Eversheds problem

[Simon_]

Hi

 

This site helped me enormously around 18 months ago in reclaiming over £1000 in charges from Barclays.

However I have another problem , my wife and I entered into an IVA in September 2005 , all was going well until I had an accident at work in June 2006 , since then I have been unable to work and the IVA subsequently failed in September 2007 , I had no correspondence from anyone other than the IP (copy of a letter to my creditors informing them that the IVA had failed) until last week when we recieved 5 letters from Eversheds adressed to either myself or my wife for various amounts ranging from £300 to nearly £10,000 , the total amount is in the region of £22,5000.

 

None of the letters state who the original creditor is/was merely that they wanted the full amount paid within 7 days , after a brief conversation with them on the phone they have sent us an income/expenditure form , which they want us to complete and return by Friday 8th Feb , tey also state that if they don't recieve this along with documentary proof of all our income & expenditure i.e copies of all utility bills , poll tax , rent , and documents proving that I am recieving incapacity and industrial injury benefit......AND a token payment!!! , they will commence proceedings for the full amount.

 

 

I'm at my wits end ......anty help or advice would be gratefully recieved

 

Thanks

 

Simon

[mr.ton]

Hi

they have sent us an income/expenditure form , which they want us to complete and return by Friday 8th Feb , tey also state that if they don't recieve this along with documentary proof of all our income & expenditure i.e copies of all utility bills , poll tax , rent , and documents proving that I am recieving incapacity and industrial injury benefit......AND a token payment!!! , they will commence proceedings for the full amount.

 

Never speak to them on the phone for starters.

They can go shove their expenditure form were the sun dont shine in my view

Let them take their "proceedings" against you - chances are nothing will ever happen, but if it does - they can make do with £1 per month in a like it or lump it sort of way

So long as u can show the court that is all u can pay (which is easily done with a bit of exaggeration) -then that is actually a legal amount u can pay off a debt .

[Simon_]

Thanks for that.....I'm going to send the CCA requests off today , as there is 5 different accounts all being handled by Eversheds , I assume I have to send them £5 ?

[spamheed]

Thanks for that.....I'm going to send the CCA requests off today , as there is 5 different accounts all being handled by Eversheds , I assume I have to send them £5 ?

 

send them 1 x £1 postal order for each account, = 5 x £1 postal orders, send 5 x CCA request, one for each debt

 

Ensure you keep track of which was used against which debt, separate out the letters etc for each amount, treat them as individuals, they may be able to enforce one, all, or somewhere in between, you need to know exactly which is which

[Simon_]

Thanks for that Spamheed , I'll send them all seperately by recorded delivery.........do I head the letters "Account in dispute" or words to that affect?

[spamheed]

I DO NOT ACKNOWLEDGE ANY DEBT TO YOUR COMPANY

 

in bold, underlined, so as to avoid any misunderstanding

[Simon_]

Okay 5 CCA requests sent recorded delivery today.......I'll keep you posted

[Simon_]

Recieved 3 replys to the 5 CCA's sent on the 7th Feb.

 

One states that we " have acknowledged the debt as it was the subject of a failed IVA, but that they have contacted the original creditor for the CCA which can take upto 8 weeks to arrive"....They also inform me that it is imperetive that I phone them to discuss the matter in more detail.........I don't think so!!

 

Two other identical letters mereley state that we have not completed the Financial questionnaire as requested and that they are contacting their clients (Max Recovery) for further instructions , which will most likely involve a baliff calling.

 

 

Any ideas what my next step should be?

 

Thanks in advance

 

Simon

[42man]

Might be wise to send them this...

 

Dear xxxx

 

Account Ref xxxx

 

Please be advised that I will only communicate with you in writing. I have noted your repeated attempts to contact me by telephone over the past few weeks/months and these have been duly logged by time and date.

 

Furthermore, should it be your intention to arrange a “doorstep call”, please be advised that under OFT rules, you can only visit me at my home if you make an appointment and I have no wish to make an appointment with you.

 

There is only an implied license under English Common Law for people to be able to visit me on my property without express permission; the postman and people asking for directions etc (Armstrong v. Sheppard and Short Ltd [1959] 2 Q.B. per Lord Evershed M.R.). Therefore take note that I revoke license under Common Law for you, or your representatives to visit me at my property and if you do so, then you will be liable to damages for a tort of trespass and action will be taken, including but not limited to, police attendance.

 

Yours faithfully/sincerely

[spamheed]

Recieved 3 replys to the 5 CCA's sent on the 7th Feb.

 

One states that we " have acknowledged the debt as it was the subject of a failed IVA, I would'nt imagine that this is true, but that doesn't alter tha fact that you have made a legal request for the document, you didn't know you could query the debt and now that you know your rights, you need to be sure they have a legal right to the debt. but that they have contacted the original creditor for the CCA which can take upto 8 weeks to arrive"....The law says 12+2 working days and then they're in default They also inform me that it is imperetive that I phone them to discuss the matter in more detail.........I don't think so!! Bang on!!

 

Two other identical letters mereley state that we have not completed the Financial questionnaire as requested and that they are contacting their clients (Max Recovery) for further instructions , which will most likely involve a baliff calling. only if they have previously sought and obtained a CCJ against you and even then, they are still under an obligation to supply you with the document

 

 

Any ideas what my next step should be?

 

Thanks in advance

 

Simon

 

They have said NOTHING, they have produced NOTHING, so you should do NOTHING.

 

You are still entitled to the documents you have requested, until they provide these, there is nothing to do, although attempting to collect them when they are in dispute is a definite no no!!

[Simon_]

Thanks for that guy's....I'll keep you posted

[Simon_]

Recieved 2 letters from Eversheds this morning regarding 2 of the accounts they are chasing , both letters are identical and state that as I have not payed the balance of the account they have been instructed to commence further proceedings by their client Max Recovery.

 

Neither letter makes any reference to the fact that I have requested CCA's , or that they intend to supply them , they appear to have simply ignored that fact!

 

What should I do next?........nothing and asssume/hope they are calling my bluff , or contact them?

 

Thanks in advance

 

Simon

[42man]

Reproduced courtesy of Curlyben

 

Account In Dispute

 

Ref:

 

Dear Sir/Madam

 

Thank you for your letter of xx/xx/xx, the contents of which have been noted.

 

You have failed to respond to my legal request to supply me a true copy of the original Consumer Credit Agreement for the above account.

 

On **DATE** I made a formal request for a true signed agreement for the alleged account under consumer credit Act 1974 s77/8. You have failed to comply with my request, and as such the account entered default on **DATE**.

 

The document that you are obliged to send me is a true copy of the executed agreement that contained all of the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself as defined in section 61(1) of CCA 74 and subsequent Statutory Instruments. If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document.In addition a full statement of this account should have been sent to me detailing all debits and credits to the account.

 

Furthermore

 

 

You are aware that the Consumer Credit Act allows 12 working days for a request for a true copy of a credit agreement to be carried out before your client enters into a default situation.

 

If that request is not satisfied after a further 30 calendar days your client commits a summary criminal offence.

 

These limits have expired.

 

As you are no doubt aware section 77(6) states:

 

If the creditor 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 this account has become unenforceable at law.

 

As you have Failed to comply with a lawful request for a true, signed copy of the said agreement and other relevant documents mentioned in it, Failed to send a full statement of the account and Failed to provide any of the documentation requested.

 

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

 

Furthermore I shall counterclaim that any such action constitutes unlawful harassment.

 

Please note you may also consider this letter as a statutory notice under section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect.

 

This means you must remove all information regarding this account from your own internal records and from my records with any credit reference agencies.

 

Should you refuse to comply, you must within 21 days provide me with a detailed breakdown of your reasoning behind continuing to process my data.

 

It is not sufficient to simply state that you have a ‘legal right’; You must outline your reasoning in this matter and state upon which legislation this reasoning depends.

 

Should you not respond within 14 days I expect that this means you agree to remove all such data.

 

Furthermore you should be aware that a creditor is not permitted to take ANY

Action against an account whilst it remains in dispute.

 

The lack of a credit agreement is a very clear dispute and as such the following applies.

 

* You may not demand any payment on the account, nor am I obliged to offer any payment to you.

* You may not add further interest or any charges to the account.

* You may not pass the account to a third party.

* You may not register any information in respect of the account with any credit reference agency.

* You may not issue a default notice related to the account.

 

 

I reserve the right to report your actions to any such regulatory authorities as I see fit.

You have 14 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint.

 

I would appreciate your due diligence in this matter.

 

I look forward to hearing from you in writing.

 

Yours faithfully

[Simon_]

Brilliant letter 42man!.....thanks for that

 

The 12+2 days has now expired ....should I send that letter now or wait until the 30 days are up?

[42man]

I would send it asap by recorded too...

[Simon_]

Still nothing recieved regarding the CCA's , however I had a message on the answer machine a couple of days ago from A guy at Eversheds (he sounded about 12!!) informing me that "the matter had become very grave indeed , and I should contact him immediately"......then today I recieved a letter regarding one of the 5 accounts in dispute offering a 20% discount if I paid within 7 days.

 

should I just carry on playing the waiting game?

[42man]

keep a record of the time and date they are calling, ready for your complaint to the FOS...!!

[Simon_]

These Evershed people are totally insane!!

 

I sent the letter 42man kindly posted above on the 6th March ' I recieved a letter today withdrawing the discounted offer and "assuring" me that they have now been instucted to pursue the debt through the county courts!!

 

 

They have made absolutely no reference to ANY of the correspondance I have sent them!

 

What next?

[Simon_]

Well 2 montha later and I've finally received copies of CCA requests from Eversheds, and I'd be grateful for any advice on the following :

 

1. Is an unsigned copy of a CCA enforceable?.....all details are there but it is not signed by me.

 

2. Is a copy of an application form, supplied with a photocopy of the T&C's enforceable

 

I'll try to scan the copies in later , but any help in the meantime would be appreciated.

 

 

Simon

[42man]

Scan them in Simon...

 

Otherwise this might help...

 

IS MY AGREEMENT ENFORCEABLE( Via section 127(3) CCA1974)

PRESCRIBED TERMS FOR THE PURPOSES OF SECTIONS 61(1)(0) AND 127(3) OF THE

CONSUMER CREDIT ACT 1974 Taken from sced.6(1983/1553) regulations

(If you just want to find out, skip the bits in between the stars it’s just some extra information)

 

**What do we mean by unenforceable?

In the Consumer Credit Act section 127 there is a provision for making an agreement unenforceable if it does not contain certain pieces of information.

Subsections 1,2,3,4 state which pieces of information these are, and everything mentioned there must be included within the body of the agreement, if one is missing the agreement is unenforceable.

 

How does unenforceable differ from enforceable with a court order only?

When an agreement is unenforceable it means that the court or the judge cannot make a ruling on it. The court cannot make it enforceable.

When an agreement is enforceable only by ruling of the court it means that the agreement can be stopped by the debtor but the court has the power to re-instate it and allow the credit to continue to enforce.**

 

The Pescribed Terms are these

 

A Amount of credit

A term stating the amount of credit

 

B Repayments

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-

(a) Number of repayments;

(b) Amount of repayments;

© Frequency and timing of repayments;

(d) Dates of repayments;

(e) 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.

 

C Rate of interest

A term stating the rate of interest to be applied to the credit issued under the agreement

D Credit limit

This may be a term or the manner in which it will be determined or that there is no credit limit.

--------------------------

 

Which of these applies to you depends on the type of agreement you have?

 

For a Running Account (credit card) agreement

 

BC and D Apply

 

For a Restricted Use Debtor Creditor Supplier

• Where the dealer is the supplier and the creditor is the one providing the finance.
  
• The money can only be used for the purpose it is given.
  
• There is no interest on the purchase (the cash price is the same as the total price)
  
• And there is no advance payment
  

A is applicable

 

For a fixed Sum Credit Agreement

A conventional credit agreement with none of the above restrictions

 

A and B apply

 

For a Hire Agreement

 

B is Applicable

 

This paper only covers section 127(3) of the Act agreements can also be unenforceable by contravention of sections 1 and4 this will be the subject of the next paper.

Please note that these Prescribed terms where not changed in any way by the 2004/1482 Ammendments although the form in which they appear on the agreement was. Subsection127(3) was repealed on the 6th of April 2007 so that unenforceability due to 127(3) will only apply to agreemens executed before that date.

[OLIVE.FAMILY]

Hi Simon I am sur somebody will be along soon. For the time being an unsigned copy of a CCA is DEFINATELY unenforecable. I think the other one may be as well.

 

Regards

Olives