Monument CCA -Help Please

[squidward]

Thanks for the info 42 Man

 

Since I did the original CCA request to Monument the account has been basically on hold although they have charged interest and applied charges to the account.

 

I have recently embarked on a DMP with Payplan and have since sent them a token payment.

 

They say that the debt is due to be sold on if I don't pay at least 1% of the balance per month.

 

Is there any think I should do now before the debt is sold or wait until the new DCA gets in touch ?

 

Squidward

[42man]

Again I think it could possibly jepoardise any arrangements with Payplan...it might be worth looking at other Payplan threads...

[squidward]

Thanks 42man

[toymaker1]

Thanks Ida

 

Just recieved this letter from Monument Basically it states they feel they have complied my request under s78 of the CCA albeit with a unenforceable agreement.

 

Letter

 

 

 

Should I reply to them and explain why ?

 

I was thinking of sending a slightly altered version of cerberusalert letter below .....

 

ACCOUNT IN DISPUTE

 

I have received the documents you sent and in the accompanying letter you have confirmed this to be a true copy of the credit agreement that exists in relation to this account. As you have sent this document in response to a formal request under Section 78 (1) of the Consumer Credit Act 1974, this statement is now binding on you as per section 172 of the Act

 

I must inform you that the information received does not meet the requirements of a properly executed credit agreement under the 1974 Act The document received does not contain any of the prescribed terms as set out in the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) Schedule 6 Column 2.

 

Since this document does not contain the required prescribed terms it is rendered unenforceable by s127 (3) consumer Credit Act 1974The absence of a properly executed credit agreement prevents you from:

Adding interest to the account

Taking any enforcement action on the account

Issuing any default notices or registering any default marker with a credit reference agency

 

This situation 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.

 

Wilson v First County Trust Ltd [2001] EWCA Civ 633, Sir Andrew Morritt, Vice Chancellor said:

The creditor must…be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid

 

In the case of Dimond v Lovell [2000] UKHL 27, Lord Hoffmann said 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.

 

I would also point out that if you continue to pursue me for this debt while it is dispute you will be in breach of the OFT guidelines

What I Require

 

I require all correspondence in writing from here on; any persistent attempts to contact me by phone will be reported to trading standards

 

I require you to produce a compliant copy of my credit agreement to confirm I am liable to you or any organisation, which you represent for this alleged debt, if you cannot do so I require written clarification that this is the case. Should you ignore this request I will report you to the Office of Fair Trading to consider your suitability to hold a credit licence in addition to a complaint to Trading Standards, as you will be in breach of the Administration of Justice Act 1970 section 40 where the agreement is unenforceable it would be in everyone’s interest to consider the matter closed and for you to write the alleged debt off. I suggest you give serious consideration to this as any attempt of litigation will be vigorously defended and I will counter claim for all quantifiable damages

 

Yours Faithfully

 

Am I on the right track here ?

 

Thanks Squidward

 

Why not keep things simple, and just write a letter pointing out that the document they have sent to you is a copy of an application form and is not a copy of an executed agreement, and you would like them to give you a copy of your executed agreement.

[IdaInFife]

unfortunately this how mos end up - a gmaeof ping pong that just ends up costng you money - you have adivised them that is not enforceable they are saying it is.

 

 

you have 2 options

 

1 use the cprroute in the link previously given

 

or 2 just wait and see what they are going to do

 

ida x

[davefirewalker]

I had EXACTLY the same type of CCA....once providian then Monument and now Barclaycard.

 

I threatened to take them to court...they wrote it off....£3.5k....

 

Dave

[1273]

Read this... was a court case

 

 

1 I, make this statement as my defence to the Claimant’s vague particulars of claim dated 27 October 2008. The Defendant respectfully seeks the courts permission upon clarification of the claimant’s case and disclosure of the necessary documents to amend this defence if required.

 

2 On the 19th May 2005, the Defendant signed an Application Form for a credit card facility to be provided by Claimant. (Exhibit 1)

 

3 Provision of this credit facility was dependant upon a satisfactory credit record being obtained by the Claimant from one or more Credit Reference Agencies, and upon other lending decision criteria. The Application Form was therefore a pre-contractual agreement to enter into a prospective full-regulated credit agreement with the Claimant in the event that the Defendant’s application was successful.

 

4 The Application Form contained a clause, which included the following statement -

'Please issue me with an additional Barclaycard for use on the account(s) to which this application relates. I accept to be bound by the Barclaycard Conditions of use'. As such, the application purports to bind the Defendant to the terms and conditions of any prospective credit agreement with the Claimant.

 

5 Section 59 (1) of the Consumer Credit Act 1974 states that 'an agreement is void if, and to the extent that, it purports to bind a person to enter as debtor or hirer into a prospective regulated agreement.’ The Defendant therefore contends that this pre-contractual document, not being a regulated credit agreement in itself, and insofar as it purports to bind the Defendant to the terms of an actual prospective regulated credit agreement, is void and of no effect.

 

6 The Defendant’s application for credit was successful and a line of credit was provided. However, no subsequent regulated credit agreement, fully setting out the proposed terms and conditions and containing all the terms, information and statutory statements as prescribed by the Consumer Credit Act, was ever provided by the Claimant for the Defendant to sign and agree to. The credit facility was therefore given with no agreement made for repayment.

 

7 I refer in this section to the alleged agreement exhibit A.

 

8 In respect of that which is denied, if the court should decide that the said agreement is not void by virtue of s59 (1):

 

9 it is respectfully submitted that the agreement is improperly executed because it is not in the prescribed format set out under The Consumer Credit (Agreements) Regulations 1983. The agreement was entered into before section 15 of the Consumer Credit Act 2006 came into force. Therefore, by way of schedule 3, s11 of the consumer credit act 2006, those sections otherwise repealed by the Consumer Credit Act 2006 section 15 remain in force.

 

10 Consequently, the court is precluded from issuing an enforcement order by way of s. 127 of the Consumer Credit Act 1974, since the document does not contain all the prescribed terms defined in the Consumer Credit (Agreements) Regulations 1983, these being defined by Reg 6(1) as being specified in Sch 6 to the Agreements Regulations for the purposes of s61 (1)(a) and s127 (3). (The omitted terms including Credit Limit, Rate of interest, and Payment terms under the Consumer Credit (Agreements) Regulations 1983 schedule 6.

 

11 Furthermore, the Defendant disputes the balance of the account, as during the period in which the account was operating The Claimant debited charges to the account in respect of purported breaches of contract on the part of the Defendant and also charged interest on the charges once applied. The Defendant understands that the Claimant will contend that the charges were debited in accordance with the terms of the contract between the Claimant and the Defendant and accordingly puts the Claimant to strict proof of such terms existence. The Defendant contends:

 

a) No such contractual provision exists to allow Claimant to levy such charges;

 

b) Where there is a contractual provision that permits the Claimant to levy such charges, this provision is unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations (1999) and the Common Law of penalty because they are a disproportionately high sum in compensation compared to the cost of the purported breach and are not a genuine pre-estimate of cost incurred by the Claimant; exceed any alleged actual loss to the Claimant in respect of any breaches of contract on the part of the Defendant; and are not intended to represent or are related to any alleged actual loss, but instead unduly enrich the Claimant, which exercises the contractual term in respect of such charges with a view to profit; and

 

c) Accordingly the Defendant puts the Claimant to strict proof that every charge made to the account was valid and lawful.

 

d) The Defendant has not been furnished with the requisite default notice in order for the Claimant to terminate the alleged agreement.

 

 

e) And in any event, the Defendant avers that any Default or Termination Notice sent would have included penalty charges, invalidating that Notice as per Woodchester v lease.

 

f) The Claimant contends that they have a claim to monies under an agreement between the defendant and the original creditor, the defendant seeks clarification of this fact and proof of legal assignment as required by Law of Property Act 1925

 

 

12 Accordingly, the Defendant puts the Claimant to strict proof that the agreement has been defaulted and terminated in accordance with s.88/s.98 CCA 1974 and the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1993.

 

13 Where the Defendant is unable to supply original signed certified copies of alleged Default Notices or Termination Notices, the Claimant pleads that the agreement has been unlawfully defaulted and terminated, in that, either;

 

a) No Default Notice or Termination Notice has been issued, the Claimant being prepared to swear on oath that no such notice was sent or received at the time of default or termination; or

b) Where the Defendant can show evidence that Default or Termination Notices were issued, such Notices are not accurate and fail to comply with s.88/s.98 CCA 1974 and the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1993, in that the Default and Termination amounts are incorrect as per paragraph 10(e) of this

Statement.

 

14 The claimant respectfully requests that the court use its powers under section 141 of the consumer credit act to determine the rights of the parties.

 

 

15 For the reasons set out in this Defence, the Defendant’s position is that the Claimant’s Claim has no real prospect of success and discloses no reasonable grounds for it to be brought. The Defendant reserves the right to seek costs against the Claimant on the basis that such conduct is unreasonable and/or vexatious in bringing and/or pursuing this claim should the matter proceed to a full assessment.

[squidward]

Hi All,

 

Well I have received a DN from our friends at Monument

 

Letter dated the 23rd November sent second class received it on the 26th, DN says I need to pay the arrears to rectify the situation by the 7th December

 

Now I thought they had to give you 14 days clear ?

 

Funny thing is they have sent a letter along with the DN which is headed "Final Notice Pending Termination Of Agreement" my Credit file now has a Default registered.

 

Now does this mean all i have to do is pay the arrears and thats it ?

Edited December 19, 2009 by squidward

[davefirewalker]

Hi All,

 

Well I have received a DN from our friends at Monument

 

Letter dated the 23rd November sent second class received it on the 26th, DN says I need to pay the arrears to rectify the situation by the 7th December

 

Now I thought they had to give you 14 days clear ?

 

Funny thing is they have sent a letter along with the DN which is headed "Final Notice Pending Termination Of Agreement" my Credit file now has a Default registered.

 

Now does this mean all i have to do is pay the arrears and thats it ?

 

maybe.......my maths puts it at tue 15th Dec

 

can you post the DN

 

Dave

[squidward]

Hi Dave

 

I'll scan and post up the DN and Termination notice I got the date to the 11th but not sure if I have got the correct timings

 

4 days second class post + 14days to remedy then is it another 4 days postage?

 

Squidward

[davefirewalker]

Hi Dave

 

I'll scan and post up the DN and Termination notice I got the date to the 11th but not sure if I have got the correct timings

 

4 days second class post + 14days to remedy then is it another 4 days postage?

 

Squidward

 

It doesnt really matter.....7th DEC is WRONG in ANY case.....

 

(my initial calcs were wrong too should have been upto 13th Dec)

 

KEEP the ENVELOPE !!!!! if you havent already got rid of it.

 

Service is determined to be on the second WORKING day for 1st class or on the fourth WORKING day for 2nd class the 14 CLEAR days to rectify.

 

 

 

Dave

[squidward]

Here we are Scan of the two main pages other two pages not here are the OFT stuff

 

Squidward

 

 

Edited December 19, 2009 by squidward

[davefirewalker]

OK.... they have NOT allowed ANY time for postage / service.

 

A definite cock up..... have you still got the envelope ??

 

there are many ways to play this......some risky and potentially costly, some simple and easy.

 

simple is always best....

 

you could write them a letter explaining why you consider the agreement to be in default and add that you consider that there is no debt to answer, and if they think there is they should take you to court to prove it.

 

the possible worst that might happen is that you lose...you could ask for time to pay at a reasonable amount and not be too much worse off than you are now......

 

or you might win......

 

the third result is that they wont do anything except chase you for the next six years and then it will fall off your record ...game over

 

your choice

 

rgds

 

Dave

[squidward]

Hi Dave,

 

I have kept the envelope along with the documents posted up, the envelope is marked second class.

 

On balance then the executed agreement (or lack of it) and the default are both defective so Monument might not be to quick to take me to court.

 

When they say the account will be terminated does that mean the debt will be sold on ?

 

or are they closing the agreement?

 

Squidward

[alangee]

Squidward

 

Do not tell Monument that their DN is faulty. Once the account has been terminated, they cannot issue a corrected DN, but until then, they can.

 

Alan

[davefirewalker]

Squidward

 

Do not tell Monument that their DN is faulty. Once the account has been terminated, they cannot issue a corrected DN, but until then, they can.

 

Alan

 

I agree.....tell them nothing other than you feel that the "agreement" does not conform to cca 1974, and that you consider that there is no debt and if they want to take you to court you would welcome it.

 

unless they are feeling suicidal they wont bother, you may get all sorts of threats from dca's...but what are they going to do ???

 

Throw the ball into their court.......and then ignore them until they actually start something. do not acknowledge the debt or pay anything towards it and in 6 years it will be gone, or sooner if they are stupid enough to take you to court.

 

in the end its your decision....think long and hard about what you want to do and the possible consequences, and make an INFORMED decision.

 

rgds

 

Dave

[squidward]

Thanks for the support guys

 

One thought, a while after I CCA'd Monument and put them in default, I Started a debt management plan with Pay plan, I don't want to rock the boat to much but can see a benefit in challenging the agreement. Monument are receiving pro rata payments at present of 13.43 per month.

 

When They terminate the account will this be sold on or what will happen to the debt?

 

Also when I first challenged the agreement the said the debt would be transfered to Gateley Waring but this has not happen and the debt has been kept "in house" could this be because they know they don't have an executeable agreement?

 

Cheers Squidward

[davefirewalker]

Personally I would stop paying.....(my choice) I would goad them into taking some form of action. The thing of it is, its a crap agreement ....they know it.

 

if you are acknowledging the debt you will be paying it forever, whereas if you tell them to "go forth and multiply" then as I said before they will either take you to court or sell the debt on.

 

If they take you to court, they are most likely on a loser (NOTHING is 100% certain) do your homework and present your case and most likely you will win.

 

what is more likely isthat they will sell the debt on......you will just have to deal with various dca's ad nauseum until 6 years is up then you are home free.

 

your credit record will be trashed for several years in any case being on a dmp does not do your credit rating any good it will just show up for longer unless the debt is very small.

 

work out how long it will take you to pay back your debt at £13 per month.... then add 6 years because that how long it will stay on file after you finish paying it.

 

BUT you should not go off "half cock".... do your maths and your homework and try to make an informed decision YOURSELF. dont let me or anyone on here make the decision for you......only you know what is right for you

 

rgds

 

Dave

[squidward]

Update

 

Is this a new tactic to get me to sign a new credit agreement...I think so and I will not be signing it.

 

I received a phone call from a company called JCI who now look after my Monument account.

 

They say that if I agree to new payment terms they will write off 1500 of my account. Funny thing is when I web searched JCI I found it's owned by Compucredit and the Rise Visa card is Raphael's which was the company that had my Monument account prior to Compucredit. It seems to be going around in circles .....!

 

Balance Transfer Programme

 

So I sign this then they have an agreement for the original debt and can then enforce it thought the courts .....crafty beggars.

[davefirewalker]

Update

 

Is this a new tactic to get me to sign a new credit agreement...I think so and I will not be signing it.

 

I received a phone call from a company called JCI who now look after my Monument account.

 

They say that if I agree to new payment terms they will write off 1500 of my account. Funny thing is when I web searched JCI I found it's owned by Compucredit and the Rise Visa card is Raphael's which was the company that had my Monument account prior to Compucredit. It seems to be going around in circles .....!

 

Balance Transfer Programme

 

So I sign this then they have an agreement for the original debt and can then enforce it thought the courts .....crafty beggars.

 

yeah they try all sorts of tricks....MBNA tried that one too......they hope that you are stupid

 

*** please tell me youre not *** (oh yeah and DONT sign)

 

Dave

[squidward]

Definitely not stupid they can go whistle!

 

Question ?

 

Have they effectively terminated the agreement when they sent the DN (defective) and then passed the account to JC.

 

Should I CCA JC and when they can't produce a Valid CCA tell them to Beggar off!

 

The reason I ask this is because it has not been "sold" to a external company just moved to a different division of the organization.

 

Squidward

Edited January 24, 2010 by squidward

[Dotty50]

Hi Squidward,

 

Now subbing, I too have just had the same reply card that you had and same letters in response, yet to reply to their 'Final Response' but will probably push for the missing statements in order to put in a PPI claim (they call it Payment Break Plan) no details of this enclosed with SAR either.

 

Direct debit stopped this month so will await their calls.

 

Does anyone know any of their phone numbers? (wonder if they have as many as Capital 1?)

 

Here is a link to mine if you want to take a look at what they sent me.

 

http://www.consumeractiongroup.co.uk/forum/getting-out-debt/239332-monument-cca.html

[davefirewalker]

Definitely not stupid they can go whistle!

 

Question ?

 

Have they effectively terminated the agreement when they sent the DN (defective) and then passed the account to JC.

 

Should I CCA JC and when they can't produce a Valid CCA tell them to Beggar off!

 

The reason I ask this is because it has not be "sold" to a external company just moved to a different division of the organization.

 

Squidward

 

IF they have issued a DN (defective or not) and then asked for the full balance back, then they have effectively terminated.

 

BUT !!!

 

be carefull, have they issued a termination notice ?

 

you could I suppose write to them and say something like....."why are you asking for the full balance?...........you cant, because you havent terminated the agreement yet"

 

checkout the t&c's that they supplied to see what rules they have for terminating

 

It may well have been transferred "in house" and they may not have terminated it yet.....have you had a Notice of Assignment (NOA) ?

 

if it HAS been sold then they HAVE terminated it.....and on the back of a dodgy DN and you are home free.....well sort of.

 

you need to find out !!!!

 

 

Dave

[squidward]

Hi Dotty

 

And thanks for your interest looks like you have the same response to your CCA requests as I did ... just the reply card and thats it not worth a light and they know it!

 

I'll sub to your thread so we can compare issues as they come up.

 

Cheers

 

Squidward

[davefirewalker]

Hi Squidward,

 

Now subbing, I too have just had the same reply card that you had and same letters in response, yet to reply to their 'Final Response' but will probably push for the missing statements in order to put in a PPI claim (they call it Payment Break Plan) no details of this enclosed with SAR either.

 

Direct debit stopped this month so will await their calls.

 

Does anyone know any of their phone numbers? (wonder if they have as many as Capital 1?)

 

Here is a link to mine if you want to take a look at what they sent me.

 

http://www.consumeractiongroup.co.uk/forum/getting-out-debt/239332-monument-cca.html

 

EXACTLY the same as mine......transferred to Barclays and rather than go to court they wrote it off £4k..!!!!

 

BUT... I have seen EXACTLY the same one go to court and LOSE

 

its the judge lottery !!!

 

I (personally) would goad them....the worst that could happen is that they WILL take you to court...you could strike lucky and get a good judge.....or even a bad one, and if you argue your case with conviction and passion and get the facts right then you should win. If you dont you could ask for time to pay......maybe a win / win scenario.....

 

BUT....its you who has to fight it and only YOU can make the decision.

 

think carefully, weigh up the facts

 

rgds

 

Dave