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

[paulandberyl]

Could Pam supply a web address or source for the information regarding copies of agreements.

Thanks

Paul

[InKogneeToh]

Copied from another thread:

 

A letter from the OFT outlining sec77-79.

 

Dear Mr Paine

 

Consumer Credit Act 1974 (‘the Act')

Our Ref: Epic/Enq/E/1760

 

Thank you for your email received on 31 March about your enquiry into the Consumer Credit Act Sect 77 & 78.I apologise for the delayed response.

 

The general effects of sections 77-79 requires the creditor/owner (in the case of a hire agreement) under an agreement for (fixed-sum credit, running account credit and hire agreement) to provide the debtor/hirer with a copy of the executed agreement and a statement of account on request.

 

If a creditor/owner fails to comply with a valid request within a period of 12 days (not including the date of receipt of the request) he may not enforce the agreement at all. This prevents enforcement with or without a court order. If a default lasts for a month (for example a calendar month) it constitutes an offence. We understand your concerns in this matter but please do remember however that once the creditor/owner complies with the request albeit out of time, he may once again enforce the agreement.

 

A ‘true copy’ of an agreement principally consists of the terms and conditions of the agreement and the statutory content of the agreement. The name, address and signature of the debtor do not have to be provided. Additionally, the creditor must supply the total sum paid under the agreement by the debtor; the total sum which has become payable under the agreement but remains unpaid; and the total sum which is to become payable under the agreement by the debtor (the latter two must include the various amounts comprised in that total sum and the date when each is/was due). However, the copy must be a copy. It need not be exact on immaterial points, but it cannot be a conjectured reconstruction. If the trader has no original copy, the trader will have difficulty showing that he has complied with the regulation by supplying a ‘true copy’, since nobody would know what was in the original. When the trader comes to enforce the debt in court, he needs to have a signed copy of the agreement in order to enforce. As the law stands currently he cannot otherwise.

 

We note your concerns that in the absence of a copy of the original agreement someone's liability for a debt can only lead to further query. However in circumstances like this we would view it is as unfair practice under section 25(2) (d) of the Act and relevant to licence fitness if a trader failed to investigate and/or provide details as appropriate when a debt is queried or disputed.

 

If you would like to make a formal complaint. Please fill in the attached complaint form.

 

Thank you again for writing to us.

 

Yours sincerely

 

 

Olu Ademolu

Markets and Projects

Enquires and Preliminary Investigations Centre

[InKogneeToh]

Could Pam supply a web address or source for the information regarding copies of agreements.

Thanks

Paul

 

Hi

 

The Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 detail exactly what must be included in copies sent under various sections of the Act.

 

There is currently no link to these (or any other regs.) on this site and this is exactly the sort of information that needs to be made available in a dedicated area for everyone to refer to!

 

Regards, Pam

[standingupformyself]

Hi

I have sent off for CCAs on my MBNA card and my Barclaycard. Its been around 20 days now, MBNA cannot seem to find my CCA, as they took over the account from Abbey, and the account was opened around 10 years ago. What can I do about this? Is there a template for forcing them to admit they cannot find it?

 

 

Barclaycard sent mine this morning, a photocopy of a leaflet of the terms and conditions andd a photocopy of the signed credit agreement, although it has only my signature on it. It is a poor copy though, and the reason I wanted it is cos I feel I have been wrongly paying PPI. I have emailed the lady on the letter to ask for another copy of the CCA, should I re-write the CCA request and give them a further 7 days to comply?

[sortingitout]

Does anyone also know what standing a CCA has in regards to a bank overdraft.

[Belaflat]

The moral of the story is, if you are threatened or served CCJ papers, defend/contend/force the creditor to prove the debt. There are DCA's out there laughing at the judicial system, purely because it is so easy to serve a CCJ on the 'Last Known Address' for a client. Even if they are advised of the new address of a debtor, they can still 'Track and Trace' the last known info (correct or not), serve a CCJ, get judgement by default - all without the debtor knowing that it's going on. I know - my sister had this happen to her - and the court could do nothing, believing the DCA had taken all reasonable steps to prove the address of a 'Delinquent Account'.[/Quote]

 

And what if the DCA had had all the letters returned to them marked as RTS and any papers which may have included the Court papers were marked the same.

 

Would the court on receipt of the returned paperwork go ahead anyway in the full knowledge the said debtor knows nothing about it.

 

A valid reason for a judgement set aside is not receiving the papers.

[ian1969uk]

Does anyone also know what standing a CCA has in regards to a bank overdraft.

 

The CCA 1974 doesn't apply to bank overdrafts.

[yaffsimone1]

So we know that a creditor cannot enforce a debt if they have failed to comply with a CCA s77/78 request. Sorry if im going over old ground here. But say a judgment was entered and you were paying the agreed monthly payments, you can still CCA them, what happens if they turn round and say we dont have your agreement, we cant find it? They enforced a debt and entered a judgement without the correct documentation in place, surely thats grounds for getting the CCJ removed?

[Perseus]

Please, someone correct me if I'm wrong.

 

When a creditor serves papers to enter a default, county court judgement - the defendant (debtor) should receive papers from the Creditor and court, offering the opportunity to defend or counter claim.

 

If no such defence/counterclaim is presented in time - (as debtors can against bank charge claims undefended) judgement can be applied for by default (not contested).

 

The county court judgement / default is then entered against the debtor.

the onus of proof is therefore removed as the debtor apparently is given the opportunity to defend and has declined.

 

Picking up on Belaflat's post - if the documents served in this process are never received by the debtor, the onus of proof is still required by the creditor to show the documents were served correctly, at the address of the debtor. The creditors have many tools availbale (electoral register, track and trace facilities, banking activity records etc) to confirm the address. If the debtor (say has moved and advised change of address) and the papers are not served - I understand it that a request for a set aside could certainly be heard and judged accordingly. It does depend on what steps you've taken to inform the DCA, and how you present to the court.

My sisters case was hard - the judge was not accomodating at all, and she didn't want to take an appeal any further for fear of adding costs.

 

Unfortunately, I have read so many posts recently, I'm wracking my brains to remember where I saw the supporting info for the above, if I find it - or someone could jump in - that would help!

 

Perseus

[Pliny the Penuriosus]

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

[sequenci]

The CCA 1974 doesn't apply to bank overdrafts.

 

It can do, actually.

[Perseus]

Isn't an overdraft provided as a means of extending credit at an agreed APR when used?

[ian1969uk]

It's clearly not covered in the same way. Banks don't have to provide a credit agreement, for example, as a result of a S77/78 request.

[georgieboy]

Have sent off letter requesting credit agreement plus £1-00 fee under 1974 act. Recieved letter back thanking me for the £1-00 which they say has been taken off my debt!!! My request has been ignored, Any help gratefully received...

[Perseus]

Georgie

 

You should reply back, strongly objecting to the fact the £1 statutory payment that was enclosed with a legal request, has now been mis-appropriated by them.

If they do not use the statutory fee for the purpose required under that request, you will be complaining to Trading Standards, OFT and a complaint to the Financial Ombudsman for misappropriation of funds (which falls under the Theft Act).

 

Also state that the original timescale applies, and they are now (or should be?) in default of this request.

 

A lot of banks try this one, then suddenly realise ' oh dear, we put it in the wrong place, we'll now do what you asked'...etc.

 

Perseus

Keep on 'em!

[georgieboy]

Thanks for that Perseus,will do.

[iconoclash]

Hi everyone - could someone please help me understand the CCA rule about precribed form. I've read through this thread and still can't figure it out (probably me!) So - can I just put it simply:

 

Does the agreement need to show the total cost/charge of credit, that is (to me) how much I will pay back in full, not how much credit Ive used/had/borrowed. ?

 

I think this is meant to be on there isnt it?

 

thanks - hopefully - I have a case being heard very soon on this and I thought I had it all worked out but now.............................

[georgieboy]

Thanks for that Perseus,will do.

 

Is the 1974 Credit agreement request suitable to be requested for a bank loan which has been placed in the hands of a collection agency? Also what would be the next step should they not deliver agreement with in 12 days.. Many thanks for your help..

[yaffsimone1]

Is the 1974 Credit agreement request suitable to be requested for a bank loan which has been placed in the hands of a collection agency? Also what would be the next step should they not deliver agreement with in 12 days.. Many thanks for your help..

 

Yes you can send a request off to the DCA it is down to them to request the information from the creditor.

 

After 12 days they are in default after a further 30 days they have commited a criminal offence and they need to be reported to OFT and Trading Standards and untill such time that the CCA has been produced it is totally unenforcable without a court order. But remember if a creditor produces it months / years down the line it does then become enforcable.

 

Unfortunately even though they would have committed an offence you personally cannot enforce it, it has to be done by OFT or TS. Personally i think that is madness, if you know that they have broken the law then you should be able to report it to the police, but apprently it does'nt work like that!

 

Tip my scales if this is of any help.

 

Any information given is from personal experience, if you are unsure you should seek legal advice.

[user56565]

Hi all.

 

The CCA 1974 DOES apply to overdrafts (Schedule 2 of CCA 1974).

 

InKogneeToh & Gizmo. I can send you pdfs of all the legislation if this helps. I don't seem to have enough time at the moment to go through it all.

 

Let me know

[SteveH2508]

Hi all.

 

The CCA 1974 DOES apply to overdrafts (Schedule 2 of CCA 1974).

 

InKogneeToh & Gizmo. I can send you pdfs of all the legislation if this helps. I don't seem to have enough time at the moment to go through it all.

 

Let me know

 

This comes from an OFT FAQ document

 

1.1 What is covered by the s74 determination?

 

A determination under s74(3) was made by the OFT with effect from 1 February 1990. It applies to d-c agreements enabling the debtor to overdraw on a current account, under which the creditor is a ‘bank’ as defined in the Bankers’ Books Evidence Act 1879, provided that certain conditions are satisfied – see Q1.5.

 

A separate determination was made in respect of certain agreements connected with the death of a person.

 

Copies of the determinations may be obtained from the OFT.

 

Agreements covered by a s74(3) determination, and satisfying the relevant conditions, are exempt from most Part V rules including s61(1) on execution. However, the Agreements Regulations will apply to any document embodying such an agreement, and to any term expressed in writing – see Q1.2.

 

1.2 Are all bank overdrafts exempt?

 

The s74 determination in respect of bank overdrafts (see Q1.4) applies subject to the following conditions:

· the creditor must inform the OFT in writing of his general intention to enter into such agreements;

· the debtor must be informed, at or before the time an agreement is concluded, of the following:

o the credit limit (if any)

o the annual rate of interest and any charges applicable, and the conditions under which these may be varied

o the procedure for terminating the agreement;

· the above information must be confirmed in writing.

 

Furthermore, where a debtor overdraws a current account with the tacit agreement of the creditor, and the account remains overdrawn for more than three months, the creditor must inform the debtor in writing not later than seven days after the end of that period of the annual rate of interest and any charges applicable.

 

To paraphrase:-

Bank overdrafts ARE covered by some provisions of the CCA BUT they are exempted from most of the requirements regarding forrm and content of documents; service of notices; service of copies etc.. - therefore S77/78 requests are not applicable (because there is no document to produce). (At least that was my understanding when I dealt with the CCA many years ago!)

 

(Not sure whether that enlightens or confuses!)

[georgieboy]

Yes you can send a request off to the DCA it is down to them to request the information from the creditor.

 

After 12 days they are in default after a further 30 days they have commited a criminal offence and they need to be reported to OFT and Trading Standards and untill such time that the CCA has been produced it is totally unenforcable without a court order. But remember if a creditor produces it months / years down the line it does then become enforcable.

 

Unfortunately even though they would have committed an offence you personally cannot enforce it, it has to be done by OFT or TS. Personally i think that is madness, if you know that they have broken the law then you should be able to report it to the police, but apprently it does'nt work like that!

 

Tip my scales if this is of any help.

 

Any information given is from personal experience, if you are unsure you should seek legal advice.

 

Thanks for that Yaffsimone I now understand it all, thank you again for enlightening me...

[user56565]

SteveH - yeah that makes sense.

 

Could you send us the link for the oft faq?? I would like to see the rest of the document...

[SteveH2508]

http://www.lacors.gov.uk/lacors/upload/5883.DOC

 

Some other useful stuff on this site as well.

[goldfish25]

Hi Guys, Im new to this, so bear with me....ive been reading the q&as and trying to get my own answers without having to bother anyone, but im confused...

 

Basically, I had laser surgery on my eyes about a year and a half ago. Optical Express carried it out and i aggreed to pay via interest free option.... over a year later, i get a letter saying that due to an admin error it appears that my payments havnt been taken out of my account!! They stated that they found this after an internal audit. My question is: Am i still liable to pay for this even tho they contact me over a year later??

 

Needless to say, im now getting letters saying that debt collectors will call to my door in 2 weeks if i havnt paid the amount in full..?!

 

Can anyone point me to a thread which would be useful (Im not sure what title this would fall under) or have any advice i.e. request a copy of the agreement (if they even have it!) etc etc...

 

All/any help appreciated....

 

Thanx.