Company who cannot provide a CCA are pursuing me

BellaFiga

Following advice on the CCCS thread I sent a letter to a debt collection agency asking for a copy of a CCA. When they didn't respond in 12 days I sent the second letter recommended. A week later I got a letter from the company with copies of bank statements saying that they intend to pursue the debt, and that I should complain to the FSO if I'm not satisfied.

I phoned CCCS, who essentially said that it was my responsibility to pay my debts and that there was nothing they could do to help unless I also took this view.

My understanding is that the FSO cannot rule on this, as it is a point of law. The company have written to me this morning saying that they intending to take me to court. If this is the only way to challenge this I am happy for this to happen, but what do I do to challenge it?

king100

What were these bank statements they sent you?

What exactly did the letter say?

Did it say

We will take you to court
We are going to take you to court
Court proceedings have been instructed

OR

We might take you to court
We are considering taking you to court

Very important what the actual letter states.

Just_Plain_Jane

You could try sending something like this:

[Dear Sirs,

Account No: XXXXXXXX

I write with reference to your letter dated xx/xx/xxxx whereby you continually argue that you deem the above numbered account as enforceable. I have previously explained to you, my position, which happens to coincide with current legislation, namely s.127(3) of the Consumer Credit Act 1974 which, for ease and clarity, is quoted 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).

As is clear from the above, without and original "true copy" of the signed agreement encompassing the prescribed terms and duly containing my name and address, this account is lawfully deemed unenforceable and no formal action can be taken so long as this remains the case. Please do not waste my, or your time by fighting this lost cause any longer. Even the recent McGuffick and Carey cases confirmed that a lender should submit upon request a valid true copy of the original CCA. Yes, you are allowed to report the account "conduct" to the Credit Reference Agency's, but you may not enforce this agreement until you fully comply with the provisions set out within the Act, taking into account the recent Judgments and the history and case notes within said judgments. Unless you can satisfy my s.78 request in full by providing me a copy of the alleged original "compliant" agreement, then I have nothing left to say to you.

Also, in line with the most recent OFT Guidance surrounding unenforceability (October 2010), you should be aware that the OFT has stipulated the following; to which I require that you clarify your position on this point as failure to do so, even by omission or lack of a response, will be regarded as an attempt to deliberately misrepresent or conceal the legal position regarding this matter to which an appropriate complaint will be made to the OFT.

Sections 77-79 of the Consumer Credit Act 1974 outline the information creditors must provide to debtors under fixed-term, running account & Hire Agreements. Under these sections a debtor can pay £1 to get:

a copy of their agreement

copies of some of the other documents mentioned in their agreement

a statement of account.

If this information is not provided within 12 working days the debt becomes unenforceable. This means a creditor cannot:
make the debtor pay the debt before they're supposed to get a court judgment against the debtor

As the 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. Any threats will be averred and unlawful and vexatious with a counter-claim forthcoming.

Yours faithfully



Sign digitally
__________________

EDIT: When I posted this template I had assumed the debt was covered by the CCA act, but as it's an overdaft this won't be any good to you.

nottoolate

hold up a sec

they've sent bank statements. so does that mean it's a bank overdraft?

or have they sent them to prove payments on whatever debt this is?

if it's an overdraft then there wouldn't be an executed cca to supply as they are partially excempt

Just_Plain_Jane

nottoolate wrote: »

hold up a sec

they've sent bank statements. so does that mean it's a bank overdraft?

or have they sent them to prove payments on whatever debt this is?

if it's an overdraft then there wouldn't be an executed cca to supply as they are partially excempt

Good point

king100

nottoolate wrote: »

hold up a sec

they've sent bank statements. so does that mean it's a bank overdraft?

or have they sent them to prove payments on whatever debt this is?

if it's an overdraft then there wouldn't be an executed cca to supply as they are partially excempt

User still online but no ans yet!!!!!

BellaFiga

It was an overdraft. Does this make a difference?

copier_guy

dont think overdrafts are covered by the CCA act.

You would need to send a SAR request i think

saltnvinegar

If it was an overdraft then is makes a massive difference as they are not covered by the CCA.

So you are now in a very weak position as you have not only shown you are unaware of your rights, and your legal position, but by trying to apply the CCA where it does not apply you also label yourself as a won't pay.

So you need to work hard now and fast to recover some ground.

First off are you able to repay this debt? If not, then what is your financial position? Are you in a debt management plan or other debt management solution?

When was the last time you acknowledged the debt in writing or made a payment towards the debt?

Are you able to make some sort of payment proposal on how you can repay this debt?

SnV

BellaFiga

I haven't made any payments, although the registered the £1 charge for requesting the as one. I asked for the CCA because I was advised to by the National DebtLine. It was an overdraft that was automatically added to my account.

If I had the money I would repay it, but I don't. The problem started in 2006 when I asked Nationwide to remit some fees because I wasn't working. They questioned this as there was money coming in every month from the local authority. I told them that it was housing benefit, they cut my overdraft limit by £500 overnight, refused to negotiate on it. They then agreed to reduce it by £20 pw, but twice handed it over for action on the day when payment was due.

they sold the debt to an another agency. I asked them for the CCA, and being unable to provide it they sent it back to Nationwide. I didn't hear anything else for three years until just before Christmas when I got a letter saying that they had handed it to this new agency. I last made a payment/deposit on the day that they handed it over to the first agency. This payment never appeared on my account.

BellaFiga

What is an SAR request?