Consumer credit agreements

Smasher · #1 22-01-2009, 08:53 PM

If you are being chased & harassed by a creditor or a debt collector, you need to be sure that they are acting legitimately. After all, if I sent you letters claiming you owe me money & threatened to send someone to your house to collect it, you wouldn't pay me would you?
Practices such as those in these BBC Panorama videos prompted the OFT to take action. See their press release here: http://www.oft.gov.uk/news/press/2002/pn_82-02

Send a CCA Request
You can send a request for your Consumer Credit Agreement. This must be a true copy of the original agreement between yourself and your original creditor (credit card, store card, catalogue or loan). It must contain both signatures and the prescribed terms on the same side of the same page. You can send a request along with the statutory fee of £1. They are then obliged to supply you with it within 12 working days.
If they do not supply a valid CCA within this time, the debt can be considered to be in dispute. Once in dispute, the creditor may not pursue you for repayment or take any other action (such as mark your credit file with defaults or late payment markers). If they pass the disputed debt onto a debt collector, they will be breaking OFT guidelines and the debt collector may be committing an offence if they continue to harass you for payment.

Also send an SAR
Many creditors or their agents are sending what they call 'reconstructed' agreements. These are not the original agreements, just a document that they have drawn up to show you what they think your credit agreement should look like. They will then claim that this satisfies their obligation in response to your CCA request. In they eyes of the regulators, that is debatable and it leaves you in a bit of limbo. This doesn't always mean they don't have the original, it just seems that they don't want you to know if they do or don't.
You should also send an SAR (Subject Access Request). This will have require them to send a copy of the orignal agreement. It will not put the account in dispute if they don't send it, but it does force them to either produce the original or confirm that does not exist.

How to tell if your agreement is enforceable?
The agreement you receive (if they have one to send you) must contain ALL of the following:

* It must be perfectly legible
* It must contain signatures of both the creditor & the debtor
* It must contain all prescribed terms including repayment schedule, interest rates e.t.c.
* It must clearly state "Consumer credit agreement regulated by the consumer credit act 1974 (Not "Application Form" as many people receive, which is useless)
* All the above must be contained on one side of one single document.
* All other documents refered to in the agreement

An online signature is legally binding as of 31st December 2004 due to the Consumer Credit Act 1974 (Electronic Communications) Order 2004.

Prior to that they would have had to send you an agreement in the post for you to sign & return.
Thats not to say that it is enforceable no matter what, it must still be properly executed as set out above.

Smasher · #2 22-01-2009, 09:02 PM

Standard CCA Request letter

Quote:

YOUR NAME
YOUR ADDRESS

COMPANY'S NAME
COMPANY'S ADDRESS

DATE

Account No: XXXXXXXX (your credit card/loan account/finance agreement number)

Dear Sir/Madam please send me a copy of the credit agreement for this account. You are required under sections 77-79 of the Consumer Credit Act 1974 to send me a true copy of the original agreement, together with any documents referred to in it within 12 working days.

I enclose the statutory fee of £1.

Yours sincerely

Your name

Notes:
Send this letter recorded delivery.
Do NOT sign it! - Just type your name on the letter.
Print & keep a copy for yourself.

Account in dispute letter - If you received no response

Quote:

YOUR NAME
YOUR ADDRESS

CREDITOR’S NAME
CREDITOR’S ADDRESS

TODAY’S DATE

ACCOUNT REFERENCE NUMBER

THIS ACCOUNT IS IN DISPUTE

Dear sir/madam

On [DATE], I wrote to you asking for a signed copy of the original executed credit agreement for the above account. The Act demands that I be supplied with a true copy of any properly executed credit agreement that exists in relation to the above account. I may ask for this on demand providing that thestatutory fee of £1.00 is paid. This fee accompanied my original letter which was sent recorded delivery and signed for as received by a member of your staff on [DATE]. Upon receipt of the original request the specified account legally entered into disputed status.

As you should already be aware, the above act requires you to provide the requested documentation within 12 working days. This deadline has now passed and my request remains outstanding.
You had until [DATE] to provide me with the true copy I requested. After that date you entered into default of my request. Whilst the account is in dispute, you are not permitted to ask for any payment, nor am I obliged to offer any payment to you.

As you should also be aware, under the Consumer Credit Act 1974, a judge cannot make any enforcement order unless the creditor can provide a true signed copy of the original credit agreement. This means that unless you can produce such an agreement, this alleged debt is not enforceable in law.

Furthermore, whilst the dispute remains, you are not entitled to charge any interest on the account, nor make any further charges to the account. Additionally, you are not entitled to register any information relating to this account with any credit reference agencies (or any third party).

To register information for your own records and with a credit reference agency, you must have written consent from the data subject to collate and share such information. This consent is given in the form of a signed credit agreement, so until you produce such an agreement, you may not do this.
The requirement for consent to share data is a clear requirement of the Data Protection Act 1998. Any such attempts to share my data without my consent will be met with a complaint to the Information Commissioners Office.

The time limits, which are laid down in the Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 are clear. You must supply an executed credit agreement within 12 working days of a request for the agreement. If you fail to comply with a legitimate request the account enters a default situation.

Therefore you have 7 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint, otherwise your conduct will be reported to the Office of Fair Trading, the Financial Ombudsman and Trading Standards. Any investigation undertaken by them may affect your ability to hold a consumer credit license in the future.

To sum up, I will not be making any further payments to you until you provide me with the document I have requested. If you do not have any signed credit agreement in relation to this alleged debt, please confirm this to me in writing. Failure to comply with this request may result in legal action in relation to any unlawful and potentially libelous reporting of my personal data to third parties.

I would appreciate your due diligence in this matter.

I look forward to your reply.

Yours faithfully

TYPE OR WRITE YOUR NAME DO NOT SIGN IT

Account in dispute letter - If you received a useless copy of T&Cs in response to your request

Quote:

YOUR NAME
YOUR ADDRESS

CREDITOR’S NAME
CREDITOR’S ADDRESS

TODAY’S DATE

ACCOUNT REFERENCE NUMBER

Dear sir/madam

Thank you for your recent letter sent to me dated [DATE] the contents of which are noted.
However, the document(s) supplied received by me do not fulfill your requirements under the Consumer Credit Act 1974.

The Act demands that I be supplied with a true copy of any properly executed credit agreement that exists in relation to the above account. I may ask for this on demand providing that a fee of £1.00 is paid. This fee was sent with my original letter, dated [DATE].Upon receipt of the original request the specified account legally entered into disputed status.

My request remains outstanding. An application form does not constitute a true copy of a credit agreement and that which you sent does not even contain all the prescribed terms and is not 'properly executed' in accordance with the Consumer Credit Act 1974.
Please see the enclose copy of an application form for my Customer Happiness training services. As I am sure you will agree, by sending you a copy of this application form, it would be ridiculous for me to claim that it constitutes an agreement between us for me to train your staff.

As you will know, under the Consumer Credit Act 1974, a judge is not permitted to make any enforcement order unless the creditor can provide a true signed copy of the original credit agreement. This means that unless you can produce such an agreement, this alleged debt is not enforceable in law.

You had until [DATE] to provide me with the true copy I requested. After that date you entered into default of my request. Whilst the account is in dispute, you are not permitted to ask for any payment, nor am I obliged to offer any payment to you.

Furthermore, whilst the dispute remains, you are not entitled to charge any interest on the account, nor make any further charges to the account. Additionally, you are not entitled to register any information on this account with any credit reference agencies (or any third party).

To register information with a credit reference agency, you must have written consent from the data subject to collate and share such information. This consent is given in the form of a signed credit agreement, so until you produce such an agreement, you may not do this.

The requirement for consent to share data is a clear requirement of the Data Protection Act 1998. Any such attempts to share my data without my consent will be met with a complaint to the Information Commissioners Office.

The time limits, which are laid down in the Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 are clear. You must supply an executed credit agreement within 12 working days of a request for the agreement. If you fail to comply with a legitimate request the account enters a default situation and if you fail to comply after a further 30 days you commit an offence. You entered into a default on [DATE] and subsequently committed an offence on [DATE]

Therefore you have 7 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint, otherwise your conduct will be reported to the Office of Fair Trading, the Financial Ombudsman and Trading Standards. Any investigation undertaken by them may affect your ability to hold a consumer credit license in the future.

To sum up, I will not be making any further payments to you until you provide me with the document I have requested. If you do not have any signed credit agreement in relation to this alleged debt, please confirm this to me in writing. Failure to comply with this request may result in legal action in relation to unlawful and potentially libelous reporting of my personal data to 3rd parties.

I would appreciate your due diligence in this matter.

I look forward to your reply.

Yours faithfully

TYPE OR WRITE YOUR NAME DO NOT SIGN IT

Quote:

Customer Happiness Training Courses
Brought to you by [YOUR NAME]
Don’t delay, return this form today!

Today’s Date: / /

This is an agreement between …………………………. Hereinafter referred to as ‘The Customer’ and …………………….. Hereinafter referred to as ‘The Trainer’.

Training will commence every Monday morning at 6am sharp. The Customer agrees to pay The Trainer £100.00 per session for each member of staff, hereinafter referred to as ‘a Trainee’ that attends. The customer agrees to send a minimum of 6 members of staff per course.

Customer Happiness Training courses are aimed at improving customer experiences when your customers come into contact with your staff. Here at the Customer Happiness Training centre, we pride ourselves on training your staff in being nice to customers and more importantly, being genuinely helpful in a way that benefits your customers.

Very often, company staff who work in the financial industry find themselves under pressure from their employers to pursue their customers for as much money as they can get out of them, whether that be selling them something they don’t want or need, or just chasing them for all those late payment and over limit charges.

Here at Customer Happiness Training, we appreciate that it can be difficult for your staff to persuade a customer on the telephone that it is more important to pay hundreds of pounds in charges to a financial corporation who they are already bailing out with their taxes in order to support multi million pound pensions for directors, rather than feed and clothe their children.
In these situations, your staff may find themselves facing often angry or upset customers from time to time and Customer Happiness Training can greatly improve your staff’s relationship with these customers. Our techniques will show them how to be truly helpful and keep such customers happy.

On some occasions, where a trainee has used our training methods to help their customers in a way that may not be in accordance with The Customer’s company policy. The Customer agrees that The Trainer bares no responsibility for any such conflicts, as it is unreasonable to expect The Trainer to be aware of all company policies whether stated or implied.

Training sessions last 30 minutes, with a 10 minute tea break at the end.

In the event of a Trainee arriving late, the training session will be delayed. Charging is structured in blocks of 5 minutes. The Customer agrees to pay £10.00 per Trainee for each 5 minutes the training course runs over time due to delays.

I Agree to the terms as set our above
Signed

……………………………………. Date: / /

refie999 · #3 24-01-2009, 11:52 PM

Where an agreement has PPI added to it this makes the agreement 'A multiple agreement.'

That is because part of the agreement is for restricted use i.e PPI
The other part is unrestricted use i.e Cash loan

Section 18 of the CCA 1974 states that different parts must be treated as separate agreements, so the terms for the PPI and the terms for the cash loan must be listed separately on the agreement for the agreement to be enforceable.

Your agreement should show:

loan amount £xxx
Charge for credit £xxx
APR XX
Total repayable £xxx
Initial repayment £xxx
with a further xx payments of £xx on the xx of each month

Payment Protection Insurance Loan

Amount of Premium £xx
Charge for credit

APR XXX
Total payable
Initial repayment £xxx
xx further repayments of £xx

Tafflaff · #4 11-02-2009, 03:35 PM

what If the agreement was filled out online , how does it work then?

Smasher · #5 11-02-2009, 03:58 PM

We might need a 2nd opinion on this, but as far as I am aware, an online signature is legally binding as of 31st December 2004 due to the Consumer Credit Act 1974 (Electronic Communications) Order 2004.

Prior to that they would have had to send you an agreement in the post for you to sign & return.
Thats not to say that it is enforceable no matter what, it must still be properly executed as set out above.

refie999 · #6 11-02-2009, 05:43 PM

Smasher you are right, the act states that inside the signature area which contains the box that you tick there must be text that warns you that by ticking the box you are effectively adding your signature. If you do not want to be bound by the CCA 1974 then don't tick the box. As you say the agreement still has to contain all the prescribed terms.

englishmade · #7 05-03-2009, 11:39 PM

Hello, I have received my CCA from BOS. The agreement is for a Preference Account. This was an current bank account with a overdraft facility.
I have been served a court claim to recover 8K. The agreement is two pages. The doc's do not refer to the 1974 act. The first page sets-out the account details with overdraft limit, % and APR. The next; customer declaration, protection of creditcare, signatures, mine and the bank's.
Page two;Account details only. The agreement started November 1998 with a £1,000 o/d

If the agreement is unenforceable under the act, what steps do I take before the court hearing. Can anybody help. ???

Thanks,

Smasher · #8 06-03-2009, 12:50 AM

Current accounts are quite a different kettle of fish when it comes to CCA agreements. The act does still apply, but the rules are very different. Failure to supply a valid agreement for a banking current account will not render the account unenforceable.

You should start a thread in the reclaim bank charges forum & give a little history for your situation (no personaly identifyable info) and post the particulars of claim the the bank has used so that we can see what you're dealing with.

You need to act fast to work on a defence & see what areas you can challenge their claim.

littleredhen · #9 07-03-2009, 11:02 PM

If the CCA needs to be from OC, does it apply to credit cards companies that are bought out i.e; Morgan Stanley>Goldfish>Barclaycard - BC should have original CCA, even though originally the card was M&S?

refie999 · #10 08-03-2009, 12:25 PM

Yes the rules apply to credit cards which have been bought out.

littleredhen · #11 08-03-2009, 08:36 PM

I feel me own thread coming on!!

JMC30 · #12 14-06-2009, 10:43 PM

Does this rule stand for loans as well as credit cards?? I have got my EGG loan agreement in front of me but obviously it only shows their company signatory. Everything seems to be in order apart from the fact that the agreement details e.g payment terms & APR etc are on the other side of the page to the signatures....if I request their copy of the CCA and it is signed by both parties would the fact that it is not on one page on one side of the paper make it unenforecable or not??!!!
Many thanks...

Smasher · #13 15-06-2009, 11:02 AM

It applies to all loans, credit cards, catalogues, finance e.t.c. It would need both signatures on the same page to be enforceable.

TheBurdLisa · #14 05-08-2009, 12:47 PM

Hi, quick question, I entered into an IVA a year ago. Most of the IVA was from these such credit cards, probably not enforeable. Now that I am in an IVA am I able to get out of it?

Lisa

refie999 · #15 05-08-2009, 05:42 PM

Hi Lisa, I'm not sure that you can just come out of an IVA but there is nothing to stop you sending a CCA request to all your card companies/ creditors. Lets get all the info first and see if these agreements are enforceable.