Have a read of this ...It might help

http://www.consumeractiongroup.co.uk/forum/showthread.php?162535-Documents-in-Court-Civil-Evidence-Act-1995

supprising what can be done with collective knowledge:wink:

Re: Solicitor bailed out on me

gem, you appear to be talking very much as though you are thinking about taking your creditors to court. I would strongly advise against doing that. However, it is a totally different story if you are being taken to court as a defendant.

I'll second that one nicklea...great reply

As long as the payment is made it doesn't matter who by...Start your claim before the account is closed or payed off,for a better responce.

You say £50 per default notice.How many was there,did you comply with the remedial action on each AND were the D/N's in compliance with the default and termination regs.ie 14 clear days notice,correct balance etc etc....suggest you read other posts regarding dodgy D/N's

The thing that has just occurred to me though is the fact that MBNA sold this debt on in January this year, so question is, whilst MBNA will not take legal action, what about the DCA? (Hillesdens in this case)

 

Hillesdens have produced an illegible copy of a CCA from 1992 but no T & C's

Send DCA a letter that the account is in dispute with MBNA . DCA's will still chase this debt...just refer them back to MBNA

The account is on HOLD so as rebel11 says ...sit back . The ball is in thier court,after the investigation you should be provided with the details and copies of the docs they are relying on.If not request them

Great link rebel11

And thanks for the input sofar by you all.....Waiting for a reply from these xxxxxxx before I name them.AND of course waiting for the cca request to be complied with. SO STILL IN DISPUTE:madgrin:

Read my last post...Chances are these docs don't excist anymore

Certain DCA's are now replying to debtors who have requested / or submitted CCA requests with the following statement :-

This account falls under the following legislation......Consumer Credit (exempt agreements)Order 1989,article 3(1) and is therefor enforceable.

NOW section 16A of the CCA2006 says this...

“In order that an agreement may be exempted under section 16A, the debtor or hirer must be a natural person (i.e. not a partnership, unincorporated association or body corporate) and it must include a declaration, in the specified form, that the debtor or hirer agrees to forgo the protection and remedies that would be available under the 1974 Act if the agreement were a regulated agreement. The debtor or hirer must also provide the creditor or owner with a statement of “high net worth”, again in the specified form, which has been made in relation to him by a specified type of person (e.g. an accountant or a solicitor). “Specified” in this case means specified by order of the Secretary of State. ”

As I see it ..this ploy by the DCA's is crap.

Any further comments please

SAR Capquest for all details regarding this account.Including orig agreement,letter of assignment, insurances etc.Also point out that the account IS in dispute and therefor further action is not allowed by OFT rules.

ALSO read this :-

Consequences of Non Disclosure of the agreement

19. The courts attention is drawn to the fact that the without disclosure of the requested documentation pursuant to the Civil Procedure Rules I have not yet had the opportunity to asses if the documentation the claimant would need to be relying upon to bring this action even contains the prescribed terms required in Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) which was amended by Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482). The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)

20. The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following--

1. Number of repayments;

2. Amount of repayments;

3. Frequency and timing of repayments;

4. Dates of repayments;

5. The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

21. Furthermore the courts attention is also 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 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced

22. With regards to the Authority cited in point 17, I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul)

28.........I should outline the salient provisions of the Consumer Credit Act 1974. Subject to exemptions, a regulated agreement is an agreement between an individual debtor and another person by which the latter provides the former with a cash loan or other financial accommodation not exceeding a specified amount. Currently the amount is £25,000.

Section 61(1) sets out conditions which must be satisfied if a regulated agreement is to be treated as properly executed. One of these conditions, in paragraph (a), is that the agreement must be in a prescribed form containing all the prescribed terms. The prescribed terms are the amount of the credit or the credit limit, rate of interest (in some cases), how the borrower is to discharge his obligations, and any power the creditor may have to vary what is payable: Consumer Credit (Agreements) Regulations 1983, Schedule 6.

The consequence of improper execution is that the agreement is not enforceable against the debtor save by an order of the court: section 65(1). Section 127(1) provides what is to happen on an application for an enforcement order under section 65. The court 'shall dismiss' the application if, but only if, the court considers it just to do so having regard to the prejudice caused to any person by the contravention in question and the degree of culpability for it.

The court may reduce the amount payable by the debtor so as to compensate him for prejudice suffered as a result of the contravention, or impose conditions, or suspend the operation of any term of the order or make consequential changes in the agreement or security.

29. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3).

Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and 63, section 127(4) precludes the court from making an enforcement order.

30. These restrictions on enforcement of a regulated agreement cannot be sidestepped.....

And further more

36. In the present case the essence of the complaint is that section 127(3) of the Consumer Credit Act has the effect that a Regulated agreement is not enforceable unless a document containing all the prescribed terms is signed by the debtor

49. ".............The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan. That being the consequence intended by Parliament, the lender cannot assert at common law that the borrower has been unjustly enriched.

50. This interpretation of the Consumer Credit Act accords with the approach adopted by the House in Orakpo v Manson Investments Ltd [1978] AC 95, regarding section 6 of the Moneylenders Act 1927 and, more recently, in Dimond v Lovell [2002] 1 AC 384, another case where section 127(3) precluded the making of an enforcement order.

In Dimond's case the restitutionary remedy sought was payment of the hire charge for a replacement car used by Mrs Dimond. The House rejected a claim advanced on the basis of unjust enrichment. Lord Hoffmann observed that Parliament contemplated that a debtor might be enriched consequential upon non-enforcement of an agreement pursuant to the statutory provisions. It was not open to the court to say this consequence is unjust and should be reversed by a remedy at common law: [2002] 1 AC 384, 397-398

19. The House of Lords and the Court of Appeal before it in considering the Wilson case held that if the agreement does not contain the prescribed terms outlined in Schedule 6 column 2 of Statutory Instrument 1983/1553 then the court couldn't issue an enforcement order.

The House of Lords clearly considered it the will of parliament that where a lender did not comply with the provisions of the Consumer Credit Act 1974 and the Subsequent regulations then the lender does not have any recourse, they cannot side step regulation by any other means and weather it is considered right or wrong for the debtor not to have to repay an unenforceable debt becomes irrelevant where the requirements of the CCA 1974 and regulations are not met

22. I also refer to the website of Francis Bennion, the drafts person of the Consumer Credit Act 1974 and note in particular a PDF document that the honourable Mr Bennion has posted (located here http://www.francisbennion.com/pdfs/f...974-s127-3.pdf ) which states

"As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97. Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn't be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I'm glad the House of Lords has now vindicated my reasoning and confirmed that nobody's human rights were infringed.

167 Justice of the Peace (2003) 773.

The default notice

23. Furthermore, since the account referred to in the particulars of claim is regulated by the Consumer Credit Act 1974, for a right to pursue action to exist; there are procedures, which must be followed under the Consumer Credit Act 1974. A default notice must be issued under s87 (1) conforming to the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) which sets out the form and content which default notices must include, without such notice being issued the claimant would not have such right to demand any monies

24. It is neither admitted or denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant

25. Notwithstanding point 19, 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)

26. 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

Deed of Assignment

27. The defendant requires sight of the deed of assignment of the debt from HSBC to Phoenix Recoveries (UK) Ltd S.A.R.L , for the avoidance of doubt the defendant denies that there has been a valid transfer of the debt from HSBC to Phoenix Recoveries (UK) Ltd S.A.R.L.

Conclusion

28. In view of the matters pleaded above, I respectfully request that the court gives consideration to whether the claimant's statement of case should be struck out as disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16.

29. In addition, if the claimant cannot produce a credit agreement in the prescribed form signed in the prescribed manner by debtor and creditor, the court is precluded from making an enforcement order under s127 (3) Consumer Credit Act 1974 and it is requested that the court use its powers under section 142 Consumer Credit Act 1974 to declare the agreements unenforceable and strike out the claimants case accordingly

30. Having instigated these proceedings without any legal basis for doing so, having failed to provide sufficient information required under the pre-trial protocols in order to investigate this claim, or indeed to provide a reasonable time period to investigate this matter, and having failed to investigate a dispute as required by the OFT Debt collection Guidelines I believe the Claimant's conduct amounts to unlawful harassment under section 40 of The Administration of Justice Act. Furthermore, the Claimant's behaviour is entirely vexatious and wholly unreasonable. The defendant respectfully asks the permission of the court to amend this defence when the above documents are provided by the claimant

just another charge that because it's so small people don't notice or ignore.

NOW times that by the No of accounts...that is now a tidy sum

True BUT welcome are the original creditor.

IF the fscs are assisting in the clean up why leave loose ends

Why was it not a legal document...what is the reasoning behind that statement

inthenook..Please update / why is this document not legal. IF your cousin's advice is right why?have you not taken action before now

Send a SAR...Get all the details on this account,and in particular the ppi and medicare. Be specific you require the medicare documents in full.ie who with ,payments apr etc etc.

IF they don't excist as in my case .....the agreement would be irredeemably unenforcable.

Why was it not a legal document...what is the reasoning behind that statement

PUZZLED....Why from 14 jan 05

WHY not all outstanding

No time limit for PPI claims

Claims for mis-selling come under the exclusions for: "mistakes, concealment and fraud" s.32 limitation act 1980.

No time limit for PPI claims

Claims for mis-selling come under the exclusions for: "mistakes, concealment and fraud" s.32 limitation act 1980.

1 You were not in work or self employed at the time of sale

2 You were told that you had to take the PPI out at the same time as the loan or not at all

3 You were not asked whether you had any other insurance which would cover the loan

4 You were not told you could buy PPI elsewhere to cover the loan

5 You were sold a policy which had age restrictions which you fell outside of

6 You were led to believe that Payment Protection Insurance was compulsory

7 You were told that you would stand more chance of getting the loan if you took the Payment Protection Insurance

8 It was not explained to you that there were certain exclusions within the policy that could affect you

9 You were pressured into buying the PPI

10 You paid upfront for the PPI but it was not explained that there were some PPI policies where you could pay monthly

11 Your PPI was an upfront premium and you repaid the loan early and received no refund

12 You increased your loan and the PPI was increased automatically

13 The Terms & Conditions of the small print were not fully explained to you

The other branch trying to contact you is very likely your new branch..The telephone letter sent to the COMPLIANCE DEPT at the head office should stop all this

Send this to head office -(copied from this site)

Harassment by telephone - response letter

Harassment by telephone - response letter

Company Name

Road

Town

City / County

Postcode

Re: Harassment by telephone

ACCOUNT NUMBER: XXXXXXX

Dear Sirs

I am writing in relation to the quantity and frequency of telephone calls that I have received from your company, which I deem to be personally harassing.

I have verbally requested that these stop, but I am still receiving calls. (Delete if necessary)

I now require all further correspondence from your company to be made in writing only.

I am of the view that your continued harassment of me by telephone puts you in breach of Section 40 of the Administration of Justice Act 1970, and the Protection from Harassment Act 1997.

If you continue to harass me by telephone, you will also be in breach of the Communications Act (2003) s.127 and I will report you to OFCOM, Trading Standards and The Office of Fair Trading, meaning that you will be liable to a substantial fine.

Be advised that any further telephone calls from your company will be recorded. (**Even if you don‘t yet have recording equipment!!**)

Yours faithfully,

.

.

.

************************* ***********************

This should do the trick, but, if it doesn't, keep your cool and report them to the Office of Fair Trading and your local trading standards office.

The charges for these calls can be reclaimed...the doorstep visit letter is also in the library

New link and update.. http://www.consumeractiongroup.co.uk/forum/showthread.php?286015-Welcome-Finance-Cattles-tries-last-minute-rescue-plan

OK new dates rule out the statute barred part....also confirmed by FS. Chase up the LOA and SAR requests.Here is a link to a good one from postggj... http://www.consumeractiongroup.co.uk/forum/showthread.php?285911-Welcome-Finance-Help-With-Letters-Please

AND as FS has said GET EVERYTHING IN WRITING

I might help to bale them out if they accept £1 for every £100 I owe.THATS a better and safer offer than has been offered to them...My heart bleeds:violin:

:jaw:GETS BETTER EVERYDAY:-D Great link

Tell this dca you dont know who they are and demand a deed of assignment letter from them and welcome BEFORE you will acknowledge anything.

SAR welcome (cost £10.00) get all the details you require and reclaim the charges etc.

Q.when in 2005 was this taken out...I'm thinking statute barred here(6 Years)

DEF. need a second opinion on this though

Do not fax any details to them..that is none of their business.You say ppi is still outstanding??? were there any other insurances added that could be reclaimed ie lifecare medicare.IF yes were these insurances missold or even actually excist??? SAR them for all the details of this account...Lets see what lurks underneath