OH v BLS/LTSB

[cymruambyth]

I've been battling BLS on 3 accounts since last September [ http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/158774-bls.html ] and now think I'd better seperate this account.

At the beginning of September I sent a CCA request to BLS......in October they replied that as the account was opened over 6 years ago they weren't required to keep the paperwork:rolleyes:. In November they offered 30 or 40% discount to pay.

I've been playing letter pingpong with them now it's back to Sechiari Clark & Mitchell (I think we last heard from them in 2004).

He needs to pay full balance within 7 days to avoid county court proceedings etc.

Shall I send bemused this account has been passed to solicitors letter, even though they are using same address as BLS/LTSB?

Thank you

[citizenB]

Yes, I would send the "bemused" letter to them. They must think we are a bit slow on the uptake to not notice they are in the same building !

[cymruambyth]

Thank you and congratulations

[havinastella]

Nice to see that they close everything 6 yrs after the account is OPENED!

 

Idiots

 

And yes congrats CB!

 

 

JOgs

[citizenB]

You are very welcome and thank you

[citizenB]

Nice to see that they close everything 6 yrs after the account is OPENED!

 

Idiots

 

And yes congrats CB!

 

 

JOgs

 

I would love to see them use that one on the Tax man

[cymruambyth]

Hi another letter from [problem]

'We have requested the application form again from our client, but they tell us that it is not on file, and they wrote to rell you this last September. Please send us your repayment proposals, failure to do so will result in a County Court Claim being issued.'

[cerberusalert]

Send the cretins this;

 

Dear Sir or Madam,

 

 

Account no

 

ACCOUNT IN DISPUTE

 

Re: my request under the Consumer Credit Act 1974

 

 

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

 

Your attention is drawn to the fact that this account is subject to a serious dispute. On ......... I requested that ........... supply me a copy of the credit agreement covering this account pursuant to the Consumer Credit Act 1974 section 78. To date ........... have failed to comply with my request. Without production of the said agreement I am unable to assess if I am indeed liable for any alleged debt to .............., nor does it give me any chance to evaluate whether any original agreement was ‘properly executed’ as required by the Consumer Credit Act 1974.

 

For the avoidance of any doubt I have included section 78(1) and 78(6) of the Consumer Credit Act 1974, which states…

 

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

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

(a) the state of the account, and

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

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

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

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

 

 

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

 

Clearly this is a situation as described in S.78(6) Consumer Credit Act 1974 and the debt is unenforceable at this time. In addition, I draw your attention to section 127 (3) Consumer Credit Act 1974 which states

 

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

This is backed by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 the agreement cannot be enforced.

 

 

To clarify S.61(1) states

 

(1)A regulated agreement is not properly executed unless—

 

(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and

(b) the document embodies all the terms of the agreement, other than implied terms, and

© The document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible

 

In addition the prescribed terms referred to in section 60 CCA1974 are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following—

 

1.Number of repayments;

2.Amount of repayments;

3.Frequency and timing of repayments;

4.Dates of repayments;

5.The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

 

Therefore based upon the Consumer Credit Act 1974 this debt as it stands is unenforceable and should this proceed to litigation, a court is precluded from making an enforcement order under section 127(3) unless a true copy of the signed agreement is produced..

 

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

 

All entries which refer to missed payments be removed from my credit file

All collection activities cease with immediate effect until ............. comply with my request from .date........... or such time as a court makes an enforcement order

In addition, I draw your attention to the Office of Fair Trading’s guidance on Debt Collection

 

The OFT guidance which was issued July 2003 (updated December 2006) relating to debt collections and what the OFT considers unfair, I have enclosed an excerpt from page 5 of the guidance which states

 

2.6 Examples of unfair practices are as follows:

 

h. Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment

 

What I Require.

 

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

 

I require that you comply with my request within 7 days of the date of this letter. I will not correspond any further with you until I either receive a copy of the requested documents as laid down in section 78(1) CCA 74 or clarification that such agreement doesn’t exist. I am advised that should you persist in pursuing this debt ignoring the above information you will be in breach of the Administration of Justice Act 1970 section 40 as well

 

No other correspondence will be accepted

 

Should you attempt litigation it will be vigorously defended and the failure to supply documentation under the CCA 1974 is a complete defence to any legal action and your actions will be vexatious and unlawful

 

 

I trust this out lines the situation

 

Regards

[cymruambyth]

Excellent, thank you very much, will send it unsigned and recorded tomorrow.

C

[cymruambyth]

[problem] have replied...........

'We enclose a copy of the original application form as requested. Please send your payment proposals by return of post'

Mmmmmm

The don't even have the curtesy to try and sign the letter just a generic [problem] stamp

[citizenB]

And did they enclose the "application" form ?

 

With regard to your first post and their comments that they do not need to keep paperwork for longer than 6 years after the account is opened.. read this thread

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/93884-wescot-rbofs-oh-dear.html

 

Of particular interest will be post # 9

[cymruambyth]

Thanks for the link. yes they did enclose an application form that is obviously a poor microfiche and is barely legible!

[cymruambyth]

Would a variation of this letter be the best response for now?

Thank you

[citizenB]

I rather think the letter in the link I gave you is for where there has been no document supplied at all.

 

I think you have to question the illegibility of the document they have supplied you with. I will have a look round and see if I can find you a letter to send

[citizenB]

This is the regulation

 

 

Regulation 2 of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557)

 

2 Legibility of notices and copy documents and wording of prescribed Forms

(1) The lettering in every notice in a Form prescribed by these Regulations and in 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, apart from any signature, be easily legible and of a colour which is readily distinguishable from the .

 

 

Still looking for letter

[citizenB]

Right, well I dont seem to be able to find anything that is suitable, so how about this...

 

 

 

Dear Sirs,

 

I am in receipt of your letter dated (whenever).

 

The Consumer Credit Act 1974 demands that I be supplied with a true copy of any properly executed credit agreement that exists in relation to the above account. I may ask for this on demand providing that a fee of £1.00 is paid. This fee was sent with my original letter.

 

My request remains outstanding. All you have sent is a pre-contractual application form, which is barely legible and therefore not compliant with the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557), your attention is drawn to regulation 2 (1) which sets out how copy documents must be presented.

"Regulation 2 of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557)

 

2 Legibility of notices and copy documents and wording of prescribed Forms

(1) The lettering in every notice in a Form prescribed by these Regulations and in 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, apart from any signature, be easily legible and of a colour which is readily distinguishable from the ."

 

From what I can see, the document you have provided does not contain any prescribed terms. Nor have any historic terms and conditions been supplied.

 

I am therefore unable to assess if I have any liability as claimed by your client.

 

Yours faithfully,

 

Short and sweet.

[cymruambyth]

Brilliant. thank you very much for all your efforts.

This is such a learning curve, once you feel fairly confident about dealing with a certain situation, another comes along that throws you!

[citizenB]

Aint that the truth ?

[cymruambyth]

Oh ***t the dreaded brown envelope has arrived from Northampton. Will have to try and break news to oh who has left me to deal with everything.

 

POC: 1 By agreement in writing & regulated by CCA 1074, the Claimant issued to the Defendant a credit-token, LTSB Trustcard VISA card, for the purpose of the Defendant acquiring goods/services on credit.

2 Clause 6 of the agreement provided that the Claimants would furnish the Defendant with a monthly statement showing the balance currently due; the minimum payment to be made & the date for payment. If the balance was not paid, then provided the Defendant made the minimum payment on or before such date, the remainder of the balance should remain outstanding & the Defandant should pay interest upon it per month in accordance with clauses 8 & 9 of the agreement.

3 In breach of the agreement, the Defendant failed to make payment & on xxxx03 the Claimants issued a Default Notice pursuant to section 87(i) of the CCA 1974.

4 On xxxx03 the Claimants did issue a Fiormal Demand to the Defendant.

5 THE CLAIMANTS THEREFORE CLAIM THE BALANCE DUE UNDER THE AGREEMENT:£XXXX

 

As I know feel sick with worry, any advice would very gratefully received.

[cymruambyth]

This is the double sided reply to my CCA request.

http://i399.photobucket.com/albums/pp74/cymru_1/scan0022.jpg

http://i399.photobucket.com/albums/pp74/cymru_1/scan0023.jpg

[mr.ton]

Oh Northampton eh...the DCA's head threat office

Anyway the worst that can happen here is that you list down all your outgoings etc...& put it down in such a way that you have £1 per month leftover to offer.

Put down everything from bills,travel costs & food costs (exaggerate a bit )..ive never known any court to require receipts for the amount of food you buy

They are then left in a like it or lump it senario

[cymruambyth]

I know that oh has 14 + 5 days to acknowledge online.

I'm looking throgh old paperwork. I have the DN; although timescales are correct, the format ie making underlined words bolder thyan the rest of the text, is in correct. Also, I've found a charge of £15 not £12. Does this mean if I get all back statements a claim can be made for the differences. Also if DN is incorrect, should I mention it?

[citizenB]

Sheesh, that document is a bit of a mess isnt it ?

 

What was the date of issue on the claim form, you will have to keep a close eye on the time scales.

 

Date of Issue + 5 days for service + 14 days to acknowledge (confirm whether or not you are going to defend) + 14 days to submit your defence.... 33 days from the date of issue on the claim form.

 

The clauses they say you have breached, are they correct or can you not see the darn things at all.

 

You need to send off a CPR 31.14 letter. You need to ask for copies of the documents they mention in the POC ie, the agreement, default notice and the formal demand letter. Read and amend the letter accordingly. Have you sent a Subject Access request at any time ?. You wil need to know if the sum they are asking for is correct and you will only be able to do that with a full set of statements. So if you havent, then it might be worth getting one of those in the post to LTSB.

 

 

 

Dear Sir,

 

Re: (Claimant's name) v (Your name) Case No:

CPR 31.14 Request

 

On (date) I received the Claim Form in this case issued by you out of the (Name) County Court.

 

I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest all of your claim.

 

[Prior to the issue of proceedings I had delivered a request for the production of the agreement mentioned in the Claim Form and on which you rely. That request was ignored][delete if no such request was delivered]

 

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of [each of the following / the] document(s) mentioned in your Particulars of Claim:

 

1 the agreement. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.

 

2 the assignment*

 

3 the default notice*

 

4 the termination notice*

 

5 [any other documents mentioned in the Particulars of Claim]*

 

* delete if not mentioned in the Particulars of claim.

 

[Although your claim is for a sum which is not more than £5,000.00 and will in all likelihood be allocated to the small claims track for determination upon my delivering a defence, at this moment in time I have not delivered my defence and the case has not been allocated to a track. In consequence the provisions of CPR 27(2) are of no effect and you should not seek to avoid compliance with your CPR 31 duties by claiming otherwise]#

 

# delete if claim for a sum exceeding £5,000.00

 

You should ensure compliance with your CPR 31 duties and ensure that the document(s) I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

 

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

 

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

 

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

 

I do hope this will not be necessary and look forward to hearing from you.

 

yours faithfully

[citizenB]

I know that oh has 14 + 5 days to acknowledge online.

I'm looking throgh old paperwork. I have the DN; although timescales are correct, the format ie making underlined words bolder thyan the rest of the text, is in correct. Also, I've found a charge of £15 not £12. Does this mean if I get all back statements a claim can be made for the differences. Also if DN is incorrect, should I mention it?

 

When you say the DN is correct are you absolutely certain. Time to remedy from date of DN 14 clear days, allowing 2 working days for 1st class or 4 working days for 2nd class post. How was the DN posted ?. I would not be inclined to mention any irregularity in the DN to LTSB, but it will certainly form part of your full defence.

 

If there are charges/late payment fees inluded in the sum requested on teh DN then it is incorrect.

[cymruambyth]

Hi cb, thanks for your input. Dates are correct, 14 days.....in 2003 when they only required 7 However, the format is wrong because the underlined words are not in a heavier type.

The scan is a true picture, t & cs illegible, page 1 all you can read are the headings and oh's details.

The amount being claimed is less than that show on the DN, even if you remove the arrears amount. What does that mean?

Thank you