Wescot cannot supply signed agreement

McKneff

ok Dr S, i respect your opinion and found your post interesting and now I shall bow out gracefully- notice please i hit your thanks button

GeorgeUK

With a CCA request, they are not required to provide a signed copy. This is why if you have charges to claim back, I suggest you do a SAR first even though it costs more. The SAR falls under the Data Protection Act and they need to provide you with a copy of all the documentation you request, signatures and all.

Many companies make "reproductions" which they are allowed to do after some Acts changed the rules in the mid 80's. They are allowed to make reproductions but the information must be taken from the original document. How you can prove this wasn't done though, i'm not sure.

She has not admitted liability for the debt if it does not belong to her. Did the DCA say this on the phone or were they actually stupid enough to put that in writing?

If you make a CCA request and they refuse to comply, you should report them to the Trading Standards in their area.

for info: http://forums.moneysavingexpert.com/showthread.html?t=1496721

shayshay

Wow that seems crazy that they can make a reproduction. I thought the whole basis of the signed credit agreement was that it was signed.

fermi

shayshay wrote: »

Wow that seems crazy that they can make a reproduction. I thought the whole basis of the signed credit agreement was that it was signed.

It is. But they are allowed to "omit" the signature under a s77/78 request.

However, if they took it to court you could demand that they provide a signed copy for those proceedings. If they don't have one then, then they would be stuffed.

rhhmunro

fermi wrote: »

It is. But they are allowed to "omit" the signature under a s77/78 request.

However, if they took it to court you could demand that they provide a signed copy for those proceedings. If they don't have one then, then they would be stuffed.

Thanks for all the helpful responses. Survival comes first I'm afraid, morals are an expensive luxury, especially when it comes to dealing with barefaced usurers.

Anyway I suspect that they don't have a signed agreement otherwise they would have produced it by now. What they have produced is a word document with my name and address at the beginning and then Halifax's standard T&Cs for a credit card. There is no date, no signature and no proof whatsoever that I ever entered into an agreement with anyone.

This would be so easy to put together that I doubt that it could possibly be used to enforce the debt,

If they do have a properly executed CCA, why haven't they produced it? To wait until it goes to court would not be in their interests surely?

fermi

rhhmunro wrote: »

If they do have a properly executed CCA, why haven't they produced it? To wait until it goes to court would not be in their interests surely?

Wescot certainly don't have one from what you say.

I'm sure Wescot have requested one from Halifax, and they have either not received one or been given the same garbage you have.

Whether Halifax have one is another matter. It is not unknown for an original creditor to take months/years to track one down. A lot of them are archived in long term storage. But as time goes on it is less likely.

What is on the one you have?

To be enforceable in court a CCA besides being signed by you and completed, MUST contain:

• A term stating the credit limit or the manner in which it will be determined or that there is no credit limit.

• A term stating the rate of any interest on the credit to be provided under the agreement and:

• A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following:-

(a) Number of repayments;
(b) Amount of repayments;
(c) Frequency and timing of repayments;
(d) Dates of repayments;
(e) The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable.

Are all those present?

rhhmunro

Thanks Fermi

As far as I can see no mention is made of repayment terms

So if Westcot don't have one and Halifax may produce one at some point, what is the best course of action do you suppose?

rog2

shayshay wrote: »

Wow that seems crazy that they can make a reproduction. I thought the whole basis of the signed credit agreement was that it was signed.

They are, indeed, permitted to send an 'unsigned' copy of the agreement.

HOWEVER, it must be a true copy of the original executed consumer credit agreement.

I notice that you mentioned the dreaded AKTIV KAPITAL. It is not unknown for DCAs of that 'ilk' to send copies of the current agreements - even copies of application forms - which are seldom compliant consumer credit agreements.

If an unsigned cca, or application form, is sent then you should check to see that it is compliant to the terms required in the Consumer Credit Act, 1974. These can be seen by clicking on the following link:

http://forums.moneysavingexpert.com/showpost.html?p=7869437

Whether or not AKTIV KAPITAL choose to ignore your sister's cca request is, quite frankly, immaterial. They are legally bound by the conditions of the Act and must provide her with a true and compliant copy of the original executed consumer credit agreement within 12 working days of receipt of her request, and £1 fee. The fact that they have not done so puts them 'in default' and they can not enforce the agreement whilst in default.

The OFT has, very recently, put one of their 'bedfellows' - MacKenzie Hall - on a final warning for just such behaviour, and would be very interested to hear of anyone, like your sister, who is experiencing similar problems with a DCA:

http://forums.moneysavingexpert.com/showthread.html?t=1639473

fermi

Thanks for those links rog.

fermi

rhhmunro wrote: »

So if Westcot don't have one and Halifax may produce one at some point, what is the best course of action do you suppose?

I think it is unlikely that any DCA will be able to get a valid agreement from Halifax now.

I mention it because it is a slight possibility, so you should be aware of it.

If the agreement is missing one or more of the terms in my quote, then you can adapt the letter below and send to Wescot.

They won't like it, and may even try to refute it, but it is the law and they will know that.

More important, they will know that YOU know it and that you have "rumbled" them.

Re: my request under the Consumer Credit Act 1974

Thank you for your recent letter sent to me dated <date>, the contents of which are noted.

However, the reply received by me does not fulfil 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 26th <date>.

My request remains outstanding. The document supplied 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'.

An agreement must conform to regulations made under the provisions of section 60(1) Consumer Credit Act 1974 otherwise it cannot be properly executed.

These regulations are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553). The regulations set out the form and content of agreements. For an agreement to be compliant with the regulations it MUST embody within the agreement, the prescribed terms laid out in the SI 1983/1553. Without the prescribed terms the agreement does not conform to section 60(1) Consumer Credit Act 1974 and therefore cannot be properly executed as described in section 61(1).

For your information in case you are unsure, the prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: -

• A term stating the credit limit or the manner in which it will be determined or that there is no credit limit.

• A term stating the rate of any interest on the credit to be provided under the agreement and:

• A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following:-

(a) Number of repayments;
(b) Amount of repayments;
(c) Frequency and timing of repayments;
(d) Dates of repayments;
(e) The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable.

Now, nowhere on the alleged agreement that you supplied is there any reference to <insert items> items above.

I wish to remind you that the absence of these terms will render a document unenforceable in court and I also wish to point out that these terms MUST be contained within the agreement and NOT in a separate document headed terms and conditions or words to that effect.

Therefore, you have failed to supply an enforceable and properly executed document and therefore remain in default of my legal request under the Consumer Credit Act 1974.

As you are no doubt aware section 78(6) states:

If the creditor fails to comply with Subsection (1)

(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;

Therefore this account has become unenforceable at law.

You have failed to comply with a lawful request for a true copy of the said executed agreement.

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS and with be VIGOROUSLY defended, putting you to a STRICT PROOF of your claim and COMPLIANCE with the law.

If you cannot supply me with a document, which complies with the Consumer Credit Act 1974, and ALL of the Regulations made under the Act, I shall be forced to make a complaint to Trading Standards and I will also draw this to the attention of the Office of Fair Trading.

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).

Therefore you have 14 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.

Should you not have any signed and properly executed 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.

Yours faithfully