Cca Requests Updates Please

stapeley

A[L]C wrote: »

Hi all,

I sent a CCA request to Aktiv Kapital months and months ago. Hear nothing until today.

They have said



What should I do? They dont seem to have anything or Im sure they would have sent it wouldnt they? Also they didn't include a pre paid envelope as the letter says.

Many thanks

You could point out a COPY OF A SIGNED CONSUMER CREDIT AGGREMENT was requested and a copy application form is NOT satisfactory .

Bazza66

A[L]C wrote: »

Hi all,

I sent a CCA request to Aktiv Kapital months and months ago. Hear nothing until today.

They have said



What should I do? They dont seem to have anything or Im sure they would have sent it wouldnt they? Also they didn't include a pre paid envelope as the letter says.

Many thanks

There is a template letter to reply to this particular situation. It goes on about needing to prove who you are when they are free to send you letters without proving who you are.

I'll try and find it for you!

Bazza66

This looks like the sort of thing you need to send. Modify as required.

Also DO NOT send a copy of your signature!!!!!!

Bazza




Dear Sir/Madam,

RE: Account NO XXXXXXXX

Thank you for your letter dated xx/xx/2008 the contents of which are noted.

In your letter you make reference to requiring my signed authorisation /specimen signature** before you comply. I draw your attention to the fact that the Consumer Credit Act 1974 does not require that i supply you a copy of my signature before you comply with my S77/78** request.

If it is for Data Protection purposes then i can happily supply you with documentation to substantiate my identity to you.

However please note that to date you have happily sent statements and correspondence containing extensive sensitive private information to my address. I have to ask if you are concerned that you are corresponding with the correct person why has it taken so long to raise this?

As you are aware, disclosing data without adequate checks of identity is contrary to the 7th principal of data protection, listed in schedule 1 of the Data protection Act 1998:

7. Appropriate technical and organisational measures shall be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data.

My request for a true copy of my credit agreement under section 77/78** was made on xx/xx/2008 and the 12 working days for your compliance expire on xx/xx/2008.

I note that there is no provision that removes the requirements of the act to provide this information on time, even if you are unsure of my identity.

I look forward to receiving the documentation requested

Yours faithfully

Print dont Sign

rochdalecowboy_2

Hi, I posted on here about 6 months ago for help with a credit card debt of £4500 to hfc bank which has been passed to marlin. I am now due in oldham court next friday(20/02/09), i put in a long winded defence which i obtained of this site with the main arguement being that despite several requests (with payment sent) i never received a copy of the credit agreement. The only paperwork i previously received was a copy of an application form, this had no mention of APR. I have today received there "witness statement" which is trying to throw out my defence, they have included a copy of the application form and several credit card statements from when i was using the card, they also use the rankine case to support there claim. I would be extremely grateful for any advice

one-day

where do we stand dh wrote a letter asking for his cca to cabot financial they wrote back explaining that they can not find his cca so the account is on hold this was back in november 2008. today we got a letter from iqor recovery saying that cabot has passed on the account to them and if not paid will go to court. dh has phoned iqor recovery to tell them it has been passed on to them and it should not have been and they were shocked and said ok but i really need some advice on what we do next

cocker100

one-day wrote: »

where do we stand dh wrote a letter asking for his cca to cabot financial they wrote back explaining that they can not find his cca so the account is on hold this was back in november 2008. today we got a letter from iqor recovery saying that cabot has passed on the account to them and if not paid will go to court. dh has phoned iqor recovery to tell them it has been passed on to them and it should not have been and they were shocked and said ok but i really need some advice on what we do next

If Cabot failed to provide the CCA, then the account is still in dispute and cannot be passed onto another DCA.

Cabot are still in default, so I would contact them to see what their excuses are.

As the account is still in dispute it cannot be enforced, so I wouldn't worry at this stage. Unless they do produce the CCA that is!

Someone with more knowledge should be along soon to confirm!

Cocker:)

GeorgeUK

Rochdalecowboy, I suggest you go over to the consumeractiongroup legal board and post in there as well. They are very clued up on the legal aspects and will be able to advise of what you should do and why the rankine case was a one-off (the judge even quoted legislation that didn't exist).

As i understand the Rankine case, they brought the case to court so they burden of proof was on them. As you are being taken to court, it is Marlin that must supply the proof. This would require a copy of an enforcable credit agreement with the required signatures and prescribed terms. The rankine case did not set a precedent.

When was the agreement taken out? Before 6th April 2007?
If so then
Under s59 of the CCA74

59.—(1) An agreement is void if, and to the extent that, it purports to bind a person to enter as debtor or hirer into a prospective regulated agreement.
(2) Regulations may exclude from the operation of subsection (1) agreements such as are described in the regulations.

As the application form is a prospective agreement, then it should be void as it does not contain all the prescribed terms.

61.—(1) A regulated agreement is not properly executed unless
(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and
(b) the document embodies all the terms of the agreement, other than implied terms, and
(c) the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible.

If all the prescribed terms are not present then the debt is unexecuted.

s127(3) of the Act

(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).

If the document does not have signatures of both creditor and debtor and all the required prescribed terms, then the claim should not be enforced .

Also, has there been a notice of default issued for this debt?

GeorgeUK

Cocker is quite right - the debt is in dispute so should not have been passed on. There is a letter in the standard letters thread that Fermi posted up for this.

Bazza66

one-day wrote: »

where do we stand dh wrote a letter asking for his cca to cabot financial they wrote back explaining that they can not find his cca so the account is on hold this was back in november 2008. today we got a letter from iqor recovery saying that cabot has passed on the account to them and if not paid will go to court. dh has phoned iqor recovery to tell them it has been passed on to them and it should not have been and they were shocked and said ok but i really need some advice on what we do next

I feel like templateman today!

You need to modify this one


Dear Sir or Madam,
Reference Number: ...........

I must admit that I am rather bemused as to why this account has been passed to yourselves, as it is in dispute with ................... and has been since DATE.When .................failed to provide a true copy CCA within the
sTATUTORY 12+2 DAYS.

Not only is this a breach of OFT collection guidelines, but also in breach of the Consumer Credit Act 1974 and Data Protection Act 1998.

As ...............are now in default of my Consumer Credit Act request and OFT Debt Collection Guidelines, I consider this account to be in SERIOUS DISPUTE.
As you are aware while my Consumer Credit Act request remains in default enforcement action is NOT permitted, under s127 this constitutes a complete defence at law.
Consequentially any legal action you pursue will not only be fully and vigorously defended, it will ALSO be averred as both UNLAWFUL and VEXATIOUS.
Now I would respectfully suggest that this account is returned to ........... for resolution of these defaults and breaches, as **New DCA/Solicitors** cannot lawfully pursue any enforcement activities.
If ................................chooses to ignore my dispute and attempt enforcement, I will initiate legal action and file reports with the appropriate authorities, including, but not limited to, Trading Standards, Office of Fair Trading, Information Commissioners Office, Financial Ombudsman Service and possible court action.
After taking advice, I am of the opinion that any continued pursuit is in violation of the Administration of Justice Act 1970 section 40 as well as breaching a number of the OFT Collection Guidelines
I hope that this will not be necessary and an acceptable solution can be accomplished.
I would appreciate your due diligence in this matter.
I look forward to hearing from you in writing.
Yours faithfully

blueforyou

This is on the Credit Services Association web-site. Although its going to be a long drwn out process, DCA's etc will be running scared I hope.

Limitation Act
Date: 04-02-2009
The Ministry of Justice has indicated that it is to undertake a review of the Limitation Act 1980 with the view of reducing the Limitation period for simple contracts from six to three years. This would obviously have a devastating effect on the Debt Collection and Purchase industry by rendering a large number of accounts unenforceable in a court of law. There is due to be a consultation in the coming months, this will be added to the Lobbying page of the CSA and DBSG websites. We encourage all members to respond as the impact of this issue cannot be underestimated.

Currently the Limitation period is six years. Should no part-payment or written acknowledgement of a debt be forthcoming this period the debt is no longer legally enforceable. However it is worth noting that these debts can still be collected, it is simply not possible to gain a judgment and as a result, legal action should not be threatened. Details on collecting statute barred debt can be found in the OFT Debt Collection guidance.

They are still embarrasing themselves by saying any debt that becomes unenforceable after three years is STILL collectable. How will that work then?!