Chalkitup v Citi / 1st Credit

[Chalkitup]

Thank you for replies.

 

I have had a brainwave!!!

 

As this has been going on three years .......

 

What about I send them the letter I sent Rob Way / Horwich Farrelly post 37 here:- Chalkitup v HFC (Marbles) / Robinson Way - The Consumer Forums

Slightly changed of course .... but remember the Citi DN only gave me 11 days instead of 14 so I can leave that in!

 

Plus not heard anything from Rob Way / Horwich Farrelly since sending the terrific DiddyDicky "Put up or shut up" letter!!

 

Onwards and Upwards

 

Chalkitup

[bustthematrix]

the terrific DiddyDicky "Put up or shut up" letter!!

...and where may that be found sir?

[Chalkitup]

Sorry ...... I confused people there .......

 

The letter I sent Rob Way / Horwich Farrelly post 37 here:- Chalkitup v HFC (Marbles) / Robinson Way - The Consumer Forums

is the DiddyDicky "Put up or shut up" letter!!

 

Onwards and Upwards

 

Chalkitup

[diddydicky]

Thank you for your replies.

 

I am just about to put a letter together for 1st Credit. Can not decide if I should just keep it to a short sharp "Thanks for reconstituted agreements which are ok for s(78 ) information purposes BUT no payment from me until I see copy of original agreement" or go into detail somewhat regarding Carey etc AGAIN.

 

To be honest after three years of letters going backwards and forwards to 1st Credit and all the threats of court they have made I think them taking me to court would be a good thing for my cause ........... by the way ........ I rent where I live ...... on benefits ........ no assets ....... perhaps that explains why they never actually start court action!

 

Any views?

 

Onwards and Upwards

 

Chalkitup

 

 

dear sirs,

 

thank you for your letter of XXXX inst. The contents of which have been noted.

 

 

yours sincerely

 

XXX

[means2anend]

CIU

 

Did you note OFT's requirements imposed upon 1st Credit?

 

m2ae

[Chalkitup]

Yes I noted the requirements imposed by OFT on 1st Credit and have infact downloaded a copy to computer.

 

Thank you all for the advice and I have decided to go the short letter way ...... To be honest they never answer my questions anyway so if it ever gets to court then they may have to come up with answers!

 

Onwards and Upwards

 

Chalkitup

[means2anend]

If they dont answer your questions and it goes to court it can be used against them for abusing any attempt at pre action conduct...

 

Do not overly worry about this...I know it is easy for me to say because I am not in your shoes but believe me we can look at your situation more objectively.

 

..and indicators are that they are not sure...

 

m2ae:)

[seriously fed up]

Well i got my reply today from 1st Credit (see attachment). They have provided the financial information as required - though no evidence of its accuracy - but it least it put them to some trouble.

Then they go on to suggest that they have provided the necessary in respect of the T&Cs - but they havent provided the intervening (how we get from beginning to end).

They then suggest that in respect of my five requirements (see letter above) that the information that Citi has provided is accurate. There are a couple of things here

 

1. 1st arent taking the responsibility for the information but are prepared to endorse it - sort of this stuff is ok but it is nothing to do with us
   
2. in particular though, they have totally ignored whether the stuff they have sent is a copy of the executed agreement or not. Simple question. Yes or no answer and they have just blanked it. So they will be getting a letter back asking the question again and asking for a yes/no answer.
   

The response i have drafted so far reads like this:

Dear Sir or Madam,

 

Your ref

Re: my request under s78 of The Consumer Credit Act 1974

I refer to your letter of 21st June and thank you for the statement of account. However in response I wish to make the following points

1. You say varied terms have not been supplied. I acknowledge receipt of documents you assert are the relevant terms and conditions at the point that the account was taken over by Citi, and also documents you assert are the “original agreement” with RBS Nautilus. However

a. This does not include current terms and conditions, since as you assert yourself, these are the terms and conditions at the time the alleged account was taken over by Citi not the current or most up to date terms and conditions.

b. It does not include other variations between the time the alleged account was opened and the most recent set.

2. You assert that in response to my “five requirements” you consider the information supplied by CitiFinancial to “be correct”. However, in fact there is no cognisance of any of these questions. I said I require

a. A true copy of the executed agreement as required by the Consumer Credit Act 1974 and if varied, I require a copy of the original agreement, as the act and the law dictate, as well as copies of intermediate variations. As I pointed out above, you have not provided copies of intermediate variations.

b. If you maintain that the reconstruction that you have supplied, IS a true Copy of the original agreement, then I require you to state this fact in writing, signed by a duly authorised person. You have not so confirmed by simply asserting that you “consider the information supplied by CitiFinancial to be correct”.

c. I also require you to confirm in writing that the “True Copy” of this agreement was taken directly from the original agreement bearing my signature. Again I require confirmation by this document being signed by a duly authorised person. This issue has not been addressed at all, despite it being very simple – was the “true copy” you have provided, taken directly from the original agreement that bears my signature? This can only be answered yes or no. In this respect I would refer you to the judgement of HHJ Waksman in Carey v HSBC at paragraph 52 that “the thing to be copied ie the executed agreement, is, by definition, the document signed by the debtor.”

d. If you are unable to supply the requested documentation because no such agreement is in existence I require written clarification such as the OFT require. Again you have not addressed this question at all. You have failed to confirm that the documents you have sent are a true copy in that they are a direct copy of the original agreement bearing my signature. As such I can only conclude that the said document does not exist, and OFT regulations require 1st Credit to confirm this, but you have failed to do so. Should this failure continue, you will leave me no alternative but report 1st Credit on these grounds to OFT.

e. that you comply with my request within 7 days of the date of this letter. From the above, I think it is clear that you have failed to do so, and I will not correspond any further with you until I either receive a copy of the documents under a-c above, or clarification that such agreement doesn’t exist, as required by d.

Lastly you request that I contact you within the next 14 days to commence repayment of the outstanding debt. Yet as you must be aware, nothing you have sent me is enforceable in court. As HHJ Waksman points out (105, Carey v HSBC)

“The fact that the purpose of s78 falls short of the supply of proof or the best evidence possible of the executed agreement does not undermine this”.

The Consumer Credit Act is quite clear on this point. To be enforceable in court it is necessary (and I quote here from s61, para 1a) that there is “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” As is quite evident, the documents you have sent me do not comply with this as there is no signature. Now this may be satisfactory for s78, but clearly not for s61 1a. This inadequacy means the account can be enforced only by order of a court (s65 paragraph 1), but s127 (3) makes clear “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).” Therefore, as HHJ Waksman points out what you have provided falls short of the supply of proof”. Thus, to repeat, I require confirmation that the documents you have sent me are a copy taken directly from the agreement which does bear my signature, OR confirmation that you do not have access to this document (for instance it does not exist). These are very simple matters of fact and it should therefore be a simple matter for you to confirm this to me one way or the other. "

That is about as far as I have got so far. One of the "problems" is that so far they arent saying much more than "you owe us this, please will you phone us to arrange to pay it" - no threats of legal action etc (though I am sure these will come). But it does mean that they havent come up against any of the assurances they have given to OFT (yet).

 

Comments as always welcome about their letter and my draft response

IMG_0002.pdf

[means2anend]

Yes as DD and I were discussing on dissecting the Manchester Cases thread the receipt of a copy of the original is a long way from receipt of a copy of an executed agreement which I believe is what HHJ Waksman required..

 

You well know SFU that the distinction between the two lies in the fact that a copy of the executed agreement is taken from the agreement as defined in s189(1) and not merely a copy of a repopulated agreement from a document that did not satisfy the duty under that section.

 

They have deliberately omitted the word executed for original in a possible attempt to mislead...even they are not willing to endorse it..how much more so in court and UNDER OATH.

 

Your letter effectively encapsulates the whole deviance they are perpetrating.

 

m2ae

[Chalkitup]

Hello Both,

 

The docs I am now being sent from DCA's in reply to CCA requests are nothing like what I signed (I have my own copies I kept from the 90's and early 2000s) but as we know they are ok for s77/78 info purposes.

 

Is there a template letter anywhere on CAG yet that we can send back to the DCA's to put the point across. It is getting somewhat boring (as Equidebt accused me of being recently) sending letters backwards and forwards and just receiving their replies that to be honest are very misleading plus they never actually answer the important questions.

 

Talking of misleading ....... had letter back from DLC regarding my complaint that they returned my postal order and CCA request saying I have to contact Egg direct. They kindly wrote .... "We disagree that we have not replied to your correspondence and can only reiterate as per our clients procedures" (Forget the CCA 1974 then!!!) .... and added "To resolve the matter swiftly we have referred your request to our client (Egg) and once we receive a response we will update you". Plonkers ..... Why not just do that in the first place as they are meant to!!!!

I asked them to remove my telephone numbers from their systems ..... their reply ...... "We currently do not hold any telephone numbers on our system for your account" ....... Awfully clever then how their staff just happen to guess what my BT and mobile numbers are when they phone me ..... those would be the same phone calls that I have recorded!!!

Perhaps their staff should audition for Britains Got Talent as mind readers.

 

Onwards and Upwards

 

Chalkitup

Edited June 24, 2010 by Chalkitup
Speelling agin

[diddydicky]

i would keep it simple

 

if you have the originals and what they sent you are not true copies of those then i would not admit possession of the originals but merely respond and state that you do not beleive what has been provided are true copies of an original executed agreement and that they will be put to strict proof in any proceedings

 

It is for them to prove that they are- not for you to disprove- or to provide them with the means or opportunity to change the documents

 

let them have enough rope to hang themselves- the time for your copies to emerge (IMO) would be at disclosure

[bustthematrix]

Is there a template letter anywhere on CAG yet that we can send back to the DCA's to put the point across. It is getting somewhat boring (as Equidebt accused me of being recently) sending letters backwards and forwards and just receiving their replies that to be honest are very misleading plus they never actually answer the important questions.

 

Chalkitup

 

Try these The Consumer Forums - Debt collectors

[bustthematrix]

...are nothing like what I signed (I have my own copies I kept from the 90's and early 2000s) but as we know they are ok for s77/78 info purposes.

Have you checked the originals you have for compliance? Are they agreements or application forms etc?

[diddydicky]

i would not use a template letter

 

nor does it matter (at this stage) if the ones he has are valid

 

the point is that what they have supplied in response to s78 cannot be true copies and that would prevent them from enforcement

 

the danger of a template letter is that it may give away too much information

 

tailor it to suit

[bustthematrix]

True they would be prevented from enforcement.

 

For peace of mind and in order to be placed in a stronger legal position should things get that far, it's worth (and there's no harm) getting confirmation whether the agreements in his possession are at all enforceable, just in case the Lender digs up something further down the road.

 

That's not to say he ever has to disclose them and he can always lose them . It's been a few years after all...

Edited June 24, 2010 by bustthematrix

[Chalkitup]

Hi,

 

They are all application forms ....... all are missing prescribed terms ........ but two I did not copy the rear so not sure what was on there ....... and the Egg one is exactly the type that we are awaiting the outcome of pt court case.

 

Chalkitup

[means2anend]

CIU whenever you request a 'copy of an ''executed agreement'' as per s189(1)...state that while they are looking for it...that you ''shall also be making a concerted effort to locate yours'...that should keep 'em on their toes if you know what I mean

 

m2ae

[babybear39]

Just sticking my nose in a mo guys...1st crud trawl these threads

[means2anend]

Yes Babybear and if that copy is found THEN the one sent had better not deviate.

 

m2ae:)

[babybear39]

*BB waves to the guests*

[Chalkitup]

Thank you for replies ........ I have taken all advice onboard and will send letter to 1st Credit along the lines mentioned.

 

I really do appreciate all this help and sorry I am asking so many questions across so many threads ..... you would think I should have learnt all this as I have been on CAG a good few years but as CCCS stopped my DMP a few months ago I am being bombarded with letters from DCA's and OC's for around 12 accounts all at once. But obviously after receiving help re one account I can then follow suit on the next account without having to ask again.

 

Onwards and Upwards

 

Chalkitup

[Dotty50]

Never apologise for asking questions Chalkitup, how else do we learn on here!

 

That is what I believe this site is all about, to help each other with our experiences and gather ammunition from other peoples experiences.

 

Keep asking.

[Chalkitup]

Thanks Dotty50 ......

 

It was all getting a bit much for me earlier ..... perked up now and going foward to continue the fight.

 

Onwards and Upwards

 

Chalkitup

[Dotty50]

Glad to hear it.

 

It is a very stressful and emotional roller coaster for us all and by posting our worries or concerns on here it helps such a lot and it is a comfort to realise you are not alone in this fight!

 

Dotty

[bustthematrix]

... 12 accounts all at once. But obviously after receiving help re one account I can then follow suit on the next account without having to ask again.

 

Onwards and Upwards

 

Chalkitup

Absolutely. Though I don't envy you with 12 accounts, they do present a great opportunity to garner some solid experience. One day, you may well become a great helper to others based on your own tribulations!

 

If you took out these debts prior to 6th April 2007, you may well be surprised to find that not a single one is backed by properly executed agreements and many are backed by no discernible agreement whatsoever!