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

[car2403]

they have basicaly said that because you have misbehaved with your bank account, we will still keep that open, but close your credit card account even though you havent defaulted or missed any payment with that,..from what i have read they have breached the cca1974 by what they have done,.... sure i am going to send them a letter asking for a copy of my cca anyway,..

 

I don't think they've breached the CCA, but they may have breached the agreement they have with you regarding how they can terminate/default the agreement.

 

As there hasn't been a Default Notice (s.87/s.88) or Termination Notice (s.98 - which is used in cases where no default has occurred) they may have breached the Act, however.

 

but i am also writing seperatly asking which part of the cca 1974 do they have the authority to terminate my account?.... again from what i have read on this site they have none at all... this is what i read somewhere.

 

''I understand that the law regulating termination of credit card agreements is CCA 1974. Under that law, and any associated regulations, Hsbc has no legal entitlement to terminate a credit card agreement without first giving the alleged defaulter a default notice, and complying with the necessary subsequent procedures, such as under S88 and S89 of CCA 1974.''

 

I don't think they will respond to that, as the CCA doesn't prevent them terminating the agreement, but they have to follow the prescribed process under the Act with regards notice and the terms of the agreement itself - which is why I think it's worth asking for a copy of it.

 

 

ive also not paid this months payment on the account,..not sure if i am doing the right thing here or not..as i dont really want to start getting defaults/ccj's..ect,..but i have included in my letter that i revoke permission to process my data...so guess it will be interesting to see how things go:confused:

 

Your call, but giving them a reason to default/terminate now might have an effect on the outcome if you are to pursue them.

 

It would be worth starting your own thread on this one, as we are going off-topic here. Here's how;

 

http://www.consumeractiongroup.co.uk/forum/welcome-consumer-forums/107001-how-do-i-dummies.html

[FunkyFox]

Hi, I'd be really greatful for any advice on the CCA I have recieved today. My post is languishing over in 'Legal Issues'.

 

Many thanks in advance for your help.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/139761-me-1st-credit.html#post1646698

[Guest malissa7999]

I don't think they've breached the CCA, but they may have breached the agreement they have with you regarding how they can terminate/default the agreement.

 

As there hasn't been a Default Notice (s.87/s.88) or Termination Notice (s.98 - which is used in cases where no default has occurred) they may have breached the Act, however.

 

 

 

I don't think they will respond to that, as the CCA doesn't prevent them terminating the agreement, but they have to follow the prescribed process under the Act with regards notice and the terms of the agreement itself - which is why I think it's worth asking for a copy of it.

 

 

 

Your call, but giving them a reason to default/terminate now might have an effect on the outcome if you are to pursue them.

 

It would be worth starting your own thread on this one, as we are going off-topic here. Here's how;

 

http://www.consumeractiongroup.co.uk/forum/welcome-consumer-forums/107001-how-do-i-dummies.html

 

 

hi,

i already have a thread,..please offer any advice here,.. http://www.consumeractiongroup.co.uk/forum/hsbc-bank/153426-hsbc-have-cancelled-my.html

 

thanks!

[Guest malissa7999]

Rubyrose and mobileminx. I sent this letter on my OH behalf to a solicitor acting for a DCA.

 

 

 

 

from; mrs hsbcfiddled.

4th December 2007

 

to; Solicitor

 

I DO NOT ACKNOWLEDGE ANY DEBT TO DCA

 

Dear Sirs,

 

I received today your letter dated 30th November 2007 and postmarked the 3rd December 2007 that was in reply to my letter to you of 12th November 2007

 

In your letter of 30th November 2007 you have stated that you refuse my offer of £1 per calendar month and suggest £5 PCM even though I have explained my circumstances to you in my previous letter of the 12th November 2007.

However, you appear to have overlooked the fact that my offer of £1 PCM was ONLY IF you were able to produce the original agreement in a court of law.

 

I have repeatedly requested ‘a true copy of the agreement’.

You are adamant that a reconstructed agreement is acceptable.

I accept that the CCA1974 does allow you to reconstruct an agreement, when requested.

But you must retain the original agreement- why not look up the relevant section in the Consumer Credit Act 1974? You should know! You’re the professionals!

If your client has decided to destroy the original agreement and is prepared to purely rely upon a microfilmed reconstruction then please proceed to court where you can try your theory out.

My advice to your client would be that you as his solicitors are wasting his money on a case that you cannot win without the original agreement.

 

When I appear in court I shall show the court evidence that I have repeatedly requested sighting of a ‘true copy of the original agreement’ and had it been provided to me my appearance in court would not be necessary.

I believe that you are wasting the courts, your clients, and my time.

I believe the refusal to provide a true copy of the original agreement is because you have NOT retained the original agreement and that by providing reconstructed copies from microfilm you hope to assuage me into further payments.

 

I repeat my offer of £1 per calendar month, BUT ONLY IF, the original agreement is produced for my or the courts inspection.

Produce it to me or produce it in court. The choice is yours.

 

You state that you do not intend to enter into protracted correspondence. Well that’s fine by me. Please accept this as my final correspondence in the matter.

 

Yours Sincerely,

 

mrs hsbcfiddled

 

I have had no reply to date.

 

The point of the letter being that should it go to court the judge would then see that you have done your very best to avoid the court action.

 

What do you or anyone else think?

hsbcfiddled

 

 

hi, i am painstakingly reading through every post on this thread and have just come across this letter that was written,.... as far as i have understood(to this point).... wouldnt it be correct to say that if they do produce the original agreement then the debt is enforceable, meaning that you are not in such of a good/powerfull position to be negotiating with them regarding the offer of £1.... not sure but wouldnt you be better off offering a full and final settlement??with the condition they correct your file to show as satisfied and uptodate,with no adverse info??.... im not giving advice..just trying to clarify things that i have already read and think i have interpreted it so far..

thanks.. i'll get back to my reading now:roll:

[hsbcfiddled]

hi, i am painstakingly reading through every post on this thread and have just come across this letter that was written,.... as far as i have understood(to this point).... wouldnt it be correct to say that if they do produce the original agreement then the debt is enforceable, yes meaning that you are not in such of a good/powerfull position to be negotiating with them regarding the offer of £1....This also would be true if they held the document not sure but wouldnt you be better off offering a full and final settlement?? Offer them full and final settlement?????????????? when they dont have the correct documents?????????? with the condition they correct your file to show as satisfied and uptodate,with no adverse info??.... im not giving advice..just trying to clarify things that i have already read and think i have interpreted it so far..

thanks.. i'll get back to my reading now:roll:

 

You will see that the date of this post was January 2008 ....and to date no action has been taken.

My OH has no income of their own therefore the offer of £1 pcm would still remain if, that is If, they find the document.

Seems powerful enough to me.

[Guest malissa7999]

when you say they have taken no action, have they defaulted you?

if so then i agree with you, and arnt you tyring to remove any default/adverse data, based on the fact they should never have been processing data without a regulated agreement,..i am interested to know how you have gone on,... as i am soon to find myself in the same position and looking for the best way forward

 

thanks

[hsbcfiddled]

when you say they have taken no action, have they defaulted you? maybe..they havnt advised me of any defaults...but then I wouldnt expect them to.

if so then i agree with you, and arnt you tyring to remove any default/adverse data, based on the fact they should never have been processing data without a regulated agreement, no, but then I am not worried what info they record regarding me because I dont want or need credit ..i am interested to know how you have gone on,... as i am soon to find myself in the same position and looking for the best way forward.

 

thanks

 

 

If you are in the same situ as my OH with no income of your own then they cannot refuse your offer of £1 pcm (IMHO) as that is all a court will award in the same circumstances.

If they have no agreement- then there is no need to pay until the agreement has been produced.

credit files/ratings only matter to people who require credit....if you dont need credit then what they contain is irrelivant.

The lesson I have learnt from the Bank charges fiasco is never live beyond your means. Credit cards are better used for spreading butter when you cant find a knife.

[hsbcfiddled]

when you say they have taken no action, have they defaulted you?

if so then i agree with you, and arnt you tyring to remove any default/adverse data, based on the fact they should never have been processing data without a regulated agreement,..i am interested to know how you have gone on,... as i am soon to find myself in the same position and looking for the best way forward

 

thanks

 

I would also add that a managed loan that I had (as a result of bank charges on a business account) has been frozen pending the outcome of the OFT case. Frozen by ME I add.

I have made no payment since June 2007 yes 2007 because the agreement had not been properly executed.

When the OFT case is resolved I will persue the return of all loan payments with compounded interest added totalling £24K.

Edited August 16, 2008 by hsbcfiddled
add text

[car2403]

you tyring to remove any default/adverse data, based on the fact they should never have been processing data without a regulated agreement

 

This is a contentious issue.

 

Depending which Judge you get and which way he reads the ICO's guidance on this one, it could be said that there is no need for an enforceable agreement to be able to process data. No where in the DPA does it say that an enforceable agreement, or a contract in fact, is required to process your data - if that was the case, the Credit Reference Agencies wouldn't be able to function, for example.

 

I can see where you are coming from, but the Judge lottery really determines the outcome, not the legal issue as to whether they should be allowed to process data without a regulated agreement, IMHO.

[Guest malissa7999]

This is a contentious issue.

 

Depending which Judge you get and which way he reads the Information Commissioners Office's guidance on this one, it could be said that there is no need for an enforceable agreement to be able to process data. No where in the Data Protection Act does it say that an enforceable agreement, or a contract in fact, is required to process your data - if that was the case, the Credit Reference Agencies wouldn't be able to function, for example.

 

I can see where you are coming from, but the Judge lottery really determines the outcome, not the legal issue as to whether they should be allowed to process data without a regulated agreement, IMHO.

 

 

HI,

,..but surly once you have revoked permission for them to process your data, this is another issue altogether???if they continue to process the data when you have clearly told them not to??...if not what is the point of the law??..its just a complete waste of time if the judges do not enforce the laws that have been put in place.

 

ps and if an agreement was not needed, then why do we have to consent on most forms for them to process our data, if an agreement wasnt needed?

surly if we have to consent to have our data processed, there must be an abilty for us to descent too,... i dont know about the data protection law,..it just seems logical, that when you tell a company to refrain from processing your data, ..then this is what they should do,... dosent human rights come into effect also?

Edited August 16, 2008 by malissa7999

[car2403]

HI,

,..but surly once you have revoked permission for them to process your data, this is another issue altogether???if they continue to process the data when you have clearly told them not to??...if not what is the point of the law??..its just a complete waste of time if the judges do not enforce the laws that have been put in place.

 

ps and if an agreement was not needed, then why do we have to consent on most forms for them to process our data, if an agreement wasnt needed?

surly if we have to consent to have our data processed, there must be an abilty for us to descent too,... i dont know about the data protection law,..it just seems logical, that when you tell a company to refrain from processing your data, ..then this is what they should do,... dosent human rights come into effect also?

 

We are going well off topic here.

 

You can revoke permission to share, but you can't revoke it retrospectively.

 

I can point you in the direction of some threads on this issue - but, to answer the question, generally, consent to process your data isn't required, as having a legitimate interest in the processing of the data is sufficient, (which is what the CRA's rely on - yet to be tested, IMHO) meaning that they don't need your consent to process.

[Marc77777]

Hi all. If this has already been covered, I do apologise. I have read a large portion of the thread, but cannot find my answer.

 

If my creditor cannot produce a signed CCA, and therfore the debt is unrecoverable, what impact would this have on my credit file? Will the debt be "wiped" off so to speak, along with any defaults I have?

 

Thanks in advance

[gaz2006]

Debt isnt enforceable the debt is still there it just means that they cant enforce it legally until they find the agreement . Most creditors wont remove defaults or change credit file you can try via trading standards etc but doubtful they will do anything

[car2403]

The answer, Marc, is that it depends - it depends which company it is with, why it isn't enforceable and, ultimately, how far you are willing to go with it. There are various options available - TS, as Gaz points out, the Financial Ombudsman and the ICO. Unfortunately, none of these "agencies" seem to take their responsibilities on board and act accordingly. For me, the quickest and most effective route is Court, but then, I (and many more before - and after - me!) have banged my head against these particular walls, without result, before.

 

So, the best way to answer your question is to not answer it here, but to point you to creating a new thread, where you can post up your history and the details of your particular case, so you can get some specific advice on your situation, so here goes;

 

http://www.consumeractiongroup.co.uk/forum/welcome-consumer-forums/107001-how-do-i-dummies.html

[emmaf01]

What if they add the £1 postal order to your account, taking a £1 off your alleged debt?

 

See

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/154306-irwin-mitchell-intrum-justitia.html

[car2403]

So long as the payment has been sent to them, they can do with it what they like.

 

Actually, applying it to the account is better for you, as they can't then dispute that they didn't receive the payment, as you have concrete proof.

[emmaf01]

That was my thoughts. And then if they don't produce the paper work tell them the account is in dispute etc until they do.

[pughats]

Hi

Can anyone advise me on the following. My mum had a loan out with Lloyds Tsb, due to ill health and being made redundant she was paying off the loan at an agreed amount. She had been paying off the loan for a few years before she was off ill and then made redundant, she defaulted on one payment, they sold the debt on and she payed the collections agency, it has been passed on from one collections agency to another through the past few years, the last agency was legal and trade, they harrassed her over the phone and we sent letters of complaint to TSB and Legal and Trade. She was then made redundant again so with what redundancy she was paid she decided to get rid of it once and for all, sorry i forgot to mention we followed the rules as to asking for credit agreement etc, which they couldnt produce. Legal and Trade then called my mum pretending to be TSB and asked if she would make a full and final offer yes i will she said they agreed over the phone and said they would put it in writing, when the letter came it didnt say that they would accept it as full and final so my mum rang Debt Helpline they said do not pay anything unless they agree to the payment being full and final, so we wrote again asking them to put this in writing and they said no, so my mum once again rang Debt helpline they advised her to not do anything further. 2 or 3 months have now passed and low and behold she gets a letter from Robinson Way asking for the TSB debt. Where do we go from here can anyone advise, please

[pughats]

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.

[lexis200]

Hi pughats

 

If they've put it in writing that they don't have an agreement they're a bit stuffed really.

 

They can't prove the debt, they can't enforce it and they can't ask for any money. The bit about over 6 years old is pants - while they only need to keep statements etc for 6 years, things like agreements have to be kept for 6 years after the account has been closed. Basically they've shot themselves in the foot with this statement.

 

That's not to say though that they won't go down without a fight. I haven't had personal experience with the companies you've mentioned (barring Lloyds anyway), but they will probably tell you they don't need the agreement to enforce - this is bunkum.

 

If you want to be absolutely sure they have no agreement (if you don't have a statement to that effect in writing from them), send off an S.A.R - (Subject Access Request), making sure you specifically ask for the agreement to be included. I have a template for this if you need one, as I think the one on here is a general request.

 

You really need to start a thread on this though so that you can get some proper advice thats personal to you, as your question is likely to get lost in this one.

 

When you've done that, post a link on here so people know where you've put it and you should get some good advice coming in!

 

Hope this helps a bit

 

Lexis:)

[Dougal16T]

I think the best way to deal with this would be:

 

(a) send a statutory request to Robinson Way for a copy of the original credit agreement. Please enclose the £1 fee or they'll probably write and ask for it! Use a PO and NOT a cheque. (see why below)

 

(b)You should also ask for a copy of the assignment to them from the previous Debt Collection Agency.

 

It s possible that no copy credit agreement will be produced - which means the debt is technically uneforceable - but beware these people have some sharp tactics and may try to apply for a charge on your property.

 

Whatever you do DON'T sign the letter - PRINT YOUR NAME. This will stop any chance of someone 'cutting and pasting' your signature onto another document.

 

If you still have problems, please send me a PM and I will provide details of similar problems and a letter I sent to Mackenzie Hall, which did the trick!!

 

Best wishes

Dougal

[pughats]

Hi

 

Thanks for the advise, i have the template for the SAR but is there a template for the assignement from previous debt collection agency.

 

Thanks in advance

[Dougal16T]

Hi pughats (great name!)

 

There may be a template, but I think all you need to include in your request is to say:

 

"Please also provide a correctly certified first generation copy of the original assigment notice to you, which you hold on this account, showing the date of the assignment and the details of the transferor of this account."

 

That ought to do the trick I hope, and my best wishes to you.

 

Kind regards

Dougal

Edited September 23, 2008 by Dougal16T
poor punctuation - again - another detention!!

[pughats]

Thanks Dougal

 

Your a star

[lexis200]

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.