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

[johnny131070]

I sent a £1 to Direct Legal and Collections on the 29th May and the cheque cleared my bank yesterday but still no CCA. Do i just sit tight until the 42 days are up? They are acting on behalf of Citifinancial who have sent my SAR back to me.

[Josie8]

plymss, so glad i read your post as i was just about to send two cca letters in the morning. One is to Lloyds TSB who are being totally intransigent when all my other creditors have accepted reduced payments - obviously in view of their supposed victory they think they are entitled to behave totally out of line. Like the person who posted above I am only taking this action with card companies who will not help. Am now reprinting letters for new signature and will be sending postal orders too. I learn something new every day. (added later - did send cheques in the end as can prove they banked them - but did my new slightly amended signature on them too)

 

Thanks guys

I always send postal orders made payable to them because it gives them no wriggle room on when payment received (i.e waiting for cheque to clear). On some threads for SAR requests bank won't cash cheque. PO's can be checked if cashed by post office but it doesn't really matter because in law it is regarded as cashed on receipt.

[ian1969uk]

Sorry to disagree but bank overdrafts are covered, look under the forum search Consumer Credit Agreements Resources/workshops, think the thread is on 2nd page and its in there somewhere, Hi to you in BOT, not far from you, can you still smell the beer and marmite?

 

There is no requirement for bank overdrafts to have a consumer credit agreement, so Section 77/78 requests are useless as fas as overdrafts go.

[redsue]

sorry to hijack - but I'm after some help with this letter I received this morning - I think MBNA are talking complete b******s

http://www.consumeractiongroup.co.uk/forum/mbna/81907-mbna-ding-ding-round.html#post920393

and I suspect they have no original agreement - thanks

[ian1969uk]

sue, you're right, it's rubbish.

 

They haven't supplied you with your agreement so this certainly is an account in dispute.

 

I'd send them this:

 

[Their address]

 

[Date]

 

[Your address]

 

Account number: xxxxxxxxxxxxx

 

Dear sir or madam

 

Request for true copy of Credit Agreement under Sections 77/78 of the Consumer Credit Act 1974

 

I wrote to you recently requesting a true, signed copy of any credit agreement that exists in relation to the above account. This is my right under Sections 77 and 78 of the Consumer Credit Act 1974 on payment of the statutory fee of £1.00. This payment was included with my original request.

 

Under the terms of the above Act, a creditor has 12 working days to provide the requested document. Should they fail to do this, they have a further calendar month to rectify this default. Failure to comply within these timescales is a criminal offence.

 

Both of these deadlines have now passed and I have received nothing in relation to my request. This can lead me to only one conclusion, that being that no signed credit agreement exists in relation to this account.

 

As I am sure you are aware, an agreement that does not contain all of the prescribed terms, and/or is not signed by the debtor, is completely unenforceable, even in a court of law. This will be a complete defence to any court action that you may consider taking.

 

On the advice of the Financial Ombudsman, I am now requesting a final decision in this matter from you. Should this decision not meet with my satisfaction, then I will pursue the matter through the Ombudsman. The maximum timescale for you to give a final response to any complaint is 8 weeks. This time runs from the date of my original complaint, in this case that is the request for a true copy of the credit agreement. Therefore, you must provide me with a final response in this matter, including your proposed actions for this account, by [insert date].

 

Please note, you may also consider this letter 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 the 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.

 

There has never been any regulated agreement in relation to this account, and therefore you have never had my consent to process my data. I also do not see how you can state that you have a legitimate interest in processing my data as we have never had any contract that would enable you to do this.

 

Should you fail to respond within 21 days, I will expect that this means you agree to remove all such data.

 

Furthermore, you should remember 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 therefore the following applies:

• You may not demand any payment on this account, nor am I obliged to offer any payment to you.
  
• You may not add any further interest or charges to this account.
  
• You may not pass this account to any third party.
  
• You may not register any information in respect of this account with any of the credit reference agencies.
  
• You may not issue a default notice related to this account.

Be warned, the CCA 1974 is clear that a default can only be issued for breach of a valid, regulated agreement. If there is no agreement, as in this case, then you cannot issue a default as I have not breached any valid, regulated agreement.

 

I look forward to your final decision on this complaint within 21 days. This should include your proposed actions in relation to the lack of a credit agreement.

 

Yours faithfully

 

[Your name]

[Jhawc24]

Thanks for advice missmuppet and Ian. So should this finance company have a signed CCA? or because it was done online do they not need one?

 

Regards, Joan

[miss muppet]

Sorry Jhawif I mislead you , I am going to have a look around but am sure bank overdrafts are covered by CCA!

[miss muppet]

Got it, thought I was going crackers then, do a forum search on Are Bank Overdrafts covered by CCA, then thread CCA Overdrafts - the Final Word (Spinning Fish)(about 3/4 way down the page, sorry haven't mastered linkbacks yet!

[karen654321]

Hiya, Ian1969uk thats a great letter will certianly be using that soon. I wonder if someone could just clarify something for me. I have a old barclaycard debt that cabot are now dealing with. I have sent a cca request to both. Barclaycard havent got it and cabot are saying they would never have had it. Its down to barclaycard to produce.

I cant see how cabot are saying they dont need it to demand money. If barclaycard havent got it who do i now have the dealings with. Ive told cabot that barclaycard havent got it and they dont care basically they want there money..

any advice greatly appreciated

 

karen

[ian1969uk]

Got it, thought I was going crackers then, do a forum search on Are Bank Overdrafts covered by CCA, then thread CCA Overdrafts - the Final Word (Spinning Fish)(about 3/4 way down the page, sorry haven't mastered linkbacks yet!

 

Overdrafts are covered by the CCA but not in the same way, and they are not required to have a credit agreement to cover an overdraft.

[ian1969uk]

Hiya, Ian1969uk thats a great letter will certianly be using that soon. I wonder if someone could just clarify something for me. I have a old barclaycard debt that cabot are now dealing with. I have sent a cca request to both. Barclaycard havent got it and cabot are saying they would never have had it. Its down to barclaycard to produce.

I cant see how cabot are saying they dont need it to demand money. If barclaycard havent got it who do i now have the dealings with. Ive told cabot that barclaycard havent got it and they dont care basically they want there money..

any advice greatly appreciated

 

karen

 

Stop paying then. If they have admitted that no agreement exists then they cannot enforce the debt.

[redsue]

ian1969uk - thank you so much for that killer letter! I knew they were deliberately trying to mislead me - I'll get it out in the post on Monday - I was actually thinking of forcing their hand and taking them to court for harrasment - and this clearly gives them the deadlines

Thanks again for your help - will keep you informed :o

[Ursi]

This is not correct. Failure to comply with a CCA s77/78 request (where that request is relevant and valid) means that the creditor is not entitled to enforce the agreement.

 

Yes, the debt still exists, but the debtor has no obligation whatsoever to make further payments where a creditor cannot/does not comply and is thus barred from enforcing the agreement.

 

Hi InKogneeToh (love your name),

I am glad you have clarified the situation of non-compliance of supplying a signed credit agreement. If I may, I will briefly tell you about my unpleasant experience with CapQuest Debt Recovery Ltd who are harrassing my for a debt that does not belong to me. A few years ago I was a victim of identity theft. In fact, an individual(s) ordered goods from mail order companies using my name and previous address. Fortunately, I could clear my name and the defrauded companies requested Experian and Equifax to remove my name from their credit files. Altough I have sent CapQuest a letter asking for a signed credit agreement and a full statement of the account they claim I had, they have failed to comply with my request and keep sending me threatening letters instead. Altough I have evidence that I am not responsible for the debt they claim to have purchased. I would like to hear from any other victims.

[JonCris]

Report them immediately to TS, OFT & the ICO

[Ursi]

Hi JonCris,

Thanks for your reply. I'm sure I'll be one of many to report their illegal practices. I'm surprised they still have a licence to trade.

[robert_harper_2000]

Been reading and re-reading but what if they are past the 12 + 2 and 30 days (also knocked the £1 off the loan) but then supplied the agreement... they have failed to comply in time but ultimately complied- surely they can't immediately demand payments?

[yaffsimone1]

Been reading and re-reading but what if they are past the 12 + 2 and 30 days (also knocked the £1 off the loan) but then supplied the agreement... they have failed to comply in time but ultimately complied- surely they can't immediately demand payments?

 

Yes they can. If they have produced an executed agreement with all the prescribed terms even if it is after the 12+2+30 then the debt becomes enforcable, however, they cannot charge interest or add charges for the period they were in default.

[yaffsimone1]

What i would like to know is after 30 days they have committed a criminal offence is the Act saying that as soon as they produce the agreement the criminal offence is written off!

[robert_harper_2000]

That's what I thought was abit odd, although I guess I could ask for the interest on the loan to be refunded for the period they were in default but it was only for about a month....

[SteveH2508]

What i would like to know is after 30 days they have committed a criminal offence is the Act saying that as soon as they produce the agreement the criminal offence is written off!

 

Technically, the offence of failing to supply the documentation in time still exists. It becomes time-barred after 6 months however. Practically speaking, TS would never prosecute that one - they won't prosecute complete failures to comply with S77/78 at the moment. (see numerous other threads)

[yaffsimone1]

Technically, the offence of failing to supply the documentation in time still exists. It becomes time-barred after 6 months however. Practically speaking, TS would never prosecute that one - they won't prosecute complete failures to comply with S77/78 at the moment. (see numerous other threads)

 

I know they are flippin useless!

 

I wrote to TS saying a creditor had committed a criminal offence they wrote back saying they cannot deal with individual civil cases.

 

They clearly dont know the difference between civil and criminal:rolleyes:

[redsue]

Quick question people

MBNA have sent me a true copy of the original credit agreement from 1993 - very impressive!

However, parts of it, especially the small print is illegible plus they have sent me a set of current terms and conditions - am I not mistaken in thinking they have to send the terms and conditions to which I signed up to?

[rory32]

am I not mistaken in thinking they have to send the terms and conditions to which I signed up to?

Yes.

 

Also the copy of the credit agreement has to be legible.

[redsue]

hi rory32

yes I am mistaken or yes I'm right?

[rory32]

Yes you are right.