can some one help please

[nettle]

Hi, I have been in my own debt management plan for just over two years. A certain store has done nothing but give me problems. My debt has been passed on to a debt management company and I requested a copy of my cca. I received it today but is a reconstituted copy. The agreement was made in 2001 and I have received conflicting advice about the agreement. I, therefore, have the following questions

1. If the agreement was made in 2001 should the copy show my signature and be a copy of the original and or a reconstituted agreement still showing my signature.

2. I was of the understanding that if the debt gets sold on all dealings should be made through the debt co. I made the request for the copy agreement through them but Argos replied directly to me.

3. I am not disputing the agreement and have always paid each month but I just want to know what I type of copy agreement I should have received. I was hoping that if they do not have a the original agreement then I might be able to offer they a low full and final settlement.

Thanks for any help

[Nibbler]

Re: can some one help please

Welcome.

1. s77/78 requests allow that a copy supplied under that may omit the signature.

2. The DCA would have had to forward the request to Argos as they would have the info needed to respond. Sometimes in those cases the original creditor will forward it directly to you.

3. A CCA request under s77/78 is often too blunt a tool to see if they actually have original copies, due to reconstitution being permitted. Others may be able to suggest an alternative tack.

[FlamingParrot]

Re: can some one help please

Hi, I have been in my own debt management plan for just over two years. A certain store has done nothing but give me problems. My debt has been passed on to a debt management company

Do you mean a debt purchaser like Arrow, Lowell, Marlin, etc. or are your referring to a company management your DMP?

and I requested a copy of my cca. I received it today but is a reconstituted copy. The agreement was made in 2001 and I have received conflicting advice about the agreement. I, therefore, have the following questions

1. If the agreement was made in 2001 should the copy show my signature and be a copy of the original and or a reconstituted agreement still showing my signature.

The Carey v HSBC case established that a recon is acceptable response to a CCA request: http://paulatwatsonssolicitors.wordp...dit-agreement/

In Carey v HSBC Bank Plc HHJ Waksman QC made it clear that the creditor does not need the original agreement to produce a true copy, he can rely on records held in computers and other sources to produce a true copy of the agreement, the only caveat is that the copy must be honest and accurate.

The Courts have also set down some guidance on the issue of unenforceabilty and who shares the burden of raising such arguments relating to unenforceabilty. In HFO Services vs Kirit Patel HHJ Platts made it clear where a debtor wishes to raise an allegation of unenforceability, he cannot just say “its unenforceable guvnor” he needs to say why. For example, its unenforceable because the amount of credit is misstated and therefore a prescribed term is missing and therefore the agreement does not comply with s61(1)(a) Consumer Credit Act 1974.
So what if you don’t have the original agreement? well the burden does rest on the debtor to make a positive assertion about the original agreement, as the law stands , unless the debtor is able to make a positive assertion that the agreement was unenforceable because….. or that there never was a signed agreement

3. I am not disputing the agreement and have always paid each month but I just want to know what I type of copy agreement I should have received. I was hoping that if they do not have a the original agreement then I might be able to offer they a low full and final settlement.

More on the subject from our PT: http://paulatwatsonssolicitors.wordp...dit-agreement/

...if a debtor has made a request under s77,78 or 79 Consumer Credit Act 1974 (as amended) and the agreement was live at the time of the request, then the lender has an obligation to send a true copy of the agreement ( but not a photocopy of the original) and this was recently addressed in Emma Carey v HSBC Bank Plc as to what is and what is not compliance with the aforesaid sections. The Court of Appeal also addressed s78(1) in a case called Kotecha v Phoenix Recoveries. Kotecha was about a credit card however, but nonetheless it gives guidance on what the creditor must provide when a valid request was made.

3. I am not disputing the agreement and have always paid each month but I just want to know what I type of copy agreement I should have received. I was hoping that if they do not have a the original agreement then I might be able to offer they a low full and final settlement.

You can still try that route, just make sure you follow the appropriate steps to avoid nasty surprises like being chased for the balance or the balance being sold on to someone else who'll chase you. This is a good thread: http://www.legalbeagles.info/forums/...ls-Settlements

[FlamingParrot]

Re: can some one help please

3. A CCA request under s77/78 is often too blunt a tool to see if they actually have original copies, due to reconstitution being permitted. Others may be able to suggest an alternative tack.

CPUTR? I'm aware this is a bit controversial because technically they don't have a duty to reply, etc. :colbert:

[Wombats]

Re: can some one help please

CPUTR? I'm aware this is a bit controversial because technically they don't have a duty to reply, etc. :colbert:

CPUTR is used really only to keep people out of court. It would appear the company is able to satisfy a CCA request, so there's no real reason to doubt they'd be able to defend in court with or without the original agreement. A CPUTR letter would not harm, but equally personally I can't really see the point in this case.

Only my opinion, and not particularly strongly held TBH.
. If you thought it was heading towards a court case I would say send the letter.