Unenforceability & Template Letters II

never-in-doubt

Morethanabitskint wrote: »

I've tried to look through the forum and figure out whether this is enforceable or not and i don't think it is on the basis that the only original credit documents i have our terms and conditions covering a number of cards and none of the financial documents are on my signed application form. In addition, i can't see a credit limit stated.

They make reference to the card replacement letter but this seems to just be a recent letter (its undated) and i know that the amount it lists as my credit limit wasn't that when i took out the card.

I know your a very busy person NID but if i could trouble you for your thoughts on my next move and where i stand it would be infinitely appreciated.

Hiya

Have you got a copy of the agreement they sent you online? If not, can you PM me and i'll give you my email then if you email me them i'll take a look for you.....

Can you also confirm why you think it is unenforceable (forget the credit limit, this alone will not stand-up in court). Does the document they sent you have the prescribed terms on it and your signature? If not, it is unenforceable.

Lloyds_Dad

never-in-doubt wrote: »

You should start a new thread here: Debt-Free Wannabe

For best results

Cheers mate

never-in-doubt

littlemissteapot wrote: »

sorry for the caps just found it easier to answer the questions that way (i know people don't like caps!!!)

I'm at my wits end now they are constantly calling and of course my parents are becoming annoyed with me as its the house number they are calling. They just say shes not in etc is it best to talk to them?? I'm really stressed
Thanks NID x

Hiya

Sorry for the delay. Ok, send the following letter to Cabot and see what they respond with. It may be easier to block their number but technically they can call you as long as the debt it outstanding - just a side thought, they usually ring from witheld numbers so if you're with BT just pay the £2 or whatever a month to block witheld numbers - that will cut down the calls.

Regards to your other creditors, have you sent a CCA to them yet? You do have understanding parents, i'll give them that lol. Don't worry though, the DCA (Cabot) have no rights! See here for details: Dealing with Bailiffs Harassment

So, in the meantime send the following to Cabot and if you're paying - STOP! If it is unenforceable you should not pay the debt!

Dear Cabot,

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 XX/XX/XXXX I made a formal request for a true signed agreement for the alleged account under the Consumer Credit Act 1974 (s.77-s.79). A copy of this request is enclosed for your perusal and ease of reference.

To date you have failed to comply with my request, and as such you are now in default and this account has become unenforceable. The document that you were obliged to send 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 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 you enter into a default situation. This limit has expired and as such, 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 agreement; by constantly sending me an application form that does not contain any of the prescribed terms, any legal action you pursue will be averred as both unlawful & vexatious. Furthermore I shall counterclaim that any such action constitutes unlawful harassment.

On the topic of harassment, I would like to point out that the quantity and frequency of telephone calls that I have received from your company is deemed to be personally harassing. I have verbally requested that these stop, but I am still receiving numerous calls at silly hours of the day and I now require all further correspondence from your company to be made in writing only. The phone number you used will be disconnected shortly and no further number will be given.

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, and the Protection from Harassment Act 1997. Pay attention; 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. Any further telephone calls from your company may be recorded and used in evidence and I expect this harassment to cease immediately.

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.

Any attempted argument regarding case law such as McGuffick v RBS will be dismissed as this particular case has no bearing on the legal reporting methods that a lender has with the CRA, namely adding derogatory data whilst an account is in dispute, this account clearly is disputed. 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.

Need I remind you 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

neilsj_2

Thanks NID - the debt is in the UK, I just happen to live abroad. I've already sent off the Dispute letter so will just sit tight until they come up with the true copy (depending on whether they send it to the right address though!).

Thanks for your help.

never-in-doubt

neilsj wrote: »

Thanks NID - the debt is in the UK, I just happen to live abroad. I've already sent off the Dispute letter so will just sit tight until they come up with the true copy (depending on whether they send it to the right address though!).

Thanks for your help.

Mate if you live abroad then why even bother? Nothing they can do lol - so long as you dont want to come back and get credit in the next 6 years! I'd have ignored them lol :rotfl:

pebbles88

Morethanabitskint wrote: »

Hi NID,

Was just wondering if i could please run the most recent response i have received on the card i am challenging past you. To re-cap where i was with my process:

1) I had sent off the first letter. This is a credit card account with NatWest and has already been defaulted so i figured it was worth a go.

2) Had received a reply from NatWest - 'We are obliged to provide you with a 'true' copy of the credit agreement and a statement of financial information relating to the account, namely, the state of the account, amount currently due, with amounts and due dates of future paymentsthat still require to be made. In terms of the CCA copy document regulations, the 'true' copy requirement can be satisfied by providing a copy agreement at the date the card agreement was made and providing that plus a copy of of the current terms of the card agreement.'

I was provided with an original copy of the application form that i signed, terms and conditions on a seperate attachment, and a version of CCA as it now stand (with my current credit limit).

3) We spoke briefly (i appreciate that you have advised loads of us by now and its very much appreciated) and based on this i sent off the CCA query (letter 3).

4) I have now had the following response from NatWest -

'Regarding your letter concerning the Banks alleged breach of the CCA.

Any request for a copy of an executed agreement under s78(1), states that the company must meet it's statutory requirements by providing a 'true copy' of the agreement relevant to the card product. These copies should be accompanied by the statement of financial information relating to the account.

When responding to requests under s78 we are compliant if we provide a 'true copy' of the agreement in accordance with Regulations 3(2) and 7 (1) (b) of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983. This means that there is no obligation for us to provide a copy of the original agreement bearing signatures. Additionally, under Regulation 3 (2) a 'true copy' does not need to contain all personal information relating to the borrower, nor does it need to includea signature box or dates of signatures.

We have supplied a copy of the credit agreement that you agreed to after which you then received your credit card. We have also supplied a copy of the original and current Terms and Conditions of that card product with the prescribed terms and a statement showing the outstanding balance. We have advised you who you need to contact to discuss amounts due and owing, and future payments that must be paid. We have therefore met our obligations under s78(1) to provide a copy of that executed agreement and again we are satisfied that what was provided complied with the Regulations expressly made for controlling what is a 'true copy'.

I must therefore inform you that we can see no reason to enter into further correspondance with you about alleged CCA breaches. If you are not satisfied with this response, you may seek whatever legal redress you consider is open to you.

We do not consider this account to be in dispute and your indebtedness on this account remains due and payable and we will be pursuing for the full repayment. All non payments have been recorded on your credit file as has the default due to non payment.'

I've tried to look through the forum and figure out whether this is enforceable or not and i don't think it is on the basis that the only original credit documents i have our terms and conditions covering a number of cards and none of the financial documents are on my signed application form. In addition, i can't see a credit limit stated.

They make reference to the card replacement letter but this seems to just be a recent letter (its undated) and i know that the amount it lists as my credit limit wasn't that when i took out the card.

I know your a very busy person NID but if i could trouble you for your thoughts on my next move and where i stand it would be infinitely appreciated.

hmm, this was exactly the same letter that they sent me.... which they did later on admit to the FOS that they do not have the agreement, might not be the case here though!

never-in-doubt wrote: »

Hiya

Have you got a copy of the agreement they sent you online? If not, can you PM me and i'll give you my email then if you email me them i'll take a look for you.....

Can you also confirm why you think it is unenforceable (forget the credit limit, this alone will not stand-up in court). Does the document they sent you have the prescribed terms on it and your signature? If not, it is unenforceable.

all shatwest actually sent me was a blank copy of the application form( from a fold out leaflet) and the letter that came with the last renewal card (it was stuck to it) and then lots and lots of badly photocopied t&c's...

never-in-doubt

pebbles88 wrote: »

hmm, this was exactly the same letter that they sent me.... which they did later on admit to the FOS that they do not have the agreement, might not be the case here though!

all shatwest actually sent me was a blank copy of the application form( from a fold out leaflet) and the letter that came with the last renewal card (it was stuck to it) and then lots and lots of badly photocopied t&c's...

I'm expecting the same to happen here, first a letter confirming they do not have the agreement followed up with idle threats and lots of bad photocopies & concocted documents :think::whistle::think:

wee_blu

Hi there, have been reading these forums and this site for a while now and have just signed up. I wonder in I can ask you NID a couple of questions about this subject as I have just been made unemployed by the firm going bust and I have a few credit card bills to pay-some biggies! Thing is I have a mortgage and a perfect credit history with no missed payments and perfect mortgage repayments and I am wondering if I go down this route are there problems down the line. I have two credit cards with big balances and they were both taken out before 2007 probably had them for about 7 + years, I've prob paid the amount two times over as been paying these for ages, and am going out of my mind how to keep the payments going, have already taken out other cards but have almost maxed out these now. Any help much appreciated

cheers wee blu

never-in-doubt

wee_blu wrote: »

Hi there, have been reading these forums and this site for a while now and have just signed up. I wonder in I can ask you NID a couple of questions about this subject as I have just been made unemployed by the firm going bust and I have a few credit card bills to pay-some biggies! Thing is I have a mortgage and a perfect credit history with no missed payments and perfect mortgage repayments and I am wondering if I go down this route are there problems down the line. I have two credit cards with big balances and they were both taken out before 2007 probably had them for about 7 + years, I've prob paid the amount two times over as been paying these for ages, and am going out of my mind how to keep the payments going, have already taken out other cards but have almost maxed out these now. Any help much appreciated

cheers wee blu

Hiya

Who are the lenders - please name and shame lol

Also, you'll get defaulted if you pursue unenforceability - its one of the [STRIKE]perks[/STRIKE] bummers around it all i'm afraid. But if you cannot pay and little other choice than pay the same debt for 20+ years then why not? You can rebuild your credit in 6 years - can you pay off all the debt you owe in the same time frame?

How much debt are we talking by the way? Also, who are the lenders? Cheers

Geoff.P

hi ,i sent s10 letter to capital one, they replied with the usual strongly implying that their right and im wrong and stating that any further contact on this subject will be acknowledged but they will not enter into any further correspondence. now they have put it into the hands of debitas legal services an in house set up and they have written to me threatening doorstep visits,what should my next step be?
many thanks in advance