Unenforceability & Template Letters III

Dear Sirs,

Account No: XXXXXXXX

I write with reference to previous correspondence, and in particular to the above numbered account which, for ease and clarity, I hereby deem unenforceable in line with s.127(3) CCA(1974) and this letter is my final response on the matter.

In my original letter (Formal CCA Request), dated XX/XX/XXXX, I requested a copy of the credit agreement to which I genuinely expected to receive an exact copy of that which you hold in your records i.e. an actual photocopy of the agreement which is allegedly signed by myself and your representative.

You then felt it pertinent to send me a copy of some random terms & conditions which really does not satisfy s.78 requirements. Moving to your most recent letter, dated XX/XX/2010 - I note you spend quite a lot of time waffling on about s.78 which we both know is nonsense. I am requesting sight of the original document, it is not a lot to ask and we both know that if you wish to attempt to take this matter further, then you will have to provide me a copy of the original; most definitely no court action can be taken unless you do have an original in which case CPR31.16 would be utilised.

It is pointless trying to argue the necessities of law with me; you cannot take any formal action without an original agreement and I have put you to task to show me a copy of the alleged original agreement to prove liability, for the alleged account.

You then, rather amazingly, come out with, I quote;

Regulation 7 does not state that the copy of the agreement shall include a statement of the original terms as well as a statement of the varied terms. Regulation 7 allows us to provide you with a "true copy" which sets out the terms and conditions current at the time of provision of the copy.

Need I remind you that part of s.78 clearly states that you shall send a copy of the most recent terms and conditions along with the exact terms and conditions in place at the time of the alleged agreement. Section 78 also supercedes Regs (7) and should be adhered to in all cases first and foremost.

Whilst I appreciate that under the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 you are able to omit a signature and date box from the copy, however I would like to hold in my records an exact copy of the document that you hold. I do not want a piece of paper that alludes to there being an agreement; I would like a photocopy of the actual agreement.

I do not think it is a lot to ask for you to simply go and fetch the original agreement, photocopy it and pop it in an envelope to me. The only reason that I can presume avoidance of such a simple process is if you never actually had a copy of the original agreement in which case may I remind you that OFT Guidance clearly states that lenders would be acting unfairly, and potentially in breach of their consumer credit licenses, if they misled borrowers by:

• hiding or disguising the fact that there was never a proper signed agreement in the first place
• providing only a copy of the current terms and conditions, not the original ones

In order to be able to adjudge my position effectively I would require a copy of the actual agreement that apparently exists and I therefore appeal to you to fulfil my request. I am willing to pay any reasonable charge that you feel is necessary, in order to provide a copy of the “actual” credit agreement. In considering my request, I ask that you take a common sense approach and do not hold to the line that you have provided all that is expected of you nor the recent test case in Manchester, namely, and to be known as: Carey v HSBC Bank Plc [2009] EWHC 3417 (QB) (23 December 2009).

I make my request in good faith and I feel it is a nonsense approach to hold to the idea that you won’t provide this document because you simply don’t have to. I feel that would take advantage of your position and such an approach from your business not be in the best interests of a healthy business/client relationship. In light of the above, I consider this account to be unenforceable until such time you properly comply with my original s.78 request and send a photocopy of the original purported document, if it exists. If it does not, then you must confirm this to me in line with your licensing guidance, as detailed above.

For clarification, the document you sent, purporting to be a credit agreement, does not contain all of the prescribed terms as required by section 60(1) Consumer Credit Act 1974. The Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) made under the authority of the “1974 Act” sets out what the prescribed terms are, I refer you to Schedule 6 Column 2 of SI 1983/1553 for the definition of what is required. Suffice to say, all of the required terms are not present in this document. Since this document does not contain the required prescribed terms it is rendered unenforceable by s127 (3) consumer Credit Act 1974, which states:

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).

This situation is backed by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the Consumer Credit Act 1974 the agreement cannot be enforced.

In addition should you continue to pursue me for this debt you will be in breach of OFT guidelines. These guidelines (issued July 2003 & updated December 2006) relate to debt collections and what the OFT considers unfair, I have enclosed an excerpt from page 5 of the guidance which states;

2.6 Examples of unfair practices are as follows:
h. Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment

As this account is clearly unenforceable, I expect you to write back and confirm that no further action will be taken and that the account is now closed and no further correspondence will take place; irrespective, unless you do supply a copy of the original agreement I will not correspond with you again and any threats will be averred and unlawful and vexatious with a counter-claim forthcoming.

Yours faithfully

Sign digitally

jinny wrote: »

hi Nid just let you know those cheeky beggers Lowells rang me at work again:mad: ( think the one for £413) i couldnt go through the security as I was in a full office and a meeting was going on in the corner so I was the only one talking on the phone! i did issue them last time after going through security with that statement but the muppet if you remember wouldnt let me read it out and hung up on me. Do i send the letter you gave me last time. Im past caring them ringing me at work now as I think everyone knows my business by now, but even Lowells must know this is not right. You have loads to do with helping other peeps and on another thread so there is no hurry for answer. Dont want to fry your brain.