Creditor failed to provide CCA now commencing collection

[albertini]

Nice one CB.

 

That looks like a nice £2,500 fine then for these muppets for failing to supply docs!

[albertini]

Right this is the proposed letter going out by fax to them this afternoon. Any comments welcomed:

 

I am in receipt of your letter dated 29th October 2007 and I am surprised by your comments.

 

I wish to point out that I wrote to you on the 23rd July 2007 with a clear request under sections S77-S78 of The Consumer Credit Act for a true copy of the alleged agreement. You wrote back to me on the 28th August requesting information about my complaint and asking about the nature of my CCA request in what seems to me to be an attempt to muddy the waters on your part.

 

I then wrote to you on 5th September 2007 reiterating my position that I required a true copy under sections S77-S78 of the Consumer Credit Act.

 

Therefore in my original letter of 23rd July 2007 I made a clear and formal request for a copy of the signed, executed credit agreement for the above account under Section 77(1) and Section 78(1) of the Consumer Credit Act 1974 and a true signed copy of any relevant Deed of Assignment. In addition a full statement of account should have been sent to me, along with any other documents mentioned in the alleged credit agreement.

 

You are reminded that you are obliged to supply these documents, whether you are the original creditor or not, as defined under Section 189 of the CCA 1974.

 

You claim in your letter that unless you receive full details of my complaint against your company by November 14th 2007 you will pass my account back to your collections department for recommencement of collection procedures.

 

I am shocked that as Group Solicitor you would state this when, as we both know, The Consumer Credit Act 1974 clearly forbids this whilst an account is in dispute following the non receipt of documents under a Consumer Credit Act request for documentation.

 

Namely that, under said act, a creditor is allowed 12 working days for this request to be carried out before your company enters into a default situation. If the request is not satisfied after a further 30 calendar days, your company commit an offence. These time limits expired on 9th August 2007 and 7th September 2007 respectively (generously taking into account 12 + 30 working days plus 2 days on each occasion for my request to be serviced to you).

 

Please note I have highlighted in bold, large lettering Section 78(6) (a) which is the precise clause contradicting your assertion that this account may be passed on for collection.

 

Section 78(6) states:

 

If the creditor under an agreement 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.

 

I would like to know why you would state that you will attempt to reinstate collection in your letter when Section 78(6) is clear that you are not entitled to enforce this agreement whilst my request has not been complied with. I await your answer on this point with keen interest.

 

Furthermore may I remind you that under the Consumer Credit Act (1974) Schedule 1 Punishments & Penalties your company can be summarily fined to level 4 which I believe constitutes an amount adjacent to £2,500, for failing to provide documents after the 12 working days plus 30 calendar days deadlines laid out in the CCA (1974). As previously mentioned this deadline ran out on 7th September 2007 and I can confirm for the record that I have received no documents from you.

 

Moving on then, it is therefore clear that on 9th August 2007 this account became unenforceable under law and no offers of payment will be made by myself to the account, as you have failed to comply with a request for a true signed copy of said agreement, and other relevant documents mentioned in it, and failed to send a full statement of the account and failed to provide a true copy of the Deed of Assignment, under the relevant sections of the Consumer Credit Act 1974. Further, I do not acknowledge any debt to your company or clients.

 

I require the following action from your company or client:

 

1. All payments made to date to any company for this account should be refunded in full, including interest at the rate of 8% per annum.

 

2. Removal of all defaults entered by your company or its clients. Note this is to be a complete deletion and not merely an amendment.

 

3. I look forward to compensation under Section 13 of the Data Protection Act 1998 to be offered for the processing of my data in the manner it has been done over the past number of years.

 

4. After a full refund of all payments with interest and compensation are received by myself, you will be required under Section 10 and Section 12 of the Data Protection Act 1998 to cease and desist all manual and automatic processing of my data within your company and any other company within your group.

 

If you do not respond positively to my request, court action may be taken under Section 14 of the Data Protection Act 1998 to force your company and / or your client or any other company within the group to comply with the refund of all monies paid, removal of all defaults maintained and compensation for damage and distress as a result of unlawful data processing. I may also pass the matter to the relevant enforcement authorities including, but not limited to, the Financial Crime Branch of HM Treasury, the OFT, the Information Commissioners Office, Trading Standards, the CSA, the FOS and my local MP.

 

I look forward to your reply within 14 days to resolve the matter amicably and I would appreciate your due diligence in this matter.

 

I await your rapid response.

 

 

With thanks to PT and CB for their help on this one, i will keep you advised.

 

Any comments welcomed on the letter before i send it.

[albertini]

I have now received a large pack of info from these people.

 

Included is an agreement signed by me, statements and deed of assignment. I have included links to the agreement and the statements.

 

First of all can any of the experts advise if this agreement copy is kosher? It looks it to me but any advice would be appreciated.

 

Secondly if it is ok then I need to look at the charges and I have included links to these.

 

Can anyone advise exactly about penalty charges? Can you reclaim the full amount or a partial amount over an acceptable level of charges?

 

I also have a letter from them denying they went into default on the CCA request because they allegedly didn’t receive my second letter to them, which reconfirmed the CCA request. However I do not accept this as my first letter, which they queried was a clear request.

 

Finally can anyone advise a strategy for me going forward with these people?

 

 

http://i225.photobucket.com/albums/dd138/albertiniwonk/letter.jpg

http://i225.photobucket.com/albums/dd138/albertiniwonk/Statement1001.jpg

http://i225.photobucket.com/albums/dd138/albertiniwonk/Statement2001.jpg

 

http://i225.photobucket.com/albums/dd138/albertiniwonk/Agreement001.jpg

[albertini]

Shameless bump!!

 

Any one offer any advise on whether the agreement is ok and any general advice about my next move?

[pt2537]

Hi

 

sorry i havent had a look before but ive been veryvery busy over the last day

 

i will take a look and see what we have

 

regards

paul

[albertini]

Thanks! Look forward to hearing from you.

[pt2537]

No worries

 

ive asked someone to take a look and give us a second opinion.

 

at the end of the day the main thing we need to do is make sure that you get the correct info so bear with us

 

regards

paul

[sequenci]

I cannot make my peace with those fees being added to the total charge for credit (ala Wilson case). I think you need Peter to give this the once over, I'm really confused!

[Curlyben]

OK the agreement looks good and enforceable.

Now I would get a S.A.R - (Subject Access Request) into the original creditor and look at the charges that will likely of been applied to this account.

 

For Marlin send them this AFTER you have sent the SAR:

 

 

 

 

ACCOUNT IN DISPUTE

 

Dear Sir/Madam,

 

Your ref:

 

 

Thank you for your letter of **DATE**, the contents of which are noted.

 

 

I am disputing the total value of these debts with **BANK** due to unlawful and unreasonable charges. As such, therefore, I consider this account to be in dispute and no further action shall be taken until this matter is resolved.

As per OFT guidelines Section 2.8k "not ceasing collection activity whilst investigating a reasonably queried or disputed debt."

 

This process may take some time, due to the Office of Fair Trading's test case, but I will try to expedite this issue as a matter of urgency.

 

I hope that you will enter into a sincere dialogue with me about this matter and I am writing this letter to you on the assumption that you would prefer to do this than merely respond with standard letters and leaflets.

 

I would appreciate your due diligence in this matter.

 

I look forward to hearing from you in writing.

 

Yours faithfully

 

**edit after reading Sequenci's response** yep get PeterBard to confirm that this is indeed enforceable.

[pt2537]

Hi Ben,

 

ive posted on a thread which i know peter is viewing asking him for his opinion so hopefully he will pop in shortly

 

regards

paul

[pt2537]

I cannot make my peace with those fees being added to the total charge for credit (ala Wilson case). I think you need Peter to give this the once over, I'm really confused!

 

Thanks for your help Sir

 

 

regards

 

paul

[albertini]

What has happened here is that they repossessed the car and then auctioned it off on the cheap. That refers to the £5150 “AUC” charge being subtracted from the balance on page 2 of the statement.

 

Here’s an interesting one though. The car was sold for approximately £5150 in 2005 at auction according to this statement, yet its real value was at worst £7000- £7500.

 

What’s the legal position on this? After all where is the incentive for the creditor to get the best price for it when he can come to the original debtor for the shortfall?

 

Can I argue that as the car has been undersold by around £2000 that should come off the figure?

 

I have just checked Parkers guide and the car today, in 2007, is worth the same £5150 that they sold it for 2 years ago!

 

In relation to the S.A.R - (Subject Access Request) request, is there any point? Doesn’t this statement cover all their charges? They only thing I would think I would need is the definition of the keys they put next to the charges to work out what each charge means.

[pt2537]

Hi Albertini

 

can you please do us a favour?

 

we are having difficulty reading hte financial figures in the financial details on hte left hand side

 

could you possibly type them up

 

ie

 

 

1. total cash price =

2finance deposit = 0000

 

 

etc

 

then we can get peter to go over it for you

 

regards

paul

[albertini]

Sure no problem. Here’s the details:

1. Total Cash price: £10,999.00

2. Finance Deposit: £0

3. Amount Financed (1+2): £10,999.00

4. Total Charge for Credit: £4,839.58

Made up of:

Finance Charges £4,674.58

Credit Facility Fee: £105.00

Title Discharge Fee: £60.00

5. Balance Payable (3+4): £ 15838.58

6. total Amount Payable (2+5): £ 15838.56

7. APR 16.62%

You will pay:

A first vehicle instalment of £366.23

Followed by 58 Monthly vehicle instalments of £261.23

Followed by a final vehicle instalment of £321.01

[pt2537]

thanks,

 

be back when we've a definitive answer

 

regards

paul

[albertini]

Thank you for all your help. Greatly appreciated.

[pt2537]

Hi Albertini,

 

im sorry but peter has come back with his opinion and after checking the figures his conclusion is that they are indeed correct

 

therefore as far as i can see this agreement is enforceable. as long as it was signed at the lenders premises

 

its probably not the news you were looking for but i cant find anything that we can use to argue against it

 

sorry

 

 

paul

[albertini]

Well it wasn’t signed at the lenders premises. It was signed at my office with the finance broker who arranged the deal.

What about the selling of the car at auction well below market value? Is that an area I can apply pressure on?

Also what about the penalty charges, can I reclaim those?

[shane5408]

Hi Albertini,

 

How was the agreement executed? By that I mean were you sent a copy to fill out and sign and then posted or took it back to the creditor to sign?

[pt2537]

right i have posed the question so lets wait and see what answers i get before we go any further

 

regards

paul

[albertini]

I was given an agreement to sign by the finance broker (not the lender) when I met her at my office. I signed it in my office and then it was taken away by the broker and she presumably mailed it off to the lender.

[albertini]

Why is this important? What angle are you considering?

[pt2537]

i think shane is thinking along the same lines as us with regards to the agreement being cancellable and a s64/s127 Am i right shane?

 

regards

paul

[shane5408]

edit: this is wrong, will post when i have corrected it!

[albertini]

ok let me think and try to be certain exactly what happened about signing it, as it is 4 years ago now and i've slept since then!!