CCA response

FutureGirl

We sent a CCA request off in Sept for hubby’s old credit card debt. They finally(!) sent us something this week. We stopped paying it a while back after they breached the 12 days.

They have sent a reconstituted version of the agreement he would have signed in 2006, as they don’t have the original agreement. 

I just want to confirm that, as a pre 2007 agreement, this is OK, and what info should the document they sent us contain so I can make sure it’s correct?

If they don’t have the original, signed, agreement, then is the debt unenforceable? 

FutureGirl

The document they have sent says they cannot find a copy of the original CCA so they are enclosing a reconstituted copy of the terms that applied when the agreement was taken out, and the current terms. 

I’ve checked the document and it has hubby’s current name and address, not the name & address when he took out the agreement in 2006. The terms at the time are a one page double sided T&C. 

It does not have details regarding the limit, or the interest rate. 

sourcrates

A reconstituted agreement would satisfy an information request under sections 77-79 Consumer Credit Act 1974.

It may not prove, however, that the agreement is legally enforceable.

A reconstituted agreement that is missing the signature of the applicant for example - Pre 6th April 2007 - is likely to be irredeemably unenforceable.

Prior to 6th April 2007, sec 127(3) consumer credit act stated -

(3)The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

However, this has since been repealed, so as to give courts discretion as to whether agreements should be deemed unenforceable. 

So this no longer applies to accounts after that date, but still would to those signed prior to it.

FutureGirl

The reconstituted agreement they have sent has the incorrect name and address on it, would that still satisfy the CCA request under 77-79? (They have used hubby’s current name and address on the reconstituted agreement, which was different in 2005). 

So, as this is a 2005 agreement, s127(3)(3) basically says it is unenforceable as they cannot provide the signed agreement? And a Court would not have discretion for this particular agreement to declare it enforceable?

sourcrates

FutureGirl said:

The reconstituted agreement they have sent has the incorrect name and address on it, would that still satisfy the CCA request under 77-79? (They have used hubby’s current name and address on the reconstituted agreement, which was different in 2005). 

So, as this is a 2005 agreement, s127(3)(3) basically says it is unenforceable as they cannot provide the signed agreement? And a Court would not have discretion for this particular agreement to declare it enforceable?

Hi,
You can get many opinions on this matter, but the only true test is by actually taking this to court and arguing your case.

It would appear to be unenforceable due to the time era it is from, and possibly one or two other imperfections.

All you can do is state your position to the creditor, and see what response you get.

fatbelly

The name and address should be the ones that applied at the time the agreement was taken out.
https://www.handbook.fca.org.uk/handbook/CONC/13/?view=chapter
I would imagine they could sort that out quite quickly but as it stands under CONC13 they have not complied and it is unenforceable,