HBOS and OH's card debt

[citizenB]

Thanks CB - as always very helpful:D

 

So to clarify, my plan of action is

 

-Complain to Information Commissioners Office about state of envelope containing S.A.R - (Subject Access Request)

 

Yes, absolutely. Do you still have the envelope ?. If you can get a good photocopy of the damage enclose the copy and wait for the ICO to request the original envelope.

 

-Escalate complaint about CCA to FOS- is this to state non-compliance with the request, or inadequate/illegible/unenforceable information sent?

 

I think here it is a bit of a grey area. I would be more inclined to focus more on the issue that they cant proceed to court action without a compliant copy. Check out ReallyMadWoman's thread, Complaining to the Financial Ombudsman, I am sure she mentions something about that and also quotes the relevant legislation. If you havent got the link, yell and I will find it for you.

 

-Write to BlairOS informing them formal complaint has been made to FOS - do I need to add anything about the timing of the NIP as the complaint was still open so nothing should have been done until it had been completed?

 

Again, you have to let them know that without a compliant copy of the agreement they will encounter problems with court proceedings I am sure there is a sufficiently sarcastic letter floating around, I will have a look for you. Yes, also advise as this is still an ongoing official complaint you are surprised they have taken this route. Also advise you are now making an ofifcial complaint to both the FOS and OFT.

 

 

-Get the letter out to bos and blairos as per bankfodders cracker:D - thanks for pointing me to that one CB!

 

Brilliant isnt it ?

 

Do I also respond to HBOS' final letter? I realise I won't get a response from it, but would it help my cause if there's a letter on file stating the points I've raised in my last post - especially regarding the status of the account and non compliant CCA?

 

This could be a "banging head against brick wall " excercise, but again, Yes. You could respond to their points with your own. Making it quite clear that they havent responded to your complaint to your satisfaction and what action you are now planning on taking.

 

Lastly, I'm guessing from your reply that the NIP isn't too dreadful. Do I do anything other than send the letter telling them the complaint has gone to the FOS, like telling them there's no point in court action without valid CCA, and any action will be considered vexatious etc?

 

Will come back to this one in a minute. I am looking to find my NIP to see exactly what the content is

 

 

 

Sorry for all the questions! I haven't got to this stage with anyone else yet (although I think MBNA are going to be my next FOS letter unless they change pretty quickly), so I'm a bit unsure of myself:oops:

 

Nope, no worries. I have had to ask them as well. Best to be sure of your ground before wading in:)

[citizenB]

Can I just confirm on your Notice of Intended Court Action.. does it say something along the lines of:

 

Formal notice is hereby given that our client has instructed us to commence county court proceedings against you without delay.

 

Papers are now being prepared for commencement of action through your local court to seek a judgement against you.

 

??????????

 

Also have they given you any timescale for a response. ?

[citizenB]

Post 14 in the RMW's link will be particularly useful when making your compalint to the FOS. You might want to read it all though. There is a specific section in post 14 higlighted in red which deals with the lack of a compliant document without which they cant take further action.

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/136654-complaining-financial-ombudsman-service.html#post1453433

[lexis200]

You are such a star CB:D

 

Yep, the NIP does say that (I've remembered to attach it to the post at the top of the page now if you want to have a look).

 

It was dated on the 23rd and needed a response by the 30th. It reached me on the 30th:rolleyes: That's the only reason I didn't go into meltdown when it arrived - I kind of figured if it was that important they'd have sent it on the day it was dated (do they think we don't know they don't do this??) and posted it 1st class! I'm really hoping I'm right!

[lexis200]

Just had a look at that post, that'll be very helpful.

 

I've already read through the whole thread, but now that I actually need it I'll go through in more detail.

 

Oh, and I do still have the envelope, but obviously we had to open it so it's very ripped now! I did take pictures at the time though - do you think that'll do?

[citizenB]

Okey dokey.

 

I think RMW has in fact complained to FOS regarding the timescales of Blair Oliver Scott letters so that will be one point to note.

 

Yes, photographs will be ok initially. I am sure if they need to see it FOS will ask for it.

 

I am just going to walk the dog, I will then amend a letter I have and will copy it here for you.. about an hour OK ?

[citizenB]

PLEASE NOTE THIS LETTER HAS BEEN TWEAKED BY X20 IN POST 58 - PLEASE USE THAT VERSION.

 

 

Here you go Lexis, I am going to ask someone to pop in and just give this the once over for you.. so dont go sending it to Blair Oliver just yet

 

 

WARNING:

THIS IS A REQUEST UNDER THE CIVIL PROCEDURE RULES.

PLEASE DO NOT IGNORE.

 

I am in receipt of your letter dated 23rd October, this was received on 30th October 2008.

 

You have indicated that

 

a) You are giving Formal Notice that your client has instructed you to commence court proceedings against me without delay and

 

b) Papers are now being prepared for commencement of action through my local court to seek a judgement against me.

 

I am sure that you are aware that I have requested from your client, under both the Consumer Credit Act 1974 and the Data Protection Act 1998 (S.A.R - (Subject Access Request)), a copy of the agreement to which both you and your client allege I am a signatory. To date this has not been provided to me.

 

I am sure you are aware that under S77-79 of the CCA 1974, whilst a creditor is in default of a request they may not take enforcement action, i.e. they are not legally entitled to ask for payment. I therefore contend that your notice is intended to mislead me into believing that you attempting to exploit my lack of knowledge that

(a) you/they are entitled to take enforcement action through the Courts

(b) you/ they are entitled to demand payment

 

Given that this matter is now subject to a potential legal proceeding, you are obliged to provide, under the Civil Procedures Rules, information to ensure that all parties are on an equal footing and also to ensure the claim is dealt with expediently and fairly, avoiding an unnecessary burden to the court's resources.

 

Under the Pre-action Practice Directions - Protocols 4.6 (a) and (d) of the Civil Procedures Rules, I request that you supply copies of the following documents:

 

A true copy of the executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened. Please note that a "true copy" as defined by the Consumer Credit Act will not be acceptable in this case, and a copy of the actual executed agreement, including signature, is required.

 

This information is required within fourteen days from the date of this letter. I must advise you that if the information is not forthcoming, it will be reported to the Court that you are trying to deny me the opportunity to review my position in relation to your claim of alleged breach of agreement and any possible counter-claim.

 

 

Please note that, as you have initiated this action, failure to respond to this letter will place this account in clear dispute and as such you may not:

demand any payment on the account, nor am I obliged to offer any payment to you.

add any further interest or charges to the account.

pass/sell the account or outstanding balance to any third party.

register any information in respect of the account with any of the credit reference agencies.

issue a default notice related to the account.

Should you ignore any of the above I reserve the right for legal action for redress, and will show the court this letter. I will also report your actions to any authority that I see fit.

 

I look forward to hearing from you in due course.

 

 

Yours faithfully,

 

 

 

PRACTICE DIRECTION – PROTOCOLS

Edited November 6, 2008 by citizenB

[lexis200]

wow, that's quite scary!

 

Do I take it that I should be taking it seriously then, or is this more as a 'knock it on the head' course of action?

 

Having not been here before I'm not sure what my aim is - am I trying to force their hand, and if so how likely is it to end up in court? Obviously if the application that they've sent is all they have they shouldn't stand a chance, but I'd rather avoid that happening if at all possible!

 

Okay, just read the first part of the link you posted and I see this is in order to try and get them to do the right thing without the need for court - am I in the right area?

[citizenB]

Thank you lexis

 

I think it is a bit of a lottery really lexis. The document in your first post, isnt enforceable as it stands. If they had something different, I would have thought they would have sent it to you. What would be the point of wasting everyone's time in letters going back and forth unless it is some kind of job creation programme:confused:

 

OH has much the same sequence of events as you. He has received the Notice of Intended Court Action 3 times. At one point it got passed over to a company called APEX, who seemed rather keen to pass it back when they were advised of a dispute:D

 

I sent a similar letter to the one I have posted for you on the last of the 3 from BOS. That was in June, I have since received a letter from HBOS who have said they know they cant enforce legally, but will do so anyway!! I already had a complaint in with the FOS, heaven only knows when they will get around to that, especially as I keep adding to it:p I have sent bankfodder's letter and told Blair Oliver, I will not enter into any further correspondence until they either come up with the agreement or they proceed to court. It is a risk I know, as I dont want OH in court either.

 

One amusing thing came out of the letter, HBOS wrote to me and suggested that if I wanted the information requested then I should do it the correct way and send a CCA request with a £1.00 or a DAP (SAR) request and enclose £10.00. Umm, I already did.. which was why we had arrived at this point ??. Obviously BOS do pass these letters back to HBOS.

 

I sent a pm to x20 earlier on, I am hoping he can pop in and give that letter the once over for you and also to confirm if it is the right way to proceed.

 

Other than that, I really dont know what else to advise.

[lexis200]

That's great CB. I'll do as you advise and wait to see if x20 has anything to add.

 

Just reading back over the last few posts, assuming the CPR request letter is the right thing to do, do I send the Bankfodder one to BlairOS too??

 

btw - how can they justify sending 3 of these to your other half?? Surely if they send one giving you a week to respond, it kind of makes a mockery of it to send them repeatedly!

[citizenB]

Sorry Lexis, I received email notification last night, but havent been able to get on this morning till now.

 

That's great CB. I'll do as you advise and wait to see if x20 has anything to add.

 

I would really prefer someone else does have a look first I would hate to put you on the wrong path.

 

Just reading back over the last few posts, assuming the CPR request letter is the right thing to do, do I send the Bankfodder one to BlairOS too??

 

I would definitely send Bankfodder's letter to the OFT. The idea is to whack these guys from every which way. After all, it is what they do to us.

 

btw - how can they justify sending 3 of these to your other half?? Surely if they send one giving you a week to respond, it kind of makes a mockery of it to send them repeatedly!

 

Hah, I asked myself this question. They send one of their nasties out, I reply telling them.. ok, fine, go ahead sue me (not worried of course cos it is OH's account:-D. They return paperwork to HBOS .. few more rounds with HBOS. They then pass it back to BOS and round and round we go again !!!.

 

Another thought, you could just send the OFT letter and copy it to BOS saying.. in view of your client's reluctance to send me paperwork I have requested, I have now made an official complaint to the OFT.

[lexis200]

Excellent, I'll get onto doing that and see if anything else is added to your post in the meantime. If nothing is said by next week though, I think I'll go ahead and follow with your (very scary) letter - it does seem like a reasonable way to go as it at least might make them do something either way, rather than just this back and forthing!

 

Plus, as with you, it's not my account so why should I worry:D

[citizenB]

Excellent, I'll get onto doing that and see if anything else is added to your post in the meantime. If nothing is said by next week though, I think I'll go ahead and follow with your (very scary) letter - it does seem like a reasonable way to go as it at least might make them do something either way, rather than just this back and forthing!

 

Plus, as with you, it's not my account so why should I worry:D

 

I tamed the letter above down a bit. Mine was a bit more sarcastic:oops:

I think if you dont put them on notice, then you are just going to go round in circles all the time. I am going to take this approach with all of OH's creditors.

[angel_1]

hiya lexis and CB

 

im sorry you are having a bit of a bad situation with bos, and hbos, i m kind of reading the last posts and think im going to be here soon myself, so thank you both i may have to come back here and pinch that letter lol

 

anyway im really hoping its the way to go, for you lexis because im thinking lately all we seem to do is request and re request info and its costing us loads in postage and then back to square one again,

 

anyway good luck and hope you get to move this along in the right direction for you

 

going to have a bit of a wander and i will catch up laters ciao for now MAZ

[surfaceagentx20]

I have had a look at CB's noble letter and have made a few tweaks for your consideration, as follows:

 

Dear Sir,

 

Re :

 

THIS IS A REQUEST UNDER THE CIVIL PROCEDURE RULES.

PLEASE DO NOT IGNORE.

 

I am in receipt of your letter dated 23rd October, this was received on 30th October 2008.

 

You have indicated that

a) You are giving Formal Notice that your client has instructed you to commence court proceedings against me without delay and

b) Papers are now being prepared for commencement of action through my local court to seek a judgement against me.

 

I am sure that you are aware that I have long since requested from your client, under both the Consumer Credit Act 1974 (The Act) and the Data Protection Act 1998, a copy of the agreement to which both you and your client allege I am a signatory. To date this has not been provided to me and whilst I appreciate your client has endeavoured to persuade me that the provision of a copy of an application form is sufficient to discharge your client from further obligations under section 78 of the Act. Likewise I too have explained that the mere provision of a copy of an application form is not a legally permissable substitute for the provision of a true copy of the executed agreement as required under section 78 of the Act and as prescribed by Regulation 3 Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983.

 

I am sure you are also aware that under section 78(6) of the Act, whilst a creditor is in default of a request made under sub-section (1) they may not enforce the agreement.

 

Notwithstanding the foregoing and your client's persistent, unexplained and willful refusal to supply a copy of the executed agreement in accordance with its obligations (the permitted ommisions under Regulation 3(2) excepted), your client has made plain its intention to begin legal proceedings against me. In consequence this matter may now be treated as one which is subject to the control of the Civil Procedure Rules.

 

Take notice therefore that under CPR Practice Direction - Protocols paragraph 4.6(a) and (d), I request that you supply copies of the following documents:

 

[1] A true copy of the executed credit agreement incorporating prescribed notices, terms and conditions applicable at the time the agreement was executed and

[2] Any further or subsequent notices, terms and conditions relied upon.

 

Please note that my request under the Practice Direction is not a request for production within the confines of the Act and Regulations but rather, it is for a copy of the executed agreement, including signatures and all such other notices, terms and conditions as will be relied upon in the event that your client shall begin a claim.

 

A copy of the documents I have requested should be supplied to me within 14 days and you are urged not to begin proceedings for a period of not less than 14 days following the supply of those documents to me.

 

Should your client elect to ignore my request under the Practice Direction and commence proceedings, it is likely that I shall repeat my request for the provision of documents under CPR 31.14. In the event that your client should fail to comply with my CPR 31.14 request, I will not hesitate in making an application to the court for an order that further proceedings upon the claim be stayed pending provision of the requisite documents, in the course of which application I will of course refer to this and previous requests for the provision of copy documents.

 

I look forward to hearing from you within the time stated.

 

Yours faithfully,

 

One further point - has a default notice ever been served?

 

x20

[citizenB]

Much appreciated x20.

 

Lexix and maz, you are safe to go now.

[angel_1]

Good luck lexis let us have the update

 

thanks CB and to x20 too, what a brill letter, you see its really knowledge is power..

 

i salute you all that have given so much time and knowledge to us all

 

ciao keep happy MAZ

[lexis200]

Thanks very much for that x20, I'll be sending it out tomorrow.

 

I don't think a default notice has been served on this account - I'd have to check with OH, but I'm sure he said he hasn't had any (yet). Does that matter then?

 

Thanks again

 

lexis:)

[lexis200]

Hi

 

I've just printed out the CPR request letter, but I have a couple of questions.

 

First, I've realised the S.A.R - (Subject Access Request) wasn't actually requested from them - when I told them the application wasn't any good for the second time, they sent the same one a third time along with a load of statements and current t's and c's (freshly printed). I got confused as I've got SAR's going left right and centre at the moment! Anyway, I've just removed the 'and the Data Protection Act 1998' bit from the first main para. Is that OK, or should I have also requested the agreement under an SAR?

 

Secondly, as I'd obviously rather avoid court for OH (although I do fully accept this is a possibility), where it states 'In the event that your client should fail to comply with my CPR 31.14 request, I will not hesitate in making an application to the court for an order that further proceedings...', could I amend it to something like 'In the event that your client should fail to comply with my CPR 31.14 request, but still continues court proceedings, I will not hesitate in making an application to the court for an order that further proceedings...'

 

Whilst that gets a look over (hopefully!), I'm getting on with the absolute mountain of letters I need to write! Then I need to find out about claiming back all the bl***y postage costs I'm having to fork out:mad:

[surfaceagentx20]

Answers:

 

First - Yes

 

Secondly - Yes

 

x20

[citizenB]

:)X20 beat me to it.

[lexis200]

excellent - thanks to both of you:D

[lexis200]

I do have one other query...

 

I've checked statements going back to '98, and charges with contractual compound interest all but wipes out the balance. I'm wondering if there's anywhere I can go with this?

 

-Can you claim back further than the 6 years - ie to the first charge in '98?

-Could I use this as leverage with them?

-If, as the agreement is not enforceable, I eventually manage one way or another to get the balance reduced to £0, could I then claim back the charges, or is it a one or the other type situation?

 

Thanks again

[surfaceagentx20]

You may use such features as a defence by way of set off, but to the extent that a charge is excessive or penal etc and sounds in a counterclaim which is now statute barred, any such counterclaim is likely to be met with a limitation defence.

 

x20

[citizenB]

I do have one other query...

 

I've checked statements going back to '98, and charges with contractual compound interest all but wipes out the balance. I'm wondering if there's anywhere I can go with this?

 

-Can you claim back further than the 6 years - ie to the first charge in '98?

-Could I use this as leverage with them?

-If, as the agreement is not enforceable, I eventually manage one way or another to get the balance reduced to £0, could I then claim back the charges, or is it a one or the other type situation?

 

Thanks again

 

Hiya lexis, I have replied

 

I think there have been people who have managed to get charges beyond 6 years.

 

I guess you could try, see what happens. Complete your spreadsheet for the full amount and see where it takes you. This will also make them aware that you are disputing the balance !

 

This would be a good counterclaim should they decide to go down the court route as you could make a counterclaim in that the balance requested is made up of charges

 

I see x20 has advised that some of this would be subject to limitation so just make out your spreadsheet for 6 years and see how much that comes to.