Unenforceability & Template Letters

never-in-doubt

CeeBeeDeeBee wrote: »

Hi Never In Doubt, this is a great thread and I'm glad you had a great holiday

Thanks! I'm nice and chilled now lol.....

CeeBeeDeeBee wrote: »

I have a M&S Money credit card which I have now defaulted on and it has been sent to Collect Direct UK for recovery. I sent off the CCA request letter to Collect Direct and recieved back from M&S Money a copy of my application form along with a 'credit agreement'

Is it your signed Agreement or a true copy, i.e. exact terms from the time for the exact same product?

CeeBeeDeeBee wrote: »

The credit agreement was unsigned by me, had no name, address or account number and the interest rates were different from the application form, even the date on the creditors stamp was wrong (some 6 months later!)

Ok so it would immediately become unenforceable if this is the case, you need to point this out to them using the query letter on page 1.

CeeBeeDeeBee wrote: »

I sent back to Collect Direct the letter stateing that was unenforcable and have recieved a letter yesterday;

"Our client has provided in good faith all the information they are required to provide under sections 77 or 78 of the CCA74. They have examined this agreement, and your account, and are satisfied that there is no valid dispute and that they have a legally enforceable agreement with you. This, at the very least, is evidenced by your use of the account and reciept of the credit funds. Our client has therefore fulfilled their obligation with regards to your alleged dispute.

The MOJ and OFT have recently issued a consumer alert, warning people of the riskes of being misled over the enforceability of CCAs. We therefore strongly recommend you now seek legal advice if you intend to rely any further on the alleged breach of any of the acts that govern this account, pertaining to your liability to our client, as your current understanding is inaccurate."

Now I know that the documentation they supplied is not an enforcable agreement or whatever the correct term is, but what do I do next?

Chris

You're right, it not enforceable....

I'll post you a letter to send shortly - bear with me yea?

never-in-doubt

Send the following letter to them, just amend the dates etc from the letter!

Good Luck....

CCA Request Query Letter

Dear Sirs,

Account No:

On xx/xx/2009 I wrote requesting that you supply me a true copy of the executed credit agreement for this account. In response to this request I was supplied a document a copy of which is attached which did not comply with the requirements of the Consumer Credit Act 1974.

I will not even lower my standards attempting to answer your diabolical claims, which you clearly know nothing about; in particular to come out with such a statement as 'This, at the very least, is evidenced by your use of the account and receipt of the credit funds'; need I remind you that this has no impact whatsoever on the legitimacy and enforceability of any alleged agreement and I strongly suggest you seek legal advice prior to your response as you evidently do not understand the actual CCA(1974) or the ramifications for unlawful agreements.

The document sent purporting to be a credit agreement does not contain all of the prescribed terms as required by section 60(1) Consumer Credit Act 1974. The Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) made under the authority of the “1974 Act” sets out what the prescribed terms are, I refer you to Schedule 6 Column 2 of SI 1983/1553 for the definition of what is required. Suffice to say several of the terms are not present in the document

Since this document does not contain the required prescribed terms it is rendered unenforceable by s127 (3) consumer Credit Act 1974, which states

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

This situation is backed by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the Consumer Credit Act 1974 the agreement cannot be enforced.

In addition should you continue to pursue me for this debt you will be in breach of the OFT guidelines, I draw your attention to the Office of Fair Trading’s guidance on debt collection;

The OFT guidance which was issued July 2003 (updated December 2006) relating to debt collections and what the OFT considers unfair, I have enclosed an excerpt from page 5 of the guidance which states;

2.6 Examples of unfair practices are as follows:

h. Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment

I require you to produce a compliant copy of my credit agreement to confirm I am liable to you or any organisation, which you represent for this alleged debt, if you cannot do so I require written clarification that this is the case. Should you ignore this request I will report you to the Office of Fair Trading to consider your suitability to hold a credit licence in addition to a complaint to Trading Standards, as you will be in breach of the Administration of Justice Act 1970 section 40.

Since the agreement is unenforceable, it would be in everyone’s interest to consider the matter closed. I suggest you give serious consideration to this as any attempt of litigation will be vigorously defended and I will counter claim for all quantifiable damages.

I respectfully request a response to this letter in 14 days.

Yours faithfully




Sign digitally

---

Letter edited at 21.47

CeeBeeDeeBee

Thats brilliant Never In Doubt thank you. I will get that sent off first thing in the morning

While you're on maybe you can help with another of my worries, I have C N Gaunt and Son HCEO bailiffs on me for a business debt which KSwiss got a CCJ for.

I sent them one of your letters to stop them from making an unannounced doorstep visit yet one of their guys turned up Tuesday afternoon. Are they allowed to do that because they are HCEO's? Is there anything I should do to deter them from trying again?

Thanks
Chris

never-in-doubt

CeeBeeDeeBee wrote: »

I sent them one of your letters to stop them from making an unannounced doorstep visit yet one of their guys turned up Tuesday afternoon. Are they allowed to do that because they are HCEO's? Is there anything I should do to deter them from trying again?

Thanks
Chris

Hiya,

What do you mean they turned up after you sent the letter? I hope you sent it recorded and if so, seek legal advice or just write and complain to Ministry of Justice as this is clear abuse.

Did you send letter from here: Dealing with Bailiffs Harassment? If not, read the thread mate, you'll learn loads and see the whole law!


Dealing with Bailiffs Harassment

CeeBeeDeeBee

Thanks Never In Doubt, this is what I sent them;

" Dear Sirs

I write regarding your electronically signed letter dated 16th September 2009 which was received today.

Please be advised that I will only communicate with you in writing.

Furthermore, should it be your intention to arrange a ‘doorstep visit’, please be advised that under OFT rules, you can only visit me at my home if you make an appointment and I have no wish to make such an appointment with you.

There is an implied license under English Common Law for people to be able to visit me on my property without express permission; the postman and people asking for directions etc (Armstrong v Sheppard & Short Ltd [1959] 2 QB 384. per Lord Evershed M.R.). Therefore take note that I revoke license under Common Law for you or your representatives to visit me at my property and, if you do so, you will be liable to damages for a tort of trespass and action will be taken, including but not limited to, police attendance.

Be aware that all the doors and windows of the above property are always kept locked and I am fully aware of my rights regarding ‘bailiffs’ and the limited powers of entry and recovery which you possess. I also have video recording equipment at the property and will maintain a recording of any event regarding this matter.

I would also like to point out that I am no longer trading from ***** and you should not visit there in relation with this matter.


Also I am no longer trading from any location, am not in employment, am in receipt of no benefits and therefore have no income whatsoever. I also have no assets of value and huge liabilities to HMRC in respect of PAYE, National Insurance and VAT arrears along with many other creditors. It is therefore unlikely that you will be able to recover any monies from me for this matter aside from a token payment of £1.00 per month. "

It was sent Royal Mail Signed For yet on Tuesday they posted a "No. 55 Notice of Seizure" through my door.

I have read through the bailiff thread (another great one!) and posted a few questions on here to see if they have extra powers because they are HCEO's so I know not to let them in under any circumstances!

Thanks
Chris

never-in-doubt

They still have to conform to the same regulations, do not worry.

Have a mooch here for extra guidance: http://www.hceoa.org.uk/visited.html

Basically, they still need to get a signed Walking Possession Agreement - as they cannot access the house unlawfully, they can never obtain the WPA. If you let them in and they perform the WPA then they can break in - and only then!

Same rules throughout mate - they cannot just break into someones house.

As a sidenote, when was the recorded letter signed for (after Thursday or before it?) - if still unsigned then send special delivery so they get the message this time and that way you also have a recorded proof with a signature to pursue action against their harassment.

CeeBeeDeeBee

Thanks for that Never in Doubt, I can see why you're in demand so much

I sent my letter on the 18th of September and checked on the Royal Mail site and it said it had been delivered. I will dig out the tracking number and ring them tomorrow to see who signed for it.

I will then send them another letter with a copy of my first reminding them not to come again and see what happens. Is there anything else I should put into my second letter to show them I know my rights etc and sound meanacing lol

Thanks
Chris

never-in-doubt

CeeBeeDeeBee wrote: »

Thanks for that Never in Doubt, I can see why you're in demand so much

I sent my letter on the 18th of September and checked on the Royal Mail site and it said it had been delivered. I will dig out the tracking number and ring them tomorrow to see who signed for it.

I will then send them another letter with a copy of my first reminding them not to come again and see what happens. Is there anything else I should put into my second letter to show them I know my rights etc and sound meanacing lol

Thanks
Chris

Hiya,

Basically just write a cover letter with a copy of your original letter, stating they have now broke the law and if they do it again you will seek legal action and complain to MoJ and seek compensation for embarrassment and harassment.

The actual letter you sent is proof of the fact you know your rights....

Good Luck...

tobyandoatch

Hi

Not sure if anyone can help? Basically I have a loan with RBS which they have lost the signed agreement for and admitted this fact. I have had a response to numerous letter requesting that the balance be returned to zero and that they do not issue a default on the account as it is currently in dispute. This is part of the letter they have sent back which I need some help with a reply:

"What we pointed out is that the loan agreement remains valid i.e section 77(4) does not make the agreement void. The debt exists and we are entitled to carry out all actions that do not amount to enforcing the agreement. Reporting to Credit Reference Agencies, your client's failure to pay sums due under the agreement is not 'enforcing the agreement'."

"Section 170(1) excludes all criminal or civil sanctions for breach of the Act, other than those expressly provided by the Act. The consequences of failing to comply with the section 77(1) are set out in section 77(4)."

"It would seem that your position is that our reporting your default to CRAs is 'enforcing the agreement'. We do not share this interpretation of the disability we suffer by not being able to enforce the agreement"

"We accept that if you continue not to meet your obligations under the agreement it would be futile for us to raise court proceedings against you as you would simply seek a stay of the proceedings pending our compliance of the section 77(1) request."

"As the only point of difference between us concerns the meaning of not being able to enforce the agreement we suggest that you reconsider your position and advise us accordingly"


I am not sure what to respond as they have completely ignored my letter which is posted below which I have sent 3 times to them:

Thank you for your letter dated XXXXX, however I find it difficult to believe that you have mislaid such an important document as the copy of the credit agreement.

It would appear that you have failed in your obligations to comply with the various anti money laundering regulations in not keeping such documents. This, as I’m sure you are aware, is a very serious offence.

I now require the balance of this account to be returned to zero.

Please note you may also consider this letter a statutory notice under Section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect. This means you must remove all information regarding this account from your own internal records and from my records with any CRAs. Should you refuse to comply, you must within 14 days provide me with a detailed breakdown of your reasoning behind continuing to process my data. It is not sufficient to simply state that you have a ‘legal right’, you must outline your reasoning in this matter and state upon which legislation this reasoning depends.

Should you fail to respond within 14 days, I will expect that this means you agree to remove all such data.


Furthermore, you should be aware that a creditor is not permitted to take any action against an account whilst it remains in dispute. The lack of a credit agreement is a very clear dispute and as such the following would apply:

• You may not demand any payment on the account, nor am I obliged to offer any payment to you.
• You may not add any further interest or charges to the account.
• You may not pass the account to any third party.
• You may not register any information in respect of the account with any of the credit reference agencies.
• You may not issue a default notice related to the account.

Please be aware, the CCA 1974 is very clear that a default can only be issued for breach of a valid, regulated agreement. As there is no agreement a default cannot be lawfully issued as no valid, regulated agreement has been breached.


I would ask that you review this account and respond favourably within 14 days of the date of this letter. Failure to do so will result in me reporting this matter to The Financial Crime Branch of HM Treasury and any other authorities as I see fit.

C2K_2

never-in-doubt wrote: »

Hiya,

Thanks for comments - happy to help

If the prescribed terms and signature are shown on a single page or continuous set of pages then it does conform to the CCA so your answer is no, it wouldn't be worth challenging IMO. :mad:

To be fully compliant, if it is a credit card then it should contain parts B, C & D (see below) - from page 1

Hi N-I-D

Thank you for your comments, I don't know if it is still worth persuing on the basis that I was only sent a copy of CCA with the prescribed terms plus my signature, but not a TRUE COPY that I specifically asked for using your template letter. The covering letter they sent also states:

"Under the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 we can comply with the legal requirements by sending you a copy of an agreement in the same form as the one that you signed, but excluding the signature box, customer signature and the date of signature."

Does it imply that the Consumer Regulations 1983 overpowered the Consumer Credit Act 1974?

Your further comments would be greatly appreciated.

Many thanks one again.