one outside the normal documentary requirements of the Consumer Credit Act I would want to know that the increase in facility was not agreed to discharge the outstanding loan. If you did not agree to an increase in your overdraft, if you were in default on the loan, then you should have been sent a default notice.

 

Inrespect of the overdraft the amount owing can be immediately demanded and any lender will have the right to assign the debt to a third party. With respect to the loan, where you have a valid argument, it is essential that there is a clarity as to exactly how it was managed and how the default was handled. If you agreed to the outstanding sum being transferred to your overdraft facility then I am afraid you will find it difficult to challenge the right of the bank or the assigned company pursuing the debt. If you did not agree then you need to specifically and clearly point this out to Lloyds TSB.

 

I am not sure at this stage how we can help you further in this dispute. You may be better to pursue the complaint through the Financial Services Ombudsman, once you have exhausted Lloyds TSB’s own complaints procedure

 

Yours sincerely

[stiffnuts]

wow what a load of bollocks, I am totally amazed that TS gave this advice and in writing. I would never ever give advice in writing. I may give my opinion over the phone but to go into this amount of detail in writing is crazy.

 

Did a TS department really give this advise and in writing ????

[tbern123]

wow what a load of bollocks

 

Is that a Trading Standards technical term ??? lol

[elsinore]

 

Did a TS department really give this advise and in writing ????

 

They certainly did!

Would you like a paper copy?

 

Elsinore

[tbern123]

This should have been separately documented and you should have been provided with a copy of the agreement at the time it was signed. While you are correct that you are entitled to a copy of the agreement the term “copy”, under the provisions of the Consumer Credit Act, does not require it to be a facsimile or exact replication of the loan agreement originally signed. Specifically the copy can exclude signatures and dates of signatures. In effect there is nothing to stop a lender providing a document from the information he has recorded in his records in another format so long as the “copy” is recreated and has the necessary information that would have been in the original.

 

Ok the CCA s77 & 78 state "copy of an executed agreement"

 

 

I am not a legal expert so please don't start if I am wrong.

 

My understanding is that the interpretation of the law is often made by refering to previous court cases...

 

Anyway, I found this today:

 

Article Display

 

It states:

Wilson v First County Trust Ltd [2001]

Section 61(1)a of the 1974 Act set out three conditions which had to be satisfied if a regulated agreement was to be treated as properly executed. Condition (a) required both the debtor and the creditor to sign

 

I would understand this to mean a executed agreement is a signed agreement.

 

I appreciate this one is a scottish website, however:

Consumer credit agreements & time to pay

 

If your agreement is not in the proper prescribed form or was improperly executed (signed) it may only be enforced by order of the sheriff court (s.65(1), 1974 Act); it may be that the agreement is not enforceable at all (subject to the discretion of the court).

 

Also :

Consumer Credit

 

To be properly made or "executed" the form must be complete and signed by both parties.

 

and

 

Therefore, the whole contract only becomes binding when the creditor and customer have both signed the agreement, thereby executing it.

 

I could go on all day, but the point I am trying to make is that I feel an executed agreement is a signed agreement.

[stiffnuts]

They certainly did!

Would you like a paper copy?

 

Elsinore

 

Well where do I start with the letter.

 

1. They say that "There is no necessity for the agreement to be specifically documented. The Consumer Credit Act S74 specifically excludes and covers this point".

 

My understanding that section 74 3(a) says that banks do have to comply with part V if it is the bank of england or a bank within the meaning of the bankers book evidence act 1879 as the OFT has to make a determination to state this

(wouldnt like to put my life on it but that is my understanding).

 

2 They say "similarly it should be noted that for an overdraft facility the provisions of S87 in respect of a default notice are not applicable. Facilities of this type can be immediately called in without the normal 7 day notice required by S76 of the Act."

 

What 76 says is that it does not stop the bank from stopping or restricting your overdraft. However 76(3) says that the notice for subsection1 must be in the prescribed formst. 76 (6) does not apply to a right of enforcement arising by reason of any breach by the debtor.

 

Therefore a default notice is most certainly required.

 

3. They say "This should have been separately documented and you should have been provided with a copy of the agreement at the time it was signed. While you are correct that you are entitled to a copy of the agreement the term “copy”, under the provisions of the Consumer Credit Act, does not require it to be a facsimile or exact replication of the loan agreement originally signed. Specifically the copy can exclude signatures and dates of signatures. In effect there is nothing to stop a lender providing a document from the information he has recorded in his records in another format so long as the “copy” is recreated and has the necessary information that would have been in the original."

 

As already discussed by me and others this would appear to be incorrect.

 

You dont have to show me a copy of the letter I trust what you say, but you need to make a complaint about this to the cheif trading standards officer to the local authority that gave you this advice

[stiffnuts]

Ok the CCA s77 & 78 state "copy of an executed agreement"

 

 

I am not a legal expert so please don't start if I am wrong.

 

My understanding is that the interpretation of the law is often made by refering to previous court cases...

 

Anyway, I found this today:

 

Article Display

 

It states:

Wilson v First County Trust Ltd [2001]

Section 61(1)a of the 1974 Act set out three conditions which had to be satisfied if a regulated agreement was to be treated as properly executed. Condition (a) required both the debtor and the creditor to sign

 

I would understand this to mean a executed agreement is a signed agreement.

 

I appreciate this one is a scottish website, however:

Consumer credit agreements & time to pay

 

If your agreement is not in the proper prescribed form or was improperly executed (signed) it may only be enforced by order of the sheriff court (s.65(1), 1974 Act); it may be that the agreement is not enforceable at all (subject to the discretion of the court).

 

Also :

Consumer Credit

 

To be properly made or "executed" the form must be complete and signed by both parties.

 

and

 

Therefore, the whole contract only becomes binding when the creditor and customer have both signed the agreement, thereby executing it.

 

I could go on all day, but the point I am trying to make is that I feel an executed agreement is a signed agreement.

 

What you say is not incorrect but it is not really relevant (im not been rude) I dont think that we are debating the signature properly executed thing here. It goes without saying. think the argument is whther ancillary regulations made under the act mean that the creditor can leave off the signature when sending a copy under section 77/78. The regs say that this may be left off for certain sections of 62 but not for 77/78

[tbern123]

Sorry, it is my fault I didn't really explain myself very well.

 

The point I was trying to make was that in the letter from Trading Standards they state:

 

While you are correct that you are entitled to a copy of the agreement the term “copy”, under the provisions of the Consumer Credit Act, does not require it to be a facsimile or exact replication of the loan agreement originally signed. Specifically the copy can exclude signatures and dates of signatures.

 

But the CCA states an executed agreement and what I was trying to point out that for an agreement to be executed it must be signed. So surely to prove that it is an executed agreement the "creditor" must be obliged to provide a signed copy of the agreement. Not something that contains the same information as the agreement

[elsinore]

you need to make a complaint about this to the cheif trading standards officer to the local authority that gave you this advice

 

Thanks, I will do that and post the content on my thread.

 

Elsinore

[stiffnuts]

Sorry, it is my fault I didn't really explain myself very well.

 

The point I was trying to make was that in the letter from Trading Standards they state:

 

While you are correct that you are entitled to a copy of the agreement the term “copy”, under the provisions of the Consumer Credit Act, does not require it to be a facsimile or exact replication of the loan agreement originally signed. Specifically the copy can exclude signatures and dates of signatures.

 

But the CCA states an executed agreement and what I was trying to point out that for an agreement to be executed it must be signed. So surely to prove that it is an executed agreement the "creditor" must be obliged to provide a signed copy of the agreement. Not something that contains the same information as the agreement

 

 

Totally agree and thats why it was excluded for section 77/78 in the Credit (Cancellation Notices and Copies of Documents) Regulations 1983

[tbern123]

Totally agree and thats why it was excluded for section 77/78 in the Credit (Cancellation Notices and Copies of Documents) Regulations 1983

 

I have been looking on the net for a while for a copy of that to read... As I have seen people refering to it... Just can't seem to find it anywhere...

 

Don't suppose you have a link to it ?