mrs gaviebaby V BOS

[gaviebaby]

Hi guys,

 

Thanks for all the info in other threads that very useful! Basically my much better half has a CC with BOS (or is it HBOS/Labour?) which has been racked up to £8k or there abouts.

 

Sent off a CCA request in September - no reply

 

Sent off another CCA reminding them they have a time limit to reply - within a day received a copy of an application form with a nicely word processed credit agreement (hah!). It is my understanding that this does not constitue a correct CCA, so sent them a nice reply!

 

Anyway, we received a letter from the BOS stating they had withdrawn £65 from our current account to pay the CC. Is this allowed/legal or whatever? I reckon its underhand and downright nasty...... anyone have experience of this? And could anyone help in our next steps?

 

Ta muchly,

 

Gav

[saintly_1]

Hi sorry you havent recieved a reply to your post I can answer one part and in doing so will bump your post up so others will notice it.

 

What BOS has done is called offsetting and they can do this unfortunately.

 

saint

[rory32]

As previously stated they do have the right to offset. Have you thought of opening another bank account with another bank? You really should.

[gaviebaby]

Hi guys,

 

Sorry for the delay in replying. As for the bank account.... will do that as a matter of urgency!

I did send a CCA agreement request on 14/11 and received a response yesterday from BOS with a credit card application photocopy. Am I right in thinking that this does not constitue a CCA agreement?

 

Anyway, if not, could someone point me in the right direction now?

 

Cheers,

 

Gav.

[silverfox1961]

Hi,

If you could post up the "agreement" then the clver people here will tell you for definite.

make sure you obscure your personal details and use Photobucket to post.

If you need help in doing that just shout.

 

fox

[rory32]

Am I right in thinking that this does not constitue a CCA agreement?

 

An application can be an enforceable copy of the agreement. Most applications however are not enforceable as they do not contain the necessary prescribed terms.

[gaviebaby]

An application can be an enforceable copy of the agreement. Most applications however are not enforceable as they do not contain the necessary prescribed terms.

 

Thanks for the clarification!

 

Silverfox, will post the document tomorrow evening - no scanner at home alas!

 

Cheers!

 

Gav.

[silverfox1961]

Regarding your PM,

I stole this guide from one of our furry friends:D(you know who you are)

 

It seems tricky at first, but is fairly simple really.

 

1, Scan your DCA letter/whatever you want to show on the forum.

Ideal setting is 100dpi as it's closest to computer monitor display resolution.

 

2, Save the scanned image as a jpeg

Step 2.5 Edit out any personal information, barcodes or any other comments, notes or markings around the edge of the document. Never change the original document you received

2.5, Load the saved image into MS Paint. (comes free with Windows.) Use the pain brush or spray can to remove/paint over any personal info, such as name, account number, address, etc. Also remove any barcodes, as some DCAs may be able to identify you from these.

 

3, Create an account on Photobucket.

 

4, Once you have a Photobucket account, you'll find on the main webpage little box where you can upload photos. Click the "upload image" box and then tell it where on your hard disk you saved your scanned jpeg. It will then upload the image to Photobucket and it will show you thumbnails of the images you have uploaded. Under each image there are links that you can copy and paste.

 

5, Copy the IMG link below the image you want to put on the forum. Then reply to thread on CAG. Right click with the mouse and select "paste" from the little menu that pops up.

 

6, You'll then get some text appear in your message that looks a bit like this.

 

 

When you submit the reply, the text will change into the image you uploaded onto photobucket. The text you copied and pasted is just the information the forum needs, so it knows where to find your photo and display it in your message.

 

 

Courtesy of Fuzzybobble

 

 

 

 

Remember to "wash" ALL personal info off any paperwork

 

 

When you run the mouse over your uploaded picture a box will appear below it with 4 links. click on the bottom (IMG) then come back to your post and right click on the page. "paste" and bob's your funny relative!

 

 

 

 

fox

[gaviebaby]

Phew!!! At long last here's a copy of the 'form' sent to us. Sorry for the delay, been having trouble with scanners, Sky and BT! Finally got internet working again.... Thanks to fox for helping! Anyway, would appreciate any help/way forward etc!

[Shawn0109]

Ok so where are the pescribed terms and conditions? Was there any with this so called credit agreement you got?

[Shawn0109]

And it's a very very bad photocopy.

[gaviebaby]

Yeah, photocopy is grim! The terms & conditions is a nicely set out and typed list of erm bumph! Its a few pages in length and actually mentions mrs gaviebaby by name within it.... I can scan and upload them if needed?!

 

Gav.

[Shawn0109]

Also says it's a student visa card application no credit limit stated no iterest rates nothing about minimum payments which should state for every 100 or what ever spent 5% minimum payment is required per month.

[Shawn0109]

so it mentions your name in the T&C thats very strange, never heared of that before.

[rory32]

No prescribed terms so completely unenforceable.

[gaviebaby]

I think its strange too! Methinks someone at BOS is trying too hard to put the frighteners on!

 

Gav.

[rory32]

I can scan and upload them if needed?!

There's no need too. The prescribed terms must be contained within the four corners of the agreement. They can not be contained in another document entitled terms and conditions.

[gaviebaby]

thanks rory - mrs gaviebaby is feeling more positive!

If it is unenforceable, what do you recommend as the next step?

 

Gav.

[Shawn0109]

The agreemnet is unenforceable no question and it shouldnt mention your name in any terms and conditions at all. So send the debt in dispute latter. And if you are paying anything stop right now.

[rory32]

I would actually invite them to return the balance to zero and discharge mrs gaviebaby's liability on the grounds that they can not enforce the account in any way.

[gaviebaby]

wow! Thats audacious! I don't suppose you would have a wee example of an appropriate letter?!?

[Shawn0109]

You have the options send both letters out to them debt in dispute and tell them you want the debt writing off. Debt in dispute letter because they have not complied with the CCA request but tell them you want the debt writing off also because they have no grounds to prove it otherwise.

[Shawn0109]

ACCOUNT IN DISPUTE

Dear Sir or Madam,

Account number: XXXX XXXX XXXX XXXX

I must admit that I am rather bemused as to why this account has been passed to yourselves, as it is in dispute with the **original creditor/DCA** and has been since DATE. Not only is this a breach of OFT collection guidelines, but also in breach of the Consumer Credit Act 1974 and Data Protection Act 1998

My last letter from **original creditor/DCA** was DATE and intimated that my complaint would be resolved on **DATE**, this obviously hasn’t happened. As **original creditor/DCA** are now in default of my Consumer Credit Act request, OFT Collection Guidelines, *Subject Access request and have also breached *s10 Data Protection Act request , I consider this account to be in SERIOUS DISPUTE.

As you are aware while my Consumer Credit Act request remains in default enforcement action is NOT permitted, under s127 this constitutes a complete defence at law.

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

Now I would respectfully suggest that this account is returned to the **original creditor/DCA** for resolution of these defaults and breaches, as **New DCA** cannot lawfully pursue any enforcement activities.

If **New DCA** chooses to ignore my dispute and attempt enforcement, I will initiate legal action and file reports with the appropriate authorities, including, but not limited to, Trading Standards, Office of Fair Trading, Information Commissioners Office, Financial Ombudsman Service and possible court action.

After taking advice, I am of the opinion that any continued pursuit is in violation of the Administration of Justice Act 1970 section 40 as well as breaching a number of the OFT Collection Guidelines

I hope that this will not be necessary and an acceptable solution can be accomplished.

I would appreciate your due diligence in this matter. I look forward to hearing from you in writing.

Yours faithfully

[Shawn0109]

And here is the other one, take your pick.

 

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.

 

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

 

 

I trust this out lines the situation

 

 

yours etc

[gaviebaby]

This was the last letter sent to BOS at the beginning of December:-

Dear Sir/Madam,

Re: my request under the Consumer Credit Act 1974

Reference Number XXXXXXXXXXXXXXXXXXXXXXXXX

 

Thank you for your recent letter sent to me, the contents of which are noted. I appreciate your response to my original letter. However, the reply received by me does not fulfil your requirements under the Consumer Credit Act 1974.

 

The Act 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. An application form, like the one you sent in your reply, does not constitute a true copy of any credit agreement that may or may not have been signed by me on the opening of this account. An application neither confirms that I am liable for any alleged debt to you, nor gives 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.

 

You had until 14/11/2008 to provide me with the true copy I requested. You are now in default of my request. Any account I hold with you is now in legal dispute. Whilst the account remains 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, nor make any further charges to the account. Additionally, you are not entitled to register any information on this account with any credit reference agency.

 

To register information with a credit reference agency, you must have written consent from the customer to collate and share such information. This consent is given in the form of a signed credit agreement, so until you produce such an agreement, you may not do this.

 

The requirement for consent to share data is a clear requirement of the Data Protection Act 1998. Any such attempts to share my data without my consent will be met with a complaint to the Information Commissioners Office.

 

The time limits, which are laid down in the Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 are clear. You must supply an executed credit agreement within 12 + 2 working days of a proper Consumer Credit Agreement request. If you fail to comply with a legitimate request the account enters a default situation and if you fail to comply after a further 30 days you commit an offence. If you continue to try to enforce this debt without complying with my original request you will have committed a criminal offence and your conduct will be reported to the Office of Fair Trading, the Financial Ombudsman and Trading Standards. Any investigation undertaken by them may affect your ability to offer credit in the future.

 

To sum up, I will not be making any further payments to you until you provide me with the document I have requested. Whilst you remain in default of my request, you are not permitted to take any action against this account. This includes adding further charges and passing any information to the credit reference agencies.

 

Should you not have any signed credit agreement in relation to this alleged debt, please confirm this in writing to me.

 

 

I look forward to your reply.

 

Yours faithfully

 

 

Is this the correct one to have sent?

 

Gav.