DCA heavy-handed over increase of repayments - advice needed, pl.

[FlyboyAgain]

I take it it's an application form with no prescribed terms therefore unenforceable?

 

I would try the method of getting the original re my post 67.. or the CPR. Doesn't look like you are going to get anything else out of them any other way.

 

 

Scans pictures by kakkadoo - Photobucket

 

 

The above site holds three scans of the Priority Application Form, which has been signed.. They have also attached, as they did before, the terms and agreements.

[FlyboyAgain]

Is that an account number scribbled at the bottom of App1 as well as a name at the top.

 

In any case, don't see any prescribed terms there for the that year 2000 application for credit therefore unenforceable.

 

Please explain what you mean by 'prescribed terms' or post a link?

 

Alos, thanks for drawing that number to my attention! That number is not relevant to the accoun paperwork that I requested: it is for ANOTHER of my credit cards! I recognise the number!!

[davey77]

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.

 

When a Pre April 2007 agreement fails to include the prescribed terms as per section 61(a) of the Consumer Credit Act 1974 then the agreement will be irredeemably unenforceable.

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/162851-consumer-credit-agreements-guide.html

[FlyboyAgain]

Wouldn't all that be in the Agreement terms, which they aslo attached, separately? That shows I must repay a minimum of 2% per month. It also goes on about the 'total charge of credit and the amount of credit being borrowed at the start of the agreement.

 

Also, how can one ever know the number of payments that should be made to a credit card? or am I being thick, here?

[davey77]

The Prescribed Terms should be embodied within the signature document and cannot be found on another, apparently separate, document:

 

Wilson v Hurstanger:

 

"...Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under section 61 that all the terms should be in a single document, and backed up by the provisions of section 127 (3), ensure that these core terms are expressly set out in the agreement itself:

they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them."

 

You need to have a browse around on the forums. You'll see others with similar issues. New agreements (unsigned) and/or T&Cs they send along with the application form sometimes state a minimum payment of £12 which would not have been in force in 2000. It's discrepancies like that you need to look for.

 

The main point is though, if your signature document does not contain those terms (within the agreement itself) then they can't enforce that agreement.

[FlyboyAgain]

The Prescribed Terms should be embodied within the signature document and cannot be found on another, apparently separate, document:

 

Wilson v Hurstanger:

 

"...Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under section 61 that all the terms should be in a single document, and backed up by the provisions of section 127 (3), ensure that these core terms are expressly set out in the agreement itself:

they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them."

 

You need to have a browse around on the forums. You'll see others with similar issues. New agreements (unsigned) and/or T&Cs they send along with the application form sometimes state a minimum payment of £12 which would not have been in force in 2000. It's discrepancies like that you need to look for.

 

The main point is though, if your signature document does not contain those terms (within the agreement itself) then they can't enforce that agreement.

 

 

Isn't the Agreement part of the signature document?

[davey77]

The 'agreement' )containing the Prescribed Terms) must have your signature on it to be valid for pre Aril 2007 agreements.

[IdaInFife]

I have reread this thread and now completely lost to what they have sent you and for what. If they send you stuff it's best to post up everything (pref thru photbucket)

 

if all you have is the three scaned images you posted up through photobucket then as Davey has stated they wouldn't be enforceable.

 

ida x

[FlyboyAgain]

I have reread this thread and now completely lost to what they have sent you and for what. If they send you stuff it's best to post up everything (pref thru photbucket)

 

if all you have is the three scaned images you posted up through photobucket then as Davey has stated they wouldn't be enforceable.

 

ida x

 

Ida, just a quick update.

 

Upon requesting a signed copy of the signed executed agreement from the DCA, the DCA stepped out of the loop and the bank became involved again. They sent a covering letter and a copy of the T&Cs, with no signed document. After a further request, they sent a covering letter, the same so-called Terms & Conditions they sent before and the three scanned images (one bearing my signature) which are on the Photobucket site. I have attached a scan of the first page of the T&Cs as I feel the other pages are just general stuff that is not relevant, here.

 

Scans :: T&Cs page 1 picture by kakkadoo - Photobucket

 

Does that scan not contain something that looks like prescribed terms in sections 2 and 3? But you are both saying that, if they were PTs, that they should be on the document that bears my signature? I'm sorry to appear so thick on this but I have to be really sure about what they've sent me before I go after them. I want to get them so much, after what they put my wife & I through, constantly phoning our house during my mother's passing. I cannot forgive them for that; it's gone beyond money, now.

Edited April 26, 2009 by FlyboyAgain

[davey77]

The signature document is the one to concentrate on. Yes the Prescribed Terms are often sent on another document but that's not important if you haven't signed it.

So yes your signature should be on the document that contains the Prescribed Terms.

I've had that page posted above as well as the others that go with it. Several different versions of those updated agreements that they vary from time to time.

 

http://i157.photobucket.com/albums/t42/davey77_2007/HalA.jpg

http://i157.photobucket.com/albums/t42/davey77_2007/HalB.jpg

http://i157.photobucket.com/albums/t42/davey77_2007/HalC.jpg

http://i157.photobucket.com/albums/t42/davey77_2007/HalD.jpg

http://i157.photobucket.com/albums/t42/davey77_2007/HalE.jpg

http://i157.photobucket.com/albums/t42/davey77_2007/HalF.jpg

http://i157.photobucket.com/albums/t42/davey77_2007/HalG.jpg

http://i157.photobucket.com/albums/t42/davey77_2007/HalH.jpg

[FlyboyAgain]

The signature document is the one to concentrate on. Yes the Prescribed Terms are often sent on another document but that's not important if you haven't signed it.

So yes your signature should be on the document that contains the Prescribed Terms.

I've had that page posted above as well as the others that go with it. Several different versions of those updated agreements that they vary from time to time.

 

http://i157.photobucket.com/albums/t42/davey77_2007/HalA.jpg

http://i157.photobucket.com/albums/t42/davey77_2007/HalB.jpg

http://i157.photobucket.com/albums/t42/davey77_2007/HalC.jpg

http://i157.photobucket.com/albums/t42/davey77_2007/HalD.jpg

http://i157.photobucket.com/albums/t42/davey77_2007/HalE.jpg

http://i157.photobucket.com/albums/t42/davey77_2007/HalF.jpg

http://i157.photobucket.com/albums/t42/davey77_2007/HalG.jpg

http://i157.photobucket.com/albums/t42/davey77_2007/HalH.jpg

 

Yes, but ARE those terms written down on the separate T&Cs Prescribed Terms or not, in case they try and trip me up saying that they are? I really need clarification on this. I have to be sure of what I'm looking at, before I go after them.

[FlyboyAgain]

I have just read of the success of smt37, here:-

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/165349-smt37-morgan-stanley-goldfish-4.html

 

Out of SEVEN CCA requests between my wife and I, we have only had ONE returned with a signature on it, and that was a signed and dated Priority Application form, with what appears to be not PTs on the same side.

 

I need to know what to do about:-

 

a) the one that is discussed above, that seems to have terms, but not on the same document,

 

b) how to follow up the two that came with only the terms

 

c) the other three that went completely unanswered.

 

I - indeed all of us - need to nail this, as undoubtedlty the banks have lurkers on this site!

[FlyboyAgain]

Also, how long can they stay silent??

[FlyboyAgain]

And using CPR 31.16 - is that allowed under Scot's Law??

[IdaInFife]

And using CPR 31.16 - is that allowed under Scot's Law??

 

 

There's no cpr procs in scotland so they wont apply.

 

to the t and c's you could send:

 

Dear Sirs,

Account no xxxxxxxxxxxxxx

 

Re: my request under the Consumer Credit Act 1974

Thank you for your recent letter sent to me, the contents of which are noted. I appreciate your quick 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. A copy of your current terms and conditions with no personal details or prescribed terms on it, 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. Terms and conditions 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 xx/xx.2008 (12+2 working days after the request was made) 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 CCA request. If you fail to comply with a legitimate request the account enters a default situation.

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.

I expect you to write to me confimring that the account has been closed and no further action will be taken.

I look forward to your reply.

Yours faithfully

 

 

and to the ones that havenlt replied at all, you can either send now or if they send a demand for payment:

 

Account In Dispute

Ref:

Dear Sir/Madam

Thank you for your letter of xx/xx/xx, the contents of which have been noted. (leave this out if they haven't sent you anything)

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,

[FlyboyAgain]

Thanks for that.

 

I have also just discovered that one of these card agreements is covered by ENGLISH LAW, somehow. If needs be, can it be applied in Scotland, or would I have to take the case up south of the border?

 

Interesting, all this.

[FlyboyAgain]

Been totally ignored by the DCA and have now been contacted by the bank re the two loans. Nothing heavy but they have not supplied a copy of the agreement. I presume, under section 77(1) that they must do this with the loans as well as under (781) for the credit cards?

[FlyboyAgain]

Anyone?

[madasamuppet]

Did you send the dca cca requests regarding the loans? If so and they haven't supplied this and just bunged the debt back to the bank then write to the bank informing them of this and until such time as a valid cca is received by you then the account(debt) is still disputed. They have to abide by the legislation just as much as a dca does. And i believe the only credit not covered would be an overdraft.

[IdaInFife]

as above if you have sent a cca for the loans then i would send the bank:

 

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 returned to yourselves, as it is in dispute with the DCA** and has been since DATE 2007. 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 **/DCA** was DATE and intimated that my complaint would be resolved on **DATE**, this obviously hasn’t happened. As **/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 you forward to me copy of the alleged agreement 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,

 

edit to suit

 

ida x

[FlyboyAgain]

Did you send the dca cca requests regarding the loans? If so and they haven't supplied this and just bunged the debt back to the bank then write to the bank informing them of this and until such time as a valid cca is received by you then the account(debt) is still disputed. They have to abide by the legislation just as much as a dca does. And i believe the only credit not covered would be an overdraft.

 

Yeh, I did that yesterday. Wrote to them, enclosing copies of the letters to the DCA. The two loan CCA requests were ignored for weeks, the I get that letter from the bank, which just wittered on about a 'missed payment', even though the DCA was sent a letter saying account was in dispute. Funny how they like to suit themselves when it comes to regulations, eh?. It's the blatant igonrance of acknowledgeing any correspondence that's gotten to me this time; their behaviour is appalling and I'm heart sick of it. Let's see what happens.

 

And with the credit card requests, nothing has arrived except one letter with a copy of a priority app form that was in relation to a totally different account! Have pointed this out to them and have had no answer as yet.

 

BTW, thanks for everyone's input!

[FlyboyAgain]

The Prescribed Terms should be embodied within the signature document and cannot be found on another, apparently separate, document:

 

Wilson v Hurstanger:

 

"...Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under section 61 that all the terms should be in a single document, and backed up by the provisions of section 127 (3), ensure that these core terms are expressly set out in the agreement itself:

they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them."

 

You need to have a browse around on the forums. You'll see others with similar issues. New agreements (unsigned) and/or T&Cs they send along with the application form sometimes state a minimum payment of £12 which would not have been in force in 2000. It's discrepancies like that you need to look for.

 

The main point is though, if your signature document does not contain those terms (within the agreement itself) then they can't enforce that agreement.

 

Ok, with regard to one card account they have finally sent a TRUE COPY of the application form, complete with my signature. However, there is no sign of the PTs and their letter states ' (we) can confirm that the reverse of this agreement contained the prescribed terms required under the CCA...'

 

I've had look at what they sent previously and all they sent was what looks like PTs (definitions, uses of card, repayments) and they are clearly on a separate document! yet they are stating in theri recent letter that the reverse of the application form contains them! The photostat of the form looks like it has other stuff attached, but the have not supplied the reverse. I am now going to ask them to.

 

They have now started mentioning 'collection activities if I fail to keep making repayments ( i have healted them in the meantime, as I deem the account to be in dispute). What does this mean? Court? Bailiffs?

 

Any further advice?

[davey77]

Interesting... "can confirm that the reverse of this agreement contained the prescribed terms required under the CCA" but not god enough. Their word is useless to you.

 

Don't worry, they always mention collection activities. You are no where near Bailiffs. You would have to go to Court first, fail to pay if a Judge ordered. Just be aware that debt collectors sometimes call any visit (which is highly unlikely to materialise) a 'pre bailiff visit'. This is a LIE. There is no such thing!

 

Besides, you need to have been sent a valid Default notice before they can take you to Court. (Copy of Default should be included when you SAR) apart from the issues of their compliance to your request for the agreement which could be used to halt any potential Court Action.

[FlyboyAgain]

Their original letter that came with the first 'supposed' copy of the executed agreement back in April said i had been served a default notice, possibly becuase I halted payments as I deemed the account to be in dispute; I have yet to see this letter!!

 

I haven't implemented any SAR request, just been needling them for the signed app form and the PTs. They supplied both - after a fashion and after several, separte requests - but they are clearly not on the same document.

 

I will ask them for a copy of the default notice and to see the reverse of the signed app form.

[IdaInFife]

It's really annoying all this to and for. You really want to shout "just send me the ficking docs or say you don't have them"

 

if they were msart they would realised if they just sent the agreement as it should be payments would resume and just bear it if they donlt have them

 

ida x