Unenforceability & Template Letters

never-in-doubt

bankkiller wrote: »

hi
can any of you guys confirm if these requirements below for the cca are correct and accurate? I just received a cca from Lloyds tsb, and it doesn't seem to be on one page, and it doesn't have the lenders signature either.
I just want to check whether its unenforceable or not. any advice appreciated, thanks!
I'm still making monthly payments to lloyds.

Ive had a mooch and it doesn't look enforceable, check again (with the original) cos the quality of upload is difficult to read.

Check B, C & D.

Prescribed Terms

A Amount of credit
A term stating the amount of credit

B Repayments
A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following-

(a) Number of repayments;
(b) Amount of repayments;
(c) Frequency and timing of repayments;
(d) Dates of repayments;
(e) The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable.

C Rate of interest
A term stating the rate of interest to be applied to the credit issued under the agreement

D Credit limit
This may be a term or the manner in which it will be determined or that there is no credit limit.

Which of these applies to you depends on the type of agreement you have?

For a Running Account (credit card) agreement

BC and D is applicable

For a Restricted Use Debtor Creditor Supplier

• Where the dealer is the supplier and the creditor is the one providing the finance.
• The money can only be used for the purpose it is given.
• There is no interest on the purchase (the cash price is the same as the total price)
• And there is no advance payment

A is applicable

For a fixed Sum Credit Agreement
A conventional credit agreement with none of the above restrictions

A and B is applicable

For a Hire AgreementB is Applicable

never-in-doubt

ricardovich wrote: »

Hi N-I-D

You really are a star -thanks so much for all your expertise.:T

Next question:-

Having accessed my Equifax report I can now see which companies have registered a default against me.

Previously I have sent them the 12+2 and the 30 day CCA letters. Whilst awaiting their replies should I send them the template "proof of default letter" - as I have no record of any of these defaults - or should I just wait the statutory 30 days and continue from there??

r
x

No you just wait now and (or send letter 2 below) do not pay anything. They have failed to respond so the debt is now unenforceable, I assume the last letter you sent explained this (if my template from page 1 then it will be called

Account in Dispute - Section 10 Notice

- from post 1: #1

Assuming so, then you move to post 2: #2

:D

fermi

Some may be interested in this:

Southern Pacific Personal Loans Ltd v Walker & Anor [2009] EWCA Civ 1176 (12 November 2009)

or maybe not....

Bit of a slightly different set of issues on unenforceability, but interesting none-the-less.

Especially since they have overturned the previous Walker v SPPL judgement that ruled the agreement was unenforceable.

Grifter09

Thanks NID I have followed your link and started a new thread as you suggested.

bankkiller

never-in-doubt wrote: »

Ive had a mooch and it doesn't look enforceable, check again (with the original) cos the quality of upload is difficult to read.

Check B, C & D.

Hi
thats how they sent me it! its all dark on the copy they sent me, I scanned it in exactly as they sent me it.
what should I do now? which letter should I send them?
Do I need to ask for a more legible copy or will it take too long, and should I now send them letter 4.
Shall I send them Letter 4, the CCA request letter, as I have now received the CCA but it doesn't meet the agreed terms.
please advise if you can!
I will brighten up the second part and reupload again so you can read it properly.
thanks

never-in-doubt

fermi wrote: »

Some may be interested in this:

Southern Pacific Personal Loans Ltd v Walker & Anor [2009] EWCA Civ 1176 (12 November 2009)

or maybe not....

Bit of a slightly different set of issues on unenforceability, but interesting none-the-less.

Especially since they have overturned the previous Walker v SPPL judgement that ruled the agreement was unenforceable.

Woah now that makes for interesting reading

Good point of interest though is that this would appear to open the floodgates, in particular if one loan is added to another using the same CCA - its clear this would then be upheld (as unenforceable), using the judgement within the link..... So we can take that and use it to our advantage, taken out of context slightly...

You're the man for breaking these judgements apart Fermi - think of some examples we could use to our advantage....

terimon

Thanks again NID and Captainhaggis

terimon

Quote:
Dear Sirs,

Ref: 12345678

I write with reference to an ongoing complaint with Lender Name Here and their unlawful addition of a default notice against me.

It is quite evident from the attached correspondence that Lender Name Here do not follow simple guidelines and as a result I am left with no option but to pursue legal action against them, however in the meantime, as you can see from the attached correspondence, the default registered is in fact unlawful and a clear breach of s.87 & s.88 of the Consumer Credit Act 1974. As such i'd like you to consider immediate removal of the default whilst this matter is being investigated by the relevant governing bodies, bearing in mind you are classified as the data processor and can be held liable to any libel litigation I may pursue.

I quote:

87 Need for default notice

(1) Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,

(a) to terminate the agreement, or

(b) to demand earlier payment of any sum, or

(c) to recover possession of any goods or land, or

(d) to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or

(e) to enforce any security.

(2) Subsection (1) does not prevent the creditor from treating the right to draw upon any credit as restricted or deferred, and taking such steps as may be necessary to make the restriction or deferment effective.

(3) The doing of an act by which a floating charge becomes fixed is not enforcement of a security.

(4) Regulations may provide that subsection (1) is not to apply to agreements described by the regulations.

88 Contents and effect of default notice

(1) The default notice must be in the prescribed form and specify

(a) the nature of the alleged breach;

(b) if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken;

(c) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid.

(2) A date specified under subsection (1) must not be less than seven days after the date of service of the default notice, and the creditor or owner shall not take action such as is mentioned in section 87(1) before the date so specified or (if no requirement is made under subsection (1)) before those seven days have elapsed.

(3) The default notice must not treat as a breach failure to comply with a provision of the agreement which becomes operative only on breach of some other provision, but if the breach of that other provision is not duly remedied or compensation demanded under subsection (1) is not duly paid, or (where no requirement is made under subsection (1)) if the seven days mentioned in subsection (2) have elapsed, the creditor or owner may treat the failure as a breach and section 87(1) shall not apply to it.

(4) The default notice must contain information in the prescribed terms about the consequences of failure to comply with it.

(5) A default notice making a requirement under subsection (1) may include a provision for the taking of action such as is mentioned in section 87(1) at any time after the restriction imposed by subsection (2) will cease, together with a statement that the provision will be ineffective if the breach is duly remedied or the compensation duly paid.

s.87(1) of the CCA1974 clearly states that a default notice must be served before the creditor or owner can become entitled, by reason of any breach by the debtor. As they have failed to, and continually ignore my request to, send a default notice to me then they are in clear breach.

Please ensure immediate removal of this default and speak to Lender Name Here yourselves and try to obtain a copy of the default notice? As you are aware, if they cannot substantiate the accuracy of the data to you then you have an obligation to act; by removing the incorrect data registered.

I look forward to your response within the next 21 days.

Yours faithfully,

sign here
Credit Reference Agencies Addresses:
Quote:
Experian Ltd
Customer Support Centre
PO Box 8000
Nottingham
NG80 7WF
Quote:
Equifax Plc
Credit File Advice Centre
PO Box 1140
Bradford
BD1 5US
Quote:
Call Credit Plc
Consumer Services Team
PO Box 491
Leeds
LS3 1WZ
Hello NID Shall i send the above off

terimon

I am beginning to confuse myself now

Do i send NatWest a letter now?

Sorry for being so stupid!:embarasse

captainhaggis

never-in-doubt wrote: »

Noooo do not offer Natwest money - after unenforceability this should be something you never ever ever do! Sorry mate be careful what you're saying!!!

Simply send the letter above to the CRA's and ask them to remove the libellous data that Natwest have registered....... do not offer money on an unenforceable debt!

Hi fella,

I merely made the suggestion because you've previously said that having defaults removed was the major part of the battle. Many creditors, I gather, aren't really playing ball in this regard.

I saw this as a possible opportunity to pay a minimum amount against the debt in return for keeping a relatively decent credit file.

Cheers