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Unenforceability & Template Letters II

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  • gems3286
    gems3286 Posts: 93 Forumite
    Hi All,

    Needing some more help i'm affaird.

    I have had one of my cca's come back saying.

    Dear blah blah

    we write further to you letter dated XXXX the contents of which we note. we apologise for the delay in our response.

    Pursauant to your request we encolse a copy of
    (i) the executed loan agreement ("the agreement") including the terms and conditions

    Please note in relation to (i) above that we have been unable to loacte a copy of the origianl agreement amongts our records and we are accordingly enclosing in its place (in compliance with regulation 3 of the consumer credit (cancellation notices and copies of documents) regulations 1983) a copy of the terms of the executed agreement.


    Then all there is is a peice of paper printed with all the dates that i have made payments and a box that says signed for on behalf of XXX then a signuture of someone at the company.

    I'm just wondering what to do now?

    Any help would be great.

    Gem
  • never-in-doubt
    never-in-doubt Posts: 20,613 Forumite
    chinawhite wrote: »
    Hi NID

    another quick query re my MBNA cca, a friend has just had a look at the copies sent and remarked that the T&C's could be from 1994 as under credit limit and charges it states there will be an annual fee of £35 for Gold card and £10 for any other card and this was apparantly what MBNA did around that time - does that sound right ?? I dont remember anything about a fee but we are going back a Long Long way here

    thanks
    CW

    Hiya

    In 1994 the late payment charge was nearer £30 - so going on the terms I read, this is a cut/paste job but still it is irrelevant as the document is unenforceable so send the letter, as directed here: #2334

    To conform to s.78 they should send the agreement and terms at the time you took the facility PLUS the most recent relevant terms. I suspect they have merged some of the terms together to give the impression it complies, however the terms are not the issue - the lack of signature on the same page as the prescribed terms is what makes this unenforceable.

    make sense? :D:D
    :o 2010 - year of the troll :o

    Niddy - Over & Out :wave:
  • never-in-doubt
    never-in-doubt Posts: 20,613 Forumite
    gems3286 wrote: »
    Hi All,

    Needing some more help i'm affaird.

    I have had one of my cca's come back saying.

    Dear blah blah

    we write further to you letter dated XXXX the contents of which we note. we apologise for the delay in our response.

    Pursauant to your request we encolse a copy of
    (i) the executed loan agreement ("the agreement") including the terms and conditions

    Please note in relation to (i) above that we have been unable to loacte a copy of the origianl agreement amongts our records and we are accordingly enclosing in its place (in compliance with regulation 3 of the consumer credit (cancellation notices and copies of documents) regulations 1983) a copy of the terms of the executed agreement.


    Then all there is is a peice of paper printed with all the dates that i have made payments and a box that says signed for on behalf of XXX then a signuture of someone at the company.

    I'm just wondering what to do now?

    Any help would be great.

    Gem


    They do not have it - brilliant!! = unenforceable :T :T :T

    Basically, send this back to them: 4. CCA Dispute

    Then you ignore them - well done :p:p:p
    :o 2010 - year of the troll :o

    Niddy - Over & Out :wave:
  • vickie_xx
    vickie_xx Posts: 5 Forumite
    Hello, newbie here :)

    My husband has rec'd a letter from a DCA for a mobile phone contract. The debt is from 2004, the DCA bought the debt in 2007 and this is the first we have heard of it. He is adamant that the debt does NOT belong to him, altho these letters have now made him doubt himself.

    He asked for proof that the debt was indeed his, and what was sent was an account printoff, with the original mobile phone company logo...copied and pasted and his christian name. There was an account reference, invoice nos, dates and amounts, then a payment ...last made in 08/2004.

    The final balance on this account is for approx £296 but the DCA claims he owes £478?


    We called the original phone comapny who did not have a record of this partcular contract, having told DCA this, they said because the debt was sold to them , the mobile company would not have any records of the debt anymore.

    He called back the DCA who said they only need to send this account printoff as proof that he owes the money??

    Is this correct? It has details of credit limit and thats about it?

    I've had legal advice, send them a letter asking for proof of terms and conditions and a copy of the agreement, do NOT accept liability for the debt as it is alledged. And does the 6yr statute thing come in to play in March when the dates on the statement began or Aug as this was 6 years from when a final payment was made?

    which letter do I send first, and what are they legally required to proove, they have said that in a court of law this account print off would be sufficient to proove the debt belongs to him???

    Sorry for all the questions, I kind of know what I have to do, but am a little uncertain of what rder and what the DCA can legally do

    Many thanks in advance!

    vickie xx
  • chinawhite_2
    chinawhite_2 Posts: 108 Forumite
    never-in-doubt wrote: »
    Hiya

    In 1994 the late payment charge was nearer £30 - so going on the terms I read, this is a cut/paste job but still it is irrelevant as the document is unenforceable so send the letter, as directed here: #2334

    To conform to s.78 they should send the agreement and terms at the time you took the facility PLUS the most recent relevant terms. I suspect they have merged some of the terms together to give the impression it complies, however the terms are not the issue - the lack of signature on the same page as the prescribed terms is what makes this unenforceable.

    make sense? :D:D


    Hi Yes makes sense, but she also picked up on the fact (which I had missed !) that on the first page where i have signed underneath it says "I accept and agree to be bound by the MBNA visa card conditions of use(as set out on the reverse of this agreement and as amended from time to time), does this overide the fact that signature is on the front and T&C are on the back ???:cool:
  • never-in-doubt
    never-in-doubt Posts: 20,613 Forumite
    chinawhite wrote: »
    Hi Yes makes sense, but she also picked up on the fact (which I had missed !) that on the first page where i have signed underneath it says "I accept and agree to be bound by the MBNA visa card conditions of use(as set out on the reverse of this agreement and as amended from time to time), does this overide the fact that signature is on the front and T&C are on the back ???:cool:


    Sorry, where does it say that? I never seen it - that is the link I was referring to. So can you clarify exactly :

    1. Is this a copy of the original or is it a reconstituted copy?

    2. Is it your signature?

    3. Are the name / address printed on the form?

    4. has the creditor signed the form?

    5. Is there a part on there that links to separate terms, as you just told me above!

    6. Is the document you have a double sided copy or an actual photocopy on 2 sheets? This is imperative?

    Going on from point 5 - if this is the case it could be enforceable but then i'd rely on point 4 if point 5 fails :D:D
    :o 2010 - year of the troll :o

    Niddy - Over & Out :wave:
  • sagat
    sagat Posts: 27 Forumite
    Ive got 2 accounts which are down as defaults. One with MBNA, one with Barclays. I have had various DCA letters about both accounts, with vague promises of sorting statements and the like.

    Should I go for a CCA request, or the Default letters on the first page?

    thanks in advance.
  • never-in-doubt
    never-in-doubt Posts: 20,613 Forumite
    vickie_xx wrote: »
    Hello, newbie here :)

    Hello and welcome :T :T :T
    vickie_xx wrote: »
    My husband has rec'd a letter from a DCA for a mobile phone contract. The debt is from 2004,

    Ok, almost statute barred anyway.... don't worry about this right now though.
    vickie_xx wrote: »
    The final balance on this account is for approx £296 but the DCA claims he owes £478?

    The DCA may have added charges - these are not payable, only the original amount would ever become due if push came to shove.
    vickie_xx wrote: »
    We called the original phone comapny who did not have a record of this partcular contract, having told DCA this, they said because the debt was sold to them , the mobile company would not have any records of the debt anymore.

    Wrong! You now need to tell me

    1. Who is the mobile company?
    2. Who is the DCA?

    I won't go on too much about this right now, but don't worry - they are talking !!!!!!!
    vickie_xx wrote: »
    He called back the DCA who said they only need to send this account printoff as proof that he owes the money??

    :rotfl::rotfl::rotfl::rotfl::rotfl:
    vickie_xx wrote: »
    Is this correct? It has details of credit limit and thats about it?

    My laughing smiley says it all - this is a joke and i'll sort them out for you, hold fire......
    vickie_xx wrote: »
    I've had legal advice, send them a letter asking for proof of terms and conditions and a copy of the agreement, do NOT accept liability for the debt as it is alledged.

    Have they responded to you? The DCA I mean? Can you actually scan their letter and let me read it then i'll compose you a reply to them ripping them a new "A" Hole :eek:
    vickie_xx wrote: »
    And does the 6yr statute thing come in to play in March when the dates on the statement began or Aug as this was 6 years from when a final payment was made?

    6 years from date last payment received so one month + 6 years after you last paid the bill.
    vickie_xx wrote: »
    which letter do I send first, and what are they legally required to proove, they have said that in a court of law this account print off would be sufficient to proove the debt belongs to him???

    Send nothing yet, i'll sort you a letter to send within the next 3 days.... just be patient (i'll message you on here with a link to it)
    vickie_xx wrote: »
    Sorry for all the questions, I kind of know what I have to do, but am a little uncertain of what rder and what the DCA can legally do

    All you need to do is send 3 letters; one to the DCA, one to the lender and one to the CRA's. I assume he has seen his credit file, is there a default registered? If so please confirm the date of default and who added it.
    vickie_xx wrote: »
    Many thanks in advance!

    vickie xx

    Please post back with answers and a copy of the letter (or type the main bits out for me) - then i'll sort you the letters to send off which will end this once and for all.

    Final question, you need to be 100% upfront here - did he have the contract? Have you asked the mobile company what bank account paid the DD and then for the bank details they hold on record? This is what i'd be doing, but not now - will come back to this later depends what your reply states.....

    Cheers - main point here, do not worry ok? :D:D
    :o 2010 - year of the troll :o

    Niddy - Over & Out :wave:
  • chinawhite_2
    chinawhite_2 Posts: 108 Forumite
    never-in-doubt wrote: »
    Sorry, where does it say that? I never seen it - that is the link I was referring to. So can you clarify exactly :

    1. Is this a copy of the original or is it a reconstituted copy?
    the first sheet is definitely a copy of the original application form as previously described
    2. Is it your signature?
    Yes
    3. Are the name / address printed on the form?
    Yes
    4. has the creditor signed the form?
    There is what look like a rubber stamp of something cant tell if its a sinature but doesnt look like it, and the wording that i cant read properly but looks like "
    (cant read thatword but its not the word signed) on behalf of MBNA" this is stamped over box 11 principal cardholders app and declaration.
    5. Is there a part on there that links to separate terms, as you just told me above!
    yes, as stated above
    6. Is the document you have a double sided copy or an actual photocopy on 2 sheets? This is imperative?

    Its Not a double sided copy but it is an actual photocopy on 2 sheets

    Going on from point 5 - if this is the case it could be enforceable but then i'd rely on point 4 if point 5 fails :D:D

    You have the patience of a saint :A thanks for the continued help :D
  • never-in-doubt
    never-in-doubt Posts: 20,613 Forumite
    sagat wrote: »
    Ive got 2 accounts which are down as defaults. One with MBNA, one with Barclays. I have had various DCA letters about both accounts, with vague promises of sorting statements and the like.

    Should I go for a CCA request, or the Default letters on the first page?

    thanks in advance.

    When did you take the accounts (what date roughly) and what is the balances owing?

    Cheers - usually you start at point 1 - i.e. CCA Request :p:p
    :o 2010 - year of the troll :o

    Niddy - Over & Out :wave:
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