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    • OK, so I've rather unfairly picked up a CCJ from a business overdraft debt that's been going on for years. I had court claim forms in 2014 which I managed to stave off. and again in sept 2016. This time I've acknowledged the service, filling in what I thought was the correct amount I thought I owed. I've since had the personal guarantee paper copies in my possession and I owe £21K. I sent them back along with a new address for all correspondence to be sent to, and then agreed to a Tomlin order to pay debt off monthly.  Now, these were sent back and forth and eventually signed, but apparently only partially. So DD was set up at same time, in Jan 2017. over next couple of months we paid, and also go letters to sign new Tomlin which we ignored as it was signed. In March we got another TO with 7 days to sign it and send back. We had one day to get this to them and phoned to say it wouldn't be there, that's ok they said, well extend it, just keep paying and send it back asap, we did send recorded (since lost receipt). We assumed they'd got it, and didn't hear a peep from them. Until July 18, when I found id got a CCJ from Feb that year. I've logged a complaint with solicitor, and had a response, they are denying any knowledge of anything. They had no TO so took it to court without my knowledge.  I didn't think there was anything I can do. However, as it turns out, the court sent papers to an old address even though solicitor had new address for 13 months, and address for correspondence was on the claim papers I sent back. Upon closer inspection the numbers are all wrong too, nor a lot but its about £200 adrift. We called their office too within the 30 day notice period, oddly they have no record of that.  And all this is on a "Business Charge Card Guarantee" …. anyone explain that?? In the mean time we've paid £5K+ of the debt off. At no point did anyone in the process let us know we'd had the CCJ logged against us. Is that right?? Or legal? I was intending to get it set side, but was told by them it was pointless. Just want to get back to point A. Paying it isn't the problem, it getting the CCJ reset. Please Help!!! 
    • same with jaguar s-types etc. all kind of weird issues if the battery is on the way out or the terminals/earth straps are not reconnected tightely/properly.   mine was the earthing strap to the gearbox, was rotted and got knocked during the gearbox oil change.
    • what have they got that they can respond too that counters your SB defence? zilch.   as with every erudio claimform or PAPLOC thread on CAG you solely got the claim because for whatever reason , to that date, everything was ignored.   once a response is made they go away.   default CCJ avoided. you must read up and understand how arrows [erudio!!] operate  
    • so won by a section 75 claim under the consumer credit act then   consequential losses are also covered by section 75 as the card provide is equally liable as you've already found out   as for the dealer and court there is no time limit, well 6yrs I believe   though it would be a tough battle but made slightly easier as BC coughed up. but again what would you in all reality 'win' probably go bust or change name        
    • It was settled by Barclaycard because I bought the car using my VISA credit card. Do you know if there is a time limit for taking the company to court to claim the consequential expenses incurred?
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Abby25

Mint - what a load of rubbish they've sent !

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Hi Cerbs ... glad for your advice .....

 

What would you suggest .. ?

 

They have threatened to lodge a default against me etc, saying that the ageement I signed (which they don't have), gives me authority for them to do this ... but without this signature how they proceed? And how could I proceed if they did indeed lodge something with the credit ref agencies?

 

Shall I write back to them, and say without my signature they are unable to lodge any adverse data?

 

Also, do you think they would take it to court?

 

And if so ... would my defence to see the original be that I wanted to check the interest rate and credit limit presented for signautre?

Or just say they have not proven I owe the debt. With no agreement to prove any contract exists, and that any credit and payments made by me have therefore been done on a voluntary basis? (I read a thread the other day, where the judge said you have made payments for x yrs, so even without a contract, you've obviously accepted the terms .. and I think they ruled in the favour of the creditor .... Sorry can't remember the Cagger who had this said to them but its on here somewere ...)

 

Going back to Mint, Interesting to see what their next move will be, and indeed mine, but I will need help if thats ok... !!

 

Any, and all help or comments, as always, very greatly received ....

 

Abby xxxx :)

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Anthrax alert at debt collectors caused by box of doughnuts

 

Make sure you do not post anything which identifies you. Although we can remove certain things from the site unless it's done in a timely manner everything you post will appear in Google cache & we do not have any control over that.

 

Vir prudens non contra ventum mingit

 

[sIGPIC][/sIGPIC]

17 Port & Maritime Regiment RCT

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Thanks Cerbs, will have a look through that now.

 

Does anyone else have any experience of no agreement, but the creditor saying still legally enforceable, could you share to give me an insight on what to do, and what they can do?

 

All advice greatly received ....:)

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perfect timing!

 

Robinson, Way no agreement, back n forth you owe us our legals say you do you must have signed and received a card hence you owe the money. Guess what? Letter just received, after due consideration of your comments we intend removing the debt and your details from our accounting system and you will receive no further correspondence on the matter. YAAAY!!!

 

I am just behind you with regard to Mint and have just replied to the we have complied and you owe us money letter. I have sent one back saying yes you have complied, but what you have sent (application f) means it has not been executed and therefore cannot even be taken to court. I quoted all relevant case law that I used with Robinson, way. I will see how it goes.

 

If you want a copy of the letter I will pm it.:)


Advice & opinions given by spartathisis are personal, are not endorsed by Consumer Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.:)

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Ooh .... firstly well done to you Spart's - by the sounds you jolly well told them ... !!!

 

And big yes please to copy letter, if its ok with you!

 

That would be absolutely brilliant .. .I wasn't sure what to do with this ... so a massive thank you for being so generous .. :D:)

 

Abby x

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pm sent, hopefully at least one will help:)


Advice & opinions given by spartathisis are personal, are not endorsed by Consumer Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.:)

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also would appreciate PM of the letter please??

 

Finding it difficult to get Mint to actually reply to my letters now..

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Will post them here (3), dont know how to attach!

 

Account in Dispute

 

Dear Ms

 

 

Ref:

 

Many thanks for your recent letter. I am still awaiting information I requested in previous letters, this includes:

 

 

  • Proof of Delivery of the Notice of Assignment (Law of Property Act 1925)
  • A valid Deed of Assignment showing reference to myself, inc. acc, date and alleged outstanding balance.
  • Confirmation of the type of Assignment i.e. Equitable or Absolute, with proof of this.

 

Since my last letter I have been researching into HFC Bank PLC and their methods of selling the credit card debt they are owed as an investment vehicle (Securitisation). From the mid nineties to the present they have used Securitisation as a way of forward selling their debt and then receiving a service charge for the collection and management of said debt. How may this affect TBI?

 

A couple of issues rear their ugly heads here:

 

 

  • HFC put the debt into Special Purpose Vehicles (SPV) and then sold them as offshore investment trusts e.g. Affinity 001 PLC & Open Masters Receivables Trust (Opus 1) to investors. This was before TBI and others purchased debt from HFC. This raises the question of “nemo dat quod non habet”.
  • None of these investment companies hold consumer credit licences, therefore making any sale of defaulting creditor’s debt illegal on two counts 1. No licence. 2. HFC didn’t own the debt. Subsequent payments made after the termination of any alleged contract would therefore lead to the expectation that any payments made should be repaid with interest. Logically damages would be liable to be claimed for the processing and reporting of data illegally. This would apply equally to HFC and any subsequent purchaser e.g. TBI.

 

I look forward to receiving the requested information within the next 14 days and will avail you of any further information I find on the Securitisation front.

 

 

Yours sincerely

 

 

 

*1

Wilson & Anor v Hurstanger Ltd [2007] EWCA Civ 299 (04 April 2007)

33. In my judgment the objective of 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.

 

*2

Solicitors Code of Conduct:

 

Rule 11: Litigation and advocacy

Deceiving or misleading the court – 11.01

12.

You might deceive or mislead the court by, for example:

(a) Submitting inaccurate information or allowing another person to do so;

(b) Indicating agreement with information that another person puts forward which you know is false;

 

*3

Dimond v. Lovell [2000] UKHL 27; [2000] 2 All ER 897; [2000] 2 WLR 1121 (11th May, 2000)

 

Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay.

 

*4

The Vice Chancellor Lord Justice Chadwick in the Supreme Court of Judicature Court of Appeal (Civil Division) on Appeal from Epsom County Court (HHJ Hull)

 

Wilson v First CountyTrust [2000] EWCA Civ 278 (3 November 2000)

 

26. The question arises from the terms of s.61 (1), 65 and 127 to which I have referred in paragraphs 9 and 10. It is apparent from the terms of s.61 (1) that there are several grounds on which a regulated agreement may be "not properly executed" so as to require enforcement by court order under s.65. The restrictions on such enforcement contained in s.127 are in two forms; the first (s.127(1) and(2)) leaves it to the discretion of the court, the second contained in s.127(3) is an absolute bar if the regulated agreement did not contain the prescribed terms.

 

 

*5

Judgement of SHERIFF J K TIERNEY

 

Durkin v DSG Retail & HFC Bank PLC (May 2008)

 

120. The cases of Kpohraror, King and Wilson were all based on contract but it does not seem to me that there is any difference in principle between the nature of damages to be awarded in respect of a loss of credit brought about by a breach of contract, and one brought about by negligent misrepresentation.

 

121. I find that the pursuer is entitled to an award for the general damage to his credit in addition to an award in respect of the actual loss flowed sustained. Having regard to all the circumstances I consider that an appropriate award would be £8,000.

 

 

 

 

 

 

 

RBS Mint

Miss

Customer Service

PO Box 5747

Southend-on-Sea

SS1 9AJ

Account in Dispute

 

Dear Miss

 

 

Ref: Mint Visa Ref:

 

Thank you for your letter of 9/4/09, the contents of which have been noted.

 

You appear to be under the impression that you have sent “a true copy” of an agreement, when in fact you have supplied an Application Form that contains many discrepancies that render it unexecuted under English Law *1, 2, 3 , 4 & 5. Therefore this account has become unenforceable at law as you have failed to provide a copy of an executed and enforceable agreement. RBS/Mint therefore cannot lawfully pursue any enforcement activities. The lack of a properly executed Consumer Credit Card Agreement is clearly a reason for the account to be in dispute. 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.

 

You have also failed to provide any information held on your computer systems e.g. screen grabs of account details, these were requested at the same time and should be provided under s 7 of the CCA. I find it hard to believe that you do not hold any information about me on your computer system!

 

Please note you may also consider this letter as a statutory notice under s 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 those held 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.

 

The reason for this demand is that you have not proven that I have given my permission to you to process my data. It is not sufficient to simply state that you have a ‘legal right` as without my written permission you have no right to do this. I refer you to *6, for the consequences of processing data illegally to the detriment of a persons credit rating. You must outline your reasoning in this matter and state upon which legislation this reasoning depends. Should you not respond within 14 days I will accept this as your agreement to remove all such data by yourselves and those held by any credit referencing agencies.

 

Furthermore you should be aware that a creditor is not permitted to take any action against an account whilst it remains in dispute. Please inform your recoveries department of this fact.

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 would also point out that yet again I have received letters from RBS/Mint that have not been sealed and open to public scrutiny. This is a breach of guidelines as set out by the Information Commissioners Office.

 

If you are not sure of anything contained within this letter I would suggest you take advice from your local Citizens Advice Bureau or trading Standards office.

 

Yours faithfully

 

*1.

Dimond v. Lovell [2000] UKHL 27; [2000] 2 All ER 897; [2000] 2 WLR 1121 (11th May, 2000)

Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay.

*2.

Wilson & Anor v Hurstanger Ltd [2007] EWCA Civ 299 (04 April 2007)

33. In my judgment the objective of 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.

*3

CCA 1974

s.61

"(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”

*4

CCA 1974

S.127

Enforcement orders in cases of infringement

(1) In the case of an application for an enforcement order under -

(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)."

*5

The Vice Chancellor Lord Justice Chadwick in the Supreme Court of Judicature Court of Appeal (Civil Division) on Appeal from Epsom County Court (HHJ Hull)

Wilson v First County Trust [2000] EWCA Civ 278 (3 November 2000)

26. The question arises from the terms of s.61 (1), 65 and 127 to which I have referred in paragraphs 9 and 10. It is apparent from the terms of s.61 (1) that there are several grounds on which a regulated agreement may be "not properly executed" so as to require enforcement by court order under s.65. The restrictions on such enforcement contained in s.127 are in two forms; the first (s.127(1) and(2)) leaves it to the discretion of the court, the second contained in s.127(3) is an absolute bar if the regulated agreement did not contain the prescribed terms.

*6

Judgement of SHERIFF J K TIERNEY

Durkin v DSG Retail & HFC Bank PLC (May 2008)

 

120. The cases of Kpohraror, King and Wilson were all based on contract but it does not seem to me that there is any difference in principle between the nature of damages to be awarded in respect of a loss of credit brought about by a breach of contract, and one brought about by negligent misrepresentation.

 

121. I find that the pursuer is entitled to an award for the general damage to his credit in addition to an award in respect of the actual loss flowed sustained. Having regard to all the circumstances I consider that an appropriate award would be £8,000.

 

 

Robinson, Way Co Ltd

London Scottish House

Quays Reach, Carolina Way

Salford, M50 2ZY

Account In Dispute

 

Dear Ms

Ref:

 

I refer to your letter dated 3rd April 2009, received 10th April 2009.

 

I am sorry to hear that you regard your legal requirements as “repetitive correspondence”. I am sure the Information Commissioner, the Financial Services Authority, the Office of Fair Trading, Trading Standards, the Banking Ombudsman and indeed Parliament will appreciate your opinion on the legal duties of the organisation you represent. I would refer you to *1, where do I reply to?

 

I have a number of issues that require resolving before I can make an assessment of your claim to the alleged debt.

 

 

  • You state the debt has been assigned to you, was this equitable or legal/absolute?
  • Please provide proof of delivery of the Notice of Assignment as required by (s196 (4) Law of Property 1925). You have only provided a copy on new headed paper signed by yourself.
  • You are legally obliged to pass on my request under the DPA 1998 to the Original Creditor, have you done so?
  • Where in English Law does it state that a debtor has to “forward written documentation” to disprove a debt. Please supply a Deed of Assignment showing account details, my name and the amount transferred. The onus is on a creditor to prove a debt, not the other way around “innocent until proven guilty”!
  • Please provide a legal reference to your claims, “In addition we are also entitled to process your data”, and ”We therefore have a legal requirement to accurately reflect the account status with the Credit Reference Agencies”.
  • I require proof that Robinson, Way & Co Ltd had the legal right to assignment from HFC Bank PLC. This will be found in the terms and conditions that formed part of the required prescribed terms and conditions of the executed Consumer Credit Card Agreement I am alleged to have signed with HFC Bank PLC.
  • What was the alleged amount outstanding on the date of purchase and what is now outstanding?
  • Your statements confirm you are not able to enforce the alleged debt in a court of law, correct?

 

From the wording of your letter, do I understand correctly that you are not intending to investigate my complaint? If not please provide a suitable reply that I can pass on to the OFT.

 

Should you not respond within 14 days I will accept this as your agreement to remove all data held by yourselves and those held by any credit referencing agencies. Furthermore you should be aware that a creditor is not permitted to take ANY action against an account whilst it remains in dispute. Stop sending demands for payment.

 

 

 

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 e.g. Trading Standards, ICO, OFT, FSA, Banking Ombudsman and my M.P.

 

I refer you to the following:

 

 

  • I currently earn approx. £pw, owe £to 6 creditors, live with a registered disabled relative who I help to care for, have no assets or any likelihood of gaining any and I will never be able to get credit again so I have nothing to lose in vigorously defending any claim by any of my creditors. If I could raise the money I would declare myself bankrupt and have an end to the matter once and for all.

 

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

 

Yours faithfully

 

*1

Credit Services Association Guidelines

Consumer transactions

3 Each member shall:

c. In correspondence, use notepaper showing the full business address to which the consumer can reply.

 

 

 

 

Account in Dispute

 

Dear Ms

 

 

Ref:

 

I now accept that I will not receive an executed and enforceable agreement from your client. I refer to your letter of 25/2/09 paragraph 8 “an original signed Agreement does not have to be produced in accordance with Section 127 (3) of the CCA 1974”. I suggest that this statement indicates your client does not possess an executed Consumer Credit Card Agreement. They are clearly relying on an Application Form that does not conform to the requirements of the CCA 1974 and a set of Terms & Conditions that bear no relation to the aforementioned Application Form as the basis for their claim of alleged debt *1. Indeed looking through the conditions, the references to internet banking, internet fraud and the losses sustained suggest these are more recent than the 1997 Application Form you have supplied. I again refer you to *2

 

I do not see how stating the facts can be considered to be “contradicting” my-self. I have already been issued with a Default Notice and it was ineffective. When you claim your client can issue another Default Notice because the first was ineffective you perpetuate the fiction that the contract endured after its termination. There is a strong argument that an ineffective Default Notice puts limitations on the amount a subsequent purchaser can claim i.e. the breach to be remedied, in this case £563. I would also put it to you that the Default Notice you have issued is also suspect on a number of points.

 

The Notice of Assignment you claim was sent to me, wasn’t. I still await proof of delivery of said Assignment. I contacted TBI after I was told by HFC they had passed the account to TBI, hence the reason your client received a payment for £4 at the beginning of Jan 01.

 

A Deed of Assignment showing the details requested has still to be provided, another issue not addressed. Since your first letter at least four items have been supplied that were not provided when I made my original Data Subject Request, dare I ask if your client is withholding any other items that should have been provided? More breaches of legislation?

We reference to paragraph 7 I think you will find the Government placed the responsibilities for such matters firmly in the hands of the issuing finance company, in this case HFC Bank Ltd. Some may see your words to involve the Police in a civil matter as a veiled threat to exert pressure and an attempt to strengthen your clients’ position. Your statements on this subject bear no relevance to the fact that you appear unwilling to supply a legally executed Consumer Credit Card Agreement that is relevant to the alleged debt, hence my silence on the matter.

 

In paragraph 6 you state you have addressed all the points I have raised, clearly you haven’t. I don’t believe a Judge would view my labours as “stringing” the matter out. More a case of being diligent in ensuring that if the case does go to court all efforts to achieve a solution have been exhausted. This along with ensuring all documentation to be relied on in court is both relevant and enforceable and I would argue be adjudged commendable.

 

Your client is still insisting that an Application Form is a Consumer Credit Card Agreement regulated by the CCA 1974 even though the prescribed terms are not present in the required form *3 & *4. I therefore don’t see how an acceptable solution can be reached while your client remains committed to this misguided viewpoint. For your information:

 

CCA 1974

s.61

"(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”

 

&

 

S.127

Enforcement orders in cases of infringement

(1) In the case of an application for an enforcement order under -

(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)."

 

I would suggest an acceptable solution for your client would be to write the debt off as it stands and claim tax relief. My reasoning for this statement is that I would assert that TBI owe me money for payments paid on an account they have no proof of legally owing, overpayments with relation to the ineffective Default Notice and the subsequent amount outstanding , plus interest, if TBI claim the first is point is not valid. Fees associated to a complaint to the relevant authority, I would refer you to Durkin v DSG Retail Ltd & HFC Bank PLC*5 for damages to credit rating, proceeding with litigation would incur court costs and increasing solicitor’s fees with only a very small chance of recovery of said costs. I once again remind you of the following:

 

 

  • I currently earn approx. £pw, owe £to 6 creditors, live with a registered disabled relative who I help to care for, have no assets or any likelihood of gaining any and I will never be able to get credit again so I have nothing to lose in vigorously defending any claim by any of my creditors. If I could raise the money I would declare myself bankrupt and have an end to the matter once and for all.

 

I am sure you will agree that in these circumstances a Judge would in all likelihood award no more than a nominal sum to be paid to your client if by some remote chance you won the case. So even though it would be a ”bitter pill” to swallow it would be the correct commercial decision and leave your client to pursue those debtors who they have a legitimate claim against.

 

 

Yours sincerely

 

 

*1

Wilson & Anor v Hurstanger Ltd [2007] EWCA Civ 299 (04 April 2007)

33. In my judgment the objective of 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.

 

*2

Solicitors Code of Conduct:

 

Rule 11: Litigation and advocacy

Deceiving or misleading the court – 11.01

12.

You might deceive or mislead the court by, for example:

(a) Submitting inaccurate information or allowing another person to do so;

(b) Indicating agreement with information that another person puts forward which you know is false;

 

*3

Dimond v. Lovell [2000] UKHL 27; [2000] 2 All ER 897; [2000] 2 WLR 1121 (11th May, 2000)

 

Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay.

 

*4

The Vice Chancellor Lord Justice Chadwick in the Supreme Court of Judicature Court of Appeal (Civil Division) on Appeal from Epsom County Court (HHJ Hull)

 

Wilson v First CountyTrust [2000] EWCA Civ 278 (3 November 2000)

 

26. The question arises from the terms of s.61 (1), 65 and 127 to which I have referred in paragraphs 9 and 10. It is apparent from the terms of s.61 (1) that there are several grounds on which a regulated agreement may be "not properly executed" so as to require enforcement by court order under s.65. The restrictions on such enforcement contained in s.127 are in two forms; the first (s.127(1) and(2)) leaves it to the discretion of the court, the second contained in s.127(3) is an absolute bar if the regulated agreement did not contain the prescribed terms.

 

 

*5

Judgement of SHERIFF J K TIERNEY

 

Durkin v DSG Retail & HFC Bank PLC (May 2008)

 

120. The cases of Kpohraror, King and Wilson were all based on contract but it does not seem to me that there is any difference in principle between the nature of damages to be awarded in respect of a loss of credit brought about by a breach of contract, and one brought about by negligent misrepresentation.

 

121. I find that the pursuer is entitled to an award for the general damage to his credit in addition to an award in respect of the actual loss flowed sustained. Having regard to all the circumstances I consider that an appropriate award would be £8,000.

 

 

 

 

 

 

 

  • Haha 1

Advice & opinions given by spartathisis are personal, are not endorsed by Consumer Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.:)

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Could someone give me a thought or 2 on the letter I've cobbled together, and tell me what you think..:)

Edited by Abby25

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what letter? nothing here :)


Advice & opinions given by spartathisis are personal, are not endorsed by Consumer Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.:)

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Sorry .. missed off ...;)

Edited by Abby25

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Subbing...us anti-MINTs must stick together....i've received an app form in response to my CCA request

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Hi andy,

 

Jump on board .. there are a few other Mint threads .. so take a look at those too.

 

In my case, they have nothing at all, not even a scanned copy of anything ... but still say they can enforce, and that my signature to the agreement allows them to process my data too .. :rolleyes:

 

In your case, application does not consitute an agreement, but scan up and everyone will help and let you know where you are with it :)

 

I'm just waiting for someone to have a look at my mint letter to see what they think....

 

Abby xx

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Hi Abby, below is my take on your letter. Alterations to keep content as brief and succint as poss. Other views welcome. :)

 

Your ref:

 

I write with reference to the above, and your letter of 5th May 2009.

 

Your letter of May 5th 2009 confirms that you do not hold, and are unable at this time to locate an executed Consumer Credit Card Agreement. Therefore this account has become unenforceable at law as you have failed to provide a copy of an executed and enforceable agreement. RBS/Mint therefore cannot lawfully pursue any enforcement activities. The lack of a properly executed Consumer Credit Card Agreement is clearly a reason for the account to be in serious dispute. *1

 

Any subsequent legal action you pursue will be averred as both unlawful and vexatious. Furthermore I shall counterclaim that any such action constitutes unlawful harassment.

 

The issuing of a Default Notice when no Consumer Credit Card Agreement exists is also a serious breach of the Consumer Credit Act 1974. How can there be a breach of an agreement when no such agreement exists?

 

As you do not have an executed Consumer Credit Card Agreement the reporting of any data to any Credit Referencing Agency is a breach of s10 Data Protection Act 1998, as you cannot provide any proof that I have consented to my data being processed. The consequence of such a breach is demonstrated by a recent legal case. *5

 

Schedule 2 DPA 1998:

3.1.1 Conditions for Processing

At least one of the following conditions must be met in the case of all processing of personal data (except where a relevant exemption applies):-

The data subject has given his consent to the processing (see paragraph 3.1.5 below).

The processing is necessary

(a) for the performance of a contract to which the data subject is a party; or

(b) for the taking of steps at the request of the data subject with a view to entering into a contract.

 

Please note you may also consider this letter as a statutory notice under s 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 those held 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.

 

The reason for this demand is that you have not proven that I have given my permission to you to process my data. It is not sufficient to simply state that you have a ‘legal right` as without my written permission you have no right to do this. I refer you to *6, for the consequences of processing data illegally to the detriment of a persons credit rating. You must outline your reasoning in this matter and state upon which legislation this reasoning depends. Should you not respond within 14 days I will accept this as your agreement to remove all such data by yourselves and those held by any credit referencing agencies.

 

Furthermore you should be aware that a creditor is not permitted to take any action against an account whilst it remains in dispute. Please inform your recoveries department of this fact.

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 e.g. Trading Standards, ICO, OFT, FSA, Banking Ombudsman and my M.P.

 

If you are not sure of anything contained within this letter I would suggest you take advice from your local Citizens Advice Bureau or trading Standards office.

 

I look forward to your prompt reply.

 

Yours faithfully

 

 

 

 

*1

CCA 1974

s.61

"(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”

 

S.127

Enforcement orders in cases of infringement

(1) In the case of an application for an enforcement order under -

(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)."

 

*2

Wilson & Anor v Hurstanger Ltd [2007] EWCA Civ 299 (04 April 2007)

33. In my judgment the objective of 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.

 

*3

Dimond v. Lovell [2000] UKHL 27; [2000] 2 All ER 897; [2000] 2 WLR 1121 (11th May, 2000)

 

Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay.

 

*4

The Vice Chancellor Lord Justice Chadwick in the Supreme Court of Judicature Court of Appeal (Civil Division) on Appeal from Epsom County Court (HHJ Hull)

 

Wilson v First CountyTrust [2000] EWCA Civ 278 (3 November 2000)

 

26. The question arises from the terms of s.61 (1), 65 and 127 to which I have referred in paragraphs 9 and 10. It is apparent from the terms of s.61 (1) that there are several grounds on which a regulated agreement may be "not properly executed" so as to require enforcement by court order under s.65. The restrictions on such enforcement contained in s.127 are in two forms; the first (s.127(1) and(2)) leaves it to the discretion of the court, the second contained in s.127(3) is an absolute bar if the regulated agreement did not contain the prescribed terms.

 

*5

Judgement of SHERIFF J K TIERNEY

 

Durkin v DSG Retail & HFC Bank PLC (May 2008)

 

120. The cases of Kpohraror, King and Wilson were all based on contract but it does not seem to me that there is any difference in principle between the nature of damages to be awarded in respect of a loss of credit brought about by a breach of contract, and one brought about by negligent misrepresentation.

 

121. I find that the pursuer is entitled to an award for the general damage to his credit in addition to an award in respect of the actual loss flowed sustained. Having regard to all the circumstances I consider that an appropriate award would be £8,000.


Advice & opinions given by spartathisis are personal, are not endorsed by Consumer Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.:)

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Hi Sparts.

 

Thanks so much for your help ... I know I've thrown everything in but the kitchen sink .. frightened to miss or leave anything out !!

 

Is it ok to use your letter if you think it will do the job better?

 

Love Abby xx:)

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subbing,,,sent cca to mint and recieved an application form + four pages of nonsense, in dispute letter going off on monday.

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Course it is. I know what you mean by putting in everything you can, I did one myself that went on for four pages!! I find it best to keep going back to it have a think then sleep on the final draft (not literally;)). That way if you happen to be angry/upset you avoid it in the letter:)

 

Good luck


Advice & opinions given by spartathisis are personal, are not endorsed by Consumer Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.:)

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Ok, Mint have come back to me - they are very disappointed that i have chosen to stop paying, because I am simply awaiting a copy of my agreement - and as it is not a subject of fraud, i have no right to stop paying, as per the terms of my agreement.

 

They say they have asked their docs dept to have a look for the agreement, which somewhat contradicts their orig response, saying they no longer had it ... !

 

Have said that they will continue with collection, will default me, and pass to a DCA for pursuance who will also default me .. but that it it completely in my hands to stop this, by paying and adhering to the terms of my agreement....which remains enforceable agreement or no agreement..

 

So what next ..... ??

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What agreement?!??

 

All threats from someone earning about £10k pa, who prob got 3 gcse`s at school;) Write back and tell them that you are disappointed that a financial institution as large as RBS does not abide by the laws of the land and you intend making an official complaint to both their head office, the ICO, OFT and the FSA. Then make the complaints!

 

The account is in serious dispute if they cannot provide a document that they would have to rely on in court.

 

All threats do not detract from the fact they cannot legally prove the debt, they have nothing and know it. Send the letter and then complain to all stated inc RBS complaints dept and then sit back and wait. :)


Advice & opinions given by spartathisis are personal, are not endorsed by Consumer Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.:)

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Since my last letter I have been researching into HFC Bank PLC and their methods of selling the credit card debt they are owed as an investment vehicle (Securitisation). From the mid nineties to the present they have used Securitisation as a way of forward selling their debt and then receiving a service charge for the collection and management of said debt. How may this affect TBI?

 

A couple of issues rear their ugly heads here:

 

 

    [*]HFC put the debt into Special Purpose Vehicles (SPV) and then sold them as offshore investment trusts e.g. Affinity 001 PLC & Open Masters Receivables Trust (Opus 1) to investors. This was before TBI and others purchased debt from HFC. This raises the question of “nemo dat quod non habet”.

    [*]None of these investment companies hold consumer credit licences, therefore making any sale of defaulting creditor’s debt illegal on two counts 1. No licence. 2. HFC didn’t own the debt.

     

 

Hi Sparthasisis, I'm interested in how one goes about researching the securitisation of any individual credit card debt or loan - how did you find out the trusts and dates of sales?

 

Red.

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Lot of searching on google!! :)

 

type securitisation and follow the links, honest:( Lots of reading and cross-referencing. I doubt you will find concrete evidence of an individual account being securitised, they wont tell you, but the assumption that if a company securitises its assets (debtors) then yours will be in there somewhere.

 

Read up on securitisation first then you will know what to look out for;

Securitisation: overview

Securitisation undermined financial stability | vox - Research-based policy analysis and commentary from leading economists

Securitization.Net Lot of info dig deep!

Credit card securitization Good articles.

Bank of America | Investor Relations | Securitization

Why banks are boosting credit card interest rates and fees - USATODAY.com

SSRN-Special Purpose Vehicles and Securitization by Gary Gorton, Nicholas Souleles

SSRN-Securitization: The Tool of Financial Transformation by Frank Fabozzi, Vinod Kothari

Securitization.Net

 

A few to get you started;)

 

The reply I got from a DCA was simply "this account was not securitised", how do they know? They dont, but they hope not its just another thing to beat them with:) This thread may be of interest ongoing court case mtge securitised and poster trying to find out who owns the right to sue! http://www.consumeractiongroup.co.uk/forum/mortgages-secured-loans/170607-spml-london-mortgage-company-39.html#post2200614


Advice & opinions given by spartathisis are personal, are not endorsed by Consumer Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.:)

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Well hello all ...

 

Ok update .. wait for it ....

 

Mint have now come back to me (after my last stern letter) saying that they acknowledge that in the absence of an agreement, the debt is rendered unenforceable in law (hurrah!) - but that they still would expect me to honour the original arrangement, and that should I choose not to, this will be recorded on my credit file i.e default ..... thanks I choose not to ...!!:p

 

Also received a 2nd letter in same post saying the account has now been terminated.:rolleyes:

 

So ... a BIG thank you to Sparts (and others) who was a fantastic help with this ..... big kiss xxx .. !!

 

But ... shall I sent them the leter again about processing data in the absence of my signed authorisation? (i.e non-existent agreement?)

 

Also, do you think this will be sold to a DCA, and if so what happens then, would I just send them a copy of the Mint letter I've had? (which by the way is now in a fireproof safe under armed guard ..!!!)

 

Once again ... thank you all little helpers - 1 down just the rest to go now !!!

 

Abs xx:)xx

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Abby25 - snap! Had that letter about my RBS account (less monies owing) but they 'digressed' on the Mint cca (mock up).

 

Not had a reply to my then detailed letter regarding prescribed terms explain etc and that was 2 weeks ago. No statements nothing. IN fact they have not contacted me since stating accounts terminated. I believe they are preparing next stage of defence / attack for several people in same boat.

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Well the letter I recd is basically saying .. you win ...we give up !!

 

They also say, that there is no need for me to go down the court route to prove they can't enforce (as I had suggested), it is un necessay as they don't dispute this, and therefore there is no need to engage counsel on my behalf as they don't disagree with my claim.

 

So, I think that from their point of view (and reading between the lines), if I pay up great, if not, well thats the way it goes .... !! (but thinking that a little DCA may rear its head in the future, it they sell it on to try and recoup something from nothing ...) !!!

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