Unenforceability & Template Letters II

never-in-doubt

If the DCA/OC has issued a default against you, and you never received a copy of the default notice. Then you'd send the following letter which doubles up as a CCA Request at the same time.

Remember to send it recorded delivery and enclose £1:

CCA Request + Proof of Default

Dear Sirs,

Account No: XXXXXXXX

After recently obtaining a copy of my Credit File from the Credit Reference Agencies, I am concerned to note that your company has placed a "Default Notice" against an alleged account I held with you. Further to this, I have no recollection of ever receiving such a notice, and I therefore require you to substantiate this data.

1. You must supply me with a true copy of the alleged agreement you refer to. This is my right under your obligation to supply a copy of the agreement under the legislation contained within s.77 - s.79 Consumer Credit Act 1974. Your obligation also extends to providing a statement of account. I enclose a £1 cheque to cover the statutory fee.

2. Please also supply me with a signed, true certified copy of the original default notice in line with s.87 & s.88 of the CCA(1974).

You are notified that you are obliged to supply these documents, whether you are the original creditor or not under s.189 of the CCA(1974). I request that this data is provided to me within the next 14 days. If you are unable to provide this data then I require all adverse information to be removed completely, including any defaults that may have been applied. Please note that mere correction or amendment to the entry will not be acceptable.

Yours faithfully




Sign digitally

Template Updated: 27 February 2010

never-in-doubt

This would be the last letter you'd send to the OC/DCA if you have enough evidence that the agreement sent, is in fact unenforceable. What you have to remember is that it is their responsibility to prove to you that the debt is enforceable and they usually do this by sending an actual photocopy of the agreement.

They will do almost anything to assume enforceability but you as the debtor have to understand that they will say anything to scare you, however if you're quite certain that the document is unenforceable then send the following letter which tells the OC/DCA your intentions and closes matters as far as you're concerned.

Unenforceable Agreement - Debtors Final Response

Final Response

Dear Sirs,

Account No: XXXXXXXX

I write with reference to previous correspondence, and in particular to the above numbered account which, for ease and clarity, I hereby deem unenforceable in line with s.127(3) CCA(1974) and this letter is my final response on the matter.

In my original letter, dated XX/XX/XXXX, I requested a copy of the credit agreement to which I genuinely expected to receive an exact copy of that which you hold in your records i.e. an actual photocopy of the agreement which is allegedly signed by myself and your representative.

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 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 do not think it is a lot to ask for you to simply go and fetch the original agreement, photocopy it and pop it in an envelope to me. The only reason that I can presume avoidance of such a simple process is if you never actually had a copy of the original agreement in which case may I remind you that OFT Guidance clearly states 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

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. In light of the above, I consider this account to be unenforceable until such time you properly comply with my original s.78 request and send a photocopy of the original purported document, if it exists. If it does not, then you must confirm this to me in line with your licencing guidance, as detailed above.

For clarification, the document you sent, purporting to be a credit agreement, does not contain all of the prescribed terms as required by section 60(1) Consumer Credit Act 1974. The Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) made under the authority of the “1974 Act” sets out what the prescribed terms are, I refer you to Schedule 6 Column 2 of SI 1983/1553 for the definition of what is required. Suffice to say, all of the required terms are not present in this document. Since this document does not contain the required prescribed terms it is rendered unenforceable by s127 (3) consumer Credit Act 1974, which states:

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

This situation is backed by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the Consumer Credit Act 1974 the agreement cannot be enforced.

In addition should you continue to pursue me for this debt you will be in breach of OFT guidelines. These guidelines (issued July 2003 & updated December 2006) relate to debt collections and what the OFT considers unfair, I have enclosed an excerpt from page 5 of the guidance which states;

2.6 Examples of unfair practices are as follows:
h. Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment

Yours faithfully

Sign digitally

Template Updated: 27 February 2010

roadster

Hi NID

Once again the above letters are fantastic. I am sure I speak for many people on here. Without your help and guidance we would all be drowing in debt, CCJs, harrasment, charges, added interest and defaults. The time and effort you put into this thread is unbeliveable, over and above.

You are doing a fantastic job and your an absolute diamond.:T:T:T
If there is any way I can repay you or return the great service you provide all you got to do is shout.

Without you alot of people on here would be in deep doo doo.

Thanks again.:beer:

scarednshakin

Hi NID

Just like to second what Roadster said, without your help and advice so many of us would be giving up. We all apreciate the time you take to help us and the amount of patience you have with all the questions that we ask. Big, big thank you :beer:

Northstar68

Hi Everyone,

I have just finished reading this thread with much interest, the help and advice given here is amazing, thank you all so much in advance........I'm asking where on the forum should I post about a possible brewing problem I have with Abbey/Santander regarding an overdraft debt and a notice of default and default notice please?
I am on a DMP started 1 Jan 2010 and I am with the CCCS but this problem I think needs another pair of eyes who knows about the importance of timings and dates when notices are given etc (I'm learning but head is spinning so far and not getting anywhere fast!)

Anyway, regarding default notices and possible problems with them please can anyone advise which section to post in?
Many thanks!

maz1964

hiya NID

i am another person who has found this thread a vital tool in understanding a lot about what you have written, and the time you have invested in this i hope one day we can somehow repay you

i am awaiting on our credit files and im going to follow through on what i need to do with each creditor

this weekend im sorting all paperwork ive had with each creditor and then with each dca any debt has been passed onto
i have stapled the envelope with each letter and tried to mark it with the actual date i have received it
(that will help especially with any default notices received and any termination notices im sure as im gaining knowledge)

if nothing else ive learned this past couple of years, is that i need to be organised with all paperwork received and the the threats contained to always shout out and especially when i received my first court claim, but with cag ive managed to defend initially and im looking into that more next week as i believe i need to receive a correctly executed credited agreement yet, and ive not accepted the paperwork so far provided by them
but this is one thread i will have to set up as a specialised one so it hopefully helps me to knock this one on the head and then to help others in the same situation in the future

so with all the above again huge thanks but i will be asking my dumb questions and i hope you will still have the patience with me for doing so

have a beer and i hope to gain sufficient knowledge to pass to others as others like you have helped me so far in my journeys

cheers maz:beer:

never-in-doubt

roadster wrote: »

Hi NID

Once again the above letters are fantastic. I am sure I speak for many people on here. Without your help and guidance we would all be drowing in debt, CCJs, harrasment, charges, added interest and defaults. The time and effort you put into this thread is unbeliveable, over and above.

You are doing a fantastic job and your an absolute diamond.:T:T:T
If there is any way I can repay you or return the great service you provide all you got to do is shout.

Without you alot of people on here would be in deep doo doo.

Thanks again.:beer:

scarednshakin wrote: »

Hi NID

Just like to second what Roadster said, without your help and advice so many of us would be giving up. We all apreciate the time you take to help us and the amount of patience you have with all the questions that we ask. Big, big thank you :beer:

Thanks you guys! :beer::beer::beer:


All i've done is revamped the letters from page 1 and given page 1 more room for its own templates cos it was getting to the stage that there were 3 or 4 letters per post which made it hard to link to.....

However, we now have the daddy of letters - the debtors final response which is what you send them, when they clearly cannot provide the CCA and you decide, that's it - had enough! :rotfl::rotfl:

So keep an eye out, thread will have loads of new letters over the next few days - all updated on page 1 in the 2nd post with the links.... :D

never-in-doubt

Northstar68 wrote: »

.I'm asking where on the forum should I post about a possible brewing problem I have with Abbey/Santander regarding an overdraft debt and a notice of default and default notice please?
I am on a DMP started 1 Jan 2010 and I am with the CCCS but this problem I think needs another pair of eyes who knows about the importance of timings and dates when notices are given etc (I'm learning but head is spinning so far and not getting anywhere fast!)

Anyway, regarding default notices and possible problems with them please can anyone advise which section to post in? Many thanks!

What is the issue exactly? Defaults are straight forward, basically the lender can issue one whenever they want so long as there are missed payments on the account - however the DN must give you at least 7 days in which to clear the debt before being awarded.

However, the actual wording for s.87 & s.88 (which is what the DCA's comply to) is found in this letter template here: Default Removal Letter to CRA's

Can you be more specific, alternatively try posting here - in the default removal thread: Invalid Default Notices - Default Removal

never-in-doubt

maz1964 wrote: »

hiya NID

i am another person who has found this thread a vital tool in understanding a lot about what you have written, and the time you have invested in this i hope one day we can somehow repay you

i am awaiting on our credit files and im going to follow through on what i need to do with each creditor

this weekend im sorting all paperwork ive had with each creditor and then with each dca any debt has been passed onto
i have stapled the envelope with each letter and tried to mark it with the actual date i have received it
(that will help especially with any default notices received and any termination notices im sure as im gaining knowledge)

if nothing else ive learned this past couple of years, is that i need to be organised with all paperwork received and the the threats contained to always shout out and especially when i received my first court claim, but with cag ive managed to defend initially and im looking into that more next week as i believe i need to receive a correctly executed credited agreement yet, and ive not accepted the paperwork so far provided by them
but this is one thread i will have to set up as a specialised one so it hopefully helps me to knock this one on the head and then to help others in the same situation in the future

so with all the above again huge thanks but i will be asking my dumb questions and i hope you will still have the patience with me for doing so

have a beer and i hope to gain sufficient knowledge to pass to others as others like you have helped me so far in my journeys

cheers maz:beer:

Thanks Maz - what has happened regards to court? Have you spoken to 10past6 on here? He's the man that can help you win any court battles :p;) But to be fair, CAG is full of lawyer types, however my only criticism there is that there is too much help and it complicates things to changing an easy process to some long drawn out rubbish! IYSWIM?

Hope you kick some butt - if not, try us - we'll look after you and sort the nasty lenders out for you ;)

chinawhite_2

Hi NID

you directed me to a letter in posts 2334 & 2361, have only just managed to sit and do it but on reading through the letter Im not sure its the one I need, MBNA have actually sent me a copy of the app form/cca which is signed and they also sent current T&C and statements, it is legible aswell. The query with what they sent was going to be the rubber stamp signature on behalf of them instead of a real signature.

Have looked on this sight and various others but cant find a template that acknowledges what they have sent but qeuries this aspect. Could you direct me to a suitable one or should I start from scratch.

thank you - again !!!!!!!!!
CW