Taz11 v RBoS credit card debt

[Taz11]

Ok, here's the start of another of my cca request threads...lol

 

I have cca'ed RBOS, received nothing, and sent a non compliance letter. Saturday morning I receive a usual statement requesting money as if nothing has happened. I was under the impression they cannot request payment whilst the aaccount is in default/dispute. Do i just ignore it, don't pay and just keep waiting for a cca, or send another non compliance letter (as there seems little point, if they are just ignoring it).

 

thanks

 

Taz11

Edited January 13, 2009 by Taz11

[Taz11]

Ok, I've finally received something from RBOS after sending a cca request and a non compliance letter. What they have sent seems an absolute joke!!, Could someone please verify that this is not enforceable. I received a Front Page (PLEASE NOTE THE BOTTOM PARAGRAPH), and 4 other pages, no signatures, address is my new address, not my original where the account was established. I've only posted the relevant pages as others are just t and c's etc...

 

I have alreday sent a non compliance letter, to receive this. Is there any point in answering this????, or just ignore. Advice would be appreciated.

 

regards

 

Taz11

 

 

 

 

 

[Taz11]

Anybody please ??, opinions appreciated :)

 

thanks Taz11

Edited January 13, 2009 by Taz11

[fedup74]

Hi Taz- is this all they sent? Where is you signature? If that document was related to one with your signature then it would be enforceable. Have you just blocked your signature out- if not then how do you know what you signed? I think under section 78 they can send you an agreement with your signature omitted-I may be wrong- and one of the more experienced peeps can advise on how to get around this.

[davefirewalker]

Looks like youl have to go the SAR route or CPR 31.16

 

you NEED to see the ORIGINAL document with your signature on...if they havent got it they cant enforce it...ie cant get any money of you or take you to court.

 

Dave

[Taz11]

Hi fellas, and thanks, No, nothing with signature on whatsoever. Am I right in thinking, that if this was a "true copy" of my agreement, it should have least have the date it was taken out, a signature from either the creditor or debitor, and my original address when the agreement was taken out. This one says Parties are Royal Bank Of Scotland and Mr ********** of (my now present address).

 

Also it states, "at the date of this letter our current interest rates are....", which I presume are nothing like the % rates when it was "allegedly" taken out ??

 

thanks again for any advice

[davefirewalker]

Hi fellas, and thanks, No, nothing with signature on whatsoever. Am I right in thinking, that if this was a "true copy" of my agreement, it should have least have the date it was taken out, a signature from either the creditor or debitor, and my original address when the agreement was taken out. This one says Parties are Royal Bank Of Scotland and Mr ********** of (my now present address).

 

Also it states, "at the date of this letter our current interest rates are....", which I presume are nothing like the % rates when it was "allegedly" taken out ??

 

thanks again for any advice

 

NO....

 

s3 of the consumer credit (cancellation notices and copies of documents....etc)1983 state that a true copy need not be a "photocopy", but should contain the "essence" of the agreement. Also it may omit some data...such as date and customers signature etc.

 

---------------------------

3 General requirements as to form and content of copy documents

(1) Subject to the following provisions of these Regulations, every copy of an executed agreement, security instrument

or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act

shall be a true copy thereof.

(2) There may be omitted from any such copy--

 

(a) any information included in an executed agreement, security instrument or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations thereunder as to the form and content of the document of which it is a copy;

 

(b) any signature box, signature or date of signature (other than, in the case of a copy of a cancellable executed agreement delivered to the debtor under section 63(1) of the Act, the date of the signature by the debtor of an

agreement to which section 68(b) of the Act applies);

 

© in the case of any copy of an unexecuted agreement delivered or sent to the debtor or hirer under section 62 of

the Act, the name and address of the debtor or hirer; and

[(d) in the case of any copy of an executed agreement given to the debtor under section 77(1) of the Act for fixed-

sum credit, or under section 78(1) for running-account credit, under which a person takes any articles in pawn, any

description of the article taken in pawn.]

 

 

My feeling on this is that it is wrong. They are misinterpreting s3 to there own ends.

 

the section in red if interpreted properly says that anything that is required by the act MUST be included apart from signature......UNLESS it is a cancellable agreement (as most are)

 

So it seems that they can leave very little out

 

However if they wont play ball,,,,,,try a CPR 31.16 aproach

 

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

 

rgds

 

Dave

[Taz11]

Thanks Dave,

 

I've just read through your link, Scary stuff!!! for a newbie . In other words, put simply, they can pretty much leave off what they like until reaching court, where infact, if they have the "original document" they can produce it, and kick all the letters you sent to them into touch, and pretty much make the agreement enforceable.

We, as individuals, are just relying on the fact, that they don't have it, and calling their bluff till they can actually prove anything with an agreement in court.

 

Am I correct Dav in laymans terms.??

 

So the CPR 31.16 specifically asks for a SIGNED agreement, and shows us, if its available, what we have entered into. Without it, they don't have much chance.

 

thanks again

 

Taz11

[davefirewalker]

Thanks Dave,

 

I've just read through your link, Scary stuff!!! for a newbie . In other words, put simply, they can pretty much leave off what they like until reaching court, where infact, if they have the "original document" they can produce it, and kick all the letters you sent to them into touch, and pretty much make the agreement enforceable.

We, as individuals, are just relying on the fact, that they don't have it, and calling their bluff till they can actually prove anything with an agreement in court.

 

Am I correct Dav in laymans terms.??

 

So the CPR 31.16 specifically asks for a SIGNED agreement, and shows us, if its available, what we have entered into. Without it, they don't have much chance.

 

thanks again

 

Taz11

 

Correct....got it in one

 

Dave

[Taz11]

Doh !!, think all my bubbles have just been burst

 

Mind you, as you have rightly said, it seems they can leave very little out.

 

I suspect that if they have no executeable agreement, then this is the time when they a) try to pass it to a dca or b) try to arrange final reduced payment??

 

 

With regards to the CPR 31.16 Dave, Is this just a request for your signed agreement, and if they fail to provide it, do you have to take them to court. i.e, are all the other letters on your previous link necessary??

 

I was reading the link, but began to get slightly bemused by it all.

 

 

Just as a passing shot, these companies who "provide a service to write of your debt", are they basically taking peoples money and ending up with the same literarture as we all get??....i.e a consumer credit agreement that means naff all, but they are pocketing the consumers money anyway, knowing full well that if it goes to court their "customers" could possibly lose because a valid cca has been produced in court. The reason I ask, a friend of mine has just paid £300 to a company to do exactly the same thing i have done for a £1 postal order

 

 

Thanks for all the info Dave, much appreciated,

 

regards

 

Taz11

[Taz11]

Would I be right in thinking that if I Subject Access Request them, they HAVE to send a copy of my signed agreement??

 

I found this template from the Godmother, and was going to amend the line I've highlighted to say "Signed" agreement. Would this be acceptable, and with this letter, they must reply with a signed original CCA.??

 

Thanks again.

 

 

 

Data Protection Act 1998

Subject Access Request

 

 

Dear Sir/Madam

 

 

ACCOUNT NUMBERS: xxxxxxxx and xxxxxxxx-x

 

Please send me the information which I am entitled to under section 7(1) of the Data Protection Act 1998 in relation to detailed occurrences relating to the account Numbers xxxxxxxx and xxxxxxxx-x

 

The following is by no means an exhaustive list but in the main this is what I require.

 

Please supply me with a complete list of transactions and charges relating to ALL accounting history with your organisation. Alternatively, a complete set of statements for that period will be acceptable.

 

Additionally, all records you hold on me relevant to these accounts, including but not limited to:

 

1. A transcript of all transactions, including charges, fees, interest, repayments and payments and both the original amount of the loan and any repayments made to the accounts.

 

2. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company

 

3. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account. If you are unable to supply this data because there has been no such manual intervention, then please be so kind as to confirm this in your response

 

4. True copies of any notice of assignment and/or default notice or enforcement notices that you may have sent to me, with a copy of any proof of postage that you hold.

 

5. Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted.

 

6. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

 

7. Specific details of the fees/charges levied by any other agency in respect of these accounts and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

 

8. A genuine copy of any deed of assignment, or proof that you have a legal right to this money.

 

9. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

 

10. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

 

11. A copy of all account statements for the duration of the agreement.

 

12. Please would you also advise me of the logic involved in any automated decisions taken by you about me pursuant to section 7(1) (d) of the Data Protection Act 1998.

 

13. A True signed copy of my original consumer credit agreement section 77-79 of the Consumer Credit Act of 1974.

 

Any Other information relating to these accounts

 

I enclose the statutory maximum fee of £10. You have 40 days in which to comply. Furthermore, if I discover that you have levied disproportionate penalties against me, then I shall be reclaiming them, and also reclaiming the enclosed £10 Data Protection Act subject access request fee.

 

If there is specific information which you require in order to satisfy yourself as to my identity, please let me know by return. However, please note that the above address is the one which you normally use to communicate my private business to me and which you have hitherto found to be acceptable.

 

 

Yours faithfully

BLAH

Edited January 14, 2009 by Taz11

[davefirewalker]

Would I be right in thinking that if I Subject Access Request them, they HAVE to send a copy of my signed agreement??

 

 

 

NOT necessarily..............many have tried, and SOME have been suscessful.

 

if there are charges anyway, and i'm sure there must be ...A SAR would be the way to go anyway. ask Specifically for signed copies of any agreements.

 

failing that a cpr 31.16 request looks the only way forward.

 

Dont be too frightened, its shows that you are trying to resolve the dispute WITHOUT going to court.

 

A cpr 31.16 will not necessarily mean that you have to go to court, BUT if they dont supply it then you CAN make an application to the court to force them to supply the info.

 

rgds

 

Dave

[Taz11]

Thank you Dave,

 

I'll get a Subject Access Request in the post, and hopefully they will respond. If not, I assume the options are a CPR 31.16 or bluff them to court hoping they don't have the original agreement.

 

I would suspect that if they have one, they would surely present it to me??.

 

Is there ANY law which states that a creditor is entitled to a copy of their true original signed agreement if requested, and that a creditor MUST send it, or is it the fact that they only HAVE to produce it in court. In which case, is their any point in cca or sar request to companies when they actually don't have to show it until its needed in court. Do you see my point Dave??

 

 

Hope you are not going anywhere in the near future Dave, I may have to ask you a few q's on this one if it goes the CPR route........lol

 

Thanks again

Taz11

Edited January 14, 2009 by Taz11

[davefirewalker]

Thank you Dave,

 

 

 

Is there ANY law which states that a creditor is entitled to a copy of their true original signed agreement if requested, and that a creditor MUST send it, or is it the fact that they only HAVE to produce it in court.

Thanks again

Taz11

 

In the Civil Procedure rules there is a clause which states something like that where a case is brought because of a disputed document...the original copy must be available for inspection....or something like that...cant find the reference just yet.....

 

So......to take you to court they MUST have the original........OR a certified notarised TRUE COPY...ie a photocopy. if they need this and must have it to bring the case...then it stands to reason that to settle the case without the need for court action it would be reasonable if they supply it via a cpr 31.16 "request"...failing that you can apply to the court for 31.16 disclosure of documents....they CANNOT refuse that.

 

rgds

 

dave

[Taz11]

Thanks Dave, Excellent information. I see your point. It would make sense for them to provide the " signed agreement" prior to pursueing the avenue of the courts if a dispute can be resolved amicably outside of court.

 

I'd just like to know I can force their arm/show their hand by requesting "true signed agreement" prior to court, and by what you are saying this can be done either by sar, to which they may not comply, or by cpr which again, they may not, but I can force the issue by applying for disclosure of documents,to which THEY MUST forward the required document.

 

Have I got my head round that Dave??, Thanks for the patience m8 and explaining it perfectly. Lets hope they reply to my SAR saying they don't have it.......lol

 

thanks again

 

Taz11

[BlueSquirrel]

I've got pretty much got the same letter as you Taz, except it says that a copy of my executed agreement is enclosed. Infact it is an application form. It refers to conditions of use "overleaf" but they have not sent me the copy of the other side so no idea whether there were prescribed terms or not. They have sent me a copy of current terms. Surely if they have to provide a "true copy" that would mean they have to provide something with the T & C that applied when you took it out?

 

What should I do next?

[davefirewalker]

 

Have I got my head round that Dave??, Thanks for the patience m8 and explaining it perfectly. Lets hope they reply to my Subject Access Request saying they don't have it.......lol

 

thanks again

 

Taz11

 

You have understood well grasshopper......

 

Dave

[Taz11]

Ok Dave, I have Subject Access Request'ed RBOS, sent on the 15th January. I assume they now have 40 days to reply ??. If not/don't reply, what is the procedure??, straight to CPR??, or if its apparent that they have not complied with my request then let them take me to court.

 

Thanks again

 

Taz11

 

 

 

by the way, bluesquirrel, I'm not ignoring you m8, its just that people on here know far more than me to advise you correctly. We are both in the same situation. Good Luck !!

[davefirewalker]

Hi Taz......

 

there are a number of scenarios and each requires a slightly different approach

 

1 they dont comply within 40 days......send the non compliance letter and a complaint to the Information commissioners office....

 

2 they only partially comply...ie some info but obviously some missing....sort of same as above.....but edit the letters to suit

 

3 doesnt look like youre getting anywhere fast....lots of runaround etc

go for the CPR approach.......

 

BE AWARE that the overiding objective is for the parties to settle their differences out of court, and that litigation should be seen as the last final step. The courts will not look favourably on anyone who seems to be rushing headlong into litigation without giving the other party a reasonable chance at negotiation/arbitration/settlement.

 

it takes time......sorry

 

 

rgds

 

Dave

[Taz11]

Thanks Dave, I'm in no hurry...lol I'll sit and wait for a reply and take it from there. As I say, if they have it, surely they would be more than happy to produce it, to prove they are within their rights to claim monies.

 

thanks again

 

Taz11 I'll keep this updated.

[Taz11]

Well, well well,

 

BOS have replied,.....BUT, seem to acknowledge that the agreement is unenforceable. Now I'm not sure if they mean, because they have only sent an application form. (If so, that would possibly mean apps aren't acceptable as agreements) or its not enforceable because of lack of terms and conditions, which they confirm WERE on the back (yh, course they were...lol).

 

Like to seek your opinions on what they have actually written, and what you think they are actually saying.

 

I've also attached the application form

 

 

Would you send a "request you return account to zero letter" ??? i.e no agreement, no debt ??

 

thanks

 

Taz11

 

bos application form.pdf

[BlueSquirrel]

I got one of those and wasn't sure what to make of it: there seem to be a few with similar wording floating around that other people on this forum have received. A couple of days after this letter I got a default notice

[Taz11]

thanks bluesquirrel, yh, the letter doesn't exactly explain the situation. Looks like I will be waiting for a default notice, which I find ridiculous, because the account is obviously in dispute, and I was under the impression with regards to cca 74 that whilst in dispute no action could be taken against the debtor ??

 

Its at this point I really get lost/confused. If the act states no action can be taken and they continue to ignore it, what are our options as the debtor who is still being harrassed ??

[Taz11]

Ok, I really need a strong reply to these twits !!!. BOS have sent the letter stating they will not be seeking enforcement and I get a letter from Blair, scott..blah blah blah saying that I have received a DN and court proceedings will start.

 

They also state the account has been terminated. I have had no notification that it has been terminated WHATSOEVER from the OC.

 

 

Well for a start, BOS have plainly stated they can't enforce and I HAVEN'T received a default notice in any way shape or form.

 

The letter was dictated on the 27th February and received today the 5th March !!!!. Letter from BOS was dated 26th Feb.

 

Can someone supply a strong letter or template to send to these idiots,basically highlighting the fact that their own client cannot enforce it, and no DN has been sent or letter of termination/assignment.

 

Hasn't even got the clients name ???!!!!!

 

 

Could I be under the illusion that in reply to my previous letter they simply do not have the original and have decided to pass it on to Blair, Oliver and Scott without notification of assignment or DN.

 

 

Just one more thing, do I address it to the headed address PO BOX 66 or the collections department PO BOX 607, HALIFAX

 

 

Thanks

Taz11

 

 

 

 

 

 

 

Other than your opinions, I've decided to throw something like this together. I don't want to name the client, because they obviously can't be bothered to name them either, so let them work it out. I also haven't told them I haven't got a notice of assignment or a DN as I think this is in my favour???? Your opinions would really be appreciated.

 

Thank you for your letter dated 27/02/2009 and not received by me until 5/03/2009.

 

I must admit that I am rather bemused as to why this account has been passed to yourselves, as it is in dispute with your client , and has been since 23/12/2008.

Not only is this a breach of OFT collection guidelines, but also in breach of the Consumer Credit Act 1974. I requested a copy of the alleged credit agreement on 4/12/2008, for which I have proof of postage and delivery. Your Client has failed to supply a copy of the original agreement, properly executed with historic prescribed terms and conditions relating to the alleged agreement. This has been pointed out to your client. I cannot understand why they would sell/pass on this debt to yourselves as it is in serious dispute.

As your client is now in default of my Consumer Credit Act request, and has 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.

 

Now I would respectfully suggest that this account is returned to your client for resolution of these defaults and breaches, as Blair, Oliver and Scott cannot lawfully pursue any enforcement activities.

If Blair, Oliver and Scott choose 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.

 

I would also like to add at this point that I am in possession of a letter from your client dated 26th February 2009 stating that at present they cannot provide the documentation I have requested and until they can provide such documentation they will not be seeking to enforce the debt. You will appreciate that if you decide to take court action you will be forced to produce the original agreement. I will be obliged to produce the letter in court, received from your client stating that the original agreement cannot be located and therefore will not be seeking to enforce the debt. They also add, as a lender they cannot seek an enforcement order in a court of law.

 

 

I would appreciate your due diligence in this matter.

I look forward to hearing from you in writing.

Yours Faithfully

Edited March 5, 2009 by Taz11

[Taz11]

Anybody please ???