HBOS and OH's card debt

[babybear39]

If they become a pain, use DMD's telephone harassment letter:

 

- HARASSMENT WARNING -

WARNING; PROTECTION FROM HARASSMENT ACT 1997;

WARNING; COMMUNICATIONS ACT 2003. s127.

 

Telephone Number: {Your Telephone Number}

Re: Harassment by telephone

 

Dear Sir/Madam.

 

I am writing in relation to telephone calls that I have received from your organisation, which I deem to be personally harassing. I have verbally requested that these calls stop, but I am still receiving call. I now require the telephone number listed above to be completely removed from your systems.

 

I am in the view that your continued telephone calls put you in breach of the Protection of Harassment Act 1997.

 

This is a private telephone line, operated on a contract with the intention of receiving and making personal phone calls, I have not authorised any other member of my family to receive calls from your organisation using this PRIVATE TELEPHONE LINE.

 

By using this telephone number without my permission you are interferring with my ability to use my own private property for the duration of any call.

 

It is my right to require that this telephone line, which is licenced solely to myself, is kept clear for my own personal calls.

 

It is consquently my view that you are commiting the tort of interference with contract insofar as for the duration of each call you make to me without my permission, you are interfering with my contractual right to receive and make personal calls on my private telephone line.

 

Continued interference with my contractual rights in this manner may result in legal action.

 

If you continue to harass me by telephone, you will also be in breach of the Communications Act (2003) s.127 and I will report you to the Office of Communications, Trading Standards and the Office of Fair Trading, meaning that you may be liable for a substantial fine.

 

Be advised that all telephone calls from your company will be recorded.

 

 

Yours faithfully,

 

Amend to suit, DO NOT SIGN, print your name, send recorded and keep a copy with your postal receipt.

[lexis200]

Just bumping up with a couple of questions -

 

We've been getting these calls from Blair et al, obviously regarding the non-payment of the account, so I need to tell them it's in dispute. However, we're also getting letters (still addressed to my parents which needs to be sorted out) from HBOS directly, saying they're looking into my complaint. I'm assuming this is in relation to me being unhappy with the 'agreement' they sent.

 

So, do I write to Blair and tell them account's in dispute, HBOS looking into it, or do I wait for the response from HBOS to my complaint, which they say will be by the 26th (although this is the second date they've given now), and then have a go?

 

Any ideas welcome:D

[lexis200]

Well, further to my last post, OH had a phone call this morning from Blair etc, which I told him he needed to answer (they're handling 2 accounts of his and I needed to know which they were chasing on!).

 

Turns out it was the one that's in dispute, which they've now been told, so they're going to 'hold off out next course of action for 10 days'. Very nice of them considering legally they have to hold off on any course of action until we have something better from them!

 

The thing that really interested me though, was that when OH said he'd written and had no response, the woman he spoke to said, and I quote (well mostly, this is from this morning:)) 'we are unable to give a personal response because we don't have a letter available for this situation'. At which point hubbie asked if they were incapable of writing their own letters, and was told 'yes'.

 

So it's templates all the way then! This conversation did go on a little longer as hubbie just couldn't believe they really couldn't reply properly, but the upshot was if it wasn't already written and on their computers ready to be sent, they can't/won't (not sure which) write one themselves.

 

I have no idea at what stage you do actually start to get a proper letter - they must at some point surely? - but I find this incredible. I realised the majority of their correspondence would be templated, otherwise the workload would just be ridiculous, but to admit they can't do anything other than this???

 

Anyway, we're still waiting on the complaint response from HBOS, so will know more when that arrives.

[lexis200]

Hello again all

 

We had another call from BlairOS this morning, and I thought you might like to see the upshot.

 

They're not actually bothering us as we've only had about 3 or 4 more calls since my last post (none of which were answered), and to be honest, OH said the lady he spoke to was very nice so that's not an issue...at the moment.

 

ps Thanks for the letter Babybear - I've copied it into my ever growing template folder:D

 

Anyway, I've copied this from my HBOS thread if you fancy having a look - I found it interesting:)

 

Well, further to my last post, OH had a phone call this morning from Blair etc, which I told him he needed to answer (they're handling 2 accounts of his and I needed to know which they were chasing on!).

 

Turns out it was the one that's in dispute, which they've now been told, so they're going to 'hold off out next course of action for 10 days'. Very nice of them considering legally they have to hold off on any course of action until we have something better from them!

 

The thing that really interested me though, was that when OH said he'd written and had no response, the woman he spoke to said, and I quote (well mostly, this is from this morning:)) 'we are unable to give a personal response because we don't have a letter available for this situation'. At which point hubbie asked if they were incapable of writing their own letters, and was told 'yes'.

 

So it's templates all the way then! This conversation did go on a little longer as hubbie just couldn't believe they really couldn't reply properly, but the upshot was if it wasn't already written and on their computers ready to be sent, they can't/won't (not sure which) write one themselves.

 

I have no idea at what stage you do actually start to get a proper letter - they must at some point surely? - but I find this incredible. I realised the majority of their correspondence would be templated, otherwise the workload would just be ridiculous, but to admit they can't do anything other than this???

 

Anyway, we're still waiting on the complaint response from HBOS, so will know more when that arrives.

 

I'm sure it's been well documented before, but I thought it might be of interest anyway!!

 

L:)

[babybear39]

Hello again all

 

We had another call from BlairOS this morning, and I thought you might like to see the upshot.

 

They're not actually bothering us as we've only had about 3 or 4 more calls since my last post (none of which were answered), and to be honest, OH said the lady he spoke to was very nice so that's not an issue...at the moment.

 

ps Thanks for the letter Babybear - I've copied it into my ever growing template folder:D

 

Anyway, I've copied this from my HBOS thread if you fancy having a look - I found it interesting:)

 

Well, further to my last post, OH had a phone call this morning from Blair etc, which I told him he needed to answer (they're handling 2 accounts of his and I needed to know which they were chasing on!).

 

Turns out it was the one that's in dispute, which they've now been told, so they're going to 'hold off out next course of action for 10 days'. Very nice of them considering legally they have to hold off on any course of action until we have something better from them!

 

The thing that really interested me though, was that when OH said he'd written and had no response, the woman he spoke to said, and I quote (well mostly, this is from this morning:)) 'we are unable to give a personal response because we don't have a letter available for this situation'. At which point hubbie asked if they were incapable of writing their own letters, and was told 'yes'. In writing only

 

So it's templates all the way then! This conversation did go on a little longer as hubbie just couldn't believe they really couldn't reply properly, but the upshot was if it wasn't already written and on their computers ready to be sent, they can't/won't (not sure which) write one themselves. Well they have to learn a new one quick sharpe

 

I have no idea at what stage you do actually start to get a proper letter - they must at some point surely? - but I find this incredible, not really, it's HBOS/BOS you're dealing with. I realised the majority of their correspondence would be templated, otherwise the workload would just be ridiculous, but to admit they can't do anything other than this??? Again HBOS/BOS

 

Anyway, we're still waiting on the complaint response from HBOS, so will know more when that arrives. Make sure you only give them the 8 weeks allowed by FOS and pass to FOS if not satisfied. £450 for the pleasure of investigating a complaint.

 

I'm sure it's been well documented before, but I thought it might be of interest anyway!!

 

L:)

 

Try all that and make a nice little complain to FOS

[reallymadwoman]

I was once told by a lady at Blair et al that they don't have time to open post unless they think there's money in the envelope (hint: anything you send to Blair, mark 'Payment enclosed'). I am not at all surprised that they don't write their own letters though. If you send enough complaints you may eventually get a response, but it will be either from Bank of Scotland or Halifax. It doesn't actually seem to matter who the account was with originally though, it seems to be entirely random which letter head they use.

[lexis200]

Cheers BB, will do! They have until the 26th (the second deadline they've set themselves), then I need to get onto the FOS to stick in a complaint re non-compliance.

 

I've seen the 'payment enclosed' trick before RMW, and I like it... was it you I saw on another thread who not only marked the envelope with that, but also 'forgot' to add the payment - oh, and a stamp;) I loved that one!

[reallymadwoman]

Me? I wouldn't do anything like mark envelopes 'payment enclosed' when there isn't or forget to put stamps on them. That would be mean.

I might sometimes forget to put the payment inside or forget to put the stamp on, but that's entirely due to my medical condition, honest.

[lexis200]

Hehe

[lexis200]

Hi

 

I recently sent a CCA off to BOS for my OH's card. As a response they first reduced his limit down to just above the balance owed (not really a problem seeing as he hasn't used any cards for months now, but still, how petty!!)

 

Anyway, I've just had his 'agreement' back from Bank of Scotland - this is the second one with them (first is being handled by Blair Oliver Scott), and it looks to be just as atrocious as the first one.

 

It came as two separate photocopies/printouts, with no reference numbers that I can see to link them, and a nice freshly copied set of new terms. It's as illegible as it looks on Photobucket. I can't see much, but I'm pretty sure there's no prescribed terms.

 

Also, in their covering letter, their last line is 'Please note that the information we have provided you with is all the information we are able to provide you with Under Section 78...'

 

Am I right in thinking I should be pretty pleased about that?

 

On the back of this, should I be sending the 'illegible, no prescribed terms, wrong t's and c's, no debt acknowledged' letter?

 

Also, if this really is all they have, is there any likelihood of being able to get interest he's paid back? I've seen a few threads on this but not much that I can go on, and tbh with the problems we have at the moment if we can get anything back I'm willing to give it a go if possible.

 

Images copied below (hopefully!)

 

Thanks for any help:)

 

bos1.jpg - Image - Photobucket - Video and Image Hosting

 

bos2.jpg - Image - Photobucket - Video and Image Hosting

[lexis200]

Could anyone have a quick look at my images please, as I'd really like to get an 'in dispute' letter off to them, but I want to make sure it's correct.

 

FYI, I've included that it's illegible, has no prescribed terms and the t's and c's are current, not originals. If anyone can confirm I'm right about this I'd be very grateful!

 

Thanks

 

Lexis:)

[42man]

Unenforceable in my opinion for exactly the reasons you have said Lexis...

 

And it is illegible....

 

You could send them this....

 

This account is in Dispute .

 

On xx/xx/2007 I wrote to xxxxxxxxx requesting that xxxxxxx supply me a true copy of the executed credit agreement for this account.

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

 

The document sent purporting to be a credit agreement does not contain any of 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 for the definition of what is required. Suffice to say none of the terms are present in the document

 

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.

 

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

 

Also please note that the document you have sent me is illegible....

 

I refer you to The Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 SI No. 1557

 

Legibility of notices and copy documents and wording of prescribed Forms

2.-(1) The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the colour of the paper

[lexis200]

Thank you very much 42man, you're a star - I'll be getting that letter off today!

[lexis200]

Okay...

 

OH had the reply about the illegible agreement a couple of days ago. I've attached the reply, and the two possible replies from me to them.

 

I'd really appreciate it if someone could have a look and see if what I've knocked up is ok - if I've used the correct quotes from the correct acts etc, and if there's anything I should add/take out from either letter. I'd also like to know which would be the better one to send, as they are written in slightly different ways. If they're completely off I really want to know:D

 

Also, I didn't know what to put about the 'you've used the account for the last x years' bit. Should I even acknowledge that para or do I just ignore it completely?

 

Any help gratefully received!

 

bos11.jpg - Image - Photobucket - Video and Image Hosting

bos21.jpg - Image - Photobucket - Video and Image Hosting

[lexis200]

Letter no. 1...

 

 

Dear xxx

 

Re − Account Number xxxxxx

 

Thank you for your letter dated xxx September, received by me xxx September, in response to my correspondence of xxx July.

 

I would first like to state I am extremely unhappy with the way my personal information was sent to me. My statements over the last 6 years, the copy of my application, and your letter to me detailing my account and its status were sent in a standard window envelope. When it arrived through my letterbox, both sides of the envelope were completely ripped, leaving the contents clearly visible on either side.

 

For this type of sensitive information, I would expect at the very least a Tyvek type envelope that is stronger and more weather resistant than a standard paper envelope. I am very concerned that any member of the Post Office to come across this packet could have easily seen the contents. I have enclosed photos for your convenience, and I look forward to your comments regarding this appalling lack of security of my personal documents.

 

With regards to the contents of your letter, I stand by my assertion that this account is in dispute, and I give the following reasons.

 

Firstly, you directed me to sections 189 and 180 of the The Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983, citing sections 3(1) and 3(2). These sections are very clear on what may be left out of a copy document, and by default, what must be included. Regulation 3(1) requires that, subject to certain limited exceptions, any copy of an unexecuted agreement must be a ‘true copy’. This means that it must be identical to the agreement as presented or sent to the debtor for signature.

Regulation 3(2) goes on to detail what may be excluded from copy documents, and states

 

 

There may be omitted from any such copy-

(a) any information included in an executed agreement, security instru*ment or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations there under as to the form and content of the document of which it is a copy;

 

As you appear to be relying on this part of the Regulations in an attempt to back up the insufficient paperwork sent to me, I’m sure you will agree the line in bold is of particular relevance. As you are well aware, there are several prescribed terms which are required on a Credit Agreement, none of which are on the application form you have sent me. It is not sufficient to send a copy of recent terms and conditions in separate pages – the required prescribed terms must be laid out in the prescribed form within the copy document. I should also mention at this stage that the current terms and conditions you have sent me are incorrectly addressed. The address you have used is neither the one which applied when the account was opened, nor my current address which you have sent your reply to.

 

You also appear to have completely ignored the fact that the application form you have sent me is entirely illegible. I draw your attention to Regulation 2(1) which states:

The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the colour of the paper.

 

I hope this outlines the situation with complete clarity, and explains why I firmly hold that this account is still in dispute.

 

Further, I would like to address your claim that I have no right to withhold payments. I find this claim very strange as it is clearly stated under section 78 of the CCA 1974:

 

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;

 

I can only assume this is a deliberate attempt to mislead me, unless you can provide proof as to your claim.

 

As I have not received a copy of the original agreement as required, you are also precluded from processing my data, and as such may not pass on my details to any third parties. Whilst the account remains in dispute you may not issue any Defaults.

 

Notwithstanding the fact that the application form sent is illegible it does not contain the prescribed terms contained within Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553). Without production of a compliant executed agreement I am unable to asses if I am indeed liable for any alleged debt to you, nor does it give me any chance to evaluate whether any original agreement was ‘properly executed’.

 

I still require you to send me a true copy of the original credit agreement that you allege exists. If this is the case, it would appear to me that sending the correct signed copy rather than an illegible application form along with current terms and conditions would clarify matters completely. As you will know, under the Consumer Credit Act 1974, a judge is not permitted to make any enforcement order unless the creditor can provide a true signed copy of the original credit agreement. This means that unless you can produce such an agreement, this alleged debt is not enforceable in law.

 

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.

 

No other correspondence will be accepted

 

I trust this out lines the situation

[lexis200]

and no 2...

 

Dear xxxx

 

Re − Account Number xxxxxxxxxx

 

Thank you for your letter dated xxx September, received by me xxx September, in response to my correspondence of xxx July.

 

I would first like to state I am extremely unhappy with the way my personal information was sent to me. My statements over the last 6 years, the copy of my application, and your letter to me detailing my account and its status were sent in a standard window envelope. When it arrived through my letterbox, both sides of the envelope were completely ripped, leaving the contents clearly visible on either side.

 

For this type of sensitive information, I would expect at the very least a Tyvek type envelope that is stronger and more weather resistant than a standard paper envelope. I am very concerned that any member of the Post Office to come across this packet could have easily seen the contents. I have enclosed photos for your convenience, and I look forward to your comments regarding this appalling lack of security of my personal documents.

 

With regards to the contents of your letter, I stand by my assertion that this account is in dispute, and I give the following reasons.

The Consumer Credit Act 1974 demands that I be supplied with a true copy of any properly executed credit agreement that exists in relation to the above account. I may ask for this on demand providing that a fee of £1.00 is paid. This fee was sent with my original letter.

 

My request remains outstanding. All you have sent is a pre-contractual application form and a current set of terms and condition. The current set of terms and conditions are not sufficient to satisfy my legal request, and I should also mention at this stage that they are incorrectly addressed. The address you have used is neither the one which applied when the account was opened, nor my current address which you have sent your reply to.

In addition, the application form is illegible and therefore not compliant with the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557). I draw your attention to regulation 2 (1) which sets out how copy documents must be presented

 

Notwithstanding the fact that the application form sent is illegible it does not contain the prescribed terms contained within Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553). Without production of a compliant executed agreement I am unable to asses if I am indeed liable for any alleged debt to you, nor does it give me any chance to evaluate whether any original agreement was ‘properly executed’.

 

I still require you to send me a true copy of the original credit agreement that you allege exists. As you will know, under the Consumer Credit Act 1974, a judge is not permitted to make any enforcement order unless the creditor can provide a true signed copy of the original credit agreement. This means that unless you can produce such an agreement, this alleged debt is not enforceable in law.

 

For the avoidance of any doubt I have included section 78(1) 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.

 

For an agreement to be properly executed it must contain certain terms and be signed by both debtor and creditor. The required terms are laid out in regulations (SI 1983/1553) and is covered by sections 60 and 61 Consumer Credit Act 1974

 

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, among other things: - 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

 

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.

 

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. I will re-iterate that this is clearly not a true copy of the executed agreement between the Bank of Scotland and myself.

 

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.

 

No other correspondence will be accepted

 

I trust this out lines the situation

[citizenB]

Hi lexis, those look ok.

 

Just to confirm, Blair Oliver Scott are the Collection agents for both Halifax and Bank of Scotland.

 

Both Halifax and Bank of Scotland are becoming increasingly reliant on the "you have had it now pay it" argument as are Barclaycard. Petulant is the word I would use to describe the tone in their letters.

 

Blair Oliver are usually seen off fairly swiftly should you receive one of their "Notice of Intended Legal Action" letters which they love to send out in respect of disputed accounts.

 

Head any of your letters to these 3 "ACCOUNT IN DISPUTE," I normally colour it in red as well, centred under their address and just before "Dear Sir".. just in case they miss it.

 

You will find they totally ignore any contraversial questions like.. Where is the agreement.. why havent you responded to my official complaint, etc.

 

The most recent letter I received from Halifax, advised me in no uncertain terms that they "were aware they were unable to enforce the agreement, however they were going to continue their normal collection activity".. hmmm.

 

Best you collect any evidence of telephone conversations, letters that arent overly friendly and if they havent responded to your letters favourably within the 7 days. Make a complaint to the Financial Ombudsman.

 

ReallyMadWoman's thread on complaining to the FOS is a really good read and helps out with all the sections these companies are prone to ignore so willingly.

[citizenB]

BTW, I was unable to access the page for your application form.. it was just a blank page, so I was unable to offer any comments on that.

 

 

 

You might like to have a looksee of the reply that RBS sent to Gruff in the following link.. pathetic, really it is. :grin:

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/156851-gruff-rbs-cca-request-2.html#post1726992

Edited October 2, 2008 by citizenB

[lexis200]

Thanks very much for that citzenB, I appreciate your input. I'll get hubbie to decide which one he'd like to go out, seeing as it is his account!

 

It sounds like I'm likely to need info on how to complain so I'll toddle off to find RMW's thread now and bone up on that.

 

The page with the application is showing up for me, so I'm not sure what's going on there?? I have had confirmation on the other thread I had going though that it is definitely a pile of rubbish - illegible, no prescribed terms etc. They've sent it three times now, only this time they also included a set of t's and c's headed Credit Agreement ...1974 etc, which have been freshly printed over several pages and have current charges shown in them.

 

I'll just keep on at it with them!

[citizenB]

It's ok, I managed to get in the 2nd time round !. It does look pretty worthless doesnt it. Dont you just love that bit at the top... "Friend for life"... !!

[lexis200]

Well they do write to me more often than my friends:D

 

Can I just clarify the not having to pay them bit... is this actually in a regulation somewhere, or is it just implied as they can't enforce a debt in dispute?

[citizenB]

Well they do write to me more often than my friends:D

 

Can I just clarify the not having to pay them bit... is this actually in a regulation somewhere, or is it just implied as they can't enforce a debt in dispute?

 

TBH, I dont think I can help you with that one. Although on my travels I have seen this question asked and answered. I will have a looksee if I can find a link, I think perhaps it was Magda who asked it so I will have a search through her threads for you.

[lexis200]

I've had a look around and asked the question above, and it seems that there is actually nothing to say you don't have to pay, but equally nothing saying you do. The point is that if it's unenforceable and you choose not to pay, there's not a lot they can do apart from phone and send letters, which should (that's in an ideal world though) stop after harassment letters.

[TheChancellor]

I've had a look around and asked the question above, and it seems that there is actually nothing to say you don't have to pay, but equally nothing saying you do. The point is that if it's unenforceable and you choose not to pay, there's not a lot they can do apart from phone and send letters, which should (that's in an ideal world though) stop after harassment letters.

 

 

 

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 HBOS become compliant with my request. As HBOS are still not in compliance with my request I insist that the following takes place with immediate effect

• All charges levied since (DATE) be removed from the account and further charges cease until such time as HBOS 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 HBOS comply with my request from (DATE ) received by HBOS on (DATE); 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 a quote 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

 

Clearly your pursuance of this debt falls into this category.

[lexis200]

Thanks for that TheChancellor - I've put similar into my letter so hopefully it'll do some good (some hope:rolleyes:) I'd already printed it hence not copying verbatum.

 

This is the one that'll be going out today if anyone fancies giving it a once-over to let me know any glaring errors contained in it!

 

Thanks!

 

I would first like to state I am extremely unhappy with the way my personal information was sent to me. My statements over the last 6 years, the copy of my application, and your letter to me detailing my account and its status were sent in a standard window envelope. When it arrived through my letterbox, both sides of the envelope were completely ripped, leaving the contents clearly visible on either side.

 

For this type of sensitive information, I would expect at the very least a Tyvek type envelope that is stronger and more weather resistant than a standard paper envelope. I am very concerned that any member of the Post Office to come across this packet could have easily seen the contents. I have enclosed photos for your convenience, and I look forward to your comments regarding this appalling lack of security of my personal documents.

 

With regards to the contents of your letter, I stand by my assertion that this account is in dispute, and I give the following reasons.

The Consumer Credit Act 1974 demands that I be supplied with a true copy of any properly executed credit agreement that exists in relation to the above account. I may ask for this on demand providing that a fee of £1.00 is paid. This fee was sent with my original letter.

 

My request remains outstanding. All you have sent is a pre-contractual application form and a current set of terms and condition. As you have quoted section 3(1) of the 1983 regulations, I feel I should add the part you have left out which shows that, subject to certain limited exceptions, any copy of an unexecuted agreement must be a ‘true copy’. This means that it must be identical to the agreement as presented or sent to the debtor for signature.

 

I will also, for your convenience, add the part of 3(2) that you neglected to mention, which states what may be excluded from copy documents: There may be omitted from any such copy- (a) any information included in an executed agreement, security instru*ment or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations there under as to the form and content of the document of which it is a copy;

 

As you appear to be relying on this part of the Regulations in an attempt to back up the insufficient paperwork sent to me, I’m sure you will agree the line in bold is of particular relevance.

 

The current set of terms and conditions are not sufficient to satisfy my legal request. It is not sufficient to send a copy of recent terms and conditions in separate pages – the required prescribed terms must be laid out in the prescribed form within the copy document.I should also mention at this stage that they are incorrectly addressed. The address you have used on them is neither the one which applied when the account was opened, nor my current address which you have sent your reply to.

 

Notwithstanding the fact that the application form sent is illegible, and therefore not compliant with the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557), it does not contain the prescribed terms as stated within the same regulations. Without production of a compliant executed agreement I am unable to asses if I am indeed liable for any alleged debt to you, nor does it give me any chance to evaluate whether any original agreement was ‘properly executed’.

 

For the avoidance of any doubt I have included section 78(1) 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) he is not entitled, while the default continues, to enforce the agreement.

 

For an agreement to be properly executed it must contain certain terms and be signed by both debtor and creditor. The required terms are laid out in regulations (SI 1983/1553) and are covered by sections 60 and 61 Consumer Credit Act 1974.

 

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

 

Since this document does not contain any of 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). 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.

 

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. I will re-iterate that this is clearly not a true copy of an executed agreement between the Bank of Scotland and me.

 

In addition, I draw your attention to the Office of Fair Trading’s guidance on debt collection 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

 

 

2.8 Examples of unfair practices are as follows:

k. not ceasing collection activity whilst investigating a reasonably queried or

disputed debt.

 

In addition to these guidelines, which you are blatantly disregarding, whilst the account remains in dispute (for clarity, the lack of a compliant credit agreement is a very clear dispute), under section 78(1) of the Consumer Credit Act 1974 you may not enforce the agreement. This includes, but is not limited to, the following:

You may not demand any payment on this account, nor am I obliged to offer any payment to you.

You may not add any further interest or charges to this account.

You may not pass this account to any third party.

You may not register any information in respect of this account with any of the credit reference agencies.

You may not issue a default notice related to this account.

Please also note that to register information with the credit reference agencies, or to issue a default notice, would also be in breach of Section 13.6 of The Banking Code, which stipulates that you can only register such information if the amount owed is not in dispute.

 

What I Require.

 

- That as this complaint is now being handled by you at the Bank of Scotland, you will inform Blair Oliver and Scott of the account status and ensure I do not receive any communication from them by any means. I will consider any correspondence in any form from Blair Oliver and Scott as harassment whilst the account remains in dispute.

 

-That you send me a true copy of the executed agreement as required by the Consumer Credit Act 1974. It would appear to me that sending the correct signed copy (rather than an illegible application form along with current terms and conditions) would clarify matters completely. If you are unable to supply the requested documentation because no such agreement is in existence I require written clarification as such.

 

-That you comply with my request within 14 days of the date of this letter. I will not correspond any further with you until I either receive a copy of the required documents as laid down in section 78(1) CCA 74, or clarification that such an agreement doesn’t exist.

 

I trust this out lines the situation.

 

Now I just have to get a bog off letter out to BlairOS as they're sending letters and texts to OH. My typing speeds are improving no end:D