Lowell/HFO claimform - old barclaycard debt **WON***

[leedsangel]

Just a quick question: I have looked at the so-called CCA that was sent to me by Barclaycard and the Date of Signature is 25.08.02. Barclaycard has sold on the debt to HFO, so can HFO chase me for the debt? I think I last made a payment to Barclaycard a few years back, so does that mean the date of my agreement doesn't matter?

[Pank]

Dear All,

 

I resent the first letter posted on the thread to Turnbulls over 1 week ago and I have as yet not heard anything. In the meantime I stated in the letter i originally sent to HFO that I would report them to the office of fair trading had I not received a reply within 14 days, which I have not. Can you tell me whom I should report them to and also what kind of letter should I send them to tell them I have now reported them? I guess I should CC Thurnbulls in sich a letter? Thank you for all your help.

 

[Pank]

Can I just ask something else? What are the chanses that they writed the dept of necause I am more hassle that I am worth? Do HFO ever write things off or do they take evrybody that doeas not pay up to court?

 

Cheers:confused:

[spamheed]

Can I just ask something else? What are the chanses that they writed the dept of necause I am more hassle that I am worth? Do HFO ever write things off or do they take evrybody that doeas not pay up to court?

 

Cheers:confused:

 

Someone once described this process as a game of "who blinks first" this is where patience and not panicking are pre-requisites. You have written to them stating your case, it is now down to them to make the next move. They will threaten and cajole you in the hope that you will contact them and/or make payment.

 

You are waiting for them to fulfill your request, until they do there is nothing more for you to say.

 

I requested 2 x CCA over a year ago, now and again a DCA will pop up and try to threaten me into paying. Don't think you have to do something, you don't.

 

You would be extremely fortunate to have your debt written off, so I wouldn't hang my hat on that.

 

More likely they will threaten you until it is clear that you know the score and that you will not be making payment, then they will sell on the debt to another low life and so they will start to threaten you.

 

Even this, whilst not particularly enjoyable is a positive step. If they had enougfh to take you to court and get a CCJ, believe me, they would have already done so, the selling on of a debt merely underlines this fact

[Pank]

Thank you, I am new to this, I just get very nervous and frustrated.

 

I have reported them to Trading Standards and Information Comissions Office.

 

Many Thanks

[Pank]

Dear All,

 

I have now received another letter from HFO, I am asuming the solicitor will send me another one shortly.

In the 2nd December I sent the first letter 42Man very kindly wrote to me as they sent me a copy of an application form.

Now on the 19 January I have received another letter containing some statements from the account. I have not asked for these.

What is my possition? They have not been able to supply a Credit Agreement and they are now sending me statements instead.

The last statement is very interesting as it shows the account in Credit.

 

What should I do now? I am just waiting to get another letter from the solicitors now any day.

Can someone help me with a nother letter please and tell me what my possition is? Any advise would be usefull. I enclose all the statements and the letter I have received.

 

Many Thanks

Edited January 23, 2009 by pt2537

[lickthewallfatboy]

as someone else demonstrated in court,statements are not proof of a debt,and when the person being taken to court amended the copies of the statements to show the name and address of the head of the DCA and showed it to the judge,it was case closed......

 

things can be doctored to appear to be something they are not,and the judge accepted this.

[spamheed]

As mentioned above a Statement doesn't prove even the existence of an agreement, let alone be used in the enforcement of one.

 

If they have no enforceable CCA, then there is no debt, the CCA is proof of the contract, it verifies the legal relationship between a debtor and the creditor, without this document there is no relationship.

 

Anything they send as an alternative to the CCA can be used in a wide variety of manners, but it cannot be used to enforce a debt in place of a CCA.

 

continue to complain to all bodies and follow them through, they are unlawfully attempting to enforce a debt without proof

[Pank]

Can someone point me in the direction of any legal documentation or in the direction of a pre written letter that states this so that I can send this of to the solicitors?

 

Many Thanks

[spamheed]

Try this

 

Dear Sirs,

 

Account no xxxxxxxxxxxxxx

 

 

Re: my request under the Consumer Credit Act 1974

 

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

I note that to date you have not complied with my request for a copy of the credit agreement for this alleged debt which you are pursuing me for

 

The Consumer Credit Act 1974 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. Without production of the said agreement I am unable to asses if I am indeed liable for any alleged debt to you, nor does it give 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.

 

 

For the avoidance of any doubt I have included section 78(1) of the Consumer Credit Act 1974, which states…

 

78 Duty to give information to debtor under running-account credit agreement

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of [£1], shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a) the state of the account, and

(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

(2) …….

(3)….….

(4) ………

(4A)……

(5) ………

(6) If the creditor under an agreement fails to comply with subsection (1)—

(a) he is not entitled, while the default continues, to enforce the agreement; and

 

(7) This section does not apply to a non-commercial agreement, and subsections [(4) to (5)] do not apply to a small agreement.

 

 

Clearly the agreement which was supplied in no way complies with the requirements of the Consumer Credit Act 1974 and I now draw your attention to section 78 subsection 6 which states If the creditor under an agreement fails to comply with subsection (1) he is not entitled, while the default continues, to enforce the agreement;

 

Clearly this is a situation as described in s78(6) Consumer Credit Act 1974 and the debt is unenforceable at this time. In addition, I draw your attention to section 127 (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.

 

 

To clarify s61(1) states

 

(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

 

In addition the prescribed terms referred to in section 60 CCA1974 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

 

 

Therefore based upon the Consumer Credit Act 1974 this debt as it stands is unenforceable and should this proceed to litigation, a court is precluded from making an enforcement order under section 127(3) unless a true copy of the signed agreement is produced. I will re-iterate that this is clearly not a true copy of the executed agreement between ********* and myself.

 

 

At the point where this account entered into the default situation as described in s78 (6) CCA 1974 no other charges are allowed to be added until such time as ********* become compliant with my request. As ****** are still not in compliance with my request I insist that the following takes place with immediate effect

• All charges levied since ******** 2007 be removed from the account and further charges cease until such time as ******8 comply fully with my original request or such time as a court makes an enforcement order
• All entries which refer to missed payments be removed from my credit file
  
• All collection activities by your company cease with immediate effect until ******** comply with my request from ********* 2007 or such time as a court makes an enforcement order
  

In addition, 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

 

Clearly your pursuance of this debt falls into this category; in addition I must draw your attention to the fact that this debt is under investigation by Mr ******** of ********************** Trading Standards as I have made a complaint as a direct result of **************** failure to comply with the CCA 74 .

 

What I Require.

 

I require that you send me a true copy of the executed agreement and all documents referred to in it as required by the Consumer Credit Act 1974. If you are unable to supply the requested documentation because no such agreement is in existence I require written clarification as such.

 

I require that you comply with my request within 7 days of the date of this letter. I will not correspond any further with you until I either receive a copy of the requested documents as laid down in section 78(1) CCA 74 or clarification that such agreement doesn’t exist.

 

No other correspondence will be accepted

 

I trust this out lines the situation

 

Regards

[Pank]

Hello,

 

Posted the letter above yesterday. Sent it to HFO and CC Turnbull, Trading Standards and Legal Complaints Service. To trading standard and Legal Complains I enclosed all paperwork. The two letters to HFO and Turnbull I sent Special delivery. Lets now see what happens, Thank you for your help.

[Pank]

Hello,

 

I have today 23 January received my 2nd letter from Thurnbull. I have enclosed it.What should I do? Will they really persue a debt to court with no CCA. So far they have sent me a copy of an Application form and 3 copies of statements. They have no legal framework to base their case on. Does anyone know, or has anyone been on the receiving end of this kind of treatment from Thurnbulls and HFO?

I will send a copy of this letter to legal complaints and Trading Standards. Does anyone have any advise as what I should do, should I just hold out and prepare my deffence?

Should I assume we are going all the way?

 

Many Thanks:?

Thurnbull 02.pdf

[pt2537]

I have just edited your post with the HFO statements on them.

 

you left your name, address, account number and other personal details on them and as a precaution i thought it best to pull them from public view

[Pank]

Thank you

[DonkeyB]

That letter again... 'once we have obtained judgment...'

 

So Turnbull Rutherford know what the judge will decide, do they? I think this is an inaccurate portratyal of what may happen and therefore may contravene CPUTR. It sounds tantamount to a threat by way of misrepresenting the situation.

 

Moreover, I don't believe charging orders are granted automatically, as this implies.

 

PT, what do you think? Cause for more complaint?

Edited January 23, 2009 by DonkeyB
Missed a bit

[Pank]

Hello Again Everyone,

 

What is a CPUTR? I guess I should pass this letter on to the Legal Complaints Service?

 

Many Thanks

[broken arrow]

Consumer Protection from Unfair Trading Regulations

[Pank]

Thank you. What does that mean for me? Whom is in breech HFO or Turnbulls?

[DonkeyB]

Have a look here.

 

The Consumer Protection from Unfair Trading Regulations 2008 No.

 

The bit about aggressive commercial practices is interesting, as is this under 'Misleading Actions':

 

Misleading actions

 

5.—(1) A commercial practice is a misleading action if it satisfies the conditions in either paragraph (2) or paragraph (3).

(2) A commercial practice satisfies the conditions of this paragraph—

(a) if it contains false information and is therefore untruthful in relation to any of the matters in paragraph (4) or if it or its overall presentation in any way deceives or is likely to deceive the average consumer in relation to any of the matters in that paragraph, even if the information is factually correct; and

(b) it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise.

 

I think by stating 'when we get judgment' they are misleading you. Your complaint is about TR, I think, but they are acting on behalf of HFO so I'd complain about them both to the OFT and Merton Trading Standards.

[DonkeyB]

Hi Pank

 

Have a look at this as well.

 

http://www.consumeractiongroup.co.uk/forum/consumer-protection-unfair-trading/147830-complaint-oft-respect-invalid.html

[sillygirl1]

Pank, Turnbulls CANNOT immediately go for a Charging Order, YOU have to be in breach of the CCJ FIRST. I would gently remind them that as part of 'pre court protocols' your SAR request hasn't been fully complied with and therefore as they are indicating court action the County Court Act Part 18 (or is it part 16) rules on disclosure will therefore take precedence.... As you have already issued a SAR they have had sufficient time for you to ask the court for strict adherence to the pre-court protocols on disclosure and will fight any set aside they may want.

 

What the above means in plain English is

 

1. You have asked them to provide a comprehensive list of documents to prove you owe this amount

2. They haven't complied.

3. When they take you to court they will have to have the comprehensive list of documents - if not case can be thrown out.

[DonkeyB]

Spot on Sillygirl. Therefore they are trying to mislead you and you have cause for complaint! Go for them.

Edited January 26, 2009 by DonkeyB
typo

[Pank]

Dear All,

 

Thanks Again for all your help it is appreciated.

 

This what I have done so far.

 

I sent the first letter 42Man wrote for me when I received the application form rather then a CCA.

 

When I received the statements I sent the letter Spamheed wrote for me on the 20th.

I have since received the last letter from Thurnbull which I have not yet responded to. It was sent the same day as mine and they will have crossed eachother in the post.

 

In the last letter I sent to Thurnbulls and HFO I CC the Legal Complaints Service and the OFT and I advised HFO and Thurnbulls that I have passed all the details on to these two organisations.

 

I have not sent a Subject Access Request, I assume you are refering to the 2nd letter that 42man wrote asking them to provide all their records and all their paperwork they have about me?

 

I have sent 1 application to the OFT, address in London providing all the paperwork, and 1 application to Legal Complaints in Leamington Spa.

 

Should I now send The Subject Access order, and complain again about both of them with the letter provided to a different address of the OFT?

 

Many Thanks

[Pank]

I have now received a case number from The Solicitors Regulation Authority for reporting HFO and Thurnbulls. Should I send The Subject Access order, that 42man wrote for me?

[Pank]

Can someone please tell me if I should send the The Subject Access order or should I wait until I get another letter telling me it is going to court! HELP