Frightened about my future

mouseann

Thanks for those comments.

But you have helped everyone as well - just don't forget that!

never-in-doubt

mouseann wrote: »

Have been busy with the scanner as have received some more documents from HBOS. Am waiting the oracle, Niddy, to give his advice on these.

Hi Ann,

Ok, that's another one sorted - 100% unenforceable and a total write off, so you can send the letter below (its a little more powerful than the idiotic response they sent you) - this should then be the end of it, unless they act daft and send you court summons to which we'd have it struck-off before it even started

Send the following letter back to the delightful Ms Gartshore (senior manager that doesn't understand the CCA1974) :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). You may consider this letter as my final response on the matter.

In my original letter, 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.

To date, no agreement has been sent and as a result this account is unenforceable in line with s.127(3) Consumer Credit Act 1974.

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 a copy, I don't somehow think you are allowed to simply not respond / respond with junk? Therefore my original request remains outstanding as 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 do not actually hold 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 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.

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

Finally, may I suggest you brush up on your knowledge surrounding the Consumer Credit Act because unless I am mistaken, unless you are acting in a secret capacity as a District Judge, your quote whereby you claim "As such the agreement you have with us is fully enforceable and we shall continue to treat it as such" is utter nonsense - we both know this. I will now explain to you why the account is unenforceable;

"Section 127(1) of the Consumer Credit Act (CCA 1974) is subject to the restrictions imposed by sections 127(3) & (4). Those subsections set out the circumstances in which the court shall not make an enforcement order under section 65(1) of the Act"

So there can be absolutely no mistake as to what the above means, pay close attention now, you (i.e. HBOS) must supply an original agreement to take to court with you. If you do not have this document then no District Judge is able to pass judgement because the provisions of the CCA protect me from such an order being made. I will be only to happy to stand and confirm the provisions of of s.127(3&4) and s.65(1) to the Judge, however I would most certainly be applying CPR 31.14 / CPR31.16 prior to any case, thus forcing you to furnish the court (and myself) with a copy of the purported original (which we both know does not exist).

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

mouseann

Thanks Niddy,

Very impressive fast response - from you, not the "Senior Manageer"!

Will send the response off first thing tomorrow - and await the next instalment.

Really grateful, as ever!

never-in-doubt

Ann

I'm away from tomorrow til Monday so anything that comes between now and then, just email me and sit tight, it is not that urgent (trust me) and i'll sort it when I get back on Monday ok?

I need a weekend away hahaha

Nargleblast

GeorgeUK wrote: »

Hi guys.


So, lets see if we've got this right
There's going to be someone dressed as superman, but instead of the "S" on his chest it'll be "127(3)"
A dodgy looking granny
The phantom (you don't want to see me in a pink cat suit!!)
Supergirl (you go Jinny)
And possibly someone dressed as a little teapot...

Is that right?

So, just a normal day in the life of a debtfree wannabe, then.......

mouseann

Thanks Niddy,

Really appreciate you letting me know that!

You have certainly earned your break - please do enjoy it and no thinking about all this stuff!

pure_dead_dopey

Wow Mouseann

That is a bit of a result, Niddy for Prime Minister!!!!

I was talking to Hbos to-day, give me strength!!!! No wonder they nearly went under, where do they get their staff from? Have a wee glass of wine tonight Mouseann and toast the Nid!!

savingwannabe

Hello just back from counselling. It went well, she thinks i have finally done something assertive!!!! Miraculous. Finally!!!! and now i see that you have one of those unenforceable thingy's!!!!!

HOORAY!!!!!! Well done Ann and NID.

Happy travelling!

mouseann

Thanks Pure Dead Dopey,

Think the job of Prime Minister would not do him justice - given the state of those who are "applying for the post" at the moment!

But he has been absolutely brilliant in all this!

mouseann

Hi,

Glad that the counselling went well!

And I am really grateful for Niddy for the unenforceability stuff - isn't he just absolutely brilliant???