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Sent out SAR`s to most of my creditors and not one to date can provide a CCA. I have recieved Application forms and other incidental stuff (statements etc) and so have sent out dispute letters (copy below). Today recieved the Solicitors letter below and am somewhat worried are they bluffing? a default notice was included with it.
I posted up a few weeks ago the application form (no conditions, now appeared) supplied to me and everyone agreed it was an Application Form even though it stated Credit agreement all over it, but then it also states Application form all over it as well! From that the dispute letter went out.
I have also sent SAR to oc HFC who will shortly go over legal limit, sold on about 81/2 yrs ago to DCA (wont say who in case they reading). Been paying approx £15pm, never missed and never any problems until they wanted more money and so sent SAR. Requesting a SAR has escalated to DN and threatened Court action, vexatious?
HELP!!!
1, Is it deffo an App Form?
2, If no CCA can they legally send DN?
3, Already defaulted by OC for this debt, make a diff?
4, Sols letter claims Application Forms can be agreements and therefore this is?
5, They point to clauses 3,4,5 in the T & C`s which do state prescribed terms, but these were not sent me when first requested, so at the time they did not supply the they had not complied with the request. The front has all the info on the very bottom showing its relevant dates but the conditions have none and the staple holes are in a different place are they original? confused.
6, They also state that a Credit agreement is not classed as Data and so does not have to be disclosed under the DP Act! Contradicts the "CCA" they have sent?
I thought I was being so clever, but now i want my mummy (or a big brother to stick up for me), Im too good looking to go to prison
Any help would be greatly appreciated, even if I lose in court it makes no difference I earn £90pw, have no assets, live with my disabled mum and owe approx £30000 in total with no chance of ever paying any of it off. what would the court award? £2pw?
I must admit that I am rather bemused as to why this account has been passed to you, as it is in dispute with ***DCA*** and has been since ***Date***
Not only is this a breach of OFT collection guidelines, but also in breach of the Consumer Credit Act 1974 and Data Protection Act 1998
As ***DCA*** is now in default of my Consumer Credit Act request, Office of Fair Trading Collection Guidelines and s10 Data Protection Act request, I consider this account to be in SERIOUS DISPUTE.
As you are aware while my Consumer Credit Act request remains in default, enforcement action is NOT permitted; under s127 this constitutes a complete defence at law. Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.
Now I would respectfully suggest that this account is returned to ***DCA*** for resolution of these defaults and breaches, as ***DCA*** cannot lawfully pursue any enforcement activities.
If ***DCA***chooses to ignore my dispute and attempt enforcement, I will initiate legal action and file reports with the appropriate authorities, including, but not limited to, Trading Standards, Office of Fair Trading, Information Commissioners Office, Financial Ombudsman Service and possible court action.
I hope that this will not be necessary and an acceptable solution can be accomplished.
I would appreciate your due diligence in this matter.
Yours faithfully
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Or this (which I have just unashamedly copied from 42man). Either or will do.
Dear Sirs
I refer to your letter of XXXXX 2008 which was received today.
Frankly, I am surprised of the need to advise a firm of solicitors about the terms and conditions surrounding my Consumer Credit Agreement request (Consumer Credit Act, 1974); dated XXXX 2008 for which I have proof of receipt . I can only assume therefore that they failed to inform you of their non compliance. Your client had until (date - 12+2 working days from date of sending CCA request) to comply with a legal request.
Should your client persist with threats of legal action as stated in your letter, I will welcome the opportunity for a judge to look at several defaults committed by xxxx under The Consumer Credit Act, 1974, as well as your client’s non-compliance with and total disregard for, both the Banking Code and OFT guidelines.
Also please note that I will ONLY communicate in writing, any calls made to me will be classed as harrassment and treated as such.
Yours faithfully / for ever / with love / in anticipation of a short and fruitless banking relationship (choose the first if I were you !!!)
I am not an expert, but I can give good advice about Brighthouse
Am learning more and more about DCA's too
I have no legal experience and all advice given is based on the knowledge I've gained from this site.
<------If you think I have been helpful, please feel free to tip my scales - remember to put your CAG name though!
1, Is it deffo an App Form?
2, If no CCA can they legally send DN?
3, Already defaulted by OC for this debt, make a diff?
4, Sols letter claims Application Forms can be agreements and therefore this is?
5, They point to clauses 3,4,5 in the T & C`s which do state prescribed terms, but these were not sent me when first requested, so at the time they did not supply the they had not complied with the request. The front has all the info on the very bottom showing its relevant dates but the conditions have none and the staple holes are in a different place are they original? confused.
6, They also state that a Credit agreement is not classed as Data and so does not have to be disclosed under the DP Act! Contradicts the "CCA" they have sent?
I will try to answer your questions as asked:
1. - It is an application form
2. - No CCA means NO action can be taken against you, including DN's
3. - YES - you should send one of the letters posted above (your choice). The account can not be passed on whilst in dispute with the OC
4. - It is an application form, not a credit agreement, regardless of what they say.
5. - I can see nothing on the T&C's that bears your signature nor anything that links these T&C's to your account.
6. - They have no idea what they are talking about......
Send off the letter to these "solicitors". They should not be dealing with this and should pass it back to the OC.
I am not an expert, but I can give good advice about Brighthouse
Am learning more and more about DCA's too
I have no legal experience and all advice given is based on the knowledge I've gained from this site.
<------If you think I have been helpful, please feel free to tip my scales - remember to put your CAG name though!
The sols are "in-house" and the debt was bought by a DCA 8yrs ago from HFC. If you check the letters I sent I have said what is suggested already, but they insist the Application Form is a CCA and so dont recognise that the account is in default.
What do I say about the default issued by the OC 9yrs ago and now by them? I never recvd anything to say the debt had been sold, just a letter from DCA to say they now owned the debt and pay them or else.
I should have SAR`ed the OC first as I am still waiting for HFC to show what they have, hopefully they wont have anything or it will differ from those sent by DCA.
Just as an aside. If solicitors chase after debts that are clearly unenforceable and therefore action should not be taken, can they be reported to The Law Society for this? Not a legle type but just thinking they should know better and might get into trouble if they do persue?
I sent SAR to the DCA who have claimed they own the debt (8yrs). they sent the usual screen grabs and statements, but also the Application form. I also sent dispute letter to DCA, but recieved the reply from their inhouse sols.
Any help would be greatly appreciated, even if I lose in court it makes no difference I earn £90pw, have no assets, live with my disabled mum and owe approx £30000 in total with no chance of ever paying any of it off. what would the court award? £2pw?
Missed this bit. IF any of your creditors took you to court, then you would be asked to supply your income and expenditure. As you have a limited income a Judge would probably only set payments at £1 per month as that is all you can afford
Is your income from benefits by the way? If so, this amount is set by the Government as the minimum amount you need each week to live on. The Judge would almost definitely set payments at £1 p/m (of course, you would have to supply the information and attend court).
I am not an expert, but I can give good advice about Brighthouse
Am learning more and more about DCA's too
I have no legal experience and all advice given is based on the knowledge I've gained from this site.
<------If you think I have been helpful, please feel free to tip my scales - remember to put your CAG name though!
33. In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under section 61 that all the terms should be in a single document, and backed up by the provisions of section 127 (3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the minimum terms) are to be found in Schedule 1.
Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay.
Just quote these and ask them what their interpritation is as most Count Court Judges wont enforce when this is presented
Today recieved the Solicitors letter below and am somewhat worried are they bluffing? a default notice was included with it.
Originally Posted by spartathisis
Been paying approx £15pm, never missed and never any problems until they wanted more money and so sent SAR. Requesting a SAR has escalated to DN and threatened Court action, vexatious?
Sorry thought i had, should be up there now with all the rest.
Nov 08 they requested an I & E and an offer of more money. I sent a SAR, but still paid agreed amount until they didnt produce a CCA. I have not paid Jan & Feb as I have said account in dispute. As I say OC issued a DN in 1999 (still have it as with all their correspondence) and then this one issued in the last week. I presume it is because I dared to request the data they hold! I did communicate with the MD of the company concerned as he decided he would deal with the matter, I would take his reply with a DN that he doesnt like to be challenged
As it happens it does state that I havent complied with the CCA re. payments and frequency, but I wasnt any way (agreed reduced payments not minimum payments etc).
I'm not sure that they can demand the full balance as a remedy to an alleged breach. The breach being that there were 2 missing payments, then to remedy that you only need to make good the two missing payments. Logically, your commitment was to pay an agreed monthly sum of below the contractal rate, not the full balance. Hopefully, somebody with more experience and knowledge will be able to provide a definitive answer.
If you've still got a copy of the 1999 DN it would be worth posting that up to see what it has.
They havent asked me to make up the missing payments just issued the default. Will pull out the original DN and post it, though will that make any difference?
They havent asked me to make up the missing payments just issued the default. Will pull out the original DN and post it, though will that make any difference?
thanks for all replies to date
That is the purpose of issuing a Default Notice. The DN alleges a breach of contract usually because of missing payments. The CCA 1974 then requires the creditor to instruct the consumer how to remedy that breach if indeed it is capable of remedy. Here is the relevant part of the Act:
87 Need for default notice
(1) Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,—
(a) to terminate the agreement, or
(b) to demand earlier payment of any sum, or
(c) to recover possession of any goods or land, or
(d) to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or
(e) to enforce any security.
88 Contents and effect of default notice:
(1) The default notice must be in the prescribed form and specify—
(a) the nature of the alleged breach;
(b) if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken;
(c) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid.
(2) A date specified under subsection (1) must not be less than fourteen days after the date of service of the default notice, and the creditor or owner shall not take action such as is mentioned in section 87(1) before the date so specified or (if no requirement is made under subsection (1)) before those fourteen days have elapsed.
(3) The default notice must not treat as a breach failure to comply with a provision of the agreement which becomes operative only on breach of some other provision, but if the breach of that other provision is not duly remedied or compensation demanded under subsection (1) is not duly paid, or (where no requirement is made under subsection (1)) if the fourteen days mentioned in subsection (2) have elapsed, the creditor or owner may treat the failure as a breach and section 87(1) shall not apply to it.
(4) The default notice must contain information in the prescribed terms about the consequences of failure to comply with it.
(5) A default notice making a requirement under subsection (1) may include a provision for the taking of action such as is mentioned in section 87(1) at any time after the restriction imposed by subsection (2) will cease, together with a statement that the provision will be ineffective if the breach is duly remedied or the compensation duly paid.
The Default Notice requires you to repay circa £3,500, which is not a remedy to the breach of missing two payments of £15. The remedy would be to pay them £30. The figure of circa £3,500 is presumably the balance owed on the account? All this of course ignores the fact that the account was in dispute at the time anyway!
If the 1999 DN is defective then the OC would not have been entitled to take any further action.
Have I been too big for my boots?!?
`s to most of my creditors and not one to date can provide a CCA. I have recieved Application forms and other incidental stuff (statements etc) and so have sent out dispute letters (copy below). Today recieved the Solicitors letter below and am somewhat worried are they bluffing? a default notice was included with it.
Reply With Quote
I am not an expert, but I can give good advice about Brighthouse
Originally Posted by spartathisis
