Cabot

samma_2

Thank you all for your invaluable advice, I really do appreciate it

The agreement they sent to me is a Priority Application for a Marbles Card

(It is only marginally better to read than the one I have posted above,(I have tried a zoom on my computer and it is so small a change that it is not worth posting on here)

It does not contain the correct information and there is no copy of the back page showing T&C's that are required for a true copy. (As this is a photocopy that has been sent to me, I would then expect to receive the page overleaf, but have not so they cannot use the arguement that the pertinent information is over the page as they have tried to do to other people).

They are looking for an answer from me and it looks like I will send in a letter such as fermi sent to rebel2.

GeorgeUK

What they have supplied is obviously not an enforcable CCA so they are still in breach of your request under s.77/78 of the Consumer Credit Act.

I'm not sure what letter you are referring to but it'll probably be along the same lines as the one i adapted from the consumeractiongroup forum. You could amend it to suit your circumstances.
http://forums.moneysavingexpert.com/showthread.html?t=1792035

samma_2

Thank you very much GeorgeUK, I will send your letter
Should I also include a letter re:
1. Telephone Harrasment
as they are threatening to do this if it pleases them to

and should I also send a letter re:
Account in Dispute
as they are also threatening to move my account on, I assume to their other dept

GeorgeUK

If the account is in dispute, they shouldn't be phoning you anyway - i'd wait until they actually do - does the letter say anything about section 10 of the DPA? This requires them to remove all of your details from their system as they can no longer process your data.

They already know that the account is in dispute. I wouldn't waste the postage. If they do pass the debt on, you can inform the new group that the debt was in dispute and should not have been passed on (breach of the OFT debt collection guidelines).

I'd just send a reworked version of that letter.

samma_2

Thank you GeorgeUK

I rec'd a letter (see post 34) re: data but they blinded me with technical terms, perhaps you could let me know what you think of it? My feeling is that it is "hogwash":D

GeorgeUK

Paragraphs:
1 - refer to previous letters. Fair enough
2 - They've requested documents, not got them and placed the account on hold - in other words they should not be actively pursuing the debt.
3 - They agree that the debt is unenforcable right now.
4 - And onwards is concerned with the Data Protection Act and the section 10 that you already sent them. Looks like you have already sent the 12+2 day letter or something similar to the one i linked to.

They say they have a legal duty to supply the CRA's with your non payment of the debt, you are arguing that there is no legal duty as the agreement is unenforcable and therefore not legally binding.

So basically the account is on hold and they are awaiting the documentation from the original creditor. Looks like you don't actually need to send anything else.

Have they been making any noises since you received the letter?

samma_2

Yes, thats the letter and agreement that came with it (post 46)

GeorgeUK

Sorry Samma - been trying to look at this on the fly while at work.

So, you requested a copy of the CCA
The didn't have it
You then sent the 12+2 day letter stating the account was in dispute.
They couldn't find the CCA and requested it from HFC, putting the account on hold.
They then supplied you with a copy of the application form (and said that this stated they were allowed to add interest?)

Right, i think i'm with you now.
You need to write a letter which states that an application form is not a credit agreement as a properly executed credit agreement should have all the required prescribed terms on it and be in the prescribed form. This application is not a true copy of the executed CCA and therefore the debt is still in dispute.

I'll try to find one after lunch - sorry about the confusion. Hadn't read enough of the thread to see where we were.

samma_2

Thank you GeorgeUK for your time, help and advice especially as you are in work

I really appreciate this as I am not very good at digging into the clauses etc and I worry about time limits etc

GeorgeUK

(With thanks to the consumeractiongroup forum)

Dear Sirs,

Account No: XXXXXXXX


You have failed to respond to my legal request to supply me a true copy of the original Consumer Credit Agreement for the above account

I note that you have replied to my CCA Request by sending a copy of the Application Form and not a True Copy of the alleged Consumer Credit Agreement, in line with my formal request. As such, I must inform you that this is not sufficient to comply with the request and that your company is still in default under the act.

To clarify, just sending the Application Form is a breach of the Act and Regulations, apart from the information that the Regulations provide that you may exclude, the copy must be a 'true copy' of the agreement. This breach of the agreement can be demonstrated as follows;

Section 180(1) (b) authorises, “the omission from a copy of certain material from the original, or the inclusion of certain material in condensed form.” This refers to statutory instruments made under the heading Copies of Document Regulations and in this care in particular to SI 1983/1557.

Before leaving section 180 there are two other sections that should be mentioned, which are;

Section 2(2) (a)
A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not satisfied unless the copy supplied is in the prescribed form and conforms to the prescribed requirements;

And more importantly

Section 2(b)
A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not infringed by the omission of any material, or its inclusion in condensed form, if that is authorised by regulations.

You will see that this quite clearly states that whilst certain items may be left out of the copy document, the rest of the document must be in the form and contain all items as prescribed by the regulations. Turning to the regulations regarding what may be omitted from these copies these are contained with SI 1983/1557.

The regulations state:

(2) There may be omitted from any such copy-
(a) any information included in an executed agreement, security instrument or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations thereunder as to the form and content of the document of which it is a 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 signature by the debtor of an agreement to which section 68(b) of the Act applies);

It is quite clear what can be omitted from the copy document, this again asserts that all other details of the agreement should presented in form and content as required by the regulations.

The requirements of the Agreement regulations 1983/1553 are very explicit in describing the form and content of an agreement and this as I have demonstrated also applies to the copy of any such agreement with the above mentioned proviso.

Nowhere within these regulations does it state that part of the agreement can be presented on a separate document headed Application Form. It does, however, state that 'all terms and conditions should be within the agreement document and is explicit of the form in which it is presented'. Further, the document furnished is a breach of section 59(1) of the Act.

In either case, please confirm that you have, in your possession, a properly executed credit agreement that is in all ways fully compliant with the Consumer Credit Act 1974, as amended, and the subsequent regulations made there under. For the avoidance of doubt, if you are in possession of such a document, but are unable to supply me with a true copy of it, please outline your reasons why you are unable to supply it to me in your reply.

Furthermore, I respectfully request that you provide me by return a copy of the credit agreement which bears my signature. I require this as I have reason to believe that there may be discrepancies within the agreement which may leave it improperly executed.

I look forward to your response within the next 14 days.



Yours faithfully