CCA incorrect address

[Diana M]

Re: CCA incorrect address

I have advised both Cabot and Lloyd's that I considered the "CCA" non-compliant due to the incorrect address - I wanted to negotiate a settlement and by advising my reason, I was hoping doubt over enforceability would assist my negotiating position. I have not given Cabot nor Lloyd's the correct address ( which is why I queried whether showing this on the SAR request could affect my case).

I am, of course, anxious to avoid legal proceedings and, as well as making the "CCA" request in my letter to Cabot, I will also repeat the settlement offer made to Robinson Way and thus give Cabot the chance to avoid having to provide the documentation by accepting my offer.

I'm following your logic and reasoning. But Cabot may have other ideas.

Debt purchasers often issue legal proceedings if they know that at least some paperwork has been received in response to a s.77-79 CCA Request in the hope that the court may not agree with your view that the document doesn't comply.

They also tend to scurry around looking for information to be able to reconstitute a better version. Now that you've told them why it doesn't comply (the address) they know what to do to remedy that. However that doesn't mean they'll find the correct address. Only time will tell.

If you had been sent nothing by Lloyds (and subsequently Cabot) you would be in a stronger position.

Send the CCA Request to Cabot.

Do not include your settlement offer in the same letter. Make that in a separate letter headed "Without Prejudice Save As To Costs".

Anything you get back from your SAR request is between you and Lloyds only. Once you've got that you'll know if Lloyds have retained the correct address in their files. If they haven't then Cabot won't be able to get it from them either will they

You'll also see if a DN was served correctly (if at all).

Like I said earlier, there's more to winning a claim than just the CCA document.

Di

[striker]

Re: CCA incorrect address

Thanks Di, yet again for your advice and information which I will now act upon.

[striker]

Re: CCA incorrect address

I can now update this matter - with apologies for the length of this, but I thought it important to repeat exactly what I have been advised as I would welcome your comments and any further advice you can provide.


Following my SAR request I received a wad of paperwork from TSB from which it is clear that they do not have my address in 1988, their papers only going back to January 2000. They also confirmed that "unfortunately we have not been able to obtain a copy of your signed credit card agreement due to the age and time that has passed. We can confirm that before we opened your credit card agreement we would have required sight of a signed agreement".


I have also heard from Robinson Way following my CCA request to Cabot/Marlin. Cabot have not sent me any CCA documentation, but merely sent to Robway another copy of their email sent back in November to pass onto me, advising that they (Cabot) "have previously responded to my query and that Robinson Way is to resume collection ". Robway have requested a financial statement/affordable offer of repayment within 30 days. Cabot's email reads:
_____________________________________________


"Please be advised the definition of a true copy as prescribed in Regulation 3 of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 ("the Regulations") states what information can be omitted therein .Furthermore, case law shows that a "true copy" does not mean an exact copy.


With regard to your comments that Lloyds have failed to supply a copy of the original signed agreement, please be advised that due to age its likely they do not hold a copy of the same on file.The reconstituted copy that was provided complies with the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations1983 and therefore complies with the obligations set out in section 77-78 of the Consumer Credit Act 1974. As a result this account is not unenforceable.


Furthermore it has been well established in English Law, that "enforcement" constitutes obtaining judgement at Court. The reporting of a default entry to the Credit Reference Agencies of Cabot requesting repayment of your account does not amount to enforcement.
Furthermore, only a Court can determine a credit agreement to be unenforceable."
__________________________________________________ __


Cabot and Robinson Way seem to have ignored the settlement offer I made (25%) shortly after my CCA request and have merely repeated what had been previously advised.


I would welcome your advices on the validity of the comments made by Cabot (which seem to have been rehashed from TSB's previous advices) and whether these "1983 Regulations" have any bearing on the compliance of the CCA in this case. Am I correct in believing that case law has always required the name/address at time of execution to be shown and also, (per FCA CONC13 Consumer Act guidance notes) a firm should not mislead a customer as to the enforceability of the agreement. I don't know how I could use this other than to remind Robway/Cabot of this, since only a Court can decide on enforceability. Are you aware of any other Court cases involving an incorrect address on the CCA documents? Should I point out to Robway/Cabot that I have proof of TSB's records only going back to 2000 and as such the accuracy of the reconstituted documentation could be questionable?


Whilst I will probably make an increased offer (I have negotiated other settlements at around the 35/40% level, even without having requested a CCA), should I also inform them that, if such offer is not accepted, I will not make any further payment without a compliant CCA, and that whatever collection activity comes my way, it would be ignored/resisted/defended. Could a subsequent "bombardment" of letters/phone calls (although I have requested contact by letter/email only) be deemed as harassment?


Any advice you can give me regarding the validity of their argument and how best to proceed to help persuade them to accept a settlement offer would be greatly appreciated. Thanks.

[charitynjw]

Re: CCA incorrect address

Hi striker

(My take on this......but I would welcome other views)

To some extent, the problem you have is not that there is a court claim.
In a way, it is the opposite......there isn't one. Yet!
This means that Cabot/RW have all the time in the world to engage in dialogue with you in order to iron out all the wrinkles/deficiencies in their argument, possibly even getting you to tell them where they are going wrong.
Proceed with caution when dealing with them.

_____________________________________________

"Please be advised the definition of a true copy as prescribed in Regulation 3 of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 ("the Regulations") states what information can be omitted therein .Furthermore, case law shows that a "true copy" does not mean an exact copy.


With regard to your comments that Lloyds have failed to supply a copy of the original signed agreement, please be advised that due to age its likely they do not hold a copy of the same on file.The reconstituted copy that was provided complies with the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations1983 and therefore complies with the obligations set out in section 77-78 of the Consumer Credit Act 1974. As a result this account is not unenforceable.
From Carey v HSBC
http://www.bailii.org/ew/cases/EWHC/QB/2009/3417.html

1. Proper execution of the agreement
2. In particular while the parties may succeed in making an executed agreement (see above), if it fails to conform to requirements made by regulations as to form and content it will be an improperly executed agreement ("IEA").
3. Specifically, s61 (1) provides as follows:
   s61 (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."
4. Section 189 (1) defines "prescribed" as "prescribed by regulations made by the Secretary of State". The relevant power here is contained in s60:
   s60 (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...."
   The Consumer Credit (Agreements) Regulations 1983 ("the Agreements Regulations")
5. These were made by the Secretary of State pursuant to s60.
6. By Regulation 2 (1) and Schedule 1, the credit card agreements with which I am concerned had to contain certain information. This included the following:
   (1) By paragraph 2 of Schedule 1, "The name, postal address and, where appropriate, any other address of the debtor". Prior to 31 December 2004 Schedule 1 paragraph 2 of the Agreements Regulations required that 'All Types' of regulated agreement provide "The name and a postal address of the debtor". The present reference to "other address" is intended to cover electronic addresses such as e-mail addresses;

*The numbering of the above paragraphs is wrong; the actual numbers in the Carey case are paras 9-13. (not 1-6)
Refer to the case via the link.
Also see The Consumer Credit (Agreements) Regulations 1983 - http://www.legislation.gov.uk/uksi/1...chedule/1/made


Furthermore it has been well established in English Law, that "enforcement" constitutes obtaining judgement at Court. The reporting of a default entry to the Credit Reference Agencies of Cabot requesting repayment of your account does not amount to enforcement.
Furthermore, only a Court can determine a credit agreement to be unenforceable."
For pre-April 2007 agreements
The original CCA 1974 (as enacted)
s127.3
http://www.legislation.gov.uk/ukpga/...on/127/enacted

(3)

The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

In layman's words, pre April 2007, if the agreement does not comply with 61(1)(a), the court cannot enforce the agreement.

__________________________________________________ __

[Diana M]

Re: CCA incorrect address

No one can answer your question of whether the reconstituted credit agreement complies with your s. 77-79 Request without having sight of it.

You can hypothesize about the validity of the agreement until the cows come home, but you won't get a definitive answer without posting a redacted copy of the whole document which they've provided for someone on the forum to make comments and/or give you their opinion albeit on an incomplete (redacted) copy.

If you're saying that Lloyds has no data held on file from before 2000 and the account was opened in 1988 then that begs the question what 'honest and accurate' information was used to create the recon.

It's up to you what you want to do next. You appear to have reached a High Noon moment.

It's stalemate because you say it's unenforceable and they say it isn't. You can't force them to accept your view no matter how many letters you keep sending. The only way to find out whether it's unenforceable for certain is to ask a DJ.

Why do you want to pay them?

Di

[striker]

Re: CCA incorrect address

Thanks for responses - will be studying the various sites you (charitynjw) have directed me to.


You will be aware, Di, that my aim was to try to agree a settlement so that, basically I am finally shot of this matter. By casting doubt on the validity of the agreement, I was hoping to avoid any legal action, although I appreciate only a DJ (presumably District Judge as opposed to Disc Jockey!) can rule on enforceability. Thus why I was asking for advice such as whether there were any inaccuracies in any of the statements put forward by Robway/Cabot/TSB or whether there was anything else which I could use to support my case, in the hope that the other side may be convinced of the futility of any legal action and agree to my settlement proposals.


Whilst part of me would like to get a legal ruling, I am going to make another offer, helped by third party funding, and wonder whether I should make any reference to the Lloyd's data by questioning the "honest and accurate" information aspect? I will be stressing again that, even if the agreement was ruled enforceable, any monthly repayments ordered would have to be be affordable and as such, it would take many years for these to equate to the offer amount.


I think my High Noon moment will come should I not be able to obtain an agreement.

[Diana M]

Re: CCA incorrect address

As long as you go on making offers they are unlikely to agree with your stance that the debt is unenforceable. They now know you have access to funds (albeit not enough) so they may feel a CCJ is worth chasing.

If you keep telling them there are inaccuracies with the recon they will keep asking you what those inaccuracies are.

anything else which I could use to support my case, in the hope that the other side may be convinced of the futility of any legal action and agree to my settlement proposals.

My personal response to that has to 'pigs will fly' but give it a go if that's what you want to do. You never know

Di