A & L - Enforcable Agreement???

[The GodMother]

HAHAHAHAHAHAHA.

 

Going for a charging order when u dont own a house.

Thats alsmost as good as me being told they will reposess my car when i dont own one.

 

If they do they will need to prove the following.

1) you OWE the debt.

2) you OWN a property.

3) THEY ARE NOT idiots.

[babybear39]

 

If they do they will need to prove the following.

1) you OWE the debt.

2) you OWN a property.

3) THEY ARE NOT idiots.

 

Bit difficult in this case as they've already dropped themsleves in it

[The GodMother]

yep BB they have.

 

Did u provide the spade?

[babybear39]

Nah the TGM, they already have some apparently

[The GodMother]

Dam.

[babybear39]

Dam.

 

No, not a dam, we're letting them dig a HUGE hole

[Multay]

I know, It's a brilliant one isn't it...I'm not really sure what to do with it...hehe

I don't know if I should reply pointing out that they still owe me an enforceable, legible agreement as the one they sent isn't and then add...PS..I sold my house ages ago so you are welcome to go for all the charging orders you like...Best of Luck...

 

I'm tempted to just let it run it's course but I think it's obvious they are going to go down the court route so I'm trying to prepare for that...

[Multay]

Hi Guys,

 

Would you mind having a look at this thread...

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/145452-stayingcalm-abbey-no-cca-3.html

 

They guy needs a bit of moral support - PT was helping but I think he's a bit busy at the moment...

 

Thanks,

[Multay]

Well, I thought things over and I think I'll send Optiva this...

 

ACCOUNT IN DISPUTE

DO NOT IGNORE THIS LETTER

Dear Sirs,

 

Account no xxxxxxxxxxxxxx

 

 

Re: my request under the Consumer Credit Act 1974

 

 

 

This account is in Dispute .

I must admit I am somewhat bemused by your threats of legal action etc. as this account is quite clearly in dispute.

Please allow me to précis the current position:

 

On 27th.May, 2008 I wrote to A&L requesting that Customer Service supply me a true copy of the executed credit agreement for this account.

In response to this request I was supplied a form which did not comply with the requirements of the Consumer Credit Act 1974.

They have not fulfilled my request under the CCA 1974 as the document sent is:

1) Illegible

2) Without full prescribed terms.

3) Incomplete with pages missing.

In addition the Terms and Conditions do not pertain to the alleged agreement as required by the Act.

They are now in default of my request and until such times as they send me a true copy of the agreement requested, the alleged debt is in dispute and any enforcement action on your part will be contrary to the CCA 1974, the Administration of Justice Act 1970 Section 40 and OFT guidelines.

The document sent purporting to be a credit agreement does not contain the prescribed terms as required by section 60(1) Consumer Credit Act 1974. The Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) made under the authority of the “1974 Act” sets out what the prescribed terms are, I refer you to Schedule 6 Column 2 of SI 1983/1553

 

Since this document does not contain the required prescribed terms it is rendered unenforceable by s127 (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 situation 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.

 

Further more, since the prescribed terms do not appear within the agreement you have supplied, the agreement is rendered totally unenforceable, as the prescribed terms must be contained within the agreement and not a separate document, case law confirms this opinion

 

I refer you to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

 

”[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated

consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting

the provisions of the two schedules the Judge said:

 

"33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which

are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the

minimum terms) are to be found in Schedule 1."

 

In addition should you continue to pursue me for this debt you will be in breach of the OFT guidelines, 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”

 

 

As it stands, the document supplied by your client supplied is not a valid credit agreement nor is it enforceable by any court

 

Firstly, I require all correspondence in writing from here on; any persistent attempts to contact me by phone will be reported to Trading Standards.

 

I require you/your client to produce a compliant copy of my credit agreement to confirm I am liable to you/your client for this debt; a mere copy of the same agreement will not suffice. If you cannot do so I require written clarification that this is the case.

Should you ignore this request I will report you to the Office of Fair Trading to consider your suitability to hold a credit license in addition to a complaint to Trading Standards, as you will be in breach of the Administration of Justice Act 1970 section 40

 

Yours Faithfully,

 

A&L have already had this but I don't think it will do any harm...

On another note, I have seen a few threads where it appears that Judges have been interpreting the CCA 1974 requirements and at least one person has lost a case even though the agreement didn't have the prescribed terms....I have to say I'm a bit worried now, I thought they couldn't do that???

M

[Pinky69]

An agreement must have the prescribed terms to be enforceable but a Judge can rule it enforceable if it has the prescribed terms but is not signed in the prescribed form ie with the creditors signature (CCA 1974).

[Multay]

I'll try and find the thread but this one didn't have the prescibed terms on it I don't think - This is why it's going to go to appeal...

 

All it had was a box above the signature saying I agree to be bound by CCA 1974 and a set of T&C's -I think???

[Multay]

Another update....Just when you think that they have peaked with the threat of a charging order on a house I don't own...They come up with a new one...

Today I got a letter headed:

 

"TAKE NOTE - IF YOU DO NOT RESPOND TO THIS LETTER BY TUESDAY 19 AUGUST THEN YOU WILL LEAVE US NO CHOICE BUT TO CONSIDER FURTHER PROCEEDINGS"

 

Then it goes on about mashing my credit file...But I digress, the thing is they say Tuesday 19 August but the letter is dated 4th.September 2008!!

 

Haha - As they have not put a year on the 19th August am I to assume that I have to comply by any 19th.August - I'll pick 19th.August 2033 in that case???

 

I know that they are testing a particle accelerator in Switzerland but I think A&L expecting me to time travel just yet is a bit previous..

I would love to use that if they take me to court...What do you think? Could I?

Even if I can't ths letter is a keeper...

[The GodMother]

lol what a bunch of *BEEP*

[cashins]

Then it goes on about mashing my credit file...But I digress, the thing is they say Tuesday 19 August but the letter is dated 4th.September 2008!!

 

 

The phrase "get a grip" comes to mind.:grin:

[The GodMother]

how about 19 August 2050 thats a good date u could aim for.

[citizenB]

You couldnt make it up could you.

[The GodMother]

not really CB. Just makes them look very good in the public eye.

[Multay]

They seem to be targeting me at the moment with the comedy letters...Maybe it's just blind luck...

 

I think I might reply to this one...See how they propose I contact them in the past...hehe

 

If I can come up with a suitable letter I'll post it up before I send it..

[The GodMother]

no dont do that they will say it is a typing error or summing daft like that.

[Multay]

true, I know you are right...That's why I think aloud on here before doing anything..Good advice and really appreciated by me..

 

It is tempting though.....I'm starting to get picky with the letters I reply to now, learning all the time. In the end I didn't send the other letter to Optima, I just thought b*ll*cks to it...Save my postage until the right time...

I do think A&L will go all the way though...But I will fight it, they have no original agreement and the copy they do have is missing all sorts..I will just have to hope I'm good enough by then to fight my corner properly when the time comes....

[The GodMother]

u will have our help.

 

we no all sorts of ways of issing off solicitors and DCAs as we are so good at it.

 

Maybe u should by some CAG address labels.

[Multay]

Well...I've just been told that I am being made redundant in two weeks...I really have no idea what I'm going to do now, I have no house anymore - I do a job that means it takes months for me to get a new one..

I really don't know what I am going to do...It's been my 40th birthday this week..Haha..Talk about memorable...Doesn't seem to matter how hard I try it goes to sh1t...I worked so hard in that job but apparently I am surplus to requirements now...

So what now...

I have never been out of work so I don't even know what to do next...God, I am really in trouble....

[babybear39]

I don't know what to say. All I can offer is my support *hugs* and hope you find another job soon.

[Multay]

I'm not sure either..I'm getting in touch with some contacts in the industry so maybe I'll get something from that but who knows..

 

The worst thing is that I just got settled...Had a realy bad time since I came back from America and split wth my GF of 13 years...Finally moved on, got rid of the house before it all crashed, met someone new and we were planning to move in together in a few weeks (found a beautifull barn conversion in the middle of nowhere, stables, massive pond, a lovely place)...She doesn't know this has happened as she's away on holiday and I'm not going to tell her till she gets back...

 

It means I might have to leave again - I don't know how I'm going to tell her...

[citizenB]

Ah Multay, I am so sorry to hear this. {{}}}