Unenforceability & Template Letters

UTUBE

mt191919 wrote: »

I have received the signed CCA I requested from Nationwide.

But the term states 36 months, when I actually took the loan out over 42 months. This also means the 'monthly repayment' figure is incorrect.

Does this make my loan un-enforceable?

I would have thought it just needs a rework.

If you are paying a 42 month rental over a 36 month period you may have been underpaying

izools

emlc27 wrote: »

Can you ask a mobile phone company for a copy of the originall agreement

Telecommunications providers aren't regulated by the consumer credit act I'm afraid.

They are governed by the Data Protection Act and OFCOM are the regulatory body.

Have they sent your contract to a debt collection agency?

I've had an issue with O2 regarding an unsubstantiated contract, and I have drafted this letter which will be sending when the christmas bonus arrives!:

(Perhaps you can glean some information from the letter which may help you if you are in a similar position)

To whom it may concern:

I am writing to you today in regard to an ongoing dispute with your company in regard to a default marker left on my credit report and an alleged outstanding balance on my account of £904.88.

I have liaised with your company many times both by telephone and in writing regarding this matter in the past to no avail.

I would like to advise that both the OFT and OTELO are happy to assist me with resolving my complaint and take over as mediator in this matter however I am providing your company with one last chance to rectify the issue.

For your reference I will lay out the cause for my dispute in two simple points:

·You did not issue a default notice to me in writing prior to recording a default maker with the CRAs
·You allege that I agreed to extend my contract term by 18 months to January 2008 when so such agreement was ever made by myself

Please let me make it clear from the outset that I have no intention of withholding payment from your company and am happy to come to a reasonable full and final settlement in line with what I am legally bound to pay to you.

It would appear that you recorded a default marker with the Credit Reference Agencies without writing to me giving me advance warning that such a marker will be recorded should I fail to make payment to you. It is a basic requirement of all creditors and service providers that they provide any debtor or subscriber with written warning that adverse information will be recorded on their credit report, should they fail to meet a given financial obligation. No such warning was provided to me and as such I was unaware that I had to rectify any issue to prevent the account from falling into default.

It would also appear that you extended my contract term until January 2008 in exchange for a Sony Ericsson K800i. Let me make it absolutely clear that under no fathomable instance did I ever agree to enter into an extended term contract with your company. I have queried this with your company several times, and it has been alleged that my contract SIM was used in said Sony Ericsson K800i handset. This is not in dispute. What is in dispute is the allegation that the Sony Ericsson K800i handset was to be used only if I agreed to enter into a contract extended to Jan 2008.

To date, despite numerous written and vocal requests for your company to substantiate its claim that I agreed to be tied into said extended term contract, no documentation or agreement to contract has been provided to me in any form, be it written, vocal, or digitally signed.



To quote the Consumer Protection (Distance Selling) 2000 Regulations:

Where goods are sent to a consumer with no contract stipulating delivery, the recipient may use, deal with, or dispose of the goods as if they were an unconditional gift to him and the rights of the sender to the goods are extinguished. [This is to prevent companies purporting to be entitled to monies whereby an individual receives goods and uses them].

It is my belief that either fraud or mis-selling has taken place and as such £440.08 of the original default balance is invalid. Your claim that the use of my O2 SIM in the Sony Ericsson K800i signified my agreement to an alleged extended contract is clearly flawed at law, and a blatant contradiction of the Consumer Protection (Distance Selling) regulations.

Any alleged agreement to contract must be held in a durable format to be enforceable. As you have failed to provide me with a duplicate, in a durable format, of said alleged agreement to contract, it is clear that the addition of £440.08 to the default balance was vexatious and unlawful.


As a resolution to this matter, I propose that:

·The original default notice is removed from my credit files held with Equifax, Experian, and Call Credit
·Once this has been actioned, that a new default notice is issued to me, for the amount of £464.80
·That no adverse (i.e. Default account) information be recorded with the credit reference agencies if the new default notice is settled within thirty days of my receiving it
·That my original O2 account is marked as "Settled" with no "Date last delinquent" or "Default Date" information recorded on the proviso that the new default notice for £464.08 is settled within the thirty day timeframe suggested

To reiterate, there was never, and still is not, any intention of withholding payment from your company, merely ensuring that payments made are in line with what I am legally obliged to pay, and ensuring that data recorded with the credit reference agencies is representative of my lawful obligations to your company.

Please advise by return if this proposal is acceptable to you.

If this proposal is not acceptable, please advise your full and final response to allow my carrying the complaint forward to your governing bodies.

stace1234

Hi guys, im new here and after some advice.
On 2nd October, I had a DLC bailiff at my door regarding a car loan.
Apparently the loan was taken out in April 2004.
It was said to have defaulted in October 2007.
Looking through my credit file it did not appear as either a credit agreemt, there were no default marker on file, nor GAIN info or CCJ's
I wrote to them with CCA request on 2nd October, enclosing £1.00 postal order.
Have heard nothing from them, but on 11th October, my credit report has been updated and the British Credit Trust Agreement is now on my file, showing the default notice!!!!
What would you suggest be the next course of action?
Surely if thi was my loan, it would have shown on my file from the day i took the loan out. How can it be added to my file 5 1/2 years after the laon was taken out!
Any help would be appreciated.

ExNicotineQueen

evo8uk wrote: »

Hi i am new to this stuff but thought i would give it ago having looking through this site and many others. My situation is not that bad really but i have an AQUA credit card and the interest on it is killing me. I took this card in 2006 and have sent the orginal letter asking for the CCA.

Now presuming that they send me this and it is unenforceable I dont know what i should do ? I have been making payments on time etc etc my credit rating is getting better so i dont really want to stop paying them and get a default so i was thinking could write to them and negoiate with them to either short settle the account as it is better for them if it doesnt default ? or ask them to freeze the interest on the account ? either way it will benefit them and as they are in the wrong i cant just continue like they havent done nothing.

Read through this thread from the start. I posed a similar sort of question to n-i-d, read his replies. Basically if you don’t want to trash your credit file then your only option is to keep paying until you clear the debt. If you decide to go the unenforceable route then you have to stop making payments, in which turn will eventually lead to missed payment markers on your credit files and more than likely ultimately lead to Aqua placing a default on your file.

Think logically, why would Aqua want to ‘short settle’ an account when you have been meeting your monthly payments? Same logic would apply for them not freezing the interest. By all means, write a letter to them asking to freeze interest, however I don’t hold out much hope in them agreeing to it, but you never know.

If you stop making payments, your account will be passed to the debt collectors and by this stage would probably already be marked as ‘default’ on your credit files, this would be where you could negotiate with the DCA’s to pay a reduced sum in the hope that they remove the default marker off your file. However they may just turn around and accept the sum and not do anything to remove the default marker and then you would have to go through a lengthy (expensive) court process to try and get the default removed due to unenforceability. Considering the outcome could be 50/50, if you lose, your legal expenses would be hefty. That is the long and short of it.

I thought long and hard about going down this route, I still may regarding Barclaycard but in the meantime, I am knuckling down and sticking to a budget to repay my debts with the highest interest first and overpaying where possible. For me, it’s taken me years to get my credit rating back to normal levels and I don’t want to risk trashing it on the off-chance that if I did get a default, it may or may not be removed. That’s just my experience anyway.

captainhaggis

Guys, can we still go down the route of trying to nullify our CCAs if they are deemed unenforceable or did the recent test case put an end to this?

I don't want to make a start with it all if the policies/laws have changed.

Thanks

pebbles88

hiya,

i think that it justs means that even if they dont have the agreement, or have it as it should be they are still allowed to chase for payment, but cant 'make' us pay.

this is from another thread i use on here..
Its not all over at all.

This ruling is based on the passing of data to CRA's only.

The DCA's or creditors can pursue, but not harass. They can issue a default and basically carry on how they have been. However

What they can not do is MAKE you pay the debt of an unenforcable agreement.

The ruling is also based on the particulars of this case only and all cases are different.

So all you do is change your pareticulars of claim to remove reference to Data Protection.

If the default was illegally added then you can still pursue.

And if they have not got an agreement then the ruling is not relevant because there will be no CONTRACT to enforce

HTH,

here is the link to that thread..
http://forums.moneysavingexpert.com/showthread.html?t=767025&page=102

cally1976

hi, i recently sent out copies of your first template letter asking for a copy of the credit agreement....tesco finance replied that the letter needed to be signed and they could not locate the account and asked for the sort code and account no. which i dont have as it is a credit card and i had given the long no. accross the card as the ref. no.!!!
also a reply from Barclaycard with a photo copy of the leaflet they send out with the credit cards which i cant even read as it is too small....should i actually be getting back a photo copy of the agreement i signed??

captainhaggis

Hi all,

Given that it looks like these requests for CCAs and the fact that they might still be unenforceable means it's worthwhile to persue this line of action, I wonder whether I'd be silly to do so given that I'm in payment arrangements with my creditors.

Are they likely to make it more difficult for me to stick to these arrangements if it looks like I'm aiming to take this CCA route with them?

I have the following accounts/years :

EGG CARD circa 2000
LLOYDS VISA circa 2003
LLOYDS LOAN circa 2006
EGG VISA circa 2001
EGG VISA circa 2001
MBNA AMEX (probably) circa 2006 (this card used to be a Mastercard but was changed to an Amex and I cannot remember signing anything new when this happened)

From your experience, does it sound like some of these might be unenforceable?

Thanks heaps .

EDITED TO ADD : While in a payment arrangement with MBNA during which I was paying them about £42.00 a month, they continued to charge me about £40.00 a month for PPI. GRRRRRRRRR.

I want to challenge the debt and claim back the PPI but don't want to jeopardise the arrangement I have in place or the F&F we've negotiated (but that I haven't signed up to, yet).

sandraroffey

can someone please give me the link to the letter i need to send to la redoute, telling them that the CCA i requested isnt a CCA at all, its just a blank piece of paper?? that makes it unenforceable??????

the thing they sent didnt have anyone name on it, nor an account number, no signature, no date, no address, just a blank form.

ricardovich

Hi everyone

I have sent out the first of these letters last week. A couple of questions:-

Connaught Collections have replied with "......due to the fact that the outstanding debt has been assigned from the original creditor to our client, it may take longer than the 12 days specified within the Consumer Credit Act".
Do I ignore this and carry on with the the 30 day letter??

and

Wescot have replied with "In order for us to comply with your request please confirm the last 3 addresses that you have resided at.This information is requested to ensure Wescot is not in breach of the data protection act"
What is this all about??

Thanks in advance for any advice.
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