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Monument - Response to CCA - Enforceable?


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Hi,

 

This is the first response I've had to my many CCA requests, so thought I'd post it up to see what you think.

I've received a covering letter saying basically they don't have to comply with a signed agreement!

http://i443.photobucket.com/albums/qq154/thereisanotherway/monumentcca2-1-1.jpg

http://i443.photobucket.com/albums/qq154/thereisanotherway/monumentcca3.jpgThe enclosed documents were a photocopy of my application - hope you can read the small print.

 

Then on seperate pieces of paper, with my current address on the top, they have supplied their current T&C's.

 

So what do you reckon - Have they fulfilled my request and is this enforceable?

 

Thanks TIAW.

Edited by thereisanotherway
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you left your visa card number on second photobucket

Cheers B4E

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Sorry 2 b a pain but your visa number is still there to be seen

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Thank You blue4ever:grin:

Hi WELCOME to CAG, You have come to the right place,there are lots of people on this site that will point you in the right direction.

Read the links below,this will help you navigate the forum and help you how to start your own Threads.

 

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I would assume to say no this is not enforceable but im sure someone will be along shortly to confirm this im under the impression that your prescribed terms should be on the same page as your signature but i am still new to all this myself..

Baby blue

Lowells balance £0.00 YAY

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Hi b4e - I hope you are meaning the reference number on reply card (now removed) - 'cos I can't see my visa number anywhere, since prev. correcting!).

If I'm still being dumb, please let me know - it wouldn't be the first time!!

Any idea if it's enforceable?

Best wishes TIAW

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No prescribed terms and in my opinion unenforceable....

 

You could edit this and send recorded...

 

Dear Sirs,

 

Account no xxxxxxxxxxxxxx

 

 

Re: my request under the Consumer Credit Act 1974

 

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.

As you will be no doubt aware, the Copy Document Regulations requires that documents are easily legible and clearly the terms of the agreement are not easily legible, infact far from it. most of the document is blurred and cannot be interpreted and there are no temrs and conditions.

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

 

I require you to produce a compliant copy of my credit agreement to confirm I am liable to you or any organisation, which you represent for this alleged debt, if you cannot do so I require written clarification that this is the case. Should you ignore this request I will report you to the Office of Fair Trading to consider your suitability to hold a credit licence in addition to a complaint to Trading Standards, as you will be in breach of the Administration of Justice Act 1970 section 40

 

Since the agreement is unenforceable and the default notice is non compliant, it would be in everyone’s interest to consider the matter closed and for your client to write the debt off. I suggest you give serious consideration to this as any attempt of litigation will be vigorously defended and I will counter claim for all quantifiable damages

 

I respectfully request a response to this letter in 14 days

PLEASE NOTE - I am not a legal expert, what is stated is my own opinion and from what I have learnt from this forum and my own experiences.

 

DEBT COLLECTION LETTER/SAR/AGREEMENT TEMPLATES ARE HERE - http://www.consumeractiongroup.co.uk/forum/content.php?65-legislation

 

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it gone now it was on the monument letter

Cheers B4E

Hi WELCOME to CAG, You have come to the right place,there are lots of people on this site that will point you in the right direction.

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  • 3 weeks later...

Here is Monument's response - they think they've complied.....

http://i443.photobucket.com/albums/qq154/thereisanotherway/monumentccareply.jpg

 

Also, they've used my £1.00 CCA PO as a payment from my account, also sent letter of late payment fee and added "Final Notice, your credit facility has been withdrawn" on to the latest statement. Now over limit.

 

What should be my response?

 

Thanks!

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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.

 

PLEASE NOTE - I am not a legal expert, what is stated is my own opinion and from what I have learnt from this forum and my own experiences.

 

DEBT COLLECTION LETTER/SAR/AGREEMENT TEMPLATES ARE HERE - http://www.consumeractiongroup.co.uk/forum/content.php?65-legislation

 

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IMPORTANT - If you are sent a private message directing you for advice or support with your issues to another website,this is your choice.

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  • 4 weeks later...

Whilst waiting for them to reply to my latest letter, Monument have responded to my request to only communicate in writing (Have been receiving calls from America!)

Letter states, that whilst my comments have "been noted and fed back to the relevant department managers", they "do not consider our attempts to contact you by telephone constitute harrassment" and "should your account remain in arrears.........you will still receive calls from our Credit Services department"

Question - are they legally allowed to keep calling?

It just seems futile, with Caller ID I never answer numbers I don't know, so why do they bother?!

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Just log times and dates on all the calls.

PLEASE NOTE - I am not a legal expert, what is stated is my own opinion and from what I have learnt from this forum and my own experiences.

 

DEBT COLLECTION LETTER/SAR/AGREEMENT TEMPLATES ARE HERE - http://www.consumeractiongroup.co.uk/forum/content.php?65-legislation

 

IF WE HAVE BEEN HELPFUL -PLEASE, PLEASE, PLEASE GIVE A DONATION TO HELP US TO CONTINUE HELPING YOU

 

I AM HAPPY TO RECEIVE PM's AND I WILL RESPOND IF I FEEL I CAN ASSIST BUT WHEN YOU DO CAN YOU PLEASE PROVIDE A LINK TO YOUR THREAD ON WHICH YOU WOULD LIKE ME TO COMMENT - THANK YOU

 

IMPORTANT - If you are sent a private message directing you for advice or support with your issues to another website,this is your choice.

Before you decide,consider the users here who have already offered help and support.

Private message facilities are offered for users to communicate issues that are/or could be seen to be inappropriate for posting on the main forum.Site rules explain this in more detail.

If you are approached by private message with a view to asking you to visit another website,please inform the site team via the report icon.

 

Forum rules - http://www.consumeractiongroup.co.uk/forum/forum-rules-please-read/9-forum-rules-please-read.html

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Ok, Just received 'Final Response' from Monument:

 

http://i443.photobucket.com/albums/qq154/thereisanotherway/monumentfinal.jpg

 

Very interested to hear your thoughts and advice on how to proceed.

 

The Monument Conditions they refer to are current T&Cs sent with current address etc. and application/reply card posted up at start of thread.

 

Thanks to one and all.

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  • 1 month later...

Just received another Final Response from Monument.

 

Where do I go from here? they give 6 months for me to refer to FOS.

 

I've just written to OFCOM about receiving telephone calls from Monument, including loads on Sundays! I'll let you know what they say.

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Even if they did apply for a CCJ they would still have to provide the court with a valid CCA & they know that the muppets:rolleyes:

 

Send them this back;

 

Dear Sir/Madam

 

Re:− Account/Reference

 

ACCOUNT IN DISPUTE

 

I have received the documents you sent and in the accompanying letter you you have confirmed this to be a true copy of the credit agreement that exists in relation to this account. As you have sent this document in response to a formal request under Section 78 (1) of the Consumer Credit Act 1974, this statement is now binding on you as per section 172 of the Act.

 

I must inform you that the information received does not meet the requirements of a properly executed credit agreement under the 1974 Act.The document received does not contain any of the prescribed terms as set out in the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) Schedule 6 Column 2.

 

Since this document does not contain the required prescribed terms it is rendered unenforceable by s127 (3) consumer Credit Act 1974

 

 

The absence of a properly executed credit agreement prevents you from:

Adding interest to the account

Taking any enforcement action on the account

Issuing any default notices or registering any default marker with a credit reference agency

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.

 

 

 

 

 

Wilson v First County Trust Ltd [2001] EWCA Civ 633, Sir Andrew Morritt, Vice Chancellor said:

The creditor must…be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid

In the case of Dimond v Lovell [2000] UKHL 27, Lord Hoffmann said:

Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay.

I would also point out that if you continue to pursue me for this debt while it is dispute you will be in breach of the OFT guidelines.

 

 

 

 

What I Require

I require all correspondence in writing from here on; any persistent attempts to contact me by phone will be reported to trading standards

I require you to produce a compliant copy of my credit agreement to confirm I am liable to you or any organisation, which you represent for this alleged debt, if you cannot do so I require written clarification that this is the case.

Should you ignore this request I will report you to the Office of Fair Trading to consider your suitability to hold a credit licence in addition to a complaint to Trading Standards, as you will be in breach of the Administration of Justice Act 1970 section 40

 

Since the agreement is unenforceable it would be in everyone’s interest to consider the matter closed and for you to write the alleged debt off. I suggest you give serious consideration to this as any attempt of litigation will be vigorously defended and I will counter claim for all quantifiable damages

 

 

Yours Faithfully

Your name Printed

Anthrax alert at debt collectors caused by box of doughnuts

 

Make sure you do not post anything which identifies you. Although we can remove certain things from the site unless it's done in a timely manner everything you post will appear in Google cache & we do not have any control over that.

 

Vir prudens non contra ventum mingit

 

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Oh yes, refer them to FOS too:D

Anthrax alert at debt collectors caused by box of doughnuts

 

Make sure you do not post anything which identifies you. Although we can remove certain things from the site unless it's done in a timely manner everything you post will appear in Google cache & we do not have any control over that.

 

Vir prudens non contra ventum mingit

 

[sIGPIC][/sIGPIC]

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Hi TIAW .... sorry to butt in (thats good with my user name !!!)

 

I have just CCA'D Monument and received back exactly the same as you more or less. (Reply Card ) Copy of Current Terms Etc.

 

Before I follow your well trodden path I was just wondering once you have established it is not an enforceable agreement and informed them of that fact what is the point in carrying on endless communication to and forth.

 

Why not just wait until they take you to court (if they are going to) or do you feel the more you kick up the less likely they are to adopt this course of action.

 

Cheers:D

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