Unenforceability & Template Letters III

Slickfm wrote: »

I have a quick question please, at what point in time do all the outstanding balances drop off a credit file? Is it when they go Statute Barred (6yrs debt free:j)?

Dear Lloyds TSB,

Account No: XXXXXXXX

I write with reference to your letter dated xx/xx/xxxx, the content of which has been noted and my response is set out below, for your perusal.

You start by saying that because you'd sent a copy of the "reconstituted agreement", a copy of the current terms and a signed statement of account that you have satisfied your obligations under s.78 (CCA1974) - unfortunately you are incorrect in your assessment of what does conform compliance to s.78. It is not my position to relate the actual criteria to you but suffice to say your statement in this letter will benefit me, more than you, in a court of law. For instance, you state that a copy of the current terms will suffice; however if I refer you to the recent case of Carey v HSBC (and others) you'll clearly see that this is incorrect as Judge Waksman made direct reference to this in his judgment by stating that "If an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still supply a copy of the original terms, as well as the varied terms".

Whilst, as a result of the Carey v HSBC "Test Case", I am inclined to accept your theory that you do not need to send a copy of the original agreement, I would argue that failure to provide such form would suggest you do not have it ergo you may not be able to add all the elements as originally suggested, encompassing the prescribed terms and other preliminary issues. Which would therefore make the account unenforceable. I refer you to the following statement made by Judge Waksman at the same hearing:

"it is necessary to assume that the agreement has not been varied under s.82(1) - as it may not have been if the s.78 request was made not long after the agreement was made"

This, in simple terms, means that the Test Case was not a traditional Test Case as he refused to deal with the wider implications of unenforceability, whilst sticking to the specific cases at hand, at court that particular day. In essence, the Carey v HSBC case all boiled down to 6 Preliminary Issues which included provision for the specified case in that there were 5 Assumed Facts, and that the agreement had not been varied. None of these assumed facts are relevant in my case and therefore the judgment should be disregarded in its entirety. I will revert back to standard layman in following the usual provision which is, to clarify:

127(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).

You then go on to say that as you've satisfied your s.78 request, the agreement I have with you is fully enforceable and you will continue to treat it as such. I'm sorry to advise that this is also incorrect, unless you became a Judge overnight and can make such decisions? For the avoidance of doubt, such matters must be heard in court to determine unenforceability and without the correct paperwork, this account will become unenforceable in line with s.127 of the CCA.

I am not using the services of a CMC, thanks for your concern, as you know full well I am using the services of an internet website which is adequate for the time being. I refer you to recent judgments and provision within the CCA, for clarity and further guidance.

You mention that failure to make payments to the account will result in collection activities, that is fine, in line with the recent McGuffick v RBS case - however please ensure you do not breach OFT Guidelines or CCA guidelines as this may result in action being taken against you for your harassment, as you know there is a fine line between collection activities and harassment and I trust you will stick to the former?

I really do not feel there is anything left to add, so please be my guest and report the account conduct to the CRA's, maintain collection activities and request that I repay you but bear in mind the recent Carey v HSBC case has no direct effect on my case and any attempt to utilise the findings of this case will be averred as unlawful and vexatious with a counter-claim forthcoming.

Yours faithfully




Sign digitally

fedupwiththeworry wrote: »

BOS have now sent the original signed application form plus (in their words) a copy of my reconstituted current terms and conditions, do you want to take a look ?, it's all scanned and ready to send.

fedupwiththeworry wrote: »

The DCA for Cahoot CCard have said they have requested the details from the lender and will cease chasing in the meantime, so sitting tight on that one.

fedupwiththeworry wrote: »

Finally the DCA for the GE Money/ASDA CCard have sent their normal monthly statement which has a "cash payment" of £1.00 taken off the o/s amount. It was dated the day they received the postal order (checked via track and trace). What do I do about that please ?