SLC Cannot Supply The Original Agreement

[Yasmin]

Hi Zubo ,Stone L. & guys can you help me with next step please....

 

Originally Posted by Yasmin

Next have not supplied the credit agreement. I sent them a statutory request months ago but have been so busy with other issues, so put it off till now. They sent me a letter dated September, last year stating that they do not hold an agreement, and stating they are frankly shocked that I do not acknowledge the debt! They also say that they will not remove the default and...

 

"Next acknowledge that the absence of a signed credit agreement means that the debt cannot be enforced by law. It does not mean however, that it is not a debt. Next is entitled to enforce the debt as long as that does not include court proceedings and Next will continue to seek payment of the outstanding balance until such time as it is paid in full"

 

I have not heard from them since, but they are refusing to remove adverse credit. Any advice on how I should proceed would be gratefully accepted.

 

 

The letter I sent:-

 

Dear Ms. Haddon,

CA 1974 (Consumer Credit Act)

 

As you are aware, I wrote to you on 12th July, 2006 requesting you supply me with the relevant information, which is my legal right under section 77-79 of the CCA 1974 and you had 12 days plus 30 days inclusive of holidays and weekends to respond to me with the information.

 

I am now in receipt of your letter dated 7th September, 2006 acknowledging that you do not hold a copy of the agreement and that the debt is therefore unenforceable. However you continue to process my data.

 

The time has passed and you have now committed a Criminal Offense under the said Act and it is my intention to report you for this criminal conduct to the appropriate authorities.

 

I also understand that under the Act, due to your failure to comply with my statutory request you or any acting agent are unable to enforce an agreement therefore I am ceasing any further payments forthwith and will seek to recover any payments made to date.

 

Data Protection Act (Data Protection Act 199(Idid not include this Cool image lol can't delete it)

 

Furthermore under the Data Protection Act (D10), you are also denied the authority to pass on any of my personal data. To do so in the circumstances is I understand a breach of the Data Protection Act 21988, and also the OFT guidelines, and should you ignore my request it would again result in you being further reported to the relevant authorities.

 

I also require that you remove my data from your files within the next 7 days and look forward to receiving a letter from you within 10 days confirming that you have complied with this request.

 

Y F

 

 

The reply;-

 

I write following receipt of your further letter.

 

I regret to learn that you are dissatisfied with my response to your original letter regarding the default registered against your account.

 

Under Section 78 of the CCA you are entitled to receive a copy of the executed agreement, if one is held, and any other document referred to in it, together with a statement showing the state of the account, and the amount, if any, that is payable. Section 78 does not require a debtor to be provided with a signed true copy of the original default notice.

 

As previously advised, I cannot provide you with a signed or executed agreement, because Next does not hold one. You have, however, previously received copies of the actual statements you were sent, and copies of the letters which were sent, prior to the account being passed to the debt collection agency, and which advise of the consequences of non-payment.

 

I reiterate that in the interests of responsible lending Next have a legal duty to report the credit history of a customer's accounts to other lenders. To not do so would present an entirely false position with regard to your credit history. I therefor must advise you that the information currently recorded by Next on your credit file will remain.

 

In conclusion, we have provided you with the information you have requested and are entitled to.

 

Y S.

 

 

 

[humbleman]

I reiterate that in the interests of responsible lending Next have a legal duty to report the credit history of a customer's accounts to other lenders. To not do so would present an entirely false position with regard to your credit history. I therefor must advise you that the information currently recorded by Next on your credit file will remain.

 

In conclusion, we have provided you with the information you have requested and are entitled to.

 

Y S.

 

What legal duty?

[Pliny the Penuriosus]

Thyey are entitled to ask for their money but if they continualy ask for payment of an unenforcable debt then they might find themselves guiilty of criminal harassment.

 

If they have no agreement then one doesn't exist & they cannot 'prove' you gave consent to their processing your data. Suggest pointing this out ot them again otherwise court action will follow

[joesoap]

I've noticed similar conduct from the Student Loan Company - I complained and asked for proof of postage, etc, even submitted a Data Protectection Act request. They declined to send any proof. My advice would be to refer to letters in this form: "Thank you for your letter of April 1st which I received April 11th." If the letter is franked use this form: "Thank you for your letter of April 1st, franked April 10th, which I received April 11th."

 

If they try to get cute, require proof of postage. Don't be afraid to point out that all your letters are sent recorded delivery, at a cost to yourself.

 

If they continue to get cute, you may want to have your correspondence sent to a solicitor, who can notarise the letter on the date received. Don't forget to charge Wescot / Legal & Trade / McGreedy & Grabbit for this "service", though warn them first that you'll do this if they don't get their act together. I'd take the view (I am not a lawyer, yada yada) that this is a cost incurred by you as a result of an implicit breach of contract by Wescot or chums.

 

 

Couldn't agree more.

[Josie8]

Hi Zubo ,Stone L. & guys can you help me with next step please....

 

Originally Posted by Yasmin

Next have not supplied the credit agreement. I sent them a statutory request months ago but have been so busy with other issues, so put it off till now. They sent me a letter dated September, last year stating that they do not hold an agreement, and stating they are frankly shocked that I do not acknowledge the debt! They also say that they will not remove the default and...

 

"Next acknowledge that the absence of a signed credit agreement means that the debt cannot be enforced by law. It does not mean however, that it is not a debt. Next is entitled to enforce the debt as long as that does not include court proceedings and Next will continue to seek payment of the outstanding balance until such time as it is paid in full"

 

I have not heard from them since, but they are refusing to remove adverse credit. Any advice on how I should proceed would be gratefully accepted.

 

 

The letter I sent:-

 

Dear Ms. Haddon,

CA 1974 (Consumer Credit Act)

 

As you are aware, I wrote to you on 12th July, 2006 requesting you supply me with the relevant information, which is my legal right under section 77-79 of the CCA 1974 and you had 12 days plus 30 days inclusive of holidays and weekends to respond to me with the information.

 

I am now in receipt of your letter dated 7th September, 2006 acknowledging that you do not hold a copy of the agreement and that the debt is therefore unenforceable. However you continue to process my data.

 

The time has passed and you have now committed a Criminal Offense under the said Act and it is my intention to report you for this criminal conduct to the appropriate authorities.

 

I also understand that under the Act, due to your failure to comply with my statutory request you or any acting agent are unable to enforce an agreement therefore I am ceasing any further payments forthwith and will seek to recover any payments made to date.

 

Data Protection Act (Data Protection Act 199(Idid not include this Cool image lol can't delete it)

 

Furthermore under the Data Protection Act (D10), you are also denied the authority to pass on any of my personal data. To do so in the circumstances is I understand a breach of the Data Protection Act 21988, and also the OFT guidelines, and should you ignore my request it would again result in you being further reported to the relevant authorities.

 

I also require that you remove my data from your files within the next 7 days and look forward to receiving a letter from you within 10 days confirming that you have complied with this request.

 

Y F

 

 

The reply;-

 

I write following receipt of your further letter.

 

I regret to learn that you are dissatisfied with my response to your original letter regarding the default registered against your account.

 

Under Section 78 of the CCA you are entitled to receive a copy of the executed agreement, if one is held, and any other document referred to in it, together with a statement showing the state of the account, and the amount, if any, that is payable. Section 78 does not require a debtor to be provided with a signed true copy of the original default notice.

 

As previously advised, I cannot provide you with a signed or executed agreement, because Next does not hold one. You have, however, previously received copies of the actual statements you were sent, and copies of the letters which were sent, prior to the account being passed to the debt collection agency, and which advise of the consequences of non-payment.

 

I reiterate that in the interests of responsible lending Next have a legal duty to report the credit history of a customer's accounts to other lenders. To not do so would present an entirely false position with regard to your credit history. I therefor must advise you that the information currently recorded by Next on your credit file will remain.

 

In conclusion, we have provided you with the information you have requested and are entitled to.

 

Y S.

 

 

 

 

 

Ask them to specify the relevant statute which gives them the legal authority to process your data without your permission and without a signed contract.................... Think you'll find they can't answer that one

[pford]

this might be of interest to some

 

20/03/2006

 

The Filing of Unenforceable Credit Agreements on Credit Reference Files

The attached letter was sent to the Information Commissioner in England and Scotland for clarification on the above point. The following email was received from the Information Commissioner:

 

 

Dear Ms Humphreys,

 

Thank you for your letter enquiring about our position on this issue. Your letter was directed to the Information Commissioner’s office in Edinburgh and they have redirected it to the main office in Wilmslow.

 

We looked at this issue some years ago now following a report by the OFT on mail order practices. The report was not supportive of the withdrawal of agreements from the credit files but the DTI Minister at the time, Kim Howells, was concerned about the issue and asked us to consider the matter. However the situation was complicated by a number of recent cases which impacted the situation. Furthermore we anticipated that other cases could follow which had the potential to change the legal position again. We decided at that time that we would have to consider complaints on a case by case basis, looking closely at what the consumer claimed about the account. In some circumstances we do ask for defaults to be removed.

 

Your enquiry gives good reason to review the issue. I have therefore asked our legal department to review the legal position so that we can take this and the arguments you have put forward into account.

 

I hope to return to you in the not too distant future. You may also be interested to know that I am rewriting our guidance on the filing of defaults with credit reference agencies. This covers the overall standards we expect to be met before defaults are recorded. I hope to be able to publish in a few months.

Regards,

Carol Hufton Head of Special Projects

Guidance and Promotions Division.

Information Commissioner’s Office,

Wycliffe House,

Water Lane

Wilmslow,

Cheshire.

SK9 5AF.

 

 

attached letter

 

Dear Sir/Madam

 

Information Commissioner's Opinion re: Unenforceable Credit Agreements and Credit Reference File Default Entries

 

LACORS (the Local Authorities Coordinators of Regulatory Services) provides advice and guidance to help support local authority regulatory and related services. It was set up in 1978 to coordinate the enforcement activities of trading standards. Since 1991, LACORS has also worked on food safety and is currently responsible for a range of other regulatory and related services.

 

LACORS is a local government central body created by the UK local authority associations which comprise of the Local Government Association (LGA), Welsh Local Government Association (WLGA), Convention of Scottish Local Authorities (COSLA) and Northern Ireland Local Government Association (NILGA).

 

LACORS Consumer Advice and Education group is seeking clarification of the Information Commissioner's opinion on the issue of defaults being noted on credit reference files where a creditor has accepted that an agreement is unenforceable.

 

A specific example of this type of case would be where a catalogue company has supplied goods to a consumer on credit without entering in to the required credit agreement with the consumer. The consumer has made some repayments (certainly enough to cover the cost of the goods received but not enough to cover all interest and charges) but has been advised that the agreement is unenforceable and has therefore informed the trader that she will not make any more payments on the account. The trader has conceded that there is no enforceable agreement but is threatening to make a default entry on the credit reference file.

 

The opinion of LACORS is that where a creditor accepts that an agreement is unenforceable against a consumer they should not be permitted to 'punish' the consumer by placing a record of the 'default' on their credit reference file. To do so would be unfair and unreasonable. It would also lessen the impact of the provisions of the Consumer Credit Act which make it clear that a creditor should not be allowed to enforce a credit agreement where the agreement is improperly executed.

 

 

 

In reaching this opinion LACORS have taken note of the Information Commissioner's instruction (reported in "Which?" September 2003) that On:line Finance Ltd should remove a default notice that the company had placed on a consumer's file despite their decision that it would be uneconomical to take the matter to court.

 

As there seems to be some inconsistency in the advice received from the Information Commissioners helpdesk we feel it would be beneficial for trading standards departments, consumers and businesses to have written guidance from the Information Commissioner on this issue which can be circulated to consumer advisors nationally and ensure consistent advice on this issue in future.

 

 

no update on this that i can find

 

LACORS - Subject Content Details

[Pliny the Penuriosus]

subscribing

[un1boy]

OK - I do see what you are saying BUT my personal argument would be

 

The information published in the CRA reports is seen by lenders and anyone that I might want to take a contract out with (mobile phone companies, insurance companies, lenders = banks & credit card companies the list can go on & on?)

 

Therefore, if somebody is writing "erroneous" data about me saying I owe debts when I don't - it damages my reputation - I'd have difficulties?

 

Because the data isn't right/truthful a person has every right to stop this stuff being published by companies because it really isn't a "true" picture of what is really going on?

 

As an individual the consequences of such erroneous data will mean to them that they pay for more expensive loans, credit cards, may not be able to get contract mobile phones, insurances etc.. = which is damage caused to the individual because their credit score is out of sync???

 

So with this if any lender is writing any data to the CRA's that is wrong - the individual has a very good argument for asking them to cease writing etc.. and asking both the original lender and the CRA to remove that specific "wrong data" from your credit file?

 

If there is an argument for "unlawful charges" & defaults showing etc.. I would definitely go after the original lender and CRA and make them stop.

 

I can't see how instances where lots of unlawful charges resulting in a default being applied to an individuals Credit File - the original lender would have no argument to keep writing the data? How could their writing the wrong data be right?

 

There will always be various arguments put forward by the Original lenders and CRA's etc.. But the bottom line is if the data is WRONG they clearly shouldn't be writing it?

 

 

I agree with you entirely - but isn't that what Dayglo went for and the Judge ruled in their favour, not his?

 

If charges are there, fine it's easy, if not then the S10 in my experience isn't too easy.....it hasn't worked for me at all!

[elizabeth1]

I agree with you entirely - but isn't that what Dayglo went for and the Judge ruled in their favour, not his?

 

If charges are there, fine it's easy, if not then the S10 in my experience isn't too easy.....it hasn't worked for me at all!

 

 

Some will ignore the S10 - they say they have rigths to write trash etc..

 

The only other thought I have is try the bodies - FOS, ICO ETC.. show they are writing wrong info - maybe that would help?

 

I am hoping someone with more experience can help here cause I don't know too much about it myself yet - have to admit I am floundering a little - SurlyBonds thread maybe?

[un1boy]

Some will ignore the S10 - they say they have rigths to write trash etc..

 

The only other thought I have is try the bodies - FOS, Information Commissioners Office ETC.. show they are writing wrong info - maybe that would help?

 

I am hoping someone with more experience can help here cause I don't know too much about it myself yet - have to admit I am floundering a little - SurlyBonds thread maybe?

 

 

I know exactly where you are coming from - if surly was still around it might be easier....

[rhsymonds]

Hi again, could someone please check im not lying about anything before i send this to fredrickson. They initially sent me a 'account on hold while we investigate' letter, but 2 weeks later i cancelled my DD and now they are threatening court action.

 

Parts borrowed from several posts on here, please let me know if you are not happy with me using your words.

 

Dear Sirs,

Thank you for your letters of 16/04/2007 threatening enforcement of this debt. I have enclosed a copy of my letter dated 01/04/2007 which was sent recorded delivery and has been signed for by you indicating its safe arrival. However, as you have decided to write to me again, it appears that you have not bothered to read the contents. You should do so now.

 

The 1974 Consumer Credit Act (CCA) demands that I be supplied with a true signed copy of any properly executed credit agreement that exists in relation to the above account. I may ask for this on demand providing that a fee of £1.00 is paid. This fee was sent with my original letter and my request remains outstanding. This places you in default and if I am not provided with this signed true copy by 25/05/07 you will have committed a criminal offence which I intend to report to the FOS.

 

As you will know, under the CCA 1974 a judge is not permitted to make any enforcement order unless the creditor can provide a true signed copy of the original credit agreement. This means that unless you can produce such an agreement, the alleged debt is not enforceable in law. Whilst the account remains in dispute, you are not permitted to ask for any payment, nor am I obliged to offer any payment to you, you are not entitled to charge any interest or charges to the account, nor are you entitled to register any information on this account with any credit reference agency.To register information with a CRA, you must have written consent from the customer to collate and share such information. This consent is given in the form of a signed credit agreement, so until you produce such an agreement, you may not do this. Should you not have any signed credit agreement in relation to this alleged debt, please confirm this in writing to me.

 

You have already exceeded the time limits prescribed by the Act to supply this document and are currently in default and in danger of committing a criminal offence.

 

It is my intention to pursue litigation in this matter and ask that your attention be drawn in particular to CPR 4.6 © enclose copies of documents asked for by the claimant, or explain why they are not enclosed;

I would therefore request, in compliance with CPR 4.6© a copy of the document that you will be relying on as proof that a properly executed agreement, complying in all respects with the form and content requirements of the CCA was signed by myself in respect of this alleged debt. I am sure that your solicitors (Bryan Carter & Co) will be aware of what is required. I expect, in accordance with CPR, your prompt response to this formal request without further delay.

 

Basically, they still havent supplied my agreement but keep sending letters demanding payment. I searched for the relevant harassment law, but couldnt find it.

 

Shall i send this or wait until the full 42 days are up & they are in serious trouble ?

 

Thanks to all of you,

R

[joesoap]

They did the same with me; threatened bryan carter (their in house sols). I just wrote back saying that while the account is in dispute they can take no further action. Heard nothing for a fortnight now.

[ladybird17]

Yup same here - sweated out the 12 + 2 plus the calendar month then phoned them - not something I normally advocate, but was having "one of those days" and DID follow up with letter. Told them was not having any more of the threatening letters - account been in dispute since end Jan. - failed to comply with CCA - most likely this means they have breached S85. Have been harrassing me when they should not be doing so, was going to do them for harrassment, report to ICO, TS & uncle Tom Cobley and haven't heard a dickie bird since - and that was about a month ago.

[rhsymonds]

Heard nothing for a fortnight now.

 

Haven't heard a dickie bird since.

 

+1 & Thanks to both of you for your swift replies, ill post the letter this afternoon.

 

[baconbuttyman]

hehe...glad to see my LITTLE thread is still alive n kicking

[rippedoffagain]

hehe...glad to see my LITTLE thread is still alive n kicking

 

Yes, what did you start!!!!!

[Rubymay]

I posted this earlier today in the CCA thread but wondered if anyone here might be able to help with the Trading Standards issue? Is reporting these non-complying creditors my best next move or should I be trying to get defaults removed? I'd appreciate any help you can offer.

 

Hi Everyone

 

I just wanted to report some success with my CCA requests:

 

DG Solicitors have responded :'We confirm that we shall no longer be pursuing yourself for the remaining outstanding debt. We shall therefore request for the registered default to be removed.'

 

Aktiv Kapital (who have admitted they can't track down the necessary documents):'In view of this all action by ourselves will now cease and we will arrange for the removal of any default information which may be recorded against you with the relevant credit reference agancies.'

 

However..... Next are sending me repeated letters saying 'I write to confirm that Next does not hold a signed credit agreement for you. Under section 127 (3) of the CCA 1974 this debt is therefore unenforceable......Next will continue to seek payment of the balance owed by you......A default entry will therefore be made on your credit reference file, which may affect your ability to obtain credit in the future. (I never want to obtain credit ever again but I would like as much of this to go away as possible after seven years!) Any suggestions on how to respond?

 

Also my remaining creditors have either failed to respond at all or have sent a holding letter saying that they will send the information as soon as possible (it's now over two months since I sent the original letter and about three weeks since I sent the follow up warning them about their liability for a £2500 fine if they didn't supply the information). I would like to start reporting them to Trading Standards - do I have to contact my local TS Office or do I have to contact the office local to the address of the creditor?

 

Can anyone tell me the correct procedure for approaching Trading Standards - what sort of evidence you have to supply etc?

 

Thanks for all the wonderful help so far:-) !!

 

Ruby May

[Movingon]

Trading Standards should be approached via Consumer Direct (see their website).

 

The reply you send to Next should state that any action they take to attempt recovery of the debt will be vigorously defended and contested, and may constitute an offence. Reiterate that as the debt is unenforceable that there are no circumstances under which you will pay them any money whatsoever in respect of this matter. Attempts to recover money from you in relation to this matter will be reported under s.40 of the Administration of Justice Act 1970 as harrassment.

 

You should also write to the CRA's (enclose a copy of Next's letter) stating that as the debt is unenforceable that under the Data Protection Act they will be processing your data in a way which is at variance with the data protection principles if they allow such a default to be registered. Accordingly, if any such action is taken by them, you will report them to Trading Standards and the Information Commissioner's Office.

[Rubymay]

Hi Tom

 

Thanks for the link to Trading Standards - I will be sending them details of the various organisations that are currently in breach of the CCA. Would it be a good idea to report them under the Financial Services Act too? If so who to and under what sections etc.?

 

Thanks too for the advice about Next - I will send off a letter immediately and await the response with interest - at the moment they seem to ignore the contents of your letter and just send another copy of the one I quoted.

 

Thanks again

 

Ruby May

[joneshousehold]

Hey BBM, good to hear from you. Yes indeed, you have started a revolution.

[Movingon]

I don't know anything about the Financial Services Act I'm afraid.

[ladybird17]

I just don't see how any complaint could be made under the Financial Service & Markets Act. This Act mainly sets out the responsibilities of the Authority, and is mainly concerned with Land & Investments. Although there is mention of regulated agreements, these sections appear to deal with unauthorised persons issuing regulatory agreements. Whilst it does state that the Authority must oversee market confidence & consumer protection, it does also state that the Auhority must have regard to:

(d) the general principle that consumers should take responsibility for their decisions.

[zubo]

Yasmin & RubyMay - regarding Next Defaults:

 

Try #38 in my Workshop thread

 

http://www.consumeractiongroup.co.uk/forum/site-questions-suggestions/79147-consumer-credit-act-resources-2.html

 

 

Very good strategy with template letters, also a number of other useful letters to re-use.

 

Z

[zubo]

I posted this earlier today in the CCA thread but wondered if anyone here might be able to help with the Trading Standards issue? Is reporting these non-complying creditors my best next move or should I be trying to get defaults removed? I'd appreciate any help you can offer.

 

Hi Everyone

 

I just wanted to report some success with my CCA requests:

 

DG Solicitors have responded :'We confirm that we shall no longer be pursuing yourself for the remaining outstanding debt. We shall therefore request for the registered default to be removed.'

 

Aktiv Kapital (who have admitted they can't track down the necessary documents):'In view of this all action by ourselves will now cease and we will arrange for the removal of any default information which may be recorded against you with the relevant credit reference agancies.'

 

However..... Next are sending me repeated letters saying 'I write to confirm that Next does not hold a signed credit agreement for you. Under section 127 (3) of the CCA 1974 this debt is therefore unenforceable......Next will continue to seek payment of the balance owed by you......A default entry will therefore be made on your credit reference file, which may affect your ability to obtain credit in the future. (I never want to obtain credit ever again but I would like as much of this to go away as possible after seven years!) Any suggestions on how to respond?

 

Also my remaining creditors have either failed to respond at all or have sent a holding letter saying that they will send the information as soon as possible (it's now over two months since I sent the original letter and about three weeks since I sent the follow up warning them about their liability for a £2500 fine if they didn't supply the information). I would like to start reporting them to Trading Standards - do I have to contact my local TS Office or do I have to contact the office local to the address of the creditor?

 

Can anyone tell me the correct procedure for approaching Trading Standards - what sort of evidence you have to supply etc?

 

Thanks for all the wonderful help so far:-) !!

 

Ruby May

 

RubyMay

 

Be warned - you are not completely finished: I had the same response from DGS, I too thought great... then I thought again, what gave the game away was that they had reference and balance outstanding... they and the others are acting for clients, write back and tell them that since they have no execute agreement you insist that they confirm that the balance on the alleged account is set to zero, or else you will report them for non-compliance and a likely penalty of £2500 and once OFT have prosecuted you will request that they are not fit to hold a licence under CCA and request its removal. Two more letters it took me and they complied. Otherwise, months later another joker will have a go. They said THEY would not pursue the debt.

 

Z

[Yasmin]

Thanks Zubo, will check the workshop:wink: