Electrica77 re: Eversheds (Max Recovery)- mystery debts & MBNA

[electrica77]

Well this is really two separate enquiries:

 

1) after the failure of my IVA, Eversheds are saying they are chasing me on behalf of their 'client' (who appears to reside at their address and share a solicitor with them) Max Recovery, who bought my debt from MBNA for £4573.

 

I want to issue a CCA but haven't seen any Eversheds/Max Recovery threads and wondered if anyone had any general advice or knew about their track record etc.

 

A large part of that debt was added in charges and interest, this was due to an error on MBNA's part after which they would not accept reduced payments from me. At some point before my IVA they wrote and said they would accept a vastly reduced sum in final settlement but I refused at the time. If I am forced to cough up after the CCA req, can I ask for this again? can I get the balance reduced by the amount of charges? Can I chase for charges to be paid back if the debt proves unenforceable? I ahve no symapthy for them, they crippled me.

 

2) On looking at my up to date credit record, I see that Max Recovery have also registered a default against my name for a sum of around £5000- I genuinely have no idea what this is, as I have been through all my records and nothing fits. Suspiciously, a sum of around £1300 outstanding against an old Debenhams card has vanished altogether from my record, and I am wondering if they could really have added £4000 in charges over the last year??!

 

Otherwise I think it must be a case of assigning a debt to the wrong person. They are not currently chasing thsi debt, so I am wary of poking the hornets nest, but I also do not want something that isn't mine, on my record. What should I do? Presumably a CCA isn't appropriate, so I'm not sure what sort of enquiry to make. I did notice an alias on my credit record that I have never used- My first name against my mother's maiden name, but her name was Jones, so I'm not taking that as overly significant. Could this be related?

 

All help gratefully received :grin:

[Curlyben]

Rather than a CCA how about a simple "prove It" as an opener.

 

Dear Sir/Madam

 

You have contacted me/us regarding the account with the above reference number, which you claim is owed by myself/ourselves.

 

I/we would point out that I/we have no knowledge of any such debt being owed to (insert company name).

 

I am/we are familiar with the Office of Fair Trading Debt Collection Guidance which states that it unfair to send demands for payment to an individual when it is uncertain that they are the debtor in question.

 

I/we would also point out that the OFT say under the Guidance that it is unfair to pursue third parties for payment when they are not liable. In not ceasing collection activity whilst investigating a reasonably queried or disputed debt you are using deceptive/and or unfair methods.

 

Furthermore ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment amounts to physical/psychological harassment.

 

I/we would ask that no further contact be made concerning the above account unless you can provide evidence as to my/our liability for the debt in question.

 

I/we await your written confirmation that this matter is now closed. Otherwise I will have no option but to make a complaint to the trading standards department and consider informing the OFT of your actions.

 

I/we look forward to your reply.

 

Yours faithfully

[electrica77]

*bump*

[electrica77]

Hi all,

 

I have received a letter, nicely timed for the bank hol, from Eversheds saying that the cheque I sent with my CCA request has bounced (the bank cancelled it in error, in fact) and that they are not obliged to provide any documentation until they have received it. Is this true? Does it mean that my CCA process has to start again from day one, or are they bulls**tting me? I sent it on March 22nd, so they've taken their sweet time.

 

They also mention in the letter that i was previously paying the debt through an IVA to them, and to refer to the insolvency practitioner if I have any doubts about the debt. Does the fact that I have previously acknowledged the debt through an IVA invalidate or weaken any case I might have for not paying? ie if they ended up in court could that trump the fact that they couldn't produce documentation?

 

Also (edit) does anyone know if Eversheds are ACTUALLY a solicitor or are they one of these DCA's with ideas above their station?

 

 

I just feel so uncertain about the whole thing now, and am wondering if bankruptcy might be a less stressful resolution? i don't want to do that though.

[Pinky69]

Eversheds specialise in corporate and commercial legal services. You must pay the £1 admin fee when making a request for a copy of the credit agreement so you will need to re-request it. The best way to pay the £1 is by postal order so the DCA have nothing new with your signature - in case they concoct an agreement if they don't have one. Send it by recorded delivery so you have proof they received it. The fact you paid towards the debt before is irrelevant. You are entitled to ask for a copy of the credit agreement any time and if they don't have one the debt is unenforceable and that is a complete defence in law.

[electrica77]

thank you!

 

I did send it recorded before, and it was my boyfriend's cheque. His bank for some reason decided to cancel 21 of his cheques, we think maybe because they had sent out a new chequebook, but he had about 3 cheques returned, and this was one of them.

 

after my initial post I did some reading and felt more reassured too. I somehow always feel that I will be the one person the court does something weird to etc.

 

I will send a new letter out next week, and start counting again.

[electrica77]

All,

 

I posted off a CCA letter to Eversheds a while back with a cheque enclosed, which was rejected mistakenly by my partner's bank when they stupidly cancelled a run of his cheques. I re-sent the letter to Eversheds with a postal order, special delivery on the 17th May, it was delivered to them 19th May.

 

Today I got a letter from Eversheds saying that I have not responded to their previous threatogram, and they have instructions to commence legal proceedings. They may proceed with court or send a collection agent etc. They ask that I respond by return of post.

 

Sigh...

 

Should I respond by post, or call? I am wondering if, since their letter is dated 28th May, they hadn't received my letter into the correct department at the time of this latest threatogram being issued.

 

My original debt was to MBNA, this was passed to 'Max Recovery', and this is who Eversheds claim to be collecting for. I'm not sure if they are one and the same as Max recovery, but do Eversheds have any power to take me to court? We are in a very precarious financial situation right now, and have so much stress already. I am getting really fed up with it.

 

Ironically, Eversheds are making Cabot look good. At least they send me a letter every week telling me they can't find my paperwork

 

Any advice on what to do?

Edited June 4, 2008 by electrica77
to clarify (as was typed hastily around wailing toddler)

[daarab]

Hi electrica

 

Obviously you will have proof that it was delivered and signed for.

 

If this is the case I would Just wait for them to write to you again.

 

If my calculations are correct today is the twelth day from when they received the request, that would mean they are now in default of your request.

 

Just sit tight, and wait.

[I've got no money]

Eversheds used to be a really reputable firm of Solicitors then they got into debt collecting. Their letter to you should clearly state who they are acting for. I personally wouldn't bother telephoning them as my experience of them is that they tend to be unpleasant. I would be inclined to write to them, by recorded delivery or fax or even as an email attachment, pointing out that there is the small matter of the outstanding CCA letter. I would tell them that it is unlawful to issue any proceedings until the CCA has been complied with.

If Eversheds are instructed by either MBNA direct or by somebody acting on behalf of MBNA (e.g Max Recovery) then they can issue proceedings. They will only issue if their client tells them to.

If you want to wind them up you could write to the Managing Partner, you can get his details from the Evershed website and tell him that until the CCA letter is answered that you will view any further contact, including the issue of proceedings, as harassment and that if it continues you will not only complain to the SRA (Solicitors Regulation Authority) but also the Police.

[electrica77]

Hi electrica

 

Obviously you will have proof that it was delivered and signed for.

 

If this is the case I would Just wait for them to write to you again.

 

If my calculations are correct today is the twelth day from when they received the request, that would mean they are now in default of your request.

 

Just sit tight, and wait.

 

I know what you're saying, I'm just a bit scared that while I wait they will ignore my letter and issue proceedings anyway. I just can't face all that hassle and I honestly don't have the energy right now to fight any more people than absolutely necessary.

 

I think I might write and point out they are in default of their obligations, and ask them to refrain from contacting me until they have some proof of debt. Again. I will enclose a photocopy of my post office receipt for the special delivery (you don't get a label apparently).

 

I hate wasting my time on these ignoramuses.

 

This reminds me that cabot are waaayy over their 12 days plus 30, so they are owed a few complaints about now.

[I've got no money]

On the Post Office front don't forget that if you go to www.royalmail.co.uk and use track and trace not only do you get proof of delivery but the signature/name of the person receiving the letter appears online. You can print it off and send them a copy.

[daarab]

I would 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 Lowell supply me a copy of the credit agreement covering this account pursuant to the Consumer Credit Act 1974 section 78. To date Lowell 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 Lowell, 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 Lowell become compliant with my request. As Lowell 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 __________________

 

 

Just replace things to suit you

[electrica77]

thank you so much, that's wonderful!! I will sit down and have a proper look at this on Friday while the sprog is at nursery!

 

Thanks also above for the royal mail link- the post office one doesn't give the same info.

[gni03349]

Just one other snippet... print your name.. never actually sign anything.

[heartopp]

Thanks also above for the royal mail link- the post office one doesn't give the same info.

 

Now I call my 3 neices "Sproges" But no one understands what I mean...

 

About them going to court, if they dont have a CCA, then that will be in your defence

[electrica77]

*update*

 

I've now recieved another letter offering me a 20% discount to pay the whole thing off. How generous. I assume that's the approximate 20% in additional mystery charges they've added.

 

I've also checked the Royal mail link and obtained a lovely signature- one 'L.Hough' who kindly signed for my letter on the 19th of May. I shall be sending a copy of this proof of receipt along with the letter above in another special delivery this week. I do hope L.Hough is in to receive it again.

[electrica77]

Hi all,

 

well, it seems that Eversheds, acting on behalf of Max Recovery, acting on behalf of MBNA have been busy! They have sent me a 'CCA' today.

 

It is virtually illegible because it is such a poor copy, and there is little point reproducing it here, but these are the salient details:

 

It is actually titled 'Signature form' and is part of the application form (this is clear because it offers me a tick box for payment protection, and says 'sign and return today' at the top.

 

It has my name and address, a credit ref number (account number?), and it states a credit limit of £5000

 

Then it has a ton of blurb about data protection, including a tick box and signature box but it is unsigned and totally illegible,

 

then two lines about my right to cancel, and then I have signed in a box in which I can make out the words 'consumer credit' of the one sentence above it and dated it 31.12.03 (happy new year!)

 

Critically, I can also make out a sentence which says 'please issue an MBNA credit card to me' in their blurb.

 

They have also attached a poor copy of what looks like a computer print out of my original online application details.

 

Finally, there is a charming letter from Eversheds stating that, as requested I am to find copies of the relevant application forms and Consumer Credit agreement for this account. Now that they have fulfilled their legal obligation to me they are able to proceed in pursuing me for the outstanding debt. They 'expect' an immediate proposal of payment and a full icome and expenditure form completed- which they say is enclosed, but isn't- so they know the true extent of my financial situation (are you acquainted with moths?) they would like to take this opportunity to remind me that they are willing to offer me a full and final settlement if i am able to raise a lump sum.

 

Disturbingly as always, it is electro-signed in a handwritten 'Eversheds LLP', as though Eversheds was a person, and not just a conglomerate of buffoons.

 

SO, I am thinking I should write back with the following:

 

blurb about not recognising any debt etc

 

a) this is not a credit agreement, it is part of an application form and a computer print out. It is also mostly illegible. It does not include the prescribed terms (need some law to fill in here- any guidance welcome)

 

b) you have not fulfilled your legal obligation, nor have you provided me with a deed of assignment as requested.

 

c) This account remains in dispute and default, and therefore I will not be supplying any details until they have fulfilled my request.

 

d) In any case I could not supply these details since the numpty who produced this weeks threatomatic forgot to include it.

 

e) any further contact will be viewed as harassment until my request is fulfilled

 

f) rearrange the following words into a sentence: off sod

 

 

Is there anything else I need to include? Any letter templates, any advice??

 

 

(Is it too soon to be dancing joyously about the living room? )

[rory32]

It is virtually illegible because it is such a poor copy, and there is little point reproducing it here,

The Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 SI No. 1557 states:

 

Legibility of notices and copy documents and wording of prescribed Forms

2.-(1) The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the colour of the paper.

[palomino]

"Disturbingly as always, it is electro-signed in a handwritten 'Eversheds LLP', as though Eversheds was a person, and not just a conglomerate of buffoons."

 

This is in fact the correct way for solicitors to sign correspondence. A partnership (LLP in this case) is regarded as a 'body' in its own right. Each partner signs for the partnership.

[electrica77]

it's still disturbing!

 

Thanks both for the info-

 

Please can anyone answer the points I've raised above? Is the CCA unenforceable?

 

*bump*

[rory32]

Is the CCA unenforceable?

 

No. The basic requirement is for it to be legible. Once/if a legible copy is produced then it must contain the precribed terms and be signed by you to be enforceable.

[electrica77]

ok, but even while being largely illegible, I have provided the information it contains, so rather than write more letters for another copy, can anyone advise me on whether anything that is on there means it would be enforceable?? Does the fact that it is part of an application form have any bearing? What are the prescribed terms? I don't have any legal wording, so does anyone have a template?

 

Please!!???

[electrica77]

ok, but even while being largely illegible, I have provided the information it contains, so rather than write more letters for another copy, can anyone advise me on whether anything that is on there means it would be enforceable?? Does the fact that it is part of an application form have any bearing? What are the prescribed terms? I don't have any legal wording, so does anyone have a template?

 

Please!!???

 

I should add that the total 'agreement' only takes up one third of an A4 sheet

[Brassed off]

S61(1)(a) CCA provides that, for a regulated agreement to be properly executed, it must contain all the prescribed terms of the agreement and conform to regulations under s60(1) – see Q1.14.

Reg 6(1) provides that the terms specified in Sch 6 to the Agreements Regulations are ‘prescribed terms’ for the purposes of s61(1)(a) and s127(3) – see Q8.2.

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.

 

Also check out Peter Bard's excellent thread on the subject: Agreement Enforceability

For a card the limit maybe a simple statement of how they work it out, but the other terms have to be stated.

[rory32]

Dear Sir,

 

Thank you for the reply to my letter dated XX/XX.2008.

 

Having taken the time to look over the documents supplied in response to my statutory request made under the Consumer Credit Act 1974, I have the following concerns.

 

The document entitled “credit card agreement regulated by the Consumer Credit Act 1974” which appears to bear my signature fails to comply with the requirements of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557). In particular section 2 of the Regulations.

 

As you will be no doubt aware, the Copy Document Regulations requires that documents are easily legible and clearly the terms of the agreement are not easily legible, infact far from it. Many of the terms are blurred and cannot be interpreted and I am further unable to make out the prescribed terms as required by schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553). After taking advice on this matter, I am of the belief that this agreement that you have presented before me, as it stands would be unenforceable even by court order. Therefore, I require that you provide me a clearly legible copy of the agreement, where all the terms are clearly legible

 

Should you not be able to supply a clearly legible copy containing the necessary prescribed terms, I would suggest that you give consideration to canceling this account and reducing the balance to zero. Of course the alternative would be to seek a declaration of my rights under Section 142(1) of the Consumer Credit Act 1974. I am advised that with the documents that you have supplied there would be an extremely good prospect of success with such a declaration. However, I am mindful of additional costs that such action could incur both on my part and on yours so I trust you will give consideration to this request

 

I would appreciate your due diligence in this matter and look forward to hearing from you in writing.

 

 

Yours Sincerely

...