Unenforceability & Template Letters III

never-in-doubt

mojoparrot wrote: »

I will post the list for you later today thanks for responding:T Mojo:D

Hiya

Ok, just need a brief sypnosis lol - not war & peace

triphop

never-in-doubt wrote: »

Hiya
You say your credit file is knackered anyway, so if I was you i'd have a go at blagging it and see what happens, if things get too hairy then just let me know and we'll stop any serious action - but to be fair there isn't too much they can do other than start for CCJ - but we can stop that happening so long as you update us whenever you get a reply?

Okay, thanks - thats great. I think I'm going to send the CCA query. I'm ready to arrange payments but may as well have one last throw of the dice, my file is knackered anyway. We'll see what they come back with, I'll keep you updated all the way.

many thanks

BigCraigJohn

Finally recieved a final response 6 weeks late.
The number of errors is actually amazing, not least them getting the default remedy date 2 days short from that on the actual notice and various other errors.
I think the default notice is duff.

They are speaking in a way that they consider they dont agree that the account is in dispute although I dont think I even said it was in my letter, I had just requested to see the rest of the agreement.
Should I send a letter stating I consider it to be in dispute or just leave it?

Lyndzzz

never-in-doubt wrote: »

Hiya

You need to follow the thread and not just come in once every blue-moon or you'll never learn anything! I do not mind assisting and offering advice but i'm not here to be everyones personal assistant!

I clearly say in almost every reply that we WANT/NEED the lender to issue a final response, this in turn allows us to send one back to them - i.e. it's a stalemate, great - job done - well done :T

Send this back: Debtors Final Response - CCA Received

Nid,
i think you have mis-understood me... maybe i wasnt clear in last post....
i have followed the thread, i follow it everyday and have read everyone of your flow charts in great detail so i am absolutely clear in my own head that i am doing the right thing at the right time.
The reason you think i come here every once in a blue moon is because so far ive managed to use the flow charts to get me thru all of my creditors responses, however, every now and again there is something that i havent seen before so not sure how to proceed, which is why i posted to everyone asking for advice on my next step.

I have sent the above "Debtors Final Response" to them and the letter i received from Lloyds yesterday was their response to that above letter.
But the fact that they disagreed with my complaint and have stated that that is their final response, was the reason i was double checking with everyone that this is as far as i go now with this. (It wasnt just posted to you, so please dont think that i am using you as my PA)

Lyndzzz x

never-in-doubt

Lyndzzz wrote: »

Nid,I have sent the above "Debtors Final Response" to them and the letter i received from Lloyds yesterday was their response to that above letter.
But the fact that they disagreed with my complaint and have stated that that is their final response, was the reason i was double checking with everyone that this is as far as i go now with this. (It wasnt just posted to you, so please dont think that i am using you as my PA)

Lyndzzz x

Hiya

Ok sorry, just seems there are a lot of people not saying hello enough

For the benefit of everyone, please come in and say hi so we know you're still alive :eek:

But if you've sent the final response, and they responded with theirs - great! that's the stalemate you desire. Forget about it now, its finished. However if they contact you again let me know yea, and we'll sort them out.

Well done. :T


p.s. where is my coffee - want me to sack you (PA)? hehe

Go_on_martin_lewis

Hey NiD.

im still trying to write off my barclays debts.

after following your instructions this was the last letter i sent:


I write with reference to previous correspondence, and in particular to the above numbered accounts 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 (Formal CCA Request), dated 04/12/2009, 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.

You then felt it pertinent to send me a copy of some random terms & conditions which really does not satisfy s.78 requirements. In your recent letters I note you spend quite a lot of time waffling on about s.78 which we both know is nonsense. I am requesting sight of the original document, it is not a lot to ask and we both know that if you wish to attempt to take this matter further, then you will have to provide me a copy of the original; most definitely no court action can be taken unless you do have an original in which case CPR31.16 would be utilised.

It is pointless trying to argue the necessities of law with me; you cannot take any formal action without an original agreement and I have put you to task to show me a copy of the alleged original agreement to prove liability, for the alleged account.

You then, rather amazingly, come out with, I quote;

Regulation 7 does not state that the copy of the agreement shall include a statement of the original terms as well as a statement of the varied terms. Regulation 7 allows us to provide you with a "true copy" which sets out the terms and conditions current at the time of provision of the copy.

Need I remind you that part of s.78 clearly states that you shall send a copy of the most recent terms and conditions along with the exact terms and conditions in place at the time of the alleged agreement. Section 78 also supersedes Regs (7) and should be adhered to in all cases first and foremost.

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 licensing 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
As this account is clearly unenforceable, I expect you to write back and confirm that no further action will be taken and that the account is now closed and no further correspondence will take place; irrespective, unless you do supply a copy of the original agreement I will not correspond with you again and any threats will be averred and unlawful and vexatious with a counter-claim forthcoming.


They have ignored it as they still keep sending statements. and now i have a letter saying that payment is needed or else they'll instruct mercers dect collection ltd.

what should i do?

cheers

never-in-doubt

Go_on_martin_lewis wrote: »

Hey NiD.

im still trying to write off my barclays debts. They have ignored it as they still keep sending statements. and now i have a letter saying that payment is needed or else they'll instruct mercers dect collection ltd.

what should i do? cheers

Hiya

Please don't just copy the letter - (Can you edit your post and delete my letter template text cos it's tooooo long!) Quote the letter title which was: Debtors Final Response - CCA Received

I know what you sent them (I wrote the letters lol)!

Basically send it again with a cover letter telling them you are not communicating with them any longer, until they comply lawfully with your s.78 request.

BrightonSun

Hello NID :j

Well 1st Credit (On behalf of Aqua) have sent back my CCA :mad::D...I don't know but it looks to have most terms on there? It's not be signed by them though? I will scan it on tomorrow...Ekkk probably pay back time now

never-in-doubt

BrightonSun wrote: »

Hello NID :j

Well 1st Credit (On behalf of Aqua) have sent back my CCA :mad::D...I don't know but it looks to have most terms on there? It's not be signed by them though? I will scan it on tomorrow...Ekkk probably pay back time now

Hiya

Get it uploaded and email it me..... don't worry, i'll have a good look through it

pollycolly

never-in-doubt wrote: »

Hiya

Ok sorry, just seems there are a lot of people not saying hello enough

For the benefit of everyone, please come in and say hi so we know you're still alive

Hi Nid, just saying hello, reading everything in both this thread and Mouseann's thread too but I'm a way off needing to check stuff with you yet.

Actually, I suppose it can be a good idea to post every now and then anyway so that when the time comes I'll be able to post links.