Unenforceability & Template Letters

never-in-doubt

matty4113 wrote: »

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.

Hiya

Going on what you've said i'd seriously think twice about unenforceability because if you miss payments (whether lawfully or otherwise) the lender will add derogatory data and only going to court would change that.

So, if you have a perfect credit file then to be honest I would be prone to pay the loan and keep my credit file intact...... consider a 0% BT card like MBNA Platinum/Virgin etc..... you may get it and then pay 0% interest?

One of the regulars on stoozing would be better to assist with this. I'll ask them to pop in if you get no replies....

However for £9k i'd personally not go down the unenforceable route.... but now you've started you may as well hassle them for the agreement and still pay. Just to protect yourself.

DO NOT agree to an 'arrangement to pay' as this shows on your credit file and will affect you obtaining credit. Whilst you're still working apply for a 0% BT card from MBNA so you can get cash into your bank and pay loan off...... you following me? Its called a super balance transfer which means you can pay money to your bank account

matty4113

OK so I would need a card with a limit of about £9k?
So the only way the account would show as settled is if it went to court? Dont you think they would cave in before court if the CCA was unenforceable?
And yes some stoozing advice would be great.
Many thanks.

Bleddry

Dear Never-in-Doubt,
I really can't thank you enough for this advice -
and the peace of mind that comes with it.

You're positively star-like!

never-in-doubt

matty4113 wrote: »

OK so I would need a card with a limit of about £9k?
So the only way the account would show as settled is if it went to court? Dont you think they would cave in before court if the CCA was unenforceable?
And yes some stoozing advice would be great.
Many thanks.

Hiya,

Best people to ask about stoozing advice is moggles/cannyjock/yorkshireboy to name a few (sorry if I forgot you!).... I'm sure if you PM one they may be able to help...

Yea, you need a £9k limit but if you have good credit it is worth a go - bear in mind people have £30k limits with MBNA on here!

They will not have to cave in if they cannot produce a CCA and if they can't then they will remove default entry and the whole account altogether so it'd vanish in its entirety - so long as you request this in your claim at court.

never-in-doubt

Bleddry wrote: »

Dear Never-in-Doubt,
I really can't thank you enough for this advice -
and the peace of mind that comes with it.

You're positively star-like!

No worries mate - as you see, whatever the banks write back with, there is an answer! I wouldn't suggest sending a letter that would catch us out with something silly like a signature! Its part of the plan....

ok, i'll explain. You demand CCA - they have time limits. You know that you do not need to sign, the bank thinks you do. They then waste time asking for signature. You then send the letter above. They then realise they were wrong and by then they have breached CCA by being late (following me yet?).....

Like hanging yourself, if you see what I mean.... basically you're messing with them, and showing off at the same time! All the while watching (and assisting) in them digging a hole

They will sink that low - its shocking.... plus I am totally pro HSBC so this hurts me doing this you know - hahah

ramblingtree

Thanks NID, I shall give it my best shot and see what happens!

matty4113

Hi all, hope you can advise.
As i mentioned before i have a credit card with lloyds, it is post april 2007 so nothing i can do about it, however i still requested a cca for my personal info.
It came through the post today and makes a very interesting read!! Here is the first paragraph, can you shed any light on this?

'I have enclosed with this letter a copy of your executed agreement, a copy of your current terms and conditions and a signed statement of your account. 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. There is no requirement under the CCA to provide you with a copy of the original signed agreement. We are endeavouring to locate the copy of your signed agreement but please be assured we would not have opened a credit card account without having sight of a signed agreement. For the avoidance of any doubt, we have set out in the appendix to this letter your rights under section 78.'

I smell a rat here! I know i cannot persue unenforceability but are they taking me for a fool? The only thing signed in there is a copy of this months statement, plus the agreement (unsigned) and terms and conditions. There is no date on any of it, except the statement (this months)
Should i persue this just so I can report them to trading standars or is what they have said ok??

Many thanks.

Matt

never-in-doubt

matty4113 wrote: »

Hi all, hope you can advise.
Matt

Matt

You send the following back to them mate! You really need to READ THIS THREAD all these questions have been answered before, letters are here, solution is here!

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

matty4113

Thanks, I have read this thread however they seem to be using sneaky tactics, wanted to make sure before I proceed.
And I dont understand.... why say that there is no requirement under the CCA to provide you with a copy of the original signed agreement when there clearly is?
Are they just blatant liars?
Thanks again.

never-in-doubt

matty4113 wrote: »

Thanks, I have read this thread however they seem to be using sneaky tactics, wanted to make sure before I proceed.
And I dont understand.... why say that there is no requirement under the CCA to provide you with a copy of the original signed agreement when there clearly is?
Are they just blatant liars?
Thanks again.

Matty

Thing I think you're missing here is that you're not sticking to any particular section of the act. For instance, you request CCA (s.77-78 CCA), they reply with a dodgy copy, you then argue this using a different section of CCA that supersedes their reply (i.e. they will hide behind saying "There is no requirement under the CCA to provide you with a copy of the original signed agreement")

That reply is half correct, but what they fail to tell us is that in s.60 (1)(2) of the CCA 1974, unless an agreement is signed, it is not valid. See the contradiction?

So although it doesn't spell it out, the CCA 1974 does clearly describe elsewhere that without a signed agreement the document is not valid.

Following me.....

The actual relevant terms I refer to is below - read it over a few times and it will start to make sense...... this info is not contained within s.77-s.78 of the CCA 1974, therefore the bank think it is not relevant (muppets!)..

Red text is the key bits....

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.