Unenforceability & Template Letters II

putty71

never-in-doubt wrote: »

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

Hi Never

I'll check the credit file when I have more time. I want the assignment paper, not to buy time but so I have proof that they legally can request it. Before xmas when I disputed the cca, another dca was chasing.. The point i made to this dca is that several items of amex mail were not sealed properly and so it is possible the my info could have fallen into the wrong hands. See what I mean? Long shot I know but they need to play ball.
Moving on though, once I check my file, if the dca have registered a default, what you are saying is request a cca from them?

Cheers
Putty

never-in-doubt

St0lli wrote: »

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.

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

Just send this back to them - chill out, don't worry :D:D

We have 'em by the cohonas! :rotfl::rotfl:

Dear Sirs,

Account No: XXXXXXXX

I write in response to your letter, received on XX/XX/XXXX.

In my original letter, dated XX/XX/XXXX, I requested a copy of the credit agreement relating to the account detailed above. I expected to receive an exact copy of that which you hold in your records i.e. a copy of the agreement which is signed by myself and your representative. Instead, I received a typed agreement with various reconstituted details on it.

Whilst I appreciate that under the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 you are able to omit a signature and date box from the copy, however I would like to have in my person an exact copy of the document that you hold. I do not want a piece of paper that alludes to there being an agreement; I would like a photocopy of the actual agreement.

Regards to your comment, quoted below;

"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."

I'd like to refer you to recent OFT Guidance in light of the exact same court case you refer to, (Carey v HSBC Bank Plc [2009] EWHC 3417 (QB) (23 December 2009)), in which they stipulate they expect lenders to conduct themselves in an orderly manner and not deceive consumers into believing you hold an original when in fact you do not. Regardless, a simple CPR31.16 disclosure before action request would prove beyond reasonable doubt as to your 'true intentions'.

I am requesting that you provide me a copy of the agreement that bears my signature as I have reason to believe that there may be discrepancies within the agreement which may leave it improperly executed and in order to be able to adjudge my position effectively, sight of the original alleged agreement is paramount. I specifically require a copy of the actual agreement that apparently exists and I appreciate your time in trying to locate such agreement for me. Obviously, until such time the original can be sent please bear in mind this account remains unenforceable.

On that note, you go on to say, I quote;

"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"

Which can only be described as nonsense. I think you'll find that any basis for judgement based on the above scenario will be met with disgust from most District Judges and i'd happily fight my own corner if you really want to pursue this avenue. Naturally, any case law in relevance would be handy in such a case?

I make my request in good faith and I feel it is a nonsense approach to hold to the idea that you won’t provide this document because you simply don’t have to. I feel that would take advantage of your position and such an approach from your business not be in the best interests of a healthy business/client relationship. I see no reason not to provide a photocopy of the requested document - for instance, why would you deem it necessary not to provide a photocopy of the actual document if you are going to send what you claim is an exact replica, minus the signature(s)?

Why are you unwilling to provide the signatures anyway, I don’t really understand this stance? Unless, of course, you don’t actually have the document on record and so are unable to provide it, in which case I understand your actions. If it is the case that the original document is not in your possession, please advise this in your response letter.

I hope that you will find my request agreeable and look forward to your response in due course.

Yours faithfully

Sign digitally

never-in-doubt

putty71 wrote: »

Moving on though, once I check my file, if the dca have registered a default, what you are saying is request a cca from them?

Cheers
Putty

Let me know what your credit file says mate then i'll have a better idea what to do next - in the meantime you should ignore the DCA......

AndyLGR

never-in-doubt wrote: »

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)....

Why do you think it is less strict for a credit card?

Can this work against us if we have sent off for a CCA on a credit card account and the DCA wants to take it to court?

St0lli

never-in-doubt wrote: »

Just send this back to them - chill out, don't worry :D:D

We have 'em by the cohonas! :rotfl::rotfl:

As always.... Brilliant!!!! :T

Thanks for the quick response Niddy!

putty71

never-in-doubt wrote: »

Let me know what your credit file says mate then i'll have a better idea what to do next - in the meantime you should ignore the DCA......

Hi Never

the only default is one from crap one. Amex have reported it as derogarty status as 4 payments have been missed. How do we move this on from here?

Thanks
Putty

never-in-doubt

AndyLGR wrote: »

Why do you think it is less strict for a credit card?

Can this work against us if we have sent off for a CCA on a credit card account and the DCA wants to take it to court?

Because on a credit card CCA only your name needs to be present, on a loan CCA your name and address needs to be present.

Recent case law suggested that an omitted address from a credit card CCA does not render the account unenforceable. Judges will refer to this in any judgement, especially being it is such a recent case and fresh in everyone's mind.

Why does the DCA want to take it to court? Have they actually told you this or 'threatened' you with this? Big difference really - also, what did they send you, in respect of CCA? Can you post it up here and i'll take a look...?

I_Love_Crisps

never-in-doubt wrote: »

Mate Halifax have nothing to do with RBS - lol, you getting confused with inter-banks lol

I dont know about other stories mate, but you'll be fine - we're here to watch out for you. Other people have been given mis-advice as a result of people not knowing process or advising them to fight it in court - something I totally avoid at all costs (as it is pure dangerous and could set a future presedent)

Unenforceability is unique to each person and their agreement - you cannot generalise things. I'll look at email later today mate and get back to you....

Ha Yup...getting muddled with whos who...:o...any chance you could look at my email? so I can move on with the next two...

Thanks m8.

never-in-doubt

I_Love_Crisps wrote: »

Ha Yup...getting muddled with whos who...:o...any chance you could look at my email? so I can move on with the next two...

Thanks m8.

Hiya Mate

Sorry for the delay - been really busy.

Ok, not good news i'm afraid....

Mint - well that is actually mint (surprisingly) - seems aye, ok to me i'm afraid.

MBNA - similarly, it seems ok so long as it is a copy of the original, but the 'tick in the box' covers that part cos they can just use a computer printout, i.e. the lack of signature is your downfall here but then MBNA do use online forms and it is perfectly acceptable for a tick in the box to act as a signature when dealing with or referring to online businesses such as MBNA, for instance.

Basically, these are both enforceable as far as I would say - bummer, I know - you'll have to sort something out mate.....

Bailiffs have limited, if any, rights - remember that.

never-in-doubt

putty71 wrote: »

Hi Never

the only default is one from crap one. Amex have reported it as derogarty status as 4 payments have been missed. How do we move this on from here?

Thanks
Putty

Hiya

Regards to the assignment, you really should read this and the links within - I personally don't see much of an argument, unless you fancy a court battle (not my idea of fun!).......... Equitable Assignment - CAG

I think this really needs it's own thread.... however, personally I think you'd do well to spend some time on CAG and learn about Assignments as they can be complex and you'd need to have a good understanding in order to fight this.

Therefore, have a look at the following links - trust me, you'll be glad you did Consider joining as well, post your questions on there and see what they come up with - after all, it's full of lawyer type folks always keen to take up a new challenge

1. Equitable Assignment - CAG

2. define: Equitable assignment - Google Search

3. define: ABSOLUTE assignment - Google Search

4. Deeds & NoA's - CAG

5. DCAs using their clients and 'solicitors' logos