Unenforceability & Template Letters

never-in-doubt

RoyalBlues wrote: »

Question is...............................

Do I now send the next letter now (Section 10 default letter, number 6 on the list I think) or do I wait until they contact me. (I have missed a payment but haven't had a statement/phone call or letter yet).

Cheers, RB

You send the following letter:

Dear Sirs,

Account No: XXXXXXXX

You have failed to respond to my legal request to supply me a true copy of the original Consumer Credit Agreement for the above account. On **DATE** I made a formal request for a true signed agreement for the alleged account under the Consumer Credit Act 1974 (s.78). A copy of which is enclosed for your perusal and ease of reference.

You have failed to comply with my request, and as such the account entered default on **DATE**.
(date = 12+2 days after you sent the CCA request - delete this text)

The document that you are obliged to send me is a true copy of the executed agreement that contains the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself as defined in s.61(1) of the CCA(1974) and subsequent Statutory Instruments. If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document. In addition a full statement of this account should have been sent to me detailing all debits and credits to the account.

Furthermore; you should be aware that the Consumer Credit Act allows 12 (+2) days for a request for a true copy of a credit agreement to be carried out before your client enters into a default situation. This limit has expired

As you are no doubt aware s.77(6) states:

"If the creditor fails to comply with Subsection (1)(a) He is not entitled , while the default continues, to enforce the agreement. Therefore this account has become unenforceable at law"

As you have Failed to comply with a lawful request for a true, signed copy of the said agreement and other relevant documents mentioned in it, failed to send a full statement of the account and failed to provide any of the documentation requested, any legal action you pursue will be averred as both unlawful & vexatious. Furthermore I shall counterclaim that any such action constitutes unlawful harassment.

Please note you may also consider this letter as a statutory notice under s.10 of the Data Protection Act (1998) 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 credit reference agencies.

Should you refuse to comply, you must within 30 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 not respond within 30 days I 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 applies.

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

I reserve the right to report your actions to any such regulatory authorities as I see fit. You have 30 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint. I therefore request a copy of your official complaints procedure which you are obliged to supply.

I would appreciate your due diligence in this matter and look forward to hearing from you, in writing within 30 days.

Yours faithfully




Sign digitally

xxkizxx

Can anyone help me here,
sent off letters to some of my credit companies regarding Proof of default notices placed on my credit file without my notice, already applied for Ca's and none of these can be found by companies received letters telling me of this, however none of the companies have replied to my requests for a copy of the default notices ( made in September), and the accounts are still showing as in default on my credit file, is there a second letter to send pushing them on this as i thought time limit was 14 days? And how can one company who have recently bought a now know unenforceable debt, remove a default notice from original lender and place there own can they do this? surly if a debt is proved to be unenforceable the default should be removed by the company automatically, can they keep a default notice on your credit report for a debt they cant prove you have 2014 is to far off to wait!

pebbles88

NID

removal of defaults has been mentioned quite a bit on here today.
may i just aks something...


shop direct has defaulted me on both my a/c wth them, even though they admitted they do not have cca on file. im not paying them, and havent done since dec. i had been told on another thread that they can do this...

is it poss toget them removed...????

never-in-doubt

xxkizxx wrote: »

Can anyone help me here,
sent off letters to some of my credit companies regarding Proof of default notices placed on my credit file without my notice,

I assume you sent the following letter?

Request for proof of Default

Dear Sirs,

Account No: XXXXXXXX

After recently obtaining a copy of my Credit File from the Credit Reference Agencies, I am concerned to note that your company has placed a "Default" notice against an alleged account I held with you.

Further to this, I have no recollection of ever receiving such a notice, and I therefore require you to substantiate this data.

1. You must supply me with a true copy of the alleged agreement you refer to. This is my right under your obligation to supply a copy of the agreement under the legislation contained within s.78 (1) Consumer Credit Act 1974 (s.77 (1) for fixed sum credit. Your obligation also extends to providing a statement of account. I enclose a £1 cheque to cover the statutory fee.

2. Please also supply me with a signed, true certified copy of the original default notice.

3. You are notified that you are obliged to supply these documents, whether you are the original creditor or not under S189 of the CCA 1974.

I would request that this data is provided to me within the next 14 days. If you are unable to provide this data then I require all adverse information to be removed completely, including any defaults that may have been applied. Please note that mere correction or amendment to the entry will not be acceptable.

Yours faithfully




Sign digitally

xxkizxx wrote: »

already applied for Ca's and none of these can be found by companies received letters telling me of this,

Do you mean you have letters confirming the debt is unenforceable as per s.127 of CCA(1974)? Or just that they cannot locate the CCA? Please elaborate....?

xxkizxx wrote: »

however none of the companies have replied to my requests for a copy of the default notices ( made in September), and the accounts are still showing as in default on my credit file,

Ok, so technically they are in default but unfortunately there isn't much you can do to enforce default removal cos they do have a right to leave one as the debt did exist. I argue this all the time cos my attitude suggests if its unenforceable (i.e. an unlawful agreement) then any terms on it are void thus meaning my authority to share data is also voided - but the DCA's don't listen and the only way forward is court unfortunately.....

xxkizxx wrote: »

is there a second letter to send pushing them on this as i thought time limit was 14 days?

There is no set time limit as such, but you've given them the time and they have failed to respond so your next step is court but not recommended in my opinion. However you could write to the CRA's requesting they investigate due to the lender being uncooperative with your request thus the account should be in dispute and in line with s.10 of DPA(1998) they cannot add a default on a disputed account.

xxkizxx wrote: »

And how can one company who have recently bought a now know unenforceable debt, remove a default notice from original lender and place there own can they do this? surly if a debt is proved to be unenforceable the default should be removed by the company automatically, can they keep a default notice on your credit report for a debt they cant prove you have 2014 is to far off to wait!

Can you explain what you mean by this? For example, are you saying that company 1 added a default and then sold the debt to company 2 who replaced the original default with their own, keeping the date of default the same?

OR

Do you mean that company 1 registered a default (for example in 2004) and then sold the debt to company 2 who replaced the original default with a new one and at a new date (for example in 2008)?

Please be specific.....

never-in-doubt

pebbles88 wrote: »

NID

removal of defaults has been mentioned quite a bit on here today.
may i just aks something...

shop direct has defaulted me on both my a/c wth them, even though they admitted they do not have cca on file. im not paying them, and havent done since dec. i had been told on another thread that they can do this...

is it poss toget them removed...????

See above for an explanation - the core is the same in that the lender does have a right to default you even though the debt is unenforceable. Court is risky cos recently someone lost! However that was a unique case with even uniquer circumstances!

I argue with them all the time and it is ongoing, that they cannot do this but I really need a day in court to really fight this issue and open the floodgates for future claims - i've got crappy1 over a barrel and they won't budge but they know we've got em and still refuse to budge so I really want to take it to court! I'll eat em alive and tear them a new ars'e at the same time lol. If they admit they have no agreement then surely there can be no proof that I agree to them sharing my data with the CRA's - see what I mean?

pebbles88

never-in-doubt wrote: »

See above for an explanation - the core is the same in that the lender does have a right to default you even though the debt is unenforceable. Court is risky cos recently someone lost! However that was a unique case with even uniquer circumstances!

I argue with them all the time and it is ongoing, that they cannot do this but I really need a day in court to really fight this issue and open the floodgates for future claims - i've got crappy1 over a barrel and they won't budge but they know we've got em and still refuse to budge so I really want to take it to court! I'll eat em alive and tear them a new ars'e at the same time lol. If they admit they have no agreement then surely there can be no proof that I agree to them sharing my data with the CRA's - see what I mean?

ah i get you. thanks

captainhaggis

never-in-doubt wrote: »

See above for an explanation - the core is the same in that the lender does have a right to default you even though the debt is unenforceable. Court is risky cos recently someone lost! However that was a unique case with even uniquer circumstances!

I argue with them all the time and it is ongoing, that they cannot do this but I really need a day in court to really fight this issue and open the floodgates for future claims - i've got crappy1 over a barrel and they won't budge but they know we've got em and still refuse to budge so I really want to take it to court! I'll eat em alive and tear them a new ars'e at the same time lol. If they admit they have no agreement then surely there can be no proof that I agree to them sharing my data with the CRA's - see what I mean?

What's stopping you going to court mate? Is it money? Cos I'd be more than happy to help fund any action against the lenders. Afterall, look how much you've potentially helped me (and hundreds other) save due to CCA irregularities.

never-in-doubt

captainhaggis wrote: »

What's stopping you going to court mate? Is it money? Cos I'd be more than happy to help fund any action against the lenders. Afterall, look how much you've potentially helped me (and hundreds other) save due to CCA irregularities.

Nooo mate, thanks for the offer but it's not money its the fact whenever I issue court papers - with the proof I have - they always back down and remove it before court which is an inconvenience but also a waste of another £100 plus time.....

I suppose I could do it for people as a business interest and change costs only - but then I couldn;t commit to the time so its hard to get off the ground..... I've had 50 defaults removed remember plus several for people on here when I stick to it and they realise they cannot win and run the risk of paying compo lol

I just want to take a biggie to court, like Crappy1 but its not my case - its Marcellep (How to get back on the credit ladder )and I don't think he wants to go to court plus i'm telling him it aint worth it...... Have a read - its funny (last few pages mate)....

xxkizxx

Thanks for your reply NID,
yes thats letter i have sent them all, companies I have been contacted by say they cant locate original Ca so will not pursue the debt unless the agreement is found, with reference to default notice it was originally from Capitalone but now it is Lowell Financial ,default date is the same but NEVER recieved default notice from them or Capitalone.
Must add after fighting Capitalone for over 7month now regarding my Ca, today they have now finally admitted this cant be located and stopped trying to fobb me off with a pointless repeated piece of paper and nasty letters from LF!
So basically I will have to wait until 2014 for defaults to drop off, how many years before they dont really have an impact on your credit score?

captainhaggis

What a superb thread..... How on earth do these idiots (the guy at Crapp1) get jobs?! Good work lad. Keep it up.