need help with Robinson way &co

[kerrygold2]

Hi i been reading on here and because i was in trouble i sent robinson way a cca for acoount the brought of The Store about 3 years ago. I never missed a payment until i lost my job and i could not afford to pay the min amount each month. This is the letter i received today abount my cca

We ref to the above account and the acknowledge your letter dated 16/04/2008

 

we advise that this debt has been legally assigned to us and that our assignment is an assignment of rights and not the duties of the creditor under section 189(1) of the consumer credit act. Our assignment gives us the right to collect the debt; but we ourselves are not lenders, and we are not obliged to provide you with any copy documemtation. You are however within your right o contact ,THE STORE, Directly.

 

As legal assignee under section 136 of the Law Of Propery Act 1925,

we are entitled to pursue you for the sums due under the assignment. In additition wee are also entitled to process your data.

 

Even if you were to demonstrate that there was to a failure under the Consumer Credit Act by ,THE STORE,, Rendering this account unenforceable, this does not mean that you do not owe the sum due.

 

Accordingly we would request that you arrange to make regular payments of your outstanding debt.Alternatively we may be able to discuss favorable terms to settle this account at a reduced rate.

we trust this clarifies our position

 

They also returned the postal order of the £1.00

 

can any body where do i go from here?

[pt2537]

Hi there,

 

they are talking utter rubbish to be frank

 

firstly, the Consumer credit Act 1974 under section 189 states

 

“creditor ” means the person providing credit under a consumer credit agreement or the person to whom his rights and duties under the agreement have passed by assignment or operation of law, and in relation to a prospective consumer credit agreement, includes the prospective creditor;

i have highlighted the important part

 

now for an assignment to fall within Section 136 Law of Property Act 1925, it MUST be absolute and not equitable, this basically means that they own the debt and all of the duties and responsibilities so they are telling you a story,

 

so on this basis they are obliged to provide you this information

 

However, if the assignment is equitable, then they would only have the rights but not the duties as they suggest in this line

 

our assignment is an assignment of rights and not the duties of the creditor

now, this will kill their arguement stone dead because section 175 of the CCA sets out

 

175.Duty of persons deemed to be agents.

 

Where under this Act a person is deemed to receive a notice or payment as agent of the creditor or owner under a regulated agreement, he shall be deemed to be under a contractual duty to the creditor or owner to transmit the notice, or remit the payment, to him forthwith.

they have a duty to pass on your CCA request if the assignment is equitable to the original creditor so either way they have to supply the info

 

 

 

 

I hope this helps

 

Regards

paul

[kerrygold2]

Thanks pt2537 for getting back to me can

How would you put that in a letter because i have no idea what to write thanks

[pt2537]

Hi,

 

well , im afraid i cant do much this evening as i am going out with the family for a meal,

 

i will try to take a look tomorrow and compose something for you to reply with

 

however, the medication im currently taking does affect my short term memory so if i forget just give me a nudge tomorrow evening and i will get my letter writing head on

 

Regards

 

paul

[Rahl]

I wonder if you even need to reply. It is not for you to notify them of their misinterpretations of their responsibilities, it is for you to await your cca and for them to fail to supply it in time.

[Rahl]

Wait it out while they mess about sending letters of no consequence , then when their time is up and they continue to hound you , you can incorporate the section 175 information as below , or something similar :

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 that you have a duty to supply either as equitable or as absolute assignees of this alleged debt under CCA s(175) . 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 outlines the situation

 

Don't send it now, only when they start writing you nasty letters after it goes into dispute.

[kerrygold2]

Hi thanks Rahl

thanks for the letter i was print it off for when they start sending them letter.

[pt2537]

I wonder if you even need to reply. It is not for you to notify them of their misinterpretations of their responsibilities, it is for you to await your cca and for them to fail to supply it in time.

 

Ah, the 64 million dollar question, do i tell them or not.

 

Now my personal opinion is that it is worth setting out the facts to a DCA or OC, yes i agree with the logic that its not really for us to tell them the law but we must not forget that many of these cases do end up in the court room. now, i personally think its much better , when you get to that scenario, when the judge says "But they sent you a letter telling you why they were not obliged to send you the credit agreement" you turn round to the judge and say, "yes sir, they did, however they were clearly wrong for the following reasons ...... and further more i wrote to them on xxxx and sent it via recorded delivery ,heres a copy of the letter , you can clearly see that their arguement is wrong and is in error on a point of law" or if you dont reply, what do you say "ERRRRRR Yeah they wrote to me and i ignored it cos they should know the law" which one is most likely to impress the judge;)

 

we must not forget that some judges dont know a great deal about assignments or consumer credit matters so we must make sure that we set our cases out clearly and are squeaky clean

 

Thats my personal view anyway

 

Regards

 

Paul

[Rahl]

I would have said to the judge that I had addressed their erroneous letter regarding their obligation in the above letter where it says ...that you have a duty to supply either as equitable or as absolute assignees of this alleged debt under CCA s(175). As they still have the opportunity to provide the cca at this point and is again asked for production under 'what i require' .

 

But I do not know much about all this , so maybe it is best to send a letter now. I found one on diskman daves thread if interested ), he had the same letter from Robinson way..

 

Here is the letter he replied with :

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/71386-diskmandave-robinson-way-co-13.html#post921645

Edited May 12, 2008 by Rahl

[kerrygold2]

thanks for all the help i have printed letter and it will be in the post first thing tomorrow i think i got a long road ahead with this company:confused: i just new at this and get wrong everytime a letter come throw my letterbox

[Rahl]

Don't post that letter yet, that is for when they come back to you with more letters requiring payment after they fail to supply the cca in time . It is best to wait for Paul's letter and his advice. The diskman dave thread is for purusal so that you have an idea what others did in your situation. Wait for Paul's advice on this, it is the best thing to do.