Waiting for CCA replies

[seejay01462]

While I'm waiting for replies to the CCA's I sent out, should I continue making my offer of reduced payments to these companies?

[cerberusalert]

If more than 12 working days have passed since they received your request you can send the 'In Dispute' letter http://www.consumerforums.com/resources/templates-library/86-debt-collectors/571-failiure-to-provide-a-copy-of-the-agreement-within-the-prescribed-timescale.html and legally withold any further payments until they comply with your request and provide you with an enforceable CCA.

[seejay01462]

Thanks for the reply. How about in the meantime while I'm waiting, as I usually pay a couple of them at the beginning of the month?

[cerberusalert]

That's up to you, but as I said if they are past the time limit you don't have to.

[seejay01462]

While I've been waiting for replies to my CCA requests I have received a Default Notice from Mercers for my Barclaycard saying that I have to pay them £180 by 20th May. They wrote this on 3rd May. I suppose the letter has just crossed with my request for a CCA, but what should I do?

[cerberusalert]

Did you send the 'In Dispute' letter? If so make a complaint to the OFT because they will be in breach of guidelines by still pursuing a disputed debt;

 

Debt collection guidance - Final guidance on unfair business practices - oft664

 

 

The Office of Fair Trading: Contact us

 

[email protected]

 

The Office of Fair Trading: Debt collection practices

 

tel: 020 7211 5823

[seejay01462]

Thanks again for your quick reply. No, I haven't sent out an 'in disput' letter. I've been searching the forums, but can't seem to find the template. Can you link me to it please?

[cerberusalert]

Letter #19 The Consumer Forums - Debt collectors

[seejay01462]

Thank you. I can see the templates now . But wouldn't it be no 16 (Letter when account has been passed on whilst agreement request is in dispute)? Although I can't even use this one as Barclaycard haven't come to the end of their 12 working days to supply me with the CCA yet. Could it be amended somehow?

[cerberusalert]

Mercers are the 'in-house' debt collectors for Barclays...they are part of Barclays.

[seejay01462]

I've had 3 replies to my CCA requests back now.

The first from Sky which all seems in order. They have enclosed a photocopy of the Skycard Application Form with my signature and date on it, and also copies of ALL my statements since I started with them! So I don't suppose I can do anything about that one.

 

Barclaycard don't seem so efficient. This is the wording of their letter to me:-

"Reference: SECTION 78 of the Consumer Credit Act 1974

 

I write further to your letter and the enclosed £1.00 fee requesting a copy of your executed agreement for the above account.

 

The information we must provide to you under the terms of Section 78 is prescribed by the Consumer Credit Act 1974 and by the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983.

 

Under Section 78, we must supply you with a copy of your executed agreement and a statement of account which is practicable to refer.

 

Please find enclosed a copy of your latest executed agreement. This is a statement of the terms of your agreement with us and incorporates any variations to the terms made since you entered into the agreement. However, the interest rates have been omitted and the fees and charges have been suspended and no longer applicable due to the current status of your account.

 

As your account is now in a recovery programme, further information relating to the current state of your account can be obtained directly from your Recovery Team or Debt Management Agency.

 

This completes our obligation to you under Section 78 of the Consumer Credit Act 1974.

 

Yours sincerely

Donna Farley

Customer Services"

 

The only thing they enclosed was a photocopy of "Barclaycard Conditions Credit Agreement regulated by the Consumer Credit Act 1974". But it looks like a standard info sheet. There's nothing with my signature.

 

Capital One seem to have done the same. Their letter reads:-

 

" Thank you for your recent letter requesting copy documents for your account.

 

You requested copies of the executed credit agreement and a statement of your account under section 78 of the Consumer Credit Act 1974.

 

Please find enclosed a copy of your credit agreement as requested. In accordance with section 78 of the Consumer Credit Act 1974 and the Consumer Credit (Cancellation Notices and Copy Documents) Regulations 1983, this is your original agreement, and if any terms have been varied, then the copy agreement will include the updated terms. In addition, your personal details, the signature box, signature and date of signature have been omitted from the copy provided as permitted under Regulation 3 of the Consumer Credit (Cancellation Notices and Copy Documents) Regulations 1983.

 

Your account is in default and the amount currently due and payable is £808.19.

 

Under section 78 we are not required to provide a copy of the default notice and statement of default. However, we can confirm that a statement of default was issued on 27th February 2009.

 

I trust this information will help you with your enquiries. If you need and further information, please contact me again."

 

They included a letter headed " Terms of your Capital One Credit Card Agreement" with the credit card agreement printed overleaf. Just a standard sheet of terms - no signature anywhere. They also included a pamphlet saying " Important information about your Capital One credit card - this is a copy of your agreement for you to keep". But it's more like an information pamphlet with terms and conditions in it - no signature.

 

I don't really understand a word of what they are saying. Are they just BS'ing me? How do you think I stand with these that have replied so far?

[cerberusalert]

Send them both 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 states127(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 states2.6 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

 

Yours,

Print name do not sign

[seejay01462]

Thanks for your usual quick answer . Should I send these letters recorded or just normal 1st class?

[cerberusalert]

Send them recorded then you have proof of postage & receipt.

[seejay01462]

It will have been 12 working days today since I sent the CCA requests out. I still haven't heard from Lloyds TSB or MBNA. I suppose I should send out something to say their time's up should I?

Also, even though Sky Card seem to have sent everything requested, should I remind them of my last monthly offer to them which they previously said wasn't enough?

[cerberusalert]

http://www.consumerforums.com/resources/templates-library/86-debt-collectors/571-failiure-to-provide-a-copy-of-the-agreement-within-the-prescribed-timescale

 

Also, even though Sky Card seem to have sent everything requested, should I remind them of my last monthly offer to them which they previously said wasn't enough?

You can always try.

[seejay01462]

Thanks for sending that link to the letter I need to send. I just want to clarify something in the letter that doesn't make sense. It reads

"Therefore this account has become unenforceable at law.

 

As you have failed to comply with a lawful request for a true, signed copy of the said agreement and other relevant documents mentioned in it, Failed to send a full statement of the account and Failed to provide any of the documentation requested. You will also be aware of the CPUTR 2008 and the OFT's guidelines on debt collection which state under the title Deceptive and/or unfair methods - Examples of unfair practices are as follows - 2."

 

When the paragraph starts "As you have failed....", there isn't anything to finish that statement off, or should that sentence be a continuation of the preceeding sentence? eg Therefore this account has become unenforceable at law as you have failed....." Or is there just something missing after "documentation requested"?

[cerberusalert]

I never wrote that template, but yes just add Therefore this account has become unenforceable at law as you have failed....

[seejay01462]

Ah, okay. I thought it might have been something like that.

Well, thanks again! I'll get all letters sent off today.

[seejay01462]

After I'd come back from posting the above letters, one to Capital One & one to Barclaycard, I received a letter from Mercers saying:-

"We are dealing with your account on behalf of Barclaycard. This account is still overdue and we have been unable to contact you.

We will be instructing a local debt colector to visit you at the above address to collect payment.

To avoid this happening telephone Mercers Debt Collections Ltd immediately on 0844 822 2003.

They wouldn't really send someone round would they?

[cerberusalert]

Send them this; http://www.consumerforums.com/resources/templates-library/86-debt-collectors/590-letter-used-when-a-dca-threatens-a-doorstep-visit-

[seejay01462]

That sounds good, although I'd have to omit the part about them contacting me as, apart from one letter from Mercers, there's been nothing else.

Do you think I should also tell them that the account is in dispute?

[mustang67]

Doubt that they would. But if they do you are quite in your rights to tell them to sod off, or you will call police and have them for tresspass on your property.

 

Do not ring them.

[seejay01462]

I have been waiting for a reply back from MBNA from my CCA request I sent them. Yesterday I received a letter from them telling me that my outstanding balance due to them has been sold to Direct Legal-Dtl and that 'all enquiries regarding this account, including accurate balance information, together with future payments, should be made directly to this company.'

No mention of my CCA request at all!

[cerberusalert]

When Direct Legal get in touch send them this; http://www.consumerforums.com/resources/templates-library/86-debt-collectors/574-letter-when-account-has-been-passed-on-whilst-agreement-request-is-in-dispute

 

Send this one to MBNA now; http://www.consumerforums.com/resources/templates-library/86-debt-collectors/571-failiure-to-provide-a-copy-of-the-agreement-within-the-prescribed-timescale