alanfromderby HFC - CCA(1974) Disclosure Offence Committed

[alanfromderby]

Opening salvo in post tomorrow to Horwich Farrelly, and DPA request will be close behind it to HFC. This will be another challenge to the statute of limitations argument as the loan was defaulted in 1999. However, I cannot believe that a court would accept an arugment that a loan can be enforced by one party, whilst the other party cannot challenge its validity.

This is the letter to HF:

Horwich Farrelly

24 Mount Street

Manchester

M2 3TA

2nd May 2006

Dear Sirs,

Reference: Robinson Way (Ex HFC Bank)

Your refs: xxxxxxxxx and xxxxxxxxx

Please be aware that I no longer acknowledge these debts to your company, and therefore require you to supply the following documentation before I will correspond further.

 

Firstly, you must supply me with true copies of the agreements you refer to in these matters. This is my right under the legislation contained within section 77 (1) and section 78 (1) of the Consumer Credit Act 1974 - your obligation also extends to providing statements of account. I enclose a £2 postal order in payment of the statutory fee for each account.

 

I also require that you supply signed true copies of the deeds of assignment of the above referenced agreements.

 

You are reminded that you are obliged to supply these documents, whether you are the original creditor or not, under section 189 of the CCA 1974.

 

As you are aware, a credit agreement that is not properly documented and signed by the customer is totally unenforceable under the CCA and therefore is a complete defence to any court claim that is issued.

 

Take note at this stage, that any legal action you may contemplate will be both vigorously defended and contested. I am now initiating investigations with HFC Bank into the validity of the original amount that was claimed to be owed, and will be in contact with you again in due course. In the meantime please be aware that I consider this matter to be “in dispute”.

Yours faithfully

[alanfromderby]

It would seem that Horwich Farrelly have totally ignored my letter, and have used the £2 postal order to credit each account with £1!!

 

We shall see - the clock is ticking.

[alanfromderby]

I take it all back - received the following from Horwich Farrelly this morning:

 

With reference to your letter which was received by this office today, please acknowledge the following:-

 

1. This office has requested copies of the original agreement from HFC Bank PLC, upon receipt these agreements will be forwarded to your address.

2. Please note that the above two accounts are on hold whilst we await the above request.

3. Finally please acknowledge that because we are relying upon a third party to provide us with this information, this office is unable to give a time estimate for the completion of your request.

 

 

This is excellent news. Effectively, if HFC manage to supply the CCA information to Horwich Farrelly - they can hardly claim not to be able to comply with my DPA request.

 

Of course, if they cannot supply a copy the original agreement to Horwich Farrelly, it is game over anyway. :)

 

That puts me in a win, win, situation then. :)

[alanfromderby]

Quick update.

 

This is developing nicely, I have today had a letter effectively saying that the £10 sent to HFC for the Data Protection Request, has been credited between the two accounts. Very interesting that this is exactly what happened with the payment for the Consumer Credit Act Request.

 

Horwich Farrelly, the debt collection agency involved, have now missed the 12 working day deadline. This means they are currently in default. They have until June 3rd to provide a copy of the two credit agreements, otherwise they will have committed an offence.

 

The clock is ticking.

[alanfromderby]

So, a month has now passed by, and Horwich Farrelly have failed to provide the information requested under the Consumer Credit Act. It is also worth noting that I have sent a DPA request to HFC and they now have just 9 days left to comply.

 

This relates to two loans, the outstanding balances being £7709.48, and £2686.33. Of course these figures include a large amount of unlawful charges - but without any information forthcoming, I am unable to assess the true level.

 

However, Horwich Farrelly have now committed an offence under the CCA, and until they supply the information I have requested the debts are unenforceable.

 

Should HF decide to try enforcement action for these two debts, they will find themselves being reported to Trading Standards, and having to explain themselves in court.

 

Of course, should HFC decide to seek to enforce the debt, they would have to provide the DPA information, and face action against them over the unlawful charges - and whilst we are in a litigious frame of mind, how about an action for mis-selling Payment Protection Insurance which proved to be useless.

 

So, 9 days and counting.

[chrismc]

So Alan as you say you are in a win win situation, BTW PPP is a complete waste of money, it is very very rare you can ever claim on it due to the tons of small print included oin most of those plans, and it makes these companies even more money than the original loans and credit agreements in most cases. Not only that, but credit brokers used to get a big kickback in commisions if they coersced the customer in to taking out PPP agreements/plans.

 

Chris

[alanfromderby]

No response from HFC to my DPA request with just two days to go - they now have to get the information to me by Monday.

 

With no information forthcoming from HFC, and Horwich Farrelly having already committed an offence under the Consumer Credit Act, I am counting the hours before I have them cornered, and they are unable to enforce these two debts.

 

Both these loans had a large number of charges added, along with loads of interest - and were supposed to be backed up by payment protection insurance, which turned out to be faulty. If they are unable, or unwilling, to provide me with the data I need in order to uncover the extent of any unlawful content, then they only have themselves to blame.

 

As from Monday, if they wish to pursue these loans, then they will have to provide the original paperwork, comply with my DPA request, and explain before a District Judge why they could not meet the statutory deadlines.

 

37 hours to go!!

[alanfromderby]

No information from HFC this morning. That means they have not complied with my DSAR, also Horwich Ferrelly have committed an offence under the CCA 1974 by failing to provide the documents requested within one month.

 

So, another one ticked off.

[caro]

Sorry for being thick Alan, just trying to get my head round this. I need words of one syllable. Does this mean you don't have to pay your loans off as they have failed to comply with your requests.

 

If this is the case, can they get it overturned for some spurious reason (thinking of Abbey losing Whizzkid and NeilP's court claims, and then trying to enter a defence after getting judgments overturned). Are they likely to try to take you to court for non-payment, and then you tell them why? Or is this really completely ticked off.

[alanfromderby]

Sorry for being thick Alan, just trying to get my head round this. I need words of one syllable. Does this mean you don't have to pay your loans off as they have failed to comply with your requests.

 

If this is the case, can they get it overturned for some spurious reason (thinking of Abbey losing Whizzkid and NeilP's court claims, and then trying to enter a defence after getting judgments overturned). Are they likely to try to take you to court for non-payment, and then you tell them why? Or is this really completely ticked off.

 

 

Background:

 

These loans were subjected to numerous charges, and additional penalty interest, which I would like to challenge. Also I would like to challenge the mis-selling of payment protection insurance which, when I tried to make a claim due to redundancy, suddenly became invalid.

 

HFC eventually sold the debt to a Debt Collection Agency.

 

In order for me to challenge the debt I sent a statutory request for documents as per the Consumer Credit Act to the DCA. They said they would have to get the information for HFC.

 

After 12 working days the DCA became "in default", and cannot seek to enforce the debt whilst that status remains. Therefore, I am under no legal obligation to pay them.

 

After one month, the DCA had committed an offence.

 

At the same time I had sent a Data Subject Access Request to HFC - which they have now defaulted on.

 

What can happen now:

 

If the Debt Collection Agency now want to enforce the debts they must firstly obtain the documents from HFC and send them to me.

 

I will then tell them that they have committed an offence under the Consumer Credit Act and that if they persist with trying to collect this debt I will raise this with Trading Standards, and the FSA.

 

I will also inform then that I believe the original debt contained unlawful charges, and I wish to seek redress over the faulty payment insurance.

 

Should they still decide it is worth pursuing the matter through the court, they will first have to explain to a Judge why they failed to provide the documents within the CCA time limit - and seek permission to proceed with the action, they will also face a counter claim for HFC to comply with the Data Protection Act, compensation for mis-sold payment insurance, and an estimated refund of charges and penalty interest.

 

That will turn out to be a VERY expensive legal action - especially since it will involve both the Debt Collection Agency and HFC, it will also put them into the very difficult position of having to explain their actions - and ultimately (if they want to stand a chance of winning) provide evidence of how their charges are calculated!

 

I think that I can safely say that these debts are as close to being unenforceable as is physically possible.

 

Of course....if they do come back to me with all the relevant evidence, and show me exactly how thay have calculated it, and deduct all the amounts that were unlawful and the money that should have been paid through the insurance, then I will happily agree to pay them what I owe them. Of course it will be at a monthly amount that I can afford.

 

It ain't going to happen!!

[mahala]

Well, apart from the insurance, my situation with GE Capital and Aktiv Kapital is exactly the same - GE Capital have failed to comply with the DPA request, and come Monday, AK will have committed an offence, as a month will have gone by with no response whatsoever to my CCA request.

 

I've been watching your progress carefully Alan, and you've been a great help! I'm glad things have gone well for you.

 

AK also out a default on my credit file - if the debt becomes unenforcable, as it seems it will, how do you think I'll stand re: getting the default notice taken off?

 

 

 

 

(Gosh isn't it exciting - getting back control of your financial situation?)

[alanfromderby]

It would be worth having a good read through the "DPA/Default" forum which is in the "Legalities" section. You should be able to take action under the Data Protection Act if they refuse to remove it.

[mahala]

thanks - off there now with my cup of cocoa

[caro]

Thanks for taking the time to explain it Alan. It takes a while but I usually get there in the end.

 

I sure am glad that you're on my side.

[alanfromderby]

HFC have finally complied with the DSAR, however no agreement included with the documents, and not a great deal of useful information among it. This, of course, does not detract form the fact that the DCA involved still hasn't complied with the CCA request - and therefore the debt remains unenforceable.

 

I will be going through the HFC documents shortly to see what information I can pull out - but not in any great hurry.

[whipsey]

just wondering how you word a cca request is it similar to the dsar request? is there a template for it ? would it work for a mortgage also?

[alanfromderby]

just wondering how you word a cca request is it similar to the dsar request? is there a template for it ? would it work for a mortgage also?

 

 

1) Have a look at the first post on this thread.

2) No - but you will find numerous examples on the forum.

3) No - mortgages are not regulated under the Consumer Credit Act, however they would still need to produce a copy of a signed contract should they wish to enforce a debt.

[whipsey]

what hapens then if the mortgage company cant produce documents do you still give them twelve days or is there a different way to do it reason being i asked for the application copies on the 5th june and have of yet received nothing i take it if i filled a cca then the 12 and 30 days would be up what would i do next?

[alanfromderby]

what hapens then if the mortgage company cant produce documents do you still give them twelve days or is there a different way to do it reason being i asked for the application copies on the 5th june and have of yet received nothing i take it if i filled a cca then the 12 and 30 days would be up what would i do next?

 

You have no recourse under the Consumer Credit Act for mortgages. My guess is that you would have to force the issue into court, which is a very dangerous approach, and one that could end up costing a great deal of money.

 

It comes down to individual circumstances, and what you are trying to achieve. If you have an issue with charges, then the contract law outlined elsewhere applies.

 

If you are just trying to get hold of a copy of the agreement for another reason then you may have to apply pressure through Trading Standards.

[whipsey]

imjust trying to get hold of the agreementas they got me worried a while back syaing i shouldn't of had it just want to check out my details filled in then if there wrong consult someone as the banks advisor filled the forms in for me to get the mortgage

[alanfromderby]

I would suggest the best approach would be a Data Subject Access Request, I would specify that you require full disclosure. That should fetch up all the details you require.

[tamadus]

ok I am about to send the following to Barclaycard, more to rattle their gilded cage than any expectations of them not being able to supply the signed agreement. Posting here for any comments before I send it.

 

 

Peter Townsend

Manager,

Barclays Data Protection

Radbroke Hall

Knutsford

Cheshire

WA169EU 17 August 2006

 

Dear Sir/Madam

 

ACCOUNT NUMBER: XXXX XXXX XXXX XXXX

 

Dear Sirs,

You have now exceeded the 40 days allowed by the Data Protection Act to supply data under my Subject Access Request dated 26 June 2006. A formal complaint has been lodged with the Information Commissioners Office and court proceedings will commence within 14 days for failure to comply with the Data Protection Act

 

In addition I note that among the data you have supplied there is not a copy of the original signed agreement. I hereby formally request true copies of the signed agreement referring to the above account number. This is my right under the legislation contained within section 77 (1) and section 78 (1) of the Consumer Credit Act 1974 - your obligation also extends to providing statements of account. I enclose a £1 cheque in payment of the statutory fee.

 

You are reminded that you are obliged to supply these documents, whether you are the original creditor or not, under section 189 of the CCA 1974.

 

As you are aware, a credit agreement that is not properly documented and signed by the customer is totally unenforceable under the CCA and therefore is a complete defence to any court claim that is issued.

 

Take note at this stage, that any legal action you may contemplate will be both vigorously defended and contested. In the meantime please be aware that I consider this matter to be “in dispute”.

 

 

Yours faithfully

 

[alanfromderby]

I may be in the middle of France at the moment, but can spot a thread hijacking from several hundred miles away...!

 

Please can you post your query elsewhere.

[tamadus]

Sorry Alan it seemed to follow the thread gist .

[jamesbond]

are there any actions you can undertake if a dca fails to comply with a cca request?