Unenforceability & Template Letters III

InDeepDebt

never-in-doubt wrote: »

Hiya

Thats a good letter

Just leave things as they are - let us know if they write again, its finished now - forget about this account.

Many thanks for your reply to my question http://forums.moneysavingexpert.com/showpost.html?p=33664265&postcount=3881

Big thanks also for the following advice given to someone else

never-in-doubt wrote: »

Did you miss this yesterday? #3842

It clearly says we MAY visit! Not we WILL. Ignore it or send this to them! Threat of Doorstep-Visit

Barclaycard, or rather Mercers, have threatened a doorstep visit before. I think that I'll tell them in advance to bog off. I won't be making my payment on the 19th so I'll make sure that they get the letter before then.

Cheers

Jim

intrigued_2

Nid,

I've read a lot of the info you've posted in this thread and all the associated guides. Do you think it would be worth me checking unenforceability regarding my situation here: https://forums.moneysavingexpert.com/discussion/2527475

Cheers

Gleeen

Tl;dr
Post extension.

AndyLGR

Back in January I requested my CCA from the DCA that have my Capital One account.

Cap One responded directly and sent me a copy of my original application form and also a reconstituted print of terms and conditions.

After some advice on here I replied in April with the letter below and I also stopped repayments to the DCA.

Dear Sirs,
I write with reference to previous correspondence, and in particular to the above numbered account 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, dated 31/01/2010, 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.

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.

Yours faithfully



I received a response yesterday to the above letter from Cap One in a 3 page letter, they also included again the original signed application form and again the re-constituted terms and conditions.

Here are links to the 3 page letter, any advice would be appreciated.

Thanks.

http://i366.photobucket.com/albums/oo103/AndyLGR/misc/PAGE1.jpg

http://i366.photobucket.com/albums/oo103/AndyLGR/misc/page2.jpg

http://i366.photobucket.com/albums/oo103/AndyLGR/misc/page3.jpg

swanfan02

never-in-doubt wrote: »

Just ignore them mate - your final response spelled out that unless they provide an original - they can go jump in the toilet bowl :rotfl::rotfl:

Hi Niddy, hope you are enjoying your w/e away. I have got a chaser letter from BLS Collections aka LTSB.:mad: Do i just ignore this as well? Cheers mate!:beer::beer:

in_to_deep

hi nid & gang
i also had same response from cap 1 as andylgr post 3931 after sending debtors final response & refusal by lender to accept unenforceablity. they also mention Teasdale v HSBC 2010 EWHC612 do they need a responce or just sit it out?
i bet everybody is looking forwards to the England match

COME ON ENGLAND:T:T

*Pollypocket*

Hey Niddy, hope you're enjoying your weekend!

I received a Final Response letter from LTSB today, very patronising it was too. Anyway, basically they are satisfied that they have provided me with a valid CCA, etc.

As I have already sent my final response I'm assuming that I just sit tight to see if they order a CCJ now? Here is a link to a post I made in March: #837

Thank you soooo much again Niddy! If unenforcability fails then I will be content with a repayment plan, hopefully the interest will stop and I will stand a chance of paying this damn card off eventually. They've already had their money back several times in interest over the years anyway

Hannah_10

I've just heard on another thread that unenforcibility doesn't apply to overdrafts, is that right?

Thread is called "I've got £1000, I owe £6,000, which ones to pay?" and is on this board, it says I can't post the link though sorry.

The overdraft is with a high street bank and was started in Jun 2001 and defaulted in May 2006, since then nothing has been paid, the account was closed in about 2006 too. Is there any possibility at all it is unenforcible?

handyman123_2

Hi Niddy, your quite Mate. Have you gone behind enemy lines again, possibly captured by some DCA?:rotfl: Or are you in the Pub watching the game? Or possibly like me enjoying some well earned down time.

Anyway whatever your doing we all hope your well and enjoying yourself. (search and rescue have been placed on standby just in case)

Cheers, handy:beer:

dibs69

never-in-doubt wrote: »

Hiya

Leave things - just ignore them now. Let me know if they write again. Cheers

Hi niddy and all , got a letter from LTSB, i dont think thay will be sending me a copy of a signed original agreement, thay say the have complied with the requiements of a reconstituted copy and thay are not obliged to provide any further documentation, nor will we do so:eek:.:):rotfl: i have emailed you the letter niddy if you would check it out please, many many thanks:):) would i be ok to send this Refusal by Lender/DCA - to accept Unenforceability