Unenforceability & Template Letters II

putty71

Hi Never

Finally got back on here after saying I would log on last Tuesday. Definately couldn't make Weds and really felt sorry for myself last Thurs!
Enough!

What I did get last week from amex was an agreement to refund my charges for the last 6 years- hooray.

In the post however was a letter from their DCA. Please bear in mind I had already sent back my letter to amex the day before as you suggested. Their letter goes like this-

We have previously invited your contact in order for us to assist you to resolve this matter (reference to amount due which equates to £5k ish)

As we have yet to discuss your situation with you we must now recommend to our client that we proceed with litigation at which time the balance will increase substantially as costs and interest will be added.

If when judgement is obtained the debt , costs and interest remain unpaid then one of the follwoing steps will be taken-

EXECUTION AGAINST YOUR BELONGINGS BY A COURT BALIFF
ATTACHMENT OF EARNINGS ORDER BY YOUR CURRENT OR ANY FUTURE EMPLOYER
A PETITION FOR BANKRUPTCY
IN THE CASE OF HOME OWNERS, A CHARGE OVER YOUR PROPERTY AND AN ORDER FOR SALE

In order to prevent litigation commencing we are still willing to discuss a mutually acceptable repayment offer.

Help!

Okay so I am currently arguing the account is in dispute as amex cannot compley with the cca ( i do need to scan and send you what they sent)

I previously wrote to Newmans and told them the account was in dispute and also requested proof that they were acting on behalf of amex, but heard nothing.

I know you have told me not to worry but this does worry me. Firstly can they do any of the above what they say and do they have to provide me proof that they are acting for amex? What can I send them back?

If anyone can help I would be very grateful as this could start the new year off badly.

Oh and by the way never your last post to me was 976 if that helps.

Please and thanks

Putty

bankkiller

hi guys, can someone clarify this.

ok i've been reading elsewhere that that the debtor in any instance cannot force a lender into court to ask the judge to claim unenforceability, i've read that its only when a lender files a county court claim against the debtor, that a debtor can put in a defence against them.

"the only way a debtor can get a declaration of unenforceability is if the claim by the lender is refused by the court. (not due to breaches of the Act)"

if the DCA or Bank knows that the agreement is unenforceable but tries to act smart by still sending me warnings, whats the likelihood of them issuing a court claim against me?

What am i supposed to do in my defence to the court should it happen?
is there any templates?

bankkiller

blind-as-a-bat wrote: »

Actually, if so, the implications will depend if you are the claimant or defendent.........


Me thinks, reading between the lines ive read so fa, this slams the door for claim companies proactivly applying to get agreemants judged unenforceable, however makes no differance if the creditor starts the proceedings...................


The burden of proof is on the claiment............................

From what I now understand, according to a previous case.
It was established that a debtor cannot make a claim against a lender and take them to court to ask the judge to decide whether its unenforceable or not.

The only job of the debtor is to put in a defence when the lender starts a court claim against them.

So basically all the claims management companies are taking money for something which is basically not possible.

The debtor is only supposed to put in a defence when the lender has filed a court claim.

So basically, if the lender is in default and cannot come up with the CCA, its not our job to force them into court. Its up to them to prove it.

So it looks like people have been millions to claims agencies for absolutely nothing.

what a waste of money. And apparently, the OFT and Ministry of Justice is allowing this to happen, so it looks like even they and all the solicitors don't even know the law themselves!

what the hell is going on!

I'm going to stop paying immediately, because the burden of proof is on the bank to prove it.

never-in-doubt

putty71 wrote: »

Hi Never

What I did get last week from amex was an agreement to refund my charges for the last 6 years- hooray.

Excellent - this comes off the debt though, you won't see it.

putty71 wrote: »

In the post however was a letter from their DCA. Please bear in mind I had already sent back my letter to amex the day before as you suggested. Their letter goes like this-

Help!

Ok, typical bull !!!!!! from them - they are in default right now so let them take you to court! That's what you want isn't it? Then when they fail to provide the agreement and the judge realises they never responded to your numerous letters any action would be set-aside.

Can you confirm (in bullet style) events to date, i.e. 1. Sent CCA dated:, 2 reply received dated:, 3 CCA Dispute sent:

Make sense? It'll help us keep tabs on what has occurred to date.

putty71 wrote: »

Okay so I am currently arguing the account is in dispute as amex cannot compley with the cca ( i do need to scan and send you what they sent)

Just write back with a copy of your recent letters and tell Amex and their DCA to read them and to note that whilst the account is in dispute no action can be taken!

putty71 wrote: »

I previously wrote to Newmans and told them the account was in dispute and also requested proof that they were acting on behalf of amex, but heard nothing.

More proof to any judge that you're acting in accordance and the lender/dca are not!

putty71 wrote: »

I know you have told me not to worry but this does worry me. Firstly can they do any of the above what they say

As things stand, no! Until they send a copy of your CCA then they are in breach and the account remains in dispute and the debt cannot be pursued - judges are aware of this fact as well so any court papers you get would be defended using the premise of no CCA supplied by the lender.

putty71 wrote: »

and do they have to provide me proof that they are acting for amex? What can I send them back?

They have to send you official Notice of Assignment paperwork otherwise you refuse to speak to them. That is your right - they have to prove that they are the legal owners of the debt, it is not for you to prove it.

putty71 wrote: »

If anyone can help I would be very grateful as this could start the new year off badly. Putty

Don't worry mate - they are talking !!!!!! and grasping at straws - bring it on! You have them over a barrel until such time they issue a CCA.

never-in-doubt

bankkiller wrote: »

hi guys, can someone clarify this.

ok i've been reading elsewhere that that the debtor in any instance cannot force a lender into court to ask the judge to claim unenforceability, i've read that its only when a lender files a county court claim against the debtor, that a debtor can put in a defence against them.

"the only way a debtor can get a declaration of unenforceability is if the claim by the lender is refused by the court. (not due to breaches of the Act)"

if the DCA or Bank knows that the agreement is unenforceable but tries to act smart by still sending me warnings, whats the likelihood of them issuing a court claim against me?

What am i supposed to do in my defence to the court should it happen?
is there any templates?

Why would you want to take action in the first place? (you can initiate proceedings if you wanted to)..... the normal process would be;

1. you CCA them

2. they do not reply

3. you cease paying

4. they issue a CCJ

5. you defend this in court.

There wouldn't be a reason for you to initiate unenforceability, if they dont supply an agreement then it is unenforceable until such time they do - a court does not need to decide this, it is written into the CCA1974.

Stop worrying, wait and see what transpires before thinking too far ahead!

never-in-doubt

bankkiller wrote: »

It was established that a debtor cannot make a claim against a lender and take them to court to ask the judge to decide whether its unenforceable or not.

Oh yes they can but why would they want to?

putty71

never-in-doubt wrote: »

Excellent - this comes off the debt though, you won't see it.



Ok, typical bull !!!!!! from them - they are in default right now so let them take you to court! That's what you want isn't it? Then when they fail to provide the agreement and the judge realises they never responded to your numerous letters any action would be set-aside.

Can you confirm (in bullet style) events to date, i.e. 1. Sent CCA dated:, 2 reply received dated:, 3 CCA Dispute sent:

Make sense? It'll help us keep tabs on what has occurred to date.



Just write back with a copy of your recent letters and tell Amex and their DCA to read them and to note that whilst the account is in dispute no action can be taken!



More proof to any judge that you're acting in accordance and the lender/dca are not!



As things stand, no! Until they send a copy of your CCA then they are in breach and the account remains in dispute and the debt cannot be pursued - judges are aware of this fact as well so any court papers you get would be defended using the premise of no CCA supplied by the lender.



They have to send you official Notice of Assignment paperwork otherwise you refuse to speak to them. That is your right - they have to prove that they are the legal owners of the debt, it is not for you to prove it.



Don't worry mate - they are talking !!!!!! and grasping at straws - bring it on! You have them over a barrel until such time they issue a CCA.

Cheers Never

Assuming they do produce a worthwhile CCA or the courts side with themm, from the list of options they gave me, what can they legally do?

never-in-doubt

putty71 wrote: »

Cheers Never

Assuming they do produce a worthwhile CCA or the courts side with themm, from the list of options they gave me, what can they legally do?

They cannot provide an original though, if they could they would have (surely?)......

But in any case you defend it, using the principle that no CCA has been supplied. If they do happen to send one at a later date you simply make offer to repay the debt. Simples

Numpty_Monkey

Heres what I got sent good quality or what:rotfl:

Numpty_Monkey

And page 2....
and thats aftersome filtering its clearer than what i got