Help please! cca not complied with now debt collectors involved

[Dollydoo]

Hi, I contacted TS but went thru to Consumer Direct. Anyway CD have passed my details on and I'm awaiting a phone call. Meantime, the fella at CD says they may not be able to help me as I might have cancelled out my original credit agreement by having had an arrangement with Halifax whereby I was paying them & they had frozen interest to help me. He said I should also speak to debt counselling, which I had already done - they advised I should try negotiating payment plan but Halifax kept refusing then ignored my letters totally which is why I went down the cca request route. Does anyone have any opinions on this? Please.

[Dollydoo]

anyone?

[Curlyben]

You need to raise this with TS.

CD are misleading you.

Remember no CCA = No enforceable debt.

[Dollydoo]

thanks. I'll wait for their call, see what they say and keep posting!

[Dollydoo]

I've still not heard from TS so i'll be contacting them today - CD said they should be in-touch with me within 4 days! Anyway I have today received from Halifax a bunch of summarised statements, dating back six years, but not all are present. their letter only says "I refer to your recent communication and enclose a copy of your statements. I hope this meets with your requirements". Are they really that thick or is it me? I asked for a copy of cca which they still haven't supplied. Would it be wise for me to send a polite reminder or just ignore Halifax now and let TS deal with them?

[ODC]

Halifax are well aware of their obligations under the CCA. Report them to TS for non compliance.

[pt2537]

Halifax are well aware of their obligations under the CCA. Report them to TS for non compliance.

 

Spot on ODC,

 

Dollydoo, its a call to trading standards that you need to mke

[ODC]

The bonus is that they cannot pass it on whilst in dispute

[The GodMother]

They can pass it on while it is in dispute but it may not stop them. I know one of my Disputed accounts has been ok it is to a in house DCA but it still has been passed on.

[ODC]

One of mine with Clownells was passed on to Red whilst in dispute. I know they are the same bunch but I refused to acknowledge Red because if this. Just me being bloody minded though.

[pt2537]

Just me being bloody minded though.

 

:osurely not ODC:):)

[ODC]

Its just something about our friends from Leeds that brings out the best in me

[Dollydoo]

I've just received a copy of my application, can someone take a look please and let me know if it's fully executed doc etc. Thanks and have a nice Crimbo!!

 

http://i118.photobucket.com/albums/o109/Robscoobydoo/halifax/halifaxappfront.jpg

 

 

http://i118.photobucket.com/albums/o109/Robscoobydoo/halifax/halifaxappback.jpg

[Dollydoo]

PS; I have signed it just edited out!

[pt2537]

MERRY CHRISTMAS

 

you have a completely unenforceable application form there:)

 

NO PRESCRIBED TERMS ANYWHERE

 

regards

 

paul

[Dollydoo]

Thanks for that bit of good news, I'm not usually that lucky ! So if it's unenforceable do I write back to them stating the obvious and are there any templates I could use? Thanks again.

[The GodMother]

Throw this at them. Amend as necessary.

 

Re: my request under the Consumer Credit Act 1974

 

Thank you for your recent letter sent to me, the contents of which are noted. I appreciate your quick response to my original letter. However, the reply received by me does not fulfil your requirements under the Consumer Credit Act 1974.

 

The Act demands that I be supplied with a true copy of any properly executed credit agreement that exists in relation to the above account. I may ask for this on demand providing that a fee of £1.00 is paid. This fee was sent with my original letter.

 

My request remains outstanding. An unsigned credit agreement with incorrect personal details simply printed onto it, like the one you sent in your reply, does not constitute a true copy of any credit agreement that may or may not have been signed by me on the opening of this account. A blank agreement neither confirms that I am liable for any alleged debt to you, nor gives me any chance to evaluate whether any original agreement was ‘properly executed’.

 

I still require you to send me a true copy of the original credit agreement that you allege exists. As you will know, under the Consumer Credit Act 1974, a judge is not permitted to make any enforcement order unless the creditor can provide a true signed copy of the original credit agreement. This means that unless you can produce such an agreement, this alleged debt is not enforceable in law.

 

You had until 31st May 2007 to provide me with the true copy I requested. You are now in default of my request. Any account I hold with you is now in legal dispute. Whilst the account remains in dispute, you are not permitted to ask for any payment, nor am I obliged to offer any payment to you. Furthermore, whilst the dispute remains, you are not entitled to charge any interest on the account, nor make any further charges to the account. Additionally, you are not entitled to register any information on this account with any credit reference agency.

 

To register information with a credit reference agency, you must have written consent from the customer to collate and share such information. This consent is given in the form of a signed credit agreement, so until you produce such an agreement, you may not do this.

 

The requirement for consent to share data is a clear requirement of the Data Protection Act 1998. any such attempts to share my data without my consent will be met with a complaint to the Information Commissioners Office

 

The time limits, which are laid down in the Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 are clear. You must supply an executed credit agreement within 12 + 2 working days of a proper CCA request. If you fail to comply with a legitimate request the account enters a default situation and if you fail to comply after a further 30 days you commit an offence. If you continue to try to enforce this debt without complying with my original request you will have committed a criminal offence and your conduct will be reported to the Office of Fair Trading, the Financial Ombudsman and Trading Standards. Any investigation undertaken by them may affect your ability to offer credit in the future.

 

To sum up, I will not be making any further payments to you until you provide me with the document I have requested. Whilst you remain in default of my request, you are not permitted to take any action against this account. This includes adding further charges and passing any information to the credit reference agencies.

 

Should you not have any signed credit agreement in relation to this alleged debt, please confirm this in writing to me.

 

 

I look forward to your reply.

 

Yours faithfully

 

Blah (type not sign)

 

Chrissi

[pt2537]

ACCOUNT IN DISPUTE

DO NOT IGNORE THIS LETTER

XX/XX/2007

Dear Sirs,

Account no xxxxxxxxxxxxxx

Re: my request under the Consumer Credit Act 1974

 

 

This account is in Dispute .

 

On xx/xx/2007 I wrote to xxxxxxxxx requesting that xxxxxxx supply me a true copy of the executed credit agreement for this account.

In response to this request I was supplied a mere application form which did not comply with the requirements of the Consumer Credit Act 1974.

 

The document sent purporting to be a credit agreement does not contain any of the prescribed terms as required by section 60(1) Consumer Credit Act 1974. The Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) made under the authority of the “1974 Act” sets out what the prescribed terms are, I refer you to Schedule 6 Column 2 of SI 1983/1553

 

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

 

 

 

Since this document does not contain the required prescribed terms it is rendered unenforceable by s127 (3) consumer Credit Act 1974, which states

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

This situation is backed by 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.

 

Further more, since the prescribed terms referred to above do not appear within the agreement you have supplied, the agreement is rendered totally unenforceable, as the prescribed terms must be contained within the agreement and not a separate document, case law confirms this opinion

 

I refer you to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

 

”[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated

consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting

the provisions of the two schedules the Judge said:

 

 

"33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which

are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the

minimum terms) are to be found in Schedule 1."

 

In addition should you continue to pursue me for this debt you will be in breach of the OFT guidelines, I draw your attention to the Office of Fair Trading’s guidance on debt collection

The OFT guidance which was issued July 2003 (updated December 2006) relating to debt collections and what the OFT considers unfair, I have enclosed an excerpt from page 5 of the guidance which states

 

 

 

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

 

As it stands, the document supplied by you is not a valid credit agreement nor is it enforceable by any court

 

What I Require

 

Firstly, I require all correspondence in writing from here on; any persistent attempts to contact me by phone will be reported to Trading Standards.

 

I require you to produce a compliant copy of my credit agreement to confirm I am liable to you, for this debt a mere copy of the same agreement will not suffice, if you cannot do so I require written clarification that this is the case. Should you ignore this request I will report you to the Office of Fair Trading to consider your suitability to hold a credit licence in addition to a complaint to Trading Standards, as you will be in breach of the Administration of Justice Act 1970 section 40

 

Since the agreement is unenforceable, it would be in everyone’s interest to consider the matter closed and for you to write the debt off. I suggest you give serious consideration to this as any attempt of litigation will be vigorously defended and I will counter claim for all quantifiable damages

 

I respectfully request a response to this letter in 14 days

 

I trust this out lines the situation

 

Regards

 

 

 

 

 

alternatively you could throw this at them and show them you mean business

 

regards

paul

[The GodMother]

Well yeah. Either are good.

[Dollydoo]

Thanks. But before I send the letter, (and i'm not questioning either of you!) but for peace of mind because I don't understand these things like you do:confused: I'd just like to clarify that the fact that I have signed the app. and that the interest rate is referred to on the back of it, the doc is still not adhering to the prescribed terms. Thanks again

[ODC]

If the doc does not contain the prescribed terms then it is totally unenforceable

[Dollydoo]

Hi everyone.

 

I sent Pt's letter advising Halifax that debt was unenforceable at begining of Jan and I've just received a letter from Blair Oliver etc. stating that they're pro dca instructed by Halifax to collect the debt and should make payment now or court action may be taken. Can someone advise me on my next step please - very much appreciated! Thanks

[tiglet]

BOS are part of halifax - send them this:

 

ACCOUNT IN DISPUTE

Dear Sir or Madam,

Account number: XXXX XXXX XXXX XXXX

 

 

I must admit that I am rather bemused as to why this account has been passed to yourselves, as it is in dispute with the **original creditor/DCA** and has been since DATE 2007.

Not only is this a breach of OFT collection guidelines, but also in breach of the CCA 74.

 

As **original creditor/DCA** are now in default of my Consumer Credit Act request, Subject Access request and have also breached s10 Data Protection Act request , I consider this account to be in SERIOUS DISPUTE.

 

As you are aware while my Consumer Credit Act request remains in default enforcement action is NOT permitted, under s127 this constitutes a complete defence at law.

 

Now I would respectfully suggest that this account is returned to the **original creditor/DCA** for resolution of these defaults and breaches, as **New DCA** cannot lawfully pursue any enforcement activities.

 

If **New DCA** chooses to ignore my dispute and attempt enforcement, I will initiate legal action and file reports with the appropriate authorities, including, but not limited to, Trading Standards, Office of Fair Trading, Information Commissioners Office, Financial Ombudsman Service and possible court action.

 

I hope that this will not be necessary and an acceptable solution can be accomplished.

 

I would appreciate your due diligence in this matter.

I look forward to hearing from you in writing.

 

Yours faithfully

BLAH

[The GodMother]

yep throw that letter and them and make sure it hurts

[Dollydoo]

Letter went recorded this morning! Thanks everyone, will keep posted.