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

[PriorityOne]

Subscribing....

[themadcap]

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.

re: the ccj's - as you're already paying them and have acknowledge via court that they were your debts you have to carry on paying them the cca request dosen't have an effect on them like it does with the open debts currently with DCA's

Dont know if this has already been answered but thought id add my tuppence!!!!

cheers

[tifo]

even with the CCJ's, they still sent a letters stating they are asking the creditor for the documents, when in fact they are the creditor as they have bought the debts (CCJ is in their own name).

 

I still sent the letter telling them they're in default and offence.

 

with one DCA i was paying on a CCJ, they now say they have sent the debt back to the bank as they cannot supply the documents, so i don't really have a payment method now from the bank.

[tiglet]

subscribing

[kennyparkroad]

me too

[InKogneeToh]

 

 

 

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. I think you may be referring to my case but in that instance I had produced the agreement to show that it had been improperly executed and the defendant was the original creditor - who could show that he had a valid (although unenforceable) agreement with me. In the case of a DCA, I think it's a different matter altogether - they first have to prove that THEY are now the new party to the agreement and without a copy of the agreement AND proof of lawful assignment of the entire agreement (not just the debt) how are they going to do that? If I had paid money to a DCA who could not prove the right to collect I'm sure I would have got it back.

 

 

 

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

 

 

 

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

 

 

 

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. But the debtor could argue that at the time the DCA sued under the agreement he believed that the DCA had the right to sue but now believes that there was no right (if no copy agreement or deed of assignment produced) This would be a

good reason, IMO to have the CCJ set aside.

 

Regards, Pam

[tifo]

thanks Pam,

 

i think you are right and i have stated the same thing many times.

 

on form N244, no 9 is a valid reason in this case "Did you agree with the full amount of the judgement at the time, but now only agree with part of the amount?"

[tifo]

all i keep getting from DCAs are non-readable application forms (apart from my writing) and the 'credit agreement' parts also have dates stamped on them, making them invalid?

 

I assume this is not an executed agreement, but the DCAs seem to think it is. It may be that a lot of these application forms are 'credit agreements' as they state this at the top of the application form, but when do they then become executed? When the creditor signs, or when i first use my card or when?

 

I have received one today for an A&L card i had, but apart from the parts i filled in, it is unreadable. At the top it also has the last part of someone else's employer and card details, and the box for A&L to date and sign is blank. So, they've given me two cards (Diamond and Moneyback) but they did not sign on their own behalf. What now?

 

Anyone help as it depends on what action i need to take now.

 

If i take them to court or get taken myself, am i safe in saying they have definitely not complied?

[tifo]

Anyone Help?

[InKogneeToh]

all i keep getting from DCAs are non-readable application forms (apart from my writing) and the 'credit agreement' parts also have dates stamped on them, making them invalid?

 

I assume this is not an executed agreement, but the DCAs seem to think it is. It may be that a lot of these application forms are 'credit agreements' as they state this at the top of the application form, but when do they then become executed? When the creditor signs, or when i first use my card or when? An agreement becomes executed when both parties have signed it.

 

I have received one today for an A&L card i had, but apart from the parts i filled in, it is unreadable. At the top it also has the last part of someone else's employer and card details, and the box for A&L to date and sign is blank. So, they've given me two cards (Diamond and Moneyback) but they did not sign on their own behalf. What now? If this appears to be an actual copy (scan/photocopy) of the original document, be it deemed application or agreement, then the lack of signature by the creditor would make it unenforceable without a court order. If it does not contain all of the prescribed terms (amount of credit or credit limit/interest rate/repayment terms) then it is totally unenforceable. But a copy under s77/78 does not have to show the sigs!

Anyone help as it depends on what action i need to take now.

 

If i take them to court or get taken myself, am i safe in saying they have definitely not complied?

 

Hi Tifo

 

It is possible that an application form would be enforced by the court as an agreement IF it contained all that a regulated agreement should. This would be the court's discretion under CCA s127(3). However, if the original copy doc is as unreadable as the copy they have sent you and if the only copy they have has someone else's details also on it then this would influence the court's decision IMO.

 

I personally would write back and ask for a copy of the actual executed regulated credit agreement that you 'allegedly' signed. You could point out that in order for them to identify the correct document they need to look for the one that had all the prescribed terms, other required terms and statutory notices of rights and remedies on it!! :lol:

 

Regards, Pam

[tifo]

i have scanned the copies i received and have started a new thread for this as it is to do with Tessera/Rockwell/A&L specifically.

 

Have a look here http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/76884-tifo-tessera-rockwell-re.html

 

Thanks.

[tifo]

many of the DCAs that write back now state that the account 'is enforceable' even after s.78 non-compliance and after sending illegible application forms without any prescribed terms.

 

They also state 'we will refer to our client', 'our client has told us to carry on' etc etc. This is despite them having been assigned the account and maintaining their own defaults.

 

So, i am confused as to why they state this and can they return the account back to the bank, meaning the cycle starts all over again and it is more difficult to refuse to a bank after you have been using their credit card!

 

Then we have Cabot and s.136 of the LoP 1925 where they have bought the 'rights' but not the 'duties' so are not the creditor. So I owe them money but for everything else i go to the bank! And they have been maintaining their own defaults as well.

 

I don't understand how an account regulated by the CCA 1974 and DPA 1998 (which is what i signed up to) can then be sold and they collect under s.136 of the LoP 1925. How does the LoP 1925 allow them to process my data and does the CCA 1974 say anywhere that this can be done?

 

(I have been reading all the excellent Cabot threads and have sent a few letters back disputing their statements).

 

So, are the DCAs in both the above cases bluffing?

[InKogneeToh]

Hi tifo

 

If a DCA were to return an account to the original creditor because they could not produce a copy of the agreement or could only produce a defective one, it wouldn't make one jot of difference to the situation.

 

If the original creditor could not provide the DCA with a suitable copy of a properly executed agreement at their request, they are not going to be able to do so in order to enforce the debt themselves.

 

As for Cabot and their LoP excuses - I think they may well be in for a nasty surprise!! Keep an eye on tbern's thread as he is in the ring with them and the first round is imminent!!

 

Regards, Pam

[tifo]

Thanks Pam,

 

Yes, i agree that if the bank can't supply it to the DCA then why will they be able to for me.

 

But my question was can the DCA do this as i thought once the debt is sold, it is non-returnable? To have it returned does not make good business sense for the bank as they have to write off a large chunk to sell it and would make a win-win situation for the DCA. They can buy debts and then return the ones they can't collect on.

 

I don't want my accounts returned to the banks because i am claiming back charges from them and want the money given to me so i can negotiate with the DCA (once they prove they own it).

 

There is also the question of defaults which DCAs maintain and if they did not legally own the debt then how and why are they doing this?

 

A DCA cannot simply return the account to the bank and say thats the end of it from us, as they try to do. They have acted on these accounts and have to 'pay' the price for this.

[InKogneeToh]

Hi tifo

 

I really don't know the answer to your question. I guess it might depend on the original sale contract between the two.

 

Either way, if the DCA and bank cannot supply the agreement then I don't see how the bank could pay your refund of charges to the DCA because neither would be able to prove you owe anything under the agreement.

 

As to the defaults, the argument is that you cannot have defaulted under a non-existent agreement! Especially in relation to the DCA, you have NEVER had a contract with them under which you could have defaulted. Their only basis for a contract with you is as assignee under a credit agreement - but what agreement would that be?!

 

Unfortunately, it appears to be common for DCAs/creditors to cling on to these 'accounts' even when obviously unenforceable, in the hope that they can threaten/cajole/bamboozle you into paying anyway!

 

Court proceedings might end up being the only way to stop their games.

 

Regards, Pam

[tifo]

Thanks Pam,

 

I really don't know the answer, but it is one that needs to be found as it is a crucial part of any complaint/claim. If they keep changing the goalposts with regards to being the creditor we could all be going round in circles from one DCA to another to a bank to a DCA and so on .... clutching at illegible and apparently unenforceable application forms which we and the DCA have no idea would be/would not be enforced at court but both are scared to find out as it is a loss for one side.

 

I see a sale as a sale and thats it. So i think the DCA is the *alleged* creditor for the account and that is the only way they could default me. This thing about 'asking our client' doesn't seem to make sense.

 

I have CCJs (and a property charge) from two DCAs and if they were never the creditor then they could not have had a CCJ in their own name. They cannot now turn round and say 'we will refer to our client' as this would not hold up in court, i think.

 

I've received another illegible application form from Fredrickson today which contains no prescribed terms and has not been signed by Amex, yet they have been maintaining a default over the years and have started to 'refer to their client' in the last few letters. I've put the form here http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/62988-tifo-fredrickson-2.html

 

It's just not fair on us poor debtors! They won't stand still for us to shoot them!

[InKogneeToh]

Hi

 

You could ask them to confirm in writing who is actually the legal owner of the debt. Say that you are commencing court action (bluff) and would not wish to involve the wrong party! Say that if you do not receive a definitive answer you will have no option but to cite both the original creditor and the DCA as defendants. See what they make of this!

 

As for the Amex doc - this is obviously an application form and nothing else and they are confirming this by their comments! No prescribed terms - totally unenforceable!

 

Regards, Pam

[tifo]

Yes, a good idea! Bluff court action.

 

If you go to the thread i have linked you can see the form they sent me. In the accompanying letter, it actually said 'signed application form' is enclosed. I would expect them to know that this is not an executed agreement.

[InKogneeToh]

Yes, a good idea! Bluff court action.

 

If you go to the thread i have linked you can see the form they sent me. In the accompanying letter, it actually said 'signed application form' is enclosed. I would expect them to know that this is not an executed agreement.

 

Exactly! :-D

[kennyparkroad]

they do know, but are hoping you dont.

 

sorry for the absence im back in full swing after some other issues that needed taken care of.

[tifo]

I CCA'd all my DCA's last year (Jan 2007) and so far none has FULLY complied with my s.77 or s.78 request made under the CCA 1974. I've had the usual application forms (some short ones) and not applicable T's and C's.

 

They continue to maintain a default on me and chase me up occasionally with threats of court action, Lowell in particular for 3 accounts. A few have a CCJ on me from some years ago.

 

I am thinking of asking for CCJ set aside and default removal and compensation for harassment and defamation/damages from the defaults. Starting with Lowell as Financial wrongfully maintained two defaults, in addition to two by Portfolio. They've accepted this.

 

I'm also thinking to do the same with CRA's.

 

The basis of my argument with both DCA's and CRA's will be no agreement so where is the consent/proof of what they are doing?

 

Am i on the right tracks or can someone advice me for/against this action?

[spamheed]

I CCA'd all my DCA's last year (Jan 2007) and so far none has FULLY complied with my s.77 or s.78 request made under the CCA 1974. I've had the usual application forms (some short ones) and not applicable T's and C's.

 

They continue to maintain a default on me and chase me up occasionally with threats of court action, Lowell in particular for 3 accounts. A few have a CCJ on me from some years ago. Can you clarify - have you CCA'd for a debt with a CCJ on it? if so, how old is the CCJ, how long is it since you paid or acknowledged it in writing?

If this debt is not enforced by a CCJ the default of the CCA would, IMHO be sufficient to prove the lack of consent to process the data, or collect on the debt

 

I am thinking of asking for CCJ set aside and default removal and compensation for harassment and defamation/damages from the defaults. This would very much depend on the previous answer

 

Starting with Lowell as Financial wrongfully maintained two defaults, in addition to two by Portfolio. They've accepted this.

 

I'm also thinking to do the same with CRA's. A little more difficult (although it shouldn't be) They are acting "in good faith" on a client of "good standing" you would have to prove doubt as to these statements If you can do this, they are obliged to drop the defaults until the dispute is resolved. on the basis that if they aren't 100% SURE OF THE DEBT, THEY SHOULDN'T BE PROCESSING IN THE FIRST PLACE

 

The basis of my argument with both DCA's and CRA's will be no agreement so where is the consent/proof of what they are doing? Agreed

 

Am i on the right tracks or can someone advice me for/against this action?

 

Hope this helps

[tomterm8]

It can be quite difficult to do this, although some people have has success. I would suggest looking at seeking a s142 order FIRST, and only then going for data protection.

[tifo]

Can you clarify - have you CCA'd for a debt with a CCJ on it? if so, how old is the CCJ, how long is it since you paid or acknowledged it in writing?

 

If this debt is not enforced by a CCJ the default of the CCA would, IMHO be sufficient to prove the lack of consent to process the data, or collect on the debt

 

A little more difficult (although it shouldn't be) They are acting "in good faith" on a client of "good standing" you would have to prove doubt as to these statements If you can do this, they are obliged to drop the defaults until the dispute is resolved. on the basis that if they aren't 100% SURE OF THE DEBT, THEY SHOULDN'T BE PROCESSING IN THE FIRST PLACE

 

The CCJ's are from 3/4 years ago. One i am paying as per order, one i am not paying as DCA never accepted by offer (even at court, that's another gripe) but got a charging order on my house and the third the bank sold the account when i requested my charges back, put my complaint on hold re test case (unlawful selling?).

 

The CRA's are a Data Controller in their own right but in this case would argue they are a Data Processor only. I would ask them to prove the defaults they are maintaining are lawful and with my consent to the originator.

 

The DCA's would need to show a proper agreement or remove and pay compensation for the years of defamation/damage done. Put up or shut up.

 

All the defaults include the amount with charges etc. as does any Assignment/Default Letter i may have had. But they will argue as the charges haven't been proved unlawful yet, this amount is correct.

[spamheed]

The CCJ's are from 3/4 years ago. One i am paying as per order, one i am not paying as DCA never accepted by offer (even at court, that's another gripe) but got a charging order on my house and the third the bank sold the account when i requested my charges back, put my complaint on hold re test case (unlawful selling?). It sounds like you've got bigger fish to fry than the default of a CCA. The phrase "sailing close to the wind" seems appropriate

 

If I am understanding you correctly, you have not paid against this CCJ for about 3 to 4 years.

 

If you have CCJ against you, then normally it would be about the 6+ year period that the courts would require reasons for non enforcement, if you contested their resurfacing with demands for payment

 

To be fair, your non agreement with the judgement amount or terms wouldn't be grounds for non payment, and I would be surprised if a judge accepted this.

 

I would be interested in why the creditors haven't taken any action against you sooner on the CCJ. if they haven't yet tried to enforce it, I would be loathe to remind them about the debt for now, the longer they don't enforce it, the more difficult it will be for them to try to enforce it at a later date. "let sleeping dogs lie" would seem like an apt saying

 

Although there are precedents surrounding set asides, I think their basis has pretty much always been on irregularities discovered shortly after the decision, or cases of illegality by the claimants

 

IMHO I would think that fighting a CCJ or Charging order from a secure position would be the best option, without default and maintaining regular payments before, during an up until the set aside is granted, if the set aside is obtained, then procedures to obtain of monies paid can be pursued. without once handing over any sort of high ground to the creditor.

 

You paid because the court oredered you to, not because you accepted liability, thats why you're going for the set aside

 

The CRA's are a Data Controller in their own right but in this case would argue they are a Data Processor only. I would ask them to prove the defaults they are maintaining are lawful and with my consent to the originator. I think this is a very precipitous standpoint on behalf of the CRAs, the argument is simple "the debt is not proven, neither title nor liability have been established", but the CRA continues to record possibly damaging information on a potentially non liable debtor" how can they be allowed to do so. the simple anser would appear to be "discredit the original creditor" prove there is no agreement to default on, or get the creditor to accept that this is the case

 

The DCA's would need to show a proper agreement or remove and pay compensation for the years of defamation/damage done. Put up or shut up. Agreed, but then they've already had liability proven against you and either you didn't defend, or defended inadequately to the point that liability was accepted/proven

 

All the defaults include the amount with charges etc. as does any Assignment/Default Letter i may have had. But they will argue as the charges haven't been proved unlawful yet, this amount is correct.

 

Agreed, but as stated before, you've already had liability proven against you

 

 

I think you're in for a long uncomfortable ride, you are going to have to prove every assertation and hope the judge doesn't follow the simple line that "you've already accepted liability"