The CCA request and legalities

GeorgeUK

I have put this thread together so that people can see where various pieces of information have come from with regards CCA requests and why a debt may be deemed unenforcable.

Much of the information i have learned from other users (Fermi, Rog2, RAS, Weller, Crown) and would like to thank them for continuing to educate me in this area. Another source i use often and have legislation links to in this thread is the consumer action group forum.

Individual queries should still be in your own threads - this is just a general guide to CCA's and how i currently understand the legislation to be as of February 2009.

George
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There are 2 main parts to the Consumer Credit Act - the main Act, which was 1974 and the amendments in 2006.

For agreements before 6th April 2007

According to the Consumer Credit Act 1974, a credit agreement must be properly executed, contain the prescribed terms and be in the prescribed form.

To request a copy of the credit agreement, you do so under sections 77/78 in writing and enclose £1 in payment of the fee. Even if the fee is not cashed, the creditor is legally obliged to provide a copy of the Customer Credit Agreement (CCA) within 12 working days of receipt. 2 working days are usually added to this for postage and we advise letters be sent by recorded deliver for proof of receipt.

78.—(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of [£1], shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer...

It also states

78.—(6) If the creditor under an agreement fails to comply with subsection (1)—
(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.

On 26th May 2008, The Consumer Protection from Unfair Trading Regulations 2008 came into effect. Part 5 Schedule 2 states:

20. In section 78 (duty to give information to debtor under running-account credit agreement), in subsection (6), omit paragraph (b) and the “and” preceding it.

This means that although it is no longer an offence for the creditor to not supply the information within 30 days, the debt cannot be enforced by the creditor if they have not provided an executed agreement.

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.

So if you request a copy of the credit agreement and it is not ‘readily legible’, then it is not enforceable and must also have ‘all the terms of the agreement’. The signature is not required on a copy of the agreement but must be on any copy that is produced in court. I’m not clear on what the prescribed form is but I believe the document must be one page – that is to say your signature must be on the same piece of paper as the prescribed terms and not on a separate sheet. I’m not 100% on this though.

Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557)
3 General requirements as to form and content of copy documents
(2) There may be omitted from any such copy

(b) any signature box, signature or date of signature (other than, in the case of a copy of a cancellable executed agreement delivered to the debtor under section 63(1) of the Act, the date of the signature by the debtor of an agreement to which section 68(b) of the Act applies);

Under the Consumer Credit Act 1974

127.—( 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).

Section 127(3), it states that if the agreement is not signed or does not have all the prescribed terms then the court should not allow the debt to be enforced.

Due to amendments made in the Consumer Credit Act 2006, only agreements made before 6th April 2007 require the prescribed terms for the document to be enforceable.
The prescribed terms are outlined in Consumer Credit (Agreements) Regulations 1983
(Schedule 1 - page 12)

or in brief
http://forums.moneysavingexpert.com/showpost.html?p=6815188&postcount=3


For agreements from 6th April 2007 onwards

The rules have changed and it is very difficult for a credit agreement to be shown as being unenforceable. This is where my knowledge of CCA just about ends.

Consumer Credit Act 2006

15. Enforceability of regulated agreements
In section 127 of the 1974 Act (enforcement orders in cases of infringement) subsections (3) to (5) shall cease to have effect.

Expanded version

Section 15: Enforceability of regulated agreements
37. The 1974 Act provides that in certain circumstances where the requirements of the Act are not complied with in relation to regulated agreements or to security provided in relation to such agreements, the agreement or security is enforceable against the debtor or hirer only on an order of the court. Sections 127(1) and (2) of the 1974 Act give the court discretion whether to grant an enforcement order in those circumstances subject to subsections (3) and (4). Section 127(3) and (4) provides that
a court shall not make an enforcement order (i.e. a consumer credit or hire agreement will be automatically unenforceable) where:

• prescribed requirements in relation to the execution of regulated agreements
(set out in section 61(1)(a) of the 1974 Act) were not complied with or a document containing all the prescribed terms of the agreement was not signed by the debtor or hirer;

• the specific requirements imposed by sections 62, 63 and 64 of the 1974 Act in relation to cancellable agreements as regards supplying copies of the agreement before and after its execution and giving notice of the cancellation rights are not complied with. A cancellable agreement is an agreement which, by virtue of section 67 of the 1974 Act, may be cancelled by the debtor or hirer, essentially where oral representations about the agreement have been made to the debtor or hirer face-to-face before the agreement is made other than on the business premises of the creditor or owner or connected persons and where the agreement is not secured on land.

38. Section 15 repeals sections 127(3) to (5) of the 1974 Act (subsection (5) is consequential on subsection (3)), which means that a court will have the power to determine in its discretion whether agreements are enforceable in accordance with section 127(1) and (2) regardless of the breach in question.

source: CONSUMER CREDIT ACT 2006 - EXPLANATORY NOTES
It will be at the courts discretion whether to make a CCA enforceable or not even if prescribed terms are missing or the prescribed form has not been followed. There must still be signatures on the CCA which is presented in court however.


Extra Information
The OFT has said:

A ‘true copy’ of an agreement principally consists of the terms and conditions of the agreement and the statutory content of the agreement. The name, address and signature of the debtor do not have to be provided.
However, the copy must be a copy. It need not be exact on immaterial points, but it cannot be a conjectured reconstruction. If the trader has no original copy, the trader will have difficulty showing that he has complied with the regulation by supplying a ‘true copy’, since nobody would know what was in the original.

When the trader comes to enforce the debt in court, he needs to have a signed copy of the agreement in order to enforce. As the law stands currently he cannot otherwise.
In the absence of a copy of the original agreement someone's liability for a debt can only lead to further query. However in circumstances like this we would view it is as unfair practice under section 25(2) (d) of the Act and relevant to licence fitness if a trader failed to investigate and/or provide details as appropriate when a debt is queried or disputed.

(The name and address are still required on the agreement, but the signature is not.)

boredofbeingathome

Thanks for that George.

fermi

Copy document regulations also set out legibility requirements for any agreement supplied under the act.

Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI/1557).

2 Legibility of notices and copy documents and wording of prescribed Forms

(1) The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the [background medium upon which the information is displayed].

More relevant for a S77/78 request, as it covers later copies.

MeeBroke

Excellent!! I've been waiting for this thread to come along, thanks! Now, what about Credit Cards that you apply for online but are never sent any forms to sign?

Merlinexcalibur

Will have to read later, but oddly I am about to send my nth CCA request off to a creditor/DCA. Then we'll see exactly where they stand making the threats they are in their letters. Just printed off the standard letter.

Credit cards ... it depends which year you applied as to whether the electronic signature is enforceable. For example, ones from the year 2000 ... pre-law change. But ones probably within the last 3/4 (end of 2004 I thinik it started, or least I remember 2 of my cards asking me to reapply, now know why of course!) I should imagine so. I may be wrong, and it's a while since I read that elsewhere. But you can still request one regardless.

fermi

As far as I remember a verified electronic signature was made in general admissible in evidence by s7 of the Electronics Communications Act 2000.

The CCA74 (s61) was then amended by the The Consumer Credit Act 1974 (Electronic Communications) Order 2004 so that this could apply to CCAs from 31/12/2004.

It is not exactly the most transparent bit of legislation ever made, which I think is why it causes a lot of confusion.:rolleyes:

rog2

fermi wrote: »

It is not exactly the most transparent bit of legislation ever made, which I think is why it causes a lot of confusion.

Very true, fermi - and why it is very difficult to 'generalise' the whole subject of Consumer Credit Requests.