Hi there Thanks for the post on my thread - I've come to help if I can. Firstly can you post up a copy of the agreement BOS have sent your brother. Once I have had a look I will come back with some assistance - you have read my own thread on this, so you know that I've a fair idea how to handle this. Abs x

Here is an update .... today recd notification that the debt has been sold to a DCA - First Credit. One battle one ... and I have every confidence in winning the war, as its off loading by BOS still doesn't make this any more enforceable or valid.

Hi ... Oh, this brings back such sweet memories ...... you see the letters you are receiving from M&S ... well I have had them all before - they are standard template letters, the contents of which are both incorrect and designed to mislead. The DCA - well the fact that M&S have fobbed it on to one, tells its own story - fret not - the DCA does not have the power to take legal action as they are not the legal owner of the debt - so ignore any comments or threats they make to the contrary. M&S have contrary to their mis-leading statements, not conferred with s78 request under the CCA, as they have not supplied a legal enforceable copy agreement, neither for a store card or a credit card - simple as. It is also not OFT guidlelines that say they can or not just issue credit cards without a new agreement as they appear to claim, further and falsely claiming that OFT were perfectly happy with how the administered this transition. The replacement of a store card with a credit card (without the signing of a revised contractual agreement) is in clear breach of CCA74 rules. So your reply to the DCA is that the alleged account remains the subject of a serious dipsute, and rejcting any doorstep visit. Your reply to M&S is just a repeat of your previous correspondence, as nothing has changed. I would conclude in stating that you have made your position clear, and have nothing furhter to add until M&S satisfy the outstanding dispute, and you duly await their resolution. Abby x

Stonker of a letter ... !!

Nope CB ... double space hasn't worked ... this just happend to me all of a sudden, I also can't add any smiley faces too (and I miss them !!)

Hi CB and thanks .... the prob is when I type and do the normal para spacing - when I post it up and read it back, the whole typeset has merged, its a pain for anyone to read that way, so I have been gong back in and putting in.Right I have just done the para by double space between this and the above .. lets see if it works when I submit post ... here goes fingers crossed !!!Abby x

Hi Ram .. sorry for the delay in getting to you, I've only just spotted your request for me to have a look at your thread. But here I am ... I hope I can help !! I have scanned over your initial post (and forgive me if you have covered this & I have missed it), but have you checked that your Mastercard T&Cs actually disclose that the bank may transfer any credit card balance held, to an overdraft facility ? If it does, what are the cirumstances upon which they claim they can take this action ? Abby x PS - is there any chance one of the mods can sort out my text - it takes me ages having to keep going back & working out how to put in paragraph spaces ... its is annoying !!!! (already reported but no one has come back to me - its putting me off posting !)

Ok so you rec an initial letter of facility 10 yrs ago - has your od changed in this period, facility increased or reduced ? If so you should have recd a replacment letter of facility each time. Don't tell them about Part V - let then raise it. They don't have to tell you every change in the interest rate applied to unauthorised ods - this is displayed in branch, on the website, in newspapers. But they DO have to sent you with 3 mths and 7 days of you exceeding any agreement, confirmation that you are in breach and what the un authorised interest rate is (obv relevant at the the time the letter was issued), and what penalty fees you would now be incurring if you did not bring your account back into authorised waters. Has your acct been registered as in default with CRAs ? You don't have to send a sol your I&E only a Judge can command that - BUT if you don't want to go down the dispute route, it would be maybe beneficial for you to complete one. Make sure that any offer you make is affordable over the long term, so keep it manageable. Abby x

Because the CRAs just accept what credit providers tell them to add to a credit record, even if it is argued unless the lender tells them to remove it, the cra's won't amend the record. You would need for it to go to court I would guess. Abby

To clear things up a traditional CCA request for an OD will not produce a traditional CCA - as you would see with a credit card, loan etc. However, when you were provided with the overdraft you WOULD (SHOULD) have received a letter of facility - this explains to you what the limit of your overdraft is, the interest rate (at the it has been agreed), how int rates may change, where they will be published, and the terms under which the bank may withdraw the od facility, etc. So in essence, it is a CCA agreement, albeit not in the traditional format, and not requiring your signature. Additionally each time your OD changed, i.e increased or decreased then the bank needed to send you a further letter of facility each time, showing the revised limit.There isn't as such a OD cca request letter, but I did send one, with a bit of tinkering. Part V exemption (of the CCA74) relates to the requirement of the bank to provide a traditional cca agreement i.e one with the normal terms you would expect in a traditional CCA plus your signature. Part V exemption (i.e the ability of the bank to just provide a letter of facility instead of a CCA) is LOST, if the bank does not with 3 months and 7 days of your exceeding the OD agreement (which would apply if they had completely withdrawn the facility), details of the interest rate you are being charged and other penalty charges. If the don't then whether they subsequently claim Part V exemption - it has been forfeited by their failure to adhere to the CCA74 which details both this requirement, and the resulting fallout if they don't. The bank may claim part v exemption in their reply to your CCA request as an excuse to send you nothiing .. this is not correct, and I have explained what part v exemption relates to. So they don't send you copy letters of facility for ALL amendments to the account, then they are in breach of your request. If they don't claim part v exemtion - they you expect a full cca, as they are not claiming that a full cca doesn't exist. I did have a bit of an arguement withsome over this, whereby they argued why would a bank not claim it and forfeith their right - but the facts of the CCA 74 regarding this are transparent, and are what they are. Furthermore, any DN and termination notice must comply with the terms of CCA74 as well - think we all know what they are by now (although on a DN can be more awkward to argue). My approach is the more errors in their handling, responses to my request, handing of my complain, and duff DN - the more I will have in any defence reqd - which will hopefully worry them enough not to want to go the court route, for fear of a precedent being set if they lose. Abby x

DO NOT UNDER ANY CIRCUMSTANCES GIVE THEM THE HEADS UP ON ANY ERRORS IN PREV DNs. You could reply stating that their claims you have not responded to their communications, are both untrue and misrepresentative of the situation. And that to be factually correct - you are still awaiting their resolution of your compliant. You may also want to include ref to the OFT regs on debt collection i.e prohibited whilst an account remains in dispute - and that any default registered whilst the matter remains unresolved is unlawful under OFT regs. They will register a default, so that they may pass on to DCAs - so you will have to bite the bullet on that I am afraid - but it also tells you that they have nothing to take it any further. Aunts credit record will be affected for 6 yrs. Abby x

They have no legal rights to demand such documentation - only a Judge has the juristriction to do that. So, you either just commence payments at your stated amount - or don't - and see where that takes them I doubt very much you would end up in a court room for £900 Haven't read the rest of your thread - have you requested and had checked over your CCA in respect of this account ? ;Is it enforceable ? Abby

With regards to their bizarre claim that the use of the card denotes enforceability (and yest they did raise this with me as you might have guessed !!!) Include this in your reply (tailor to your own style if reqd You have inferred that in the absence of an agreement meeting the terms of the Consumer Credit Act 1974, that its validity and enforceability, is somehow proven by virtue of any historical use. This is a somewhat flawed argument, as cited by Sir Andrew Morritt, Vice Chancellor in Wilson v First County Trust Ltd [2001] EWCA Civ 633, who said at para 26 of the judgement, that in the case of an unenforceable agreement:- “The creditor must…be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid;” This situation is backed by further case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the Consumer Credit Act 1974 the agreement cannot be enforced. You can also include a statement in the lines of ...... The breaches of CCA74 and evidence of an improperly executed and unenforceable agreement, have herewith been proven beyond doubt or arguement - and I put you to strict proof should you dispute this fact . Hope this helps Abby x

Oh what fun ..... you're answer is ... prove it with a correctly executed agreement. (then blow a big raspberry down the phone !!)

Hi p> bear with me my paras and all are still up the wall - i have to manually edit everything !!) This is their normal procedure to try and bully you into submission. They have an unenforceable agreement - they obviously know it but won't' admit it. If she answers the phone she refuses to go thru security, and states that for transparency and audit purposes, and as previously advised to them, she will only communicate in writing. She then refuses to engage in any conversation and ends the call. They have an legally unenforceable agreement, they know it but naturally won't admit it, also they cannot sent baliffs or any such like - that takes a court order & they won't get one. Abby x

Oh Maureen ... that is so nice of you !! I ended up just putting my phone on silent ring - in fact I now don't calls from any of my creditors or DCAs I will help as much as I can, I am MUCH further down the line - they have nothing to enfoce this on, and they know it - so sit tight Abby x

You remembered me .... just as I was typing to you !!!x

Hi ...Been a while - presume you're still in dispute on this ... have attached a letter for PLR, which I used myself.By the way M&S and their DCAs seem to have given up on this ... so hope the same happens for your Aunt PLR respose.pdf

Hi Lee I collected the phone last week - this time it came back with a full repair and fault report - which stated that the microphone was faulty and had been replaced. (which I assume means that nothing was repaired when it first went off for analysis & repair !! ). Anyways, I am delighted to say my phone is now working perfectly - so all good in the end - and I'm a happy girl !!!

Hi there, Traditionally an OD does not have a signed agreement (although not all in cases). ODs as previously advised ARE regulated under the CCA74 (with part V exemption) - and I have had this confirmed by both my bank and CRAs too. This means that you can request as normal a copy of your OD agreement - which will be a letter of facility - this is the document confirming what your OD limit was, from when it took effect, penalties for default or going over the limit etc ... as well as the letter of facility - which must be incluced for each and every change to the OD (increase/decrease) - they must also send you requested statements, t&cs and any other documentation that they may wish to rely upon in the matter. If they don't claim part V exemption & it gets to court, they have basically forfeited this right - meaning that as they have not declared their reliance upon part v exemption, they are in this action stating that there is a traditional signed cca available - and they have to produce such. . Additionally, if they don't communicate with you (i.e give no tacit agreement) within 3 months and 7 days of you going outside of your normal od limits - they have further forfeited CCA rights - again meaning a traditional CCA agreement is reqd - refer prev post . As the acct is regulated under the CCA - any Default Notices need to be watertight too - so check and look for errors - although if small errors and everything else re CCA regs stacks up I doubt the Judge would rule against the bank. Also - any advice my paras keep merging everytime I post - I have to manually put in paragraph spaces each time

Hi Lee, Yes I had already given them the opportunity to repair - it came back the same but with another fault to boot. I had already read the return/exchange t&cs - and no where does it state that Vodafone demand that they want the phone to be reapired 3 times before considering a replacement or refund. In fact the store manager initially tried the old ....its not our fault but the manf responsibility ........ Which means that they cannot attempt to enforce a T&C that doesn't form part of the contract of pch. And eqaully means they have failed the unfair relationship test The device is less than 6 mths old, only used since April and obviously has a fundamental issue - so if when the device arrives back at store, the problem reamins, and the store insist it go back for a 3rd attempt at repair in as many weeks - I shall contact you, but not before Trading Standards & Legal Advice sought. Abs

Hi,Please tell me why all my paras keep merging on posting .. !!!!

Hi,I have been a vodafone bus customer for over 10 yrs and usually get any device directly from them. However I had bought for me at christmas a C3 Nokia from a Vodafone store.I didn't start using this until April - and have had constant complaints from peeps that when speaking my voice is muffled or that the phone is one street and I'm in another - as it is so faint.I took the phone back to the store, fully expecting, that they would just replace like for like (as it was so new) - instead I was told this was not an option, and that they would send it off for repair. Now, I am aware that under 6mths its for them to prove the fault wasn't there at outset etc, and that I am entitled to a replacement or refund - but I think I also have to be reasonable and give them the opportunity to repair the fault - which I did. They didn't offer any replacement phone whilst my own device would be aware for 7 days.Anyways, the device was returned to the store, and I went to collect - I asked what the repair was, but the guy said that the job sheet didn't detail this, just that the phone had been repaired.When I got home, I tried the phone, and surprise ... the original fault is still there ... but now I have a new one ... now the reception in (i.e listening to peeps), is distored, and makes them sound like they have a lisp or speech impediment ... I took it straight back, and asked for a refund or replacement as the original fault remained, and now there was new fault, it didn't have before it was sent away. I was told by the store manager, that "he couldn't do that".Firstlly he tried to fob me off with "its not our problem but the manufacturers" ... well we know thats wrong .. and I pointed this out to him. Secondly he said that it was Vodafone term that the phone be sent away "3 times for repair", before a replacement or refund is even considered. I asked him where it said this in Vodaphone t&cs and he said "its just a in-house term and not publisheed to the public in the t&cs" ... !!!! Couldn't make it up could you !!! I told him that, if true, their actions plainly disadvantaged the Consumer as they are unable to make a balanced & informed decision as to whether vodafone & the service as a whole was suitable to them - due to conealment, and that this also put them guilty of the unfair relationship test .... he shuffled his feet and tried to quickly move on, admiting that it " could be clearer".He also said about the orig repair not being coorect "you see they may have said they have repaied it, but they haven't " .. and that they "may refurb it .." ..... unbelilevable isn't it !! I have given him the 2nd chance to send the phone off to be repaired again - no refurb, and have made it clear that should the phone come back not correct, then I will want either a replacement or refund - as its clearly unsatisfactory, not fit for purpose and I will have lost all faith in the product.He has said, that he can't gte that, as it has to go off for repairs 3 times at least - this is on a phone less that 6 mhts only - and only used from April !! I adivsed him that I have been a Vodafone business cust for 10 yrs, and even if I handn't of been, that he should expect that if the phone isn't repaired when I collect it, I willl not accept it, and demand a replacement or refund - his choice but I want one of them. He has told me he will have to speak to HO - to see what he can do ... but "couldn't promise anything" as this wasn't "vodafone policy".He was a nice enough guy, but just kept hiding behind "this is Vodafone policy" .. and obviously didn't know much about the sale of goods act 1979 - which is a bit lame, especially from a store manager .. I believe I will have been more than reasonable in letting the device go off twice, in less than 10 days, for repair, and would welcome anyone else's experience on this situation. I have never had cause to complain to Vodafone in over 10 yrs of use ... but now that I'm in a situation where their cust services are being called into action, I an understand why the 2 people who were seen before me in the store, were absolutelly blazing ... in fact the guy who dealt with me said that someone earlier in the day had threatened to "smash the shop up" ... "no wonder if he's in the same boat as me" I replied ....... !!

sorry I am having probs with my posts merging all paragraphs together - hope you can read ok

Technically under OFT rules, they are not allowed to default an account that is in dispute - however they do and the CRAs allow them to do this.The DN itself has a few anomolies - but not enought in my opinion to use this as the main part of any defence.Which is ok - as the agreement they have sent is not complilant with s60(1) of the CCA74 - and therefore technically unenforceable in court (s127)If you wanted to reply to them, you could just remind them that the account remains in dispute, and therefore the DN issued is in breach of OFT rules govening collection activities.I did this myself, although the DN I recd was very much bogus with several serious errors, they seem to have somewhat corrected the main mistakes they used to make, with just a couple of minor ones remaining i.e not providing a definite date of remedy, and not making bold and underlining some aspects of the "health warning" - which as I say I do not believe on their own would get you anywhere positive - but ok to use as an add on to any defence surrouding the useless (alleged) copy agreement provided.Abs x