YB Threatening to default on CC Account

[Alphageek]

Hello everyone.

 

I have a thread running about YB here and have sent them a CCA request to which they sent me a copy of an application form. Well past their 12+2 to comply and further 30 to have committed and offence.

 

They have now issued me with a default notice.

 

Would someone let me know if this notice complies with the regulations as to form and content please?

[Timsta]

It matters not one wit whether the default notice is in a compliant form. They cannot default you while they themselves are in default.

 

Perhaps write to them and remind them that they are in default and then report them to TS.

[Alphageek]

Thanks, I understand that.

 

I think if I let them register the default it will add to my case when I issue Court proceedings.

 

Default registered whilst they were in default and the notice was not in correct form.

 

That is the angle I am looking at.

 

Right now I don't care if they do register the default with the CRAs - I have other card accounts where I am in the process of reclaiming charges and removal of incorrect CRA data. So another one will make little difference right now

[Alphageek]

Having looked at my correspondence, I have not sent them a letter telling them that I think what they sent me in reply to my CCA request is a load of rubbish.

 

I know I am not obliged to do this.

 

Any thoughts anyone?

[pt2537]

Hi there

 

the Credit agreement is pants, completely unenforceable as it stands

 

so the default notice is pointless, as it cannot be enforced as it stands because there are no prescribed terms within the agreement

 

LETTER BEFORE ACTION

DO NOT IGNORE THIS LETTER

XX/XX/2007

Dear Sirs,

Account no xxxxxxxxxxxxxx

Re: my request under the Consumer Credit Act 1974

 

 

I note that you are acting as agents to Barclaycard therefore I draw your attention to the facts below.

 

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 for the definition of what is required. Suffice to say none of the terms are present in the document

 

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.

 

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

 

In addition to the above, I note you have recently sent me a Default Notice under S87 (1) Consumer Credit Act 1974. I am sure you are aware a Default Notice is needed before a creditor can terminate the agreement or demand repayment. However the default must be accurate and comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561).the Default Notice you supplied cannot be accurate since you have failed to discharge your obligations under section 78 CCA 1974 and therefore you are not permitted to take any enforcement action while this default continues

 

There is a body of case law, which has confirms that where a statutory default notice issued under section 87(1) not compliant with the Consumer Credit Act 1974 and the subsequent Regulations it does not allow a creditor to terminate the agreement or demand repayment etc. In addition your attention is drawn to the fact that 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 termination of contract which would not only prevent a court enforcing any alleged debt, but give me a counter claim for damages via the ruling in the case of Kpohraror v Woolwich Building Society [1996] 4 All ER 119

 

Therefore you would be rather foolish to attempt to add any adverse data to my credit file while this account is subject to a Serious Dispute

As it stands, the document supplied by ********** 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 or any organisation, which you represent for this alleged debt, 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 and the default notice is non compliant, it would be in everyone’s interest to consider the matter closed and for your client 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

 

i would consider throwing something along those lines at them

[Hippy-chick]

Hi alpha

 

LOL Paul - posted before me and better, as ever.

[Alphageek]

Paul, you're a star and thanks as well Hippy.

[Alphageek]

Just noticed that the 16th (the day they want me to pay up by) is a Sunday. Sneaky!

 

Will send this special delivery in the morning.

 

Address

 

 

Date: 12/12/2007

 

 

Yorkshire Bank

Collections Centre

PO Box 650

LEEDS

LS1 9BG

LETTER BEFORE ACTION

DO NOT IGNORE THIS LETTER

 

Dear Sirs,

 

Account no xxx

 

 

Re: my request under the Consumer Credit Act 1974

 

I draw your attention to the facts below.

 

This account is in Dispute.

 

On [some]day, xx May 2007 I wrote to you requesting that you 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 for the definition of what is required. Suffice to say none of the terms are present in the document you supplied.

 

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.

 

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

In addition to the above, I note you have recently sent me a Default Notice under S87 (1) Consumer Credit Act 1974. I am sure you are aware a Default Notice is needed before a creditor can terminate the agreement or demand repayment. However the default must be accurate and comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561). The Default Notice you supplied cannot be accurate since you have failed to discharge your obligations under section 78 CCA 1974 and therefore you are not permitted to take any enforcement action while this default continues.

 

There is a body of case law, which has confirmed that where a statutory default notice issued under section 87(1) is not compliant with the Consumer Credit Act 1974 and the subsequent Regulations it does not allow a creditor to terminate the agreement or demand repayment etc. In addition your attention is drawn to the fact that 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 termination of contract which would not only prevent a court enforcing any alleged debt, but give me a counter claim for damages via the ruling in the case of Kpohraror v Woolwich Building Society [1996] 4 All ER 119.

 

Therefore you would be rather foolish to attempt to add any adverse data to my credit file while this account is subject to a Serious Dispute.

 

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

 

 

What I Require

 

I require you to produce a compliant copy of my credit agreement to confirm I am liable to you for this alleged debt. 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 and the default notice is non compliant, it would be in everyone’s interest to consider the matter closed. 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 outlines the situation?

 

Regards,

Mr A Geek

[Hippy-chick]

Hi Alpha

 

I hope that's not your real account number in that letter?

[Alphageek]

Erm, what account number?

 

Thanks.

[Hippy-chick]

Nae bother Alpha

 

[Alphageek]

Right, all printed and sealed.

 

Thanks peeps. Will update this on my main thread from now on.