Unenforceability & Template Letters

ExNicotineQueen

Another quick question, slightly off topic, however you seem to know a lot about this kind of stuff so thought I had better ask; how long do linked addresses stay on your credit reference file?

psgguru

Dear never-in-doubt,

I have found your templates and your threads extremelly helpfull.

I was asking for a little more advise if you dont mind. I have sent your request for a copy of the original CCA to Egg and have just received it. It is signed by me (can't remember signing it!!!).

I am confused about the predicted terms. You mention that for Credit Card, the terms should be BC AND D (is that all of them together?).

Egg have sent me a 20 pages document, 2 pages which seem to be what they send in September 04 and 18 pages which seem to have been printed off their web site this week.

I have put the details of the first 2 pages bellow and was wondering what do you suggest? Where do I stand with this? Do I have a chance to get Unfair Credit Agreement? If so, which template should I send now, the CCA Request Query Letter?

Thank's in advance.

Egg Card Agreement for Mr X XXXX
Please read this carefully
This was sent to you on 7th September 2004
Credit Agreement Regulated by the Consumer Act 1974
This is a credit agreement between us, Egg Banking Plc, Egg Card, New Application, Basildon, SS14 9AA and you. The main financial terms of the agreement are set out bellow. A copy of the agreement is enclosed for you to keep.
About You:
Your Name: XXXXX
Your Adress: XXXXX
About Egg Banking plc:
Postal Adress: Egg, Pride Park, Riverside Road, Derby, DE99 3GG
About Your Egg Card:
3. Limit We will tell you from time to time the Approved Limit we have set and, if different, the individual limit which you have chosen for the account.
4. Interest and credit Charges We will charge interest
4.1 - On Purchases put on the Account until 1 March 2005 at a monthly rate of 0% fixed until 1 March 2005, and thereafter at a monthly rate of 1.039%, 12.3% APR.
- On Transferred Balances put on the account until 1 May 2005 at a monthly rate of 0% until 1 March 2005, and thereafter at a monthly rate of 1.093%, 12.3% APR; and otherwise
- at a monthly rate of 1.09%, 13.9% APR
4.2 - Unless you are an Existing Egg Customer, we charge a handling fee of 1.25% of the amount of each cash advance (minimum fee £2.00); The APR for cash advances is 16.3%
From 1st October 2004, unless you are an existing Egg Customer, we charge a handling fee of 2% of the amount of each cash advance (minimum fee £2.00). The APR for cash advance is 18.3%.
4.3 - We will charge interest on Promotional Balances at the interest rates and for the period we advise you of in the details of the special promotion.
4.4 - You can find up-to-date information on interest rates by looking on our website. You can also see on your statement the interest rate which has been applied where interest is being changed.
In working out APR’s, we have ignored any changes we may make to the interest rates, handling fees or any other charges which we introduce or vary at any time by giving you notice under condition 12.
5. Repayment
5.1 Each month you must pay by direct debit at least the minimum payment given in your statement. The minimum payment will be.
- The full Revolving balance if it is less than £5 but otherwise the greater of 2% of the revolving balance and £5.
Plus for each transferred Balance:
- The full amount of the transferred Balance if it less than £5, but otherwise the greater of 2% of the transferred balance and £5.
We will collect the amount you tell us you want to repay so that it is paid into the Account on the payment date.
Important – You should read this carefully
Your rights…. (do you need this as well?)
Loss or misuse of egg card …(do you need this as well?)
This is a credit agreement regulated by the Consumer Credit Act 1974, Sign it only if you want to be legally bound by its terms.

Signed

never-in-doubt

ExNicotineQueen wrote: »

Another quick question, slightly off topic, however you seem to know a lot about this kind of stuff so thought I had better ask; how long do linked addresses stay on your credit reference file?

Hiya

Linked addresses will remain for as long as there is an active interest in the address and or link to other lenders.

Laymans terms? Ok, so long as you have an active account that you moved from the old to new address then the link will remain indefinitely but at most, should be *6yrs.

So in theory, lets say you bank with HSBC and moved addresses in Jan 2003. You then told HSBC that you'd moved and they converse with you at the new address. The link will appear on your credit file with the previous address linked to the current address based on info provided by HSBC Bank.

Now, lets say that you decided to close this HSBC account after a year, the link would now disappear after the usual 6yr account history so would vanish in Jan 2010 (not Jan 2009 cos you count 6yrs from date of new link).

On the other hand, lets say you still have the account open, the link will stay there as long as the account is there but you can, after 6yrs, ask the CRA to erase it being it is no longer relevant to any credit decisions because any defaulted or bad accounts would be either statute barred or removed after 6yrs anyway so pointless leaving the link intact.

Hope that makes sense....

never-in-doubt

ExNicotineQueen wrote: »

LOL I suppose so. I’ve got about £11k worth of cc debt, roughly about 3k on BC and Cap 1 and about £2k on Citi; the remainder are small-ish balances which I am working on shifting at the mo plus mainly taken out after Apr 07. The APR’s on these 3 cards alone have escalated to double what they once were to nearly 35%, which equates to paying like £95 min payment and £70 is taken in interest. I can pay the monthly min payments but at this rate it seems never-ending. I’ve probably paid my balance over countless times but it’s the interest charges that are eating me up.

My credit rating is probably considered ‘ok’. The majority of my cc’s are set-up with DD’s, the ones that aren’t, I may have missed 1 or 2 repayments over the past year by a day or so but that’s about it. My credit rating was trashed when I was a student and I have tried hard to get it back on track ever since. I want to repay my debts but the interest is a killer and I just wanted to see what the likely result would be if I went down this route.

Hiya

Thanks for that - now it all makes sense what you're asking and why you're asking me! I knew you had problems as such, but hey-ho!

Ok, I guess you've answered yourself really, in that you either carry on as you are or risk the unenforceable option. To be fair with the small amounts quoted its unlikely any of the lenders would issue a Charging Order or Statutory Demand, just wouldn;t be worth it and they can't just issue them willy-nilly anyway cos they are too easy to get set-aside.

Have you reclaimed any charges from the older cards? Going on what you say only £5k is older related debt yet the other £6k is newest on the newer (post april 07) cards? If so then i'd not trash my file for the sake of £5k. However, may be worth getting one card and BTing over to it.

If anything pay off one of the newer cards, or check if they have any 0% or even 10% BT offers - anything is better than 35%.

Have you considered one personal loan from your main bank? They would be the 1st place i'd go and look to consolidate the whole debt. If you use HSBC they usually suggest this and can see your card payments being made so usually know that you'd be cheaper with a loan and sometimes come up trumps..... especially if they are one of the people you owe money to.

Whatever you do, good luck.... :beer:

never-in-doubt

psgguru wrote: »

I was asking for a little more advise if you dont mind. I have sent your request for a copy of the original CCA to Egg and have just received it. It is signed by me (can't remember signing it!!!).

I am confused about the predicted terms. You mention that for Credit Card, the terms should be BC AND D (is that all of them together?).

Egg have sent me a 20 pages document, 2 pages which seem to be what they send in September 04 and 18 pages which seem to have been printed off their web site this week.

I have put the details of the first 2 pages bellow and was wondering what do you suggest? Where do I stand with this? Do I have a chance to get Unfair Credit Agreement? If so, which template should I send now, the CCA Request Query Letter?

Thank's in advance.

Hiya

I can't get drawn into checking the Prescibed Terms for people, sorry but this is not something i'll get involved with cos its just too time consuming. Suffice to say, you need to get the main terms (CCA) and then compare them against the Prescibed Terms:

Prescribed Terms

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?

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

If you have a credit card then the CCA that Egg sent you must contain the parts above quoted in B,C & D above.

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.

It appears they have complied with the CCA on this occasion going on from what you have typed, however always study the finer details - see the highlighted red text and check for each point, this is where they usually come unstuck.

However, it is always worth sending the dispute letter and blagging it. If they know the CCA is spot-on they will write back telling you so, quick enough.

Best of Luck.... :beer:

shayshay

never-in-doubt wrote: »

First off you proceed with charge reclaim, read the last few posts cos i've advised someone else on this. You have to ensure you tell them to send you payment via cheque and not to add them to the 'alleged' account.

After you accept their offer then you proceed with unenforceability using the letter on page 1. CCA Request. If they are a few years old then you may be in luck as MBNA were one of the worst offenders....

See here for charges thread: http://forums.moneysavingexpert.com/forumdisplay.html?f=102

Again to the man in demand.lol

As the credit card debts have recently moved to a debt collector do I send the claims letter to them or the original provider (MBNA)? Am I right to assume when I am putting in the the total amount I wish to claim back it is then that I state I require it to be sent to me in cheque form?

When the claims are all done, when I start the unenforceability part again do I direct your template to the DCA or the original provider (MBNA)?

never-in-doubt

shayshay wrote: »

Again to the man in demand.lol

As the credit card debts have recently moved to a debt collector do I send the claims letter to them or the original provider (MBNA)? Am I right to assume when I am putting in the the total amount I wish to claim back it is then that I state I require it to be sent to me in cheque form?

When the claims are all done, when I start the unenforceability part again do I direct your template to the DCA or the original provider (MBNA)?

Reclaim from the OC and send CCA to current owner, i.e DCA. Hope that helps.....

Jackswan_2

never-in-doubt wrote: »

Reclaim from the OC and send CCA to current owner, i.e DCA. Hope that helps.....

I forwarded my letter as per the template on this thread, enclosing my £1 postal order. I had my reply within the 12+2 days. Which is as follows:

Dear xxxxxx 9th September 2009

I write in response to your request for a copy of your consumer credit agreement under Section 78 of the Consumer Credit Act 1974 (CCA).

I have enclosed with this letter a copy of your reconstituted version of the executed agreement, acopy of your current terms and conditions and a signed statement of your account.

The copy of the agreement enclosed with this letter complies with the requirements of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983. Regulation 3(2)(b) provides that a copy can omit any signature box, signature or date of signature. In summary we are not required to produce a copy with your clients signature on it. By providing a copy of the agreement complying with the requirements of the Regulations the agreement remains enforceable.

By providing you with the documents attached to this letter, we have satisfied our obligation to provide a copy of the executed agreement under section 78. As such, the agreement you have with us is fully enforceable and we shall continue to treat it as such. We will not be entering into any further correspondence with you regarding the requirements relating to the provision of copy agreement. If you are using the services of a claims management compnay we would like to remind you of the recent warnings issued by the Ministry of Justice and Citizens Advice Bureau.

The Ministry of Justice headline reads "Businesses that mislead the public by claiming they can arrange for unpaid loans, creditr card debts or other consumer debts to be written off have been told to stop or face action,
Justice Minister Bridget Prentice said today, as new guidance was issued by the Ministry Of Justice."

Finally, we must remind you that failure to make payments under the agreement will result in collection activites and any default may also be reported to Credit Reference Agencies.

Yours sincerely,
xxxxxxxxxxxxxxx

My initial reaction upon reading this letter contradicts everything I have read on this thread. Who is right and who is wrong is a puzzle, I realise that it is the usual frightening off letter, they are informing me that no further correspondence will take place between us. I am fascinated by the
use of the words - reconstituted version of the executed agreement.

It will be interesting reading any replies to this letter I have received.

When I claimed PPC on my credit card, the reply came from the Bank Of Scotland.

never-in-doubt

Jackswan wrote: »

My initial reaction upon reading this letter contradicts everything I have read on this thread. Who is right and who is wrong is a puzzle, I realise that it is the usual frightening off letter, they are informing me that no further correspondence will take place between us. I am fascinated by the use of the words - reconstituted version of the executed agreement.

It will be interesting reading any replies to this letter I have received.

When I claimed PPC on my credit card, the reply came from the Bank Of Scotland.

Hiya

Its not a question of who is right and wrong, as you put it. It all depends on the actual type of agreement they have sent and what they classify as a true copy. They always try it on, but to answer you - they must send a true copy - not a fabricated or whatever other word they want to use, version.

So, if I were you, send the following letter - this will explain the differences and Halifax' obvious error and lack of knowledge.

But to answer your question, yes an agreement needs to be signed. However they can send a 'true copy' of this agreement but for you to pursue unenforceability you need to see this and not a true copy, as the letter suggests.

Best of Luck!

Dear Sirs,

Re: Failure to comply with Consumer Credit Act 1974

Thank you for your recent letter, the content of which are noted. However, your reply does not fulfil your requirements under the Consumer Credit Act 1974.

The Act demands that I be supplied with a true copy of any properly executed credit agreement that exists in relation to the above account. I may ask for this on demand providing that a fee of £1.00 is paid. This fee was sent with my original letter. My request remains outstanding. The items you sent in your reply, does not constitute a true copy of any credit agreement that may or may not have been signed by me on the opening of this account. It neither confirms that I am liable for any alleged debt to you, nor gives me any chance to evaluate whether any original agreement was ‘properly executed’.

I still require you to send me a true copy of the original credit agreement that you allege exists. Under the Consumer Credit Act 1974, a judge is not permitted to make any enforcement order unless the creditor can provide a true signed copy of the original credit agreement. This means that unless you can produce such an agreement, this alleged debt is not enforceable in law.

You are now in default of my request and as such any account I hold with you is now in legal dispute. Whilst the account remains in dispute, you are not permitted to ask for any payment, nor am I obliged to offer any payment to you. Further, whilst the dispute remains, you are not entitled to charge any interest on the account, nor make any further charges to the account. Additionally, you are not entitled to register any information on this account with any credit reference agency. To register information with a credit reference agency, you must have written consent from the customer (me) to collate and share such information. This consent is given in the form of a signed credit agreement, so until you produce such an agreement, you may not do this.

The requirement for consent to share data is a clear requirement of the Data Protection Act 1998. Any such attempts to share my data without my consent will be met with a complaint to the Information Commissioners Office and appropriate legal action.

For your information and to highlight your legal obligations, a valid credit agreement must contain certain terms within the signature document (s.60(1)(2) CCA 1974). These core terms are the credit limit, repayment terms and the rate of interest. (SI 1983/1553 (6 Signing of agreement) which states that the prescribed terms must be within the signature document. (Column 2 schedule 6). s.61(1)(a) states the agreement must contain all the prescribed terms and be signed by both the debtor and on behalf of the creditor.

As you should already be aware, 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.

To sum up, the document you sent is a reconstituted version (whatever that is) but you fail to recognise that I specifically requested a True Copy – not a reconstituted version. As such, I will not be making any further payments to you until you provide me with the document I have requested. Whilst you remain in default of my request, you are not permitted to take any action against this account. This includes adding further charges and passing any information to the Credit Reference Agencies.

Should you not have any signed credit agreement in relation to this alleged debt, please confirm this in writing to me.

I look forward to your imminent reply.




Sign Digitally

ramblingtree

Hi NID,
Not sure if this thread is appropriate for my question, if not you may be able to direct me towards someone who can help!

My partner has a CC debt with Virgin of just over £9000. The agreement and everything I think is fine, and he wants to pay it all back, but they are not budging on an interest rate increase to 34.5%. Back in february they increased it to 29.9%, then offered to freeze it at that if he closed the account. We had just moved house and needed the back up of the balance, plus didn't want to agree to a fixed rate of 29.9%, which is still very high. So he declined, but, despite many phone calls, they will not lower it. He has never missed a payment, sometimes overpays by quite a lot. The only bad practice has been when he was abroad for work and his maestro card wouldn't work, so he had to take cash out on the CC otherwise he'd have had no money at all. They know this is the reason, but obviously getting cash out on the CC doesn't look good.

After speaking to the financial ombudsman they suggested officially complaining to Virgin. So I was just looking for pointers/suggestions for the complaints letter, if you have any. Any advice would be much appreciated. Sorry for the longish post, but wanted to give you some background before asking for advice!
Thanks very much.