Unenforceability & Template Letters II

astravanman

To be honest I only flicked through the drivel spouted by "not-so-savy" as from their first post it became evidently clear this person is not to be taken seriously. I can only think that their main objective is to cause a rumpus in an attempt to get this thread closed down. All I can say is thank you NID for making the info easily available without having to trawl the web. Keep up the good work and no need to entertain the not so bright trying to smear you.

pepe2008

Also , NIDs info tends to be simple and clear. CCA is a very complicated piece of Legislation and most of the Judges dont seem to understand it either.
Its very easy to overcomplicate the issues and many people have come unstuck by trying to be too clever when going to Court........resulting in a confused/ badly informed Judge who takes the decision that 'you owe the money, you pay it!' which is NOT the point. The point is one of ENFORCEABILITY or otherwise.

smifff_2

savysaving, what bank or DCA did you say you worked for.

I too would like to thank NID for his advice. His advice is free and works. I'm going down the CCA route, still early days but his advice is working for me. today I had my 1st phonecall from Barclays and followed his advice form earlier postings, at 1st the guy that phoned was very cocky and confident, didn't last long though and he hung up with his tail between his legs.

Well done NID

cejsmith

astravanman wrote: »

Might be in a similar situation soon. Can I ask if Cap1 sent you a letter asking to provide a signature? We also had Fredrickson pursuing on behalf of Cap1 but after sending the CCA request they wrote back putting the account on hold and referred it back to cap1. We got a letter from cap wanting a signature before complying with the request so have fired off the no sig required letter.

I never had cap1 ask for a signiture at any time.

astravanman

cejsmith wrote: »

I never had cap1 ask for a signiture at any time.

Ok thanks. Might be the case they haven't got one and attempting to magically produce one! Will wait & see what they come back with.

Oh, had a nice pretty pink postcard from Hillesden Securities (DLC) wanting to arrange a rep to call round within the week. I don't think so...

PennyPinchingMiser

astravanman wrote: »

We got a letter from cap wanting a signature before complying with the request so have fired off the no sig required letter.

Didn't sign it did you? :rotfl:

Marisco

Hi NID Thanks for the advice, I'll do that and see what happens. Yes, I've got all the paperwork, including the one saying they cannot find the original, and I'll be hanging on to them until this mess is over:mad: Then it will all be shredded and used as cat litter:D Useful money saving tip........ shred all private papers and use as cat litter - very absorbent and it will deter identity theft thieves - well, would you go rooting through used cat litter? And the cats love it!!!!

never-in-doubt

MACO wrote: »

Hi Nid,

Its a CC account, they are trying to say its a bank account, it was defaulted by A&L and then sent to debt collectors, they have sent me no CCA or anything, just an old CC application form.

I was under the impression that any CC before April 2007 May be able to be written off if there is no agreement, is this not the case? Does it have to be defaulted?

Thanks MACO

Hiya

Ok, if you're certain it is NOT a bank account then you need to reiterate this point to the DCA (debt owner) and send back 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. A copy of my original request is enclosed for your perusal and ease of reference.

You keep referring to this account as a bank account but I have no recollection of having a bank account with Alliance & Leicester. Therefore until such time you can prove this debt exists, by way of compliance to my CCA Request, no further contact will be made.

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

never-in-doubt

cejsmith wrote: »

Just had a letter today from Fredrickson International, re my Capital one account.

Cap 1 have sent me a true copy of my cca but it's not legible and may well be unenforceable. Cap 1 in their last letter state they we not enter into any more correspondence on the matter and have referred me to FOS but have stated that they don't believe it's a matter for them.

What letter should I send to Fredrickson, I want to stop they calling me before they start?

Thanks

Hiya

Just send the following letter to them. Obviously you do not need to contact Crappy1 again - just send the following to Frederickson, the content of which is self explanitory.

Dear Sirs,

Account No: XXXXXXXX

This account is in severe dispute with the Original Creditor (Capital One). They have failed to respond to my legal request to supply me a true copy of the original Consumer Credit Agreement for the above account.

The document that they were obliged to send me was a true copy of the executed agreement that contained the prescribed terms, all other required terms and statutory notices and was signed by both them and myself as defined in s.61(1) of the CCA(1974) and subsequent Statutory Instruments.

The documents I received appear to be an illegible photocopy of a 'Capital One Credit Card' and a separate ‘copy of the current terms and agreement’. The prescribed terms as required by section 60(1) Consumer Credit Act 1974, are not at all visible and therefore the documents provided do not constitute a ‘true copy’.

As you are no doubt aware, the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI/1557) states:

2 Legibility of notices and copy documents and wording of prescribed Forms

(1) The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the [background medium upon which the information is displayed].

Similarly; the Consumer Credit Act 1974 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 Capital One 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

never-in-doubt

Sheena82 wrote: »

Hi All hoping for a bit of advice here let me explain where I am upto. I have sent the first two letters to MBNA with regards to requesting a cca I have had a reply from them from the first letter but not from the second, I have given them more than 2 months to reply (I thought I would give them time as not 100% sure how goods I feel about this but desperate time seek deperate mesures) I now have the third and final letter ready to post and I am about to send a letter do my my dmp provider to stop all payments.

Will I beable to do this I have heard that not alot of people have sucess with unenforcability im just abit nervous about stoping payments I suppose but that is the next step I have to take if I want to see this through.

Any advice would be greatly appreciated.

Thanks

Sheena

Hiya

Basically if the lender does not respond within 30 days then they are in default of your CCA Request meaning the account is unenforceable until such time they present a legible true copy of the original.

You should therefore cease repayments immediately and send the following letter to the creditor (send one per account).

Letter to send:

4. CCA Dispute
This is the letter you send if the CCA has not arrived, usually 30 days after the CCA Reminder letter was sent.

Bear in mind you will get defaulted (if not already), when you cease payments so it is a gamble but as most say - a default is better than paying something back for years that you do not legally have to.

Therefore make your decision and let us know how you get on. Obviously if they do provide a lawful agreement then you can just add them to your DMP again - bear in mind that any agreement to freeze interest etc may be affected by cessation of payments - again, not many people worry about this if they've already been defaulted etc....