Unenforceability & Template Letters II

never-in-doubt

You would send the following letter if the lender sends you a reconstituted (fabricated/made up) copy that is evidently not the document you agreed to at outset. Instances would usually be an incorrect address; incorrect name; wrong signature; staff completion etc etc.

CCA Dispute - Forged Document Supplied

Dear Sirs,

Account No: XXXXXXXX

Having recently requested a copy of the alleged original Credit Agreement (CCA), in line with the Consumer Credit Act 1974 (s.77-s.79), I was dismayed to receive what can only be described as a fraudulent document.

My reason(s) for this claim are set out below:

• Enter reason here, for example: 'I never lived at the address that is showing until 3 years after the account was opened'....
• Enter additional reasons as appropriate

Kindly take a look at the following article which may shed some light on what the law considers a 'True Copy' - http://news.bbc.co.uk/1/hi/business/8393768.stm

I quote, from this article:

The OFT goes on to advise that lenders would be acting unfairly, and potentially in breach of their consumer credit licenses, if they misled borrowers by:

• hiding or disguising the fact that there was never a proper signed agreement in the first place
• providing only a copy of the current terms and conditions, not the original ones

As is clear, sending me a document that clearly was not in place at the time of the alleged agreement was sent to me, I think we can both agree that this does indeed directly breach OFT Guidance.

So, as you have failed to comply with my lawful request for a true, signed copy of the 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 but instead sent a forgery, any legal action you pursue will be averred as both unlawful & vexatious. Furthermore I shall counterclaim that any such action constitutes unlawful harassment and pursue legal action for the attempted fraud.

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 or Carey v HSBC will be dismissed as those particular cases have 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.

As a result of everything put together in this letter, I do feel it would be in your best interests to consider this matter closed and write off the balance as a business loss. The last thing you need right now is bad publicity and a legal loss, by presenting a forged document that we both know does not and will never satisfy clear guidelines set out in s.127(3) CCA(1974).

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 and your reasoning as to why you issued a forged document under the pretence it was a copy of the original. 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 unless you 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.
In light of the above, 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

Template Updated: 27 February 2010

scarednshakin

Thanks for the fab letter, will get it sent out and see what reply I get!!:)

Sorry for another question but also have a Preference Account with BOS. It was taken out in 1998, it is not a CC but an account that came with a loan. The account had a card and cheque book, I did send a CCA request to them and they have sent back 2 pages, no T&C. Do the same rules apply to this kind of account or does it come under the same as a bank account?

Slowly working through all our accounts - Great news is Choice have agreed account is unenforcable and will not be pursuing the account :j:j

Would never have got this far without your great help and advice :T, this time last year couldn't see any way forward but now with the great advice here it is def getting so much better. You are a star SNS

never-in-doubt

scarednshakin wrote: »

Thanks for the fab letter, will get it sent out and see what reply I get!!:)

Sorry for another question but also have a Preference Account with BOS. It was taken out in 1998, it is not a CC but an account that came with a loan. The account had a card and cheque book, I did send a CCA request to them and they have sent back 2 pages, no T&C. Do the same rules apply to this kind of account or does it come under the same as a bank account?

Slowly working through all our accounts - Great news is Choice have agreed account is unenforcable and will not be pursuing the account :j:j

Would never have got this far without your great help and advice :T, this time last year couldn't see any way forward but now with the great advice here it is def getting so much better. You are a star SNS

Hiya

I think I know what you mean regards to the BOS account but can you confirm was it sold as a loan or current type account? But if they sent forms in response to a CCA request then they evidently feel that is complies with s.77-s.79 so i'd carry on assuming so and see what they send back! i.e. send the dispute letter lol...

scarednshakin

Hi, it was sold along with the loan, the loan finished ages ago but kept the Preference Account going, so it is more like a current account, but like you said will send out the letter and see what comes back. Cheers mate

never-in-doubt

Lets assume things get out of control, and the DCA/OC is hassling you with plentiful phone calls and unnecessary threats. You would start by sending the original Harassment by Telephone letter, however if you find that does not do the trick then send a copy of your original letter with the one below - which is a more formalised version advising them of your intended legal action (its just a threat but a formal one!)

OFFICIAL COMPLAINT UNDER THE CONSUMER CREDIT ACT 1974 / 2006

WARNING - IMPENDING CRIMINAL PROSECUTION

Dear Sirs,

Account No: XXXXXXXX

I have on numerous occasions, informed your company that I am unwilling to communicate by phone and also notified you that all phone numbers listed are to be removed from my personal details.

I have also asked that all correspondence should be in writing only for which, under OFT Guidance on Debt Collection, you are to obey any such reasonable request. I have sent you an official warning by way of a 'Harassment by Telephone' letter which is dated: xx/xx/xxx, a copy of this such letter is attached for your perusal which also confirms and proves that I have given you ample opportunity to cease this unwarranted and illegal harassment.

The frequency of calls received from your organisation have been recorded for independent adjudication and I hereby place you under notice that if I receive any further calls from your organisation on any telephone number you have listed against me, I will take immediate legal action against you. Similarly; if you continue harassing me via intimidating phone calls, I may without further notice ask the court for permission to bring a private criminal prosecution against the directors of your firm.

I hereby formally place you under notice, s.7 DPA(1998), thus you must immediately and without delay update your records to reflect my request to remove all telephone numbers listed notwithstanding the major fact that I do consider your actions to be a significant breach of the law.

I reserve the right to seek an injunction against your organisation should the phone calls continue at the same frequency and I similarly reserve the right to bring a formal complaint against you to OFCOM, the Police, The FOS, the FSA and the OFT along with any other relevant regulatory Bodies. Further, please note that this letter constitutes a formal complaint and, should I not receive a satisfactory response to this complaint within 7 working days from the date of this letter, I will seek adjudication from the regulatory organisations noted above.

Yours faithfully




Sign digitally

Template Updated: 27 February 2010

never-in-doubt

The following template would be sent to a lender/DCA that sends you an illegible copy of documents when you request a CCA. So for instance, if they send you a dodgy copy that you cannot read properly, which would be not only unacceptable but also unenforceable.

The lender/DCA will usually respond to your CCA request with something along the lines of:

"We have supplied a copy of the credit agreement that you agreed to after which you then received the credit card. We have also supplied a copy of the original and current Terms and Conditions of that card product with he prescribed terms and a statement showing the outstanding balance. We have met our obligations under s78(1) and are satisfied that it complied with the Regulations expressly made for controlling what is a 'true copy'.

We do not consider this account to be in dispute and your debt remains due and payable...we will continue to pursue for payment as they fall due. Any non payment will be recorded on your credit file as will a default if it continues."

If they do, then just ignore it and return with the letter below (remember to edit the parts where you see red text):

CCA Dispute - Illegible Copy Document Supplied

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. 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 which is enclosed for your perusal and ease of reference.

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.

The documents I received appear to be an illegible photocopy of my ‘Enter Card Name/Type Here’ 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 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.

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

Template Updated: 27 February 2010

never-in-doubt

Lets assume you request a CCA and they respond with their Terms & Conditions - i.e. not a properly executed CCA, which would be not only unacceptable but also unenforceable. You'd then send something along the lines of the letter below:

CCA Dispute - Terms & Conditions Supplied

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

I note that you have replied to my CCA Request by sending a copy of Terms & Conditions and not a True Copy of the alleged Consumer Credit Agreement, in line with my formal request. As such, I must inform you that this is not sufficient to comply with the request and that your company is still in default under the act. Just sending the Terms and Conditions is a breach of the CCA1974 and Regulations, apart from the information that the Regulations provide that you may exclude, the copy must be a 'true copy' of the agreement.

This breach of the agreement can be demonstrated by quoting Section 180: s.180(1) (b) authorises:

“the omission from a copy of certain material from the original, or the inclusion of certain material in condensed form.”

This refers to statutory instruments made under the heading Copies of Document Regulations and in this care in particular to SI 1983/1557. Before leaving section 180 there are two other sections that should be mentioned, which are;

Section 2(2) (a)

A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not satisfied unless the copy supplied is in the prescribed form and conforms to the prescribed requirements;

And more importantly

Section 2(b)

A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not infringed by the omission of any material, or its inclusion in condensed form, if that is authorised by regulations.

You will see that this quite clearly states that whilst certain items may be left out of the copy document, the rest of the document must be in the correct form and contain all items as prescribed by the regulations. Turning to the regulations regarding what may be omitted from these copies these are contained with SI 1983/1557.

The regulations state:

(2) There may be omitted from any such copy-

(a) any information included in an executed agreement, security instrument or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations thereunder as to the form and content of the document of which it is a copy;

(b) any signature box, signature or date of signature (other than, in the case of a copy of a cancellable executed agreement delivered to the debtor under section 63(1) of the Act, the date of signature by the debtor of an agreement to which section 68(b) of the Act applies);

It is quite clear what can be omitted from the copy document, this again asserts that all other details of the agreement should presented in form and content as required by the regulations. The requirements of the Agreement regulations 1983/1553 are very explicit in describing the form and content of an agreement and this as I have demonstrated also applies to the copy of any such agreement with the above mentioned proviso. Nowhere within these regulations does it state that part of the agreement can be presented on a separate document headed terms and conditions. It does, however, state that 'all terms and conditions should be within the agreement document and is explicit of the form in which it is presented'.

In either case, please confirm that you have, in your possession, a credit agreement that is in all ways fully compliant with the Consumer Credit Act 1974, as amended, and the subsequent regulations made there under. For the avoidance of doubt, if you are in possession of such a document, but are unable to supply me with a true copy of it, please outline your reasons why you are unable to supply it to me in your reply. Furthermore, I respectfully request that you provide me by return a copy of the credit agreement which bears my signature. I require this as I have reason to believe that there may be discrepancies within the agreement which may leave it improperly executed.

I look forward to your response within the next 14 days.

Yours faithfully

Sign digitally

Template Updated: 27 February 2010

never-in-doubt

You would send the following letter if the lender sends you a reconstituted (fabricated/made up etc) copy and you want to see the actual copy (original). Being they can do this, especially after the recent 'test case' in Manchester, i'd suggest using a more informal approach instead of diving in with threats.

CCA Dispute - Copy Document Supplied

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 my name, address and account number on it.

Whilst I appreciate that under the regulations you are able to omit a signature and date box from the copy, I would like to hold in my records 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. 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. In order to be able to adjudge my position effectively I would require a copy of the actual agreement that apparently exists and I therefore appeal to you to fulfil my request. I am willing to pay any reasonable charge that you feel is necessary, in order to provide a copy of the “actual” credit agreement.

In considering my request, I ask that you take a common sense approach and do not hold to the line that you have provided all that is expected of you nor the recent test case in manchester, namely and to be known as: Carey v HSBC Bank Plc [2009] EWHC 3417 (QB) (23 December 2009).

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 especially since you included a blank signature and date box on the copy you have sent. Why would it be necessary to not provide a photocopy of the actual document if you are going to send what you claim is an exact replica, minus the signatures? 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 is your response letter.

I hope that you will find my request agreeable and look forward to your response within 14 days.

Yours faithfully

Sign digitally

Template Updated: 27 February 2010

BeenieCat

Out of interest, if they aren't obliged to send the actual signed copy, and they refuse to send it after that last letter, then what?

never-in-doubt

BeenieCat wrote: »

Out of interest, if they aren't obliged to send the actual signed copy, and they refuse to send it after that last letter, then what?

CPR31.14 pre court disclosure request. If nothing transpires then they cannot take it to court - end of. Over. Case closed. To finalise the process - send this nice little lovely: Debtors Final Response