Tweet
Hello I need help and advise with this one. It is a friend of mine who is having great trouble from the natwest.
Can you please read her letter that she sent to them and then their response
Any advise would be greatly appreciated as I have sent them one not unsimilair and I am waiting for their response, so I want to be ready,
Her letter she sent
Re Account no: 00000000000
With reference to your letter dated 22nd June; I would like to clarify one or two facts.
My original request letter for a copy of an original CCA under s77/78 of the Act was sent to you
on 14th May 2007 and signed for on the 15th May 2007 according to the Royal Mail recorded delivery tracking facility. That request was acknowledged by virtue of the fact that that my cheque was returned stating that it was not needed; thereby denying my legal right to a copy of the original CCA. The cheque was represented to you on the 23rd May 2007 and was signed for on the 24th May 2007; again by Royal Mail recorded delivery tracking facility. The fact that the letter did not arrive or was not dealt with by your office until the 15th June is neither here nor there; your company was already in default as the 12 working days limit had elapsed on Monday the 11th June. That cheque (no 001837) has now been entered onto my account.
Under the CCA s77/78 you were obliged to send me a true copy of the actual credit agreement in a clear and readable condition. I received an illegible copy of an application form, which does not contain all of the Prescribed Terms as specified in s. 60
This does not conform to the Agreement Regulations s.60 on several counts, and is therefore improperly executed as per s.61; this alone renders the agreement unenforceable without the order of a court, s.65.
S.60 Form and content of agreements
(1) The Secretary of State shall make regulations as to the form and content of documents embodying regulated agreements, and the regulations shall contain such provisions as appear to him appropriate with a view to ensuring that the debtor or hirer is made aware of—
(a) the rights and duties conferred or imposed on him by the agreement,
(b) the amount and rate of the total charge for credit (in the case of a consumer credit agreement),
(c) the protection and remedies available to him under this Act, and
(d) any other matters which, in the opinion of the Secretary of State, it is desirable for him to know about in connection with the agreement.
(2) Regulations under subsection (1) may in particular—
(a) require specified information to be included in the prescribed manner in documents, and other specified material to be excluded;
(b) contain requirements to ensure that specified information is clearly brought to the attention of the debtor or hirer, and that one part of a document is not given insufficient or excessive prominence compared with another.
And not properly executed as specified in s.61
CCA 1974 s(61) (1)
A regulated agreement is not properly executed unless—
(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and
(b) the document embodies all the terms of the agreement, other than implied terms, and
(c) the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible.
S.65 Consequences of improper execution
(1) An improperly-executed regulated agreement is enforceable against the debtor or hirer on an order of the court only.
I find it difficult to understand why you do not forward a true copy of the original signed agreement, and can only conclude that it does not exist. The almost illegible form you sent me, states at the top that is an application form, and it does not include all the required Prescribed Terms.
There are also discrepancies to this matter under s.85 of the CCA 1974, which I have quoted below.
My credit-token was renewed in September 2005, but a true copy of the properly executed agreement was not supplied to me then.
S. 85 Duty on issue of new credit-tokens
(1) Whenever, in connection with a credit-token agreement, a credit-token (other than the first) is given by the creditor to the debtor, the creditor shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it.
(2) If the creditor fails to comply with this section—
(a) he is not entitled, while the default continues, to enforce the agreement;
and
(b) if the default continues for one month he commits an offence.
The credit agreement is therefore improperly executed, and as a consequence is irredeemably un-enforceable: (Wilson v First County Trust CA). Can you please confirm that the ‘credit agreement’/application you recently sent to me is the documentation you are relying on in this disagreement.
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 correctly executed credit agreement is a very clear legal 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 regulated agreement, as seems likely in this case, then you cannot issue a default as I have not breached any valid, regulated agreement, and therefore I require that you remove the default notice issued against this account (received on 4th May 2007), immediately.
Please accept this letter that in the event of any adverse reporting while this account is in clear legal dispute, I will issue a claim at court to get any adverse credit history that has been added by your company removed. I will also ask the court to order production 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 1974, was signed by me in respect of this alleged debt.
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 and third parties.
This S.10 Notice is given on the grounds that the processing or continued processing by you of the said data will be likely to affect my credit rating and my reputation and cause substantial damage and/or substantial distress to me and my family members in addition to that which may already have been caused; and that as the processing of the said data in the way referred to in this notice would violate the fourth, first and sixth principles of The Data Protection Act 1998, to do so would be unwarranted.
I will also ask the court to order production 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 me in respect of this alleged debt.
Should you refuse to comply, you must within 14 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.
Should you fail to respond within 14 days, I will expect this to mean that your company agree to remove all such data. I look forward to your final decision on this complaint within 14 days. This should include your proposed actions in relation to the lack of a regulated credit agreement.
their response:
re account no: 00000000000000000
Thank you for your letter dated 7th july 2007
Regarding your recent letter concerning the Banks alleged breach of the CCA Act, I would advise you of the following.
Any request for a copy of an executed agreement under s78(1), states that the company must meet it's statuary requirements by providing a 'true copy' of the agreement relevant to the card product at the date the card agreement was made and providing that plus a copy of the current terms of the card product. These copies must be accompanied by the statement of financial information relevant to the account - the state of the account, amount currently due and due dates of future payments that will be required to be made.
The provision of the 'true copy' in this form is made in reliance of Regulations 3(2) and 7(1)(b) of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983. Particularly 3(2) which permits the copy agreement not to show signatures or personal details that may have appeared on the application part of the document. There is no statuary requirement under the Act for us to ever give a copy to a customer with a signature on it.
As we have supplied a copy of the application form that you signed, copy of the Terms and conditions of the card product, a most recent statement showing the outstanding balance and advised you who to contact to discuss amounts due and owing, and future payments that must be made. We have therefore met our obligations under s78(1) to provide a copy of that executed agreement and again we are satisfied that what was provided complied with the Regulations expressly made for what is a 'true copy'. We suggest that you take advice from your local Citizen's Advice Bureau If you continue to doubt the veracity of what we have told you about our having complied with our obligations under s78(1).
We consider that our processing of your personal date is fair, lawful and warranted in the circumstances. Details of these procedures were contained in the credit agreement/application form you would have signed in June 2000 when you applied for the card (after which the card was issued to you) and amended versions that accompanied subsequent Notice of Variations (which will have been sent to you when your card was in use and you didn't, at any time, signify your refusal to consent by repaying the debt and terminating the agreement), and have been notified to the Information Commissioners Office. We are satisfied that information of your account was properly notified to the Credit Reference Agencies and you would have recieved the appropriate Data Protection Act notifications on the reporting of defaults. If you disagree, you have the right to apply to the court to have innacurate perrsoanl data rectified, blocked, erased or destroyed. Further information is available from the Information Commissioners website: www Information Commissioners Office.gov.uk.
I would inform you that, given the processing of your personal data was consented by you (in the way described above), you cannot retrospectively withdraw your consent after the processing was carried out. We do not accept your notice under Section 10 of the Data Protection Act 1998 and do not intend to comply with it.
I must therefore inform you that we see no reason to enter into further correspondence with you about the alleged CCA and Data Protection Act breaches you lay at our door. If you are not satisfied with this final response, you may seek whatever legal redress you consider is open to you or you may refer your complaint to the Financial Ombudsman Service within six months of the date of this letter. I enclose a copy of the Financial Ombudsman's Leaflet. which explains the scope of the service and how a referral can be made.
Your indebtedness on this account remains due and payable and we will be pursuing for the full repayment.
I trust this clarifys matters for you.
Yours sincerely
Can you please read her letter that she sent to them and then their response
Any advise would be greatly appreciated as I have sent them one not unsimilair and I am waiting for their response, so I want to be ready,
Her letter she sent
Re Account no: 00000000000
With reference to your letter dated 22nd June; I would like to clarify one or two facts.
My original request letter for a copy of an original CCA under s77/78 of the Act was sent to you
on 14th May 2007 and signed for on the 15th May 2007 according to the Royal Mail recorded delivery tracking facility. That request was acknowledged by virtue of the fact that that my cheque was returned stating that it was not needed; thereby denying my legal right to a copy of the original CCA. The cheque was represented to you on the 23rd May 2007 and was signed for on the 24th May 2007; again by Royal Mail recorded delivery tracking facility. The fact that the letter did not arrive or was not dealt with by your office until the 15th June is neither here nor there; your company was already in default as the 12 working days limit had elapsed on Monday the 11th June. That cheque (no 001837) has now been entered onto my account.
Under the CCA s77/78 you were obliged to send me a true copy of the actual credit agreement in a clear and readable condition. I received an illegible copy of an application form, which does not contain all of the Prescribed Terms as specified in s. 60
This does not conform to the Agreement Regulations s.60 on several counts, and is therefore improperly executed as per s.61; this alone renders the agreement unenforceable without the order of a court, s.65.
S.60 Form and content of agreements
(1) The Secretary of State shall make regulations as to the form and content of documents embodying regulated agreements, and the regulations shall contain such provisions as appear to him appropriate with a view to ensuring that the debtor or hirer is made aware of—
(a) the rights and duties conferred or imposed on him by the agreement,
(b) the amount and rate of the total charge for credit (in the case of a consumer credit agreement),
(c) the protection and remedies available to him under this Act, and
(d) any other matters which, in the opinion of the Secretary of State, it is desirable for him to know about in connection with the agreement.
(2) Regulations under subsection (1) may in particular—
(a) require specified information to be included in the prescribed manner in documents, and other specified material to be excluded;
(b) contain requirements to ensure that specified information is clearly brought to the attention of the debtor or hirer, and that one part of a document is not given insufficient or excessive prominence compared with another.
And not properly executed as specified in s.61
CCA 1974 s(61) (1)
A regulated agreement is not properly executed unless—
(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and
(b) the document embodies all the terms of the agreement, other than implied terms, and
(c) the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible.
S.65 Consequences of improper execution
(1) An improperly-executed regulated agreement is enforceable against the debtor or hirer on an order of the court only.
I find it difficult to understand why you do not forward a true copy of the original signed agreement, and can only conclude that it does not exist. The almost illegible form you sent me, states at the top that is an application form, and it does not include all the required Prescribed Terms.
There are also discrepancies to this matter under s.85 of the CCA 1974, which I have quoted below.
My credit-token was renewed in September 2005, but a true copy of the properly executed agreement was not supplied to me then.
S. 85 Duty on issue of new credit-tokens
(1) Whenever, in connection with a credit-token agreement, a credit-token (other than the first) is given by the creditor to the debtor, the creditor shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it.
(2) If the creditor fails to comply with this section—
(a) he is not entitled, while the default continues, to enforce the agreement;
and
(b) if the default continues for one month he commits an offence.
The credit agreement is therefore improperly executed, and as a consequence is irredeemably un-enforceable: (Wilson v First County Trust CA). Can you please confirm that the ‘credit agreement’/application you recently sent to me is the documentation you are relying on in this disagreement.
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 correctly executed credit agreement is a very clear legal 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 regulated agreement, as seems likely in this case, then you cannot issue a default as I have not breached any valid, regulated agreement, and therefore I require that you remove the default notice issued against this account (received on 4th May 2007), immediately.
Please accept this letter that in the event of any adverse reporting while this account is in clear legal dispute, I will issue a claim at court to get any adverse credit history that has been added by your company removed. I will also ask the court to order production 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 1974, was signed by me in respect of this alleged debt.
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 and third parties.
This S.10 Notice is given on the grounds that the processing or continued processing by you of the said data will be likely to affect my credit rating and my reputation and cause substantial damage and/or substantial distress to me and my family members in addition to that which may already have been caused; and that as the processing of the said data in the way referred to in this notice would violate the fourth, first and sixth principles of The Data Protection Act 1998, to do so would be unwarranted.
I will also ask the court to order production 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 me in respect of this alleged debt.
Should you refuse to comply, you must within 14 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.
Should you fail to respond within 14 days, I will expect this to mean that your company agree to remove all such data. I look forward to your final decision on this complaint within 14 days. This should include your proposed actions in relation to the lack of a regulated credit agreement.
their response:
re account no: 00000000000000000
Thank you for your letter dated 7th july 2007
Regarding your recent letter concerning the Banks alleged breach of the CCA Act, I would advise you of the following.
Any request for a copy of an executed agreement under s78(1), states that the company must meet it's statuary requirements by providing a 'true copy' of the agreement relevant to the card product at the date the card agreement was made and providing that plus a copy of the current terms of the card product. These copies must be accompanied by the statement of financial information relevant to the account - the state of the account, amount currently due and due dates of future payments that will be required to be made.
The provision of the 'true copy' in this form is made in reliance of Regulations 3(2) and 7(1)(b) of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983. Particularly 3(2) which permits the copy agreement not to show signatures or personal details that may have appeared on the application part of the document. There is no statuary requirement under the Act for us to ever give a copy to a customer with a signature on it.
As we have supplied a copy of the application form that you signed, copy of the Terms and conditions of the card product, a most recent statement showing the outstanding balance and advised you who to contact to discuss amounts due and owing, and future payments that must be made. We have therefore met our obligations under s78(1) to provide a copy of that executed agreement and again we are satisfied that what was provided complied with the Regulations expressly made for what is a 'true copy'. We suggest that you take advice from your local Citizen's Advice Bureau If you continue to doubt the veracity of what we have told you about our having complied with our obligations under s78(1).
We consider that our processing of your personal date is fair, lawful and warranted in the circumstances. Details of these procedures were contained in the credit agreement/application form you would have signed in June 2000 when you applied for the card (after which the card was issued to you) and amended versions that accompanied subsequent Notice of Variations (which will have been sent to you when your card was in use and you didn't, at any time, signify your refusal to consent by repaying the debt and terminating the agreement), and have been notified to the Information Commissioners Office. We are satisfied that information of your account was properly notified to the Credit Reference Agencies and you would have recieved the appropriate Data Protection Act notifications on the reporting of defaults. If you disagree, you have the right to apply to the court to have innacurate perrsoanl data rectified, blocked, erased or destroyed. Further information is available from the Information Commissioners website: www Information Commissioners Office.gov.uk.
I would inform you that, given the processing of your personal data was consented by you (in the way described above), you cannot retrospectively withdraw your consent after the processing was carried out. We do not accept your notice under Section 10 of the Data Protection Act 1998 and do not intend to comply with it.
I must therefore inform you that we see no reason to enter into further correspondence with you about the alleged CCA and Data Protection Act breaches you lay at our door. If you are not satisfied with this final response, you may seek whatever legal redress you consider is open to you or you may refer your complaint to the Financial Ombudsman Service within six months of the date of this letter. I enclose a copy of the Financial Ombudsman's Leaflet. which explains the scope of the service and how a referral can be made.
Your indebtedness on this account remains due and payable and we will be pursuing for the full repayment.
I trust this clarifys matters for you.
Yours sincerely
Comment