CCA Request - is it enough what they've sent?

[Jedguard]

Hi All,

My 1st post on Legal Beagles so be gentle!

Long boring story but basically im trying ( as everyone) to stop the dreaded debt agencies.

I sent two CCA requests to Apex and Lowell and they have replied with an agreement (one from 1999 and other from 2004) which are signed, and then Lowell sent what could have been printed off EXELL as some kind of statement and thats it?

Is this enough as they are both now saying they have fulfilled their request and will start legal proceedings?

Whta is classed legally as enough "evidence" and that I have to finally say ok then here's a payment?

Any advice would be great - Thanks

[Amethyst]

Re: CCA Request - is it enough what they've sent?

Hiya, Whats the situation with the debts, How long have lowells had it ?Any sensible negotiation back off them with regards repayment plans ? (daft question really)

The list sounds like a transaction list which is perfectly acceptable.

Cap One looks like an application form and cant see an interest rate on it but you need the CCA peeps to take a look.

Welcome to the site

Ame
xx

[mystery1]

Re: CCA Request - is it enough what they've sent?

What they have sent does not comply with the Carey judgement.

SUMMARY OF FINDINGS

The following is a brief summary of the principal findings and conclusions set out above:
(1) A creditor can satisfy its duty under s78 by providing a reconstituted version of the executed agreement which may be from sources other than the actual signed agreement itself;
(2) The s78 copy must contain the name and address of the debtor as it was at the time of the execution of the agreement. But the creditor can provide the name and address from whatever source it has of those details. It does not have to take them from the executed agreement itself;
(3) The creditor need not, in complying with s78, provide a document which would comply (if signed) with the requirements of the Consumer Credit (Agreements) Regulations 1983 as to form, as at the date the agreement was made;
(4) If an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms;
(5) If a creditor is in breach of section 78 this does not of itself give rise to an unfair relationship within the meaning of section 140A;
(6) The Court has jurisdiction to declare whether in a particular case, there has been a breach of s78. Whether it will be appropriate to grant such a declaration depends on the circumstances of that case;
(7) In assessing whether Prescribed Terms are "contained" in an executed agreement the principles set out at paragraph 173 above are relevant. On the assumed facts set out at paragraph 177 the Prescribed Terms were so contained;
(8) The claims that there was an unfair relationship and an IEA in Adris should be struck out or dismissed. The claim that there was an IEA in Yunis should be struck out or dismissed. The absence of any positive pleaded case or evidence as to the circumstances of the making of the agreement by the debtor concerned was fatal to the IEA claims. The absence of any positive plea or evidence as to particular facts relied upon in support of the unfair relationship claim other than failure to provide a s78 copy, was fatal to that claim.

However these issues are fixable per McGuffick

In this case, the bank initially could not locate a copy of the agreement and on 8 April 2009, the bank wrote to MJP informing them of this and stated that, in the circumstances, if the claimant decided not to meet his obligations under the agreement, the bank would not be able to enforce repayment of the loan. The letter added that the bank considered that the claimant should continue to meet his obligations under the agreement, bearing in mind that it was not void but remained valid and that any continuing default would be reported to the Credit Reference Agencies (to which I will refer as “CRAs”). In cases where the bank has confirmed that it is unable to enforce the agreement, its standard practice is not to pursue legal action against the customer and to put a stop to all collection activity, so as not to give the false impression that it is entitled to obtain a judgment. That practice has been followed in this case.
13.
Correspondence ensued in which MJP threatened proceedings for a declaration of unenforceability by the court if a copy of the agreement were not produced within 28 days and for an injunction if the claimant’s credit rating were affected. By 11 May 2009, the bank had located a copy of the agreement and wrote to MJP enclosing it and stating that recovery action would now continue. Through inadvertence, the bank overlooked that it had not provided a signed statement of account as required by section 77(1).
14.
Although collection activity had recommenced, on 13 May 2009 the bank ascertained that the claimant had issued these proceedings and accordingly, collection activity ceased again. That has remained the position since, apart from one letter dated 15 May 2009 sent by Capquest by mistake. Although the bank could easily provide a signed statement of account so as to render the agreement enforceable once again under section 77(4), because the default would have been rectified, it has not done so, quite properly (as the claimant accepts) so as to ensure that there remains a lis between the parties enabling the court to determine the issues which have arisen.





Should you wish to try unenforceability then you will need to try a subject access request to get all info they hold on you and get an actual copy to check if they have a good copy or not. The other way is to let them take you to court and request it as they need to prove the debt but this is very risky and could cost plenty if they manage to perform.

M1

[MIKE770]

Re: CCA Request - is it enough what they've sent?

application form usual fold one by the looks of it.