More CCA help please!

Tinka21

I posted before about a CCA request I sent to Studio Cards but they cashed the £1 and then referred my account to a debt collector.

I sent a letter template that someone gave me off here to the debt collector and I have now had a response but it has completely thrown me and I don't know where I stand.

Here is what I have received:

We refer to your recent communication requesting a signed agreement relating to the above account.

As with most Home Shopping accounts, you will not have signed a credit agreement. You are deemed to have agreed to the terms and conditions of the credit, which were relayed in the catalouge itself, when you placed your first order.

By ordering goods from the catalogue, you are liable for payment of those goods. If you are denying responsibility for the debt, we would ask what steps you have taken to return the goods you did not intend paying for?

The debt remains outstanding and we require an offer of payment by return.



Can anyone advise me what I should do next please?

fermi

Tinka21 wrote: »

Can anyone advise me what I should do next please?

They are talking twaddle. They do require an agreement.

Send them the default/12+2 letter.

Tinka21

Thanks Fermi your my saviour!

fermi

Or maybe this. Borrowed from elsewhere.

Thank you for the comments in your letter dated **/**/2009.

However, it contains several factual errors and misconceptions.

The Consumer Credit Act 1974 and Statutory instrument 1983 / 1553 set out the form and content of a credit agreement , now if your client chooses to ignore this legislation and issue credit without following statutory procedure, then its hard luck on them

Please note the judgment of Sir Andrew Morritt Vice chancellor in the Court of Appeal Ruling of Wilson v First County Trust Ltd - [2001] 3 All ER 229 at paragraph 26

The creditor--by failing to ensure that he obtained a document signed by the debtor, which contained all the prescribed terms--must (in the light of the provisions in ss 65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift,of the loan moneys to the debtor. The creditor had chosen to part with the moneys in circumstances in which it was never entitled to have them repaid;

Also the House of Lords ruled in the same case on appeal that without a credit agreement, signed by the creditor and debtor and containing the prescribed terms under Schedule 6 column 2 of Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) the agreement is rendered unenforceable.

I must also point out that the Consumer Credit Act 1974 has been in force long enough for your client to read and understand its implications for their business, so if they cant get it right, then that really is their problem and not mine. If you can’t produce a credit agreement signed by me, containing the prescribed terms contained in schedule 6 column 2 of the Consumer Credit Agreements Regulations 1983 then its case closed.

Further more I find your client is in breach of its duties under the Data Protection Act 1998, as your client cannot show that it has a right to transfer this account to your company. The absence of a credit agreement and failing to comply with S77/78 (1) of the CCA 1974 means that the original creditor, in this case Next is precluded from taking any enforcement activities. Transferring the account to a third party company such as yours is enforcement and a breach of Data Protection legislation, therefore I require any entries made on my credit file by your company removed immediately as I have no financial relationship with your company and have not consented to your use of my data, failure to do as requested will result in a complaint to Richard Thomas the Information commissioner and I reserve the right to take any legal action necessary to remove any adverse data you may have added. Also take note that any quantifiable damage I sustain to my credit rating as a result of any data you add may result in my pursuing your company for damages as per the ruling of Kpohraror v Woolwich Building Society - [1996] 4 All ER 119

Any attempts to suggest that you have a right to pursue this debt through the courts or any harassment will be reported to the Office of Fair Trading as a breach of their guidance on Debt Collection and as a Consumer Credit licence holder you are bound to follow that guidance and any breach may have implications upon your companies licence

To clarify, no payments will be made in regards to this account, it is clearly unenforceable at law as no agreement can be found or produced and you have confirmed in writing that your client does not have a copy. Should you continue to harass me for payment I will consider legal proceedings in the XXXXXX County court for a declaration pursuant to section 142(1) of the Consumer Credit Act 1974. please take note, I am aware of my rights in this matter and should you fail to take heed of this letter, I shall issue a letter before action compliant with the Civil Procedure Rules Pre action Protocols Para 4.3 giving you 28 days notice that legal proceedings for a declaration re s142 CCA 1974

I trust you will take note of my comments and close your file accordingly.

I require a written reply within 14 days of receipt of this letter

fermi

You may also want to mention what the OFT say about disputed debts and non-compliance with a CCA request here:

http://forums.moneysavingexpert.com/showthread.html?t=1639473