Unenforceability & Template Letters

RoyalBlues

never-in-doubt wrote: »

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.

It's done.

(1) Direct Debit to the thieving ****'s is cancelled.

(2) I'm prepared for the deluge of phone calls/letters.

(3) I'm ready for the eventual credit rating/default struggle.

(4) I will (if necessary) go to court to fight the default also.

thanks N-I-D, I will keep you informed!

never-in-doubt

RoyalBlues wrote: »

It's done.

Good Move

RoyalBlues wrote: »

(1) Direct Debit to the thieving ****'s is cancelled.

Nice one - that will get their attention - bear in mind if they have not defaulted you this may prompt them to do so....

RoyalBlues wrote: »

(2) I'm prepared for the deluge of phone calls/letters.

They better not do! If so, go here (Dealing with Bailiffs Harassment)and have a read of page 1 - you simply read the content of letter #2 to them and they will stop harassing you! If not, you write it in to them! Easy Peasy!

RoyalBlues wrote: »

(3) I'm ready for the eventual credit rating/default struggle.

If they default you, this means no credit for 6yrs.... are you sure that is what you want? How much is the debt for? Just curious....

RoyalBlues wrote: »

(4) I will (if necessary) go to court to fight the default also.

This should be taken as a last resort - can be expensive (if you lose) and time consuming with loads to learn in between! More on this later lol

RoyalBlues wrote: »

thanks N-I-D, I will keep you informed!

Yes, please post up any response you get from them..... cheers & good luck! :eek:

RoyalBlues

Originally Posted by RoyalBlues
(3) I'm ready for the eventual credit rating/default struggle.
If they default you, this means no credit for 6yrs.... are you sure that is what you want? How much is the debt for? Just curious....

Does this include a mortgage re-application?

My fixed rate mortgage is up for renewal in approx 18 months (with Northern Rock)

Would this affect it? Secured loan v unsecured loan scenario etc.

Are mortgages included in all this??

FYI................my MBNA debt is approx £5,500 and last month I paid them £139 0f which £137 was interest. No matter what I say, suggest or request, it goes in one ear and straight out the other! nuff said...

never-in-doubt

RoyalBlues wrote: »

Does this include a mortgage re-application? My fixed rate mortgage is up for renewal in approx 18 months (with Northern Rock) Would this affect it? Secured loan v unsecured loan scenario etc. Are mortgages included in all this??

FYI................my MBNA debt is approx £5,500 and last month I paid them £139 0f which £137 was interest. No matter what I say, suggest or request, it goes in one ear and straight out the other! nuff said...

Yes mortgages would be affected - only if they default you so i'd think twice before being too hasty. Obviously so long as you don't want to remortgage or move providers then no credit search is done anyway.....

Thus I said, you'd have to think hard before cessation of payments. :rolleyes:

RoyalBlues

Okay then, I will stick with N/Rock if worse comes to worse. They are Govt. owned after all and surely can't make me homeless?? lol

thanks again N-I-D

never-in-doubt

never-in-doubt wrote: »

Yes mortgages would be affected - only if they default you so i'd think twice before being too hasty. Obviously so long as you don't want to remortgage or move providers then no credit search is done anyway.....

Thus I said, you'd have to think hard before cessation of payments. :rolleyes:

Just an afterthought - why don't you apply for a new card and BT the debt to a 0% offer? Thus no interest and capital repayment, or get a loan - there must be other options available to you? :beer:

never-in-doubt

Hiya

Send the letter below to Cap1 (the same person/address that wrote to you). See what they come back with

Dear Capital One,

Account No: XXXX XXXX XXXX XXXX

I do not acknowledge any debt to your company.

I wrote to you requesting you send me a true copy of the Consumer Credit Agreement together with any relevant information under Section 78 of the Consumer Credit Act 1974.

I did receive a response from you dated 7 October 2009 but the argument raised holds no merit and is therefore disregarded in full. For instance, when I originally requested the CCA back in June you sent me what you purport to be a true copy of my agreement. How come then I have statements (from my SAR request dated 30.06.09) showing late payment charges as being £18 but the CCA you sent me shows this as being £15? Proof that the documents sent do not comply with the legal definition of a true copy. As such, the account does remain in dispute and until I am satisfied with the outcome it will remain in dispute. Did you forget that the customer places an account in dispute - not the lender?

Regards to your claim that you will pursue the outstanding debt, may I remind you to consider Section 40 of the Administration of Justice Act 1970, and the Protection from Harassment Act 1997.

If you harass me by telephone, you will be in breach of the Communications Act (2003) s.127 and I will report you to OFCOM, Trading Standards and The Office of Fair Trading, meaning that you will be liable to a substantial fine. If you harass me in writing, may I remind you of the CPUTR 2008 and the OFT'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 or the debt is disputed.

I would also point out that the OFT say under the guidance that 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.

The Consumer Credit Act allows 12 working days for this request to be carried out before you enter into a default situation. As you have replied to me confirming you have no CCA then the account must remain in dispute which refers s.10 CCA (cease & desist processing data).

As you are unable to comply with my request for the agreement, as required by s.78 of the CCA1974, this account has become unenforceable by law. As you are no doubt aware ss.6 of the CCA states:

"If the creditor under an agreement fails to comply with ss.1 (CCA.1974) then (a) He is not entitled, while the default continues, to enforce the agreement"

As the 12 working days have now expired, from your receipt of the request for the agreement and supporting documents until now, the account is now formally in dispute and whilst it remains in dispute, the agreement is unenforceable.

Whilst it is unenforceable, no interest can be added to the account and no action can be taken against me such as defaults or adverse data registered at any of the credit reference agencies. As you have already added a default against me, I hereby give you 30 days in which to remove the default or supply me with the Consumer Credit Agreement to enforce the default.

There is no debt as there is no agreement and therefore the default that you registered against me is unlawful and will be defended by demanding enforcement of removal via the county courts, if necessary. We both know without a true copy of a CCA then the chances success are slim, to say the least.

Furthermore, under the Data Protection Act (s.10), you are also denied the authority to pass on any of my personal data. To do so in the circumstances is I understand a breach of the Data Protection Act 1998, and also the OFT guidelines, and should you ignore my request it would again result in you being further reported to the relevant authorities.

I also require that you remove all my data from your files within the next 7 days and look forward to receiving a letter from you within 30 days confirming that you have complied with this request.

Yours faithfully




Sign digitally

manchestman

Hi Never, I would really appreciate your advice or views.
I have 5 credit cards and can't pay due to personal circumstances. I'm currently in dispute with mbna, cap one, marbles and Sainsburys (over two cards).
I have also been very ill for over 2 years and the medication coupled with the illness has affected my tiredness, eyesight, concentration, memory etc.
Anyway, I started the fight with them all more than two years ago, got the cca non compliance sorted out. Wrote to them all telling them in no uncertain terms that as the alleged debt was unenforcable, they were not to add any default sums, interest or take any direct debits from my bank account. However, (very stupidly) I did not cancel the direct debits with my own bank, only with each credit card company. I have copies of all correspondence sent registered royal mail, though sainsburys dont deny receiving the letters, just choose to ignore it.
Sainsburys, mbna and cap one all continued to take unauthorised direct debits each month and it is only in recent weeks that I have felt able to get to grips with it all and ressurrect my fight once again. i am still ill but feel better able to organise my fight now.
Of course, I have asked all to repay me the unauthorised direct debits that they have taken together with interest . No joy. How do I stand on the issue of refunds? any chance at all?
Sainsburys have also written the following extract:

"I note you state the account is in dispute. No evidence has ever been provided to suggest that the debt itself is disputed and you have continued to make payments to the account up to August 2009. The Office of Fair Trading (OFT) guidelines on debt collection refer to 'dispute' as being where it is suggested the debt does not relate to the individual being requested to pay.

For your information the OFT only specifies that you would not be liable to pay interest or default charges whilst the bank was in breach, for failure to provide the agreement, where you held a fixed loan agreement. There is no suggestion that we are unable to continue to persue payment or add interest and charges under a credit card agreement, particularly as we have issued you with notices to advise you of outstanding payments. Your request to refund all payments made since 9th March 2007 is declined.

... I'm sorry you are unhappy that we have tried to contact you by telephone. Under the terms and conditions of your account you are required to make the minimum contractual payment by the due date. Our records show your account is currently in arrears and we therefore have a genuine reason to contact you and this element of your complaint is also declined."

Just a quick question or two. Is it just a myth that once an agreement is unenforcable because of non compliance of cca request, interest etc cannot be added? Or is there actual law, guidance, regs etc to actually back it up? Are Sainsburys right on the OFT definition of dispute, especially as I have catagorically refused to acknowledge any alleged debt and did not willingly make the payments (amounting to thousands of pounds out of my much-needed-but-almost-gone capital)? I also complained more than once in writing about the frequency of telephone calls, telling them of my illness and of the need to keep the line clear for my 88 yr old father to call whenever he wants support because of my terminally ill mother. I used the threat of the harassment law etc because they call upto 5 times a day every day, and I told them they were not to call at all and that I would always communicate promptly in writing, but they 'declined' my claim and still continue to call! Anything else I can do as written threats don't seem to work? I'd love to punish them just for their arrogance and total disregard of my situation.

never-in-doubt

Hi manchestman,

Sorry to hear of your problems. The first thing you ought to do is contact your bank and claim all unauthorised direct debits back under the direct debit guarantee. Tell your bank you'd written to the card providers advising them to cancel the DD and due to ill health and not needing the stress, you never noticed until recently that the DD's had gone through.

This may be able to get some funds back for you. No guarantee if its been a while but to be fair if you do not authorise the DD then you entitled to claim under the DD Guarantee to which your bank reverses the funds from the originators account and leaves you to fight with them directly, they really don't get involved much - they simply reclaim the amount you reclaim and pay it back into your account.

Regards to the letter you got back from sainsburys (Halifax), they are half right but your argument would be the payments were taken in error and when you get refunded them they will then soon realise you've never acknowledged anything! I wouldn't worry too much about this right now.

There is guidance that suggests interest and charges cannot be added but its one of things that usually goes to court to get sorted. In all honesty the bank will fight you but unless they comply with the CCA then you can always refuse to cooperate. Therefore, in your current situation i'd be looking to change phone numbers and not disclose it to them again - this stops any harassing phone calls dead.

Then you should apply to your bank utilising the DD Guarantee to reclaim as much as you can - the more proof (such as letters to the creditors cancelling the DD) will help along with medical papers that confirms you have been ill - too ill to worry and notice about your bank balance, for instance! See where i'm going with this?

Then, finally, you should start the process from scratch using the templates on page 1 by requesting the CCA, checking what they send against the legislation, arguing with them, demand proof of default and compliance and fight this etc etc.... am happy to help, you just need to have the time and patience to see this through, waiting 2 years has affected your statute barred date - but hopefully you'll be able to reclaim under the DD Guarantee which will be a start....

captainhaggis

Hi All

Got my first reply today to a CCA request. This was in relation to my loan account.

I took this account out in a branch so I'm hopeful that the paperwork will have gone missing somewhere along the line.

HOWEVER, the reply I was sent didn't include the CCA or make any real reference to it. They instead simply returned my postal order saying that because it wasn't made payable to Lloyds TSB (I opted to leave it blank), they were unable to accept it.

Seems strange - can't they/I just write "Lloyds TSB" on to it? Are they stalling for time? Should I keep the clock ticking from the original date they got the letter or do I start again?

Thanks

** Actual Text of Letter **

Thank you for your recent payment.

I have enclosed the postal order you sent for £1.00 to pay in to the above account.

I am sorry but we are unable to accept this postal order as it is not made payable to Lloyds TSB (a/c Eisis).

Please send another postal order with the correct details as soon as possible.