Unenforceability & Template Letters

never-in-doubt

tryingtoruletheworld wrote: »

Hi

This may be a really stupid question, but I am trying to organise my bf's finances! I have seen from this thread (which is amazing btw!) the situation regarding CCA's etc, I was just wondering if this is relevant to secured loans and mortgages? Or is different paperwork involved there? He has used some dubious companies, but obviously with a property at stake I don't want to do anything silly!

You can still do it with secured debts but not worth it in my opinion. You'd never cease payments on a secured loan, which forms part of the CCA request threat, otherwise you run the risk of losing your property.

Personally, i'd not bother taking the CCA route on any secured debts - lesson to be learned - never secure anything on your home!

never-in-doubt

jenner wrote: »

thank you, so how would she get the default removed and would this action mess up her credit file?

You cannot get the default removed - its near-on impossible! If you want to preserve your credit file then do not follow this process.

never-in-doubt

Fossildog wrote: »

Thanks for the quick reply. I was thinking more of reducing the rate of interest rather than not paying the amount owed back. They have upped the rate on the cash portion of the balance from 22% (which was bad enough) to a heart stopping 34.9% (MBNA). I have tried negotiating with them to reduce but to no avail. I also heavily suspect they do not have a CCA. They are unwilling to reduce the interest with the result that any payments I make are reducing the balance on the lower rated purchase balance whilst the cash balance is increasing every month.

MBNA are a nightmare - when did they increase the APR? If they never notified you then you can get it reduced again but not use the card. Basically, the new ruling brought in 1/1/09 stipulates that if a lender increases the APR they must give you the option to repay the outstanding balance at the previously agreed rates - however you cannot use the card until the balance is clear and at which point, assume you do use the card, you revert to the new rates.

CeeBeeDeeBee

Hi again Never In Doubt, I've been away for a few days and have come back to court papers for a hire agreement I've defaulted on.

I started the hire agreement (regulated by CCA74) in April 2008 for some shop equipment and the company served a default notice on me August 10th after I got behind with payments once my business had closed, and terminated the agreement on 1st Septmeber.

The hire agreement was for 36x £291.99 payments, I have paid well over £4000 so far.

They have now put in a claim to the courts for £6546 - I am not sure how they came to this figure as they seem to quote a different figure every time I hear from them, I guess it is the total remaining payments that were due to be made?

I have a few questions, how are they able to claim such a large amount when surely the debt is secured on the eqiupment they hired me? Surely if the equipment will no longer cover the debt that is their fault not mine?

I am going to acknowledge the forms and put in a defence disputing the amount etc. Is there anything else I can do to delay this or is it too late now that they have filed court papers?

Thanks

LittleMissSkint

Hello!

I've been reading this thread and I think it's fab how you've helped people. I decided a few days ago I want to CCA Moorcroft regarding a Littlewoods Catalogue debt, is it possible to do this? Or is it only for Credit Cards? If it is possible could you please (if you don't mind) point me to the right letter to begin with? Everytime I think I have found the right one I see another and get confused! Plus because I am in Scotland I saw in one of the letters there are bits that don't apply here? Can you make sure I don't put something in that I shouldn't? I'm sorry to inconvenience you but I am bloomin useless with stuff like this. :rolleyes: I'm so clueless :eek:

never-in-doubt

LittleMissSkint wrote: »

Hello!

I've been reading this thread and I think it's fab how you've helped people. I decided a few days ago I want to CCA Moorcroft regarding a Littlewoods Catalogue debt, is it possible to do this? Or is it only for Credit Cards? If it is possible could you please (if you don't mind) point me to the right letter to begin with? Everytime I think I have found the right one I see another and get confused! Plus because I am in Scotland I saw in one of the letters there are bits that don't apply here? Can you make sure I don't put something in that I shouldn't? I'm sorry to inconvenience you but I am bloomin useless with stuff like this. :rolleyes: I'm so clueless :eek:

Hiya

catalogues still comply with CCA1974 so send the letter one page 1 entitled CCA Request...

Good Luck.

LittleMissSkint

never-in-doubt wrote: »

Hiya

catalogues still comply with CCA1974 so send the letter one page 1 entitled CCA Request...

Good Luck.

Thanks! I thought that was the right one. I sent that one a couple of weeks ago and what I got back was a letter saying "Further to your request please find enclosed an updated statement of account" So I assumed It was the wrong letter, or that catalogues don't abide by the same rules and forgot about it, like I said though a few days ago I decided I really want to pursue it if I can. Ah well, I'll send it again. Thanks again.

Rainy_2

never-in-doubt wrote: »

p.s. Blair Oliver Scott are like an internal collections dept and shouldn't be confused with a DCA....

Hi N-I-D, sorry to hijack your thread slightly, have been lurking with interest for quite a while trying to make my mind up on CCA's.

The above line caught my eye and wondered if I could have your thoughts. I've received 3 particularly threatening letters from these 'solicitors' over a £7,500 loan I have with The AA. Most recent being intended court action. :eek: I am currently in a token monthly payment agreement with The AA which I have adhered to fully.

I wrote to both parties to complain about harrassment whilst in a payment agreement but have been ignored. I'm really unsure who owns the debt now and I'm in a position to up my monthly payments but obviously I don't want to pay the wrong party and it not be set against my debt!!

The loan was post 2007 so CCA out of the question...

Any thoughts gratefully received :A

never-in-doubt

LittleMissSkint wrote: »

Thanks! I thought that was the right one. I sent that one a couple of weeks ago and what I got back was a letter saying "Further to your request please find enclosed an updated statement of account" So I assumed It was the wrong letter, or that catalogues don't abide by the same rules and forgot about it, like I said though a few days ago I decided I really want to pursue it if I can. Ah well, I'll send it again. Thanks again.

Ahh, so what you now do is send the dispute letter from page 1, as they have failed to respond to your formal CCA Request.... they should send a statement along with the actual CCA so maybe they don't have the CCA - to be fair catalogues are quite bad so wouldn't surprise me if they don't have a CCA so worth pursuing.

Letter to send now (to the DCA again) is:

CCA Request Query Letter

Dear Sirs,

Account No:

On xx/xx/2009 I wrote to xxxxxxxxx requesting that xxxxxxx 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.

The document sent purporting to be a credit agreement does not contain any 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 none of the terms are 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 and for you to write the debt off. 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

never-in-doubt

Rainy wrote: »

Hi N-I-D, sorry to hijack your thread slightly, have been lurking with interest for quite a while trying to make my mind up on CCA's.

The above line caught my eye and wondered if I could have your thoughts. I've received 3 particularly threatening letters from these 'solicitors' over a £7,500 loan I have with The AA. Most recent being intended court action. :eek: I am currently in a token monthly payment agreement with The AA which I have adhered to fully.

I wrote to both parties to complain about harrassment whilst in a payment agreement but have been ignored. I'm really unsure who owns the debt now and I'm in a position to up my monthly payments but obviously I don't want to pay the wrong party and it not be set against my debt!!

The loan was post 2007 so CCA out of the question...

Any thoughts gratefully received :A

Hiya,

You should always deal with the original creditor in such instances whereby you can offer more so i'd suggest you ring them first and ask them who now own the debt and who can negotiate higher repayments. They should give you the number and contact details of the DCA upon request.

If not, then simply continue to pay the agreed amount until one of them writes to you - don't worry about court action letters they are idle threats - is it a 14 day notice before default? Regardless, you should send the following to them and copy in the last DCA that you were dealing with (i.e. who are you paying now?):

Dear Sirs,

Account No: XXXXXXXX

You have contacted me regarding the above numbered account, which you claim is owed by myself. For the second time now, I am in a payment agreement with (Enter name of the current debt owner here) which renders your threats totally inappropriate and constitutes unfair harassment.

I am familiar with 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.

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.

Furthermore ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment amounts to physical/psychological harassment.

I would ask that no further contact be made concerning the above account and instead refer you back to the original creditor in this matter. Continual harassment will result in my formally complaining to Trading Standards and the Office Of Fair Trading of your actions.

I look forward to your reply.

Yours faithfully




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