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There are still lots of questions going around the forum regards to unenforceability and whether 'you can get your debt wiped' (or words to that effect). The bottom line is that if you have a credit product, from before April 2007, and the company or DCA has already defaulted you then it does no harm whatsoever to apply for your CCA (Consumer Credit Agreement) to check whether it is lawful.
The lack of information, lack of signature or even blatant oversight on the part of banks might give you the opportunity to claim your debt agreement is deemed unenforceable.
The Consumer Credit Act 1974 (CCA1974) set terms for financial agreements and products such as credit cards, loans, hire purchases, mortgages and other forms of borrowing. These regulations included important items that made the agreement legal and sound. Yet despite these laws, many banks did not include all important parts of the loan in the paperwork.
If your loan or credit was offered or agreed to with a faulty contract or disclosure, the bank may not be able to enforce the agreement. The process itself is really simple to follow, dependant on the following state of progress you fit into from those shown below.
Simply click on the relevant link below to be taken to that template letter.
1. CCA Request
This is the starting point where you formally request the CCA.
2. CCA Reminder
This is the letter you send after the CCA Request timeline has expired (14 days). You should also cease payments at this stage.
3. CCA Query
This is the letter you send if they send you an application form or omit the prescribed terms.
4. CCA Dispute
This is the letter you send if the CCA has not arrived, usually 30 days after the CCA Reminder letter was sent.
5. Prescribed Terms
These are what you check the CCA against (assuming the lender sends you a copy)
6. Request for Poof of Default
You send this letter if the DCA/OC has issued a default against you, and you never received a copy of the default notice.
7. Request copy of Default Notice - Formal Demand
You send this letter if the lender/DCA replies confirming they cannot find the default notice or that they do not have to issue you a copy as there is no debt.
9.Default Removal Letter to CRA's
This letter would be sent if you have had a default registered and the lender confirms that they cannot locate the CCA and so will not pursue the debt.
10. Demand of your Signature
If a lender does write back asking you to sign and you don't want to, then send this letter to them.
11.Account sold whilst in Default of CCA Request
The following letter would be sent when your account has been sold to another DCA/Solicitor when the original creditor/lender failed to acknowledge your CCA Request.
12. SAR Request
Subject Access Request - remember to enclose £10 with your request.
15. Various CCA Query Letter 'Variations'
Variations of CCA Queries, i.e.
- CCA Dispute - Illegible Copy Document Supplied;
- CCA Dispute - Terms & Conditions Supplied;
| Official SOS Member 002 - Dry until 31.01.2010 |
Send the letter below (CCA Request) with a £1.00 cheque or Postal Order to whoever owns the account (either the DCA or the OC); send it recorded delivery and await 14 days which is the length of time they have from the date you sent it;
Request for a copy of the Original Credit Agreement
(Consumer Credit Act 1974)
Quote:
Dear Sirs,
Account No: XXXXXXXX
I hereby formally request a copy of my Consumer Credit Agreement, pursuant to s.77/78 of the Consumer Credit Act 1974.
I require you to provide me with a true copy of the credit agreement relating to any account you deem to be mine, together with any other documentation the Act requires you to provide. I expect you to comply fully and properly with this request, within the statutory time limit (12 + 2 days). You are reminded that should you fail to comply with my request; the provisions of s.77 will apply.
If it is your view that you are not the creditor, s.175 of the CCA 1974 applies in the case of a simple assignment, and places a duty upon you to pass this request to the creditor. In the case of an absolute assignment, you are a creditor as defined by s.189. If you contend that you purchased the rights but not the duties of any agreement, you are reminded that s.189 of the Act is clear that an assignment is of both rights and duties. Your attention is drawn to ss.5(2), 3(b),6 and 7 of the Consumer Protection from Unfair Trading Regulations 2008 (CPUTR).
Attached is payment in the sum of £1.00, which is the statutory fee - Note that these funds are not to be used for any other purpose.
If you are unable to comply fully and properly with this request, you should confirm this in writing at the earliest opportunity, and certainly within the statutory time limit for compliance, and return the fee and then remove the incorrect entry from your systems.
I do, expect the main actions to be dealt with, as matter of course, and look forward to hearing from you within the prescribed timescales quoted.
Yours faithfully
Sign digitally
| Official SOS Member 002 - Dry until 31.01.2010 |
If they do not respond to the CCA Request (after the initial 14 days), then you send the following reminder letter allowing an additional 30 days. Note - it is at this point you cease repayments - you have to do this to get their attention. If you have not been defaulted already then think twice before proceeding as this may have an impact in your credit rating;
Reminder to CCA Request
Quote:
Dear Sirs,
Account No: XXXXXXXX
I refer to my letter dated XX/XX/XXXX in which I made a formal request under the Consumer Credit Act 1974 (CCA1974) s.77-79 for true copies of the regulated agreement refered to in the above account number. You are reminded that you are obliged to supply these under s.189 whether you are the original creditor or not. I also enclosed the statutory fee of £1.00 for this account.
To date you have failed to comply with my statutory request and have defaulted in respect of this account. Additionally this alleged agreement is unenforceable until such time as you come out of default or 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.
Consequently I am ceasing all payments to your company until such time as this matter is resolved. It is also my intention to report this matter to the appropriate enforcement authorities.
I await your prompt response.
Yours faithfully
Sign digitally
| Official SOS Member 002 - Dry until 31.01.2010 |
If they do respond to the CCA Request but send incorrect information, such as an application form or a CCA but the prescribed terms are not intact, then you should send the following query letter - this allows a further 14 days in which to respond. You can if you prefer (especially if they send you an application form) miss this and go straight to step 4 and send the Dispute/S.10 letter....
CCA Request Query
Quote:
Dear Sirs,
Account No: XXXXXXXX
On xx/xx/xxxx I wrote requesting that you supply me a true copy of the executed credit agreement for the above numbered account. In response to this request I was supplied the document, a copy of which is attached, which did not comply with the requirements of the Consumer Credit Act 1974 (CCA1974).
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
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.
Since the agreement is unenforceable, it would be in everyone’s interest to consider the matter closed and for you to write the debt off. 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
| Official SOS Member 002 - Dry until 31.01.2010 |
Lets assume that they still have not responded to your CCA request after sending the CCA Reminder; you'd then look to formally place the account into dispute and raise s.10 (DPA1998) Cease & Desist (processing data). You should also use this template if the lender/DCA has sent you an application form or some other dodgy form that does not look like an agreement;
CCA Dispute / Section 10 Request
Quote:
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 **DATE** I made a formal request for a true signed agreement for the alleged account under the Consumer Credit Act 1974 (s.77/s.78). A copy of which is enclosed for your perusal and ease of reference.
You have failed to comply with my request, and as such the account entered default on **DATE**. (date = 12+2 days after you sent the CCA request - delete this text)
The document that you are obliged to send me is 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
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 said 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.
Please note 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.
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.
Furthermore you should be aware 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
| Official SOS Member 002 - Dry until 31.01.2010 |
Lets assume that the lender does send you the CCA as per your CCA Request, you should now be checking the content against the Prescribed terms, as detailed below:
The Prescribed Terms
Quote:
A Amount of credit
A term stating the amount of credit
B Repayments
A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following-
(a) Number of repayments; (b) Amount of repayments; (c) Frequency and timing of repayments; (d) Dates of repayments; (e) The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable.
C Rate of interest
A term stating the rate of interest to be applied to the credit issued under the agreement
D Credit limit
This may be a term or the manner in which it will be determined or that there is no credit limit.
Which of these applies to you depends on the type of agreement you have?
Quote:
For a Running Account (credit card) agreement
BC and D is applicable
For a Restricted Use Debtor Creditor Supplier
Where the dealer is the supplier and the creditor is the one providing the finance.
The money can only be used for the purpose it is given.
There is no interest on the purchase (the cash price is the same as the total price)
And there is no advance payment
A is applicable
For a fixed Sum Credit Agreement
A conventional credit agreement with none of the above restrictions
A and B is applicable
For a Hire Agreement
B is Applicable
| Official SOS Member 002 - Dry until 31.01.2010 |
If the DCA/OC has issued a default against you, and you never received a copy of the default notice. Then you'd send the following letter:
Request for Proof of Default
Quote:
Dear Sirs,
Account No: XXXXXXXX
After recently obtaining a copy of my Credit File from the Credit Reference Agencies, I am concerned to note that your company has placed a "Default Notice" against an alleged account I held with you.
Further to this, I have no recollection of ever receiving such a notice, and I therefore require you to substantiate this data.
1. You must supply me with a true copy of the alleged agreement you refer to. This is my right under your obligation to supply a copy of the agreement under the legislation contained within s.78 (1) Consumer Credit Act 1974 (s.77 (1) for fixed sum credit. Your obligation also extends to providing a statement of account. I enclose a £1 cheque to cover the statutory fee.
2. Please also supply me with a signed, true certified copy of the original default notice.
You are notified that you are obliged to supply these documents, whether you are the original creditor or not under s.189 of the CCA(1974).
I would request that this data is provided to me within the next 14 days. If you are unable to provide this data then I require all adverse information to be removed completely, including any defaults that may have been applied. Please note that mere correction or amendment to the entry will not be acceptable.
Yours faithfully
Sign digitally
| Official SOS Member 002 - Dry until 31.01.2010 |
If the lender/DCA replies confirming they cannot find the default notice or that they do not have to issue you a copy as there is no debt, then you'd send the following letter which is a more severe threat by way of issuing enforcement papers (CPR31.16) to them in order that they supply the default notice.
You're hoping they cannot supply you one in which case you should seek removal of default using the fact you did pay to your advantage. The letter below is a good starting point, combining several aspects of various letters.
Request copy of Default Notice - Formal Demand
Quote:
Dear Sirs,
Account No: XXXXXXXX
After recently obtaining a copy of my credit file from the credit agency, I was extremely concerned to note that you'd added a default notice against me on XX/XX/XXXX.
I feel this default entry was not only added unlawfully but also without merit. Doing so has immediately put you liable to a breach of Consumer Credit Act 1974, in particular s.87(1) of said Act;
"Section 87(1) of the 1974 Act allows the creditor to send you a default notice giving you fourteen days from the date you receive it to pay the arrears. The default notice must contain all of the necessary information under the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 ('the 1983 Regulations'), which includes;
a statement saying the notice is a default notice served under section 87(1) of the 1974 Act
a description of the agreement
the name and address of both the debtor and the creditor
details of the breach (i.e. late payment) and, if the breach can be remedied, the date by which it must be remedied or, if the breach is not capable of remedy, the amount required to be paid after the expiry of the specified date;
As is clearly evident from all previous communication between us regards to this default, I never received any such notice and as a result I contest the accuracy of the default and until such time you can provide proof that you complied with the above Act, you must remove all derogatory data from the files of any credit reference agency (CRA).
I am more than happy to issue you a Subject Access Request which should include a copy of the documents I request, which I am hopeful will include a copy of said termination and default notices which, if they are missing, will leave me no alternative but to seek legal enforcement via CPR31.16. Without sight of said default notice, I cannot argue the authenticity, enforceability or execution and therefore will use this as my claim if I am forced into taking legal action, all costs will also be claimed.
It would, however, be in both our interests if you simply agree to remove the default being there are so many inconsistencies with the alleged default notice, the execution, the enforceability and the legal compliance that you must surely have no other alternative but to remove it, least of all as a gesture of goodwill?
As I was never in receipt of any of the statutory documents (Notice of Termination of Contract; Notice of Assignment or Default Notice) then the actual default notice that is shown on my credit file is unlawful and should be immediately removed. I do not want to take this through the courts but I will enforce removal by judgement if necessary, at the end of the day you have acted unlawfully by not issuing a fully compliant and correctly executed legal document.
Therefore, assuming you are happy with my proposal please confirm, in writing on letterheaded paper, the following points will be carried out;
The Default Notice will be removed
The Status of the account will change from “Defaulted” to “Settled”
The Current Balance will appear as £0.00
The Default / Delinquent Balance will be set to £0.00
There will be no date in the “Defaulted Date” field (as it will be removed)
There will be no date in the “Date Last Delinquent” field on the report
This will apply to all 3 Credit Reference Agencies, namely Experian, Equifax & Call Credit
Failure to agree will result in more formal papers being sent, by return and in the meantime, I look forward to your response within the next 21 days.
Yours faithfully
Sign digitally
| Official SOS Member 002 - Dry until 31.01.2010 |
This letter would be sent to a creditor/DCA whom you want to pay, lets say a mobile phone bill of £80 - its not worth a default so send this and see what the lender says - usually they'll agree cos they want money - a default issued with no money does them no good.
This doesn't tend to work with banks, but will do for utilities and/or catalogues. However if a DCA is dealing then always worth a go - so long as you can afford it of course! Just add the amount you wish to offer in exchange for default removal.
Remember to edit the 50% to whatever you prefer - although 50% is a great starting point...
F&F Offer in exchange for Default Removal
Quote:
Dear Sirs,
Account No: XXXXXXXX
I write with reference to previous communication regarding an outstanding balance on the above mentioned account and wish to make an offer to resolve that will suitably please both parties.
I do have an outstanding balance on the account, as you are fully aware this is made up primarily of charges. However, a default to you and no payment will not achieve much and so I therefore write to try and resolve matters amicably, that will suit both of us long term.
I propose to offer a full and final payment to settle and close this account to the value of 50% of the original amount, which will take into account and absorb, a lot of the charges that have been added to the account throughout time.
The alternative is for me to place the account formally into dispute and demand s.10 CCA (1974) is brought into play (cease & desist) whilst I reclaim all unlawful charges combined with all costs. I shall then look at the legality of the assignment of debt; the issuance of a default notice and the agreement (prescribed terms) and between them, i'll probably be able to counter sue and litigate over unenforceability.
To confirm, I am more than happy to settle as much as 50% of the total amount owing so long as you can agree to, and ensure that, the following actions will be carried out;
The Default Notice will be removed
The Status of the account will change from “Defaulted” to “Settled”
The Current Balance will appear as £0.00
The Default / Delinquent Balance will be set to £0.00
There will be no date in the “Defaulted Date” field (as it will be removed)
There will be no date in the “Date Last Delinquent” field on the report
This will apply to all 3 Credit Reference Agencies, namely Experian, Equifax & Call Credit
If you're happy with my proposal, please respond confirming each of the above points on official letterheaded paper, confirming the exact amount owing and I will send a cheque by return. Failure to agree will result in more formal papers being sent, by return.
I look forward to your response.
Yours faithfully
Sign digitally
| Official SOS Member 002 - Dry until 31.01.2010 |
If you have had a default registered and the lender confirms that they cannot locate the CCA and so will not pursue the debt (usually in line with s.127 of CCA1974) then it would be worth sending a copy of the letter below to the credit reference agencies, with a photocopy of the letter from the lender/DCA regards to the unenforceability confirmation.
It may actually work for you, i.e. instead of hassling the lender/DCA to remove the default - go to the data processor (i.e. the third party, credit agencies) as they can get 'done' just as hard as the data controller (the owner of the data, i.e. lender/DCA) and they may remove the default for you.
Default Removal Letter to CRA's
Quote:
Dear Sirs,
Ref: XXXXXXXX
I write with reference to an ongoing complaint with Lender Name Here and their unlawful addition of a default notice against me.
It is quite evident from the attached correspondence that Lender Name Here do not follow simple guidelines and as a result I am left with no option but to pursue legal action against them, however in the meantime, as you can see from the attached correspondence, the default registered is in fact unlawful and a clear breach of s.87 & s.88 of the Consumer Credit Act 1974. As such i'd like you to consider immediate removal of the default whilst this matter is being investigated by the relevant governing bodies, bearing in mind you are classified as the data processor and can be held liable to any libel litigation I may pursue.
I quote:
87 Need for default notice
(1) Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,
(a) to terminate the agreement, or
(b) to demand earlier payment of any sum, or
(c) to recover possession of any goods or land, or
(d) to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or
(e) to enforce any security.
(2) Subsection (1) does not prevent the creditor from treating the right to draw upon any credit as restricted or deferred, and taking such steps as may be necessary to make the restriction or deferment effective.
(3) The doing of an act by which a floating charge becomes fixed is not enforcement of a security.
(4) Regulations may provide that subsection (1) is not to apply to agreements described by the regulations.
88 Contents and effect of default notice
(1) The default notice must be in the prescribed form and specify
(a) the nature of the alleged breach;
(b) if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken;
(c) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid.
(2) A date specified under subsection (1) must not be less than seven days after the date of service of the default notice, and the creditor or owner shall not take action such as is mentioned in section 87(1) before the date so specified or (if no requirement is made under subsection (1)) before those seven days have elapsed.
(3) The default notice must not treat as a breach failure to comply with a provision of the agreement which becomes operative only on breach of some other provision, but if the breach of that other provision is not duly remedied or compensation demanded under subsection (1) is not duly paid, or (where no requirement is made under subsection (1)) if the seven days mentioned in subsection (2) have elapsed, the creditor or owner may treat the failure as a breach and section 87(1) shall not apply to it.
(4) The default notice must contain information in the prescribed terms about the consequences of failure to comply with it.
(5) A default notice making a requirement under subsection (1) may include a provision for the taking of action such as is mentioned in section 87(1) at any time after the restriction imposed by subsection (2) will cease, together with a statement that the provision will be ineffective if the breach is duly remedied or the compensation duly paid.
Subsequently, s.87(1) of the CCA1974 clearly states that a default notice must be served before the creditor or owner can become entitled, by reason of any breach by the debtor. As they have failed to, and continually ignore my request to, send a default notice to me then they are in clear breach.
Please ensure immediate removal of this default and speak to Lender Name Here yourselves and try to obtain a copy of the default notice? As you are aware, if they cannot substantiate the accuracy of the data to you then you have an obligation to act; by removing the incorrect data registered.
I look forward to your response within the next 21 days.
Yours faithfully
Sign digitally
Credit Reference Agencies Addresses:
Quote:
Experian Ltd
Customer Support Centre
PO Box 8000
Nottingham
NG80 7WF
Quote:
Equifax Plc
Credit File Advice Centre
PO Box 1140
Bradford
BD1 5US
Quote:
Call Credit Plc
Consumer Services Team
PO Box 491
Leeds
LS3 1WZ
| Official SOS Member 002 - Dry until 31.01.2010 |
Invariably, you'll get lenders/DCA's writing back to you asking you to sign before they will provide anything to you. This is something that must be avoided at all costs or you ask a friend to do it, because some companies have been known to demand a signature then cut/paste it onto agreements so whatever you do - DO NOT give them ammunition for free
If a lender does write back asking you to sign, ask a friend to do it for you, using your name of course, or send the following letter if you'd prefer to play by the book;
Request for a signature before release of Information
Quote:
Dear Sirs,
Account No: XXXXXXXX
Thank you for your letter dated XX/XX/XXXX, the contents of which have been noted. In your letter you make reference to requiring my signed authorisation.
I'd like to draw your attention to the fact 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 please 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 note 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.
I look forward to receiving the documentation requested, within the next 14 days.
Yours faithfully
Sign digitally
| Official SOS Member 002 - Dry until 31.01.2010 |
The following letter would be sent when your account has been sold to another DCA/Solicitor when the original creditor/lender failed to acknowledge your CCA Request.
Account sold whilst in Default of CCA Request
Quote:
Dear Sirs,
Account No: XXXXXXXX
I write with reference to the above numbered account. I would like to point out that this account is formally in dispute with **Original Creditor ** and has been since they failed to acknowledge my CCA Request (in line with s.88 CCA1974) which was sent on / xx / 2009.
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 **Original Creditor ** are 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 the CCA Request remains in default (outstanding), enforcement action is not permitted in line with s.127 (CCA1974).
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 **Original Creditor ** for immediate resolution prior to my seeking legal advice; 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
| Official SOS Member 002 - Dry until 31.01.2010 |
The next letter, self explanitory is Subject Access Request which means by law, if they have issued a Default Notice it must be sent within the SAR otherwise they have breached the Data Protection act as well as the Consumer Credit Act which will only go to help you enforce removal of the default.
Remember to send a £10 cheque or Postal Order and do not sign this request, even if they write back requesting you sign, then refer them to s.7 of the DPA and ask them to tell you where it asks for a signature! They can't as it is not a required provision to comply with SAR (even though the lenders like to think it is - it is a stalling tactic).
Section 7 DPA - SAR Request
Quote:
Dear Sirs,
Account No: XXXXXXXX
Please supply me with a copy of all information your company hold on me including a list of accounts and details of payments.
Under the Data Protection Act 1984 and 1998, and including the right of subject access under these acts, I hereby request that you supply me with any and all historical data in your possession which relates to me and am entitled to under section 7(1) of the Act.
If you store any of the older records on microfiche, please be aware that the Information Commissioner deems this to be a relevant filing system under the Act. As such, any microfiche data must be sent to me in fully legible and comprehensible form.
Additionally, where there has been any event in my account history over this period which has required manual intervention by any member of your staff, or any other person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my business with you.
If you are unable to supply this data because there has been no such manual intervention, then please be so kind as to confirm this in your response.
I enclose the statutory maximum fee of £10. You have 40 days in which to comply. Furthermore, if I discover that you have levied disproportionate penalties against me or collected monies to which you were not entitled, then I shall be reclaiming them and also the enclosed £10 Data Protection Act subject access request fee.
Yours faithfully
Sign digitally
| Official SOS Member 002 - Dry until 31.01.2010 |
Lets assume things get out of control, and you have stopped paying the DCA due to querying the legitimacy and enforceability of the CCA, so they commence collection activity against you. This is actually quite illegal and they are breaking the law - do not be intimidated by anything they send, simply respond, as you see fit, with one of the following letters;
I am writing in relation to the quantity and frequency of telephone calls that I have received from your company, which I deem to be personally harassing.
I have verbally requested that these stop, but I am still receiving calls and I now require all further correspondence from your company to be made in writing only. I am of the view that your continued harassment of me by telephone puts you in breach of Section 40 of the Administration of Justice Act 1970, and the Protection from Harassment Act 1997.
If you continue to harass me by telephone, you will also be in breach of the Communications Act (2003) s.127 and I will report you to OFCOM, Trading Standards and The Office of Fair Trading, meaning that you will be liable to a substantial fine.
Be advised that any further telephone calls from your company may be recorded and used in evidence and I expect this harassment to cease immediately.
Yours faithfully
Sign digitally
Quote:
You know nothing of the Debt
Dear Sirs,
Account No: XXXXXXXX
You have contacted me regarding the account with the above reference number, which you claim is owed by myself. I would point out that I have no knowledge of any such debt being owed to (insert company name).
I am familiar with the CPUTR 2008 and the Office of Fair Trading's Guidance on debt collection, which states that it is unfair to send demands for payment to an individual when it is uncertain that they are the debtor in question.
I would also point out that the OFT say under the Guidance that it is unfair to pursue third parties for payment when they are not liable and in not ceasing collection activity whilst investigating a reasonably queried or disputed debt you are using deceptive/and or unfair methods.
Furthermore ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment amounts to physical/psychological harassment.
I would ask that no further contact be made concerning the above account unless you can provide evidence as to my liability for the debt in question and await your written confirmation that this matter is now closed. Otherwise I will have no option but to make a complaint to Trading Standards and also inform the Office Of Fair Trading of your actions.
I look forward to your reply.
Yours faithfully
Sign digitally
Quote:
Threat of Doorstep Visit
Dear Sirs,
Account No: XXXXXXXX
Please be advised that I will only communicate with you in writing. I have noted your repeated attempts to contact me over the past few weeks and these have been duly logged by time and date.
Furthermore, should it be your intention to arrange a “doorstep visit”, please be advised that under OFT rules, you can only visit me at my home if you make an appointment and I have no wish to make such an appointment with you.
There is an implied license under English Common Law for people to be able to visit me on my property without express permission; the postman and people asking for directions etc (Armstrong v Sheppard & Short Ltd [1959] 2 QB 384. per Lord Evershed M.R.). Therefore take note that I revoke license under Common Law for you, or your representatives to visit me at my property and, if you do so, you will be liable to damages for a tort of trespass and action will be taken, including but not limited to, police attendance.
Yours faithfully
Sign digitally
| Official SOS Member 002 - Dry until 31.01.2010 |
Again, simple process to sort out - just remember never admit that you had the account, it is always referred to as an 'alleged account' or the account you refer to. Do not use the term 'My Account' especially not within 6yrs or you're back to square one again.
You must send it recorded delivery (proof of postage) and do not sign it - get someone else to sign for you or use a type font when you print it!
Quote:
Statute Barred Letter (England only)
Dear Sirs,
Re: Statute Barred Account - Numbered - XXXXXXXX
You have contacted me regarding the account with the above reference number, which you claim is owed by myself.
I would point out that under the Limitation Act 1980 Section 5 "an action founded on simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued".
I would also point out that the OFT say under their Debt Collection Guidance on statute barred debt that "it is unfair to pursue the debt if the debtor has heard nothing from the creditor during the relevant limitation period".
The last acknowledgement to this debt was made over six years ago and no further acknowledgement or payment has been made since that time. Unless you can provide evidence of payment or written contact from me in the relevant period under Section 5 of the Limitation Act, I suggest that you are no longer able to take any action against me to recover the alleged amount claimed.
The OFT Debt Collection Guidance states further that "continuing to press for payment after a debtor has stated that they will not be paying a debt because it is statue barred could amount to harassment".
I await your written confirmation that no further contact will be made concerning the above account and confirmation that this matter is now closed.
I look forward to your reply.
Yours faithfully
Sign digitally
Scottish version below.
You would send this letter to the lender after 5yrs of not acknowledging the debt, give it a month and then you can send a copy to the CRA who will then remove any default from their systems.
As above, don't sign anything and make sure it is sent recorded to trace when it was received.
Quote:
Statute Barred Letter (Scotland only)
Dear Sirs,
Re: Statute Barred Account - Numbered - XXXXXXXX
You have contacted me regarding the account with the above reference number, which you claim is owed by myself.
I would point out that under The Prescription and Limitation (Scotland) Act 1973 Part 1 Section 6 "If, after the appropriate date, an obligation to which this section applies has subsisted for a continuous period of 5 years:
(a) without any relevant claim having been made in relation to the obligation, and (b) without the subsistence of the obligation having been relevantly acknowledged, then as from the expiration of that period the obligation shall be extinguished:"
I would also point out that the OFT say under their Debt Collection Guidance on Statute Barred debt, that "it is unfair to pursue the debt if the debtor has heard nothing from the creditor during the relevant limitation period".
The last acknowledgement of this alleged debt was made over five years ago. Unless you can provide evidence of payment or written contact from myself in the relevant period under Part 1 Section 6 of The Prescription and Limitation (Scotland) Act 1973 , I would respectfully suggest that you are no longer able to take any court action against myself to recover the alleged amount claimed.
Should you continue to pursue this account without providing this evidence I shall seek an interdict and damages accordingly. A formal complaint will also be made to Trading Standards along with a report to the OFT questioning your fitness to hold a consumer credit license.
I await your written confirmation that this matter is now closed and that no further contact will be made concerning the above account after that last letter.
I look forward to your reply.
Yours faithfully
Sign digitally
| Official SOS Member 002 - Dry until 31.01.2010 |
The letter below is the 'Prove It' letter that you would send to a creditor/DCA when they ask you for payment of a debt that you are unsure about.
You should not enter verbal discussion and instead send the following letter.
Prove It Letter
Quote:
Dear Sirs,
Account No: XXXXXXXX
You have contacted me regarding the account with the above reference number, which you claim is owed. I would like to point out that we have no knowledge of any such debt being owed to you.
The ‘Office of Fair Trading Debt Collection Guidance’ states that it is unfair to send demands for payment to an individual when it is uncertain that they are the debtor in question. They also state that it is unfair to pursue third parties for payment when they are not liable. In not ceasing collection activity whilst investigating a reasonably queried or disputed debt you are using deceptive and/or unfair methods.
Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment, amounts to physical and psychological harassment.
In light of the above, I formally request that no further contact be made concerning the above accounts unless you can provide evidence as to my liability for the debt in question.
I await your written confirmation that this matter is now closed, within the next 14 days.
Yours faithfully
Sign digitally
| Official SOS Member 002 - Dry until 31.01.2010 |
The following letter would be sent to a lender/DCA that sends you an illegible copy of documents when you request a CCA. So for instance, if they send you a dodgy copy that you cannot read properly, this is unaceeptable.
The lender/DCA will usually respond to your CCA request with something along the lines of:
Quote:
"We have supplied a copy of the credit agreement that you agreed to after which you then received the credit card. We have also supplied a copy of the original and current Terms and Conditions of that card product with he prescribed terms and a statement showing the outstanding balance. We have met our obligations under s78(1) and are satisfied that it complied with the Regulations expressly made for controlling what is a 'true copy'.
We do not consider this account to be in dispute and your debt remains due and payable...we will continue to pursue for payment as they fall due. Any non payment will be recorded on your credit file as will a default if it continues."
Just ignore it and return fire with the letter below:
CCA Dispute - Illegible Copy Document Supplied
Quote:
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 **DATE** I made a formal request for a true signed agreement for the alleged account under the Consumer Credit Act 1974 (s.77/s.78). A copy of which is enclosed for your perusal and ease of reference.
The document that you are obliged to send me is 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.
The documents I received appear to be an illegible photocopy of my ‘Enter Card Name/Type Here’ and a separate ‘copy of the current terms and agreement’. The prescribed terms as required by section 60(1) Consumer Credit Act 1974, are not at all visible and therefore the documents provided do not constitute a ‘true copy’.
As you are no doubt aware, the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI/1557) states:
2 Legibility of notices and copy documents and wording of prescribed Forms
(1) The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the [background medium upon which the information is displayed].
Similarly; the Consumer Credit Act 1974 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 said 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.
Please note 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.
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.
Furthermore you should be aware 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.
Lets assume you request a CCA and they respond with their Terms & Conditions - i.e. not a properly executed CCA. You'd then send something along the lines of the letter below:
CCA Dispute - Terms & Conditions Supplied
Quote:
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
I note that you have replied to my CCA Request by sending a copy of Terms & Conditions and not a True Copy of the alleged Consumer Credit Agreement, in line with my formal request. As such, I must inform you that this is not sufficient to comply with the request and that your company is still in default under the act.
To clarify, just sending the Terms and Conditions is a breach of the Act and Regulations, apart from the information that the Regulations provide that you may exclude, the copy must be a 'true copy' of the agreement.
This breach of the agreement can be demonstrated as follows;
Section 180(1) (b) authorises, “the omission from a copy of certain material from the original, or the inclusion of certain material in condensed form.” This refers to statutory instruments made under the heading Copies of Document Regulations and in this care in particular to SI 1983/1557.
Before leaving section 180 there are two other sections that should be mentioned, which are;
Section 2(2) (a)
A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not satisfied unless the copy supplied is in the prescribed form and conforms to the prescribed requirements;
And more importantly
Section 2(b)
A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not infringed by the omission of any material, or its inclusion in condensed form, if that is authorised by regulations.
You will see that this quite clearly states that whilst certain items may be left out of the copy document, the rest of the document must be in the form and contain all items as prescribed by the regulations.
Turning to the regulations regarding what may be omitted from these copies these are contained with SI 1983/1557.
The regulations state:
(2) There may be omitted from any such copy-
(a) any information included in an executed agreement, security instrument or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations thereunder as to the form and content of the document of which it is a copy;
(b) any signature box, signature or date of signature (other than, in the case of a copy of a cancellable executed agreement delivered to the debtor under section 63(1) of the Act, the date of signature by the debtor of an agreement to which section 68(b) of the Act applies);
It is quite clear what can be omitted from the copy document, this again asserts that all other details of the agreement should presented in form and content as required by the regulations.
The requirements of the Agreement regulations 1983/1553 are very explicit in describing the form and content of an agreement and this as I have demonstrated also applies to the copy of any such agreement with the above mentioned proviso.
Nowhere within these regulations does it state that part of the agreement can be presented on a separate document headed terms and conditions. It does, however, state that 'all terms and conditions should be within the agreement document and is explicit of the form in which it is presented'.
In either case, please confirm that you have, in your possession, a credit agreement that is in all ways fully compliant with the Consumer Credit Act 1974, as amended, and the subsequent regulations made there under. For the avoidance of doubt, if you are in possession of such a document, but are unable to supply me with a true copy of it, please outline your reasons why you are unable to supply it to me in your reply.
Furthermore, I respectfully request that you provide me by return a copy of the credit agreement which bears my signature. I require this as I have reason to believe that there may be discrepancies within the agreement which may leave it improperly executed.
I look forward to your response within the next 14 days.
I've just had MBNA on the phone again but this time I answered by mistake. The woman on the other end kept telling me I needed to make a payment because my account was in arrears and if I didn't make a payment immediately, the account would be defaulted. "Go ahead" I told her.
So I think it'll be done shortly.
But hopefully the MBNA one is very much unenforceable so should be fine.
!!!! Debt Free by 30 !!!! it's gonna be a challenge
03/12/2012
PRAYING for an upturn in the property market... then all my problems are solved.
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Pls be nice to all MoneySavers. There's no such thing as a stupid question, and even if you disagree courtesy helps. Take care over copyright. Use excerpts and links rather than copying long text. This site asserts copyright on all comments posted on the board.
Pls be nice to all MoneySavers. There's no such thing as a stupid question, and even if you disagree courtesy helps.
Unenforceability & Template Letters II
Fear Not - Friends & Family are an asset the Official Receiver cannot dish out to your Creditors! 
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