Hi all wondered if someone can help me with Link? I had a MBNA credit card which was sent to Link Financial Ltd anyway, sent Subject Access Request Cant find my agreement! Sent second letter advising not acknowledging debt etc.. and will no longer pay blah blah blah Recd letter from Link as detailed below: Unfortunatly at this time we are unable to supply you a copy of your agreement however the FOS have made it clear that in situations such as this it is not unreasonable for us to continue reporting a default if it is a accurate reflection of how the account has been paid. The information commissioners office have also made it clear that a default on a credit file 'accuratley reflects the payments on the account' then the fourth bprinciple of the data protectin act 1998 has been complied with and therefore the continuation of reporting the account is acceptable. they also state: The failure of the creditor to produce a copy of the signed agreement is not, on its own, evidence that your debt does not exist or that it is not enforceable and should therefore not appear on your credit file, if the crdit grantor can supply some other evidence of the agreement and you have no evidence to contradict this then it is likely to be proper for the debt to continue to be recorded on your credit file. Therefore if an agreement is not available it does not mean the account is unenforceable and should be deleted from your file. the payments you have made towards your account and the offer letters you have sent are proof an agreement exists' has anyone else come across this response? if so what would you suggest I do? many thanks

Hi Can anyone suggest my response if any to the following letter received from Link regarding my old MBNA credit card account - i am a bit confused!!! 'unfortunatley at this time we are unable to supply you a copy of your agreement however the financial ombudsman service have made it clear that in situations such as this it is not unreasonable for us to continue reporting a default if it is a accurate reflection of how the account has been paid. The information commisioners office have also made it clear that if a default on a credit file 'accuratley reflects the payments on the account' then the fourth principle of the data protection act 1998 has been complied with and therefore the continuation of reporting the account acceptable. They also state: The failure of a creditor to produce a copy of the signed credit agreement is not, on its own, evidence that your debt does not exist or that it is not enforceable and should therefore not appear on your credit file. If the credit grantor can supply some other evidence of the agreement and you have no evidence to contradict this then it is likely to be proper for the debt to continue to be recorded on your credit reference file. Therefore if an agreement is not available it does not mean the account is unenforceable and should be deleted from your credit file. The payments you have made towards your account and the offer letters you have sent are proof an agreement exists. ANY FEEDBACK ON THIS WOULD BE APPRECIATED MANY THANKS

Hi Babybear thanks alot Could you have a look at this respnse and tell me if it looks ok to send? Thank you for your correspondence received today of which your comments have been noted. As you are fully aware the statutory demand which you issued was successfully set aside (cancelled) on the, therefore your threats to continue legal action and petition for bankruptcy are seen as both threatening and harassment, and with that in mind you have today, yet again, been reported to both OFT (office of fair trading) and Trading Standards. With regards to Judge ? comments at my hearing on the ? to your representative ‘this was clearly a case to be dealt with via a county court claim and NOT the insolvency route, your client has abused this process as a debt collection tool’ After taking Judge ? comments on board, I have made your client a very reasonable offer given the circumstances. I have asked you to provide a full breakdown of account including all charges and interest and to date the information you have provided still does not make any sense or has any consistency with your amount seeking to recover. As you are unwilling to give a true breakdown of charges, interest and what is actually owed on the account, I find my offer to your client very reasonable, given that I have already paid £2171 towards the account and as per my agreement the total payable is £2714.40 so therefore under the agreement my debt to your client is £543.40. I have made your client an offer of £814 which covers this amount and more than your charges as stated in your colleagues witness statement. The amount you seek to recover includes £570 in penalty charges, which was highlighted by Judge ? as ‘excessive’ and with several charges applied in one month alone. As I have made you aware of a recent redundancy and the fact that my offer has been made in good faith by a family member there is no room for negotiation and my offer still stands. If your client is unwilling to be reasonable in this matter, I will forward a copy of my financial statement, budget sheet and list of creditors which have been prepared by CCCS (consumer credit counselling service) with my offer of monthly repayment or complete the necessary papers with regards to any county court claim you may issue to defend the excessive charges your client has applied and copy all correspondence regarding this case to the court. I look forward to resolving this matter.

whats a LBA?

Thanks babybear the company is Weightmans they were already reported to OFT and TS for pursuing a debt when in clear dispute several months ago (issued a SD when in dispute) I have today contacted OFT via Consumer Direct to complain about there further threatening actions I just wanted to be sure that they couldnt do anything else with regards to petitioning for bankruptcy as the SD was set aside The judge was very mad with them for issuing in the first place and said it was obviously a county court claim and not a route for bankrupcty I might even send the judge a copy of this letter just in case they go down the county court claim as I will be disputing a large amount of the debt due to excessive charges (which the judge even commented on) It was a very reasonable offer that was made to put this to rest once and for all (its been going on for 8 months) but they are still trying these tactics Not in there favour to keep refusing reasonable offers - will write to them again stating that the SD was successful and there 'further legal action' to petition for bankrupcty is incorrect due to the SD being cancelled - the offer is non negotiable and still stands, if they wish to purse via the county court claim then 75% of the debt will be disputed due to unfair charges etc...

I would like to tell them something else! so they cannot issue a bankruptcy petition once it has been set aside? is that the end of the road for them once the application has been successful? I am I correct in thinking there only next step would be county court claim?

Hi all My application to set a Statutory Demand was successful and after taking the judges comments on board i made a reasonable offer to my creditor However, they have just wrote back today saying that they cannot accept my offer (they want another £400!) and quote below: 'as you have been served with a statutory demand, our agreement to defer further legal action against you is strictly conditional on your payment of the above sum being received by this office, if your payment is not received on or before the above deadline, please be advised that we will be forced to issue a bankruptcy petition against you without further notice' My question is: Can they force a bankrupcty petition even though the statutory demand was cancelled (set aside)? Or are they just using scare tactics thinking I dont know what I am doing? I thought once a SD was set aside they couldn't pursue bankruptcy petition! The judge even told their solicitor that this was clearly a county court claim and they have abused the debt collection process Can I report them to OFT or trading standards for harressment? I have told them that I have been made redundant and the offer is made in good faith from a family member so there is no room for negotiation Need to know where I stand with this before I write back! Thanks

Sorry my scanners not working! I have cut and paste below - if someone can create a link to it then great Refuting witness statement of ? and debtors defence P 5. With regards to the amount payable under the above agreement, the total amount paid from the debtor totals £2,213.40 as per statements provided (Refer to appendix 1) P 6. This is incorrect - Payment Protection Insurance was cancelled on the above account in November 2007 as per the attached confirmation letter from ? so therefore monthly payments were reduced from £65.60 to £56.55. (Refer to appendix 2) · Is the creditor assuming that a default has occurred because the PPI has not been honoured? P 7. This is incorrect monthly payments were £56.55 as per above P 8. It is denied that any Default Notice in the prescribed format was ever received on the said date and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant Notwithstanding the above points, I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237) (Refer to appendix 3 and copy marked TM2 from witness statement) Service of a default notice is a statutory requirement as laid out in sections 87,88 and 89 Consumer Credit Act 1974. Section 87 makes it clear that a default notice must be served before a creditor can seek to terminate the agreement or demand repayment of sums due to a breach of the agreement. Therefore without a valid default notice, I suggest the claimant’s case falls flat and cannot proceed and to do so is clearly contrary to the Consumer Credit Act 1974 · Date of termination of said account 1st September 2008 as per Mr M witness statement · Date of Default Notice sent 28th February 2009 · No electronic record of default notice dated 18th August 2008 (as per Mr M witness statement) being sent from creditor · Electronic record of default dated 28th February 2009 sent Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119 P 9. As no arrears or default notice was received at that time the debtor was unaware a payment of £56.10 owed and required by the date stated. The only arrears notice received was in November 2008 and dated 18th November 2008, 6 weeks AFTER the debt was assigned to ? and 10 weeks AFTER terminating the agreement as per the witness statement thus again showing a different amount to the one seeking to recover (Refer to appendix 4) P 10. The entire outstanding balance stated of £1,481.34 shows no consistency with the default and arrears notices received as above. P 11. It is clear from the statement made that ? are charging interest on Payment Protection Insurance which was cancelled in November 2007 (Refer to appendix 2) P 12. The amount quoted by Mr M in unlawful penalty charges is incorrect, as per statements from ? the total amount charged is £475 (up to 18th August 2008 and an additional £65 thereafter), furthermore, as Mr M has stated interest has also been added to these charges. (Refer to appendix 1) P 13. As stated ? were instructed on the 3rd October 2008 to recover the balance as stated by ? of £1,481.34, however, the letter received on this date was seeking payment of £1,635.14, again no consistency with amounts, several letters from ? seek differing amounts as detailed below: Letter dated 3rd October 2008 outstanding balance £1,725.45 Letter dated 10th October 2008 outstanding balance £1,730.14 Letter dated 20th October 2008 outstanding balance £1,635.14 Letter dated 12th March 2009 outstanding balance £1,715.64 (Refer to appendix 5) Furthermore, as per the default and arrears notices received from ? dated 26th and 28th February 2009, when adding ? charges as confirmed in the witness statement of £242.94 the amounts seeking would be £1,538.44 and £1,638.52 respectively, again no consistency in amounts seeking to recover (Refer to appendix 3 and 6) P 14. This is the first time, after requesting on several occasions that ? have finally confirmed their charges of £242.94 P 15. With this added to the amount requested by ? of £1,481.34 the total is £1,724.28? However, ? amount to recover is £1,629.28? Once again no consistency with amounts P 16. I queried the amounts to recover on several occasions due to the non consistency of the amounts stated, and the payments already made to the account with regards to the total amount payable under the agreement. Therefore the account was in dispute until the correct information had been received, ‘a true breakdown of the true balance outstanding and how you have come to these figures?’ to date both ? and ? have yet to fully breakdown the amount they are seeking, there are clear discrepancies in all figures. (Refer to appendix 7) P 17. This is incorrect – the reason the statutory demand was NOT issued on the 21st January 2009 was because the account was in clear dispute, of which this was confirmed by ? in writing on the 28th January 2009, it is unfair practise under the OFT guidelines to continue to pursue a debt when in dispute (Refer to appendix 8) · A formal complaint was made to OFT and Trading Standards (Refer to appendix 9) P 19. The above is a blatant excuse as to why ? continued to pursue the debt when in clear dispute and has not complied with his obligations required pursuant to the consumer credit act 1974; they have clearly issued the demand as an abuse of process. · The account was clearly in dispute · No default notice was ever sent at the time of issuing the statutory demand or at termination of the agreement; the default notice was dated the 28th February 2009 and received 7th March 2009. · As confirmed by ? in writing the account was on hold due to the dispute · All information requested from ? was not received, correspondence was sent requesting information on several occasions · The statutory demand was served on the 3rd March 2009 even when the account was still in dispute · A letter received from ? dated the 11th February 2009 asking for proposals for settlement within 14 days yet also confirming that if not heard by 4pm Wednesday 11th February 2009 further action would be taken, so no 14 days were given to allow for any proposals to be made and furthermore, all information requested had still not been received. (Refer to appendix 10) · I also dispute that I was in default with ? in the first instance, ? confirmed that April and July 2008 payments were missed and that the payment made on the 3rd October 2008 of £95 was insufficient to clear the arrears of £113.10, however overpayments had been made to the account of £30.15 and the total arrears as at 3rd October 2008 were £12.05 credit and no arrears as stated (Refer to appendix 11) · Both ? and ? have included substantial unlawful penalty charges, therefore increasing the debt when clearly the account was never in default in the first instance P 20. The amount claimed within the statutory demand once again is not consistent and does indeed include a substantial sum of unlawful penalty charges being; £540 charges applied from ? and not £389 as stated by Mr M £242.94 additional charges incurred from ? £? Interest on Payment Protection Insurance which was cancelled November 2007 £? Charging for PPI which was cancelled P 21 and 22. Given that the total amount payable under the agreement is £2,714.40, less payments already made to the account of £2,213.40 leaving a balance of £501, even with the charges added from ? of £242.94, the debt would fall under the statutory insolvency limit of £750 (total £743.94) P 24. If no notice of assignment is required, why was ? ‘assigned’ to the debt on the 3rd October 2008? The only default notice received was on the 7th March 2009 dated 28th February 2009, 4 days after serving the statutory demand, 5 weeks after first issuing the statutory demand and furthermore, 5 months after terminating the agreement (Refer to appendix 3) The first letter received from ? was dated the 3rd October 2008, coincidently the date the last payment was made to ?, no other correspondence was received from Weightmans prior to this date and neither from ? in relation to ‘assigning’ the debt (Refer to appendix 5) P 25. The debtor respectfully requests that the creditors application be dismissed on the grounds that; The account is in clear dispute The creditor has continued to pursue a debt when in dispute and has not complied with his obligations under the consumer credit act 1974 No default notice was received/sent prior to the statutory demand being issued No Assignment notice issued / received The amount seeking includes a substantial amount of unlawful penalty charges as described No consistency with the amounts they seek to recover The outstanding sum falls under the statutory insolvency limit of £750 P 27. The debtor is not insolvent and has made reasonable offers of repayments, which have been refused and hereby opposes the creditor’s costs I would like to quote to the judge the following case: Hammonds (a firm) v Pro-Fit USA Ltd [2007] EWHC 1998 (Ch) In this case, Mr Justice Warren confirmed that it was usual for an indemnity award to be made:- 27 So far as disputed debts are concerned, the practice of the court is not to allow the insolvency regime to be used as a method of debt collection where there is a bona fide and substantial dispute as to the debt. Save in exceptional cases, the court will dismiss a petition based on such a debt (usually with an indemnity costs order against the petitioner). I would also like to state how deeply annoyed and distressed I am at receiving the statutory demand which is obviously being used as a debt collection tool. Can I also ask the opposing solicitor as to why my application to set aside is ‘misconceived’?

yes no problem - how do I do that?

no - other solicitor opposed them due to the fact that I could have obtained 'free' advice from CAB etc... and that it was my duty to respond to correspondence anyway! Which was a shame at first it looked like the judge was going to award them but when she said that he agreed!! But he did say if it did go to county court because of the work that has been involved to increase costs! Solicitor was very helpful when I came out she admitted even she couldnt work out the amounts did say that my defense was excellent and I have been very successful! pat on the back for me!

Hi Guys Just wanted to let you know that I have just got back from my application hearing to set aside a SD and i have WON!! The judge ripped the others solictor to pieces - asking her three times why her client did not go down the county court route and chose instead to issue a SD which is a complete abuse of the collection process! He also questioned all the charges and was bemussed as to why her client had charged three times in the same month!! He said that it is clear from the debtors application and documents enclosed that there is a clear dispute to the debt and your client has still not resolved this dispute Judge advised to negotiate payment with creditor as they may now start county court proceedings and to be mindful of the costs involved, however, from your evidence you would have a good case! I didnt even get chance to speak! prior to going in the other sides solicitor asked to talk through the application - and when I challenged about not receiving the default notice she said they dont have to confirm it has been received but have to confirm it has been sent - when I referred her to copies electronic documents from the client which clearly had no entry of the default being sent but had the entry of the default I had received 5 months after issuing the SD she said 'where have you got this from?' She even acknowledged to the judge that the figures did not add up and her client assummed that they could work them out! I am now in the process of writing to the creditor to get a true copy of my statements up to date, costs / charges and interest and will work out an offer from there - if they refuse or we do not come to an agreement looks like it will go to court who I would think will not be happy that negotiations were not reached! Just like to say thanks again guys for all your help - it tool me 12 hours yesterday to write my defense and I never even started it! - the judge was brilliant and made the other side solictor stutter! :-D:-D:-D

Thanks so much guys for all your help After going through the default notice section yet again! Have noticed that the default notice HFC did send me dated 28th Feb 09 asks for all sums owed to be paid by 20th March 09 - if not paid by on or after this date then further action will be taken and the agreement will be terminated with effect from this date ermmmm did they not already terminate the agreement on the 1st Sept 08 and assign Weightmans on the 3rd Oct 08 - as per weightmans witness statement - and if they HAD sent the default notice as stated dated 18th August 08 - why send another one? - furthermore, a SD was served on the 3rd March 09 17days before stating action would be taken I feel so confident now guys - will update you tomorrow wish me luck!

this is great 42man reading through the default notice area it looks like they are snookered! and because they terminated the agreement september 08 and I did not receive the default notice until 7th March 09 they are def in breach of the CCA Furthermore both the default notice I did receive and the one they 'say' I received are inaccurate show different amounts! I have cut and pasted this and added to my documents ready for tomorrow Thanks again

Thanks Tiglet It would be great if you could advise me of what to point out in the consumer act and insolvency act Am I correct in thinking that because they have not provided a full breakdown of charges and not sent a default notice as suggested that this could be what I quote? With regards to the insolvency act - again am I correct in thinking that the point to make is that it should not be used as a 'debt collection tool' and that the debt was in dispute and therefore should not have been pursued in the manner of which it has Your help would be really appreciated Thanks

whats your email address?