CCMAN Vs RBS

[ccman]

Just a little bump

[slick132]

Hi CCMan,

 

I've already flagged this up for advice and I hope PT or others will stop by to advise further.

[ccman]

Sorry, forgive my impatience!

[ccman]

Scouring site for somebody in a similar position, what they did and what happened. Will keep you posted

 

CCMAN

[slick132]

I'll try again to get some more advice here - trouble is, the debt forums are so busy, the Site Team gets spread very thinly sometimes.

[pt2537]

in their reply they state they supplied terms and conditions?

 

what terms and conditions did they supply? can you post a copy please

[steven4064]

What the RBS letter says is basically true but it doesn't make the ageement they sent enforceable.

 

You might like to look at this explanation I gave on another thread the other day http://www.consumeractiongroup.co.uk/forum/mbna/135849-mbna-abbey-card-possible-3.html#post1579331

[ccman]

Thanks guys, most kind!

 

[steven4064]

And that is what?

[ccman]

in their reply they state they supplied terms and conditions?

 

what terms and conditions did they supply? can you post a copy please

 

 

Steven,

 

Posted as requested!

[steven4064]

OK these are obviously recent because of the £12 charges so they cannot be the reverse side of the application form in post #16 (they can'ty be the reverse for other reasons too, but that is the clincher).

 

So what we have is a set of documents which fully comply with the request under s78(1) but are nontheless completely unenforceable in court

 

(they do not have the prescribed terms and debtor's signature in the same document - hence unenforceable under s127(3) of the CCA 1874)

[ccman]

So the 1000000 dollar question....... What next? The idea of them continuing to pursue a debt despite my letters of "oh no you cant" would be quite fun. I am now very good at not answering the phone!

 

IMHO a letter to them saying basically thanks and we both know it wont stand up in court is in order. All along, I wanted a leaver to get a very cheap F+F deal. I think I now have it. 10%?

[steven4064]

If they sold the debt to a DCA they might get 25% - 10% for openers is probably fair

 

 

PS I think you are right to go for a F&F rather than just telling them to get lost - an unenforceable agreement is just that - they can't enforce it but the debt still exists. With a F&F the debt has gone.

[ccman]

PS I think you are right to go for a F&F rather than just telling them to get lost - an unenforceable agreement is just that - they can't enforce it but the debt still exists. With a F&F the debt has gone.

 

Exactly!

[ccman]

Rough draft,

 

 

Dear Sirs,

 

Thankyou for your letter dated X rebuking my claim of the invalidity of your CCA response.

 

I would like to clarify my possition.

 

You sent a copy of our "agreement" that was originally dated X.

 

Might I at this point bring the following to your attention? Take from the Consumer Credit (Agreements) Regulations 1983 as amended by the 2004 Amendment Regulations:

 

8.1 What are ‘prescribed terms’?

 

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
  
• rate of interest – see Q8.6
  
• repayments – see Q8.9.
  

Sch 6 was not amended by the 2004 Regulations.

 

 

You will note ( if you take the time to check) that there are no prescribed terms in the "agreement" that you sent to me.

 

Does this mean that the agreement is not valid or that you sent the wrong document?

 

(Should something about without predudice be in here somewhere?)

 

I would like at this point to offer us both a simple solution to this situation. You seem to have an unenforcable credit "agreement" and I seem to have a lump sum to offer in full and final settlement of this account. This offer is conditional on you removing any defaults that you have registered with credit reference agencies and that you record this debt as "settled in full"

 

Please accept the offer of X in full and final settlemt of this account in accordance with the points above. I require this in writing before releasing payment.

 

Love and kisses,

 

CCMAN

 

What do you all think?

 

thanks,

 

CCMAN

[Tartan Barty]

This offer is conditional on you removing any defaults that you have registered with credit reference agencies and that you record this debt as "settled in full"

 

I would personally go for 'removing any defaults and late markers' as they could register a whole heap of these that would damage your file

[ccman]

Well, after a period of silence from them, a letter came today.........

 

Admitting that they dont have a valid agreement and cannot re-combine one from their existing records! They ask me very nicely to keep paying but state that if I choose not to, there is nothing they can do to persue me.

 

They do however threaten to keep recording my default on credit file. As they have admitted that they cannot produce a valid CCA, surely this is illegal?

 

I am lothe the post the exact letter here as I suspect its not a common one!

 

Edited September 1, 2008 by ccman

[slick132]

Hi CCM,

 

If they have no valid Credit Agreement, you can insist that they cease to process data in respect of the a/c and that they remove any adverse data from CRA files. You can also repay the debt at a rate which suits YOU.

 

Send something along the following lines, carefully adapted to reflect your own case.

 

Dear Sir or Madam,

Formal Complaint

Account No xxxx xxxx xxxx xxxx

I refer to your letter of xxxx, in which you confirm you have no valid Credit Agreement in respect of the alleged debt. You have also confirmed your intention to continue to record defaults or adverse comments in respect of this account.

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.

Yours faithfully,

CCMan

[ccman]

Superb, thanks

CCMan

[ccman]

Received this in response. thoughts?

 

thanks,

 

CCMAN

Edited December 11, 2008 by ccman

[steven4064]

Last paragraph, "... the processing of your eprsonal data was consented to by you" and they refer back to the application form signed by you in October 2000, which presumably is what they have failed to produce. If that is the case, you ned to write back and point out the inconsistency in their letter(s) - They say you signed an application giving your agreement but they cannot produce said agreement. Therefore the rest of the above letter is illogical

[ccman]

They have supplied the signed application, sadly! See page 1 but thanks anyway

[noomill060]

No, they provided you with a copy of a signed application form- no prescribed terms, therefore this is not a credit agreement.

[steven4064]

True, but the signad application form does effectively give them permission to process data