Unenforceability & Template Letters

never-in-doubt

ramblingtree wrote: »

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.

Hiya

The banking code is quite clear with this one, if a bank wants to increase your APR then they have to give you the option of freezing the existing APR and closing account until the balance is paid in full.

Therefore, I suggest you write to Virgin and tell them in no uncertain terms that as you'd only received a letter regards to the second increase and not the first one from XX% to 29.9% (in Feb) that you refuse their offer and will instead continue to pay back the debt at the agreed rate when you signed the contract.

That means that assume you had an intro apr of say 0% for 12mth, and this expired in Feb, and the rate then went from 0% - 29.9% the rate you'd have to pay is 29.9% - NOT 0% (just to be sure on that!)

Hope that makes sense and is of a little help.... bottom line is the bank cannot just increase APR's without giving you first refusal to repay at existing rate (exlucing promotional ones)

Good Luck.... :beer:

Jackswan_2

Thanks N-I-D.
I have looked at what I would call a generic CCA which has been described by Sainsbury's as a reconstituted version of the executed agreement. Strange word to use - reconstituted - meaning - to provide with a new structure.

My interest is in the original document which they are trying to suggest they don't have to supply, not with a signature anyway. The CCA document forwarded is a new structure, granted it gives interest rates etc., but they are rates today not when I joined many years ago, the minimum monthly payment 2,25% of money owed, etc., all todays details.

ramblingtree

Hi NID,
Thanks for the advice. From what you say they should definitely reduce it to 21.9%, which it was raised to in Aug 08. They didn't offer to freeze it then either, but am I right in thinking the legislation you talk of came into effect after that date?
Thanks again.

Bleddry

I am reporting in to N-I-D as I have had a response to the letter you kindly drafted for me a few days ago.
It is as follows:

Unfortunately, we are unable to provide a full response to your letter because it is not signed.
HSBC implements this policy to protect your account details.
Please refer to section 7(3) of the Data Protection Act "Right of access personal data" and allow us to quote from the section.

"A data controller is not obliged to comply with a request under this section unless he is supplied with such information as he may reasonably require in order to satisfy himself as to the identity of the person making the request and to locate the information which that person seeks"

We can assure you that this is not a deliberate attempt to withhold information and we are happy to furnish documentation to you upon receipt of a signed request.
We trust this clarifies our position.

??? The fact is, before I read your thread, I had already sent a couple of requests for the agreement which included my hand written signature (They have numerous letters with my signature going back over quite some period of time now). If you recall, they sent me a letter saying that they were unable to comply with my request as the signature on the letter does not match the given signature on their clients file. etc.. Which is why I requested help originally, and I duly signed your draft (thank you again for that) along with digital sig. as advised.

What do you make of this..... farce?!?
This latest letter includes personal info ie. acc. no., balance o/s and my name and address, but if they don't think I am who I am, why are they responding to my letters including this info.?
I am at a loss as to what I should do next.
Please, what do you suggest?
(I'm waiting for someone to jump out and shout "April Fools!")

never-in-doubt

ramblingtree wrote: »

Hi NID,
Thanks for the advice. From what you say they should definitely reduce it to 21.9%, which it was raised to in Aug 08. They didn't offer to freeze it then either, but am I right in thinking the legislation you talk of came into effect after that date?
Thanks again.

Hiya

Just try it and they will then write confirming the exact date etc and if anything you reach a compromise......

You will not be able to use the card again though.

never-in-doubt

Jackswan wrote: »

Thanks N-I-D.
I have looked at what I would call a generic CCA which has been described by Sainsbury's as a reconstituted version of the executed agreement. Strange word to use - reconstituted - meaning - to provide with a new structure.

My interest is in the original document which they are trying to suggest they don't have to supply, not with a signature anyway. The CCA document forwarded is a new structure, granted it gives interest rates etc., but they are rates today not when I joined many years ago, the minimum monthly payment 2,25% of money owed, etc., all todays details.

Hiya

My letter explains to them (and you) exactly where they have gone wrong. Remember banks are liars - do not trust them one iota!

Bottom line is that letter you send will prove to them that they aint dealing with no muppet! i.e. they will start to argue in a more 'factual' way but you still have em by the bollox - no signed agreement means no legal entity to repay cos how can they prove you owe anything, after all without a signature they could just create agreements for anyone and send the bailiffs round lol - ermmm, thus they must provide a signed agreement. :T

matty4113

Ok guys and girls, I sent never-in-doubt a pm and he recommended i put the query in here to gain more feedback so here it is.

My story- i took out a loan with a&l in may 2005 which contained ppi. i borrowed further in 2006, again this contained ppi. this loan cleared the old one and i was issued a new account number.
I then cancelled the ppi in 2007 and was issued with another account number and amended payments.
I claimed back the ppi from both these loans earlier this year which I was very happy with.
Now i have requested a cca for my current loan (which actually started in 2006 but i was given a new number in 2007 when i cancelled the ppi) they have failed to send me one within the 12+2 days so i am sending the second letter tomorrow.

I hope your keeping up so far lol. My questions are; do i have to follow up with an sar? if so when should i send this? And which agreement would i need to see if it is unenforceable? the original settled one from 2005? the current one which i started in 2006 or the amended one from when the ppi was cancelled in jan 2007?

Hope i havent fried your brain too much lol, When am i legally allowed to stop making payments? Is it now or after the further 30 days?

Many thanks
Matt

matty4113

and my reply from n-i-d..........

Hi Matt

You can legally cease payments at any time, regardless of any legalities the lender will still report the late payments to the CRA's thus affecting your ability to get credit - its a catch 22.

Basically, if it is one loan, i.e. you asked for a loan and then they changed things due to the PPI, this is their fault and they should match the paperwork. What i'm saying is that you signed one CCA right? At the time of the loan? It is this copy you need to see.

If you got a new loan and upped the original one then you need the new loan's CCA - following me? If the lender changed something that's their problem, you aint bothered - they still have to comply.

Leave it with them and see what they come up with..... being honest, if you know you're going to default (i.e. cannot afford the repayments) then you may as well stop paying now and save what you can! If you want to keep your credit record intact then unenforceability may not be the best option here.... its usually designed for people with nothing to lose, i.e. already defaulted.

What is the loan amount and the actual debt (balance), is this the only thing you're looking to make unenforceable or are you looking for other credit accounts as well?

Send the reminder letter and see what happens - the dates are the legal minimum that must be given, anytime after this then you are in control. So its up to you if the debt is unenforceable or not, if they do not respond after 30 days (in total) which legally is ample time.

A SAR is only any use if they continually mess you around but even so, may not contain the CCA.

matty4113

Ok so i think the CCA i am after is from 2006 when i upped it because the 2005 one was cleared. Although i got a new number in 2007 when i cancelled the ppi, it was still the same loan from 2006.

original loan was £15,000 in 2005. I borrowed a further 5k in 2006 to make £20,000 but the actual loan was for £18,700 as I had already paid the old one for a year. The balance now is around the 9K mark.

I have paid all my other debts off except a credit card (this was taken out post april 2007 so I am not worried about that.

With the loan I have never missed a payment and always pay direct debit on the 1st of each month. I am able to manage it no problem but if its unenforceable then all the better for me really, however I am having doubts due to the credit record you mentioned.

I have sent the reminder letter which gives them 30 days, although it says I will make no more payments until it is sorted I am unsure whether to or not.

If I dont make any payments for say 2 months, then they produce a CCA, does this mean I then have to stump up 2 months payments in one go??? If thats the case I may aswell a) keep paying it, or b) stash the money to one side to be safe. Very confused.......any help is appreciated.

never-in-doubt

Bleddry wrote: »

What do you make of this..... farce?!?
This latest letter includes personal info ie. acc. no., balance o/s and my name and address, but if they don't think I am who I am, why are they responding to my letters including this info.?
I am at a loss as to what I should do next.
Please, what do you suggest?
(I'm waiting for someone to jump out and shout "April Fools!")

Mate don't worry - just send this back to them!

Request for a signature before release of Information

Dear Sirs,

Account No:

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