reconstituted CCA

winner12

Hi
Sent off CCA request to CAP 1 (after all problems with them previous threads)
They sent a reconstituted copy with 6 pages of terms and conditions status of account
They also say they have filled all obligations and will not communicate on this matter further
Whats my next step
I have asked on another site they suggest being careful when sending off template letters if I want to dispute it and to make sure I understand the consequences and the Law relating to this
But I find it all mind boggling and very confusing

fermi

They may have fulfilled their obligations under a section 77 request depending on what has been sent?

From the OFT: http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/OFT1272.pdf

The creditor or owner may not have preserved a copy of the executed agreement. Since the requirement is not to provide an exact copy, let alone a carbon, photocopy or microfiche copy, it can reconstitute a copy. It can do this, for example, by re-populating a template of the relevant agreement form with the details of the specific agreement taken from its records, a method approved in Carey v HSBC Bank plc. This will provide the information that the debtor or hirer may require as to the terms of the agreement. If the creditor or owner does provide a reconstituted copy, it should explain that that is what it has done, to avoid misleading the consumer that this is a contemporaneous copy. It can explain that this procedure is satisfactory under the Act.

However, the reconstituted copy must be a 'true copy' of the executed agreement. It must therefore contain any terms and conditions which were contained in the original, together with all the prescribed information and statements of protection and remedies required by the Consumer Credit (Agreements) Regulations 1983 that were set out in the executed agreement. The creditor or owner must ensure that it gives the terms and conditions applicable at the time the contract was executed. It was held in Carey v HSBC Bank plc9 that, subject to spelling mistakes and similar discrepancies (described as 'low level omissions'), only those matters listed in regulation 3(2) of the Copies of Documents Regulations could be omitted. The name and address at the time of execution must therefore be included, although, as Carey explains, that can be taken from any source available to the creditor or owner.

If the creditor or owner is aware that there was never an executed agreement and one was required, it would be misleading and an unfair business practice to try and conceal that fact, either by suggesting that the agreement cannot now be found or by creating a copy agreement purporting to be a true copy. If the reason why no copy is given to a request under these sections is that there never was an executed agreement, the creditor or owner should acknowledge this in its response.

Where there has been a variation of the terms and conditions of the agreement

Where an agreement has been varied in accordance with section 82(1) of the Act, the OFT considers that, by virtue of Regulation 7 of the Copies of Documents Regulations, the duty is to provide not only a copy of the agreement as originally executed but also either a copy of the latest variation given in accordance with section 82(1) of the Act relating to each discrete term of the agreement which has been varied, or a clear statement of the terms of the agreement as varied in accordance with section 82(1) of the Act.

Although some creditors have apparently considered it is sufficient to provide a copy of the current terms and conditions (that is, 'a statement of the terms of the agreement as varied'), that does not comply with the requirements of Regulation 7. In Carey v HSBC Bank plc there was detailed analysis of this issue and it was confirmed that 'include' meant that the documents showing the variations were to be supplied in addition to a copy of the original agreement.

There are cases where no executed agreement is required by the Act, for example, certain bank overdrafts.

Section 127(3) continues to apply to agreements made before 6 April 2007.

fermi

Have you sent a SAR? I can't remember?

If so, did they have copy agreement under that? If so, how did it compare?

winner12

Thanks Fermi
I dont think it did just a copy of an application form will have a look and let you know

fermi

Well, something that says "application form" can also be an agreement. Depends on exactly what it contains.

Plus if it doesn't contain the prescribed information/terms itself, but it clearly links to terms and conditions supplied with it at the time that would contain them, then it could also be considered compliant.

Devil is in the detail, as they say........

winner12

Hi again fermi
No terms and conditions with SAR only with this CCA
Only point I wanted to make was them not to be able to pass me to a DCA I have 2 chasing the debt
When I complained to CAP 1 about it they said Credit Solutions were collecting who will be in touch shortly but the last one I heard from was Scotcal
I have tried to pay Cap 1 direct but they send the payment back or dont cash my cheques all I find a bit strange
Hence my reason for the CCA request

king100

Can we please have more details on this debt.

What is it from?
How long since you last paid anything to it?
When did you take out said debt?

winner12

Hi loads of threads on here
Its from june 2000
Credit card debt
last paid october 2010 put on hold with fos until december 2010
Have tried to pay since with direct bank payment post order and cheque all not cashed or returned

fermi

When is this agreement from? Before April 2007?

Assuming so, there are several issues on the technical side.

1) Did Cap One comply technically with the CCA request?

2) Even if they did, have they been dishonest in doing so? i.e. providing a reconstituted copy of an executed CCA when in fact no original executed compliant CCA existed in the first place?

3) What exactly does this application form provide under the SAR contain? Does it constitute an enforceable agreement under s127(3). i.e signed by you containing the prescribed terms, or firmly linking to a document that contains them?

4) Can Cap One demonstrate to a court that an original agreement was probably signed? Some judges courts seem to be going in the direction that as long as the creditor can provide evidence that "on the balance of probability" one was, rather than needing a physical copy, then they will enforce it. Not saying that is right, but seems to be leaning that way a bit.

Most of those really require sight of the documents to even try to work out.

On the practical side for you.....

How far are you wanting to push this?

You say you just want to stop it going to a DCA? Well, CCA or lack of a CCA that may not be achievable at this point.

You are sending payments that have been returned?

Does Cap One say they have sold the debt on? Or have they just passed it to the DCA for collection?

Has the DCA contacted you yet?

I take it that you just want to achieve an equitable repayment plan?

winner12

Hi Fermi
I want to pay them back
I want to be given a fair chance the DCA are acting on behalf of CAP 1
Credit Solutions contacted me in Sept 2010 (sent soa and offer as per DMP)they refused my offer after having this from CAP 1 for 9 months i complained to the FOS and SAR Cap 1
They put the account on hold until December 2010 it went in CAP 1 favour even though i had tried to negotiate and paid them as per my DMP
I did not here from Credit Solutions or CAP 1 after FOS decision
Scotcal sent a letter out of the blue in January 2011(sent a prove it letter heard nothing more)
I had by this time set up a direct payment to CAP 1 at my bank and paid them only to have it returned a few days later
I then sent a postal order (not Cashed)
I then sent a cheque (not cashed) CCA sent to see if I could use it as leverage to get my payment accepted
Thus resulting in stale mate and yes I only want a repayment plan in place
Sorry its long winded but thats it in a nutshell

fermi

So you've not heard from credit solutions yet?

Can you scan in and post the "application form" you were sent under the SAR? Obscuring anything that might personally identify you of course.

Basically it sounds you need to see what CS say and do if/when they contact you.

If they play nice and allow you to pay it off as you are trying to do, then all well and good.

However, if they start all the "we will take legal" action nonsense, then knowing how the agreement that Cap One allegedly have (or haven't as the resorted to a recon ) would stand up might be useful in countering such threats.