Alf -v- Grattan

[alfwithhair]

Hi all,

 

I CCA'ed Gratten on behalf on my wife to the bradford offices on 25/09/07 and they signed for it on 26/09/07. I enclosed a PO for the £1 fee

 

Today she received the following dated 10/10/07

 

 

Am I right in assuming they have no right to issue a default notice whilst they have still failed to comply with her request for a copy of her CCA?

 

She also received a statement from them dated same 10/10/07, which includes Late Payment Fees and Reminder Fees and demanding the the full balance be paid by 20/10/07.

 

I was also under them assumption that this practice was also against OFT collection guidelines whilst an an account was disputed due to lack of CCA?

 

Any comments folks.

Alf

[phill123]

yes they have no right to issue a default notice while they are in default of a CCA request, for the charges you can start claiming them back. indeed, this is an unfair practice by the OFt guidelines as they don't a CCA the debt is uneneforceable . good luck

[pt2537]

yep your right, the debt is in dispute and they should cease all enforcement activity while they investigate. in addition to this the CCA 1974 states that while the default conitnues the creditor is not entitled to enforce the debt. as long as the 12 workign days have now passed tehy should not be taking this action

 

however, DCA's are notorious for ignoring the law and carrying on regardless

 

Regards

paul

[alfwithhair]

however, DCA's are notorious for ignoring the law and carrying on regardless

 

Regards

paul

 

This is not a DCA though. It is Gratten themselves. Also the 12+2 deadline is not up until Monday 15th October 07.

 

Is some sort of letter required to be sent to them regarding their failure to cease collection activity or not?

 

Alf

[pt2537]

ok, so wait till the 12 working days passes, until then you cant really do anything, sit tight and wait and see if anything comes through

 

regards

paul

[pt2537]

incidently how many payments have been missed on this account?

[alfwithhair]

Without pulling all the statements out I think in is about three months. She wrote to them enclosing a I & E sheet saying she could not afford to pay them, but they just ignored the letter and increased the debt monthly with late payment and reminder fees, so after finding this site we decided to CCA them.

[pt2537]

oh ok,

 

well, on monday if no agreement is recieved i would write to them setting out the facts that on xxxx2007 you requested that they supply a true copy of the executed agreement. todate they have ignored this request and proceeded to add charges and contiues enforcement action even though the account is clearly in dispute

 

in addition draw their attention to the OFT guidance on unfair debt collection practices which state

 

2.6 Examples of unfair practices are as follows:

 

h.) Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment

i would set out the fact that your statutory request remains outstnading and that as per s78(6) CCA 1974 the account is now in default under the Act and as such unenforcable

regards

paul

[alfwithhair]

oh ok,

 

well, on monday if no agreement is recieved i would write to them setting out the facts that on xxxx2007 you requested that they supply a true copy of the executed agreement. todate they have ignored this request and proceeded to add charges and contiues enforcement action even though the account is clearly in dispute

 

in addition draw their attention to the OFT guidance on unfair debt collection practices which state

 

2.6 Examples of unfair practices are as follows:

 

h.) Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment

 

i would set out the fact that your statutory request remains outstnading and that as per s78(6) CCA 1974 the account is now in default under the Act and as such unenforcable

 

 

regards

paul

 

Well I sent Gratten a letter pointing out the above points. I today received a reply dated 16/20/07, the very date the account went into dispute, although there might be a bit of back peddling going on as the post mark on the envelope was 22/10/07.

 

This states;

 

Dear Mrs XXX

 

Your letter has been passed for my attention with regards to the above numbered account.

 

with reference to your recent request for a copy of signed credit agreement in relation to the above account. We enclose details as requested assuming that you are the only customer on the account. If this is not the case, please send full details of any customer accounts, including your own and amended documentions will be sent.

 

I trust this resolves your enquiry.

Donna Douglas

 

Well I don't think this does resolve my request, they say "they have replied to my request for a signed credit aggreement" But what they have send is a blank agreement , no personal details on it whatsoever. Then they want me to "send full details of any customer account including my own" which leads me to think that they don't have any details regaring this account, so what me to supply them with the means to execute an agreement.

What they have sent is this;

 

 

But the return section is very odd, not seen one like this before, no terms, conditions, nothing just emply boxes for the customer to fill in.

 

 

There are also a another point I have not seen on other mail order agreement.

 

NO CANCELLATION RIGHTS - This agreement is non-cancallable. This mean that you have no right to cancel it under the Comsumer Credit Act 1974. (Is this correct?)

 

So I would take it from what they have sent that this agreement is unenforcable and the account remains in dispute? So what should be a good reply to this letter, barring in mind that they have issued a default notice prior to comlpying with my request, which I told them was not on.

 

Thanks folks

Alf

[pt2537]

Hi Alf,

 

in my opinion its not going to be enforcable

 

this is clearly a blank agreement and whats to say it wasnt created yesterday?

 

i would be interested to see if anyone else shares my views

 

regards

 

paul

[phill123]

if this what they sent to youi then confirm to them they have answer your request under the CCA 1974 but it is unenforceable as no prescribed term , the shape and form of the agreement is not conform i forgot which section is applicable ther and alsothat you will not enter into further communication with them aboput an unsubstantiated an dunenforcreable debt and also stop any payment.

 

Your letter has been passed for my attention with regards to the above numbered account.

 

with reference to your recent request for a copy of signed credit agreement in relation to the above account. We enclose details as requested assuming that you are the only customer on the account. If this is not the case, please send full details of any customer accounts, including your own and amended documentions will be sent.

 

I trust this resolves your enquiry.

Donna Douglas

this prove that they have nothing and they know it don't disclose anything to them don't sent them any documentation they already have it your CCA request and that is enough for a court as without a proper CCA they can't enforce . stop talking to them and refer it to trading Standard, OFT and thew financial ombudsman ( they will have to pay 400 quid to investiogate your complaint ). good luck

[alfwithhair]

So I should write to them pointing out what they have sent does not comply with the request as pointed out in the previous CAGers post and the account remains disputed, yes.

 

Or should I wait to see if they demand further payments?.

 

I want to try and stop them from placing the default on my Credit file which they have threatened to do on 30/10/07, see post #1. I know they shouldn't because of the dispute, but things like the law don't seem to be applicable to these mail order companies, or so they would have us beleive.

[pt2537]

Sadly Alf that wont be your decision

 

they will place the default no matter what.

 

however, that default may be removable under a Court of Appeal ruling, but the default would need to be incorrect

 

what they have sent is utter rubbish

 

if curlyben doesnt pop up with a letter template to send them then i will post something on here later to send these foolish people

 

regards

paul

[Curlyben]

In all honesty I would WAIT and see what they send next.

At present they haven't sent anything close to what you requested, so the clock is still ticking.

 

Saying that, to try and avert the default you could send them an s10 notice under DPA.

http://www.consumeractiongroup.co.uk/forum/bank-templates-library/5078-10-data-protection-act.html

[pt2537]

Hmmn,,

 

not sure this would be beneficial to send a s10 notice, the catalogue would merely argue their is a relationship between parties and as such they have a legitimate right and interest in passing data to credit reference agencies, they would almost certainly argue that this can be proven by the fact that you have purchased good from their catalogue and have yet ot pay for them

 

however, if they are defaulting on a cca request, at the point when they default,they should not add any further charges. if they have and issue a default notice which is incorrect then it is possible to have that voided

 

they are already in default of the 12 working day time limit so they shoudl have ceased all activity on the account while in dispute

 

that is why i suggested clarifying that what they have sent doesnot comply, they cannot then claim to have complied and as a result they cannot continue collection activity

 

thats my view anyway

 

regards

paul

[phill123]

indeed i agreee with pt2537 however for me it was for a credit card. they mentioned that it wasn't unlawfull for them to default me under an agreement however as i ( and you alf in your case) you haven't received any appropriate document. i will still argue that the fact there i sno agreementr then it negate their right to default ( as no CCA how they an prove that yougave this right in the first place!!!!) you even more more so on a disputed account go to the information commisioner they take time but they will eventually go with you. if i was you i will stop paying them they have no right to collect this debt ( this my opinion only !!!) good luck i don;t know what much else to do i am contemplating suing my OC for that . anyway good luck .

[alfwithhair]

Thanks guys for all your advice.

 

They received the CCA request on 26/09/07, so when the default was issued on 10/10/07 the 12+2 days had not passed.

 

But the letter they sent today dated 16/10/07 but post marked 22/10/07, was the deadline date. So I think they pre-dated it as I had written to them complaining about the default notice when they had failed to send an executed agreement.

 

One of the usual beautyfully crafted letters to send to them would be most appreciated.

[pt2537]

i make it that the 12 working days expired on the 12 th september .

 

in any case, the debt is unenforcable by statute based upon what they have sent thats my opinion.

 

bear with me, as a couple of us are working on a little project shall we say to get these horrible defaults removed

 

if Curlyben doesnt pop up with a killer letter to send them i will see what i can do for you later on as im up to my eyes in it at the mo

 

Regards

paul

[Curlyben]

This should do the trick.

 

Account In Dispute

 

Ref:

 

Dear Sir/Madam

 

Thank you for your letter of xx/xx/xx, the contents of which have been noted.

 

You have failed to respond to my legal request to supply me a true copy of the original Consumer Credit Agreement for the above account.

 

On the **DATE** I wrote to you requesting a copy of the credit agreement and other information under the Consumer Credit Act 1974 (Sections 77-79).

 

On **DATE** a member of your staff signed for delivery of my written request and I have an electronic proof of delivery showing their signature and the date.

 

To date you have failed to comply with these requests in any way, whether by confirmation of receipt of the request or by supplying the requested documents.

 

These documents I requested should be readily available as proof of your legal right to collect this account under the Consumer Credit Act 1974.

 

In my letter of the **DATE** I made a formal request for a copy of the signed, executed credit agreement for the above account under section 77(1) of the Consumer Credit Act 1974. In addition a full statement of this account should have been sent to me detailing all debits and credits to the account.

 

Furthermore

 

 

You are aware that the Consumer Credit Act allows 12 working days for a request for a true copy of a credit agreement to be carried out before your client enters into a default situation.

 

If that request is not satisfied after a further 30 calendar days your client commits a summary criminal offence.

 

These limits have expired.

 

As you are no doubt aware section 77(6) states:

 

If the creditor fails to comply with Subsection (1)

 

(a) He is not entitled , while the default continues, to enforce the agreement.

 

And

 

(b) If the default continues for one month he commits an offence.

 

Therefore this account has become unenforceable at law.

 

As you have Failed to comply with a lawful request for a true, signed copy of the said agreement and other relevant documents mentioned in it, Failed to send a full statement of the account and Failed to provide any of the documentation requested.

 

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

 

Furthermore I shall counterclaim that any such action constitutes unlawful harassment.

 

Please note you may also consider this letter as a statutory notice under section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect.

 

This means you must remove all information regarding this account from your own internal records and from my records with any credit reference agencies.

 

Should you refuse to comply, you must within 21 days provide me with a detailed breakdown of your reasoning behind continuing to process my data.

 

It is not sufficient to simply state that you have a ‘legal right’; You must outline your reasoning in this matter and state upon which legislation this reasoning depends.

 

Should you not respond within 14 days I expect that this means you agree to remove all such data.

 

Furthermore you should be aware that a creditor is not permitted to take ANY

Action against an account whilst it remains in dispute.

 

The lack of a credit agreement is a very clear dispute and as such the following applies.

 

* You may not demand any payment on the account, nor am I obliged to offer any payment to you.

* You may not add further interest or any charges to the account.

* You may not pass the account to a third party.

* You may not register any information in respect of the account with any credit reference agency.

* You may not issue a default notice related to the account.

 

 

I reserve the right to report your actions to any such regulatory authorities as I see fit.

You have 14 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint.

 

I would appreciate your due diligence in this matter.

 

I look forward to hearing from you in writing.

 

Yours faithfully

BLAH

[alfwithhair]

Cheers CB, how would I word the alteration to this letter as they have responded to the request, it is what they have sent that is in question, ie blank agreement.

 

Thanks again CB

Alf

[Curlyben]

Well a blank agreement DOESN'T comply with your request at all, so I'd stick with that line.

[pt2537]

nor does it discharge them from their obligations under s78. they have failed to comply, so its time to stick it up them so to speak

[alfwithhair]

Your the boss

Compiling the letter now, it will be in the 4 o'clock post.

Thanks again

Alf

[alfwithhair]

Your the boss

Compiling the letter now, it will be in the 4 o'clock post.

Thanks again

Alf

 

Well result of sorts this morning. Letter from Grattans Credit and Collections Dept;

 

Dear Mrs X

 

Your most recent letter has been passed for my attention with regard to the above numbered account.

 

After reviewing the account we have decided not to pursue this debt and no further collection activity will be taken. We must however advise you that details of the account will be registered with a credit reference agency. Lenders consult these agencies when deciding whether to grant credit.

 

We trust that you will pass this information to your client.

 

I trust that this clarifiess the position.

 

Yours sincerely

Donna Douglas

Credit and Collections Department.

 

I don't know what all this 'pass the information to your client' guff is, they must think I am a solicitor or debt advice centre. But at least they are not pursuing the debt any longer. However no reason for not pursuing given, lack of signed agreement I would presume, but they have not confirmed this is the case.

 

With regards to any adverse entries with the credit reference agencies, is there a plan of action to follow to try and avert this, or is this a futile exercise? Should I quit while I am ahead?

[pt2537]

Hi Alf,

 

well thats one result for you,unfortunatley there is no easy way of doing this default removal.

 

i am working on a set of POC's to get the littlewoods default removed

 

still its a result of sorts, atleast they will not be bothering you anymore or so they say

 

i would keep the letter safe for future reference

 

Regards

paul