The best thing I can do in response is to post the link to the exact thread concerning CCA's on the consumer action group site. Read through that and you'll find all your questions pretty much answered. The link is:-
Loan Company Cannot Supply The Original Agreement - Consumer Action Group
I've also included my own notes on the subject below
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Loan Company Cannot Supply The Original Agreement
Overview
Firstly, under the Consumer Credit Act, if you request a signed copy of the original agreement, they must provide it within 12 (working days at this stage) by Law (see 77 (1) and section 78 (1) and 79 of the Consumer Credit Act 1974). Statutory maximum fee for this type of request is £ 1.00. If they take longer than 30 ACTUAL days (that starts from day 12 so 42 days in total) to provide it (1 calender month), they have committed a criminal offence. They are deemed to have received the letter 2 days from sending it.
It is important that you follow the procedure set out in the Consumer Credit Act and make a statutory request under sections 77(1) and 78(1). A draft letter is shown elsewhere on the forum - and as stated, you need to send the £1 fee.
77 Duty to give information to debtor under fixed-sum credit agreement
(1) The creditor under a regulated agreement for fixed-sum credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—
(a) the total sum paid under the agreement by the debtor;
(b) the total sum which has become payable under the agreement by the debtor but remains unpaid, and the various amounts comprised in that total sum, with the date when each became due; and
(c) the total sum which is to become payable under the agreement by the debtor, and the various amounts comprised in that total sum, with the date, or mode of determining the date, when each becomes due.
(2) If the creditor possesses insufficient information to enable him to ascertain the amounts and dates mentioned in subsection (1)(c), he shall be taken to comply with that paragraph if his statement under subsection (1) gives the basis on which, under the regulated agreement, they would fall to be ascertained.
(3) Subsection (1) does not apply to—
(a) an agreement under which no sum is, or will or may become, payable by the debtor, or
(b) a request made less than one month after a previous request under that subsection relating to the same agreement was complied with.
(4) 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; and
(b) if the default continues for one month he commits an offence.
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A good letter to cover this is within the thread I've linked to.
They have to provide the original or a copy of it with your signature on it.
So - the debt is now unenforceable already. If they have entered a "Default" on your credit file, you now have a good case for getting it removed as there IS NO DEBT.
If the debt is unenforceable, you cannot (no point after this) go after unfair charges otherwise you would be admitting that you do actually own the debt, regardless of whether they can find the paperwork or not.
Should they then seek to enforce the debt they will have to explain to the court why they defaulted, and seek permission to continue - and you can also report them to Trading Standards and the FSA.
Thread Comment - I don't want to sound naive or anything here, but what happens if after 12 days without an agreement being produced, you write to the creditor denying the debt,stop payments etc etc,and then they come up with it? Are you still entitled to tell them to go away?
I just want to be sure of this......
After the 12 working days, you DON'T write to them. You just wait. After the 30 days you complain to Trading Standards. THEN you write to them saying "This debt is unenforceable, get rid of my defaults, and by the way you owe me (x) pounds paid to you against this unenforceable debt".
There is no point WHATEVER writing to them after 12 working days and gloating all over their arses for that exact reason; however after 30 days they have committed a criminal offence, and that puts a whole different light on things.
Further Thread Comment - After 12 working days…
Can they enforce the debt if they send you a copy of the agreement after 12 days are up? First Direct did just this with me, and I want to be able to tell them to sod off!!
They can enforce it now, yes. After 12 but before 30 days, they are only "in default" while the agreement remains missing. Once they find it, it's all back on track unfortunately; although you could still (if you wanted to) complain to trading standards about their tardiness. In these circumstances however TS would be unlikely to take any further action.
After 30 working days: choices: Now that of course depends. You have a number of choices.
1. Do nothing; pay nothing. They cannot enforce it therefore you don't need to pay them anything. If you continue to get letters then report them to TS for harrassment, and continue to pay them.... NOTHING. This option is useful if you've not paid them a significant amount already, there are no defaults against you, and you just want to get on with your life.
2. Write to them instructing them to remove any defaults against you, and demanding any money you have already paid to them under this account. If they fail to do this, LBA, Court.
3. Write to them stating that you will no longer be making payments against this "debt" as it is unenforceable. Tell them that you consider the matter closed and that no further correspondence will be entered into.
4. Don't write to them at all, but complain to Trading Standards. Tell them you asked for CCA details and got nothing, and that they continue to pursue the debt.
It's entirely your choice.
BE AWARE OF FOLLOWING STRATEGY FOR FOBBING OFF
A paragraph in the response that reads similar to this……
section 77 and 78 of the consumer credit act 1974. These sections do not apply to your account, this is because sections 77 and 78 only apply to "matters arising during the currency of agreements". since the agreement relating to your account has been terminated (for no payment) the agreement is no longer current.
Is this just fobbing me off and can I still send the request
That is absolute crap....but they will try to put you off, especially if they think that you do not fully understand the legislation.
The critical thing is that the letter states that; you are requesting a true copy of the agreement under the terms of the secs. 77(1) and 78(1) of the CCA 1974 - and you enclose the statutory fee.
Also… You are notified that you are obliged to supply these documents, whether you are the original creditor or not under S189 of the CCA 1974.
By doing this, your request is then legally binding - and if they default, you can take advantage of the remedies available under the Act.
Other points in Overview
What happens if you send the CCA to a DCA then they pass the debt on to another DCA? This could keep going so that none of them have to send you the agreement.
Reason I ask is I had a TSB credit card which got passed to Aktiv Kapital, I sent the CCA to Aktiv Kapital and have since received a letter from Thames Credit chasing the debt.
Any advice would be great.
I *think* you have to send the CCA to the original creditor, in your case Lloyds TSB Credit Card Dept, as they will have all the details still, and should hold a copy of your original agreement.
I am of the opinion that the CCA request goes out to the owner of the debt. If the debt is 'sold' by the bank/credit card co. to a Debt Collection Agency (DCA) then it is the DCA who has to provide you with a copy of the original contract and a deed of assignment otherwise I could write to you asking you to pay me! ( that would be nice! ). This is only where the debt is sold to the DCA NOT if they are just acting as an agent for the bank/cc. You should be advised that the debt has been sold at the same time as the sale.
If they do not provide this within 12 days from receipt of your CCA request and your £1 fee then they have defaulted and can only chase the debt with a court order. They have a further 30 days to come up with the goodies before they are committing an offence and the debt then becomes unenforecable. If they can't prove they own the debt then why should you pay them.
If the DCA ( Aktive in this case ) sells the debt on again you go through the same CCA process with the new agent. If Aktive cant find the documents the liklihood of Thames Credit getting it is much the same so they would not be able to collect it. The letters in the Templates which you should use tell you to write saying you do not acknowledge owing Aktive/Thames credit any debt - provide the proof and I'll consider it - get the jist?
Yes but until you follow the "official" complaint route to the authorties they are going to keep selling it on. & no matter how much they try & wash their hands you must keep involving the original creditor by sending the copy correspondence whilst advising that they will be included in your complaint to the authorities