HBOS and OH's card debt

[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

[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!

[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?

[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.

[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

[lexis200]

Well thank you! >

 

Would you suggest removing the 'you may not demand payment' bit then, seeing as we're seemingly all agreed it's not an absolute. I thought I'd chance my arm with it, but if it looks very wrong I'll reprint that page!!

 

I didn't realise you could complain to anyone if your information was shoddily packed (thanks for that!) - should I put that in too, or just complain anyway as I honestly was pretty miffed:mad:

 

I'm just sending off another Bank of Scotland 'illegible application form' letter now. On this one though, in the covering letter they've very kindly added that they have provided all the info they are able to! I've asked for them to confirm that bit in writing:D

 

I hope hubbie appreciates all this work I'm doing for him!

[lexis200]

Ohhh okay, I misread your statement - thanks for clarifying. I'll get on redoing the front page to pop in a bit about complaining to the ICO too!

 

Thanks again for your help, you're a star!

[lexis200]

Okie dokie

 

OH had a letter on the 13th, apparently sent on the 8th and giving him 5 days to respond...honestly, if my kids behaved like this they'd be on the naughty step.

 

I've just knocked up a little reply to it, more so that he's seen to be reasonable if this gets litigious, but if anyone can have a look I'd appreciate it!

 

Thanks

 

Lexis:)

 

DO NOT IGNORE THIS LETTER

ACCOUNT IN DISPUTE

Thank you for your recent letter dated 8th October, received by me on the 13th October and giving me five days to contact you. I am sure this was simply an error on your part and not in any way intended to elicit a panic in me.

 

Despite the odd time scales, I will give you the benefit of the doubt and assume our letters crossed in the post. As you will now have read my letter of the 7th October, I will not expect any further contact from you.

 

I am disappointed that my letter dated 7th October 2008 appears to be insufficiently clear to enable your company to discern that this account is clearly in dispute.

Until such time as you are able to produce evidence that an enforceable agreement actually existed in the first place, you will be in no position to pursue this alleged debt at all, through the courts or otherwise. As you have already been informed, this account is currently in default of a legal request under section 78 of the Consumer Credit Act 1974, and as such is in dispute. You were made aware of this in July.

 

I will not waste my time further responding in full to yet another pointless letter that does not deal with the issue in hand, other than to again state 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.

 

As I stated in my previous letter to you, once I have a definitive answer from Bank of Scotland I will be in touch with you to discuss this matter further.

 

Hugs and kisses

 

Mr Lexis200

[lexis200]

Of course, I like to be friendly:D I might pop a little lippy print kiss on there too for good measure - although seeing as this is meant to be from hubby that may raise an eyebrow or two:lol:

 

Thanks for looking over it for me - I think I'm going to get this printed off and sent, as I have to go and find out how make a Roman Shield now...

[lexis200]

How about 'This letter constitutes your agreement to shave your head and dye your nose blue'?

 

I wonder how many of them would actually do it:D

 

The Roman Shield - isn't it obvious??? I need it for when the doorstep callers drop by. I'm working on my oil pouring machine as we speak...

Just wait until I get hubby to answer the door to them in full Gladiators garb:D If only he looked like Brad Pitt in Troy;) >

 

ps - Have you got a linky for your thread maz?

[lexis200]

You can click on Maz's avatar you can then see the threads she has going. Thanks, off to do that now

 

Hmm, doorstep callers.. I can think of other stuff I would like to dump over them

Gosh, it sounds like you don't like them or something. Surely not:D

[lexis200]

Hi all

 

I've just had OH's CCA back and am hoping for some expert info!

 

Pics posted below (with any luck)...

 

I'm very dubious as to whether it's enforceable or not, as there are a few anomalies I can see, but I may be being pedantic.

 

FWIW, my thoughts are

 

-The front is dark grey but the back is pure white (strange)

-There are 2 distinct fold marks on the front, none on the back (odd)

-There is a code on the bottom of the back, but not on the front (so no referenced link between the pages)

-They didn't send any t's and c's as referred to on the back (so not fully complied with request)

 

BUT

 

-The prescribed terms do seem to be there, even though I can't see anything to link the two

-There's a strange mark present on the front and back - could that be because it's a genuine copy of two sides of the same doc, or could it be a problem with their copier?

 

Anyone with any thoughts on which combination of unenforceable/enforceable/compliant but not enforceable I might be looking at here?

 

Also, if it does look a bit iffy, would it be wise to send off for an SAR to see if a second agreement matches?

 

Thanks for any help!

 

Lexis:)

 

Oh, and we realised when this arrived that he never did get a sports bag from them:mad:

 

hali1.jpg - Image - Photobucket - Video and Image Hosting

hali2.jpg - Image - Photobucket - Video and Image Hosting

[lexis200]

Thanks for that RMW, it's pretty much as I thought. I certainly wouldn't be relying on the few points I found to take it to court - I was just hoping I'd missed something glaringly obvious;)

 

I'll get on and do an SAR though, as I had a look through the couple of years worth of statements OH has, and there's enough in charges to warrant getting the full set of statements available, so it's not a complete loss.

 

I'll also ask them for all the info they missed to be included - not because I think it'll do any good, but it gives them something to do doesn't it:D

 

Thanks again

 

Lexis:)

[lexis200]

Will do - I found a pretty comprehensive one a while ago (possibly by CurlyBen/PT??) so I'll use that. I don't think it gives them any wiggle room for 'forgetting' to include things, so cross fingers on that one.

 

I've just drafted a quick letter to Blair Oliver Scott (they manage the account) about the CCA, really only to keep in contact and make them work for their pound, as I'm hoping the bits I've asked for will be included in the S.A.R - (Subject Access Request). I didn't think there'd be any harm in asking twice though.

 

Dear Cubicle worker

Re: non-compliance under the Consumer Credit Act 1974

 

Thank you for the application form sent to me under the Consumer Credit Act 1974 (the Act) which I requested on the 27th August. I eventually received this information nearly 5 weeks after the 12 working day deadline that you are afforded.

 

I note that to date you have not fully complied with my legal request. I am aware that section 78(1) of the Act sets out clearly what is required to comply with my request and quote “shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it” For clarification, with regards to my account, the Act requires that I should have received:

 

- A copy of the agreement

- Any terms and conditions from the time when the agreement was executed (as the terms are referred to within the agreement I do require the original terms to be sent, along with the current terms that you may provide).

- A statement of account as laid out within Section 78(1).

 

To send simply an application form with no other documentation is not compliant with the Act, and I look forward to receiving the rest of the information required shortly, thus avoiding the need for intervention from any governing bodies.

 

Yours etc

 

Does that look ok?

 

Thanks

 

Lexis:)

[lexis200]

Just a little update

 

My son's Roman Shield is all done (he painted it beautifully!) and was handed in today:D

 

I knew you'd all been waiting to hear about it;)

[lexis200]

Oh, and we had a phone call today regarding the complaint(s) sent a while ago. Very strange. She was just asking if we had anything else to add to the complaint, as she was about to start looking into it:confused:

 

No asking for payments, no threats, no nothing! At least OH (hopefully) got them to take the moby number off and only use the home one (which has the recording stuff on it).

[lexis200]

Right, we’ve got some movement again – a final response from BofS and a Notice of Intended Prosecution from BlairOS.

 

Firstly – please please someone tell me the prosecution bit isn’t desperately bad??!! I’m really hoping it’s not, but that’s primarily due to the dates (dated 23rd, but somehow didn’t reach OH until the 30th ). Surely it should have been sent more quickly/securely if it was a genuine threat?

 

Also the response from them is, as you would expect, somewhat lacking. I’ll type up the points one by one, with my comments. Any opinions on what they’ve said, and on my thoughts (whether they’re right or wrong!!) appreciated.

 

1) – I stated the envelope containing S.A.R - (Subject Access Request) info was ripped and contents exposed – the response:

‘…all members of the Post Office have to sign an Official Secrecy Act, and therefore can not disclose any information seen.

As the envelope… would have left the office in sound condition, you should take this matter up with the Post Office. However I have feedback (sic) your concerns to my colleague…’

I couldn’t care less if they have to sign an Official Secrecy Act, I simply don’t want anyone seeing my personal financial info, and I don’t think sending it very tightly packed in a standard paper window envelope offers enough security against either manhandling or weather.

More care should have been taken to secure OH’s details, and simply using an envelope designed to be stronger would have done it.

And just because they shouldn’t disclose it, doesn’t mean they won’t use any info seen – ie – bank account details, home and mobile number, name, address, age, gender etc.

 

2) – I stated I wanted to see a signed, executed agreement with original terms, not the illegible application and current terms sent – the response:

The information you acknowledge that you received…, fully complies with and meets the bank’s requirement in relations (sic) to the CCA1974. My colleague clearly explained this in his letter. You state in your subsequent letter that the copy of application (sic) was illegible, I would be happy to send out another copy of the application; however I am unable to supply the original to you.

What they’ve sent is a one page illegible application, with no prescribed terms. They sent this twice, then when I S.A.R - (Subject Access Request)’d them, sent the same application but this time with some current t’s and c’s.

This doesn’t comply with the CCA does it? I know it’s not valid/enforceable, but dis-regarding that, I’m sure it just doesn’t comply as it’s illegible and doesn’t have any original terms with it.

I feel the ‘my colleague clearly explained’ line is simply them thinking if they state it enough times it will become true.

 

3) – I stated account was in dispute due to lack of compliant agreement/non compliance of CCA request, and BlairOS were to cease communication – the response:

Blair Oliver and Scott have full authority to communicate in regards to your account. I acknowledge dealing with your complaint. However despite claiming to give the bank notice that the account is in dispute, you have given no valid reason to dispute the debt. Please note you have no contractual or statutory right to withhold payments…

For the avoidance of doubt, the CCA1974 does not prohibit collection activity when an account is in dispute. In addition, we are obliged to accurately reflect the conduct of the account with the relevant CRA’s.

If they don’t have a valid agreement, how can a third party have full authority to communicate?

Again, if they don’t have the agreement, how can I have no contractual right to withhold payments – there is no contract to be bound by!!!

Is them being in default of the CCA by sending the toot they have enough to put the account into dispute? I’m a bit confused by this, as I have another bank stating that although they are in default of the request they don’t see that as the account being in dispute??

While the CCA doesn’t prohibit collection activity, the OFT guidelines do frown on it, and they can’t make OH pay. Is there anything in the new rules that relates to this at all?

 

4) – I appreciate that this is not the response you were looking for but I would confirm that my final response today represents the Bank of Scotland’s final decision.

Gits.

 

So what now? This is their final response, but it’s all seemingly pointless drivel interspersed with untruths and buck-passing. Not to mention the appalling sentence structure, grammar and punctuation (that really irritates me – I mean ffs, if you’re in a position to decide peoples financial futures, at least learn to write correctly!!!!! I might make mistakes, but I’m not a supposedly professional company!)

 

I also find it a bit on the rude side that BlairOS (apparently) start legal proceedings when there’s an ongoing complaint - this letter was written well after the NIP was allegedly sent!

 

bosnip1.jpg - Image - Photobucket - Video and Image Hosting

Edited November 4, 2008 by lexis200
adding NIP

[lexis200]

Thanks CB - as always very helpful:D

 

So to clarify, my plan of action is

 

-Complain to ICO about state of envelope containing SAR

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

-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?

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

 

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?

 

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?

 

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:

[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?

[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?

[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!

[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

[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:)