Hello, I need some help!

[smarties21]

As they were in no hurry to reply to my sister I didn't feel they deserved us to break our necks replying to them (especially considering I wasn't sure exactly what to reply). The letter never got sent, but nevermind, 1st Credit wrote my sister a wonderful letter today. I'm disappointed they didn't wish us Merry Christmas though. Scrooges. Here it is:

 

Dear Sir / Madam

 

LEGAL PROCEEDINGS

 

Client: AQUA MASTERCARD

[this was followed by amount owing and client account number]

 

I regret that the above sum remains outstanding.

 

We now intend to take legal proceedings against you. If successful it may result in;

- Substantial Legal costs and interest being charged thereafter.

- Entry of your name in the County Court Judgement Register, making it very difficult to obtain credit in the future.

 

Subsequent failure to make payment could result in enforcement action;

- An application to your employer for an attachment of earnings.

- Seizure of your assets by a County Court Bailiff.

- A charging order against your property, (if owned by you).

 

If you are not resident in England or Wales legal / enforcement action will be in strict accordance with the laws relating to the Country of your residence.

 

PLEASE TAKE THIS FINAL OPPORTUNITY TO MAKE CONTACT

 

Yours faithfully

 

LITIGATION DEPARTMENT

 

If you have appointed a third party please pass them this letter or contact them. The letter has been sent directly to you to ensure your prompt receipt.

 

Now what? Do I (on my sister's behalf) send them a letter of some kind and do I do it immediately?

 

The one thing I did not want my sister to have to go through is court proceedings but that sounds like what will end up happening.

 

Any advice is welcome. I'm completely at a loss, not to mention our mum has recently got her first letter from 1st Credit...

[surprise]

They can't take this court without a signed agreement, what they have is an application form. I think you will just continue to get the bog standard letters from them with threats, perhaps even a stat demand. Don't let them wear you down or get disheartened remember they have to provide the documents to pursue this alleged debt.

 

You can use Fuzzybobble's letter if you wish but I would certainly get an acknowledgement off to them.

[42man]

OK scan the 'agreement' up (please delete your personal details and any reference to yourself).....

 

CCA RULES FOR PRESCRIBED TERMS

CONSUMER CREDIT ACT

8.2 What if prescribed terms are missing or incorrect?

 

s127(3) provides that the court may not make an enforcement order unless a document containing all the prescribed terms of the agreement was signed by the debtor – see Q1.21.

 

If therefore any of the prescribed terms is missing, or incorrect, the agreement is not enforceable against the debtor, and the court is precluded from making an enforcement order.

 

 

8.3 What are the prescribed terms?

 

The prescribed terms specified in Sch 6 are as follows:

 

* amount of credit – see Q8.

 

* credit limit – see Q8.5

* repayments – see Q8.9.

* rate of interest – see Q8.6

 

Sch 6 was not amended by the 2004 Regulations.

IS MY AGREEMENT ENFORCEABLE( Via section 127(3) CCA1974)

PRESCRIBED TERMS FOR THE PURPOSES OF SECTIONS 61(1)(0) AND 127(3) OF THE

CONSUMER CREDIT ACT 1974 Taken from sced.6(1983/1553) regulations

(If you just want to find out, skip the bits in between the stars it’s just some extra information)

 

**What do we mean by unenforceable?

In the Consumer Credit Act section 127 there is a provision for making an agreement unenforceable if it does not contain certain pieces of information.

Subsections 1,2,3,4 state which pieces of information these are, and everything mentioned there must be included within the body of the agreement, if one is missing the agreement is unenforceable.

 

How does unenforceable differ from enforceable with a court order only?

When an agreement is unenforceable it means that the court or the judge cannot make a ruling on it. The court cannot make it enforceable.

When an agreement is enforceable only by ruling of the court it means that the agreement can be stopped by the debtor but the court has the power to re-instate it and allow the credit to continue to enforce.**

 

The Prescribed Terms are these

 

A Amount of credit

A term stating the amount of credit

 

B Repayments

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-

(a) Number of repayments;

(b) Amount of repayments;

© Frequency and timing of repayments;

(d) Dates of repayments;

(e) 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.

 

C Rate of interest

A term stating the rate of interest to be applied to the credit issued under the agreement

D Credit limit

This may be a term or the manner in which it will be determined or that there is no credit limit.

--------------------------

 

Which of these applies to you depends on the type of agreement you have?

 

For a Running Account (credit card) agreement

 

BC and D Apply

 

For a Restricted Use Debtor Creditor Supplier

• Where the dealer is the supplier and the creditor is the one providing the finance.
  
• The money can only be used for the purpose it is given.
  
• There is no interest on the purchase (the cash price is the same as the total price)
  
• And there is no advance payment
  

A is applicable

 

For a fixed Sum Credit Agreement

A conventional credit agreement with none of the above restrictions

 

A and B apply

 

For a Hire Agreement

 

B is Applicable

 

This paper only covers section 127(3) of the Act agreements can also be unenforceable by contravention of sections 1 and4 this will be the subject of the next paper.

Please note that these Prescribed terms where not changed in any way by the 2004/1482 Ammendments although the form in which they appear on the agreement was. Subsection127(3) was repealed on the 6th of April 2007 so that unenforceability due to 127(3) will only apply to agreements executed before that date.

[rdm2006]

Already scanned 42 man here

[smarties21]

Thanks for the reply, surprise - you've been a tremendous support through all this, as has this forum in general. I think it's always helpful to have an outside opinion. My sister is highly emotional and I'm less so but much more of a worrier, so it's good to be able to come here and be grounded with facts and common sense.

 

...I just noticed that others were viewing the thread so refreshed before sending this reply off.

 

Thanks for the information, 42man. As rdm2006 said, the "agreement" has previously been scanned in. It doesn't appear to be enforceable according to the terms in your post, which is somewhat of a relief (I'll be triple checking to be sure though - crafty little weasels will always try and find loopholes and I don't want to make this easy for them).

 

Thank you all for your advice and help. I'll get to work on writing them an acknowledgement letter.

 

Merry Christmas everyone.

[42man]

If it doesn't contain the prescribed terms then you could send them this - (recorded)

 

Thank you for your response to my request under the Consumer Credit Act section 78.

 

I am pleased to see that you confirm this as a true copy of the original agreement executed by yourselves on the XXXXX.

 

As you must realise this agreement does not conform to sections 60(1) and 61(1) of the Consumer credit Act and is therefore unenforceable under section 127(3) of the same act.

 

 

You had until (date here) to provide me with the true copy I requested. After that date you entered into default of my request and I am therefore advising that the matter is now in dispute . Whilst the matter is in dispute, you are not permitted to ask for any payment, nor am I obliged to offer any payment to you. Furthermore, whilst the dispute remains, you are not entitled to charge any interest on the account, make any further charges to the account or pass the account to anybody else.

Please note you may also consider this letter a statutory notice under Section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect. This means you must remove all information regarding this account from your own internal records and from my records with any credit reference agencies including any defaults. Should you refuse to comply, you must within 21 days provide me with a detailed breakdown of your reasoning behind continuing to process my data. It is not sufficient to simply state that you have a ‘legal right’, you must outline your reasoning in this matter and state upon which legislation this reasoning depends.

 

Should you fail to respond within 21 days, I will expect that this means you agree to remove all such data.

[smarties21]

Firstly I have to thank everyone for all the help and advice they've given. We've followed it all to the best of our knowledge and it's been a big relief to feel like we have some support here at CAG, especially as we're going through some family problems right now.

 

The reason I'm posting again is not actually because of 1st Credit, but I didn't really want to start a new thread as posts are pretty sporadic and this is still on behalf of my sister. The DCA I want to mention is iQor.

 

We followed the same instructions as we did for 1st Credit and they sent what their client (Halifax) said was our agreement. I'm no expert but it didn't look like a proper agreement to me - the terms of repayment and such were missing, it had a signature but most of it was printed (as though it was originally an online application form).

 

We replied with what we sent to 1st Credit as posted by 42man. 1st Credit have yet to get back in touch as of yet, but two days after sending the letter to iQor we have a reply. I've blanked out my sister's details as well as the person it was from.

 

iQor Letter

 

I'd really appreciate if someone could have a look at this letter. They say we have two weeks to respond, but we don't know where to go from here. Any thoughts?

 

Let me know if you need to see the application form we were sent and we'll get it scanned in. Thanks in advance and I hope you all have a good weekend.

[nish40]

Firstly I have to thank everyone for all the help and advice they've given. We've followed it all to the best of our knowledge and it's been a big relief to feel like we have some support here at CAG, especially as we're going through some family problems right now.

 

The reason I'm posting again is not actually because of 1st Credit, but I didn't really want to start a new thread as posts are pretty sporadic and this is still on behalf of my sister. The DCA I want to mention is iQor.

 

We followed the same instructions as we did for 1st Credit and they sent what their client (Halifax) said was our agreement. I'm no expert but it didn't look like a proper agreement to me - the terms of repayment and such were missing, it had a signature but most of it was printed (as though it was originally an online application form).

 

We replied with what we sent to 1st Credit as posted by 42man. 1st Credit have yet to get back in touch as of yet, but two days after sending the letter to iQor we have a reply. I've blanked out my sister's details as well as the person it was from.

 

iQor Letter

 

I'd really appreciate if someone could have a look at this letter. They say we have two weeks to respond, but we don't know where to go from here. Any thoughts?

 

Let me know if you need to see the application form we were sent and we'll get it scanned in. Thanks in advance and I hope you all have a good weekend.

I would send the letter 42man has posted, amended to suit.

Record deliver it, then chill and wait for the responses.

How is your Aqua one going?

[smarties21]

Thanks for the reply, nish40! I was about to post again here because I thought no one had replied and now we have a week to go... turns out I just hadn't received the email for thread notifications. Odd.

 

The thing is we received a letter saying we owned iQor, so we replied asking for the credit agreement. They sent it back but it didn't have the terms it should have (actually, to me it looked like a half-filled out online application form with the word agreement stuck at the top and my sister's signature at the bottom).

 

We then sent the letter 42man posted in reply to that and the letter I scanned was their reply. And here we are.

 

1st Credit and Aqua have been silent since the last correspondence I mentioned earlier in the thread. Every day we wait for the post to see what their next move will be, but so far nothing.

[smarties21]

We're running out of time... We only have until around Friday now.

 

I'm sorry to be a bother but if anyone has any advice please help - we don't know what to do.