Unenforceability & Template Letters III

never-in-doubt

fto wrote: »

Also I have received a rather shocking letter from mbna ( who have sent a letter saying they can not find the agreement) saying:investigations indicate i am a homeowner and they are considering seeking a county court judgement charging order on my house:eek:

chinawhite wrote: »

I have now received a letter saying they are considering their options and they know I am a homeowner and they may go for a charging order.

FTO/China,

Send the letter as detailed below: - bear in mind they cannot obtain any order against you without the original signed agreement - just stay calm ok?

Dear MBNA,

Account No: XXXXXXXX

I write with reference to previous correspondence, regards to the above numbered account and in particular your most recent letter dated XX/XX/XXXX in which you try and scare me by threatening a Charging Order.

I hereby formally remind you that any such action will be averred as both unlawful and vexatious being you have no legal entity in which to carry out your threat. Any such action will result in my counter-claiming for damages and all costs relating to your offence.

The provisions of s.127(3), are shown below:

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). 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

I require you to produce a compliant copy of the credit agreement to confirm I am liable to you or any organisation, which you represent for this alleged debt. If you cannot do so I require written clarification that this is the case. Should you ignore this request I will report you to the Office of Fair Trading to consider your suitability to hold a credit licence in addition to a complaint to the relevant governing authorities.

It would be in everyone’s interest to consider the matter closed. I suggest you give serious consideration to this as any attempt of litigation will be vigorously defended and I will counter claim for all quantifiable damages.

I respectfully request a response to this letter in 14 days.

Yours faithfully




Sign digitally

never-in-doubt

Locke wrote: »

Just checked and it was delivered yesterday.

So if they don't stop within 7 days where do we go from there?

Give them 7 days first matey....

BrightonSun

HI NID,

Did you get my email

never-in-doubt

Utopia wrote: »

Shall I send the final response - Debtors Final Response - CCA Received
I notice on this though it's as if they haven't sent an agreement? They did send the application form which was signed but you said it did not have linked variable or prescribed terms. So do I need to alter anything on this letter or leave well alone?

Thanking You for your time Nid.
Have a wonderful day.

X

Hiya

Yes, send the Final Response - that's all you need to do.

never-in-doubt

BrightonSun wrote: »

HI NID,

Did you get my email

Will log in later - bear with me..... i'll be back before tea-time lol :beer:

never-in-doubt

catherine238 wrote: »

hey nid sorry for the late post.
got a letter from ulster bank they are the one that is part of the double default registered on my credit file.
They posted back the letter i sent with an attachment asking for the account number and then they will deal with my query accordingly???
i dont have it.
it was 4/5 years ago.
Is there anyway i could get it?
i asked equifax but they hold no record of it.
bit stuck on this one any help would be grateful.
c l finance have not responded to the letter as of yet.

thanks nid

You need to get the account number, you cannot CCA anyone without it. You should search for a statement or old bank statement where you've paid them - you need this.

never-in-doubt

in_to_deep wrote: »

hi guys
hi nid
just an update
cap 1 sent final response 29/03/2010. they say will not enter into any further correspondence. been passed to f.t.c who have been hounding me. sent letter acc sold whilst in default of cca request with copy of letter sent to cap 1 f.t.c reply .we have contacted our client on your behalf and await their response.

citi sent cca dispute/section10 21/03/2010
1/04/2010 got letter saying. we have received your complaint looking into it. 28/04/2010 same letter from citi and we are trying to locate my documentation
7/05/2010 letter from citi your credit agreement request 20 pages of t&c with my adress and theirs no sig from me or them . is this time for final response?
thank you

Hiya

Send the following letter: Debtors Final Response - CCA Received

never-in-doubt

NittyGritty wrote: »

hi all, i have a question for NID, if i go through with unenforceable route with barclaycard,will it be possible for them to take money out of my bank account (barclays) as i have an overdraft at the mo at £660 can they keep dipping into this overdraft of mine i think its call right of set of something,

thanks

Yea they can utilise Right of Set Off (RoSo) so open a new account elsewhere - especially if you CCA them and refuse to pay!

From my FAQ's - page 2:

Q. If I bank with the same lender, can they take money out of my bank account to pay off my debt without my authority?
A. Yes - right of set off rules apply so always open a new account if you bank with the same organisation as your debt. This applies whether you claim unenforceability or not - i.e. if you're in debt then you should move banks anyway to stop right of set off applying.

*Pollypocket*

Hey Niddy, hope you are having a good day

I have received a letter today from LTSB solicitors requesting that I cough up, basically they're threatening court action again. They are also offering to accept a reduced sum or agreed monthly repayments, etc.

I was defaulted last month and received a similar letter, I'm not at all scared by this but am wondering what the next plan of action is. My last letter to them regarding the CCA was the Debtors final response, but I have heard no more, this was sent on March 22nd. It was sent recorded and definitely reached them.

Here is the link to my last post: #837

Thank you so, so much again for your help Niddy, you are an :A

mojoparrot

Morning NID
Hope you are well:j

Did you manage to have a look at my DRYDENS time line? http://forums.moneysavingexpert.com/showpost.php?p=32672021&postcount=2593
What do you think I should do, just wait and see?
Thankyou for your time
Mojo:o