Unenforceability & Template Letters

gogetum

Few more details here. Both CRA's, Experian and Equifax have details of this default listed but slightly more detail on equifax.

Equifax show the original loan started in November 2002. Last payment received and marked S (settled) March 2004!

No Default has been entered by M&S...

New account created by Olympia Capital/thames credit Ltd (trading under AK i guess) the ref number is the same -

March 2007 D
April 2007 S

To me, the dates dont add up!! Why would they place it on there over 3 years later!?!?

The fact still remains that I never knew about it and I asked them for proof of the default letter to which they sent me a COPY of their introductory letter dated 24/05/2008... An intro letter saying I should pay them yet they stuck a default on a year prior to that!!!

Thanks for all your help!!

never-in-doubt

Hiya

Ok send the following letter mate. Its self explanitory (ignore the little white lies)....:

Dear Sirs,

Account No: XXXXXXXX

I write with reference to previous communication regarding the above numbered account.

To give you a brief overview, I used to have a personal loan with M&S (21.11.2002) and was in the Army at the time, thus living at an Army property with my now ex wife. I went to Iraq in January 2003 and sent money back to my ex wife to repay the loan. Upon my return from Iraq, our marriage dissolved and we went our separate ways, no mention of the loan was ever discussed due to my believing it was repaid using the funds I sent to my ex wife back in 2003. I moved away and remarried in 2005.

All of a sudden, out of the blue, I received a letter (10.02.2009) from Buchanan, Clark & Wells requesting full repayment of the loan (£3,216.23) to which I was gobsmacked as I believed this to have been cleared back in 2003. Bear in mind we're talking 6 years since I was in Iraq.

I immediately telephoned BCW and queried this loan to which they advised was outstanding and that they would take my house and send in the bailiffs to remove my goods if I didn't pay there and then. I was horrified to be spoken in such a way but they told me to be quiet and listen because they knew the law and told me I did not. Obviously I didn't know what to do so I hung up and later on decided I would repay and check the details later as I did, and still do, believe that the amount requested was incorrect and they may have mistook me for someone else. I rung back and requested they prove that I was the same person they seek; I also reminded them of the law and quoted the following;

"I am familiar with the CPUTR 2008 and the Office of Fair Trading's Guidance on debt collection, which states that it is unfair to send demands for payment to an individual when it is uncertain that they are the debtor in question. Under the OFT Guidance, it is unfair to pursue third parties for payment when they are not liable and in not ceasing collection activity whilst investigating a reasonably queried or disputed debt you are using deceptive/and or unfair methods."

After this they did confirm that if I paid the debt within 14 days they would not leave any derogatory data against my name with the Credit Ref Agencies and would investigate my claim about liability immediately. I was bullied and harssed into paying and ended up doing so in the knowledge I would be appealing at a later date.

The agreement, made verbally with the man from Buchanan, Clark & Wells, was as follows:

• The Default Notice will be removed
• The Status of the account will change from “Defaulted” to “Settled”
• The Current Balance will appear as £0.00
• The Default / Delinquent Balance will be set to £0.00
• There will be no date in the “Defaulted Date” field (as it will be removed)
• There will be no date in the “Date Last Delinquent” field on the report
• This will apply to all 3 Credit Reference Agencies, namely Experian, Equifax & Call Credit

So with this in hand, it made sense to pay knowing that no harm would be done to me, bear in mind I never disputed the fact I had a loan, I simply disputed the amount and the way in which I was hunted down and labelled a criminal when I did nothing wrong and would never have known my ex wife did not repay the loan. As proven, I paid immediately when BCW contacted me.

The thing is, whilst I agree that if I owe the money it should be repaid, I am unhappy at the gung-ho attitude used in which a default notice was unlawfully served on me based on my verbal agreement with BCW and the law. I feel this default entry was not only added unlawfully but also without merit as I agreed to settle in full and was told no default was be registered against me, doing so has immediately put you liable to a breach of Consumer Credit Act 1974, in particular s.87(1) of said Act; I quote the relevant parts for your perusal:

Section 87(1) of the 1974 Act allows the creditor to send you a default notice giving you fourteen days from the date you receive it to pay the arrears. The default notice must contain all of the necessary information under the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 ('the 1983 Regulations'), which includes

• a statement saying the notice is a default notice served under section 87(1) of the 1974 Act
• a description of the agreement
• the name and address of both the debtor and the creditor
• details of the breach (i.e. late payment) and, if the breach can be remedied, the date by which it must be remedied or, if the breach is not capable of remedy, the amount required to be paid after the expiry of the specified date;

As is clearly evident, the actions of BCW was non compliant and a default was indeed registered against me, dated 07 May 2007. I rung BCW again to clarify this, as I was never sent a default notice (if I had of been i'd have paid long before the actual default was added) and they stated they would notify Aktiv Kapital as they now owned the account.

To date I have heard nothing else, so here I am, after seeking legal clarification demanding removal of the unlawful default prior to my seeking enforcement via the county court.

I can confirm that a legal & compliant default notice was never served on me due to the fact the copy I have, is addressed to me at my old Army address dated 25.04.2008, which I vacated in 2005. I was also registered at my current address with the elecoral register.

This all proves I was never hiding from anything, had you done your tracing job properly then i'd have paid what was owed at the first request and no default would ever have been registered and this matter would have been long closed. However, due to discrepancies from BCW I feel I have no alternative but to pursue full recovery of all monies paid due to their harassment and illegal threats and the fact the debt may have been statute barred thus rendering collection activity unlawful with the blatant breach of promise and non receipt of default notice I feel it is in both our interests if the default notice is removed, in which case I will walk away satisfied.

Failure to agree will result in more formal papers being sent. I do hope you can investigate my claims and agree that a mixture of failing amounted to an incorrect default being served against me. As is evident, I was never living at the address the notice was served thus rendering it unlawful. I await your response and in the meantime, look forward to your response within the next 21 days.

Yours faithfully,




Sign digitally

scarednshakin

Your reply cheered me up no end :beer:

Ok I think I have covered everything you asked for

Balance is £6133.48

Last payment was 26 June 2009 for £1, had only been making token payments since start of year.

Sent CCA on 5 June 2009.

C One replied 11 June 2009 with copy of alleged CCA.

Sent SAR request on 30 June.

Reply received on 30 July, same infor received and copies of statements.

OH wrote back on 19 August saying that what he had received was unenforceable.

While waiting for reply C One passed debt onto Capquest, OH wrote to them and Capquest put acc on hold until information was received from C One.

Received letter from C Quest on 3 September saying they no longer act for C One and that C One were unable to provide copy of agreement.

C One wrote to him on 7 September telling him acc back with them and to make a payment - no mention of lack of CCA.

Wrote to C One on 12 September, Account in Dispute letter and received the reply today. The reply was dated 7 October (these strikes must really be holding up the mail).

Forgot to say that they also enclosed a leaflet with the letter today called 'Please tell us if we make a mistake....' lol

Hope that makes sense and anything else you need just ask. Thanks so much for this:beer:

gogetum

Blimey thanks!!

Just to confirm that is to be sent to Aktiv Kapital? Will also request a SAR from M&S (are there any links to templates?). If required later on as M&S didn't place a default and perhaps there may be some small print stating that no third parties can etc?

Best

GGT

never-in-doubt

gogetum wrote: »

Blimey thanks!!

Just to confirm that is to be sent to Aktiv Kapital? Will also request a SAR from M&S (are there any links to templates?). If required later on as M&S didn't place a default and perhaps there may be some small print stating that no third parties can etc?

Best

GGT

Hiya

Don't worry about the default, my letter above covers that and we can address the assignment at a later date if they play silly beggars.....

Yes send to AK. Send SAR to M&S using below letter:

Section 7 Data Protection Act - Subject Access Request

Dear Sirs,

Account No:

Please supply me with a copy of all information your company hold on me including a list of accounts and details of payments.

Under the Data Protection Act 1984 and 1998, and including the right of subject access under these acts, I hereby request that you supply me with any and all historical data in your possession which relates to me and am entitled to under section 7(1) of the Act.

If you store any of the older records on microfiche, please be aware that the Information Commissioner deems this to be a relevant filing system under the Act. As such, any microfiche data must be sent to me in fully legible and comprehensible form.

Additionally, where there has been any event in my account history over this period which has required manual intervention by any member of your staff, or any other person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my business with you.

If you are unable to supply this data because there has been no such manual intervention, then please be so kind as to confirm this in your response.

I enclose the statutory maximum fee of £10. You have 40 days in which to comply. Furthermore, if I discover that you have levied disproportionate penalties against me or collected monies to which you were not entitled, then I shall be reclaiming them and also the enclosed £10 Data Protection Act subject access request fee.

Yours faithfully




Sign digitally

RoyalBlues

I am now seriously thinking that my CCA is 'unenforceable' due to the fact that I have had no reply to my original CCA request letter (sent on 10th September 2009 or my reminder letter sent on 5th October)

This is a very old credit card which was applied for and accepted in approx 1993???? I really cant remember exactly. It is an MBNA card and as each day passes without reply to my requests, I am becoming more convinced (it may be just misguided hope) that I am one of the many thousands of people who are currently in possession of an "unenforceable" credit card.

N-I-D?.................I was just wondering (with the above information) if you have any observations, as to why I have heard nothing.

My next minimum payment is due to be taken via DDR from my bank account next week and I have pretty much (about 95%) decided to cancel it before they take it.

N-I-D?.................what do you suggest?

Thanks,
AL

gogetum

And to add to this, when I wrote to AK and requested the original default notice and agreement, they sent me ONLY an introduction letter dated 24/05/08 (copy) but NO ACTUAL default notice...

Also in the covering letter, states that they have applied for the original agreemment and will sen in due course.....That was in May this year!!

No responses have been made to emails to their customer relations despite having 8 email read reciepts with the personal email addreses...

gogetum

Thanks so much!!! Will fire it over to them RMSD asap!!will report back!

GGT!

never-in-doubt

gogetum wrote: »

And to add to this, when I wrote to AK and requested the original default notice and agreement, they sent me ONLY an introduction letter dated 24/05/08 (copy) but NO ACTUAL default notice...

Also in the covering letter, states that they have applied for the original agreemment and will sen in due course.....That was in May this year!!

No responses have been made to emails to their customer relations despite having 8 email read reciepts with the personal email addreses...

Don't worry - there will be lots of extra's but the letter is in context to the main basis of your complaint. The ins-and-outs don't matter so much right now, all we want is default removal so we play firm but fair. Read letter a few times and you'll see the logic i'm trying to imply - I expect them to write back apologising and refusing to remove default in which case we use a firmer threat with more mistakes etc etc - get me?

never-in-doubt

RoyalBlues wrote: »

I am now seriously thinking that my CCA is 'unenforceable' due to the fact that I have had no reply to my original CCA request letter (sent on 10th September 2009 or my reminder letter sent on 5th October)

This is a very old credit card which was applied for and accepted in approx 1993???? I really cant remember exactly. It is an MBNA card and as each day passes without reply to my requests, I am becoming more convinced (it may be just misguided hope) that I am one of the many thousands of people who are currently in possession of an "unenforceable" credit card.

N-I-D?.................I was just wondering (with the above information) if you have any observations, as to why I have heard nothing.

My next minimum payment is due to be taken via DDR from my bank account next week and I have pretty much (about 95%) decided to cancel it before they take it.

N-I-D?.................what do you suggest?

Thanks,
AL

Mate you sent the dispute letter (CCA follow up) which confirms you'll cease payments right? If so, cease payments and ignore them until they write to you. Forget the default, nothing we do will get that taken off unless you went to court and they will fight you. In my opinion best to get the debt unenforceable and ignore them.