cupcake68 Vs Monument

[cupcake68]

I have recieved this today in response to my CCA request.

EC mon pictures by cupcake62 - Photobucket

 

Am I right in saying this looks like an application form and doesn't have the correct terms therefore they cannot enforce it or am I missing something?

 

What should my next move be?

 

Thanks

[clemma]

They have also sent a bunch of new terms and conditions as well. There are a couple of letters - just use bits from both of them:

 

DO NOT ACKNOWLEDGE ANY DEBT

 

Dear Sir/Madam

 

RE: Agreement/Account number

 

Thank you for your response to my letter dated xxxxxx 2009, making a formal request for a true copy of the original credit agreement for the above account under the Consumer Credit Act 1974 (Sections 77-79).

 

The documents you supplied me appear to be no more than an application form, and as such are not a satisfactory response to my request. Nowhere on the front of the document is there any reference to the prescribed terms and conditions that such an agreement must contain. I must assume that these are unconnected documents and once again inadequate to satisfy your obligations.

 

As you are aware you are obliged to provide me with a true copy of my agreement as defined under Section 189 of the CCA 1974. and I consider that you have failed to comply with my request for these documents

 

 

Under the terms of the above Act, a creditor has 12 working days to provide the requested documents. This deadline has now passed and I have not received the requested documents from you.

 

As I am sure you are aware, an agreement that does not contain all of the prescribed terms, and/or is not signed by the debtor, is completely unenforceable & I therefore consider that this account is in dispute with immediate effect & it follows that all payments to this account are suspended forthwith.

 

I draw your attention to the legal requirement 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 therefore the following applies:

You must not demand any payment on this account, nor am I obliged to offer any payment to you.

You must not add any further interest or charges to this account.

You must not pass this account to any third party.

You must not register any information in respect of this account with any of the credit reference agencies.

You must not issue a default notice on this account

I hereby give you notice that if you proceed with any of the above actions, I will file reports with the appropriate authorities, including, but not limited to, Trading Standards, Office of Fair Trading, Information Commissioners Office, Financial Ombudsman Service.

 

Yours faithfully

 

AND

 

note that you have replied to the above by sending your companies current Terms and conditions and a blank application form. I must inform you that this is not sufficient to comply with the request and that your company is still in default under the act.

 

To clarify, just sending the Terms and Conditions and a blank applicatio form is a breach of the Act and Regulations as, apart from the information that the Regulations provide that you may exclude, the copy must be a “true copy” of the agreement.

 

This breach of the agreement can be demonstrated as follows;

As you will know section 180(1) (b) authorises, “the omission from a copy of certain material from the original, or the inclusion of certain material in condensed form.” This refers to statutory instruments made under the heading Copies of document regulations and in this care in particular to SI 1983/1557.

 

Before leaving section 180 there are two other sections that should be remembered these are:

 

Section 2(2) (a) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not satisfied unless the copy supplied is in the prescribed form and conforms to the prescribed requirements;

 

And more importantly

 

Section 2(b) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not infringed by the omission of any material, or its inclusion in condensed form, if that is authorised by regulations.

 

You will see that this quite clearly states that whilst certain items may be left out of the copy document the rest of the document must be in the form and contain all items as prescribed by the regulations.

 

Turning to the regulations regarding what may be omitted from these copies these are contained with SI 1983/1557.

 

The regulations state:

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

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

(b) any signature box, signature or date of signature (other than, in the case of a copy of a cancelable executed agreement delivered to the debtor under section 63(1) of the Act, the date of signature by the debtor of an agreement to which section 68(b) of the Act applies);

 

It is quite clear what can be omitted from the copy document, this again asserts that all other details of the agreement should presented in form and content as required by the regulations.

 

The requirements of the Agreement regulations 1983/1553 are very explicit in describing the form and content of an agreement and this as I have demonstrated also applies to the copy of any such agreement with the above mentioned proviso.

 

Nowhere within these regulations does it state that part of the agreement can be presented on a separate document headed terms and conditions.

It does state that all terms and conditions should be within the agreement document and is explicit of the form in which it is presented.

 

I hope this explains why your reply was unacceptable I await a True copy of my agreement and would remind you again that whilst the request has not been complied with the default continues

 

[cupcake68]

Hi Clemma

 

Thanks so much!

 

I'm still learning but I think I'm learning fast (!)

 

So I need all the help I can get!

 

I will send this letter on monday.

[clemma]

No problems - thats what CAG is for.

 

Just mix those letters up a bit and make sure there is no repetiveness. I'm at work at the moment, so I didn't have time to do it before posting!

[cupcake68]

No that's fine I can put that together.

 

CAG is great (I want to shout it from the rooftops!) It's given me hope when I've had none for the last 6 months!

 

I can't wait until I feel confident enough to help others do this!

[cupcake68]

Clemma

 

Is there any chance you could have a look at this post for me please

http://www.consumeractiongroup.co.uk/forum/legal-issues/191592-esile-sky-card.html

 

I know it is not unenforceable but I do not understand part of it (post 5).

 

Thanks

[cupcake68]

Hi

 

I have had a reply to my letter telling Monument their agreement is unenforceable. EC Mon part2 pictures by cupcake62 - Photobucket

 

Can someone please advise me what I should do now?

 

Many many thanks

CC68

Edited May 26, 2009 by cupcake68

[GamekeeperToPoacher]

Hi Esile,

 

I am going to keep an eye open here as I have received almost the same from Crap 1. but in my case they say that it is there final response.

 

I am tempted to write back saying that I am disappointed in there response and that I would be so happy if Ms XXXXXX would indulge me by resending the information this time highlighting the parts that are personalised to me.

 

In addition I am considering making the problem personal by saying that I will only communicate with her and will, should litigation ensue, then be calling her to the court.

 

GK

[cupcake68]

Hi GK

 

The mad thing is (I think) that they did send me a copy of my signed agreement but it is not enforceable!

 

CC68

Edited May 26, 2009 by cupcake68

[cupcake68]

Hi

 

Could someone please advise me of what to do next (please see post 7)

 

thanks

[GamekeeperToPoacher]

For what it is worth Esile I am in the same position.

 

My CC person has Written back just like yours and said effectively "We are correct - what we sent you is an answer under S78 and we won't discuss it any more"

 

I am thinking of writing back personally to the writer stating that I am not prepared to deal with anyone else in the company and will they resend the documents this time highlighting the relevant sections.

 

It will be a waste of time.

 

My argument is, and always has been. If you are so convinced that what you have supplied is correct then take me to court, get a district judge to confirm it and make me pay OR get off the pot!!

 

GK

[cupcake68]

Hi GK

 

I'm new to all this and this is the furthest I've got with any of them so I am a liitle shy of doing anything unless it is advised.

 

But everything you're saying sounds right to me!

 

CC68

Edited May 26, 2009 by cupcake68

[GamekeeperToPoacher]

The alternative is, in my opinion, do nothing.

 

They know the law or should do, unless they have been promoted above their levels of competence, so why should we lay people deign to teach them their jobs. Unless of course they are prepared to offer a fee.

 

If they are confident they should come back and do something. I can assure you that if I was employed by them and they were speaking correctly the local court system would be flooded with cases.

 

I live reasonably close to Crap 1 and am considering seeking employment there.......

 

 

Then after undergoing their extensive in house training (20 mins over the coffee machine) I would look forward to being let loose as an accredited debt recovery specialist. Then I would be looking for all the agreements of the people on CAG and make damn sure that they could never be found - if they even exist currently.

 

GK

[cupcake68]

LOL!

 

You get my vote!

 

Am I correct in saying the next stage is for them to send a dca onto me? At which point I tell them it is unenforceable, they then pass it back to Mon who then if they so choose take me to court?

 

Am I on the right track or have I missed something along the way?

 

I am trying to keep up with all this but having spent the last year thinking my home would be taken and I would have a queue of people at my door the minute I missed a payment I still regularly feel as though this is all a dream and I am going to wake uo to the truth any minute now!

 

CC68

Edited May 26, 2009 by cupcake68

[GamekeeperToPoacher]

Esile,

 

I really do not know - I assume that they will set a DCA on however I am tempted to take the bull by the horns and use the CPR route and then issue against them ensuring that the NAMED PERSON is fully appraised that, as they have assured me the agreement is enforceable, they will be given the opportunity to present their case to the District Judge.

 

On all our posts there is a warning about claims touts - I cannot believe that some of these companies are not being successful - I am watching one company which claims to have written off lots of money from lots of lenders (sadly not my lenders). Surely if they are authorised by the DOJ they must be stating the truth?

 

Why can we not push the issue.

 

I am probably lucky(?) as I have no assets, no job and live in rented so they are on a hiding to nothing in any case whether I win or lose.

 

GK

[cupcake68]

GK

 

The hardest thing about all this is the not knowing and the waiting!

 

Time will tell but at this point I am not ready to start forcing the issue. If they want to play tennis I am more than happy to do that and see where it gets us but I just wish there was a set procedure that we and they had to follow it would make it so much easier!

 

CC68

Edited May 26, 2009 by cupcake68

[GamekeeperToPoacher]

Esile,

 

Once again I agree I believe that it is a war of attrition and they are hoping that eventually you will roll over.

 

Fortunately(?) I do not have a landline (or a cooker, TV, Washing machine or fridge) so all but one CC is unable to contact me.

 

The one who does call me on my mobile gets all sorts of responses from foreign language replies, to sympathy as they are working weekends and I do not do business on weekends or bank holidays, to outright disbelief that they are who they claim to be. What is really annoying is that they will not answer my security questions.

 

I wonder what they hope to achieve by the call anyway. It is in dispute learn to live with it!!

 

Regards

 

GK

[cupcake68]

GK

 

Yes I am assuming that is Nationwides tactics when they write saying if we do not pay they can withdraw all accounts (we have our mortgages with them!) and to a certain degree they do win, it does scare me but at the end of the day I have no money therefore I cannot pay them even if I wanted to!

 

My dad (whom I am also fighting for) cannot believe that we cannot deal with them in a business like manner i.e the way we used to do business.

 

He wants to talk to them on the phone and give them what for but as I keep telling him it will make no difference, they will still call again in ten minutes and then an hour after that.....

 

He also wants to reply directly to every letter they send saying how dissappointed they are that we still have not paid but they truly are faceless crooks, there is not someone sitting at a desk thinking 'I'm dissappointed.......' We are just numbers to them.

 

This is all such a learning curve, I have so much still to learn. I think I will ignore the letter and wait to see what happens unless someone with more knowledge then me advises otherwise.

 

CC68

Edited May 26, 2009 by cupcake68

[GamekeeperToPoacher]

A problem I have is that I would like to test a different approach but don't want to put it on the forum till I have sorted out whether it will work as I am concerned that the lenders etc are looking at this site and could take advantage.

 

I will be starting in earnest tomorrow but will be looking for advice whether an agreement is enforceable, what do I do about a bad DN, how to transfer to MY local court and where my defence is likely to go. on one case and looking at my Crap1 CC response and formulating a plan of action. I will keep you advised.

 

GK

[cupcake68]

Hmm Sounds interesting!

 

I'll look forward to hearing about it once you've formulated and executed your plan!

 

I know nothing about default notices being bad. Is that something to do with the letters informing me of default charges I keep getting? Do they have set terms too?

[GamekeeperToPoacher]

When they write to you to default the default notice is very strictly prescribed. Frequently they get the timing wrong as the HAVE to give you 7 or 14 days depending on the year it is sent - if they get it wrong then, as I understand it, they can only claim the arrears.

 

Also they are not permitted to put charges on so it is well worth looking at.

 

Here is hoping.

 

GK

[supasnooper]

Hi there,

 

What you have received from Monument does meet the criteria of s78 as it stands.

 

However, you will have to make a judgment as to whether they will hold an enforceable agreement.

 

My view is that it is unenforceable.

 

Whilst the Application form has the required signatures on, the prescribed terms are not embodied in the document; no interest rates, no cancellation option etc..

The T&C's they have supplied are more current than when the card was first issued (default charge - £12.00, was £25.00 in 2003) and I cannot see section 22 which is referred to several times.

 

The question you must ask yourself is - Can YOU persuade a judge that the "agreement\application form" provided by Monument is not enforceable ?

 

Keep going.

[cupcake68]

NOW I'M SCARED!!!!!!!

 

I thought they would not take me to court if it didn't hold all the prescribed conditions!

 

I have no idea what I'm talking about and have never been inside a courtroom!!

[GamekeeperToPoacher]

Calm down!!

 

Rumpole I am not. It is a smallish room with just a few folks in there - quite cosy actually and, I have found the DJ to be quite affable.

The solicitor for the other side can be a pain in the butt but like a pricked balloon soon come down to size.

 

My experience has been helping friends who had rent or mortgage arrears and in both cases we managed to get the eviction suspended after having once had a suspension and failing to maintain the arrangement!

 

Maybe I should have entered the legal profession?

 

Always remember lawyers practise the law - we DO it.

 

GK

[cupcake68]

I'M STILL SCARED!

 

What do I do now?

 

Will they not send it to dca first?

 

Should I reply? Can I not highlight the faults in their agreement and see if they decide not to bother?

 

CC68 (with no finger nails left!)

Edited May 26, 2009 by cupcake68