CCA Requests - any point?

[PriorityOne]

Re: CCA Requests - any point?

Turning to the more important point of s127.

Now then, you all say "oh look they dont have a signed agreement" that should win the day right?

Well no it shouldnt, the Courts have said that a creditor can produce evidence as to matters which it wishes to rely upon, it doesnt need the original agreement,

------------------------------- merged -------------------------------


This is a binding authority which was considered as being correct by the High Court recently cant say any more than that as were still waiting for the final judgment as we only have the draft.

The Courts have said non compliance with s78 is not enough to stop paying, or stop attempting to pay something atleast.

Hi Paul... My understanding has always been that yes, a creditor can produce evidence of payment history and doesn't need an original Agreement under CCA 2006 but not under CCA 1974, by virtue of sec. 127 (3), which was removed from the latter Act (so to speak).... so under CCA 1974, the original would be needed.

Re. s 78, a creditor can comply by sending an application or reconstruction but similarly, without a properly signed Agreement under CCA 1974, an account remains legally unenforceable....

[pt2537]

Re: CCA Requests - any point?

Hi Paul... My understanding has always been that yes, a creditor can produce evidence of payment history and doesn't need an original Agreement under CCA 2006 but not under CCA 1974, by virtue of sec. 127 (3), which was removed from the latter Act (so to speak).... so under CCA 1974, the original would be needed.

Re. s 78, a creditor can comply by sending an application or reconstruction but similarly, without a properly signed Agreement under CCA 1974, an account remains legally unenforceable....

no wrong, im afraid,

We have the Courts view, i have QCs opinion as well, there must have been a signed agreement, that is true, but the court can be convinced on balance that there was a signed agreement and that the document and evidence of the Claimant is sufficient in the absence of any counter argument from the Defendant,

Its a play on words but i know that Waksman latched on to the fact that there needed to have been a signed agreement, but that the act didnt go as far as to say it must be brought to the court and if it isnt then no judgment was possible

Indeed Judge Langan in the mitchell v lloyds case ruled that the signed agreement wasnt needed provided there was some credible evidence as to the state of affairs surrounding the agreement

[PriorityOne]

Re: CCA Requests - any point?

no wrong, im afraid,

We have the Courts view, i have QCs opinion as well, there must have been a signed agreement, that is true, but the court can be convinced on balance that there was a signed agreement and that the document and evidence of the Claimant is sufficient in the absence of any counter argument from the Defendant,

Its a play on words but i know that Waksman latched on to the fact that there needed to have been a signed agreement, but that the act didnt go as far as to say it must be brought to the court and if it isnt then no judgment was possible

Indeed Judge Langan in the mitchell v lloyds case ruled that the signed agreement wasnt needed provided there was some credible evidence as to the state of affairs surrounding the agreement

So the Defence is key.. which we've always known.... and going to court as Claimant is unwise unless you know what you're doing. That's how I've interpreted this, although I'm also aware that going in as Defendant is not without risk either unless the Defence is watertight.

CCA 1974 says that a signed Agreement, incl. the "four corners" must be present... it seems that a lot of this is being "overwritten" lately in an attempt to protect the upper shelves of society, so to speak. Not good and psychological taxing.... yet all of mine to date have backed off in the face of the arguments presented to them. If what you're saying is true, I find that odd. I'm not questioning you; you work in that field and know what you're doing.... but I just find it odd anyway.

None of mine have presented me with an Agreement though.... only an application form at best.... so presumably, that's the reason.

[Angry Cat]

Re: CCA Requests - any point?

With reference to Carey:

If an agreement has been varied, a (reconstituted) copy of the original agreement must be provided along with a (reconstituted) copy of the amended agreement.

In laymans terms; if they do not hold a copy (the correct issue) of the terms & conditions that applied to the agreement at the point of opening, then their boat is sunk.

IMO, a creditor cannot reconstitute a credit agreement without the terms of which is was created/formed.
------------------------------- merged -------------------------------

So the Defence is key.. which we've always known.... and going to court as Claimant is unwise unless you know what you're doing. That's how I've interpreted this, although I'm also aware that going in as Defendant is not without risk either unless the Defence is watertight.

CCA 1974 says that a signed Agreement, incl. the "four corners" must be present... it seems that a lot of this is being "overwritten" lately in an attempt to protect the upper shelves of society, so to speak. Not good and psychological taxing.... yet all of mine to date have backed off in the face of the arguments presented to them. If what you're saying is true, I find that odd. I'm not questioning you; you work in that field and know what you're doing.... but I just find it odd anyway.

None of mine have presented me with an Agreement though.... only an application form at best.... so presumably, that's the reason.

Wait, for them to take you to court; defend or counterclaim.

And yes, it is psychologically taxing...

[The Debt Star]

Re: CCA Requests - any point?

I love CPUTR 2008.... !! Not a single one of mine has managed to carry on pursuing in the face of a letter requesting a definitive answer as to whether they do or do not hold a signed, properly executed Agreement under CCA 1974.... they've just b*ggered off...!!

:-)

P1, can you post up a precedent letter ref your CPUTR request?

[PriorityOne]

Re: CCA Requests - any point?

P1, can you post up a precedent letter ref your CPUTR request?

I've sent off several and they've differed slightly.... but the extract below was sent to a firm of solicitors recently, who've since written back to say they've not pursuing anymore (or words to that effect). This started as a CCA request to an in-house DCA following several years of token payments and I believe their sols. were also in-house. It's now gone to an external DCA but by equitable assignment. Note their attempts to confuse me by the plethora of clients...... and my attempt to sort it out... lol!

Here is the extract...

"In light of the complete absence of any enforceable documentation, I am concerned over xxxxxx'x persistent attempts to pursue payment on an unsubstantiated debt in defiance of OFT guidelines and the Consumer Protection from Unfair Trading Regulations (CPUTR) 2008 by now passing “instructions” and personal data to yourselves. According to your letter these are in fact instructions from instructions, from your client’s clients, leaving me to assume that neither your client nor your client’s clients have actually informed you of the facts surrounding the unsubstantiated debt that they have instructed you to pursue and it’s current legal unenforceability under The Consumer Credit Act 1974; sec 127 (3). I have also assumed that your clients have also failed to mention my recent request for confirmation under CPUTR (2008) on xx/xx/xx either; a request that remains outstanding to this day due to the reluctance of your clients to provide an answer one way or the other.

Under the circumstances, should you now decide to accept “instructions” from your client or your client’s clients in the continued absence of any enforceable documentation from anyone at all and/or fail to confirm upon request whether you, your client (xxxxxxxx) or your client’s clients (xxxxxxxxx) currently hold or have ever held a properly executed Consumer Credit Agreement (Consumer Credit Act, 1974) in your/their possession under the Consumer Protection from Unfair Trading Regulations (CPUTR) 2008, then you, your clients and your client’s clients will be falling foul of ss.5(2), 3(b), 6 and 7, their actions/activities will be added to existing complaints and your company will be reported to the Solicitors’ Regulatory Authority without any further notice.

It would appear that xxxxxxxxx have already breached CPUTR (2008) anyway by failing to confirm or deny their possession of such an Agreement when requested to do so on xx/xx/xx (by recorded delivery) and passing “instructions” to you regardless.

Please therefore take note that this letter serves as an additional formal request under the Consumer Protection from Unfair Trading Regulations (CPUTR, 2008) for written confirmation as to whether xxxxxxx (solicitors), xxxxxxxxxxx, and/or xxxxxxxxxx currently hold or have ever held a properly executed Consumer Credit Agreement in your/their possession pertaining to myself and if not, to kindly confirm so in writing".


I may have another letter which could be adapted more easily as a template if it might help anyone.... but I'd need to look it up over the weekend. Please note that the above is just an extract... the letter wasn't a long one but it began and ended with more info, added to it; applicable to my own case.

Just to add.... it's never been my intention to initiate court proceedings as Claimant, despite being baited by one creditor/DCA not so long ago; quoting Carey.... I (personally) find that foolish, but each to their own...

[firefly]

Re: CCA Requests - any point?

Hi P1
Have you in fact stopped paying?

[PriorityOne]

Re: CCA Requests - any point?

Hi P1
Have you in fact stopped paying?

Yes.... I stopped paying as soon as it was clear to me that there was no enforceable paperwork, having given them ample time to provide it.

The initial replies back huffed and puffed about Carey or, said that the Application was the Agreement, etc.... but no-one was willing to confirm or deny the existence of an Agreement under CPUTR 2008, in writing. :-)

The 2 accounts I'm dealing with presently are old accounts in that token payments have been maintained for some time. I got the odd periodic letter demanding that I get in touch to increase payments but these were ignored and payments continued nevertheless. It was my decision to CCA to bring things to a head (with these 2 accounts anyway).... I never denied the debt until an external DCA got in touch about it/them.... the most I've said to a creditor (in particular) is that payments will be suspended until such times as they are able to confirm/deny the existence of an Agreement and send me a copy of it.... so it's very psychological re. what you say to whom.

Re. other creditors/DCAs.... they've simply b*ggered off in the absence of proper docs.... and we're talking 3-4 years now with no contact at all.

As far as my story goes, the key seems to have been responding to each and every letter until/unless it becomes obvious that the replies back are generic or, until they state in writing that they're not going to talk to me anymore. That's happened more than once.... so if they're not willing to talk to me anymore, how am I meant to help resolve it? ;-)

The battle has been a long and hard one though.... my files are thick with correspondence and none of my letters have been templates. People still need to think about what they're sending in a template before posting it off and IMO, to deny a debt when I've been making token payments for several years would be ridiculous..... hence why I've always stressed that payments would remain suspended instead....

So far, I have never been taken to court.... although I'm always aware of the possibility.

Hope that helps.... :-)

[Caspar]

Re: CCA Requests - any point?

I read yesterday a rather neat (IMO) letter which combined a CCA request with a phrase along the lines of, "if you are sending a reconstituted version, please could you inform me whether or not you have the original agreement as needed under CPUTR 2002 or something like that.

I guess the problem is they don't have to tell you in a CCA request (or do they?)

It's awfully complicated now - why did they change the Act in 2006? It was much easier!

[PriorityOne]

Re: CCA Requests - any point?

I read yesterday a rather neat (IMO) letter which combined a CCA request with a phrase along the lines of, "if you are sending a reconstituted version, please could you inform me whether or not you have the original agreement as needed under CPUTR 2002 or something like that.

I guess the problem is they don't have to tell you in a CCA request (or do they?)

It's awfully complicated now - why did they change the Act in 2006? It was much easier!

[quote=firefly;193215]

Yes, I believe the CCA template has been amended to include that phrase, although I wasn't aware it mentioned CPUTR as well.

They don't have to tell you in a CCA request no.... and can send a reconstruction to satisfy it. Most of the time, Carey seems to get thrown into the arena at this point, which is when CPUTR has come in very handy.

IMO, the Act was changed to protect the financial industry and various other upper toffs who stood to lose a lot of money by having sec. 127 (3) left in there..... so they took it out. Very neat if you can get away with it.....

:-)

[The Debt Star]

Re: CCA Requests - any point?

P1 thanks for your posts which have been very informative and helpful to me.

[PriorityOne]

Re: CCA Requests - any point?

P1 thanks for your posts which have been very informative and helpful to me.

You're welcome... :-)

[firefly]

Re: CCA Requests - any point?

Likewise
Thanks P1.Really most helpful indeed.It has renewed my inner strength!

[Caspar]

Re: CCA Requests - any point?

This is the one I saw (unsure of source so thanks to whhoever wrote it):

Dear Sir/Madam

Re:- Account No: XXXXXXXX/Your Reference Number: XXXXXXX

This letter is a formal request pursuant to s.77/78 of the Consumer Credit Act 1974. I require you to provide me with a true copy of the credit agreement relating to the above account, together with any other documentation the Act requires you to provide.

I expect you to comply fully and properly with this request, within the statutory time limit. You are reminded that should you fail to comply with my request, the provisions of s.77 will apply.

If it is your view that you are not the creditor, s.175 of the CCA 1974 applies in the case of a simple assignment, and places a duty upon you to pass this request to the creditor. In the case of an absolute assignment, you are a creditor as defined by s.189. If you contend that you purchased the rights but not the duties of any agreement, you are reminded that s.189 of the Act is clear that an assignment is of both rights and duties.

Your attention is drawn to ss.5(2), 3(b),6 and 7 of the Consumer Protection From Unfair Trading Regulations 2008 (CPUTR). I enclose a postal order in the sum of £1.00, which is the statutory fee. Note that these funds are not to be used for any other purpose.

If you intend to send a reconstituted copy of the CCA you must declare the reason why it has been reconstituted and if the original exists and in what form (microfiche) etc.

If you are unable to comply fully and properly with this request, you should confirm this in writing at the earliest opportunity, and certainly within the statutory time limit for compliance, and return the fee.



I look forward to hearing from you.

Yours faithfully **Edit to suit**

(Print do not sign)

[Angry Cat]

Re: CCA Requests - any point?

CPUTR 2008 and not, 2002!