Unenforceability & Template Letters III

midastouched_2

However, silly silly bank forgot to sign meaning that there is no agreement meaning this is unenforceable - :T :T

The fact you sent the CCA Query letter is fine, leave things as they are and see what they come back with.....

Obviously we're clutching at straws, but hey - worth a gamble right?

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Hiya mate - I thought the lack of signature was important - also where I signed, it says 'overleaf' - shouldn't that mean on the reverse and not on a seperate page?

Can you just clarify what i bolded above - if it's unenforceable, why are we 'clutching at straws'?

BTW - I didn't send the query letter - I sent the 'default' one as stated in my PM.


Thanks again Niddy,

Midastouched

never-in-doubt

midastouched wrote: »

Can you just clarify what i bolded above - if it's unenforceable, why are we 'clutching at straws'?

Cos to be able to enforce the agreement in court they must have a legible copy signed by both the lender and debtor.... We're clutching at straws cos this alone does not always win - so depends what they send back depends what the next move is...

You miss the basic point of unenforceability, they can produce an agreement at any time (within 6 years) and if they do then it enforces the debt again so you will never get closure, thus the way you seem to doubt my response suggests you want closure - if so you need to establish unenforceability then try your luck at offering F&F settlement - only then will the debt truly be gone - forever.

I hope this makes sense, in the nicest possible way?

Nutshell version - everything we do, every day is clutching at straws when in respect of unenforceability.....

The letter you sent was fine - it wasa typo by me.

midastouched_2

never-in-doubt wrote: »

I hope this makes sense, in the nicest possible way?

It does - and thanks! I wasn't trying to be clever, just needed some clarity.

I'm about to be issued a default on my post 2007 loan - despite their being no response to my CCA request.

never-in-doubt

carol01 wrote: »

dont know why its at moorcroft anyway

Hiya,

You need to send the following letter to Argos - with a copy of the second letter (further down) which also needs to be sent to Moorcroft.

So you print two copies of each and one of each goes to Argos & Moorcroft.....

At this stage you're threatening not to pay unless they sort it out - but remember you deal with the original creditor only - i.e. Argos.

Good Luck

Argos Letter.....

Dear Argos card Services,

Account No: XXXXXXXX

After recently obtaining a copy of my credit file from the credit agency, I was extremely concerned to note that you'd added a default notice against me. I feel this default entry was not only added unlawfully but also without merit. I am somewhat confused by your actions and formally request this account is placed in dispute until such time we come to a conclusion, as to your wild and irresponsible behaviour.

So, to explain things from my perspective; I fell into arrears with my account, no more than 2 months at any time, which as we know is not really deemed serious and most definitely does not warrant a default notice. So, I telephoned Argos and paid the arrears, but was then told you did not want to deal with me and instead told me to speak to a company called Moorcroft.

Anyway, having spoken to Moorcroft they advised they were more than happy to collect £90 per month via direct debit until December 2011 when the account should be cleared. I was happy with this arrangement until I checked my credit file and noticed you'd broken the law.

So, here we are. You have not given me any indication that you were selling the account; you have not followed Consumer Credit Act legislation, in particular s.87; you have not given me 14 days to clear the arrears; you have not lawfully invited or notified me of Moorcroft and most seriously of all, you have added an unlawful defaul which is tantamount to libel and it is therefore my wish to seek legal advice with the aim of securing prosecution against you for said libellous data.

I have proof from my credit file that the account was in fact up to date - the process you've used is extremely gung-ho and childish and without merit. The status on my credit file reads as: [1], [0], [1], [0], [0], [1], [1], [8], [D] - which as we both know, is not correct, i.e. how can my account go from being upto date, to one payment late to a default status? It quite simply, cannot.

I assume you're also aware that there can only ever be one default per debt and now that you've unlawfully added one, another can never be issued against this account - I can tell you now my monthly payments will cease forthwith unless you agree to remove the default, in line with proper procedure and return my account to the previous state eliminating your guard dogs in the process (i.e. Moorcorft). I do not acknowledge Moorcroft in any legal capacity and as you know full well, in order for any Notice of Assignment to proceed, you must inform the debtor as all three parties should be aware of any sale or rights issues. You too, have broken this fundamental rule.

A collective of the above has immediately put you liable to a breach of Consumer Credit Act 1974, in particular s.87(1) of said Act;

Section 87(1) of the 1974 Act allows the creditor to send you a default notice giving you fourteen days from the date you receive it to pay the arrears. The default notice must contain all of the necessary information under the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 ('the 1983 Regulations'), which includes;

• a statement saying the notice is a default notice served under section 87(1) of the 1974 Act
• a description of the agreement
• the name and address of both the debtor and the creditor
• details of the breach (i.e. late payment) and, if the breach can be remedied, the date by which it must be remedied or, if the breach is not capable of remedy, the amount required to be paid after the expiry of the specified date;

As is clearly evident from all previous communication between us regards to this default, I never received any such notice and as a result I contest the accuracy of the default and until such time you can provide proof that you complied with the above Act, you must remove all derogatory data from the files of any credit reference agency (CRA). As I was never in receipt of any of the statutory documents (Notice of Termination of Contract; Notice of Assignment or Default Notice) then the actual default notice that is shown on my credit file is unlawful and should be immediately removed. I do not want to take this through the courts but I will enforce removal by judgement if necessary, at the end of the day you have acted unlawfully by not issuing a fully compliant and correctly executed legal document. Therefore, assuming you are happy with my proposal please confirm, in writing on letterheaded paper, the following points will be carried out;

• The Default Notice will be removed
• The Status of the account will change from “Defaulted”
• The Current Balance will appear as what it should be
• The Default / Delinquent Balance will be removed
• There will be no date in the “Defaulted Date” field (as it will be removed)
• There will be no date in the “Date Last Delinquent” field on the report
• This will apply to all 3 Credit Reference Agencies, namely Experian, Equifax & Call Credit

Failure to agree will result in more formal papers being sent, by return and in the meantime, I look forward to your response within the next 21 days.
Yours faithfully




Sign digitally

Now, you need to send the following letter (below) to Moorcroft, with a copy of the above letter as well.....

Moorcroft Letter.....

Dear Moorcroft,

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 Argos Card Services and being that they have not followed proper legislation and broken several laws, I formally demand that you cease forthwith from contacting me again.

If you do so then I shall have no hesitation is proceeding with a criminal case against both yourselves and Argos because you have no legal right to access my personal data nor do you have any legal right to contact me, it is harassment in the best possible sense. You are formally advised to return this account to the original creditor who had no legal right to assign any of the account, being it was not in arrears nor a default state at the time they involved you.

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 Argos is now in default of OFT Debt Collection Guidelines, I consider this account to be in serious dispute. 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 the original creditor 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.

Yours faithfully




Sign digitally

never-in-doubt

Out of Office Auto-Reply!

Yes, you read it right! That's it - i'm outta here! :rotfl:

I will be away now til Monday so come on guys, nothing is that urgent that you need to panic over, please don't fill my mailbox - things can wait until I get back - right?

Please, just post once - or even take the weekend off yourself, but don't flood the thread with posts panicking again (like last time) cos it just causes confusion which results in my mailbox being flooded in no time at all.

Thanks guys - have a good weekend, i'll be back on Monday and will answer anything then - nothing will be that urgent that cannot wait from Friday to Monday - trust me

Have a great weekend - I know I will...

:beer: :beer: :beer: :beer: :beer:

discojam

never-in-doubt wrote: »

Out of Office Auto-Reply!

Yes, you read it right! That's it - i'm outta here! :rotfl:

I will be away now til Monday so come on guys, nothing is that urgent that you need to panic over, please don't fill my mailbox - things can wait until I get back - right?

Please, just post once - or even take the weekend off yourself, but don't flood the thread with posts panicking again (like last time) cos it just causes confusion which results in my mailbox being flooded in no time at all.

Thanks guys - have a good weekend, i'll be back on Monday and will answer anything then - nothing will be that urgent that cannot wait from Friday to Monday - trust me

Have a great weekend - I know I will...

:beer: :beer: :beer: :beer: :beer:

He he! Have one on me :beer: hope you have a good weekend, funny how I was just about to post saying I was really panicking now as had been thinking things over and berating myself for being so stupid! I shall take your advice though and try not to panic anymore (at least until the postman comes! :rotfl:) indebted to you for your advice and for calming me down somewhat:

Don't worry mate - they always make errors and all I want is to see what they respond with then i'll be in a better position to advise the next steps - pointless worrying cos they won't be able to do too much, that is a certainty.

Catch up with you soon yea - just let me know when/if they reply.....

Yes catch up with you soon, have a great weekend! :beer:

never-in-doubt

discojam wrote: »

funny how I was just about to post saying I was really panicking now as had been thinking things over and berating myself for being so stupid! I shall take your advice though and try not to panic anymore (at least until the postman comes! :rotfl:)

Hiya

Sorry i'll own up now, I had to make you panic a little for rushing! Don't worry, everything will be fine - all that has happened is you may have inadvertently let them know you exist.

They will not CCJ you, if they do then my mate 10past6 will sort that for you

No matter what, don't worry - everything is fine - :beer:

discojam

never-in-doubt wrote: »

Hiya

Sorry i'll own up now, I had to make you panic a little for rushing! Don't worry, everything will be fine - all that has happened is you may have inadvertently let them know you exist.

They will not CCJ you, if they do then my mate 10past6 will sort that for you

No matter what, don't worry - everything is fine - :beer:

waaaaahhh! You just made me well up a bit! Wont bore you with the details but like anyone life has been throwing some pretty crappy stuff my way recently and your words have made a huge weight be lifted off me, thank you!

carol01

never-in-doubt wrote: »

Hiya,

You need to send the following letter to Argos - with a copy of the second letter (further down) which also needs to be sent to Moorcroft.

So you print two copies of each and one of each goes to Argos & Moorcroft.....

At this stage you're threatening not to pay unless they sort it out - but remember you deal with the original creditor only - i.e. Argos.

Good Luck

Argos Letter.....





Now, you need to send the following letter (below) to Moorcroft, with a copy of the above letter as well.....

Moorcroft Letter.....

hi n.i .d
thanks for taking the time to write them letters i will post tomorrow morning via silver post moorcroft are collecting on the 28 th march do you think i should cancel direct debit
thanks millions its ok i have answered the question myself yes i will stop paying have a great weekend x

never-in-doubt

carol01 wrote: »

moorcroft are collecting on the 28 th march do you think i should cancel direct debit
thanks millions

No - not yet, it is a threat at the moment, you should therefore pay March and allow them the 21 days so you'll know whether to pay in April or not...

I know that means paying moorcroft which defeats the purpose of the letter, but i'm assuming it's a DD - right? Is it?