Advise please,

[nickt1976]

Hi all,

new to YB forum (so be gentle with me). I am seeking advise to this situation.

 

On 29/02/07 I made a SAR to YB for 3 accounts:

 

1) Bank account

2)Credit Card.

3) Loan.

I have received statements dating back to 1996 for the bank acc, after sending numerous letters, (prelim off soon)

 

On 10/4/07 sent CCA for CC and loan,received them on 27/8/07 (I know, a long time) been dealing with DCA's They sent em to.

 

They have sent one application form for CC (unenforceable and a letter sent back to them telling them so) and an agreement (enforceable) for the loan . They said in the letter that they had included a statement of acc for both (which they hadn't included) I am wanting advise/a letter to send asking for all the other info, on the loan in particular, Has anyone got any advise, or a letter, or can point me in the right direction,as I am not very good at writing letters. Any help much appreciated

 

thanks in advance

nick

[stan5131]

With regard to non compliance of SAR request. You need to make a formal complaint with the Information Commissioners Office.You can download a complaint form from their website. Then write to creditor/dca and tell them they have not complied and as such you have escalated a complaint.

 

With regard to non compliance of CCA requests, you need to make a formal complaint to the Trading Standards office in their area. Same procedure.

 

Hope that helps.

 

Stan

[nickt1976]

Hi Stan,

Thanks for quick reply and info.

The signed statement of accounts are covered under Trading Standards (CCA). am I right in thinking this?

 

Will get on with these now, any more input great fully received.

 

nick

[stan5131]

Statements of account are covered in your S.A.R - (Subject Access Request) request. theY have not complied.

 

 

LETTER BEFORE ACTION

 

Dear Sirs,

 

Account Number: XXXXXX and XXXXXXX

NON COMPLIANCE - DATA PROTECTON ACT

 

On 29th February 2007 I sent you a Subject Access Request under the Data Protection Act. I included the prescribed fee of £10 and my request was received by you on XX/XX/XX (presumably you sent this recorded delivery and can put in the date). Under the terms of the act, you have 40 days in which to comply. Non compliance is an offence and compensationable in a court of law.

 

I am writing to advise that you have failed to comply. The data received from you was not only far outside the timescale allowed, but was incomplete. In particular I am missing:

 

1)

2) (LIST WHAT YOU ARE MISSING)

3)

 

As such I have escalated a formal complaint to the Information Commissioner. Further, if I am not in receipt of the missing data in the next 14 days, I will issue action against you for non compliance in the county court. At the same time, I will seek compensation, costs, and an order for compliance.

 

I trust this clarifies my position.

 

Yours faithfully

[nickt1976]

Hi stan,

 

Thank you for the above letter, much appreciated.

 

Sorry for delay in thanking you but been unwell, I still am but this needs to be done.

Dealing with several claims at the moment, it sends your head in a spin, without not feeling well.

 

One is your old friend, I see, Barclaycard (unenforceable agreement, application sent)

 

Thanks again,

nick

[nickt1976]

Hi again all,

LETTER JUST ARRIVED.

 

Sent YB a letter (unenforceable Credit card application sent back in response to CCA request made) on 11th December telling them that it did not conform to s.60(1) and 61(1) of the CCA and is unenforceable under s.127(3) of the same act.

 

Today the DCA collecting on this debt(CCA sent to them on 9th November,no reply yet)sent this: YorkshireBankVisaAccount.jpg - Image - Photobucket - Video and Image Hosting

 

Any advice/letter to send back, or should I just send now the letter in post4, supplied kindly by stan .

 

All advise, comments welcome.

 

Thanks in advance

nick

[nickt1976]

bumping up!

 

If anyone has any comments/advise to the contrary, or anything at all to add I will be sending stan5131 letter informing them of their obligations and advising of formal complaint to Information Commissioner.

 

Thanks in advance

nick

[pt2537]

Hey Nick,

 

so you've got troubles here to i see,

 

well, im sure given a day or so to get around to you, we could come up with a nice little reply for them

 

the idjits

 

regards

paul

[nickt1976]

Hi Paul,

Troubles in many areas my friend

 

SO GLAD YOUR HELPING ME WITH THIS:)

 

Didn't want to bother you cos I know how busy you are, but SO PLEASED:D

I'll not send this letter, but will wait for your guidance,(valued help)

 

will keep looking in

 

Thank you Paul

nick

[stan5131]

I refer to my letter dated {enter date} which was delivered via Recorded Delivery to your offices on {enter delivery date}.

 

The documents I requested should be readily available as proof of your legal right to collect this account.

Be advised that the document you have sent me is a copy of the application form and does not conform to requirements as prescribed by the Consmer Credit Act 1974.

 

 

In my letter of the {enter date} I made a 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 the Deed of Assignment. In addition a full statement of my account should have been sent to me detailing all debits and credits to the account from the time {debt agency name} purchased this account, along with any other documents mentioned in the 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.

 

The Consumer Credit Act allows 12 working days for this request to be carried out before your company enter 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 {enter date} and {enter date} respectively.

 

As you are no doubt aware, 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.

 

Therefore on {enter offence date} this account became unenforceable at law and no further payment will be made by myself to the account, as you have failed to comply with a request for a true signed copy of the 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 {debt agency name}.

 

I require the following action from {debt agency name} :

 

1. All payments made to date to {debt agency name} for this account should be refunded in full, including interest at the rate of 8% per annum.

 

2. Removal of all defaults entered by {debt agency name}. 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 {debt agency name} 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 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.

[stan5131]

If you have not made any payments to the dca, then remove those paragraphs relating to a refund.

 

Hope this helps.

 

Stan

[pt2537]

Dear Sirs,

Account no xxxxxxxxxxxxxx

Re: my request under the Consumer Credit Act 1974

 

I note that to date you have not complied with my request for a copy of the credit agreement for this alleged debt which you are pursuing me for

The Consumer Credit 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. Without production of the said agreement I am unable to asses if I am indeed liable for any alleged debt to you, nor does it give 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 xx/xx.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.

I note your threats to issue a default notice. Any such default notice that you issue under s87 (1) will be considered invalid per the Authority of Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255 and should you unilaterally terminate this agreement I will consider it an unlawful termination of the contract

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.

In addition to the above, your persistent attempts to contact me via telephone are harassment and are unwelcome. I respectfully request that from here on you only contact me in writing. Failure to abide by my request will place you in clear breach of the OFT guideline on debt collection and also s40 of the Administration of Justice Act 1970 which is a criminal offence

Notwithstanding the above, you are also a member of the Banking Code and are in breach of your obligations under the said code. Therefore I am considering making a formal complaint to the Banking Code Standards Board in addition to the regulatory authorities

 

To sum up, I will not be making any further payments to you until you provide me with the document I have requested as is my rights under the Consumer Credit Act 1974. 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

 

 

Hi Nick, an alternative letter for you,

 

i would consider avoiding any reference to requesting monies paid under the agreement to be refunded as it is highly unlikely this would be a realistic proposition

 

 

there is a very good thread which i would have a look at http://www.consumeractiongroup.co.uk/forum/general-debt/112860-will-you-get-payments.html

 

it explains why you wouldnt get the monies back

regards

paul

[pt2537]

Dear Sirs,

 

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

I note that to date you have not complied with my request for a copy of the credit agreement for this alleged debt which you are pursuing me for

The Consumer Credit Act 1974 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. All you have sent is a pre-contractual application form, which is illegible and therefore not compliant with the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557), your attention is drawn to regulation 2 (1) which sets out how copy documents must be presented

Notwithstanding the fact that the application form sent is illegible it does not contain the prescribed terms contained within Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553). Without production of a compliant executed agreement I am unable to asses if I am indeed liable for any alleged debt to you, nor does it give 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.

 

For the avoidance of any doubt I have included section 78(1) of the Consumer Credit Act 1974, which states…

 

78 Duty to give information to debtor under running-account credit agreement

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of [£1], shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a) the state of the account, and

(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

 

(6) 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.

(7) This section does not apply to a non-commercial agreement, and subsections [(4) to (5)] do not apply to a small agreement.

 

 

For an agreement to be properly executed it must contain certain terms and be signed by both debtor and creditor. The required terms are laid out in regulations (SI 1983/1553) and is covered by sections 60 and 61 Consumer Credit Act 1974

 

To clarify s61(1) states

 

(1)A regulated agreement is not properly executed unless—

 

(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and

 

(b) the document embodies all the terms of the agreement, other than implied terms, and

 

© The document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible

 

In addition the prescribed terms referred to in section 60 CCA1974 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.

 

Therefore based upon the Consumer Credit Act 1974 this debt as it stands is unenforceable and should this proceed to litigation, a court is precluded from making an enforcement order under section 127(3) unless a true copy of the signed agreement is produced. I will re-iterate that this is clearly not a true copy of the executed agreement between ********* and myself.

 

 

In addition, 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

 

 

What I Require.

 

I require that you send me a true copy of the executed agreement as required by the Consumer Credit Act 1974. If you are unable to supply the requested documentation because no such agreement is in existence I require written clarification as such.

 

I require that you comply with my request within 7 days of the date of this letter. I will not correspond any further with you until I either receive a copy of the requested documents as laid down in section 78(1) CCA 74 or clarification that such agreement doesn’t exist.

 

No other correspondence will be accepted

 

I trust this out lines the situation

 

Regards

 

 

or an alternative if you like, both would need to be amended to suit your circumstances

[nickt1976]

Hi Paul,

Hi Stan

 

Thanks so much for these letters. much appreciated.

 

I will be using letter one Paul, amended a little (threat of issuing of a default).

 

This account was defaulted in 2004, would I need to add anything else to this letter to make sure that they remove the default as there is reference to this in letter one 'Passing information to the Credit Reference Agencies'

 

Thanks Paul

nick

[pt2537]

hello nick,

 

 

you could include the sentence about the default removal, to be honest they will most certainly ignore it

 

to remove it you will have to press them a lot harder and may need to go to court to get it done, that said its not too hard to do

 

regards

paul

[nickt1976]

Hi Paul ,

thanks for reply

 

I looked at both letters and have included the default bit.

 

Will see what happens, will keep you posted on this and Barclays

 

If I don't hear anything before, have a great Christmas and i hope you and the family have a very prosperous New Year.

 

Thanks for the help and support

 

Merry Christmas and a happy New Year to all the other caggers too

 

nick and family

[nickt1976]

hi Paul.

hi everyone,

 

UPDATE

 

Here is a letter YB sent this morning in response to the letter sent regarding unenforceable agreement any help/comments very much appreciated as to a reply to them.

 

http://s241.photobuck

et.com/albums/ff274/thesquidward/?action=view&current=ybresponse.jpg

 

thanks in advance

 

nick

[nickt1976]

bumping this up, any advise anyone?

[pt2537]

hey nick

 

ive just tried to look at what they sent and its not letting me for some reason so if you can check the link and post the letter again i will have a look

 

regards

paul

[nickt1976]

Hi Paul,

 

can't get link going sorry, but here is the letter they sent,

 

"I refer to your letter dated (the last letter sent, as post12 & 13)unfortunately not received at this office until 15th Jan 08.

 

May I refer you to our previous letters ( post 6 unenforceable agreement) which I believe have addressed your request.

 

Therefore I can confirm that by supplying you with the copy APPLICATION, Terms and Conditions (credit agreement) and an up to date statement (not supplied), we have fulfilled our obligations to you in relation to the Consumer Credit Act 1974.

 

As advised in our letter, the Bank will continue to pursue you for the balance outstanding and I recommend that you contact Brunswick Collection Services Limited (DCA) to arrange repayment of this debt.

 

I trust this clarifies the matter and thank you for taking the time and trouble in bringing this matter to my attention".

 

Thank you in advance

 

nick

[nickt1976]

Hi all,

 

I'm bumping this up, it's been a while (been busy with Lloyd's getting a stay lifted hopefully)

 

and they have now sent a default notice about the loan account, despite the fact that all I've got from them was the agreement(enforceable)PPI was on it, nothing else, no statements,payments made,charges nothing. Will post default notice later if anyones wanting a look.

 

Yesterday I drafted a letter to them for this account (will be sending it Monday) for mis-sold PPI, the charges I can't do as I have no information

 

Incidentally this account was defaulted in 04 and now they have defaulted it again can this be right? as this debt is in dispute. Can anyone give me advise on this

 

thanks in advance

 

nick

[nickt1976]

Hi all,

 

Can anyone help with the two previous questions? and today the dca collecting on the (unenforceable agreement) Credit card sent this

brunswickyb.jpg - Image - Photobucket - Video and Image Hosting

 

 

Please any advise would be appreciated

 

Thanks in advance

 

nick

[pt2537]

Hey Nick

 

ive just tried to recap on the agreement and its gone

 

i will have a quick check with Curlyben, he has a wealth of templater letters on file and im sure he has one to suit this

 

regards

 

paul

[Curlyben]

As if by magic The Liberian appears

 

Throw this at them

 

Edit as needed

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 Consumer Credit Act 1974 and Data Protection Act 1998

 

My last letter from **original creditor/DCA** was DATE and intimated that my complaint would be

resolved on **DATE**, this obviously hasn’t happened.

As **original creditor/DCA** are now in default of my Consumer Credit Act request, OFT Collection Guidelines, *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.

 

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

 

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.

 

After taking advice, I am of the opinion that any continued pursuit is in violation of the Administration of Justice Act 1970 section 40 as well as breaching a number of the OFT Collection Guidelines

 

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

*- Delete as needed

Enjoy

[nickt1976]

Hi Paul and Curlyben,

 

Thanks for your replies, as ever, MISTER(S) RELIABLE.

 

Thought nobody was going to answer, so I left it a while and got on with other dca/creditors/parasites etc...

 

Will send this tomorrow and oh,one to another DCA that got in touch Saturday morning(thanks Curlyben)

 

Thanks once again to you both for your help and support

 

Curlyben hope your not having too many sleepless nights with your new addition ? CONGRATULATIONS

 

nick