Unenforceability & Template Letters III

never-in-doubt

razer12121 wrote: »

out of the blue but erm what would happen to a catalog if you chose to ignor it? i mean if they cannot get a hold of you for 6 years...just want this cleared up thanks!

BTW NID your a star

Statute Barred mate - same as all other running accounts.....

never-in-doubt

leanne82duke wrote: »

yes the dca is for the welsum account
hi NID a link to jog your memory.... x i can just see your eyes roll when you see which one it is.... sorry xxxx

http://forums.moneysavingexpert.com/showpost.html?p=29073585&postcount=244

Hiya

I remember now - do not send it, just write back saying sorry - no chance matey! :rotfl: :rotfl:

Tell them to remove the data or you'll seek legal action against them. See what they come back with....

roadster

Hi Mate

I know Iknow -spoke to bloody soon about MBNA lol

Letter from MBNA reads -

Thank you for your letter dated 26th Jan. I not your dissasisfaction with the calls you have received from one of our agencies Global Vantage. We are obliged to keep you informed of the status of your account through calls, letters, text messages and other methods when it is operating outside our T&C. We are entitled to make resonable attempts to contatc you, and may need to make further calls if we are unable to contact you. Our records confirm that we only made resonable efforts to contact you and have therfore complied with our strict controls and calling policies.

I note that you have requested that we only comunicate with you in writting in the future. whilst we respect your wishes and we will endeavour to communicate in writting where possible, it is vital that all lines of communication remain open. Indeed if you do not respond to our written communication, then we will need to contact you by telephone, and for this reason, your contact numbers will remain on record.

We should also consider our obligation under the Banking Code guidance, which states that where a customer requests that we communicate with them in writting, we must do so , on the condition that they continue to work with us. Where the relationship breaks down and the customer is no longer co-operating with us then telephone calls to the usual numbers may recommence.

I understand from your letter that you have not yet received a copy of your credit agreement. However, i can confirm that your request was received on 13th Jan 2010 and is currently in process. The relevant documents will be sent to you under separate cover in due course.

I note from you correspondance that you feel that your account is currently in dispute and as such, should not be accruing arrears. For the avoidance of any doubt, we would like to confirm that MBNA does not regard this account or your obligations to repay as being in dispute. We are confident that your debt is owing and payable by you in accordance with the terms and conditions of the credit agreement which you have entered. Therefore you are not permitted to withold payments from the account.

I would like to clarify that in respect to the account in which you have not yet received a response under s78, we would refer you to the high court judgement of McGuffick v RBS plc on 06/10/09 in which Mr Justice Flaux held that the following activities are not enforcement
1 issuing defaults
2 Demanding payment
3Threatening legal action
4 Instructing a 3rd party to demand payment or otherwise seeking to procure payment
5 Bringing proceedings.
As such even where a s78 request has not been complied with these activities can be properly undertaken.

We will continue to process your reqest for documentation made under s78 of the CCA 1972 section 7 data protection act. We refer you to the decision in the well known case of Rankine v American Expresss of 16th May 2008. This authority confirms that a cardholder is not relieved from the obligations to maintain his account once a request under s78 has been made. If you choose not to pay your account, pleasenote that your arrears will be reported to the CRA and the use of your card will be withdrawn.

The status of your account is currently 4 payments in arrears total xxx with a balance of xxxx against a limit of xxxxx. In the event that we have not resolves your complaint to your stisfaction or if you have any further information in relation to your complaint, that you feel may be relevant and must be considered, please contact us on xxxxxxxxxx. If appropriate we will then provide you with our final response letter. If you remain dissatisfied you can then refer your complaint to the FOS, within six months .

if we do not hear from you within the next 8 weeks we will consider this mater fully resolved.

Sorry its a long post mate just wanted to make sure that i hadnt missed something vital out. Whats my responce to this.

Cheers Mate

jemma8526

Hi nid
I've been following you templates and so far I've sent a dca the cca request(1.2.01), then reminder(18.2.10). They've just sent what looks like a cca but its a photocopy. They said that they did not have the original as they were not the oc but they were trying to get hold of it. They asked for 14 days to get it and until then I would be removed from the collection process.
My query is that on the cca copy it states that the application must only be completed if the applicant is in full or part time work. However at the time I was 19 and a full time student. It was for a store card. I dont remember them asking me if I was in work and the earnings/employment part of the form hasnt been filled in. Have they misold me the card? Is it legal? And help gratefully received!!

wibbl

Hi NID, I've sent the first letter and received this reply:-

Dear Wibbl

Thank you for your letter dated blah blah, addressed to so and so. I
have been asked to reply to you in my capacity as Senior Customer Relations Manager.

I trust you received so and so's letter dated blah blah in response to your request.
A copy of your current Agreement will be sent to you separately.

I hope thet will clarify our position. Should you remain dissatisfied, I have enclosed
a leaflet explaining our complaints procedure.

In accordance with Financial Services Authority guidelnes, I am obliged to inform you that if I do not hear from you within 8 weeks, I will close my file.

Yours sincerely

So and so

---

"I trust you received so and so's letter dated blah blah in response to your request."

Ermmm no I haven't received this letter that was dated 2 days after I sent my request, strange girl what is she on about?

Will I just wait and see what the agreement looks like?

Hmmmm

Thnx

Wib

never-in-doubt

jemma8526 wrote: »

Hi nid
I've been following you templates and so far I've sent a dca the cca request(1.2.01), then reminder(18.2.10). They've just sent what looks like a cca but its a photocopy. They said that they did not have the original as they were not the oc but they were trying to get hold of it. They asked for 14 days to get it and until then I would be removed from the collection process.
My query is that on the cca copy it states that the application must only be completed if the applicant is in full or part time work. However at the time I was 19 and a full time student. It was for a store card. I dont remember them asking me if I was in work and the earnings/employment part of the form hasnt been filled in. Have they misold me the card? Is it legal? And help gratefully received!!

Hiya

Just wait til they write back - they should be sending the original - regards to whether it was missold, no! They (the lender) can decide to chose to accept you or not based on data you supply, obviously they were happy for you to have an account being a student.

However you could pursue that with the FSA/FOS at a later date but right now you should be awaiting their reply...

never-in-doubt

wibbl wrote: »

"I trust you received so and so's letter dated blah blah in response to your request."

Ermmm no I haven't received this letter that was dated 2 days after I sent my request, strange girl what is she on about?

Will I just wait and see what the agreement looks like?

Hmmmm

Thnx

Wib

LOL, what is this in relation to exactly? i.e. the lender/the dca/the balance etc etc?

I can't offer any advice as I am totally in the dark here

But yea, you should wait for their reply regardless.....

never-in-doubt

roadster wrote: »

We will continue to process your reqest for documentation made under s78 of the CCA 1972 section 7 data protection act. We refer you to the decision in the well known case of Rankine v American Expresss of 16th May 2008.

Mate I need you to confirm, did their letter really say this or is it a typo from you?

Be 100% sure - it affects the letter I write!

Please check it and re-type it word for word, unless it is correct of course....

roadster

Hi Mate

word for word -

We will continue to process your request for documentation made under Section 78 of the Consumer Credit Act 1974/Section 7 Data Protection Act. We refer you to the decision in the well know case of Rankine v American Express of 16 May 2008.

Thats word for word mate.

never-in-doubt

roadster wrote: »

Letter from MBNA reads -

Send the letter below mate! See how they like this!

You'll have to spell-check it.... I have just done it so quite rushed (sorry)....

I'd love to see the silly sods faces when they open this letter :rotfl: :rotfl:

Dear Sirs,

Account No: XXXXXXXX

I with reference to your letter dated XX/xx/2010 and note the content within.

I'd like to disect your letter one point at a time - for ease and clarity, being you're totally unfamiliar with the actions of the Consumer Credit Act and other regulatory bodies.

You start by saying that "We are obliged to keep you informed of the status of your account through calls, letters, text messages and other methods when it is operating outside our T&C". You then go on to point out that "We are entitled to make resonable attempts to contact you, and may need to make further calls if we are unable to contact you".

What part of my letter did you not quite grasp exactly? You know, the one where I explained to you that I would communicate with you in writing only? What part of 'I will communicate with you in writing only' eludes your logic, to suggest that gives you a right to hassle me with phone calls? You can contact me, whenever your heart desires, but only in writing. You then go on to mention that "your contact numbers will remain on record" - no they will not. I formally demand that all contact numbers are erased without further delay, being I no longer use any of the numbers you hold thus meaning any attempt to contact me by telephone puts you in direct breach of The Telecommunications Act as I have now confirmed that I do not have a valid telephone number for you to call.

You even agree with this yourself, where you quote the Banking Code "our obligation under the Banking Code guidance, which states that where a customer requests that we communicate with them in writting, we must do so , on the condition that they continue to work with us". I am working with you, but you have failed to respond to my valid s.78 request and as such the account is formally unenforceable - do you even know the law and how it works? I sincerely suspect not.

Speaking of this s.78 breach, you then go on to mention in your letter that "I understand that you have not yet received a copy of your credit agreement. However, i can confirm that your request was received on 13th Jan 2010 and is currently in process. The relevant documents will be sent to you under separate cover in due course." to which my immediate response is what? Let me elaborate for you, i'll stick to Plain English so as you can understand my point - my original s.78 CCA Request was received on 13th january and this allows you 14 days to respond. You never, therefore the account is unenforceable - this is not up for dispute, it is fact!

I quote, from my CCA Request, "I require you to provide me with a true copy of the credit agreement relating to any account you deem to be mine, together with any other documentation the Act requires you to provide. I expect you to comply fully and properly with this request, within the statutory time limit (12 + 2 days). You are reminded that should you fail to comply with my request; the provisions of s.77 will apply." - again, what part of that allows you 7 weeks (and counting) to respond to me? Do you really believe you are a law unto your own? Let me assure you that your behaviour will no longer be tolerated and I expect full, formal compliance from here-on-in.

You then go on to state "For the avoidance of any doubt, we would like to confirm that MBNA does not regard this account or your obligations to repay as being in dispute. We are confident that your debt is owing and payable by you in accordance with the terms and conditions of the credit agreement which you have entered. Therefore you are not permitted to withold payments from the account." but yet again, you fail to grasp the basic elements of law. The account is entirely in dispute until such time you respond to my lawful s.78 request, similarly until I am in a position to verify the legitimacy of the agreement then the account is and will remain in dispute - since when did the right of dispute land with the lender to decide? Of course you'll say it is not disputed, unfortunately for you the law states it is for me to decide whether to dispute the account - NOT you. Likewise, it is up to me to withold payments if I feel the account is unlawful and/or unenforceable - NOT you. Similarly, you state you are confident that the debt is owing, where in a court of law does it allow a lender to stand up and say 'this debt is outstanding - we are confident of that'? I think you'll find that without any legal documentation you will be laughed out of court, I retain this same stance and put you to claim to prove any debt exists.

I like the way you keep referring to the same terms and conditions which actually make the account unenforceable in the first place! Maybe had you took more time when drawing up such conditions we'd not be here having this game of letter writing ping-pong, would we?

Regards to your comments surrounding the McGuffick case, i'd like to draw your attention to the fact that this was an isolated case with exceptional circumstances and to attempt to use it as case law referencing is additional proof of your unfounded and unlawful tactics (to scare me). I have a copy of that judgement and understand each of the points fully, evidently you do not and if you wish to pursue this through the courts using McGuffick as case law then please, feel free - I look forward to it. I think you're trying to say that the judgement allowed for 'reasonable collection activities' - NOT formal harassment. For the avoidance of doubt, no - you cannot attempt 'reasonable collection activities' with an outstanding s.78 request.

Since we're on the point of quoting recent cases, I'd like to draw your attention 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. For clarity, the Lords of Appeal in Ordinary (House of Lords) is the highest court in the land and i'd much rather quote this case law than a 'pending appeal' case law such as the McGuffick v RBS case that was handed down by a District Judge with limited knowledge in the field of consumer law.

Your final point then goes on to refer to Rankine (how amusing) whereby you quote "We will continue to process your request for documentation made under Section 78 of the Consumer Credit Act 1974/Section 7 Data Protection Act. We refer you to the decision in the well know case of Rankine v American Express of 16 May 2008 - This authority confirms that a cardholder is not relieved from the obligations to maintain his account once a request under s78 has been made" but maybe you are forgetting that you are in fact in default of said s.78 request which totally relinquishes any resemblance to Rankine in its entirety.

This really is the last time I will explain basic consumer law to you, any further breaches of this kind, regarding phone calls or non compliance will result in my reporting you, without advance notice, to the regulatory bodies as appropriate.

You are still in default of my s.78 request and as such 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).

If you wish to pursue this matter further, please be my guest and start proceedings and i'll see you in court. Otherwise, I do, expect the main actions to be dealt with, as matter of course, and look forward to hearing from you within the next 21 days with a response to this letter and a copy of the alleged agreement.

Yours faithfully




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