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Unenforceability & Template Letters II

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  • never-in-doubt
    never-in-doubt Posts: 20,613 Forumite
    Flower567 wrote: »
    Hello Everybody

    So have posted on here a couple of times in regards to a credit card with MBNA. By way of update, I sent the first letter requesting agreement, no response, after expiry sent second letter, still no response after 30 days so sent the dispute letter - this was on 24 January 2010. However, have now received a letter dated 26 Jan from MBNA apologising for not responding and stating that they are awaiting the information from another lender - MBNA acquired the account. However, they have also stated that due to the McFuffick case payments should still be made to the account - stating that in this case the Judge confirmed that the lender can still demand payments. I have also noted from the statement that they are still adding interest and charges as stopped paying this card in December - I was just wondering if anybody thinks I should respond to this letter or just leave it.

    Thanks.

    Hiya

    Don't worry about the McGuffick case - it is not relevant to this, basically this allows the lender to add derogatory data with the CRA's.....

    If they have not sent a compliant CCA they are in default and you should cease repayments and all communication until they do comply. :D

    From what you describe, so far you've everything correctly and they are dawdling and they are in fact in breach - not you ;)
    :o 2010 - year of the troll :o

    Niddy - Over & Out :wave:
  • Hi N-I-D

    Yes I have moved address and I have informed them about this on several
    occassions,they may have sent them to the wrong address.
  • never-in-doubt
    never-in-doubt Posts: 20,613 Forumite
    Johnboy70 wrote: »
    Hi N-I-D

    Yes I have moved address and I have informed them about this on several
    occassions,they may have sent them to the wrong address.

    Hiya

    Ok, well send another change of address and make it clear that you've notified them several times to date and this is the last time you'll communicate with chaser letters. So if they do not respond, they do not get payment - simples :p

    Can I check, have they defaulted you - have you been paying, if not when did you last pay?

    I'll confirm the letter to send with the change of address when you advise on the above.....
    :o 2010 - year of the troll :o

    Niddy - Over & Out :wave:
  • never-in-doubt
    never-in-doubt Posts: 20,613 Forumite
    Hi NID,
    Capital 1 have wrote back again regarding not signing the CCA request. We sent the no signature letter and its taken them almost 2 weeks to write back. Shall we now send the "CCA in dispute" letter?
    "Whilst I appreciate your statement that under the CCA you are not required to produce a copy of your signature upon making a request under section 78, Capital One also has a commitment to protecting your personal information.

    Therefore, we ask that our customers provide signed letters to satisfy us as to their identity. We do not feel that this is an unreasonable request as it is designed to protect you and not in order to delay providing any information you request.

    I would also like to point out that your continued refusal to supply a signed copy of your request adds to the delay in providing these documents to you.

    I trust this explains why I continue to request proof of your signature Please arrange for this document to be forwarded to us and we will be happy to assist you further.

    Mate 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. On XX/XX/XXXX I made a formal request for a true signed agreement for the alleged account under the Consumer Credit Act 1974 (s.77-s.79). A copy of this letter is enclosed for your perusal and ease of reference.

    You have failed to comply with my request, using the lack of my signature as reason for failing to comply. I then reminded you that the Consumer Credit Act 1974 does not require that i supply you a copy of my signature. If it is for Data Protection purposes then i can supply you with documentation to substantiate my identity to you.

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

    I must also point out 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. As such, you are now in default of my s.78 request and this account has become unenforceable. The documents that you were obliged to send was a true copy of the executed agreement that contains the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself as defined in s.61(1) of the CCA(1974) and subsequent Statutory Instruments. If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document. In addition a full statement of this account should have been sent to me detailing all debits and credits to the account.

    Furthermore; you should be aware that the Consumer Credit Act allows 12 (+2) days for a request for a true copy of a credit agreement to be carried out before your client enters into a default situation. This limit has expired and as such, as you are no doubt aware s.77(6) states:
    "If the creditor fails to comply with Subsection (1)(a) He is not entitled , while the default continues, to enforce the agreement. Therefore this account has become unenforceable at law"
    As you have Failed to comply with a lawful request for a true, signed copy of the agreement and other relevant documents mentioned in it, failed to send a full statement of the account and failed to provide any of the documentation requested, any legal action you pursue will be averred as both unlawful & vexatious. Furthermore I shall counterclaim that any such action constitutes unlawful harassment. You may also consider this letter as a statutory notice under s.10 of the Data Protection Act (1998) to cease processing any data in relation to this account with immediate effect. This means you must remove all information regarding this account from your own internal records and from my records with any credit reference agencies.

    Any attempted argument regarding case law such as McGuffick v RBS will be dismissed as this particular case has no bearing on the legal reporting methods that a lender has with the CRA, namely adding derogatory data whilst an account is in dispute, this account clearly is disputed. Should you refuse to comply, you must within 30 days provide me with a detailed breakdown of your reasoning behind continuing to process my data. It is not sufficient to simply state that you have a ‘legal right’; You must outline your reasoning in this matter and state upon which legislation this reasoning depends. Should you not respond within 30 days I expect that this means you agree to remove all such data.

    Need I remind you that a creditor is not permitted to take ANY action against an account whilst it remains in dispute? The lack of a credit agreement is a very clear dispute and as such the following applies.
    * You may not demand any payment on the account, nor am I obliged to offer any payment to you.
    * You may not add further interest or any charges to the account.
    * You may not pass the account to a third party.
    * You may not register any information in respect of the account with any credit reference agency.
    * You may not issue a default notice related to the account.
    I reserve the right to report your actions to any such regulatory authorities as I see fit. You have 30 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint. I therefore request a copy of your official complaints procedure which you are obliged to supply. I would appreciate your due diligence in this matter and look forward to hearing from you, in writing within 30 days.

    Yours faithfully


    Sign digitally
    :o 2010 - year of the troll :o

    Niddy - Over & Out :wave:
  • Hiya

    Ok, well send another change of address and make it clear that you've notified them several times to date and this is the last time you'll communicate with chaser letters. So if they do not respond, they do not get payment - simples :p

    Can I check, have they defaulted you - have you been paying, if not when did you last pay?

    I'll confirm the letter to send with the change of address when you advise on the above.....

    N-I-D
    I am in a Debt Managemnet Plan so yes they are being paid on a regular basis however one of the loans they have just sold to a Debt recovery company.
  • N-I-D
    I am in a Debt Managemnet Plan so yes they are being paid on a regular basis however one of the loans they have just sold to a Debt recovery company.
    A company i used to look into the loans has said that the terms and conditions may have a problem but it will cost £580 pounds to test this.


    John
  • never-in-doubt
    never-in-doubt Posts: 20,613 Forumite
    Johnboy70 wrote: »
    N-I-D
    I am in a Debt Managemnet Plan so yes they are being paid on a regular basis however one of the loans they have just sold to a Debt recovery company.
    A company i used to look into the loans has said that the terms and conditions may have a problem but it will cost £580 pounds to test this.


    John

    Hiya

    are you in debt with others then? Have you been defaulted on this account and do you have a copy of the CCA they sent you?

    p.s. we won't charge you anything to confirm if it is enforceable or not lol
    :o 2010 - year of the troll :o

    Niddy - Over & Out :wave:
  • N-I-D

    I have no defaults on this account as far as I am aware and No I never got a copy of the CCA.I have credit card debts egg,marbles,RBS
  • never-in-doubt
    never-in-doubt Posts: 20,613 Forumite
    Johnboy70 wrote: »
    N-I-D

    I have no defaults on this account as far as I am aware and No I never got a copy of the CCA.I have credit card debts egg,marbles,RBS

    Well why not pay it then? if you CCA them you have to stop paying at some point and this results in a default.

    See what I mean? You need to read a bit of page 1 mate.....
    :o 2010 - year of the troll :o

    Niddy - Over & Out :wave:
  • They should be sending both sets of terms, i.e. one from the date the account was taken out and any substitute terms made from them to date.

    Can you advise though, how does the above have your signature on it if you state they are from 2007, yet they are dated 2001? I'm confused a little..... ;)


    The 2007 terms and condtions do not have my signature on, and don't seem to be of any direct relevance to my account.

    Only the 2001 credit card application form has my signature on. Cahoot haven't supplied me with a copy of the relevant terms and conditions applicable when my account was opened in 2001.
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