action to take after s.77/s.78 CCA non compliance and being chased for debt?

[tifo]

All my DCA's have now gone over the 12 w/day + 30 days time for complying with a CCA request. I stopped payments to them last month.

 

What should i do now?

 

I have the 'non-compliance' letter from the forum i can send, but what else do i ask for?

 

I am thinking :

 

1. Refund of all monies paid plus interest?

 

2. Any compensation for the fact that they never had the legal right to take money from me?

 

3. Cease and desist processing of all my data after they have refunded me and paid compensation?

 

4. The two accounts i have a CCJ with i still pay as don't wanna upset court. But after non-compliance, what now?

 

Any advice would be appreciated.

[kennyparkroad]

wouldnt know where to start, but sit tight, someone with more knowledge will come along!

[dannyboy660]

Tifo,

 

That sounds like excellent news and I'm extremely pleased for you - particularly as I believe your number one target was the arch enemy, Lowell.!!!!

 

Now the full term has passed, I think they are on extremely dangerous legal ground if they attempt to collect a debt they have not proven that they own and can lawfully collect. They have no more right to demand money from you now than......someone you've never met before, or had any dealings with whatsoever. I guess that just officially makes them thugs, demanding money with menaces.!!

 

This new ground isn't it??. I think we've been over the theory before in other places, but I'm not sure if anyone has actually taken it further.

 

There must be a way now to get them to pay back the money they have already taken from you. Is this one for Smalls Claims, perhaps?? I'm not sure.

 

I take it Lowell informed you they owned the debt, and were not merely collecting on behalf of someone else???

[dannyboy660]

"I take it Lowell (assuming it is Lowell) informed you they owned the debt, and were not merely collecting on behalf of someone else???"

 

The reason I ask is to make sure they don't have an 'opt-out' by claiming they were only ever collecting on behalf of a client.

 

Would they, or could they pass the debt (+ paperwork if they have it) to someone else, or even another Company in Lowell Group??

 

This may be one which requires quick action to put a stop to anything shady that might be coming up.

 

It might be a good moment to involve OFT, you may catch them out in a big way!!!

[tifo]

That sounds like excellent news and I'm extremely pleased for you - particularly as I believe your number one target was the arch enemy, Lowell.!!!!

 

This new ground isn't it??. I think we've been over the theory before in other places, but I'm not sure if anyone has actually taken it further.

 

Lowell is one of the DCAs (they have two accounts of mine) but theirs' is a long story which you can read in my thread. They have already been reported to the OFT, ICO and CSA and have been very naughty with one of my accounts (entering too many defaults).

 

Out of the others, a few have said they've passed the accounts back to the original creditor and i've then asked them to explain why they have defaults entered in their name on my credit files if they never owned the accounts.

 

As far as i know, most of my accounts were assigned and a few were with banks which have been passed back now.

 

I see compensation under the DPA s.13 from most of them as they have all messed up somewhere, especially the ones now trying to send the accounts back when they've actually purchased them.

 

I've asked some of them for lots of lovely compensation and want them to offer me a decent figure, otherwise i'll let the court decide.

 

I'm also not sure what others have done at this stage apart from sending the 'non-compliance' letter and thats why i've asked here.

[gizmo111]

I have the 'non-compliance' letter from the forum i can send, but what else do i ask for?

 

Which letter is this?

 

1. Refund of all monies paid plus interest?

 

Somebody claimed for this and the judge refused on the grounds that any monies paid voluntarily to a debt that exists although not enforceable are not recoverable. It is in one of the long CCA threads.

 

2. Any compensation for the fact that they never had the legal right to take money from me?

 

All the absence of the CCA means is that the debt is unenforceable - not that it was entered into illegally.

 

3. Cease and desist processing of all my data after they have refunded me and paid compensation?

 

Doubt you will get a refund - see above - but you can try the stopping processing route.

 

4. The two accounts i have a CCJ with i still pay as don't wanna upset court. But after non-compliance, what now

 

Nothing changes, your chance to object was when the debt was in court - all a lack of CCA does is make the debt unenforceable - these ahve already been enforced.

[dannyboy660]

You may already be aware of this, but just in case

 

Lesson One [creditrepair.blog-city.com]

 

"So you sent a consumer credit agreement request letter, and the £1 fee, 12 days passed nothing, 30 days passed nothing, what now ?

After this time the debt is unenforceable, and the company has committed a criminal offence under the consumer credit act 1974, for failing to comply with your request, before taking any further collection action, the company would have to apply to a court, which they do not do, as the courts do not look favourably upon companies who have already committed criminal offences".

 

 

 

That's very strange, because I thought the Criminal offence was to pursue a debt AFTER they had failed to prove legal ownership, so it looks like you are on a winner.

 

Lesson 4 states you can get the debt wiped out and removed from your credit file, but there is no mention of getting monies already paid returned, I have my doubts that would possible as you paid while the debt 'existed' and you acknowledged it.

 

It also says you should report them to OFT.

 

All the best.

[tifo]

Which letter is this?

 

Theres letters in various threads that some posters have used to send to a DCA after the 42+ days. I meant one of these that simply tells them they are now in default and offence, and to stop processing all data etc.

 

However, i meant compensation under S.13 of the DPA and for a court to decide what to award, much like what tbern123 is doing with Cabot in his thread. After all, if a company is unlawfully processing data which contravenes the DPA, s.13 allows for me to claim compensation.

[tifo]

That's very strange, because I thought the Criminal offence was to pursue a debt AFTER they had failed to prove legal ownership, so it looks like you are on a winner.

 

Lesson 4 states you can get the debt wiped out and removed from your credit file, but there is no mention of getting monies already paid returned, I have my doubts that would possible as you paid while the debt 'existed' and you acknowledged it.

 

It also says you should report them to OFT.

 

All the best.

 

Thanks.

 

There is an offence committed after the 12 w/days + 30 days. It is a seperate matter to pursue the debt then. Basically if they get taken to court after say, 50 days and a judge fines them etc that is when it becomes an proper offence. Before that it is an offence but one without any action on it.

 

Imagine you stealing. Now that is an offence in law but it is only when you get caught and come in front of a court that it becomes criminal. You can steal away and away until you get caught.

 

Lesson 4 is good info. I might try that and get them to remove the default and stop processing my data, and pay me compensation under DPA s.13 for their entries. Its not gonna be easy though.

 

As for asking for money back, i paid it because the DCA 'duped' me into thinking they had a legal right to the money as they had legally bought the debt and have all the documents to prove it. Therefore they acted unlawfully and it was only under duress and the repeated phone calls and threats of court action that forced me to pay. This is true for most of us here who have paid or pay the DCAs.

[humbleman]

All my DCA's have now gone over the 12 w/day + 30 days time for complying with a CCA request. I stopped payments to them last month.

 

4. The two accounts i have a CCJ with i still pay as don't wanna upset court. But after non-compliance, what now?

 

Any advice would be appreciated.

 

For clarification, did you CCA'd them on the account they already have CCJ's.

[tifo]

For clarification, did you CCA'd them on the account they already have CCJ's.

 

Yes, i did and the still have nothing. But i have been told on here that since i accepted the debt at court, i cannot do anything now.

 

My argument that i was not aware of my rights at that time is no defense i am told.

[tifo]

This is the letter i am thinking of sending : its for Cabot but the same applies to all DCAs. Can someone give it the go-ahead?

 

I refer to my letter dated xxxx which was delivered via Recorded Delivery to your offices on xxxx

Your reply to this was received a week later stating you have contacted xxxx regarding my request. However, I understand that this account was assigned to Kings Hill (No 1) Ltd, now known as Cabot Financial (UK) Ltd and the documents I requested would be readily available as proof of your legal right to collect this account.

 

In my letter of the xxxx 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 Kings Hill (No 1) Ltd purchased it and Cabot Financial (Europe) Ltd was appointed to manage it, along with any other documents mentioned in the credit agreement.

 

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 xxxx and xxxx 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 as on xxxx this account became unenforceable at law and it is now my intention to refer this matter to the enforcement authorities.

 

Any default notices or adverse comments your company have recorded on my credit reference file should be immediately removed and not merely amended.

 

All payments made to date to Cabot Financial (Europe) Ltd for this account should be refunded in full, including interest at the rate of 8% per annum.

 

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.

 

After confirmation of the removal of all defaults, a 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 Cabot Financial (Europe) Ltd, Cabot Financial (UK) Ltd or any other company within the group to comply with the removal of defaults entered, refund of all monies paid and compensation for damage and distress.

 

I look forward to your reply within 14 days to resolve the matter amicably.

[humbleman]

Yes, i did and the still have nothing. But i have been told on here that since i accepted the debt at court, i cannot do anything now.

 

THats the reason why I wanted clarification, since there is already a judgment your first course of action would be to have the judgment set aside and then argue the case. AS long as the CCJ is there there is no question of dispute, IMO

[tifo]

THats the reason why I wanted clarification, since there is already a judgment your first course of action would be to have the judgment set aside and then argue the case. AS long as the CCJ is there there is no question of dispute, IMO

 

What grounds can i state for the judgment to be set aside, as all advice on this forum from respected and knowledgeable members states nothing can be done now, as ignorance of your rights and the law is not a defence and the chance to defend was at court?

[humbleman]

When did they obtain the CCJ?

[tifo]

When did they obtain the CCJ?

 

one just under 12 months, a few over that. Why, does time make a difference?

[tifo]

i just thought ...

 

is it better to keep quiet and let them not chase me anymore, or take a risk and take action against the DCAs?

 

it could be that if i take action in court (or they might even take action against me) then the judge may agree that the debt is enforceable and i have to pay it, despite their CCA s.78 non-compliance.

 

if i keep quiet, i may not have to pay any money as they have non-complied and may also want to keep quiet. The loss to me is the default still registered and the debt still 'open'. The DCA could sell it onwards.

 

however, if i take action then this might kickstart the DCA into a reaction as well and i may end up with a CCJ and nothing gained at all.

 

after all, it is not certain that a DCA will not enforce court action despite their s.78 non-compliance as at court the remit would be the debt and not their criminal offence.

[ecobabe]

there is case law that prevents the debt being enforced even by the court if the original agreement cannot be produced. regardless of history of payments etc. If they produce the agreement after the period then they can have it enforced in court, but only if they have the agreement. As for the ccj you can apply to have it set aside if you can show that part of the debt was made up of unlawful penalty charges

[gizmo111]

there is case law that prevents the debt being enforced even by the court if the original agreement cannot be produced. regardless of history of payments etc. If they produce the agreement after the period then they can have it enforced in court, but only if they have the agreement.

 

The CCA states quite clearly that they cannot enforce the debt in the absence of the agreement.

 

As for the ccj you can apply to have it set aside if you can show that part of the debt was made up of unlawful penalty charges

 

This has been done before, but the danger with this is they could apply for a CCj under the new amount and the 6 year clock will start ticking from the time of the new CCJ.

 

if i keep quiet, i may not have to pay any money as they have non-complied and may also want to keep quiet. The loss to me is the default still registered and the debt still 'open'. The DCA could sell it onwards.

 

however, if i take action then this might kickstart the DCA into a reaction as well and i may end up with a CCJ and nothing gained at all.

 

The debt is unenforceable through court in the absence of the agreeemnt, however they could at any time locate that agreement (and it has happened months down the line) and then enforce it through the courts.

 

I personally would see what charges are due, and make a full and final offer to the debt. At present you hav the advantage.

[tifo]

thanks gizmo ...

 

ecobabe, if you have details of the actual case law or can pass me onwards then it might be useful to me and a lot of other members.

 

i haven't received any charges back yet, but they are in process. Until i get these, i don't have the funds to make any offers to anyone.

 

however, as a lot of the debts have been sold to a DCA, i want any payment to come to me so i can then make an offer to the DCA. This is only after the DCA prove they own the debt by complying with the CCA s.78 request. If they don't, then why should i offer them anything but instead let them write off the account. Over the past 3/4 years, i've probably paid them more than they bought the debt for anyway. It's a business risk they take when they buy the debt, that some will pay and some will have to be written off.

[gizmo111]

If they don't, then why should i offer them anything but instead let them write off the account. Over the past 3/4 years, i've probably paid them more than they bought the debt for anyway. It's a business risk they take when they buy the debt, that some will pay and some will have to be written off.

 

Irrespective of what they bought the debt for you still spent it and therfore owe it.

 

I would negotiate F&F whilst you are in he driving seat and as part of the F&F request default removal/adverse entries to be removed.

 

Your choice - just what I woudl do.

[ecobabe]

it's Wilson v somebody..can't remember but if you check the general thread and "consumer credit act agreements" search for Wilson and you'll get it.

[tifo]

Irrespective of what they bought the debt for you still spent it and therfore owe it.

 

Yes, i understand that.

 

But, i have spent the money with the original creditor, not the DCA. I may have owed the money but only to the bank. They then gave up that right to collect when they sold the debt to the DCA.

 

If they have no legal right to collect as they can't prove ownership, then under what reason am i paying them?

[M.Willows]

Hi

Have had three different DCA not comply , but still think it is wise to do a S.A.R aswell for agreements to make sure they do not have it before taking things further.Hope this helps:)

[tifo]

ok, thanks.

 

i have sent the letter detailed in my previous post, with some amendments, to all the DCAs.

 

I have told them all they have defaulted and committed an offence and i will stop all further payments, except for the ones i have a CCJ for, i just mentioned the default and offence, as i'll carry on paying.

 

i understand about doing a SAR request, but that takes a further 40 days and they have already defaulted and committed an offence under CCA s78(1) and (6) anyway. They'd still have to explain at court why this happened.