Unenforceability & Template Letters

never-in-doubt

ricardovich wrote: »

Hi N-I-D and everyone,

I think my situation is similar to scott9c's query, however can you point me in the right direction?

I have sent my first 2 letters to various DCA's. Today Moorcroft have replied with:-

"...we regret that despite their best efforts our client is unable to produce a copy of your document and to this end we therefore return the £1 payment you submitted with your original request, if applicable.

Notwithstanding this our clients believe the above account remains due and payable and we therefore require immediate payment of the sum or alternatively your realistic proposal for repayment of the same. The Information Commissioner's Office has confirmed whereas a debtor is not obliged to repay the account due to the provisions of the CCA, this does not mean that there was no enforceable agreement.

In addition our client will continue to report the conduct of your account to the various Credit Reference Agencies to whom they subscribe. Should you wish you can file a Notice of Correction with the respective CRA which will offer you the opportunity to explain the circumstances surrounding this registration however you will need to speak with them direct to do so.

We look forward to hearing from you within the next 14 days with your proposal for discharging this liability."

Can you tell me the best thing to do next?

Also, although I have sent CCA letters to Capquest (which they have acknowledged) they continue to harass me on the phone. Is there anything I can do to insist on the phone calls stopping??

Many thanks
x

Hiya,

Send the following letter off. Its slightly different to that already advised cos its merged a couple of templates together... Send this and see what they come back with....

Good Luck

Dear Sirs,

Account No: XXXXXXXX

I do not acknowledge any debt to your company.

I wrote to you on XX/XX/2009 asking for a true copy of the Consumer Credit Agreement together with any relevant information under s.78 the Consumer Credit Act 1974, enclosing the statutory £1.00 fee.

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 Consumer Credit Act 1974, nor any other information relating to the account and as such, 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 must also point out that your continued harassing phone calls are to cease immediately. The Quantity and frequency of telephone calls that I have received from your company are personally harassing.

I have verbally requested that these stop, but I am still receiving calls and I now require all further correspondence from your company to be made in writing only.

I am of the view that your continued harassment of me by telephone puts you in breach of Section 40 of the Administration of Justice Act 1970, the Protection from Harassment Act 1997 and the CPUTR 2008.

If you continue to harass me by telephone, you will also 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.

Be advised that any further telephone calls from your company may be recorded and used in evidence and I expect this harassment to cease immediately. 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

gogetum

For me this is top of the agenda right now while it is still fresh with them, If i called they would just hang up after trying to state my case.

So is this a telephone call to the Ombudsman? If there was a case, i would happily go to court at a last ditch. But, the ombudsman would have to expose that in reasoning i guess?

Thanks in advance!

captainhaggis

never-in-doubt wrote: »

Hiya,

Send the following letter off. Its slightly different to that already advised cos its merged a couple of templates together... Send this and see what they come back with....

Good Luck

I was close..... :rotfl:

never-in-doubt

Hobbit wrote: »

Hi N-I-D
1.Frederickson Int Ltd (for Egg) simply return the payment and say it needs to be requested from Egg themselves, as do Debitas (for Capital One). That's fine - I can repeat the process for Egg/Cap One but does this mean I can ask the two DCAs to stop contacting me on the understanding that they either deal with the account or not - instead of picking which bits to comply with? If so, any suggestions as to how to word this? And shouldn't they have got the docs from the original owners anyway??

Who registered the default and who writes to you asking for money? This is who you send the CCA request to.... also, you mention in the CCA Request template, the following which should tell them what to do!:

If it is your view that you are not the creditor, s.175 of the CCA 1974 applies in the case of a simple assignment, and places a duty upon you to pass this request to the creditor. In the case of an absolute assignment, you are a creditor as defined by s.189. If you contend that you purchased the rights but not the duties of any agreement, you are reminded that s.189 of the Act is clear that an assignment is of both rights and duties.

Your attention is drawn to ss.5(2), 3(b),6 and 7 of the Consumer Protection from Unfair Trading Regulations 2008 (CPUTR). I enclose a personal cheque in the sum of £1.00, which is the statutory fee. Note that these funds are not to be used for any other purpose.

If you are unable to comply fully and properly with this request, you should confirm this in writing at the earliest opportunity, and certainly within the statutory time limit for compliance, and return the fee and then remove the incorrect entry from your systems.

So i'd go back to them (for fun really) and send everything back with something along the lines of the following:

I write with reference to previous correspondence regarding an alleged account, as detailed above. I made my position clear in my original letter to you, you have been harassing me for this alleged debt and therefore you should deal with my requests.

As was outlined in my original letter, if it is your view that you are not the creditor, s.175 of the CCA 1974 applies in the case of a simple assignment, and places a duty upon you to pass this request to the creditor. In the case of an absolute assignment, you are a creditor as defined by s.189. If you contend that you purchased the rights but not the duties of any agreement, you are reminded that s.189 of the Act is clear that an assignment is of both rights and duties.

Your attention is drawn to ss.5(2), 3(b),6 and 7 of the Consumer Protection from Unfair Trading Regulations 2008 (CPUTR). I enclose a personal cheque in the sum of £1.00, which is the statutory fee. Note that these funds are not to be used for any other purpose.

If you are unable to comply fully and properly with this request, you should confirm this in writing at the earliest opportunity, and certainly within the statutory time limit for compliance, and return the fee and then remove the incorrect entry from your systems.

For the second time now, I expect you to adhere with my simple request and follow the simple steps above and most certainly provide me with proof of assignment, in any case all trace of my details are to be immediately removed from your systems and any further contact other than to supply the CCA will be reported as harassment for an unlawful debt.

Hobbit wrote: »

2. Debt Managers (for Barclaycard) say they have closed the file (guess they didn't have a copy of the CCA...) and 'returned it to Barclaycard' - does this mean I start the process again, or wait until B'card get in touch?

Nope, they are following process - as described above - i.e. if they are not the creditor they close their file and return to the original creditor. You wait and see what Barclays come back to you with - do not write to them but instead wait for a response from Barclays.

Hobbit wrote: »

3. Redcats (for La Redoute) sent a 'copy of the standard credit agreement issued when the account was opened [pursuant to section 78(1) of the Consumer Credit Act 1974 and Regulation 3 of the COnsumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983]' which does not contain any peronal details at all nor any signature. Should I reply with the standard 12+2 failure to supply letter?

No, send the following letter to them:

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

gogetum wrote: »

For me this is top of the agenda right now while it is still fresh with them, If i called they would just hang up after trying to state my case.

So is this a telephone call to the Ombudsman? If there was a case, i would happily go to court at a last ditch. But, the ombudsman would have to expose that in reasoning i guess?

Thanks in advance!

No you do not speak to anyone on the phone - all in letter. You're fighting a losing battle, I did tell you this and court really is a last resort! Bottom line although they acted harsh etc you did still default and therefore you're not 100% guaranteed a win and i'd really think long and hard about court.

Go to FOS and complain using the paper copy complaint and post it with proof of correspondence to date and then copy in the OC and mention you're going all the way with this.

gogetum

never-in-doubt wrote: »

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?

Hi,

What other means are there with AK? Firmer?

Best

GGT

scarednshakin

Hi N-I-D have received a letter from Clydesdale Bank, this is the 'final response'. Can you advise what to do next?

The letter says 'In response to your points raised, please note that all of the prescribed terms which must be included in the agreement under the CCA Regs 1983 are stated in the credit agreement enclosed. The agreement has therefore been properly executed and the debt is not unenforceable under section 127 of the CCA 1974, as you claim.

Turning to our response to your request under section 78(1) of the CCA 1974, we have supplied you with a true copy of your executed credit agreement and a copy of the terms and conditions which were applicable at the time the agreement was executed. Please find enclosed also the latest copy of the terms and conditions as varied. We have also supplied you with a statement signed on behalf of the Bank in compliance with section 78(1).

Section 172 of the CCA makes any statement we provide under section 78(1) binding on the Bank but it does not prohibit us from being in a position to comply with section 78(1).

The information we have provided to you is fully compliant with section 78(1) of the CCA.

In light of the aforementioned we cannot agree with your claim that the agreement in questions is unenforceable or agree to your request to write the balance of your debt off. I woulod urge you to maintain payments to this account as the Bank will continue to enforce the debt owed by you.'

They have sent out a copy of the application form, copy of old t&c with no name, address, limit or rate of interest on it and also a copy of the up-to-date t&c. Thanks SNS

Hobbit_2

Thanks NID - much appreciated! I have defaults coming out my wazoo but, with your advice and templates, I have got to the stage where I'm about to put 3 accounts to bed and there might just be a glimmer of light at the end of the tunnel!! You're officially my favourite person for the day!

captainhaggis

Hobbit wrote: »

Thanks NID - much appreciated! I have defaults coming out my wazoo but, with your advice and templates, I have got to the stage where I'm about to put 3 accounts to bed and there might just be a glimmer of light at the end of the tunnel!! You're officially my favourite person for the day!

Just the day? I prefer him to my mother!

---

Is the following letter an OK follow up to the first request once the 14 days have passed? It's basically the template from the first page but without mention of the defaults as some of the creditors haven't yet registered any.

I refer to my letter dated 18th September 2009 in which I made a formal request under the Consumer credit act 1974 sec 77-79 for true copies of the regulated agreement refered to in the above account number. You are reminded that you are obliged to supply these under sec.189 whether you are the original creditor or not. I also enclosed the statutory fee of £1.00 for this account.

To date you have failed to comply with my statutory request and have defaulted in respect of this account.

Consequently I am ceasing all payments to your company until such time as this matter is resolved. It is also my intention to report this matter to the appropriate enforcement authority.

I await your prompt response.

captainhaggis

Just a quick thought about the above letter, actually, and maybe NID or DarkConvict will be able to advise.

At the moment I'm making very small payments to my creditors due to cutbacks at work. I don't want to p*ss the creditors off until I know for sure whether they're able to enforce my debts or not.

Therefore, would it be OK to send something along the lines of :

I refer to my letter dated 18th September 2009 in which I made a formal request under the Consumer credit act 1974 sec 77-79 for true copies of the regulated agreement refered to in the above account number. You are reminded that you are obliged to supply these under sec.189 whether you are the original creditor or not. I also enclosed the statutory fee of £1.00 for this account.

To date you have failed to comply with my statutory request and have defaulted in respect of this account.

Consequently I reserve the right to cease all payments to your company until such time as this matter is resolved.

I await your prompt response.

So essentially I've removed the mention of defaults, removed the absoluteness of my ceasing payments and also removed the threat of reporting the OC to authorities.

Wotcha think?