Unenforceability & Template Letters III

never-in-doubt

Little_Miss_Knuckles wrote: »

I requested my CCA for my credit card and all they sent me is a reprint of the 01/03 card conditions, and then just a modern day print of the payment plan with no signature at all. I sent them the standard response they then contacted me back with this there is more but this is responce.

Ok, they are in default of your s.78 request - the letter you must have spent ages typing is a blanket response..... Its from Barclays right? :rotfl:

Next time don't type the whole letter - just ask the question and then i'll ask you the relevant parts

It is unenforceable until such time they comply and send a true copy or a copy of the original to you.

Send this - see how they like it (clever !!!!!!!) :rotfl:

Dear Sirs,

Account No: XXXXXXXX

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 (Formal CCA Request), dated XX/XX/XXXX, 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. Moving to your most recent letter, dated XX/XX/2010 - 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 supercedes 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.

Yours faithfully

Sign digitally

never-in-doubt

Wispa1 wrote: »

Thanks NID - I will do. Out of all of the ones I had, this one threw me because it was the only one with prescribed terms on it. With many thanks once again. :D:D

I can write prescribed terms onto a mars bar wrapper, doesn't mean much though does it?

It has to be relevant and linked to the actual product - a signed tear off slip and some terms does not mean you are liable for anything - I could do that using photoshop if I had any of your signatures....

:D

never-in-doubt

Peppa-Pig wrote: »

Well we CCA'd all of our creditors 7 came back with what look to be enforceable agreements :mad:
we then sent the reminder letter to the rest and 3 have responded with un enforeceable ( thanks Nid for checking them ) and 5 just havn't bothered to respond and as of today are now out of time.

I'm going to send the letters off to the 3 un enforcable ones tomorrow do i now send the final letter to the 5 that havn't responded?

Have I seen all your CCA's? How many do you have? Going on above, I count 15 :eek: (7, 3 & 5) - is this right?

Give them a week or two - as I always say do not do their jobs for them! Let them break legal deadline, you chasing them a day late doesn't help you much - long term.

Let them dig their own grave..... Hold fire.

I am still confused with yours though - you seem to have too much going on at once and I can't keep up....

never-in-doubt

Jacobs_Crackers wrote: »

Hi Niddy,
how are you doing?
I have received from Lloyds for my CC account, terms & conditions & replied with the appropriate letter. They have now responded with their 'Final Response' letter (JC tries to control her laughing at this point! :rotfl:) Do I now just follow this up with the 'Debtors Final Response' (no CCA supplied) letter & leave it at that?
Thanks,
JC.
x

You gotta laugh (or cry) at these muppets! Yep, go ahead and send the final response.... you got it :T

BrightonSun

never-in-doubt wrote: »

Nice one - well done on new account..... :T :T

Regards to what you send them, this changes in light of your additional post, below:



As they clearly do not know their arsey from their elbow I think it's time you sent this - although you've rung them and they ignored you, i.e. sending terms, move in with this now - CCA Query - Terms & Conditions Supplied

Do not ring them, do not answer the phone to them and do not send anything else - just send the above and post back again when they respond...... If they happen to ring you (they are allowed to ring at reasonable times and at a reasonable volume - once a day would be legally allowed) then as others have stated, simply hang up or what I opt to go for, fail security...

Barclays - Is this XXXXX?
You - Who is this?
Barclays - Barclays Bank
You - Who?
Barclays - Barclays Bank
You - What you want?
Barclays - Can I speak to XXXX?
You - Sorry, dunno who you mean

Hang up......

They will get bored quicker than you will.....

Thank you, Thank you, Thank you Heres to seeing what they come back with this time! Your a star!!

roadster

Mornnig Mate

Hope your well, just a quick one. Had a final response letter on the 2nd Feb from Monument. So I very kindly sent them your final response letter back (all I've had from these clowns is the tear off slip i signed in 03 and a load of printed T&C current and from 03 nothing linking them at all)

Letter yesterday - we sent you final response - you may be able to refer your compliant to the FOS you have 6 months - as we have sent you our final response any future correspondance will be filed. Had no lettes of chasing or phone calls nothing nada zip -

Do you think they are upto something or are backing down

Cheers Mate

Will pm you later re Mint thing

never-in-doubt

roadster wrote: »

Do you think they are upto something or are backing down

Cheers Mate

Will pm you later re Mint thing

They cannot do anything, they have issued their Final Response, you replied in kind so it is stalemate..... the only thing they can do now is court - for them to do that they need the original agreement - which just aint gonna happen!

This was always unenforceable, as you know - this now cements it.

Will eagerly await PM (note the sarcasm matey)

never-in-doubt

BrightonSun wrote: »

Thank you, Thank you, Thank you Heres to seeing what they come back with this time! Your a star!!

They will write back with a final response, knowing them.... or they will try and fob you off with a silly letter reminding you of your obligations coupled with some half hearted threat that really should be used as cat litter lining....

Don't worry -

needtogetsorted

Sent the final part of the CCA request to Robinson Way (after they confirmed that they were unable to provide ANY documentation as requested).

They have response to my final letter which contains the following:-
"
We refer to you recent request that we cease collections of this account as we are unable to provide the documentation that you have requested.

The fact hat we are unable to obtain this documentation does not mean the debt does not exist or that we are not entitled to pursue you for the sum outstanding.

Your data will continue to be processed in line with the principles of the Data Protection Act 1998 and the account will continue to be reported to the credit reference agencies, where appropriate. If you neglect to make a payment to us, further action may be taken against you.

We require your payment proposals within 14 days.

Yours etc....."

Basically what do I do now??

Not panicking but will be glad to get this closed out.

Thanks

never-in-doubt

needtogetsorted wrote: »

Basically what do I do now??

Not panicking but will be glad to get this closed out.

Thanks

Send this: Debtors Final Response - No CCA Received

Do not amend it or change it - send it as is.

The account is unenforceable until such time they comply. They are wrong, quite simply. I can't be bothered writing a reply cos really there is no need. The law speaks for itself and without the agreement you do not pay anything.

They cannot take any formal court action against you, however they can add a default (if not already).....