Unenforceability & Template Letters II

scarednshakin

never-in-doubt wrote: »

Hiya

Letter 3 from page 1 (CCA Query) - that should sort it mate

- - - 3. CCA Query

Cheers mate :beer: off to do that now.

NiceNicki

Thanks for quick replies. Much appreciated. One more question......

I have 3 agreements with M&S - a loan, a credit card and a personal reserve account. All dating back before 2007.

Do I send 3 seperate CCA requests or will 1 letter do? Do I send them £3 or am I entitled to the lot for £1 ??

Looking forward to hearing from you again soon.

Nicki XXXXX :cool:

never-in-doubt

send 1 CCA per account, 3 accounts = 3 x CCA and 3 x £1

They are different accounts, forget the lender - each account needs to be treated as individual.

putty71

never-in-doubt wrote: »

If it is enforceable then you'd be best arranging a payment plan. Whilst it was unenforceable (until they complied with s.78) then they could not sell the debt, as they feel they've complied they have now appeared to have sold it on.



If unsure you deal direct with the OC or request from them, a copy of the NoA (Notice of Assignment). This alone will have no bearing on the legality of the debt, its simply a stalling tactic and to be honest you should arrange a prepayment plan with Amex, if they have sold it then they will tell you who to contact and provide a number. If not, you await a letter from the new DCA.




Don't worry about this too much - you need to arrange a prepayment plan mate - accept it! Ring Amex for anything you're unsure of.

Have a read of the links below (These are CAG links), if you want to pursue a wasted avenue (waste of time and effort) in chasing the legality of assignment:

1 - Deeds/Notifications of Assignment
2 - DCAs using their clients and 'solicitors' logos

Hi Never

Fully aware and accepted that I have to pay. But are you saying if its been sold on they have to tell me, and if they appointed someone to recover the money that they don't have to do anything?

Thanks
Putty

never-in-doubt

putty71 wrote: »

Hi Never

Fully aware and accepted that I have to pay. But are you saying if its been sold on they have to tell me, and if they appointed someone to recover the money that they don't have to do anything?

Thanks
Putty

Hiya

Ok, NoA should be issued at any point the debt goes to a third party, as a transfer of ownership or a sale of rights. Either way you should have got NoA - HOWEVER the crux of the matter is lack of NoA does not give recourse to unenforceability - Amex will simply retrospectively send you a copy of NoA documents (Right of Sale of Debt) - so the point i'm making is that you'll not get anywhere based on the fact they never sent it - the debt is still liable.

The only way to buy time is to deny acknowledgement to the DCA and write to Amex requesting NoA and state you're leaving the balance in dispute until such time they send the paperwork.

However, bear in mind - (this is where it gets complicated), if Amex have not assigned the debt properly and the DCA has taken over the administration of the default (i.e. Amex showing settled with a new default for the balance under the DCA name) then you can have it wiped (cannot come back later either).....

So,

1. What does your credit file say? Is the default registered under Amex or the DCA?

2. Why do you want the assignment paperwork? I know you're entitled to it but can't see what basis you want it - it means nothing in the greater scheme of things (really)....:D

AndyLGR

I have a £1400 Barclaycard debt that is with a DCA (Lowells) and I asked for a copy of the CCA 7 days ago.

Today I received 2 letters from the DCA, the first is acknowledging recepit of my letter informing me that they are requesting a copy of the CCA from the original lender which may take longer than 12 days.

The 2nd letter is from their legal division, (I know its the same DCA as its from the same address with just a differently worded letter which is headed as Hamptons Legal). And they are threatening me with court action if I dont contact them about the debt. Odd really as I had been paying a monthly arrangement for the last 2 years, so I guess my CCA request has prompted them to try something else.

never-in-doubt

AndyLGR wrote: »

I have a £1400 Barclaycard debt that is with a DCA (Lowells) and I asked for a copy of the CCA 7 days ago.

Today I received 2 letters from the DCA, the first is acknowledging recepit of my letter informing me that they are requesting a copy of the CCA from the original lender which may take longer than 12 days.

The 2nd letter is from their legal division, (I know its the same DCA as its from the same address with just a differently worded letter which is headed as Hamptons Legal). And they are threatening me with court action if I dont contact them about the debt. Odd really as I had been paying a monthly arrangement for the last 2 years, so I guess my CCA request has prompted them to try something else.

Ignore the legal fools until your CCA is dealt with - i'd love to see them try and take action when you've sent a CCA Request off - lol.

Muppets don't know their right from their left! Shoddy is an understatement......

St0lli

Well Niddy, it wouldn’t be right to let a day pass without a question from me would it?!..... so heres today’s

Tonight’s post was a letter from Lloyds TSB entitled FINAL RESPONSE.

“Unfortunately, we don’t feel able to agree with your complaint. I refer you to our letter dated 19 November 2009 which enclosed your documentation and also set out in some detail how we have complied with section 78 of the CCA.

Please allow me to explain (how patronising! :mad:) that compliance with section 78 is achieved simply by sending you a copy of your executed agreement but we understand that some customers wrongly believe that they are entitled to an original signed copy of the agreement.

It is a complete misapprehension that section 78 provides debtors with the right to obtain a copy of their original signed agreement. That is not what the CCA provides for and, in fact, there is absolutely no requirement under the CCA to provide such a document. Nonetheless, although we have no obligation to do so, we will endeavour to retrieve a copy of the signed agreement for you and will therefore be in touch with you in due course.

In addition, we would point out that your credit card account has been in existence for some time and you have drawn down and repaid debt on multiple occasions, thereby acknowledging that your agreement is valid and enforceable.

The Bank’s agreements have always complied with the requirements of all relevant legislation and we are confident in our ability to demonstrate this. As such, your agreement is enforceable and you should continue to make payments when they become due.

As we have complied with section 78 of the CCA and your agreement contains all ‘prescribed terms’, your agreement with us is enforceable and we continue to treat it as such… blah blah blah”

Where do I go from here… I can’t believe they are correct in what they are saying.... are they ???:question:

mk1golf

Hi N-I-D

I've just been reading a court case summary for CCA, cant put the link up as I'm not allowed, due to being fairly new to the site

In it it says

Quote:

1. <LI value=59>The Claimants all contend that the copy must contain the name and address of the debtor as at the date of the executed agreement. The Defendants deny that this is required at all.
   
2. As a matter of common sense it is difficult to see how a copy of an agreement can omit the names of the parties. It might be thought that the address of the debtor, however, was immaterial, at least to the debtor, who can be assumed to know what it was at the time, if different from his present address. However, as noted above, any application of the concept of materiality must not override the requirements of s78 and the Copies Regulations properly understood. In my view it is clear that the name and address must be provided:

I've just noticed on the reconstituted copy version they sent us, that the post code is the present one (the Mother in Law has lived at the same address for 40 years) when she took out the credit card in 1984/85 the post code was different to the present one.....am I right that they should have at least have used the proper proper post code that would have been on the "alleged agreement"

never-in-doubt

mk1golf wrote: »

Hi N-I-D

I've just been reading a court case summary for CCA, cant put the link up as I'm not allowed, due to being fairly new to the site

In it it says

Quote:

1. <LI value=59>The Claimants all contend that the copy must contain the name and address of the debtor as at the date of the executed agreement. The Defendants deny that this is required at all.
2. As a matter of common sense it is difficult to see how a copy of an agreement can omit the names of the parties. It might be thought that the address of the debtor, however, was immaterial, at least to the debtor, who can be assumed to know what it was at the time, if different from his present address. However, as noted above, any application of the concept of materiality must not override the requirements of s78 and the Copies Regulations properly understood. In my view it is clear that the name and address must be provided:

I've just noticed on the reconstituted copy version they sent us, that the post code is the present one (the Mother in Law has lived at the same address for 40 years) when she took out the credit card in 1984/85 the post code was different to the present one.....am I right that they should have at least have used the proper proper post code that would have been on the "alleged agreement"

Don't quote case law and think it will apply to you mate - bad mistake and could prove costly..... one case doesn't do much at all, in essence we all know a CCA should have your name and address but it is not really essential and some judges will refuse your claim based on this. However, with a loan agreement then they must be present, a credit card is slightly less strict (i'd say)....

:D