Please Help Dca & Court

[snidershappy]

Hi I am hoping someone can help I have just had a DCA call to my door regarding the above account I have been paying token payments of £1 to Lewis Debt Recovery for about 3 years then I received a letter for Howard Cohen Solicitors demanding payment in full under the advice from this forum I requested a CCA from them, received the CCa but from Lewis not Howard. I continued to pay to Lewis never heard from Howards again then I missed January & February payments because i was changing the payments to every 3 months to save on payment fees & brought the account up to date with token payments at the beginning of March then today I get a caller from A DCA saying they want payment in full I told him I could not afford it he told me everone would be dead by the the time I cleared my account so I may aswell pay nothing & leave a large bill instead of a small bill he said if i don't clear my account today they would be taking the account into court I told him to take it into court because i did not have the money to clear it & if the courts could find more money than I have then they could have it, but now i am worried about it can someone have a look at my CCA & let me know if they can take me into court. I can't get my sanner to work properly hopefully you can tell it's the application form I filled in to get the card.

 

Many Thanks your advice is really appreciated

[Guest wino]

Hi snidershappy, You say you were paying £1 per month to Lewis. When you changed to three month payments did you agree this with Lewis if not then as far as they are concerned you have defaulted.

 

Who is this new DCA that has called? He doesn't sound very nice or professional.

[42man]

Can't see the agreement very well....what year is this from as it looks like an application form....and take a read of this (below)...as for the court question then yes they may well take you to court, but what they are hoping is that you'll curl up and die and not fight it so they can win by default !! (Also are there some excessive penalty charges that have been added to the account ??).....have you claimed any charges back ?

 

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 Prescribed 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.

[snidershappy]

Can't see the agreement very well....what year is this from as it looks like an application form....and take a read of this (below)...as for the court question then yes they may well take you to court, but what they are hoping is that you'll curl up and die and not fight it so they can win by default !! (Also are there some excessive penalty charges that have been added to the account ??).....have you claimed any charges back ?

 

The Prescribed 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.

 

Hi

Thanks for your quick response the CCA they sent (the 1 on view) is exactly that the "application form" (i removed my details) I filled in when i took out the card in 2002. I never signed any other aggreement with them but this one so because it doesn't state the prescribed terms to make it enforceable in court what would happen if they took me to court. This is really worrying me.

Thanks again

[42man]

ok, well this is what the Consumer Credit Act states....you seem to be in the clear !!!

 

CCA RULES FOR PRESCRIBED TERMS

CONSUMER CREDIT ACT

8.2 What if prescribed terms are missing or incorrect?

 

s127(3) provides that the court may not make an enforcement order unless a document containing all the prescribed terms of the agreement was signed by the debtor – see Q1.21.

 

If therefore any of the prescribed terms is missing, or incorrect, the agreement is not enforceable against the debtor, and the court is precluded from making an enforcement order.

 

 

8.3 What are the prescribed terms?

 

The prescribed terms specified in Sch 6 are as follows:

 

* amount of credit – see Q8.

 

* credit limit – see Q8.5

* repayments – see Q8.9.

* rate of interest – see Q8.6

 

Sch 6 was not amended by the 2004 Regulations.

You could send them this...

I am pleased to see that you confirm this as a true copy of the original agreement executed by yourselves on the 26th July 2007.

 

As you must realise this agreement does not conform to sections 60(1) and 61(1) of the Consumer credit Act and is therefore unenforceable under section 127(3) of the same act.

 

 

You had until (date here) to provide me with the true copy I requested. After that date you entered into default of my request. Whilst the account is 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, make any further charges to the account or pass the account to anybody else. I would also like to note that as from the (12+2 working days + 30 calendar days) it becomes a criminal offence.

Please note you may also consider this letter 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 including any defaults. 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 fail to respond within 21 days, I will expect that this means you agree to remove all such data.

[snidershappy]

Hi

So does this mean I should stop all payments to them after I send them the letter & what would happen if they took me to court anyway with an application form as a CCA what would the courts do Sorry about this but i haven't a clue about these things

[snidershappy]

(Also are there some excessive penalty charges that have been added to the account ??).....have you claimed any charges back ?

 

Hi There was excessive penalty charges added when the debt was with Barclaycard can I still claim these back even though it's now with a DCA

[ODC]

If your ''application form'' does not contain ALL the prescribed terms and thus cannot be enforced through the courts.

 

Send them this

 

Dear Sirs,

 

 

Account no xxxxxxxxxxxxxx

ACCOUNT IN DISPUTE

 

 

Re: my request under the Consumer Credit Act 1974

 

 

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

 

You attention is drawn to the fact that this account is subject to a serious dispute. On xx/xx/2007 I requested ********supply me a copy of the credit agreement covering this account pursuant to the Consumer Credit Act 1974 section 78. To date ******** have failed to comply with my request and have totally ignored my written reminders sent via recorded delivery of this fact. Without production of the said agreement I am unable to assess if I am indeed liable for any alleged debt to you or *******, nor does it give me any chance to evaluate whether any original agreement was ‘properly executed’ as required by the Consumer Credit Act 1974

 

 

For the avoidance of any doubt I have included section 78(1) and 78(6) 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.

 

 

 

Clearly as no agreement was supplied on request, this in no way complies with the requirements of the Consumer Credit Act 1974 and I now draw your attention to section 78 subsection 6 which states If the creditor under an agreement fails to comply with subsection (1) he is not entitled, while the default continues, to enforce the agreement;

 

Clearly this is a situation as described in s78(6) Consumer Credit Act 1974 and the debt is unenforceable at this time. In addition, I draw your attention to section 127 (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 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.

 

 

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

 

 

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..

 

At the point where this account entered into the default situation as described in s78 (6) CCA 1974 no other charges are allowed to be added until such time as ********* become compliant with my request. As ****** are still not in compliance with my request I insist that the following takes place with immediate effect

• All charges levied since ******** 2007 be removed from the account and further charges cease until such time as ******* comply fully with my original request or such time as a court makes an enforcement order
  
• All entries which refer to missed payments be removed from my credit file
  
• All collection activities by your company cease with immediate effect until ******** comply with my request from ********* 2007 or such time as a court makes an enforcement order

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. I am advised that should you persist in pursuing this debt ignoring the above information you will be in breach of the Administration of Justice Act 1970 section 40 as well

 

No other correspondence will be accepted

 

Should you attempt litigation it will be vigorously defended and the failure to supply documentation under the CCA 1974 is a complete defence to any legal action and your actions will be vexatious and unlawful

 

 

I trust this out lines the situation

 

Regards

[snidershappy]

ok, well this is what the Consumer Credit Act states....you seem to be in the clear !!!

 

When you say "you seem to be in the clear" what then would happen if they went into court with just an application form as their CCA

[ODC]

There is sufficient case law that states that unless an application form contains ALL the prescribed requirements then a court CANNOT enforce it as a CCA

[snidershappy]

have just worked out how to show pic of the CCA they sent this is an application & not a CCA am i right

 

 

[ODC]

Doesnt look valid to me. NONE of the prescribed terms. Its clear that this is an INVITATION to APPLY for a card

[snidershappy]

Hi Thanks for all the past help but can someone advise me further sent Lewis Debt the letter above that 42man advised & have now received this letter back from them can anyone advise what to do next.

Thanks for all your past help it is really appreciated

 

[snidershappy]

Sorry letter too small above on attachment this is the letter below

 

[ODC]

Sorry I cannot see what they said. Just type up the feeble excuse they have come up with

[snidershappy]

Hi

After requesting my CCA from Lewis Debt Recovery & them sending me the above application form as my CCA I sent the letter advised by 42man above they have now responded with the letter above but for those who cannot read what it states:

 

"I refer to your letter of *****2008 in which you have advised that you believe this account is in dispute as the agreement doesn't conform to the requirements of Sections 60 and 61 of the Consumer Credit Act 1974

Please be advised that this firm is not the creditor in this matter. The creditor is CL Finance and we are merely instructed to act on behalf of that company to recover the outstanding balance due. We believe that they have fulfilled their obligations with regards to providing you with a copy of your agreement.

Sections 60 and 61 of this act confirm that, amongst other things, a regulary executed agreement is not properly executed unless it is signed. Given that we sent you a copy of your signed agreement containing the terms and conditions of the account at the time at which you opened the account, I am unable to ascertain exactly why you believe the documents fails to meet these requirements. I therefore respectfully suggest you provide me with further information to allow me to investigate these concerns. Until that time we are unable to agree there is a legitimate dispute in respect of this account.

We will hold your account for one week to allow you to provide information to substantiate your dispute, however we will continue to take instructions from our client in respect of this debt. Please be advised that the outstanding balance of the accountis detailed above. Please continue to make payments in line with your arrangement. Failure to do so may result in further action being taken against you.

Yours sincerely"

What do I do now should I send them the letter ODC advised above as this seems to contain everything they need to know. I was a bit weary of sending ODC's letter first time round. In their letter in red above they state " I am unable to ascertain exactly why you believe the documents fails to meet these requirements." What documents they sent me an application form 1 document. Can anyone advise on how I answer this

 

Many Thanks

[ODC]

Under S175 of the CCA Lewis Debt recovery ar obliged to pass your request for a properly executed CCA agreement on to the original Creditor.

 

Send them my letter above and keep the red highlighted bit as obviously they are having difficulty understanding their legal obligations.

[snidershappy]

Thanks for your help i will keep you posted on how it is going but just one more thing someone told me the Consumer Credit Act 1974 was replaced with CCA 2006 & things might have changed is this the case or does the CCA of 1974 still stand

Many Thanks

[ODC]

If your agreement was prior to 2006 then its still goverened by CCA 1974