Help required after CCA request

cashino

Hi guys, a newbie here so please be gentle. I'm helping my daughter with her catalogue debts Things are going reasonably well after some great info. from this site.
Could do with some help with FashionWorld tho...let me explain.
We sent a CCA request in and as per usual got a generic unsigned CCA back. This post is a little long .....sorry in advance... I just wanted to give you all the possible info.
We sent a default notice in as per below.....

Reliable Collections Ltd.
PO Box No.268
Manchester
M99 2BD

Dear Sir/Madam
Ref: XXXXXXXXXXXXXXXXXXX
Customer Ref: XXXXXXXXXX
Re: my request under s77/78 of the Consumer Credit Act 1974.

My request for a copy of my properly executed Consumer Credit Agreement remains outstanding.

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 24/02/09. Upon receipt of the original request the specified account legally entered into a disputed status.
You are reminded that you are obliged to supply these documents, whether you are the original creditor or not, as defined under Section 189 of the CCA 1974.

My request remains outstanding since what you have sent and have confirmed as ‘a true copy of the original agreement’ does not conform to sections 60(1) and 61((1) of the Consumer Credit Act and is therefore unenforceable under section 127(3) of the same act.

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 08/03/09 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 nor reassign this account to other parties. 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 proper CCA request. 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 08/03/09 and subsequently will commit a criminal offence on 07/04/09 if you do not comply with my legitimate request.

Therefore you should contact me in writing with your intentions to resolve this matter which is now a formal complaint, otherwise your conduct will, in due course, 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.

Take further note that continued telephone calls after the receipt of a request not to call may constitute a criminal offence under Section 127 of the Communications Act 2003.

Communicate in writing and ONLY in writing, your telephone calls will NOT be answered.

To sum up, I will not be making any further payments to you until you provide me with the document I have requested. Should you not have any signed credit agreement in relation to this alleged debt, please confirm this in writing to me.

I would appreciate your due diligence in this matter.

I look forward to your reply.
______________________________________________________
WE GOT THIS LETTER BACK, which I have not seen the like of on this site, hence the help required.
____________________________________________________________
Dear XXXXXXXXXXXXX

RE: Account XXXXXXXX

I am in receipt of your letter dated 8th March 2009.

We have complied with our obligations to supply you with a “True Copy” of your credit agreement. A “True Copy” is defined by Regulation 3 of the Consumer Credit (Cancellation Notice and Copies of Documents) Regulations 1983. The “True Copy” need not, by law, contain either the signature of the debtor or the date of the signature in our case. No default therefore arises. In addition, it should be noted that any failure to comply with the duties set out under section 78 of the Consumer Credit Act 1974 would not constitute a criminal offence in any event following the repeal of section 78(6)(b). Therefore, your claims in this regard are without any legal basis.

Having been provided with this “True Copy” there is no basis for you to either allege that you are exonerated from payment under the agreement or that we remain in breach of our obligations under the Act. The name and address details were inserted by our sales team as required by the regulations.
So that I can be absolutely clear, is it your case that you :-

a) deny receipt of the agreement
b) deny signing the agreement
c) admit or deny receipt of the goods and service
d) admit or deny performing your account as if you had signed the credit agreement.

So that we can consider your claim further please answer ALL of the above questions.

In your letter you appear to be making a connection between existence of a credit agreement regulated by the Consumer Credit Act 1974 and the requirement for this company to obtain consent to process its customers data under the Data Protection Act 1998. There is no such connection and your allegation that no signed credit agreement exists, which is denied, is irrelevant in establishing whether consent to process data exists under the Data Protection Act 1998 as we obtain our consent process independently and separately from any decision to offer credit.

I believe you are confusing us with other financial organisations, banks for example, who obtain consent to process data when loan/credit agreements are executed. We obtain our consent to process personal data at the time a customer applies for one of our catalogues or opens an account. There is no Data Protection rubric concerning processing of your data in our Consumer Credit Agreement. The application you completed at the time you requested one of our catalogues or opened your account would have contained a very comprehensive notification of the obvious and non-obvious uses to which we would put your personal data. This notice, inter-alia, will have notified you that, as part of our commitment to the responsible lending, we would record details of the manner which you conducted your account with a Licensed Credit Reference Agency.
You DID consent to the uses of personal data to which your data has been put. The lack of a Consumer Credit Agreement, or your signature thereon, is not relevant to the issue of whether you have consented to the use of, or whether we have fairly obtained and lawfully processed, your personal data.

Please confirm your intention with regard to future payments to this account.

Yours sincerely
XXXXXXXXXX

Solicitor
For and on behalf of
Fashion World Ltd.
_____________________________________________________________
So, what do you make of that letter, are any points valid/invalid, what should the response be?
Any help would be greatly appreciated.
Regards all

GeorgeUK

Just lost my post

Will try to remember what i had put.

The first part about the signature not being required under a CCA s77/78 request is correct. As with most catalogue companies they have probably just taken the details from their system rather than looking at the original document. The OFT however state "the copy must be a copy. It need not be exact on immaterial points, but it cannot be a conjectured reconstruction".

One way to make sure that the agreement was signed and had all the required terms (if before 6th April 2007) is to make a subject access request (SAR - cost £10). This means that your request under the data protection act will force them to provide a copy of the original document, complete with signatures. This will let you know once and for all whether they have a preperly executed CCA and if it is enforcable or not. They would need to present a copy of the CCA at court if they decided to take it that far so this way you get to see what they have before this even becomes an issue.

I woudl not answer any of the questions they put on the letter. I'm not sure, but it sounds as though they are fishing for you to say something, possibly that you have received goods and have not paid for them. I'd just ignore that - you are under no obligation to answer.

Never come across that argument of the consent not being in the agreement before (and where i lost the post last time after i went hunting for some info).

Schedule 2 part 1 of the DPA states that "The data subject has given his consent to the processing". From what the catalogue company has said however it sounds as if there was assumed consent.

We obtain our consent to process personal data at the time a customer applies for one of our catalogues or opens an account.

How by applying for a catalogue are you giving your consent for them to process your information? You wouldn't be aware of this until after the fact when you received the catalogue and even then only if you read all the smallprint at the back of the catalogue.

I'm really not sure about the legal aspects of this but their argument sounds a little hollow to me. I would advise posting this on the consumeractiongroup forum where they really know their legislation. I would like to see the argument given for them to be able to share your details with a 3rd party just be requesting a catalogue and what point of law this is based on.

cashino

Thanks GeorgeUK....I got the impression they were fishing also and had no intention of answereing any of the questions. Looks like a SAR is the next step.
Thanks again for all your comments, will take them on board

louiser123

if it is any consolation i did exactly as you with the same company fashion world, and i got the exact same reply it looks like a standard letter they have compiled!!! however this was over 8 months ago and all i get now is a statement every month which says i must not pay as it is now with dca, however i know it isnt and have had no contact in any way from any dca, so it looks like they just hoping it will be paid. i know nothing was signed at all.

cashino

Thanks Louiser123,
I assumed it might be a standard letter,its just I hadn't come across it before.
Are you suggesting to sit tight and see what plays out ?

Cheers once again