Unenforceability & Template Letters III

never-in-doubt · 18 May 2010 at 1:18AM

This is the template you would send to the lender/dca that insist the account is enforceable even after you've both sent your respective Final Response letter.

In theory you're telling them to get lost until they send an original copy, if they never do then there is nothing they can do!

Refusal by Lender/DCA to accept Unenforceability

Dear Sirs,

Account No: XXXXXXXX

I write with reference to your letter dated xx/xx/xxxx whereby you continually argue that you deem the above numbered account as enforceable.

I have previously explained to you, my position, which happens to coincide with current legislation, namely s.127(3) of the Consumer Credit Act 1974 which, for ease and clarity, is quoted below;
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).
As is clear from the above, without the original signed agreement encompassing the prescribed terms, this account is lawfully deemed unenforceable and no formal action can be taken so long as this remains the case. Please do not waste my, or your time by fighting this lost cause any longer. Unless you can satisfy my s.78 request in full by providing me a copy of the alleged original "compliant" agreement, then I have nothing left to say to you.

As the 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. Any threats will be averred and unlawful and vexatious with a counter-claim forthcoming.

Yours faithfully

Sign digitally

never-in-doubt · 18 May 2010 at 1:26AM

This is the template you would send to a lender/DCA that is ringing you at your place of work. Although rare, it does happen and is forbidden in most cases.

Harassment by Telephone at Work

Dear Sirs,

Account No: XXXXXXXX

I refer to previous correspondence regarding the above numbered account, and your lack of diligence in dealing with my formal demands to cease calling me at my place of work.

This is now my final warning to you, I have sent you several letters to date - telling you this alleged account is unenforceable until you can provide me an original photocopy of the alleged signed agreement. To date you have failed to comply with my statutory request and have defaulted in respect of this account. Additionally this alleged agreement is in dispute and will remain so until such time as you come out of default or it is enforced by a court of law. It is a further offence to attempt to enforce this alleged agreement until such time as your default is revoked.

Therefore the fact you are continually calling me at my place of work proves you have no respect for legislation set out by the Office of Fair Trading (OFT) which clearly states that you cannot cause me embarassment, harass me or pursue a disputed debt. Which area of your own Debt Collection Policies do you not understand, and I will spell it out for you?

I demand that these calls cease effective immediately, any further breaches will result in my seeking a judgement order against you as well as claiming compensation and all costs for my breakdown and possible loss of occupation as a result of your intimidating and harassing calls, at my place of employment.

I await your prompt response.

Yours faithfully

Sign digitally

Pugface_2 · 18 May 2010 at 1:34AM

Hi NID, and everyone,

Just an update on what's going on with my 4 cards....

Bclaycard (2 cards): Nothing. Haven't heard anything from them since 18th March when I sent them my final response letter.

Abbey/MBNA: After sending the account sold letter to Optima on the 7th May I've just received a letter from Optima saying that my issues have been noted and passed on to MBNA, who'll be sending me a response in due course.

Cap1/capQuest: After sending the account sold letter to capquest on the 5th May I received a letter back from them saying that they were unable to comment on the issues raised as they were unaware of the existing query, and that they have closed the account on their system.

Today I received a letter from cap1 advising me that my account was no longer being managed by the DCA and had been returned to cap1. Also that I had to make payments to them.

Any advice on what I should do about the cap1 letters would be greatly appreciated.

Also, should I be doing anything about Bclaycard as they haven't got back to me to confirm or deny that they've got a legitimate CCA?

Thanks in advance,

Paul.

never-in-doubt · 18 May 2010 at 1:38AM

The lender/DCA may well try their luck and threaten you with a Charging Order or similar, if they do don't panic - remember the provisions of s.127 do not allow any formal action whilst the lender is in default of your CCA Request. Obviously this template is only relevant to unenforceable agreements.

Threat of Charging Order

Dear Sirs,

Account No: XXXXXXXX

I write with reference to previous correspondence, regards to the above numbered account and in particular your most recent letter dated XX/XX/XXXX in which you try and scare me by threatening a Charging Order.

I hereby formally remind you that any such action will be averred as both unlawful and vexatious being you have no legal entity in which to carry out your threat. Any such action will result in my counter-claiming for damages and all costs relating to your offence.

The provisions of s.127(3), are shown below:

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). 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
I require you to produce a compliant copy of the credit agreement to confirm I am liable to you or any organisation, which you represent for this alleged debt. If you cannot do so I require written clarification that this is the case. Should you ignore this request I will report you to the Office of Fair Trading to consider your suitability to hold a credit licence in addition to a complaint to the relevant governing authorities.

It would be in everyone’s interest to consider the matter closed. I suggest you give serious consideration to this as any attempt of litigation will be vigorously defended and I will counter claim for all quantifiable damages.

I respectfully request a response to this letter in 14 days.

Yours faithfully

Sign digitally

never-in-doubt · 18 May 2010 at 1:44AM

pepe2008 wrote: »

Hi NiD,

Just a quick confirmation needed! Several reqs to NWB for CCA, these were met with letters stating that 'we are unable to confirm your ID s please visit a Branch with Passport etc'.

Sent them a letter pointing out, basically, that that is their problem. Now sent them he CCA Req Default and they have come back with
'We are unale to comply with your request under te Terms of the CCA 1974. Plaese go to a Branch etcetc'

I take it that the situation remains that if they cannot ID, then they cannot do anything?

Hiya Pepe - so sorry, I missed this post! Its like a week old (:o

)

You should have nudged me!

You do not send ID, simply send the following back to them: Demand of your Signature

never-in-doubt · 18 May 2010 at 1:52AM

Pugface wrote: »

Bclaycard (2 cards): Nothing. Haven't heard anything from them since 18th March when I sent them my final response letter.

Great - just leave it, they are in default of your s.78 request and the accounts are unenforceable until such time they respond.

Pugface wrote: »

Abbey/MBNA: After sending the account sold letter to Optima on the 7th May I've just received a letter from Optima saying that my issues have been noted and passed on to MBNA, who'll be sending me a response in due course.

Yep - that is what should happen, sit and wait. As above, they are in default until they respond.

Pugface wrote: »

Cap1/capQuest: After sending the account sold letter to capquest on the 5th May I received a letter back from them saying that they were unable to comment on the issues raised as they were unaware of the existing query, and that they have closed the account on their system.

As above, sit and wait until they respond.

Pugface wrote: »

Today I received a letter from cap1 advising me that my account was no longer being managed by the DCA and had been returned to cap1. Also that I had to make payments to them.

First part is fair enough, the DCA acted correctly - however you do not make any payments. Ooooh noooo

Pugface wrote: »

Any advice on what I should do about the cap1 letters would be greatly appreciated.

Toilet paper? cat litter tray? :rotfl: :rotfl:

They do not need a response.

Pugface wrote: »

Also, should I be doing anything about Bclaycard as they haven't got back to me to confirm or deny that they've got a legitimate CCA?

Nope, ignore them as quoted above ^^^^

Let me know if and when you get responses

Pugface_2 · 18 May 2010 at 1:56AM

Hi NID,

Thanks for that - really appreciate it.

Cheers,

Paul.

p.s. Get some sleep!!!

never-in-doubt · 18 May 2010 at 2:14AM

If for any reason you are sent a threat-o-gram, on an unenforceable account such as a lender or DCA threatening legal action through the courts (i.e. CCJ) then you'd send the following off to the DCA or legal firm that has since purchased the debt.

Threat-o-Gram Letter before Action

Dear Sirs,

Account No: XXXXXXXX

I write with reference to the above numbered account.

I note with regret that you have chosen not to deal with this matter despite my previous communication endeavouring to assist you in coming to a satisfactory arrangement to close this account without the need for legal action. Do you need me to point out that this account is formally in dispute with DCA NAME HERE and has been since they, and ORIGINAL CREDITOR NAME HERE (Original Creditor) failed to acknowledge my Consumer Credit Agreement (CCA) Request, in line with s.77-s.79 of the Consumer Credit Act 1974 (CCA1974).

As you are no doubt aware, your continual harassment not only breaches the Consumer Credit Act (1974), but also the Data Protection Act (1998), the Consumer Protection From Unfair Trading Regulations (2008) and the Office Of Fair Trading's Debt Collection Guidelines. Being that the Original Creditor is now in default of my CCA Request and OFT Debt Collection Guidelines, I consider this account to be in serious dispute, especially due to the fact that whilst my CCA Request remains in default (outstanding), enforcement action is not permitted in line with s.127(3) of the CCA1974.

Need I remind you of the law? In particular the remit of s.127 and s.65 of the CCA1974? Section 127(1) of the Consumer Credit Act (CCA 1974) is subject to the restrictions imposed by sections 127(3) & (4). Those subsections set out the circumstances in which the court shall not make an enforcement order under section 65(1) of the Act. Put simply, a court cannot make a judgement on an unenforceable debt without the original agreement, ergo we're back at square one - all I ask is for you to provide me the original agreement instead of fobbing me off with excuses all the time. You will soon find out that all judges will listen to my argument when I quote the relevant acts of the CCA to them.

Consequently, any legal action you pursue will not only be fully and vigorously defended, it will also be averred as both unlawful and vexatious. As such I respectfully suggest that this account is returned to the original creditor for immediate resolution prior to my seeking legal advice against you; due to the fact you cannot lawfully pursue any enforcement activities as the account was already in dispute at the time you became involved.

If you decide to ignore my dispute and attempt enforcement, I will initiate legal action and file reports with the appropriate authorities including, but not limited to, Trading Standards, Office of Fair Trading, Information Commissioners Office, Financial Ombudsman Service and possible court action.

I hope that this will not be necessary and an acceptable solution can be accomplished. I would appreciate your due diligence in this matter and look forward to hearing from you in due course.

Yours faithfully

Sign digitally

never-in-doubt · 18 May 2010 at 2:40AM

If the lender/DCA messes up and adds two defaults for the same debt, they both have to be removed as you can only have one default per lifecycle of debt. This means that for each debt (by account number) there can only ever be one default registered, so the lender/DCA must get it right first time round, or they lose their right to register one against you - period.

You also need to send a letter to the CRA's - you'd send this: Default Removal Letter to CRA's at the same time as the letter below, with a copy of each attached so the DCA would get the letter below and a copy of the template to the CRA, and vice versa..

Duplicate Default Registered with the CRA's

Dear Sirs,

Formal Breach of s.87 & s.88 CCA 1974 & DPA 1998

Account Number: XXXXXXXX

I have tried, unsuccessfully to get someone at your company to resolve the fact you have acted unlawfully by allowing a duplicate default entry be registered against me. As we both know, this is strictly forbidden and as a result of your clear lack of legal respect, you have now left me no alternative but to seek enforcement against you, for removal of both incorrect default notices.

I am not prepared to spend any longer arguing this fact with you; the entries are clearly unlawful, I have proof of their current status and you now have one option available prior to my seeking enforcement against you, which is to simply remove the entries in their entirety.

The attached letter, sent to Experian & Equifax gives the full reasoning and legal backing of my claim. I expect you to act honourably and lawfully, as each mistake now will be closely scrutinised and used against you in any litigation I may take.

I look forward to your response, within the next 21 days.

Yours faithfully

Sign digitally

never-in-doubt · 18 May 2010 at 2:47AM

On occasion you will need to check your credit files, in order to obtain a hard paper copy simply follow the details below or read here: Credit Reference Agencies.

Obtaining your Credit File(s)

How to obtain your credit file:
You have the right to write to any of the credit reference agencies and ask for a copy of your credit reference file, which will cost you £2.

Your letter should include:
your full name -also any other names you have been known by e.g. your maiden name;

your full address including postcode;

any addresses where you have lived over the past six years;

your date of birth; and

a cheque or postal order for £2 made payable to the credit reference agency.

You should keep a copy of your letter and you may want to send it by recorded delivery. The credit reference agency has 7 working days to send you your file after receiving your letter and fee. Sometimes the credit reference agencies need more information from you before they can send you your file. For example, they may need proof of your name and address from a utility bill or bank statement. This is important to make sure that no one else gets your file by mistake or to check that no one else has fraudulently applied for your credit reference file. The agencies do not have to send you your file until they get this information.

The addresses of the credit reference agencies are:

Equifax Plc
Credit File Advice Centre
PO Box 1140
Bradford
BD1 5US

www.equifax.co.uk

Call Credit Plc
Consumer Services Team
PO Box 491
Leeds
LS3 1WZ

0870 060 1414
www.callcredit.co.uk

Experian Ltd
Customer Support Centre
PO Box 8000
Nottingham
NG80 7WF

0844 481 8000
www.experian.co.uk

Unenforceability & Template Letters III

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