Welcome on board uniboy

Redsue, did they send you the T&C with your credit agreement? My CA looks the same as yours, but is a very poor copy so have written back twice now requesting a readable copy plus the T&C. Regards

And on that matter Peter, I have just written to EGG Visa for the fourth time regarding a CA. They keep sending one that is largely illegable, with no terms and conditions (though it does appear to have all prescribed terms). So I have this time asked again for a readable copy with the relevant T&C's. I have also asked them to confirm that they have the original in a file and that it could be produced in court, if so required. I doubt very much they reply to this last question. I have my doubts that they have the original, I suspect thats why I keep getting a poor quality copy of the microfiche copy that they have retained!

I agree Rhia the CCA indeed rules and can not be side stepped according to the House of Lords.

Thanks Peter, I was aware of some unsuccessful attempts and have had discussions with Pam (inkognehto). I was hoping that mine was a new angle in just referring to Wilson and not using restitution, consolidation and mistake of law etc. In the Wilson original county court case the judge actually decided her agreement was enforceable and this was subsequently overturned by the higher courts. So I was hoping that by (politely) "enlightening" the county court judge with nothing but reference to Wilson I could focus his mind as it were. I feel the two main principles of (1) you can not side step the CCA and (2) you have no rights - are pretty clear from Wilson. Whether this would lead a judge to agree to order all monies returned is another matter! But as I would be tacking this on my claim as post one above to have agreement declared unenforceable, plus no processing of data, etc. I think it is a course I may well take on, as I have an account where the creditor has written to me and said "we have no agreement". That with the fact the balance is less than £500 and the account payments over 12 years are in excess of £14,000 makes me think it is all worth a punt.

The second barrel is regarding restitution, consolidation, reclaiming monies, pay it all back, etc. I have come to the conclusion that all we need is already in place from the Wilson case. Lord Nicholls of Birkenhead stated [note my underlining and emphasis] “30 These restrictions on enforcement of a regulated agreement cannot be side-stepped by recourse to a pledge or other form of security furnished in support of the debtor's obligations under the agreement. The security is not enforceable to a greater extent than the loan: section 113. Where an application for an enforcement order is dismissed, except on technical grounds only, or the court makes a declaration under section 142 that the agreement is not enforceable, any security provided in relation to a regulated agreement 'shall be treated as never having effect': section 106(a). Property lodged with the creditor by way of security has to be returned by him 'forthwith'.” “44 ... The rigid ban on enforcement of security and contractual rights prescribed by section 127(3) alone and in conjunction with sections 106 and 113 engages article 1 of the First Protocol. The lender's rights were extinguished in favour of the borrower by legislation for which the state is responsible. This was a deprivation of possessions within the meaning of article 1: see James v United Kingdom (1986) 8 EHRR 123,140, para 38. Whether this statutory interference with First County Trust's peaceful enjoyment of its possessions was justified, and therefore not a breach of article 1, is a separate issue.” I think that the debtors can no more “side-step” the Consumer Credit Act than the creditor can. Therefore I believe all reference to any other case law that is not directly the Consumer Credit Act will be doomed before the courts. Accordingly I think we need to use Consumer Credit Act case law to assist us and nothing else. Returning to Wilson and her motorcar. The Lords confirmed on several occasions that enrichment, windfall, etc would occur and that this is as Parliament intended, further this could occur up to £25,000.00. “77 …. Moreover, I have in mind that the statutory provisions apply only to loans up to a prescribed financial limit, currently £25,000. So the exposure of a creditor in any one case is confined. The burden imposed on him is not excessive.” All rights under the Consumer Credit Act are removed by clause 127(3). “72 Undoubtedly, as illustrated by the facts of the present case, section 127(3) may be drastic, even harsh, in its adverse consequences for a lender. He loses all his rights under the agreement, including his rights to any security which has been lodged. Conversely, the borrower acquires what can only be described as a windfall.” I think we should argue that all monies were paid under the misapprehension that these monies had to be paid as the rights enjoyed by the Creditor under the Act. As these rights do not exist, they have no right to these monies; therefore I want it all back!

bispers if it is not to late hang fire with that letter, I have a new thread http://www.consumeractiongroup.co.uk/forum/general/94309-no-cca-agreement-unenforceable.html which might be of interest. Especially after my next post this evening. Regards

Thanks Peter. Presumably it would also stop them hawking the "debt" from one DCA to another? Then only they could chase for the outstanding balance, though not via the courts, as you rightly say. This however is only the first barrel of my shot gun. I will post details of the second barrel this evening when I return to my residency.

Apologise now but can anyone offer assistance on a new thread I have started? http://www.consumeractiongroup.co.uk/forum/general/94309-no-cca-agreement-unenforceable.html

What I really would like to know is have I got the right clauses from the CCA. Do the ones I quote in my first post say and mean what I think? Can I start a county court action and have the debt declared unenforceable and stop all processing of my data?

Disclosure rory32? Was planning to include their reply to my CCA request in the court papers. "Dear Pope we do not hold a credit agreement for your account, but this will not stop us coming after you!" Ben

On that note remus I have started a new thread and wish to bring it to the attention of contributors to this thread. http://www.consumeractiongroup.co.uk/forum/general/94309-no-cca-agreement-unenforceable.html#post868021

I have for a few weeks now been researching and considering how to proceed with an account that has no credit agreement (or an unenforceable credit agreement) under the Consumer Credit Act. The following post(s) are my thoughts at this time. I would welcome any input, comments or advice that others may have. The first issue is with creditors that (1) still pursue balances on accounts. (2) Process adverse credit information. (3) Pass the “debt” on to multiple third parties. Under section 127(3) the courts are precluded from enforcing a debt without an agreement that contains the prescribed terms. It becomes altogether unenforceable: section 65(1). So I could file a claim at a County Court that goes (a) XXX does not have my consent under section 173(3). (b) Information may not be disclosed in accordance with sections 174 (1)+(2). © In accordance with section 142(1)(b) I request that the court declares agreement unenforceable under section 65(1) by virtue of section 127(3). The only danger here (and the only defence, I think) is that they produce an agreement that is valid!

aktiv, as Wilson went all the way to the House or Lords, I do not believe they can not have a second bite of the cherry. If these companies wish to move away from the CCA, that is surely all the more reason for us to retain our position with the CCA! Time for another read of Wilson I think.

Thank you whoever tipped my scales, it is appreciated. And Richard Spud thank you for some further bedtime reading, your posts are always eagerly awaited.

aktiv, in the infamous Wilson car case Lord Nicholls said concerning the precluding of the court from enforcing a credit agreement 30. These restrictions on enforcement of a regulated agreement cannot be side-stepped by recourse to a pledge or other form of security furnished in support of the debtor's obligations under the agreement. The security is not enforceable to a greater extent than the loan: section 113. Where an application for an enforcement order is dismissed, except on technical grounds only, or the court makes a declaration under section 142 that the agreement is not enforceable, any security provided in relation to a regulated agreement 'shall be treated as never having effect': section 106(a). Property lodged with the creditor by way of security has to be returned by him 'forthwith'. Whilst I appreciate he is specifically refering to the car, I think the sentiment could be carried over to all aspect of the Consumer Credit Act. It is the CONSUMER credit act not the Creditor consumer act! Regards

Here you go, "So people if you have stuff you want investigated about NEXT Retail Limited t/a Next Directory Ltd (licence number 534644) , please do write to Andy Lowther - Enquiries and Preliminary Investigations Centre - Markets and Projects. Sorry all this is under his signature on the letter! Address - Office of Fair Trading, Fleetbank House, 2-6 Salisbury Square, london EC4Y 8JX"

The address of an individual at OFT is on the other Next thread

They shouldn't default you but they will eventually when you have missed enough payments. The bottom line is that the ultimate action for them, court, is no longer an option. And that would be the only way to force you to pay. They will merely make a pain of themselves with calls letters and a default. All you can do is make yourself more of a pain by complaining to OFT for a start. I am also currently research what other options are open to people where the company has admitted no agreement exists. But it will be a few weeks before I get to a point of being able to post about it.

If they go for a CCJ your defence is where is the credit agreement. If you ask for it in the court and they don't produce it the judge will chuck it out! The Office of Fair Trading is interested in Next chasing monies against unenforceable accounts see post #36 in this thread http://www.consumeractiongroup.co.uk/forum/store-cards/69695-next-directory-covered-cca-2.html?highlight=Next+directory

If you have any questions while dealing with National Debtline feel free to post here or PM if you prefer. As I think you have gathered you are far from alone.

Then you should invest time on here researching the Consumer Credit Act and the seperate issue of reclaiming charges. I can give you links to several excellent threads but that is for another day.

Ben, first call the National Debtline FREEPHONE: 0808 808 4000 Monday to Friday 9am to 9pm Saturday 9.30am to 1pm I did a few months ago with more than you owe over more cards and loans. They will help you get it sorted out. They are your first port of call and will put you in touch with Payplan or CCCS who will help you with a debt plan and eventually the calls and letters will stop. Am sure you will be nervous and worried but call them it helps massively and the sooner you do the faster it will be sorted. Good luck

So just take out the reference to the further month and the offence as below. The rest is still valid. Please find enclosed a further copy of my letter dated XXX, concerning my request for a copy of the credit agreement for the above account. Now that the 12 working days have expired and you have failed to provide any documents, the account is now in dispute. Whilst it remains in dispute the agreement is unenforceable. Whilst it is unenforceable, no interest can be added to the account. No action can be taken against me. No adverse credit references or defaults can be listed against me with Credit Reference Agencies. The account cannot be passed to a Debt Collection Agency. Finally I am not obliged to make any further payments to the account. Essentially, the account is ‘held’.

Please find enclosed a further copy of my letter dated XXX, concerning my request for a copy of the credit agreement for the above account. Now that the 12 working days have expired and you have failed to provide any documents, the account is now in dispute. Also as a further calendar month has passed beyond the 12 working days, you have commited an offence under the Consumer Credit Act. Whilst it remains in dispute the agreement is unenforceable. Whilst it is unenforceable, no interest can be added to the account. No action can be taken against me. No adverse credit references or defaults can be listed against me with Credit Reference Agencies. The account cannot be passed to a Debt Collection Agency. Finally I am not obliged to make any further payments to the account. Essentially, the account is ‘held’.