CAA request updates / results part 2

cocker100

never-in-doubt wrote: »

Hiya - ok, well first off CPR is a distant dream, so is court! The last thing they would want to do is pursue court action, especially in light of the 2 test cases dropping the day before! Both were MBNA (the lead bank in the test case - 8 are theirs!)....

So you're left with the option of leaving the account in dispute or paying the debt via a payment plan or whatever. But bear in mind, just cos the lender says 'tough !!!!!!, that's all we're sending you' doesn't mean that you have to accept it. If you're positive that it is unenforceable then you stick to your guns and do not pay them and leave it in dispute. Any action they then take would be looked at dimly due to the fact you're disputing the account - Action cannot be taken against a disputed account (enforcement/harassing methods etc).

Therefore it would be best to send one of the templates just so they know you're not happy, and the reasons why you're not happy. It is for them to prove to you that it is indeed enforceable, not for you to prove otherwise. If they do not respond then let them take you to court - you'd win hands down!

I wouldn't worry so much - just send the letter and take a back seat and wait for them to make a move then post back again..... the guys on CAG will be right if they checked the CCA - so do whatever you feel best with - but don't be worrying - no need to worry (you're always in control).

Thanks again n-i-d!!!

I'll keep you posted as to outcome of things. I'm sure i'll be back for more advice on this sooner rather than later!

Cocker:)

never-in-doubt

Interesting: http://news.bbc.co.uk/1/hi/business/8393768.stm

The general position is that lenders who wish to chase defaulting borrowers for the repayment of their loans have to comply with a number of obligations.

One of them is that under sections 77-79 of the Act they should supply a "true copy" of the original signed loan agreement within 12 days of the borrower asking for it. If they do not then the debt is unenforceable until such time as the copy can be provided.

"Unfortunately, consumers have often been given an exaggerated expectation of what the creditor or owner must do in order to comply with an information request, as a result of misleading claims by claims management companies and inaccurate information on the internet," the OFT's draft guidance says.

"As a result, numerous disputes have been generated over whether a request has properly been made, whether the duties have been complied with and whether as a consequence the agreement can be enforced," the OFT adds.

never-in-doubt

blueforyou wrote: »

I've seen it all now, This "Bank professional" admits they do not have a legal document AND yet still insists its enforceable. I've said it before, and I'll say it again..are bank workers EVER capable of learning?

See my above post (#83 ) - exact case of this happening lol: http://news.bbc.co.uk/1/hi/business/8393768.stm

cocker100

Kudox wrote: »

OMG Cocker where have you been:D
Remember me from the DMP support thread?
Weird you should come back at this mo, I'm getting advice off the wonderful(don't tell him ha ha) N-I-D on his other thread as we speak.
Good to see you back hope all is ok.:j

Hiya Kudox!!!

I remember you well from the DMP thread!!! Hows things going with yours? I'm into the 3rd year of my DMP now!:eek:
Its been fairly quiet on the creditor front with me, so not needed to come on here for a while. Plus I think I was getting obsessed with the whole "debt" thing and needed to take a break from continuously researching my rights and looking for similar senarios to mine!
But i'm back now and ready to kick things off again!;) Next job will be to catch up on the DMP thread!!! How fast does that fill up???

Take care,

Cocker:)

badgerbread

Just getting a bit concerned if they have sent me a true copy of my GM card cca even though it has no signatures. I now do not think this to be the case because in the corner there is a competiton advertised to win a vauxhall tigra the date for it is elegible however the tigra was launched in November 1994 and I opened the account in April 1994 so surely I wouldn't be entering a competition for a car that has not even been launched. would this confirm that this is not a true copy?

badgerbread

I have just recieved another letter from barclaycard very similar to the old one I recieved telling me what they needed to send me under the agreement. My question is though they have now sent me the terms and conditons from Morgan Stanley from the period that I opened the account there is no space dor signature anywhere on the document does this mean that they still have not complied with the cca request or do I need to start paying them?

rog2

badgerbread wrote: »

I have just recieved another letter from barclaycard very similar to the old one I recieved telling me what they needed to send me under the agreement. My question is though they have now sent me the terms and conditons from Morgan Stanley from the period that I opened the account there is no space dor signature anywhere on the document does this mean that they still have not complied with the cca request or do I need to start paying them?

If they have sent you the 'T&C', even if these are the T&C that were in operation at the time, then I doubt very much that these will constitute a compliant consumer credit agreement - especially since there is no space for signatures as required by the Act.
Without actually seeing what they have sent you, I would be inclined to say that they do not appear to have complied with their legal obligations, under the Act, and are, therefore, 'in default'.

never-in-doubt

badgerbread wrote: »

I have just recieved another letter from barclaycard very similar to the old one I recieved telling me what they needed to send me under the agreement. My question is though they have now sent me the terms and conditons from Morgan Stanley from the period that I opened the account there is no space dor signature anywhere on the document does this mean that they still have not complied with the cca request or do I need to start paying them?

You definitely stop paying them - also send the following letter

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 Terms & Conditions 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 Terms and Conditions 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 terms and conditions. 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'.

In either case, please confirm that you have, in your possession, a 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

Sign digitally

cocker100

Hi all,

I've been mulling over what Equidebt sent me in relaton to my old MBNA account. I've noticed that in the Data Protection Act section (bottom right hand side), it makes reference to condition 11 in the terms and conditions. However, in the terms and conditions down the left hand side on the document, there is no condition 11. They only go from 1a to 3b!

The top paragragh on the left hand column does state however that the rest of the t's and c's are to be found in the "full copy" of the t's and c's. this has not been received! If they ever existed in the first place!

There is also some confusion as parts of the form relate to "conditions" and some relate to "paragraghs"! Could this be further proof that this is a cut and paste job?

Heres a link to the form:

http://s647.photobucket.com/albums/uu192/cocker100/equidebt

Anyone any more input on this? Sorry for the poor quality, but it was the best I could do given the poor quality of the original!

P.S. n-i-d, deffo going to stop payments now!

Thanks,

Cocker:)

never-in-doubt

Cocker,

Did you see this post? #73

Shows you what letter to send.... stop dwelling on what they sent you, just argue it and they will dig a deeper hole - they always do.

Plus the fact MBNA pulled out at the last minute last week speaks volumes!