btw johno, the test case was mcguffick -v- RBS

i think the judge was on drugs! if he ruled the agreement as unenforceable, then the terms of the agreement (ie its obligations) are unenforceable, so how can the original obligations still stand? he's just contradicted himself. he's basically saying the agreement is unenforceable but you must still pay the debt back and they can try and make you pay the debt back. the only thing they can't do is pursue legal proceedings against you. its either unenforceable or its not! lets hope there are some better outcomes from other test cases. my solicitor has advised me not to worry about this case anyway (i have 2 claims going through brighton court)

ok thanks, sorry to sound dumb but all the shedule 6 terms are on my cca except they dont state the amount of credit, they state "principle loan". I know its they same thing but do they actually have to state the exact word "amount of credit"? also if they breach terms from say shedule 1 or 2, does that mean that the agreement is still enforceable? all the things ive picked up on that they've missed out are from schedules other than schedule 6. eg missing payments consequences and total charge for credit.

no it wasnt taken out online. in my court claim im stating that the agreement is unenforceable because it doesnt have a total charge for credit, total amout payable, a statement about missing payments, and examples of early settlement amounts. Im just not sure which of these regulations is relevant to the 1983 agreement regs and which to 2004 amendments. My agreement is jus.it before the 2004 regs came into force so is governed by the 1983 regs. it seems many people have trouble finding the original 1983 regs do you think reasons for unenforceability will hold up in court?

thanks 42 man. today they sent me terms and coditions that they printed of the net! my cca refers to term 23 in the terms and conditions, but the terms only go up to 16. They might have trouble with that in court! does anyone know where I can get a copy of the orinal 1983 consumer credit agreements regulations? all i can find on google is 2004 ammended and i dont know whats been added/substituted etc. im under the 1983 regs.

Ok I could do with a bit of help here pls. I've been getting quite confident and familiar with the CCA 1974 now, mainly beacuse of this site and have sorted my debts out a lot. When I get a problem the answers on here. There seems to be a big debate about whether terms that arent embodied are unenforceable or not, and what "embodied" actually means as opposed to "contains". Ive read the four corners argument, but then read on here of a judge throwing that one out saying an agreement and its terms can be more than a page long. Also if the terms aren't embodied does it render just them unenforceable or the whole agreement? The reason I ask is I'm filing a court claim against Cabot and the terms are on seperate pages but the term Ive defaulted on, the payment shedule is before the signature on page 1 (signature on page 2,dont know if reverse of side 1 or not). Please look at my agreement and give feedback. It does refer to the terms and conditions but doesn't say where they can be found. So are they embodied? The term Ive breached is on page 1 anyway. Do I come under 1983 Agreement Regulations because my CCA's dated 30/04/05. EGG CCA2 picture by season_review_stats - Photobucket EGG CCA1 picture by season_review_stats - Photobucket

After my long battle with Capquest, the day before the court hearing they agreed to remove all entries from my credit files as long as I keep matters confidential and drop any further claims. This was all drafted on a Tomlin order which the court issued on 19th feb. They had 2 weeks to remove the credit file entries, but no surprises they havent! Now what?? I don't know the next best course of action to take. crapquest are a nightmare to deal with.

I had another thread on here about taking C®apquest to court for not removing default markers (no CCA). Anyway the day before the court hearing a couple of weeks ago they drafted a Tomlin Order which I signed because the terms were good. Basically they would remove the default markers on my credit files within 14 days. Well they haven't, so now what do I do? The court issued the Tomlin order 19/02/09. I hate these guys they're just so dumb. They said they wanted to take a business view and settle pre court to save on costs and then don't remove the defaults, so now im going to probably have to take them to court anyway. And they get a load of legal costs. Any advice appreciated. Could really do with one of the sites legal seagulls pointing me in the right direction here please. Cheers

I got fed up of 1st Credit hassling me for a LloydsTSB loan account that they're only DCA's for, so now they're getting both barrels! I'm suing them under DPA 1998, and Protection from harassment act 1997. Any expert opinions would be appreciated on this before I send it. Below is what I'm sending them, one last letter pre court with the particulars of claim on it. I refer to your letter dated 08/01/2009. Your response to my dispute is totally unacceptable in that all you doing is contacting your client Lloyds TSB to pass on my comments. Any reply to those comments will take at least one month. I am not going to restate facts made numerous times in my previous letters. As this dispute has been ongoing for nearly 5 months, your replies to my letters are always unprofessional and totally unacceptable, it appears court action is now inevitable. In accordance with the ‘overriding principles’ I submit herewith the draft particulars of claim: Particulars Of Claim 1. The Claimant held an account with the Defendant 1st Credit Ltd's client Lloyds TSB for a personal loan. 2. On 29/08/2008, the Defendant wrote to the Claimant demanding payment of £9507.57 on behalf of their client. 3. On 02/09/2008 the Claimant wrote to the Defendant disputing any debt payable to them. The Claimant requested a copy of the Consumer Credit Agreement (CCA) that they refer to under s. 77 The Consumer Credit Act 1974. A Statement of Account was also requested under the same act. A postal order of £1 was enclosed in payment of the statutory fee. 4. On 04/09/2008 the Defendant acknowledged these requests. 5. On 20/09/2008 the Claimant wrote to the Defendant informing them that they had exceeded the prescribed time-scale under The Consumer Credit Act 1974 of 12+2 working days to supply the requested documents, and the account was therefore unenforceable at law. He also requested that they cease processing his data, refund the £1 and offer compensation under s. 13 The Data Protection Act 1998. As the Defendant was acting for Lloyds TSB (allegedly) the Claimant requested that the “Default Notice” on his credit files be removed as it was inaccurate and unsubstantiated. 6. On 23/09/2008 the Defendant wrote to the Claimant requesting he call them as a matter of urgency. 7. On or around 24/09/2008 the Claimant called the Defendant in response to their letter. The Defendant repeatedly demanded a payment and accused the Claimant of avoiding paying his debts. The Claimant re-informed the Defendant that the account was unenforceable for their default on his s. 77 request, and that it was against Home Office regulations for a debt collector to attempt to collect on an unenforceable/disputed account. The Defendant still demanded a payment. 8. On 11/10/2008 the Claimant wrote to the Defendant, re informing them of the s. 77 breach and re requested that they cease processing his data. 9. On 22/10/2008 the Defendant acknowledged this letter and stated that they shall respond in due course. 10. On 07/11/2008 the Defendant wrote to the Claimant acknowledging they could not enforce the debt until such time that they provide him with the agreement (CCA). It made no mention of the Statement of Account or the processing of his data. They stated that they did not know of any legislation requirement to remove the “Default Notice”. 11. On 11/11/2008 the Claimant wrote to the Defendant re requesting that they remove the “Default Notice” recorded with the credit reference agencies, as it was unsubstantiated and inaccurate. 12. The Defendant wrote to the Claimant acknowledging his last letter. Despite previously admitting the account was unenforceable under The Consumer Credit Act 1974, the Defendant now claimed that the account related to a bank account and was therefore not subject to the legislation contained within the act. 13. On 17/11/2008 the Claimant wrote to the Defendant stating that the Lloyds TSB account was for personal loan, was therefore subject to the Consumer Credit Act 1974, and therefore still unenforceable at law under s. 77 (4). 14. On 08/01/2008 the Defendant replied to this letter stating that the Claimant’s comments would be passed on to their client (Lloyds TSB) and the reply from them would take at least a month. 15. The Claimant claims that the Defendant is in breach of Home Office guidelines for debt collection in that; a) s. 2.8 (k) states“not ceasing collection activity whilst investigating a reasonably queried or disputed debt.” b) Despite the Claimant disputing the debt(the Defendant's right to collect) from the outset and it subsequently becoming unenforceable, the Defendant continued attempts at collection. c) s. 2.2 (e) states “failing to provide debtors or creditors with information on status of debts, for example, not providing requested balance statements when reasonably requested”. d) The Defendant did not comply with the Claimant's request for a Statement of Account on 02/09/2008. 16. The Claimant further claims that the Defendant is in breach of The Consumer Credit Act 1974 s. 77 (1) a,b and c for their failure to supply a Consumer Credit Agreement and Statement of Account on request. 17. The Claimant further claims that the Defendant is in breach of the Data Protection Act, 1998 (DPA 1998) in that; a) The Defendant is a ‘data controller’, the Claimant a ‘data subject’ and the data ‘personal data’ as defined in s.1 of the Act b) In the Claimant’s original Consumer Credit Agreement with Lloyds TSB, he did not give his permission to have his data shared or passed on to third parties such as the Defendant. c)On 20/09/2008 the Claimant issued a Statutory Notice to the Defendant pursuant to s. 10 of The DPA 1998, requesting that the Defendant cease processing the Claimant’s data. d) The Defendant has continued to process the Claimant’s personal data, such processing having continued up to at least 08/01/2009 being the last letter received from the Defendant. e) The Claimant claims that such processing is unlawful in that it breaches Principles 1 and 5 of The DPA 1998. f) Principle 1 states that ‘Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless …at least one of the conditions in Schedule 2 is met …’. The processing by the Defendant meets none of the conditions in Schedule 2, which the Defendant knew or should have known. g) Principle 5 states that ‘Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes.’ The Defendant had no reason to retain the Claimant’s personal data beyond the 20/09/2008 at the latest. 18. The Claimant further claims that the Defendant is in breach of The Protection from Harassment Act 1997 (PHA 1997)in that; a. The PHA 1997 s.1 (1) states “A person must not pursue a course of conduct—(a) which amounts to harassment of another, and (b) which he knows or ought to know amounts to harassment of the other.” b. The Defendants continued illegal attempts to collect on a debt that was unenforceable under The CCA 1974, and are against Home Office regulations 2.8 k. amount to harassment and breaches s. 1 (1) a and b. 19. As a result of the unlawful actions,processing and the negligent misrepresentation, the Claimant has suffered damage, namely costs in corresponding with the Defendant regarding the debt and the entries on his credit reference file, distress and inconvenience. 20.The Claimant respectfully seeks; a) Under s. 13 (1) of The DPA 1998, the Claimant claims compensation for damage caused as a result of the unlawful processing, quantified as; 1. Postage, stationary and printing costs £20. 2. Costs of membership of ‘Credit Expert’ @ £6.99 per month, 12 months £83.88 to ensure that 1st Credit Ltd are not further harming his credit rating. b) Under s.13 (2 )of The DPA 1998, the Claimant claims compensation for distress caused by the unlawful processing, at the discretion of the Court. He asks that the court pay due consideration to the following; 1. As a Mortgage Broker the adverse/inaccurate information on the Claimant's credit files has prejudiced prospective employers from employing him. He has evidence of several financial based jobs applied for without success. He remains unemployed at present. 2. The distress caused upon the Claimant of not knowing who else his data is being recklessly shared with. 3. The extensive time taken by the Claimant in corresponding with the Defendant and bringing this case to court. c) Under s. 3 (1 and 2) of The PHA 1997, the Claimant claims compensation at the courts discretion for the anxiety caused by the Defendant's unlawful attempts at debt collection. This is your very last opportunity to settle amicably before court action. You should note that, if the matter does proceed to court, I will be relying upon, inter alia, the case of Kpohraror v Woolwich Building Society [1996] C.L.C. 510 with regard to the level of damages to be awarded. Should you not be aware of the case, appropriate damages were set at £1000 plus the default amount, representing in my case a total sum of £9507.57 and therefore a total claim of £10507.57. I claim my lack of employment for nearly four months caused by yourselves, amounts to considerably more than this sum anyway, and would seek that the court consider this when making the compensation award for damages and distress. Lord Justice Evans in Kpohraror v Woolwich Building Society [1996] C.L.C. 510 stated that a presumption of some damage arises in every case where injury to credit occurs, and therefore I will be arguing that it is unnecessary anyway to prove any particular loss or damage under this head of claim. I would point out that, in order to minimize any potential damage, I have refrained from applying for any form of credit since noticing the inaccurate data upon my file, as any subsequent refusal could only cause further damage. Although the “Default Notice” was place on my file by Lloyds TSB, you are acting on their behalf on the account, albeit illegally. If you comply by 30/01/2009, I would however consider a reasonable total sum to be £5000 in respect of the monetary claims, subject to the previously mentioned undertaking regarding the entry on my credit file. I consider this reasonable on the basis that I do not wish to consume the courts time if an amicable settlement can be reached. Therefore I am lowering my claim only in order to reach a pre-court settlement. I do hold another account with you (a legitimate one but currently unenforceable) of amount £4618.60. I would be prepared to offset your £5000 settlement against this account. This would obviously enable you to achieve a 100% full and final settlement on that account whilst still benefiting from a £5000 pre court settlement as opposed to over £10000. If you pass the account back to Lloyds TSB in an attempt to avoid being sued, then I shall still pursue legal action against you. My credit card agreement did not give permission for my information to be passed to third parties such as 1st Credit (illegally pursuing an unenforceable debt does not fill any of the DPA 1998 Schedule 2 criteria either) and you have harassed me for payment on an unenforceable account. Passing the account back to Lloyds TSB will not alter these facts and I shall still pursue legal action against you if an amicable settlement is not reached first. In any event, given 1st Credit's appalling history in relation to responding to my correspondence quickly, in the absence of settlement as detailed above, proceedings will be issued on or after 30/01/2009 without further notice.

Dont get satisfied mixed up with satisfactory. When you settle an account in full your experian account gets marked as settled under account balance. If you agree a lower settlement figure, ie like when you negotiate with a debt collection agency they mark it as satisfied. Other creditors can then tell that you didn't pay it of in full. Under the status of account though you might have satisfactory or default marker (like me lol). Satisfactory is good there's no higher status.

No worries thanks for looking. When I take Equidebt to court I'll do it your way and challenge their right to process my data under Schedule 1 and 2 DPA and claim discretionary damages under s(13) right from the start.

Thanks for the advice. I thought they had to prove that they acted legally in 1. proceesing my data and 2. recording accurate data. and I wrote many good letters to them (quoting CCA 1974, Data Protection Act etc ) but they just send back generic junk mail. I was suprised though when the court claim defense came back, that their defense is that they put me to strict proof that I haven't defaulted. Surely their solicitor knows that they have to prove that I did default and that they then acted in accordance with the Data Protection Act in recording a default? I'm not challenging them on processing my data as I thought it might complicate things. I'm only challenging them on the accuracy of the data under DPA 1998 Schedule 1, Part 1, (4) and seeking a court order to rectify it under S(14). Challenging the whole right to process my data thing seems a bit pointless unless your going for damages. Out of interest is it too late to change my particulars of claim and add damages under S(13) DPA1998? If not how do you do it? Another N1? Exuse my ignorance.

I got my allocation/directions hearing date through today for 11th Feb. That's just when the judge decides small or fast claims track right? Where do you find out about individual cases like Kpohraror v Woolwich Building Society [1996] C.L.C. 510and do you need to argue your case around someone elses or is it just useful. It's called case law right? Sorry for all the questions but your the pro on here now lol.

I got confirmation today that the allocation/directions hearing is on 11th feb. I thought it was pretty obvious it's a small claims track case though.

Thanks for posting this it's really useful. I'm taking Capquest to court this month for default removal. I wasn't sure whether to go for damages so I didn't as they're not very high and complicate things. I'm glad I didn't now reading your case, because although you'll probably get them if you plead your case properley it does make life harder. I like the bit where the judge said he doubts your motives in his summing up but didn't need to go into it. I'm a bit worried about the judge doubting my motives because I do have a debt but its unenforecable under S(77). At least like you I can say there is no debt as Capquest have closed the account on there books and confirmed this. They've also marked Experian as satisfied (not settled) but the default notice remains. I'll print off my report as evidence like you did. I didn't want to go for damages because like you I have other defaults on my credit file anyway which I thought they'd argue as evidence. So it was interesting when your judge sais 4 defaults are worse than 2. Congrats on a well pleaded case!

Hi I used to broker for the Funding Corp when I was a car dealer. Easy solution as you are over half way into your agreement you can give the bike back. That is presuming they have a hire purchase agreement drawn up and not a personal loan agreement. All HP agreements carry the 1/3 and 1/2 rules in the terms and conditions. That is if you are 1/3 of the way into the agreement and you default they have to get a court order to reposess the goods (bike) and if your 1/2 or over into the agreement you can arrange to hand the goods back to them and walk away. As your over 1/2 way now you can give the bike back to them. If your set up on a personal loan plan then it's irrelavent. Your agreement will say at the top Hire Purchase Agreement or Personal Loan Agreement regulated by The Consumer Credit Act 1974. Or has he done a runner with the bike in which case just follow everyone elses advice?

Thanks 42man I'll keep you posted. Should I have tried for damages under S(13) DPA or is that complicating things and being greedy you think?

Thanks I was probably going to send a letter like that anyway. It's just annoying that as you start getting somewhere, like getting these DCA's to admit they have no agreement and the account is unenforceable, they sell the account on!

Hi I CCA requested Halifax months ago and it's obvious they can't provide the agreement copy. Just as I was getting somewhere in removing the default notice they've sold the account on to some scatchy finance company. They phoned me up the other day and I said the account was unenforecable and they said I have to CCA request them again. Am I write in thinking that I don't have to do another CCA request it's their fault they've bought a dud unenforceable account? ? I told them that anyway and said what's the point in re requesting it because Halifax can't supply it anyway which is why they sold the account on.

Hi can someone advise me please? After a four month battle with Capquest who've finally admitted they've got no CCA and have subsequently marked my credit file as satisfield (not settled), they still refuse to remove the default notice. I've served an N1 on them for breach of DPA1998 "Information shall be accurate and correct" to obtain a court order for them to remove it. Sneaky lot in their defence provided as evidence terms and conditions but on inspection they were written 2008 when my account dates back to 2006. They requested further information for their defense and I accused them of providing falsified evidence and said that I'll raise that matter in court (falsifiying evidence is a criminal offence). They're still defending their case though and in their defense they say that I am put to strict proof that I did not default on the account. Surely it's down to them to prove that I have defaulted on the account as they've got a default registered against me?? They are also blaming Skycard who they bought the account from who initiallly registered the default. As far as I'm concerened my Experian entry has Capquests name above the default so they can change it. Any advice to get one over on these idiots gratefully received thanks!!!

Yep bottom right hand corner page 1 of 2 and 2 of 2. Damn! I wrote my particulars of court claim last night for default notice removal as I was sure they couldn't provide the agreement. It's been 3 1/2 months since CCA request and it turned up today. Won't be filing that now! Thanks for looking at it. I thought it was enforceable as I checked the prescribed terms against the act as best I could. Might offer 20% full and final settlement instead.

Hi does anyone know if this agreement contains all the neccessary prescribed terms? All feedback appreciated thanks. Image of cca page 1 high res - Photobucket - Video and Image Hosting Image of cca page 2 high res - Photobucket - Video and Image Hosting

I've put the CCA doc on photobucket now Image of cca page 1 high res - Photobucket - Video and Image Hosting Image of cca page 2 high res - Photobucket - Video and Image Hosting

I did a CCA request on 02/09/08 and thought I was winning the battle against M&S until today. Can anyone tell me if this agreement is enforceable? It appears to have all the prescribed terms in it. Also a bit weird is that they sent me a covering letter with it saying "We attach an edited copy of the signed agreement in respect of the above account and would ask for your comments." The agreement doesn't look edited does it? It goes on to say "If you confirm that this is your signature we will of course send you a complete copy of the relevant document." Looks like a complete copy to me. Says 2 pages only on the doc itself. Any help really appreciated thanks. Image of cca page 1 high res - Photobucket - Video and Image Hosting Image of cca page 2 high res - Photobucket - Video and Image Hosting

thats very similar to my mbna form i got from a cca request. they're clearly application forms though. on the back (if you've got this) are normally a shortened version of the t & c's. Mine had paragraphs 1-3 of the terms and stated that paragraphs 4-19 are on the full copy of the terms which would have been with the actual credit agreement. this would definitley not be enforceable though.