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

[car2403]

pughats, you say you've already CCA'd Lloyds regarding this account and had nothing back within the time limits, so then the account is in dispute already.

 

When the account is in dispute they can not pass it around to third parties, so you need to get a complaint into them and inform them the account is already in dispute as there is no agreement.

 

The OFT Debt Collection Guidelines says they shouldn't pursue a debt in dispute, but there isn't anything that says they can't (these are only guidelines, not codes of practise) or that they can't sell the debt on.

 

In fact, many DCA's specialise in collecting debts in these situations.

[hsbcfiddled]

Oh i forgot to mention they couldnt prove any credit agreement, because it was over 6 years old they said they no longer had the agreement.

 

No Agreement = No Debt.

Do not offer them a penny.

[hsbcfiddled]

The OFT Debt Collection Guidelines says they shouldn't pursue a debt in dispute, but there isn't anything that says they can't (these are only guidelines, not codes of practise) or that they can't sell the debt on.

 

In fact, many DCA's specialise in collecting debts in these situations.

 

 

The CCA1974 says that they cannot pursue a debt.

[car2403]

The CCA1974 says that they cannot pursue a debt.

 

They do though.

 

How do you know the '74 Act applies?

[hsbcfiddled]

They do though.

 

How do you know the '74 Act applies?

 

Consumer Credit Act 1974

Post-contract information

requirements

 

 

OFT1002

28

 

9 BREACH OF THE ACT OR REGULATIONS

9.1 If a creditor does not give the debtor an annual statement in respect of a

fixed-sum credit agreement when he is required to do so, then he is not

entitled to enforce the agreement during the period of non-compliance. In

addition, the debtor is not liable to pay any interest calculated by

reference to the period of non-compliance, or any default sum which

would have become payable during that period or which relates to any

breach occurring during the period.

 

68

 

9.2 Similar consequences apply if the creditor fails to give a notice of sums

in arrears under a fixed-sum or running-account credit agreement.

 

69

 

9.3 If the creditor fails to give a default sum notice, he is not entitled to

enforce the agreement until the notice is given.

 

70 If the creditor fails to

 

give a notice of post-judgment interest, he is not entitled to charge

interest until a notice is given.

 

71

 

9.4 Where a creditor fails – on request and upon payment of the appropriate

fee by the debtor - to provide the information required by sections 77-79

and 97 of the 1974 Act, the creditor is not entitled to enforce the

agreement whilst the default continues. If the creditor fails to provide

information relating to any security, pursuant to sections 107-110, he is

not entitled to enforce the security instrument.

9.5 In addition, the OFT and Local Authority Trading Standards Services

have powers under Part 8 of the Enterprise Act 2002 to take

enforcement action where there is a breach of legislation which harms

68

 

Section 77A(6) of the 1974 Act as amended

 

69

 

Section 86D of the 1974 Act as amended

 

70

 

Section 86E(5) of the 1974 Act as amended

 

71

 

Section 130A(2) and (3) of the 1974 Act as amended

 

OFT1002

 

29

 

the collective interests of consumers.

 

72 Enforcement action may also be

 

taken where appropriate under the Consumer Protection from Unfair

Trading Regulations 2008.

 

73

 

9.6 Breach of the requirements may also reflect on fitness to hold a

 

consumer credit licence under the credit licensing regime.

74

[kennyruss]

ok first post be gentle

 

got to page 19 of this thread and head was spinning

 

my situation, quite a large debt on several CC's - which is manageable and I am paying minimum each month

 

ok so I CCA all of the above - assume one does not provide CCA within 12+2+30 timescale I have the following options (from what I have read up until page 19)

 

no agreement - no debt - pay no more - but default on my file??

ask for no more interest to be charged on this account but acknowledge debt

offer say 25% of outstanding balance to clear card and have no record on my file of defaulting on debt

 

 

I'm sure somone will soon put me right, had never heard of doing this with credit card companies until I heard of a mate going on a course in manchester with a company who specialize in this - cartel I think was the name

 

thanks in advance

 

kenny

[hsbcfiddled]

ok first post be gentle

 

got to page 19 of this thread and head was spinning

 

my situation, quite a large debt on several CC's - which is manageable and I am paying minimum each month

 

ok so I CCA all of the above - assume one does not provide CCA within 12+2+30 timescale I have the following options (from what I have read up until page 19)

 

no agreement - no debt - pay no more - but default on my file??

ask for no more interest to be charged on this account but acknowledge debt

offer say 25% of outstanding balance to clear card and have no record on my file of defaulting on debt

 

 

I'm sure somone will soon put me right, had never heard of doing this with credit card companies until I heard of a mate going on a course in manchester with a company who specialize in this - cartel I think was the name

 

thanks in advance

 

kenny

 

 

Credit Cards or Loans?

[kennyruss]

Credit Cards or Loans?

 

all credit cards...

 

put an extension on my house and new car all on CC when 0%

 

paying for it now lol:)

 

kenny

[paulwlton]

all credit cards...

 

put an extension on my house and new car all on CC when 0%

 

paying for it now lol:)

 

kenny

 

I suggest you start your own thread in the general debt forum and then send all your CC companies section 78 requests.

 

PW

[lexis200]

The OFT Debt Collection Guidelines says they shouldn't pursue a debt in dispute, but there isn't anything that says they can't (these are only guidelines, not codes of practise) or that they can't sell the debt on.

 

In fact, many DCA's specialise in collecting debts in these situations.

 

Well I stand corrected!

 

Would you agree though that this bit -

It is expected that applicants and licence holders will abide by the spirit as well as the letter of this guidance. is pretty much saying that they may have the choice, but if they choose to ignore the guidelines they'll be in trouble (for want of a more grown up phrase - I'm still half asleep:rolleyes:)

 

That plus the CCA excerpts would seem to add up to them being very much on the wrong side of the law if they decide to continue pursuing, which is all good for the debtor if it ever gets to the court stage (I would have thought anyway).

[JonCris]

The CCA is not a guide it's the law If a company subscribes to a set of guidelines then fails to abide by them they may considered in breach of the new unfair terms and conditions legislation.

 

They also put their CCL at risk

[The Phantom]

Hi

got a quick query regarding my own thread

http://www.consumeractiongroup.co.uk/forum/mbna/72390-mbna-default-ref-r-new-post.html

 

LINK (debt collector for MBNA) is in default of my CCA request since June 2007. I never heard from them since until today, where I got a new letter, making no reference to my request from April last year and just asking for payment again within 1 week.

Is there a template I can send them or where do I go from here ?

[emmaf01]

Try tweaking this one I've used-

 

 

Account In Dispute

 

Ref:

 

Dear Sir/Madam

 

Thank you for your letter of xx/xx/xx, the contents of which have been noted.

 

You have failed to respond to my legal request to supply me a true copy of the original Consumer Credit Agreement for the above account.

 

On **DATE** I made a formal request for a true signed agreement for the alleged account under consumer credit Act 1974 s77/8. A copy of which is enclosed for your perusal and ease of reference.

You have failed to comply with my request, and as such the account entered default on **DATE**.( this date should be 12+2 WORKING days after you sent the request)

 

The document that you are obliged to send me is a true copy of the executed agreement that contained all of the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself as defined in section 61(1) of CCA 74 and subsequent Statutory Instruments. If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document.In addition a full statement of this account should have been sent to me detailing all debits and credits to the account.

 

Furthermore

 

You are aware that the Consumer Credit Act allows 12 working days for a request for a true copy of a credit agreement to be carried out before your client enters into a default situation.

 

This limit has expired.

 

As you are no doubt aware section 77(6) states:

 

If the creditor fails to comply with Subsection (1)

 

(a) He is not entitled , while the default continues, to enforce the agreement.

 

Therefore this account has become unenforceable at law.

 

As you have Failed to comply with a lawful request for a true, signed copy of the said agreement and other relevant documents mentioned in it, Failed to send a full statement of the account and Failed to provide any of the documentation requested.

 

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

 

Furthermore I shall counterclaim that any such action constitutes unlawful harassment.

 

Please note you may also consider this letter as a statutory notice under section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect.

 

This means you must remove all information regarding this account from your own internal records and from my records with any credit reference agencies.

 

Should you refuse to comply, you must within 21 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.

 

Should you not respond within 14 days I expect that this means you agree to remove all such data.

 

Furthermore you should be aware that a creditor is not permitted to take ANY

Action against an account whilst it remains in dispute.

 

The lack of a credit agreement is a very clear dispute and as such the following applies.

 

* You may not demand any payment on the account, nor am I obliged to offer any payment to you.

* You may not add further interest or any charges to the account.

* You may not pass the account to a third party.

* You may not register any information in respect of the account with any credit reference agency.

* You may not issue a default notice related to the account.

 

 

I reserve the right to report your actions to any such regulatory authorities as I see fit.

You have 14 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint.

 

I would appreciate your due diligence in this matter.

 

I look forward to hearing from you in writing.

 

Yours faithfully

 

 

 

Big thanks to 42man for that

[The Phantom]

Many Thanks - I will use that.

What a cheek. Being in default for about 15 months and then send another letter as if nothing has happened.

[car2403]

Well I stand corrected!

 

Would you agree though that this bit -

It is expected that applicants and licence holders will abide by the spirit as well as the letter of this guidance. is pretty much saying that they may have the choice, but if they choose to ignore the guidelines they'll be in trouble (for want of a more grown up phrase - I'm still half asleep:rolleyes:)

 

Well, yes, in theory, but the OFT seems powerless - or not intent - on enforcing their own guidelines, though.

 

As JonCris says, this could be evidence of unfairness, given the OFT has issued this guidance and they haven't followed it (or the nature of it) but only a Judge can decide what is/isn't fair.

 

That plus the CCA excerpts would seem to add up to them being very much on the wrong side of the law if they decide to continue pursuing, which is all good for the debtor if it ever gets to the court stage (I would have thought anyway).

 

 

The issue is that the CCA isn't clear on what can and should happen with a debt in dispute. Agreed the wording of it plus this OFT guidance can lead a Judge to consider the failure to comply with either in your favour, but we've seen a lot of Judges applying personal prejudice towards the creditor and "hiding" behind this level of discretion in their Judgments.

 

If I drive through a red light, but aren't seen by the Police, am I still breaking the law?

[lexis200]

 

The lack of a credit agreement is a very clear dispute and as such the following applies.

 

* You may not demand any payment on the account, nor am I obliged to offer any payment to you.

* You may not add further interest or any charges to the account.

* You may not pass the account to a third party.

* You may not register any information in respect of the account with any credit reference agency.

* You may not issue a default notice related to the account.

 

 

 

Hi all

 

I'm trying to find out whether there is an explicit regulation etc that states that creditors may not demand payment and you needn't offer, or whether this is simply implied by the fact that they can't enforce the agreement whilst it's in dispute.

 

I've had a letter from my friendly creditor which states 'for the avoidance of doubt, the Consumer Credit Act 1974 does not prohibit collection activity when an account is in dispute'. Are they just flat out lying here, as I would have thought that collection activity is enforcing the debt:confused:

 

Any help appreciated as I'd really like to get a response off to them soon, and I have all the rest of the letter done and dusted!

 

Thanks in advance!

 

Lexis:)

[car2403]

Hi all

 

I'm trying to find out whether there is an explicit regulation etc that states that creditors may not demand payment and you needn't offer, or whether this is simply implied by the fact that they can't enforce the agreement whilst it's in dispute.

 

I've had a letter from my friendly creditor which states 'for the avoidance of doubt, the Consumer Credit Act 1974 does not prohibit collection activity when an account is in dispute'. Are they just flat out lying here, as I would have thought that collection activity is enforcing the debt:confused:

 

Any help appreciated as I'd really like to get a response off to them soon, and I have all the rest of the letter done and dusted!

 

Thanks in advance!

 

Lexis:)

 

There's nothing in the Act to say they can't still collect on the debt and continue to ask you to pay.

 

But, then, there's nothing in the Act to say you have to capitulate and continue paying.

 

Stalemate.

[lexis200]

Thanks car2403

 

So would you then say that trying to get payment (by the means we all know they use) is not enforcing the debt, or am I getting very confused?

 

And by the same token, is all the other stuff that is written on what they can't do (ie issue defaults, register adverse info on CRA's etc) only implied due to the 'may not enforce the debt' bit of the Act?

 

Sorry if this has been gone over time and again, but I can't seem to find anything that answers my question elsewhere.

[car2403]

The meaning of enforce in the Act is to take legal action via the Courts - there is some discussion on whether chasing the debt and asking you to pay, plus registering Defaults, etc, on CRA files is actually enforcing the agreement.

 

I'm of the mind that all this is a type of enforcement, but not the type mentioned in the Act - the Courts seem to take the same view. For example, an improperly executed agreement can be registered on your CRA file as a Default but only if it's irredeemably unenforceable under s.127(3) CCA 1974.

 

We do need some proper precedent on this, but, for obvious reasons, creditors don't want that precedent being set outside of the County Courts, it would seem.

[lexis200]

Okay, that makes a bit more sense now, thanks.

 

I guess I'll just leave my interpretation of enforce in the letter, only make it more subtle, and if they continue hounding for payment etc go down the harassment route:rolleyes:

[hollie-lou]

Hi, i'm sorry to hijack this post but i have found myself reading loads of posts, getting more confused and going round in circles.

 

i don't know if you can help me but i was told about this whole unenforcable loans thing by a company who are charging £295 per loan to get the loan closed, taken off your credit record and have some of the money that you have paid refunded to you. One of the companies i want to do this with is welcome finance. We are all upto date with the payments etc so we have not experienced any problems with them to date but having the loan classed as being unenforceable and taken off our credit record could mean us being able to move house etc. Can anyone please let me know how to kick off the process of checking if the loan is enforcable or not, what are the pros and cons to entering into this process, Although i would love nothing more than to have this loan removed from our credit file at the same time i do not want to end up in the situation where we damage our credit file beyond belief. Any info would be excellent x Hollie

[Valhalla]

Hello Hollie-Lou

 

There are several companies around ofering the same service.

 

It's all to do with going through the terms and conditions of the agreement with a toothcomb and comparing these with what has actually happended. For example was the interest rate charged exactly what was stated in the agreement - and there are many other points to check.

If the T & Cs were not adhered to then there is a case for challenging the agreement.

 

Unfortunately I can't tell you exactly how to do the same thing yourself. These companies don't tell you all the details of how they go about getting debts declared as unenforceable ( fair enough really because they've invested time and money in studying the legal niceties and setting up the system and now they want to make some money from their investment )

 

I do know that the process can take several months ( I'm going through the process myslf and have paid the £295 )

 

As far your credit rating is concerned, the advice you are given is to maintain your monthly payments until the case reaches a conculsion and ( one hopes )the debt it written off. As far as I can see, if you have maintained the payments there is nothing for a lender to use to justify putting a black mark against your credit, but you never really know with banks.

 

Valhalla

[ian1969uk]

Do not pay these companies!

 

They don't do anything that you can't do yourself, and they are misleading you with their claims. You may have unenforceable agreements, and that may mean you do not need to pay these debts. However, the debt is merely unenforceable against you, it does not disappear.

 

If they claim to get it off your credit record and get money back for you, then they are lying.

 

Read around the forums and then decide the best course of action for yourself, don't be ripped off!

[Valhalla]

ian1969 may be quite correct in saying that you can do everything for yourself, but I don't agree that these companies are necessarily a rip off and no I am not trying to sell you anything.

 

Of course read the forum and decide for yourself what your best course of action is but

 

You may well chose not to do the process yourself for very legitimate reasons

 

you may not have the necessary legal knowledge and don't want to spend the time and effort finding out

 

you don't want the stress and hassle of dealing with the case yourself ( some people seem totally calm about these things, but others find them quite stressful - me for one - and would rather spend their time on more profitable and enjoyable things )

 

If you handle the matter yourself then you would presumably end up in exactly the same position as if you used another company i.e. the debt would be unenforecable but would not disappear, so what's the difference between doing it yourself and getting someone else to do it?

 

As far as I can see it's simply a case of whether you feel it's worth £295 of your money to pay someone else for the service.

 

As regards getting money back for you and getting the debt off your record I don't know and can't comment and it really depends on what the company claims in this regard and whether they can offer you any proof of any claims they do make.

 

Whatever you decide to do is right for you

 

Valhalla

[car2403]

Starting your own thread, in the relevant place, would be a good place to start - reading around the forum you may just get more confused, but you can get some specific advice on your situation in a thread of your own.