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shane5408

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Everything posted by shane5408

  1. here you go Dave regards, shane Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983.pdf
  2. lol, you bought that banjo yet:D
  3. Hiya, I don't think you need to write to Mercers/BC for now, the account is firmly in dispute and besides they are receiving the monthly payments from you at your own agreed rate. If Mercers send anymore threatening letters then post up details, also I'm sure you're keeping records of all correspondance from them anyway. kind regards, shane
  4. Hi, If the debt is for an overdraft a CCA REquest probably won't be much use, subject to a OFT Determination order Overdrafts are exempt from Section V of the Act and the creditor has no legal requirement to hold a credit agreement for them. However, the creditor is required to of informed you on the general terms of the agreed overdrft prior to opening it, ie Credit Limit, Rate of Interest and Repayments etc, to ascertain whether or not they did that you would need to send a SAR request, it will also be beneficial as you will get a complete transactional breakdown of the account and can begin claiming back any penalty charges on the account. kind regards, shane ____________________________________________ All advice is offered freely & without prejudice If my post has been useful to you please click the scales
  5. Hiya, The 'signature form' as they put it is nothing more than a precontractual application form mailer, The 'financial & related conditions' do seem to contain the prescribed terms, however there is no evident link between the two documents to establish the terms are in fact within the agreement as opposed to on a separate document. The further 4 forms are what i can only assume to be MBNA's way of bamboozling you with information, their sorely mistaken if they think providing heaps of t&c's on completely separate documents can be construed as compliance with the Form & Content Regulations. I have seen quite a few MBNA agreements (if you can even call them that), I was in court a few months ago with a similar MBNA type agreement, the implication I get is that unless they can provide the original agreement with the financial & related conditions clearly affixed to the reverse of the 'signature form' then they haven't complied with the regulations. It's interesting to see that they blacked out certain bits, no doubt to maintain the illusion they have sent a correct agreement, if memory serves correctly above the singature from part they blacked out it has various offers and clearly states it is an application form! kind regards, shane ____________________________________________ All advice is offered freely & without prejudice If my post has been useful to you please click the scales
  6. Hiya, Yeah recorded delivery is best, it can cost a small fortune initially but it really is worth it in the end, for CCA;s you need to retain proof of postage and have details of when it was recieved by the creditor so as to keep strict timelines. regards shane
  7. It isn't by any chance Phoenix Recoveries on behalf of Marlin Financial is it? Phoenix can be a real nightmare I've found. With regard to documentation there are differences in requirements depending on whether or not the debt was a loan or overdraft. Though both are regulated by the Act the latter is exempt from section v subject to an OFT Determination order, subsequently the creditor has no legal requirement to hold a credit agreement. However, IMO with overdrafts the creditor is required to of sent you notification of the general terms of the agreed overdraft when it was applied, ie Credit limit, repayments, rate of interest etc, this information (which I highly doubt they have) can be furnished by way of a SAR. Regardless though if they have admitted they haven't got any of the documentation relating to the debt they cannot enforce it. kind regards, shane _________________________ ___________________ All advice is offered freely & without prejudice If my post has been useful to you please click the scales
  8. Hi DM, Apologies for my tardy response. I concur with Paul, you need to pass this on to TS now and have them look into it. (fingers crossed you have a proactive TS like my one is:D ) I standby my earlier comments that BC have failed to comply with the statutory Form & Content Requirements in the alleged agreement they have provided. IMO it is not acceptable for them to put the financial terms (including the prescribed terms) as set out in Agreement REgs of the Consumer Credit (Agreements) Regulations in a completely separate document titled T&C's. The Act & Regulations are clear on these matters and state: The ACT:- S.180 Section 2(2) (a) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not satisfied unless the copy supplied is in the prescribed form and conforms to the prescribed requirements and Section 2(b) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not infringed by the omission of any material, or its inclusion in condensed form, if that is authorised by regulations. The Regs state:- 3(2) There may be omitted from any such copy- (a) any information included in an executed agreement, security instru­ment or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations thereunder as to the form and content of the document of which it is a copy; Form and content of regulated consumer credit agreements 2.-(1) Subject to paragraph (2) below, documents embodying regulated consumer credit agreements (other than modifying agreements) shall contain the information set out in Column 2 of Schedule 1to these Regulations in so far as it relates to the type of agreement referred to in Column 1. (4) Subject to paragraph (5) below, the information about financial and related particulars set out in paragraphs 3 to 19 of Schedule I to these Regulations, and also the statements of the protection and remedies available to debtors under the Act specified in Forms 5 to 10of Part I of Schedule 2, shall be shown together as a whole in documents embodying regulated consumer credit agreements and not interspersed with other information apart from subtotals of total amounts and cross-references to terms of the agreement: Creditors far to often happily mention they can omit the debtors signature and details under the requirements of a 'true copy' which is true, however what they conveniently overlook is what they must provide within the agreement as to form and content, not on a completely separate document titled t&c's. It would also be useful if we could see the agreement and t&c's they sent, particularly the separate doc you mention that supposedly contains your cancellation rights under s64 of the ACt. I can only assume that they are trying to cover all their bases, they have a legal requirement to provide you, within 7 days of the agreement concluding with exact details of how you can cancel the agreement. They are also required to send these details to you as part of your CCA Request and you are entitled to receive the agreement and any other document referred to in it. Furthermore if they never sent them to you at all then the agreement could be unenforcable by virtue of s127(4)(b). kind regards, shane ____________________________________________ All advice is offered freely & without prejudice If my post has been useful to you please click the scales
  9. Hi Bounce, I wouldn't worry to much about the new DCA, if Lloyds have already admitted there is no agreement the DCA hasn't a hope, they will most likely close the account on their system and pass it back to Lloyds. What I suggest you do is contact your local TS, Lloyds remain in default of the CCA request after 12 days of receiving it and after a further 1 month has passed they commit a summary criminal offence. I think pressure from TS and a strongly worded letter from you should be enough for them to acknowledge in writing they hold no agreement making the debt irredeemably uneforcable. Also mention to TS that Lloyds have breached the OFT Guidelines on debt collection by failing to halt all action while a valid dipute is in place. If you think there are any charges on the account then also send a S.A.R - (Subject Access Request) to Lloyds to ascertain the full extent and begin claiming them back. If you get hassled by the DCA just post up details and we can advise further kind regards, shane ____________________________________________ All advice is offered freely & without prejudice If my post has been useful to you please click the scales
  10. I believe that's Aston Lloyd & Partners! They're a real estate investment company. kind regards, shane ____________________________________________ All advice is offered freely & without prejudice If my post has been useful to you please click the scales
  11. Hiya, Completely agree with Rory here. On the basis of what they have provided you the debt is legally unenforcable. The prescribed terms are mentioned in the t&c's you uploaded but there is no feasible link between the two documents which means that the creditor has failed to comply with stautory Regulations. It also means the prescribed terms cannot be seen to be within the agreement, hence 127(3) renders it unenforcable. If they can produce the original however, which clearly has those t&c's affixed on the reverse of the document I would think it would render the agreement improperly executed and enforcable only on order of the court. In that instance you could also argue s59(1) applies as the creditor never signed the agreement making it unexecuted and prospective, therefore void. The problem is given the ommission in the regulations that allow the creditor to hide behind the 'true copy' requirements, it is very rare that on first pass they will send the original document (that is, if they have it) I would write back and inform them on the basis of what they have provided they have no legal recourse to enforce and unless they can provide the orignal agreement which was correctly executed and contains all the prescribed terms within the agreement you require their discontinuance of enforcement activities forthwith. I would also be interested to know if you received the cancellation details as part of your CCA Request? It says on the application form 'you have short while to cancel, details will be sent to you.' These details should of been furnished to you as part of the CCA request as you are entitled to see the agreement and any other document referred to in it. Furthermore under s64 the creditor has a legal duty to of provided you with these cancellation details when you first opened the account, if they were never sent to you the debt can be ruled unenforcable by virtue of s127(4)(b) kind regards, shane ____________________________________________ All advice is offered freely & without prejudice If my post has been useful to you please click the scales
  12. Hi All, I think you need to exercise extreme caution when looking into the notion propounded in the above thread, the severity of the magistrates court coupled with the possiblity of costs being awarded against you can be severe. Keep in mind the original claimant who took this action against the DCA decided to 'pull out' half way through, regardless at the end the DCA's solicitors still tried to apply for costs which were over £2k I'm afraid that members will see this as just another means of fighting back without realizing the potential consequences of the action should it go against you, at the very least anyone contemplating it should seek legal advice first regards, shane
  13. Hi, I think you need to exercise extreme caution when looking into the notion propounded in the above thread, the severity of the magistrates court coupled with the possiblity of costs being awarded against you can be severe. Keep in mind the original claimant who took this action against the DCA decided to 'pull out' halve way through, regardless at the end the DCA's solicitors still tried to apply for costs which were over £2k regards, shane ____________________________________________ All advice is offered freely & without prejudice If my post has been useful to you please click the scales
  14. Hi Paul, 'Mistake' is one avenue I was looking into, purely because of the aformentioned case law, just had a peek at your email, thanks for that, will be digesting that over the next few days I think! Might also be needing a few other bits from lexis and westlaw if u don't mind:D I've only just started looking into restitution but it's evident in any such action the debtor is definitely the underdog, hope to spend the next few weeks looking at more arguments and points of view. kind regards, shane
  15. Hiya, is the t&c's document you uploaded actually on the back of the application form or have MBNA just stated to you that they were? regards, shane ____________________________________________ All advice is offered freely & without prejudice If my post has been useful to you please click the scales
  16. cheers mate:D hiya, It would definitely need to be included in your written defence, then depending on whether it ever gets to a hearing it would be enirely on the defendants shoulders to effectively portray it to the judge. I forgot to add the following taken from Wilson v Secretary of State for Trade and Industry 31. These restrictions on enforcement of a regulated agreement are for the protection of borrowers. They do not deprive a regulated agreement of all legal effect. They do not render a regulated agreement void. A regulated agreement is enforceable by the debtor against the creditor. It seems, for instance, that a borrower may insist on making further drawdowns under a regulated agreement even though the agreement is unenforceable against him. Under the CCA 1974 both the debtor and creditor are afforded rights, in the event of an agreement being renderred unenforcable the creditor is not able to enforce at all, however the debtor still retains that right making the contract unenforcable only for one party, the creditor. regards, shane ____________________________________________ All advice is offered freely & without prejudice If my post has been useful to you please click the scales
  17. hiya, also add the follwing to the top of the letter 'I ACKNOWLEDGE NO DEBT TO YOU OR ANY COMPANY YOU PURPORT TO REPRESENT' Also, don't sign the letter, just print you name, if possible I would also send the £1 fee as a postal order. some companies have been suspected of scanning signatures! Lastly, if there's a chance the debt is over 6 years old and there hasn't ben any payments/contact you'd be better off sending the statue barred letter. kind regards, shane ____________________________________________ All advice is offered freely & without prejudice If my post has been useful to you please click the scales
  18. hi. there is a statutory fee for a CCA request which is £1 if you don't send it they don't have to comply with the request. What you need to do is expressly say the £1 is not to be allocated to your account is should only be taken as payment of the fee kind regards, shane
  19. Hi all, Just noticed this thread, never really paid much mind to green blob thingies and reputation before, just wondering is there any other criteria to making the leap from Informative to Highly Informative apart from having more than the 250 points? ie post count or length of time being a member etc? regards, shane
  20. Hi Dave, In point J i would substitute the 2nd mentioning of unenforcable to void as it applies with regard to s59(1), no signature on behalf of the creditor alone wouldn't make it unenforcable. In point N you could also mention the breach of s64, hitherto the subsequent unenforcability via 127(4). The alleged agreement makes mention of your cancellation rights and that 'exact details will be sent to you.' The creditor has a legal requirement to ensure these cancellation details are sent to you in the prescribed form within the prescribed period, otherwise the agreement is unenforcable subject to 127(4)(b) I agree with Chris' earlier point with regard to clarity for the judge, when asking the court to enforce judicial powers under Data Protection Act mention 14(1) with regard to the creditor destroying and removing credit data of said data subject and 14(3) for 3rd parties, namely being CRA's. With regard to Restitution the following may be of interest (no pun intended!): Kiriri Cotton Co Ltd -v- Dewani [1960] AC 192 Lord Denning said: Nor is it correct to say that money paid under a mistake of law can never be recovered back. The true proposition is that money paid under a mistake of law, by itself and without more, cannot be recovered back. ... If there is something more in addition to a mistake of law - if there is something in the defendant’s conduct which shows that, of the two of them, he is the one primarily responsible for the mistake - then it may be recovered back. Thus, if as between the two of them the duty of observing the law is placed on the shoulders of the one rather than the other - it being imposed on him specially for the protection of the other - then they are not in pari delicto and the money can be recovered back.118 and DAVID SECURITIES PTY. LIMITED AND OTHERS v. COMMONWEALTH BANK OF AUSTRALIA (1992) 175 CLR 353 F.C. 92/034 ‘Where the mistake under which the payment is made consists in the payer's ignorance of a statute which, in protection of a class of which the payer is a member, absolves the payer of the obligation to pay, the mistake of the payee who receives the payment honestly claiming it to be his due does not entitle the payee to retain it. If it were otherwise, an honest but mistaken claim by the payee would frustrate the operation of the statute……………….If the payer is a member of a class protected by the statute, the payer is entitled to succeed in an action to recover the money paid under a supposed obligation nullified by the statute’. kind regards, shane ____________________________________________ All advice is offered freely & without prejudice If my post has been useful to you please click the scales
  21. Hi Oldrope, If memory serves correct Lloyds have two principal collections offices, one in brighton and one in birmingham, you may be getting calls from callcentres overseas but the account would be held and managed by one of the two aformentioned i would of thought. I would suggest making one final call to lloyds tsb's general number and clarifying who holds and manages your account, when they tell you which collections office it is I would write to them requesting confirmation of the payment arrangement. kind regards, shane ____________________________________________ All advice is offered freely & without prejudice If my post has been useful to you please click the scales
  22. Hi Opalie, Congratulations!! They always pay up in the end! kind regards, shane
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