National Hunt Credit Card/Bank One now HBOS - eversheds SD

[airtomoreira]

I have a debt with Halifax / HBOS of approx £3500, off which I have been paying a nominal sum (£5) every month for the past 3 or 4 years. I have never been pressurised into amending this amount.

 

I have now rec'd a letter from Eversheds, demanding the whole outstanding balance (they have offered me a "significant discount" of 25% of the balance if I pay up at once, which I certainly can't). I have tried once (and once only, as a result of their attitude) to negotiate an increased monthly payment via the telephone, all further contact will now be my post

 

I have some specific questions re my particular circumstabces, as follows:

 

1) If they decided to obtain a CCJ, and, let's say for argument's sake, a Court decided I had to pay £100 per month from my surplus income, does that £100 not have to be spread proportionately amongst all my creditors? (I have 4 unsecured debts that I am in arrears on, totalling approx 35k). In this case, Eversheds / HBOS would only get approx 10% of the £100 each month, i.e. £10. Should I advise them of my other debts, in which case an offer from me of, say £25 per month to them alone might look all the more attractive.

 

2) Is there a "best time" to ask for a copy of my original agreement? Should I do it now, whilst they are still waiting for my proposals re the clearance of the debt, or does that smack of desperation on my part? (but presumably it's better to be too early with something like this than too late?)

 

3) If a CCJ was obtained, and I did not comply with the Terms, could the Court send baliffs around to demand entry to the house in which my wife and I live, given that it is in her sole name?

 

4) What is the likelihood that this is all just bluster to get me to increase my monthly payment?

[42man]

Get your agreement request off ASAP !!

[ScabHunter]

1) Hold off doing that at the moment

 

2) There is a best time to ask for the copy of the original agreement. It is called "as soon as possible!". You are worried about CCJs. If they don't come up with an enforceable agreement, they are going to very reluctant to take you to court. At the very least, it will buy you time. Far from being a sign of desperation, it is a sign that you know your rights and are prepared to ask for what is rightfully yours.

 

3) Bailiffs cannot demand entry or break in unless they are from the Inland Revenue. Keep all doors and windows securely shut. You are a long way from that stage yet.

 

4) They are desperate and trying it on. The offer of a reduced settlement is often a sign that they know the alleged debt is unenforceable, so get your CCA request off as soon as you can.

 

SH

[airtomoreira]

Thanks for the advice so far.

 

Two supplementary questions:

 

1) If the original CCA can be produced, will this not be more likely to encourage the DCA to "take this smart ass for every penny he's got?"

 

2) During the period that is allowed for the production of the CCA documentation (12+2 working days, I believe), do I have to respond to demands from Eversheds that I give them my proposals for the clearance of the debt - given that the final date that they have stated for this to happen is in five days time?

[ScabHunter]

1) I don't think they need any encouraging in this regard. It might make them try for a CCJ more quickly, but you can put the account in dispute for other reasons. Even if they did manage to get a CCJ, the court would only order you to pay what you could afford. The fact that you asked for a CCA would have no relevance.

 

The upside to a CCA request vastly outweighs any downside, and I seriously doubt there is any downside at all.

 

2) No. Until they can prove that any alleged debt exists, they are in no position to try and enforce it.

 

Who gave them the right to set time limits on anything? Only courts have the right to do that.

 

SH

[airtomoreira]

OK, I've sent my CCA request letter, sit back and wait.

 

One problem I can foresee here is that the forum is full of instances where lenders / DCA's can't supply the original CCA, which does of course bring deep joy to the individual concerned. This is building up hope in my mind that I might be on the right end of a "result". Realistically however, what is the chance that a lender will be able to comply with my request. I assume that it depends on a) how old the debt is, and b) the housekeeping efficiency of each lender, but are there any ball park figures for this (and if there are, are you allowed to divulge them!)

[ScabHunter]

Try not to worry about probabilities. Whatever will happen will happen.

 

It depends very much on the original lender. With Egg, for example, the odds are very slim that they will not have the right paperwork. With Crap One, the odds are a whole deal better, if the card is above a certain age.

 

I am no odds compiler on Halifax/HBOS, so I won't even hazard a guess.

 

The only thing here is that you have no horse to select. You can never go through life with the regret that you picked the wrong one. Your horse in this sweepstake has been chosen for you, so just wait for the result.

 

SH

[airtomoreira]

Sent CCA letter off, received at t'other end Wed 12th. Now I know it's only 3 days ago, but since then, have had no calls from them (previously had one or two every day). Is this any indication that they have a problem complying (would have thought that a little matter of a CCA letter wouldn't dissuade them from continuing to chase me if they had solid evidence that a debt existed)

[ScabHunter]

If they had the agreement right in front of them, then, yes, they would almost certainly get on your case quickly.

 

It is impossible to say what they are up to now. We just don't know, and there is no point in guessing. Just wait until the 12+2 days expire, and then send the "Account In Dispute" letter.

 

Account In Dispute

 

Ref:

 

Dear Sir/Madam

 

Thank you for your letter of xx/xx/xx, the contents of which have been noted.

 

You have failed to respond to my legal request to supply me a true copy of the original Consumer Credit Agreement for the above account.

 

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**.(12+2 days after you sent the CCA request)

 

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 your company 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.In addition a full statement of this account should have been sent to me detailing all debits and credits to the account.

 

Furthermore

 

You are aware that the Consumer Credit Act allows 12 working days for a request for a true copy of a credit agreement to be carried out before your client enters into a default situation.

 

This limit has expired

 

As you are no doubt aware section 77(6) states:

 

If the creditor fails to comply with Subsection (1)

 

(a) He is not entitled , while the default continues, to enforce the agreement.

 

Therefore this account has become unenforceable at law.

 

As you have Failed to comply with a lawful request for a true, signed copy of the said agreement and other relevant documents mentioned in it, Failed to send a full statement of the account and Failed to provide any of the documentation requested.

 

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

 

Furthermore I shall counterclaim that any such action constitutes unlawful harassment.

 

Please note you may also consider this letter as 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.

 

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 not respond within 14 days I expect that this means you agree to remove all such data.

 

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 credit agreement is a very clear dispute and as such the following applies.

 

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

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

* You may not pass the account to a third party.

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

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

 

 

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 therefore request a copy of your official complaints procedure which you are obliged to supply.

 

I would appreciate your due diligence in this matter.

 

I look forward to hearing from you in writing.

 

Yours faithfully,

 

xxxxxxxxxxxxx

 

Bear in mind that they can, at any time, produce a valid agreement and chase you for money. Of course, the odds against this happening increase with time, but there have been cases of valid agreements turning up months down the line.

 

The game is never over until there is a six year period with no payment or written acknowledgement of the alleged debt. At this point it becomes statute barred, and is gone forever.

 

Or at least, should be. There is one extraordinary case on these forums of a DCA chasing a statute barred debt. The case is stayed at the moment, even though it should be obvious to a drunken jellyfish that the whole episode is just a waste of time and money.

 

The offending DCA is Crapbot Farcical. At least you haven't got to deal with them - yet.

 

Take it day by day and don't get anxious. Control what you can control and stop worrying about the rest.

 

SH

[Cat Woman]

We've just come to the end of a year's worth of dealings with Eversheds - successfully I hope! The trouble with them is that they don't stick to consumer law. I requested a copy of our credit agreement with our original creditors (on a 12 year old alleged debt). They went over the time limits for producing this and still went ahead and issued a court claim. However to their surprise we defended the case (with a lot of help from this forum). We stuck to every point on the court order - they did nothing at all - and even rang us to ask for more time to meet the requirements!! We recently received a notice of discontinuance from them - so the case never got to court. They assume, I think, that no-one will bother defending a claim - and therefore they'd get a CCJ by default along with applying for a charging order - which in our case was their sole aim, I think. My advice would be to keep on doing what you're doing - if you give up now, they'd win. I wish you all the best with them - they're a nasty lot.

[Josie8]

Yes they will push it all the way in the hope that you will crumble at the thought of having to go to court............

[airtomoreira]

Thanks to ScabHunter, CatWoman and Josie 8 for thier recent replies. As mentioned above, my CCA letter was sent last week, and I have the electronic confirmation of receipt. Despite that, I have received the following letter from Eversheds today

 

Dear Sir

 

You have failed to make repayment as requested in connection with the outstanding debt of £xxxx

 

Please note that our instructions are now to commence further action. We may now, without further notice, issue proceedings through the Court, or alternatively, instruct a local Collection Agent who will attend your address to arrange payment.

 

Should you wish to avoid such steps becoming necessary, please ensure that you now respond by return of post to this letter

 

_____________________________________________________________

 

My suggested reply would be as follows, comments / additions / amendments are most welcome!!

 

Dear Sir or Madam

 

Thank you for your letter of 17 November.

 

I have to say that I am rather surprised, given that you claim to be a firm of solicitors, to have received this letter.

 

I sent you a letter 11th November 2008 (letter received by yourselves 12th November 2008, electronic Proof of Delivery in my posession), requesting a true copy of the credit agreement relating to the above account, together with any other documentation that the Consumer Credit Act 1974 requires you to provide. To date, I have received no reply to this letter, not even an acknowledgement. A further copy is enclosed for ease of reference.

 

Unless you are able to produce this documentation, then any proposed issuing of procedings through a Court would be futile - as I am sure you are aware. Equally, any intended visit to my address would be completely pointless, as I am under no obligation whatsoever to enter into any form of contact with such a "visitor", whose arrival would be viewed as nothing less than harrassment, and would immediately be reported to the local Police Station.

 

I hope that you will understand that I am aware of my legal rights in this matter, and I trust that you will not feel inclined to issue any more intimidatory letters such as the one of 17th November

 

Yours faithfully

 

 

I'm sure I've missed a trick or two here, so please advise me accordingly!! Many thanks

[airtomoreira]

I think the technical term here is "bump"

 

Been having second thoughts re my earlier message (1900 above). Is it better to just completely ignore the letter received from Eversheds today, as no reply has been received to my CCA letter yet?

[ScabHunter]

It is not that long now until the 12+2 days expire. I would leave sending any letters off until then.

 

We don't know whether the threatagram you have received came from a machine timed to spew it out on that day (likely), or whether it actually involved human input (unlikely). If it did involve human input, that would be a good sign as it shows they are desperate to get a blow in before you officially put the account into dispute.

 

That letter is pretty good. It just needs to mention that the account is in dispute due to the failure to provide a true copy of the agreement, if you send it after the 12+2 days expire. A heading of "ACCOUNT IN DISPUTE" wouldn't hurt, either.

 

The standard template letter includes a request for them to stop processing your data, and also mentions that it is a formal complaint, but nothing ever happens from that. Those issues can always be addressed later.

 

SH

[airtomoreira]

I've just noticed something which may or may not be interesting....the o/s bal quoted on the letter I received today is £1 less than the previously quoted balance. They have presumably therefore used my £1 Postal Order that they received on 12th Nov to effect this reduction. Given that my CCA letter states that the £1 is to be used for no other purpose than to pay the statutory fee, is this of any relevance?

[42man]

Not really, you have a made a bona-fide request for a copy of your agreement, you have proof of this, and the recorded delivery slip...where they put is up to them....Do you know if there are a significant amount of excessive charges that have been added to the account also ?

[Josie8]

Try not to worry about probabilities. Whatever will happen will happen.

 

It depends very much on the original lender. With Egg, for example, the odds are very slim that they will not have the right paperwork. With Crap One, the odds are a whole deal better, if the card is above a certain age.

 

I am no odds compiler on Halifax/HBOS, so I won't even hazard a guess.

 

The only thing here is that you have no horse to select. You can never go through life with the regret that you picked the wrong one. Your horse in this sweepstake has been chosen for you, so just wait for the result.

 

SH

 

with Halifax/Hbos very likely they won't have an enforceable agreement for one reason or another

[airtomoreira]

Thanks for that Josie, I hope you are right (I'd say the original agreemnet must be 7 or 8 years old, so hopefully the passage of time will work in my favour, not theirs!)

[airtomoreira]

Update....CCA letter received by Eversheds 12 Nov, so over half way there, no sign of anything from them yet. BUT...

 

1) On 20 Nov, received a letter offering a "significant discount", but I have to contact them within 10 days

 

2) This morning (22 Nov) received a postcard (not a letter, a postcard) advising that they have tried unsuccessfully to contact me (not true), and that they "have insturucted our agent to call within the next 48 hours". Quite what purpose this would serve I have no idea, but can someone please tell me

 

a) what is the likelihood of anyone actually calling round at the house?

 

b) if anyone does call, what is the most effective way of me dealing with it, on the assumption that I will have opened the door to see who it is.

 

I suspect that this is all hot air, as they can't produce the original agreement, but it does start to get you down. They are no doubt anticipating the receipt of an Accout in Dispute letter shortly, and trying what they can before hand.

 

Incidentally, is sending a postcard in order? Whilst there are no specific details of them trying to pursue an alleged debt, the implication is obviously that there is some sort of financial irregularity. My wife collected the post this morning, and gave the postcard to me. She is aware of what's going on, but I'm trying to play it all down, saying there's nothing to worry about etc. The thoughts of a knock at the door from some DCA heavy would seriously upset her.

[Josie8]

Its harrassment and breach of OFT guidelines. Report it to OFT (not that it will do much good)

 

Chances of them having either a valid agreement or valid DN is remote ...............

[sillygirl1]

There is a letter in the templates you can send stopping people visiting - they CANNOT send somebody round without having valid ID on them, and the person can be told to vanish pdq....

 

All these visits really do is check to see if you are 'living beyond your means' and if you have any goods that the bailiffs might be able to get their hands on should it go to court and they win.... most times it is just to frighten you into thinking that their visit 'pre-empts any legal action'.

[spamheed]

Update....CCA letter received by Eversheds 12 Nov, so over half way there, no sign of anything from them yet. BUT...

 

1) On 20 Nov, received a letter offering a "significant discount", but I have to contact them within 10 days Yeah right

 

2) This morning (22 Nov) received a postcard (not a letter, a postcard) advising that they have tried unsuccessfully to contact me (not true), and that they "have insturucted our agent to call within the next 48 hours". Quite what purpose this would serve I have no idea, but can someone please tell me They want you to call them, obviously you will be terrified/angry at the prospect of someone coming to your door and will call to complain/negotiate

 

a) what is the likelihood of anyone actually calling round at the house? slim to none

 

b) if anyone does call, what is the most effective way of me dealing with it, on the assumption that I will have opened the door to see who it is. what would you say if the ice cream man knocked at your door and asked you for money? these paople have no more power than him, tell them to sling their hooks (replace with suitable phrase) call the police if they refuse, they are not bailiffs and have no rights at all

 

I suspect that this is all hot air, as they can't produce the original agreement, but it does start to get you down. They are no doubt anticipating the receipt of an Accout in Dispute letter shortly, and trying what they can before hand. all part of their little games

 

Incidentally, is sending a postcard in order? No it's not. it's against OFT guidelines Whilst there are no specific details of them trying to pursue an alleged debt, the implication is obviously that there is some sort of financial irregularity. My wife collected the post this morning, and gave the postcard to me. She is aware of what's going on, but I'm trying to play it all down, saying there's nothing to worry about etc. The thoughts of a knock at the door from some DCA heavy would seriously upset her.

 

 

anonymous cards and letters should be treat with the contempt they deserve, file them and complain

[maroondevo52]

You could send them this.............

 

Dear xxxx

Account Ref xxxx

 

Please be advised that I will only communicate with you in writing.

 

I have noted your repeated attempts to contact me by telephone over the past few weeks/months and these have been duly logged by time and date.

 

Furthermore, should it be your intention to arrange a “doorstep call”, please be advised 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.

 

Regards.

 

Scott.

[Josie8]

..............

Edited January 21, 2009 by Josie8

[airtomoreira]

Many thanks to those who replied to my post yesterday (you know who you are!)

 

The more I read the various threads on here, the more I get "into" the whole DCA game, but the more questions I find myself coming up with (it's like my new hobby!). So please bear with me if I pick your collective brains on the following:

 

1) I've just read an excellent article posted recently by Hillards on the "modus operandi" of many DCA's, who will buy up in bulk debts from original lenders for a knock down price, and then pursue the alleged individuals for the whole amount of the debt, knowing that a 30 - 40% success rate is all they need to make it a profitable business. My own situation is that I am being hounded by Eversheds, on behalf of "their client" Halifax / HBOS. I would be interested to know if they are indeed still in this relationship, or if Eversheds have bought the alleged debt, and are acting 100% in their own interests.

 

My first reason for thinking this is that surely, if a DCA was acting on behalf of a client, they would at some stage indicate some willingness to negotiate increased monthly payments, rather than the "all or nothing" attitude of "we want repayment in full", offering absolutely no compromise. Would an OC not be happier with an extra, say £20 per month, rather than £0 extra per month which is what will be forthcoming in my case if no valid CCA can be produced (which I suspect, and am of course hoping, will be the case). In fact not only will they not get anything extra, but they run the risk of me stopping the regular payments that I have been making over the last x years when I serve an Account in Dispute letter within the next week.

 

My second reason follows a brief conversation that I had with an Eversheds monkey yesterday (yes, I know, never talk to them on the phone, but I felt I had to call and protest at the postcard I received from them). Monkey said that "they" had been trying to contact me since 2006, despite the fact that the first correspondence I had from them was last month. I have moved address on more than one occasion since this alleged debt came into existence, so I reckon that if previous attempts to locate me have been unsuccessful, this might be more of a reason for the OC / previous DCA to offload the alleged debt to someone else? (My previous contact, several years ago, was with a company called Castle Collections, with whom I agreed a repayment plan, which has been stuck to without exception on a monthly basis ever since)

 

2) Moving on, advice please on what happens after I've sent my Account in Dispute letter, assuming no valid CCA arrives this coming week.

a) As mentioned above, my monthly payments to date have been to Castle Collections. If I wish to continue to pay the same amount on a monthly basis, do I still pay them, or do I pay Eversheds?

b) Leaving aside any moral considerations (which I am quite happy to do right now, given the behaviour of Eversheds!), is it better for me to continue paying or not. I'm wondering if, by continuing to pay when I am under no legal obligation to do so, this would earn me any "brownie points" with a court, should the matter even get that far. On the other hand, continuing to pay could be construed as an acknowledgement by me that the debt is rightfully mine (as well as meaning that I'm never going to be in a position where the debt could be statute barred because six years have passed without me acknowledging it).

 

I'm sure there are other points I'd like to raise, but I'm being dragged out by the other half, so they will have to wait!

 

Many thanks for your anticipated advice!