RBS, defaults, DCA's and SAR - answers please?

[pt2537]

Dear XXXXXX

 

Acc No XXXXXXXXXXXXXXXXX

 

Re: Statutory request pursuant to Consumer Credit Act 1974

 

 

Thank you for your letter dated xx/xx/2008, the contents of which are noted. I must draw your attention to the fact that this account is subject to a serious dispute.

 

On the xx/xx/2008 I wrote to your company requesting that you provide a copy of the written contract, in this case the credit agreement upon which this debt, which you claim a right to recover is based. You will no doubt be aware that this debt is credit as defined within the Consumer Credit Act 1974 and as a result, pursuant to section 78(1) of the Act I may demand a copy of the credit agreement at any time as long as the statutory fee of £1 is paid.

 

Your response to my request leaves me a little confused, I must point out that it would appear that you have mis interpreted the law as your response has major inaccuracies within it

 

Firstly you state that you purchased the debt, and have the right to collect and add interest. Let me clear this up for you, you may have the right to collect or attempt to collect but any right to add interest would be based upon the contract. Since you cannot provide a copy of the contract, I would have to ask under what provision of law do you believe allows you a right to add outside of the written contract?

 

Secondly, you state that you are not the original creditor nor did you provide the original credit facility. Now then, either way, you have a duty to ensure that the correct documentation is provided.

 

If you are assigned a debt and the assignment is absolute, it would come within section 136 of the Law of Property Act 1925. Now surely you will be aware of the definition of “Creditor” within the consumer credit Act 1974, section 189(1) of the CCA 1974 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

 

 

Therefore if you are claiming that the assignment is absolute you have the same duties as were placed upon the original creditor and MUST supply me on demand with a true copy of the original agreement. However, if you purport that the assignment is merely equitable and not absolute I.e. you have the rights but none of the responsibilities under the agreement, then I draw your attention to section 175 of the CCA 1974

 

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

 

So clearly, you would have a duty to pass my statutory request on to **CREDITOR** for them to supply the information, I would like to point out that the OFT guidelines on debt collection make it clear that all collection activities should cease while a reasonably disputed debt is investigated and you seem not to have placed the account on hold which Is in breach of those guidelines

 

Also since you cannot provide a copy of the credit agreement, this debt becomes unenforceable in law, furthermore, any rights to process my personal data and defame my credit file would be contained within the written contract, the contract which you do not appear tohave!

 

Im sure I don’t need to go over the vast amount of case law that has been before the Court of Appeal and the House of Lords but I will outline the facts from the Judgment of LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul)

 

 

 

 

29. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order.

 

Clearly No Credit Agreement, containing the prescribed terms as per Consumer Credit Agreements Regulations 1983 Schedule 6 Column 2 and signed by the debtor, that can be produced before the court means the court cannot enforce the debt. This is mirrored in the following cases….

 

Wilson and another v. Hurstanger Ltd [2007] EWCA Civ 299

 

London North Securities Ltd & Mr and Mrs. Meadows [2005] EWCA Civ 956,

 

 

Dimond v. Lovell - [2000] Q.B. 216,

 

 

Rankine v Barclays Bank Plc [2005]

 

 

Im sure your legal department will be aware of these cases, but should they not be fully conversant, then I can provide copies of the judgments

 

To clarify my position

 

 

I do not have any debt with your organisation, I do not acknowledge any debt with your organisation and I shall not enter into any negotiations to settle any debt you claim I have with your organisation

 

Until such time that you can produce before me a copy of the credit agreement containing the prescribed terms in the prescribed form bearing my signature, I will not discuss this matter further. Further more, I put you on notice that any further attempts to collect this debt or any harassment by your company to coerce me into paying you monies before you provide me the documents that I requested, then I shall issue you a letter before claim, complying with the pre action protocol Para 4.3 placing you on notice that I will be issuing proceedings in the xxxxxxx County Court against your organisation seeking a judicial ruling pursuant to section 142(1) of the CCA 1974 to determine the validity of this debt. I must point out that the court has the power to discharge a debtor from their obligations under section 142 and I am advised that any action that I could bring under that section has an excellent prospect of success as the facts stand and furthermore I would ask the court to consider costs in this matter

 

I again invite you to provide access to the original agreement showing that it contains the prescribed terms and is signed by both the original creditor and myself. If you are unable to do so, then I would invite you to give consideration to writing the balance off and closing the account

 

I am mindful of the fact that litigation would lead to added costs and time on both sides and therefore I urge you to consider this situation and act accordingly, from the advice I have received it is clear to me that I have a good prospect of success based upon these arguments and I do not wish to have to press this issue before the courts unless totally necessary.

 

I respectfully request a response to this letter within 14 days setting out your position

 

 

 

 

 

 

Hi

 

they are talking utter tosh,

 

 

heres a letter i used to rip (In) Aktiv Capital apart a while ago,

 

feel free to use and modify it to suit your circumstances

[pt2537]

Darn you Paul you type faster than me

no,its just i use Cut and Paste

[pt2537]

Thanks for the quick response, to clarify so far:

 

They are trying to confuse me with their stated examples of law in the hope that I will be convinced that I am wrong and just go away? Exactley,

 

that this letter is a typical delay tactic? No its a Load of Ball Hooks thats what it is

 

that it actually looks like they cannot furnish me with a copy of the original agreement and therefore all monies I have paid them over the last 7 years they are not entitled to? Ah a murky area of law, you are stating that you are entitled to restitution due to payment by mistake of Fact and/ or Law

 

i think its best not to tread that ground;)

 

I also just need to clarify a point in your example letter - your letter says that,

 

"To clarify my position

 

 

I do not have any debt with your organisation, I do not acknowledge any debt with your organisation and I shall not enter into any negotiations to settle any debt you claim I have with your organisation" You can refuse to acknowledge a debt at any point, especially given that they have failed to comply with a lawful CCA request

 

my problem is that I have acknowledged the debt and have been paying it since may 2001. Does this change anything? also, what do I do with the postal order? Spend it on whatever do I resubmit another CCA including the example letter you posted and send them the postal order again and start another 12 day countdown?Nope id just send em the letter, they have had the CCA request and it remains outstanding

 

 

....

[pt2537]

nice, can i have an agreement like that please:D

 

oh im sorry, i forgot to mention that i cant see any prescribed terms in there so its unenforceable as the agreement stands

[pt2537]

May be an idea writing back to them and asking them to clarify if that is it? as the last thing you need is them to pull out of the bag at a later stage a document which has the prescribed terms within it which is linked to the agreement