Help needed re First Credit

[In a Mess!]

Hi everybody was looking some help regarding first credit basically i have an account with them re Alliance & Leicester they rang me one day and told me they owned the account and they would not accept payments of less than £90 per month i paid this for a few.months but it was too muh so i cancelled my dd and wrote to them requesting a copy of my cca. They acknowledged my letter and i heard nothing more until i got a phone call today a very intimidating phone call at that saying they had sent my cca request to Alliance & Leicester but as i had admitted liability by paying the debt they did not need to send me a cca i asked the guy for this in writing and he said their conversations were recorded and they would use the recording in court as evidence and if i didn't pay the full amount today their solicitors were bringing me to court to force a charge on my property.

After that the conversation got a bit heated and i hung up on him after telling him where to go so he can use that in court!!

Basically i need to know are they right that they do not need a cca? and what should i do next?

All help greatly appreciated

[sytra]

Is this a bank acc, credit card or loan?

 

They do need a CCA...

 

If you sent your CCA request with £1 then the ball is in their court, without a valid CCA they cant do anything really

 

Oh and never talk to them on the phone,

[In a Mess!]

Hi ye sorry it is a A&L Loan

I'm afraid of getting something from their solicitors should i write to them and say i am disputing their claim that they do not need a cca?

Sorry but First Credit don't even give you a chance to talk they try to bully you into making payments etc.

[sytra]

possibly try sending this to them, amend and edit to suit

ACCOUNT IN DISPUTE

Dear Sir or Madam,

 

DCA Ref:

Client Ref

Thank you for your letter dated ****. I must admit that I am rather bemused as to why this account is still being pursued by yourselves, as it is in dispute with ***** and has been since *****. Not only is this a breach of OFT collection guidelines, but also in breach of the Consumer Credit Act 1974 and Data Protection Act 1998

 

As ***** are now in default of my Consumer Credit Act request I consider this account to be in SERIOUS DISPUTE.

 

As you are aware while my Consumer Credit Act request remains in default enforcement action is NOT permitted, under s127 this constitutes a complete defence at law.

 

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

 

Furthermore, should it be your intention to arrange a “doorstep call”, please be advised that under OFT rules, you can only visit me at my home if you make an appointment and I have no wish to make an appointment with you.

 

There is only an implied license under English Common Law for people to be able to visit me on my property without express permission; the postman and people asking for directions etc (Armstrong v. Sheppard and Short Ltd [1959] 2 Q.B. per Lord Evershed M.R.). Therefore take note that I revoke license under Common Law for you, or your representatives to visit me at my property and if you do so, then you will be liable to damages for a tort of trespass and action will be taken, including but not limited to, police attendance.

Now I would respectfully suggest that this account is returned to (original creditor)***** for resolution of these defaults and breaches, as (DCA)****** cannot lawfully pursue any enforcement activities.

 

If (DCA ***) chooses to ignore my dispute and attempt enforcement, I will initiate legal action and file reports with the appropriate authorities, including, but not limited to, Trading Standards, Office of Fair Trading, Information Commissioners Office, Financial Ombudsman Service and possible court action.

 

After taking advice, I am of the opinion that any continued pursuit is in violation of the Administration of Justice Act 1970 section 40 as well as breaching a number of the OFT Collection Guidelines.

 

Additionally, you have entered a default notice against my credit record. This default occurred merely in respect of unlawful charges levied by you, or was the result of impecuniosity caused directly by the taking by you of penalty charges which you had applied unlawfully to my account

 

In addition to payment of the sum mentioned above, I require that you remove the default entry from the register. Please note that mere correction or amendment to the entry will not be acceptable

 

I would appreciate your due diligence in this matter.

 

I look forward to hearing from you in writing.

 

Yours faithfully

 

 

Remember DONT sign your name - either print it or use a digital signature

[In a Mess!]

Thanks i will amend that to suit but just another quick question

Does the same law apply in Northern Ireland?

Does anyone know if the guy from 1st credit is correct in saying that because the call is recorded he does not have to give me the information in writing?

[OldGlory]

Hi Guys

 

I have just posted a plea on the (1st Credit )thread & not this thread, can someone help me please??

[paying_citi_back]

Thanks i will amend that to suit but just another quick question

Does the same law apply in Northern Ireland?

Does anyone know if the guy from 1st credit is correct in saying that because the call is recorded he does not have to give me the information in writing?

 

In simple terms Yes.(to your second point)

 

I would send them and A&L, at the same time a Proper CCA Request, Cost £ 1.00 pound each, And I would suggest (nay insist you send it RD), Further to this I would also include a Full S.A.R - (Subject Access Request) for both and amend that they supply an Audio recording of the "alleged" conversation on CD or WAV file's in addition they should supply a Transcript of the conversation.. I will assume that they told you at the start of the conversation that it was being recorded

 

.S.A.R - (Subject Access Request) will cost £ 10.00 each, you could leave A&L out of this if you want but it can fire a warning shot in there direction...

 

I wish you well

 

PCB

Edited August 14, 2008 by paying_citi_back
Confirmation

[ODC]

IN a mess. NEVER speak to these wretched people on the phone. They will tell you all sorts of porkies about what they are going to do and fill your head full of nonsense. They cannot employ balliffs to come to your house and lift property. Baliffs can only be appointed by a court and only then if you fail to comply with a County Court Judgement.

 

Get the CCA off to these people as soon as possible. Send it Recorded Delivery and do not sign it. Send it with a £1-00 postal order. After 12+2 working days they cannot enforce the alleged debt unless they produce a properly executed CCA. If you are paying them the you should cease all payments to them forthwith. If they continue to harrass you for the alleged debt without complying with your lawful request then there are plenty of Legal Remedies open to you to deal with these people and their shoddy activities.

[In a Mess!]

Hi Guys

Need some more help please!!!

Basically after two phone calls from 1st credit last week threatening all sorts such as bankruptcy, forcing sale of my house etc if i was unable to pay my debt to them in full and advising me that they would not accept a monthly payment and no discount of the total amount owed would be given.

I sent them a SAR ( I already sent a cca request to which they have not replied)

Today i received a letter from 1st credit it was dated after the phone calls last week) it says that they are prepared to offer me a substantial discount of the alleged balance. and if i do not wish to accept this offer they are still willing to accept a monthly instalment offer.

Any advice anyone?

[ODC]

I dont know why you sent them an SAR.

 

Anyway as regards their seemingly generous offer of a discount I would take this with a pinch of salt. They have obviously received your CCA demand and may realise they will not be able to produce a valid properly executed CCA. Dont forget these are the gaunches who threatened you with all sorts of gloom and doom a few days ago and now faced with a Legal request for a CCA have decided to be Mr Nice Guy. Until they comply with your CCA do nothing.

[In a Mess!]

Thanks ODC

I sent them a SAR to get a copy of any alleged conversations etc they have on record with me.

How long do they have to comply with a cca request? I sent mine in June and still havent received a cca.

[ODC]

They have 12 + 2 working days. By my reckoning they are well past that. No wonder they are offering you a discount. Time to make a formal complaint to these wretched people. They should not be hassling you after failing to comply with your CCA request. You should also make a complaint to TS as they are in breach of several sections of the CPUTR 2008 in particular s.5(2), 3(b),6 and 7

[In a Mess!]

OK i will send a letter to 1st credit, & one to TS tomorrow

Thanks for your help.

[ODC]

Send this to Worst Credit

 

Dear Cretins,

 

 

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 DCA NAME supply me a copy of the credit agreement covering this account pursuant to the Consumer Credit Act 1974 section 78. To date DCA NAME 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 DCA NAME, 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;

 

 

 

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 DCA NAME become compliant with my request. As DCA NAME 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 out lines the situation

 

Regards

and this

STATUTORY NOTICE UNDER S10 DATA PROTECTION ACT 1998

At NO time have I given my written permission for you or your company to process my data

 

Therefore Take Notice that I require that you cease from processing within 7 days of the receipt by you of this notice or else that you do not begin to process any personal data of which I am the subject insofar as that processing involves the communication or passing of personal data of which I am the subject to any third party and insofar as the said data relates wholly or in part to the implementation by you of charges which have been applied to my account in respect of defaults or contractual breaches and where the said charges which have been levied at a rate which is in excess of the administrative costs incurred by you as a consequence of the said defaults or breaches contrary to The Common Law.

 

This Notice is given on the grounds that the processing or continued processing by you of the said data will be likely to affect my credit rating and my reputation and cause substantial damage and/or substantial distress to me and my family members in addition to that which may already have been caused and that as the processing of the said data in the way referred to in this notice would violate the fourth, first and sixth principles of The Data Protection Act 1998 to do so would be unwarranted.

Failure to remove ALL my data from your databases will result in a formal complaint to the Information Commissioners’ Office.

[paying_citi_back]

And don't forget Recorded Delivery (At Least), If they reply always keep the envelope !!!!!

 

Cheers