Unenforceability & Template Letters II

terimon

The top bit of the last post should have been a quote i suppose

never-in-doubt

terimon wrote: »

Had a few too many tonight. Got a no on a job (my first job interview ever and i am 36) i thought i should easily get and to be honest could do blindfolded tonight. So i am very upset. Massive debts, no chance of a job. two failed attempts at IVF and a big split up with the missus its all abit dull in the Terimon household

Hows it going - got a hangover matey? :rotfl::rotfl::rotfl:

Sorry been really busy lately but will post back later tonight with respect to your other posts - just bear with me (let me log-off and get home lol)

never-in-doubt

cejsmith wrote: »

I've just sent a SAR to barclaycard and I've worked out across my 4 accounts with them they are going to have to send me around 60 ( credit card) years worth of info. I just wonder how big the box will be and if I will be able to find the agreements!!!!

I had a big one from Equifax and it came in a box that reams of paper come in (you know, the photocopier paper box!)..... Well, actually it came in 2 of those and it took me almost a week to find what I was looking for! (A specific email from them to me!)....

Happy reading when you get it in 3 months

terimon

Thanks NID. Ill log on later this evening. And i will be sober :eek:

never-in-doubt

Hobbit wrote: »

Hey NID
Is my next step to send No.4 CCA Dispute?

Yes send that off, remember though at this stage they can send a copy without signature - the signature is needed if you took it to court or for them to enforce anything (i.e. the debt)....

Hobbit wrote: »

ps you're quite right, we don't hit the thanks button often enough!! Will make a point of doing this - tend to get a bit wrapped up in the reading..you know..can't multi-task...

Shhhh, you'll give us men a bad name - I can multi task.... i'm typing here and telling my secretary to make me a cuppa at the same time - see - easy!

Hobbit wrote: »

pps got a letter from a DCA regarding what I think is a Skycard - but they sold out to Barclaycrd and the card number seems to have changed to one I have never had as the account was defunct when they sold out. Any suggestions? At the moment I have simply requested a CCA based on my not recognising the account.

Ok, wait and see what they send back - instead of a CCA you should have sent a prove it letter instead..... but now you've done it wait and see what they send you...

xxkizxx

Hi Nid, requested my Ca from Capitalone in May sent me out a pointless piece of paper, terms/conditions ect with my name on, sent letter two and again received same piece of paper, then they passed debt to debitas who i responded to saying account was in dispute with capital One, again responded to capital One with account in dispute letter, recieved letter from them saying they had fullfilled all there requirements and i had no valid reason for account to be in dispute and account was now in hands of debitas and had to contact them direct.
Then things went quiet for a while and then recieved the letter from power2contact as i had apparently been ignoring both capitalone and debitas, i have never ignored any letters all replies have been sent by recorded delivery and all have been recieved and signed for by both companies but Capital One and debitas are just ignoring all my corrospondents, I sent letter FORMAL NOTICE - ACCOUNT IN DISPUTE by recorded delivery, on 14/11/09 to power2contact

xxkizxx

Update, today received another letter from debitas
Notice of immediate action
we are planning immediate action against you after failing to come to an arrangement to repay the amount you owe to capital on, in a final attempt to avoid this action you must call us immediately.
This is your final opportunity, failure to take any action will result in serious consequences.
Also recieved reply from power2contact today saying my account in dispute letter had been recieved and noted and the case had been returned to Debitas for investigation, and low and behold guess what
At 3.30 today there is a knock on the door from a debt collector from power2contact i explained the situation and he said i needed to contact debitas by phone to discuss the matter like yesterday,
Omg what on earth is my next move!

never-in-doubt

xxkizxx wrote: »

Update, today received another letter from debitas
Notice of immediate action
we are planning immediate action against you after failing to come to an arrangement to repay the amount you owe to capital on, in a final attempt to avoid this action you must call us immediately.
This is your final opportunity, failure to take any action will result in serious consequences.
Also recieved reply from power2contact today saying my account in dispute letter had been recieved and noted and the case had been returned to Debitas for investigation, and low and behold guess what
At 3.30 today there is a knock on the door from a debt collector from power2contact i explained the situation and he said i needed to contact debitas by phone to discuss the matter like yesterday,
Omg what on earth is my next move!

Hiya

Sorry for delay in responding. Don't panic - everything will be ok. You need to send 3 different letters, one to each person that is hassling you - each with a different purpose.

Have a read - they are self explanatory and should make you feel a bit at ease - do not whatever you do, allow anyone into your home (i.e. if a DCA or bailiff call do not let them in! Ignore the door.


Ok do the following:

1. Send the following letter to Debitas with a copy of the letters below (i.e. you should send a copy of all 3 letters to each company, Cap1, Debitas & Power)......

Dear Sirs,

Account No: XXXXXXXX

I write with reference to the above numbered account. I would like to point out that this account is formally in dispute with Capital One and has been since they failed to acknowledge my CCA Request (in line with s.88 CCA1974) which was sent back in May 2009, with a reminder/formal dispute notice on 14th November.

As you are no doubt aware, your continual harassment not only breaches the Consumer Credit Act (1974), but also the Data Protection Act (1998), the Consumer Protection From Unfair Trading Regulations (2008) and the Office Of Fair Trading's debt collection guidelines.

Being that Capital One are now in default of my CCA Request (and OFT Debt Collection Guidelines), I consider this account to be in serious dispute, especially due to the fact that whilst the CCA Request remains in default (outstanding), enforcement action is not permitted in line with s.127 (CCA1974).

Consequently, any legal action you pursue will not only be fully and vigorously defended, it will also be averred as both unlawful and vexatious. As such I respectfully suggest that this account is returned to Capital One for immediate resolution prior to my seeking legal advice; due to the fact you cannot lawfully pursue any enforcement activities as the account was already in dispute at the time you became involved.

If you decide to ignore my dispute and attempt enforcement, I will initiate legal action and file reports with the appropriate authorities including, but not limited to, Trading Standards, Office of Fair Trading, Information Commissioners Office, Financial Ombudsman Service and possible court action.

I hope that this will not be necessary and an acceptable solution can be accomplished. I would appreciate your due diligence in this matter and look forward to hearing from you in due course.

A copy of my letter to Power2Contact & Capital One is attached for your perusal.

Yours faithfully




Sign digitally

2. Send the following letter to Capital One with a copy of the letter above and the letter below (i.e. you should send a copy of all 3 letters to each company, Cap1, Debitas & Power)......

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 (originally sent in May 2009) 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.

You must also instruct your debt agents to cease all activity, namely Debitas & Power2Contact. I would also point out that the OFT stipulate that it is unfair to pursue third parties for payment when they are not liable and in not ceasing collection activity whilst investigating a reasonably queried or disputed debt you are using deceptive/and or unfair methods.

Furthermore ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment amounts to physical/psychological harassment.

I would ask that no further contact be made concerning the above account unless you can provide evidence as to my liability for the debt in question and await your written confirmation that this matter is now closed otherwise I will have no option but to make a complaint to Trading Standards and also inform the Office Of Fair Trading of your actions.

To clarify, just sending the Terms and Conditions is a breach of the Act 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 as follows;

Section 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 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.

A copy of my letter to Debitas & Power2Contact is attached for your perusal.

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

Yours faithfully

Sign digitally

3. Send the following letter to Power2Contact with a copy of the letters above (i.e. you should send a copy of all 3 letters to each company, Cap1, Debitas & Power)......

Dear Sirs,

Account No: XXXXXXXX

Please be advised that I will only communicate with you in writing. I have noted your repeated attempts to contact me and these have been duly logged by time and date.

Furthermore, should it be your intention to arrange a further “doorstep visit”, please be advised that under OFT rules, you can only visit me at my home if you make an appointment and I have no wish to make such an appointment with you.

There is an implied license under English Common Law for people to be able to visit me on my property without express permission; the postman and people asking for directions etc (Armstrong v Sheppard & Short Ltd [1959] 2 QB 384. per Lord Evershed M.R.). Therefore take note that I revoke license under Common Law for you, or your representatives to visit me at my property and, if you do so, you will be liable to damages for a tort of trespass and action will be taken, including but not limited to, police attendance.

I must also make you aware that ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment amounts to physical/psychological harassment.

I would ask that no further contact be made concerning the above account unless you can provide evidence as to my liability for the debt in question and await your written confirmation that this matter is now closed otherwise I will have no option but to make a complaint to Trading Standards and also inform the Office Of Fair Trading of your actions.

A copy of my letter to Debitas & Capital One is attached for your perusal.

Yours faithfully




Sign digitally

never-in-doubt

terimon wrote: »

ACCOUNT TERMINATION

---

A default Notice was recently served against you. As the amount requested in the Default Notice has not been received, your account has been terminated.

We now require full payment of the outstanding debt within 14 days of the date of this letter. If you do not comply, or fail to submit proposals for repayment that are satisfactory to us, your account will be passed to our Debt Recovery Office. In addition, we may exercise our right of set off over any of your funds held elsewhere with us.

Hiya,

Can you confirm is this account recent, i.e. not that much in arrears? Why are you risking a default by ceasing payments? Is your credit file already knackered or something?

Can you also confirm - did you issue CCA request and then cease repayments when they failed to comply? Please tell me this is what happened - if so that default will be coming straight back off again

Get back to me please, give me a brief (that means not too much to read lol) overview as i've had a lot going on and struggle to remember each case

never-in-doubt

terimon wrote: »

The last two letters i received from NatWest regarding my CCA request were as follows just to remind you

---

I write with reference to your recent request under section 78(1) to supply copies of the original agreement set out under the Consumer Credit Act.

What date did you originally request it and what date did you send the follow up letter?

Natwest wrote: »

We regret to advise that the agreement has been misfiled and despite searching our records we have been unable to locate it. Regrettably we are unable to comply with your request made under section 78(1) of the CCA and return your £1 you paid.

Excellent - under s.127 this balance is now unenforceable due to them not being able to enforce the debt. They have confirmed they cannot locate it - GREAT! Let them try and default you (as I notice they have just done, today - well in 14 days)... Thing is you've already put the account into dispute and this means no action can be taken against you to recover the debt! This includes no defaults being registered!

Natwest wrote: »

Notwithstanding this the agreement remains valid, and we expect you to continue to meet your obligations under the agreement. We should point out that if you do not resume making payments we will report the default to the Credit Reference Agencies.

:rotfl::rotfl::rotfl:

Ok, lets see what they think to the letter i'll sort out for you to send tomorrow matey - i'll show em what the law really says - cheeky beggars! :mad::mad:

Oh, before I forget - i'd also quote them their last letter (the one below) where they state: We do not dispute that the agreement is currently not enforceable so we see no need for any threatened action to obtain a court declaration to that effect.

Natwest wrote: »

Section 78(6) 'Unenforceable' omly prevents us from pursuing recovery of the debt through the courts.

NO! Dipsh!ts - it means the debt cannot be pursued including harassment by phone, person or otherwise. The money cannot be pursued- simple. And to boot, you can if you want go to court and they will lose and have to pay your costs - i'd be saying bring it on - muppets!

I am shocked at their lack of knowledge and legal background..... :eek: This will be a fun one for me to sort out for you if you want?

Dipsh!ts wrote: »

I trust this clarifies the matter for you.

Yep - thanks for confirming you cannot find the agreement - marvellous! :rotfl:

---

Regards to the letter below - it's not even worthy of my time going on the most recent two you received!

I'll sort this for you if you want, just say the word and i'll do you a nice letter to send them.....

Dipsh!ts wrote: »

I write with reference to your recent request under section 78 (1) to supply copies of the original agreement set out under the Consumer Credit Act.

We appreciate that under s.78(6) of the Consumer Credit Act if you decide not to meet your obligations under the card agreement as they fall due we will be unable to take steps to enforce repayment of the card debt by court action. Nevertheless, we expect you to meet your obligations under the agreement, bearing in mind that the agreement isn't void, and remains valid albeit unenforceable.

We do not dispute that the agreement is currently not enforceable so we see no need for any threatened action to obtain a court declaration to that effect.

For the avoidance of doubt and as previously advised if you do not make the card repayments as they fall due we will report your default to the Credit Reference Agencies.

-The information Commissioner Office have considered the circumstances in which credit reference agencies should be permitted to record details of unenforceable credit agreements.

-The ICO has expressed the view that where a credit agreement clearly existed and credit has been provided to the debtor and notwithstanding that it may not fulfil all the requirements of the CCA and as a consequence, the agreement is unenforceable, it is appropriate for information about the agreement, including any failure by the debtor to repay his or her debt, to be recorded with the credit reference agencies. A factor in the view expressed is that responsible lending decisions are dependant upon lenders receiving accurate information about individuals' ability (and/or inclination) to repay their debts.

This is our final response in the matter.If you are dissatisfied with this final response, you may refer your concern to the Financial Ombudsman Service. I can assure you that we will co-operate fully with any investigation they may undertake. If you decide to take this course of action, you must do so no later than six months from the date of this letter.

The enclosed leaflet, produced by the Financial Ombudsman Service, gives you more details about what thet do and how you can contact them.

Yours sincerely