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Whats the date on the app form?, i cant read the small print, but i dont think the prescribed terms are there!

Please note i have no legal training any advice i give comes from my own experience and from what i have learned on this site

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Tracey, it doesn't look enforceable to me, but i cant read what it says above your signature, it was around 05/06, when these idiots started getting their act together regarding agreements, so in that way agreements around this date are particularly difficult to call, but i really cant see any prescribed terms there, so i think you're ok.

Please note i have no legal training any advice i give comes from my own experience and from what i have learned on this site

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CC it says in the box above my sig:

 

I am applying for 3 credit cards with 0% interest on purchases and balance trfrs for the first 6 monthsand there after variable rates for purchases of either 15.95%pa (13.1%) 18.94 pa (15.3) or 29.9 (20.1) then it gives rates for balance transfers then cash with drawals. I understand that if my application for a lower credit card is approved you will not issue any other higher apr to me. If I accept i will receive my card.

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Hmmm...well that kind of satisfies one of the prescribed terms, but not the others.

 

Ill post the prescribed terms for your info.

Please note i have no legal training any advice i give comes from my own experience and from what i have learned on this site

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"I am applying for 3 credit cards with 0% interest on purchases and balance trfrs for the first 6 monthsand there after variable rates for purchases of either 15.95%pa (13.1%) 18.94 pa (15.3) or 29.9 (20.1) then it gives rates for balance transfers then cash with drawals. I understand that if my application for a lower credit card is approved you will not issue any other higher apr to me. If I accept i will receive my card."

 

 

I would say that this in itself makes it un-enforceable

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The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - 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

 

 

Please note i have no legal training any advice i give comes from my own experience and from what i have learned on this site

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ACCOUNT IN DISPUTE

 

Thank you for sending me what you have confirmed to be a true copy of the credit agreement that exist in relation to this account. As you have sent this document in response to my requests under Section 78 (1) of the Consumer Credit Act 1974, then this statement by you is now binding on you as per section 172 of the Act.

 

The document that you have supplied does not constitute a legally binding regulated agreement between us and is in breach of Section 61 of the Consumer Credit Act 1974 and is therefore unenforceable by virtue of Section 127 of the act.I am aware that Section 127 was repealed in the Consumer Credit Act 2006 but this is not retrospective and applies only to agreements signed after 6th April 2007.

 

I do not and will not acknowledge this alleged debt. Furthermore, I dispute the legality of the debt until such a time as you can produce a satisfactory consumer credit agreement.

 

Furthermore, you are advised that a creditor is not permitted to take any action against an account whilst it remains in dispute. The lack of a properly executed credit agreement is a very clear dispute and therefore the following applies:

  • 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.

I also requested that you remove any default registered with any credit reference agencies against this account as you are not permitted to default a disputed account. I further request that you confirm to me in writing that you have complied with my request. Failure do so may result in legal proceedings being taken against you to enforce the removal of this default and at such time you will need to explain why you have issued a default on an account that is not regulated under the consumer credit act.

 

The Data Protection Act

 

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 you are advised that you are not entitled to refer this account to any third party and this includes but is not limited to any debt collection agency and credit reference agency.

 

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.

 

I must now inform you that any further contact I receive from you on this subject will be acknowledged but I will not enter into any further correspondence.

 

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  • 3 weeks later...

Anything new happened? By the way, the reference number is showing on your default upload. If you wanted more anonymity you might want to remove it.

 

Personally i would start considering taking this down the LBA route considering it's not a massive amount of money and that should mean, hopefully, that Cap1 won't put up much of a fight.

:!: -Any advise I give is based purely on my own experience. It should not be solely relied upon as I am NOT a legal expert and any major decisions you make should not be based on my opinion alone -

HFC Bank - Davey vs HFC

Barclays - Monthly payments made

Cahoot - Agreement received, awaiting 2nd agreement after DCA.

MBNA1&2 - Agreements received. (Currently in limbo)

Halifax - Davey vs Halifax/Cabot

MINT - Davey vs Mint

Amex - Davey vs Amex

Cap1 **WON** £1,500 Written Off Davey vs Cap1

 

Never Sign Anything

 

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Letter Before Action

:!: -Any advise I give is based purely on my own experience. It should not be solely relied upon as I am NOT a legal expert and any major decisions you make should not be based on my opinion alone -

HFC Bank - Davey vs HFC

Barclays - Monthly payments made

Cahoot - Agreement received, awaiting 2nd agreement after DCA.

MBNA1&2 - Agreements received. (Currently in limbo)

Halifax - Davey vs Halifax/Cabot

MINT - Davey vs Mint

Amex - Davey vs Amex

Cap1 **WON** £1,500 Written Off Davey vs Cap1

 

Never Sign Anything

 

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FORMAL COMPLAINT - LETTER BEFORE ACTION.

 

Dear Sir/Madam,

 

Thank you for your letter, the contents of which are noted.

 

With reference to my previous letters, I wish to draw you attention to your company's lack of compliance with my legal request.

 

On **DATE** I made a formal request for a true signed agreement for the alleged account under consumer credit Act 1974 s77/8. A copy of which is enclosed for your perusal and ease of reference.

 

You have failed to comply with my request, and as such the account entered default on **DATE**.

 

The document that you are obliged to send me is a true copy of the executed agreement that contained all of the prescribed terms, all other required terms and statutory notices and was signed by both the original lender and myself as defined in section 61(1) of CCA 74 and subsequent Statutory Instruments. If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document.

 

As you may not be aware , failure to comply with this request within 12 working days renders the alleged debt UNENFORCEABLE in law. Furthermore, if this non-compliance continues for a further month then a summary, criminal offence is committed.

 

Ignoring my legal request under the Consumer Credit Act 1974 s77/78 WILL NOT MAKE IT GO WAY.

 

Furthermore you should be aware that a creditor is not permitted to take ANY action against an account whilst it remains in dispute.

 

The lack of a compliant credit agreement is a very clear dispute and as such the following applies.

 

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

* may not add further interest or any charges to the account.

* may not pass the account to a third party.

* may not register any information in respect of the account with any credit reference agency.

* may not issue a default notice related to the account.

 

Therefore this account has become unenforceable at law.

 

Consequentially any legal action you pursue will not not only be VIGOROUSLY defended, it will ALSO be averred as both UNLAWFUL and VEXATIOUS.

 

After taking advice, I am of the opinion that your continued pursuit is in violation of the Administration of Justice Act 1970 section 40, Protection from harassment Act 1997 section 3 as well as breaching a number of the OFT Collection Guidelines.

 

I reserve the right to report your actions to any such regulatory authorities as I see fit.

 

You have 14 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint.

 

I hope that you will enter into a sincere dialogue with me about this matter and I am writing this letter to you on the assumption that you would prefer to do this than merely respond with standard letters and leaflets.

 

I would appreciate your due diligence in this matter.

 

I await your rapid response.

 

Yours Faithfully

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Firstly, i would not jump right in unless you are fully prepared to issue the N1 court form and start proceedings. The LBA in itself won't scare the creditor and you need to be armed with all the info you can before starting to get serious.

 

You have a lot of different info in that LBA: It's a complaint and an LBA. Should be one or tuther.

 

The criminal offence can no longer be quoted as it no longer applies and was removed from the regulations.

 

You should be past the point of 'account in dispute letters' and mentioning harassment if you are ready for an LBA.

 

You are asking them to negotiate, and letters before action are merely a way of saying they must comply with specific points or you will begin legal proceedings. They will read right through that (adding extra requests) in an attempt to get them to back down and will see your intentions to go to Court as merely an attempt at discussion.

 

My LBA to Cap1 for instance:

 

Thank you for your letter dated 29 February 2008.

 

Having reviewed the copy documents you have sent in response to my request under s78 CCA, I have come to the conclusion that no valid or enforceable agreement exists between us. This is because the only document I signed is a pre-contractual application form which does not contain any prescribed terms, or any other terms or statutory notices as required by the CCA.

 

The documents you have supplied do not comply with s61(1) or s127(3) CCA and are therefore improperly executed and totally unenforceable:

 

s61 CCA - Signing of agreement:

(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.

s127(3) CCA:

(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).

 

Further, the only document I have signed is a pre-contractual application for credit, which may or may not have been accepted, depending on your lending criteria. This was therefore an agreement that falls under s59(1) CCA and is consequently void:

s59 - Agreement to enter future agreement void

(1) An agreement is void if, and to the extent that, it purports to bind a person to enter as debtor or hirer into a prospective regulated agreement.

 

I therefore require a full refund of all payments made to you in the mistaken belief that a valid and enforceable agreement existed. I have calculated this figure to be £674.26p and I have enclosed a schedule setting out the details of my claim. I have also included statutory interest at the rate of 8% per annum from the date of each payment, and so require settlement in the total sum of £863.14p.

 

I also require that any adverse information provided by you in respect of this account to any credit reference agency be deleted from their records. If I do not receive an acceptable settlement proposal within 14 days of receipt of this letter, I shall issue court proceedings without further notice.

 

Since this letter is the first stage of intended court action, you are required under the general pre-action protocol of the CPR to send me any information I request. Please therefore supply me with a copy of any and all documents in your possession that you will be relying on as a defence to this claim. In particular, since the application form refers to information 'overleaf', I require that you send me a full copy of that original document, i.e. the front and the reverse', plus a true copy of the original terms and conditions. If you do not comply with this request, or send me written confirmation that no original copies of these documents exist, within the 14 days as specified above, I shall consider applying to the court for an order under Part 18 CPR.

 

 

Yours sincerely, me

 

 

First you need those figures of payments and interest/charges. You get that from a Subject Access Request if you haven't done so already. You also attempt to see what else they may have so you ask for the full original agreement in it's unaltered state (and any documents referred to.)

 

This thread is useful and tells you how to go about CPR requests for information to assess the merits of any potential Court action you may instigate.

http://www.consumeractiongroup.co.uk/forum/legal-issues/173201-why-you-shouldnt-use.html

Edited by davey77
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:!: -Any advise I give is based purely on my own experience. It should not be solely relied upon as I am NOT a legal expert and any major decisions you make should not be based on my opinion alone -

HFC Bank - Davey vs HFC

Barclays - Monthly payments made

Cahoot - Agreement received, awaiting 2nd agreement after DCA.

MBNA1&2 - Agreements received. (Currently in limbo)

Halifax - Davey vs Halifax/Cabot

MINT - Davey vs Mint

Amex - Davey vs Amex

Cap1 **WON** £1,500 Written Off Davey vs Cap1

 

Never Sign Anything

 

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