Guidelines - Requests For An Original Agreement Under The Consumer Credit Act 1974

[photoman]

Hi could someone please clear this confusion I have.

 

If an alleged credit agreement from 2000 states in it 'Terms and Conditions referred seperately' and they DO NOT supply these original T&C's but supply NEW ones have they complied with the CCA request properly??

 

I have been searching but have no answer.

 

Milly X

 

IMHO, No they have not complied.

 

The T&C's should be contemporary to the date of signing.

 

In fact I would even suggest that as the T&C's are stated as supplied separately, then this would be unlawful.

Such separation of documents means there is no way to prove what T&C's you actually agreed to, leaving the door open for them to just alter and adjust them at their own will.

This cannot be right, and I'm sure there is something in the CCA about this.

[millymollymoo]

Thankyou for your help photoman:)

 

I was thinking that.

 

I was under the impression that these should be embodied in the agreement with your signature as you say they could send anything then otherwise. This was a pre 2004 agreement so am not sure what complies to 2000 agreements .

 

MillyXX

Edited January 17, 2009 by millymollymoo
clarity

[brucemcmitten]

Yes it is

[lvalentine2]

I need help!!! I have outstanding debts with Littlewoods, Kays and LXDirect (I have since found out that they are all one company - Shop Direct). When things started to get out of control I tried to sort things out myself. I wrote to each company offering token payments along with a copy of my income and expenditure, but all offers were turned down.

 

I then took advice from a work colleague to write of for y credit agreements. I sent them with a £1 postal order each, recorded delivery and have only had 2 replies. Both replys state that they could not locate a copy of my signed agreement but sent a copy of what there new agreement looks like with a letter stating how long I had had the accounts and how much was owing.

 

They have since "passed" the debt on to their debt collectors, Nationwide Debt Recover, who I have found out, work in the same building as Shop Direct. They have stated that they cannot provide me with details of the sale of the debt as they are only acting as recovery agents for shop direct, and that shop direct still own the debt.

 

This all started in November and they have since been calling me as early at 7:30 in the morning and as late as 9 at night (they know that I work 8 till 5). They were even nice enough to call on the 24th December at 8:45pm. I have requested that they correspond via letter and stop calling but they have not listened to this request. I have requested that they abandone all hope and sell the debt on the a reputable debt collectors, but they have not done this. I am now at the point were I have cancelled all payments and I will be cutting the phone off soon.

 

Please, someone advise!!!

[Podclock]

Hi Ivalentine2, if these companies cannot supply you with a true copy of your signed credit agreement then you have some control. They cannot force you to do anything you do not want to do without the original agreement. From what I have seen on this site, most mail order companies don't get you to sign an agreement so you should be in a strong position. I have turned the ringer off my phone and only answer numbers I know. Friends ring my mobile. You should send a reminder for the request of documents, can be found here on the templates or one of the mods will correct me, this will give them another calender month. After that they commit an offence and you can report them to FOS and Trading Standards if they do not send the documents. After that you can wait for them to take action. If the calls get too much make a log and then complain to your telephone provider who can give you a new number if they feel it is justified as harrassment. Read the rest of this site, it really empowers you and Best of luck

[Valhalla]

Hello Ivalentine2

 

First and foremost, try not to get too worried. There are lots of fabulous and knowledgeable people on this forum who can help you with very detailed and accurate advice, so you are not alone.

 

There are several points in your favour, some of which have been mentioned by Podclock in the last post above. My understanding is that if no agreement contract document can be produced then it's very difficult for a lender to enforce the agreement - but people more knowledgeable than I am will reply in detail to this.

 

The debt colectors are trying bully tactics to scare you and whilst it can indeed be scary, try to remember that they are just pushing you to see if you give in. With the knowledge and backing of CAG you will be able to fight back.

 

Hang on

 

Valhalla

 

 

 

 

[lexis200]

I need help!!! I have outstanding debts with Littlewoods, Kays and LXDirect (I have since found out that they are all one company - Shop Direct). When things started to get out of control I tried to sort things out myself. I wrote to each company offering token payments along with a copy of my income and expenditure, but all offers were turned down.

 

I then took advice from a work colleague to write of for y credit agreements. I sent them with a £1 postal order each, recorded delivery and have only had 2 replies. Both replys state that they could not locate a copy of my signed agreement but sent a copy of what there new agreement looks like with a letter stating how long I had had the accounts and how much was owing.

 

They have since "passed" the debt on to their debt collectors, Nationwide Debt Recover, who I have found out, work in the same building as Shop Direct. They have stated that they cannot provide me with details of the sale of the debt as they are only acting as recovery agents for shop direct, and that shop direct still own the debt.

 

This all started in November and they have since been calling me as early at 7:30 in the morning and as late as 9 at night (they know that I work 8 till 5). They were even nice enough to call on the 24th December at 8:45pm. I have requested that they correspond via letter and stop calling but they have not listened to this request. I have requested that they abandone all hope and sell the debt on the a reputable debt collectors, but they have not done this. I am now at the point were I have cancelled all payments and I will be cutting the phone off soon.

 

Please, someone advise!!!

 

Hi

 

The tactic of sending what you 'would have received' along with a patronising letter telling you that you've not had any issues with spending the money, so now pay it back, is very normal.

 

The fact is, without an agreement they are going to have serious problems (which they know full well, hence the letter you had accompanying your 'agreement'). Technically they can send 'what you would have signed' and still comply, more or less, with the Act. However, it does not mean what they have sent you is enforceable. This is what they are banking on you not querying.

 

If the DCA can't get hold of the CCA, perhaps they should poke the Shop Direct employee on the desk next to them so they can go and get it? This statement from them is just ridiculous!

 

You need to send them the phone harassment letter (in the letter template section), rather than requesting they stop phoning. You may need to send it a couple of times, but it should work. Additionally, while they are still phoning you, repeat this every time they call 'I do not talk about financial matters on the phone. Please write' You can add in an 'I have already told you to write only' if you feel like it, just for their recordings! Also, if you can run to it it is very worth getting a recorder for the phone - otherwise you can guarantee anything significant mentioned will somehow have been lost from their records.

 

I'd also add in about the timings of the calls, as before 8qm and after 9pm is not allowed. Oh, also, keep a phone log - time, date, company, every time they call. Get the name of whoever is calling if you feel up to answering the phone, if not, just the details above will do.

 

If you haven't already, you need to tell them what they have sent you is not an enforceable agreement - don't tell them they've committed an offence by being over 30 days; that was stopped a while ago so no longer applies. After the 12 + 2 days if they haven't supplied an agreement they are in default of your request. They will argue that what they have sent does comply, so you will need to go along the 'yes, but it's not enforceable' line.

 

Try not to worry too much (easy to say!) - it is very unlikely to be as bad as it seems, and with help on here from much more knowledgeable people than me, you will find you have so much more confidence.

 

Lastly, you really need to open your own thread on this, otherwise you'll find your question gets lost in this thread. If you open your own one though, you'll get personal help from people, and as they will automatically subscribe when they post you'll get ongoing help.

 

Lexis:)

[winnifred1]

Hi guys, my first post on the site so apologies if it`s in wrong place/should start a new thread etc- let me know how to do that and it`ll be no prob.

Got a range of 16 dofferent credit cards, sent ist template letter and 12+2 days up today. So far have received following;

GM Card (HFC); signed application from 1996, no T and C`s etc and last 6 statements.

HSBC: some T and C`s from various dates and a waffle letter!

Monument: a reply card signed by me, no T and C`s and a letter containing waffle- splendid!

In general I`m quite happy as to how to proceed, using the template letters etc, my questions are as follows;

1. Does this apply in same way in Scotland?

2. My aim is to prove no agreement in place, and then (obviously this will take a wee while to get through!) make a F and F payment of say 10% based on being a without predudice gesture, based on ALL information being removed from CRA files.

Any comments?

Thanks in advance!

[phatram]

 

 

 

[phatram]

I have posted the above for people to read and ask the question,

What exactly do they have to send us?

[banker_rhymes_with]

Hello Phatram!

 

What exactly do they have to send us?

 

This is what the Chief Executive of the OFT thinks we should be sent...

 

Letters from DTI /Oft Regarding CCA1974 Issues – Post #49

 

IOW, a lot more than the banks think they can get away with sending us!

 

Note his comments about Courts and the likelihood that they would want to inspect the original written Agreement!

 

That is the message we must get across to the Judges at every opportunity.

 

Cheers,

BRW

[bazaar]

Hello Phatram!

 

 

 

This is what the Chief Executive of the OFT thinks we should be sent...

 

Letters from DTI /Oft Regarding CCA1974 Issues – Post #49

 

IOW, a lot more than the banks think they can get away with sending us!

 

Note his comments about Courts and the likelihood that they would want to inspect the original written Agreement!

 

That is the message we must get across to the Judges at every opportunity.

 

Cheers,

BRW

 

 

Totally agree, not withstanding also that they should only issue proceedings while in possession of the required documentation

[JonCris]

The problem is that the debtor MUST dispute the 'agreement' supplied as not being a true copy rather than just arguing there is no liability because there is no agreement.

 

If you make that argument the court will accept any alternative evidence available (such as a cut up bank card) that the debt is enforceable

[underdog13]

The problem is that the debtor MUST dispute the 'agreement' supplied as not being a true copy rather than just arguing there is no liability because there is no agreement.

 

If you make that argument the court will accept any alternative evidence available (such as a cut up bank card) that the debt is enforceable

 

Please forgive the ignorance of a relative newbie, JonCris:oops:; could you expand on what arguments one could proffer as to why the 'agreement' supplied is not a true copy? Would this relate to the lack or inaccuracy of the required prescribed terms and/or lack of a signature?

[JonCris]

Both

[brucemcmitten]

Is the HSBC credit card one of the seven that you pay £400 per month to?

 

I replied that it is one that I pay part of the £400 a month to last week but haven't heard any more from you..............I'm really worried........can you give me any advice at all? Thanks

[DannysDebtBeDamned!]

Hello to everyone on the forum, and espescially those giving help.

 

I have a two fold query:

 

I have 3 credit cards (all taken out circa 2005) with Halifax, Barclays, BOS all on fixed rates for the life of the balance (around 5% so decent rates compared with the normal 16ish%).

 

I have requested CCA's with all of them and received obviously unenforecable photocopies of the terms and conditions, and nothing else.

 

My questions are:

 

(1) On the Halfix/BOS cards letters (the ones sent with the copies of term and conditions) it states:

 

"Please note that the information we have provided you with is all the information we are rquired to provide you with Under Section 78 of the Consumer Credit Act. Please note that we are not required to provide a copy of the original signed agreement under Section 78 of the Consumer Credit Act."

 

Can they do this or are they just trying it on???

 

 

(2) If I stop payment after sending another letter telling them they the debts are unenforceable, and they come up with the agreements says 3 months down the line (and the agreements are correct), I'll have to start paying the debt again....will they hold the current rates I'm on (5% as oppossed to the normal 16%).

 

If the rates went up to 16% then they would be crippling!

 

 

Any DEFINITIVE advice from those in the know would be very gratefully received. I have already donated £ to the site, as I strongly beleive it needs to be kept running. Debt ruins lives! Thanks in advance.

[sanrhythm]

after i receive terms and condition i send third letter to MBNA today they send me Sign copy which is not readable at all please see attached letter and sign copy of cca please help what next

Edited February 4, 2009 by sanrhythm

[WayneBrannan]

Hi guys,

 

I'm very interested in this thread and have started my own - I'm looking into the possibility that the CCA Loan Agreement for my A&L personal loan may be unenforcable:

 

http://www.consumeractiongroup.co.uk/forum/alliance-leicester/182171-l-personal-loan-un.html#post1964827

 

I'm not sure how to contact Mods directly so if anybody would help me get my thread above moved to this area I'd be most grateful!

[WayneBrannan]

Pliny The Penurious:

 

"Supplying a 'true' copy under the CCA can exclude the signatures but a court CANNOT enforce an agreement without there being a properly executed 'signed' agreement & if they choose to not supply it at the outset then chances are they don't have it"

 

=========================================================

 

Am I correct in thinking then, that an appropriate course of action to take upon receipt of a 'true copy' which does not bear your signature, but which is perfectly adequate to fulfill the Lender's requirements under the CCA, would be to issue a SAR? Surely, the Lender must then either put up or shut up, as I understood that when served with a SAR the Lender must provide copies of EVERY document and piece of information they hold on file about you, which would include any signed Loan Agreements?

[hsbcfiddled]

Pliny The Penurious:

 

"Supplying a 'true' copy under the CCA can exclude the signatures but a court CANNOT enforce an agreement without there being a properly executed 'signed' agreement & if they choose to not supply it at the outset then chances are they don't have it"

 

=========================================================

 

Am I correct in thinking then, that an appropriate course of action to take upon receipt of a 'true copy' which does not bear your signature, but which is perfectly adequate to fulfill the Lender's requirements under the CCA, would be to issue a SAR? Surely, the Lender must then either put up or shut up, as I understood that when served with a SAR the Lender must provide copies of EVERY document and piece of information they hold on file about you, which would include any signed Loan Agreements?

 

I would agree with your thinking.

I believe before people started requesting 'true copies' in the numbers that they now do that the banks stored the details on disc and didnt bother retaining the original......shame:D

This is just my opinion ..... imagine the storage needed....massive.

[MarkieMark]

Hi Phatram

Please note the wording on the ICO letter page 2 paragraph 3 is incorrect:-

 

Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 state the following:-

 

Regulation 3(2) states the following:-

 

(2) There may be omitted from any such copy

 

NOT regulations allows the following to be omitted from any copy.

 

Why dont these people look at the wording before advising consumers of their rights under the consumer credit act 1974

 

You can download the regulations from the internet as see it for yourself.

Edited February 12, 2009 by MarkieMark
name

[Mister Twister]

I have used a long CCA request letter template that includes a section on harassment posted by a CAG member on a few occasions and it has worked very well.

 

Unfortunately I have lost it and been searching the forums for over 2 hours to find it!

 

This site is massive.

 

If someone knows where I can find such a template please could they post the link here?

 

Thanks in advance.

[lexis200]

Not sure about one with harassment details, but this is the one I use, which you could always add a para to with what you want to say.

 

date

Dear Sir/Madam

 

Re:− Account/Reference Number xxxxxxxxxxxxxxxxxxxxxxxxx

 

With reference to the above agreement, I require that you provide me a true copy of the credit agreement

 

I am aware that section 78(1) of the Consumer Credit Act 1974 sets out clearly what is required to comply with my request and quote “shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it” For clarification I require a copy of the agreement, any terms and conditions from the time when the agreement was executed, together with a copy of current terms and conditions and a copy of the cancellation notice if the agreement refers to “Your Right to Cancel” within it. I also require a statement of account as laid out within Section 78(1). If there weren’t any terms and conditions then please confirm this in your response

 

I am entitled to receive the information on request. I enclose a payment of £1.00, which represents the fee payable under the Consumer Credit Act 1974.

 

I note that section 172 outlines that statements by creditors are binding where made under inter alia section 78(1) and I take this to be that any reply made in response to this request is binding upon you. Therefore you should ensure that all documents requested are supplied. Any missing documents will be considered not part of the agreement and could therefore affect the enforceability of anything you send.

 

I understand that Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 (SI 1983/1569) at regulation 2 sets out the required time frame for compliance with this request as being 12 working days from receipt

 

Should you fail to comply with my request as outlined above, I shall consider the account in dispute. I am aware that where a creditor fails to supply the requested information the creditor’s rights to enforcement are restricted until such time as they comply. I am also aware that there are certain terms that are required to be within the “Agreement” and should these terms be mis-stated or not present the agreement can be rendered unenforceable in law.

 

Notwithstanding the above, I note that the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557) at Regulation 3 allows the signature box and signature, to be omitted in a copy document, but that the copy document must be a ‘true copy’. This means identical in both form and content (including all prescribed terms as required), to the signed, executed, original agreement, as presented or sent to the debtor for signature.

 

I respectfully request that you provide a copy of the original agreement signed by me that you hold on file, and while I accept that you can omit the signature box for the purposes of compliance with my request, you will be aware that any challenge to the agreement in court would require the signed copy of the original agreement.

 

If you still reject this, please provide clarification on the status of the Original Credit Agreement and confirm either that you hold the original signed agreement on file, or a copy of it on microfiche, or that you no longer hold the file

 

Please be aware I do not accept phone calls or text messages regarding financial matters, so please ensure all correspondence is in writing.

 

 

I look forward to receiving this information within the time frames as indicated above.

 

Yours faithfully

[rockdave]

I sent this letter out over two weeks ago and have received nothing back from any the debt collecting agencies, except one acknowledgement that my letter has been received and the account now on hold.

If nothing transpires at all where does that leave me with the credit reference agencies?