CCA - Help my Dad our of Financial Trouble

[A05087]

My Dad has got himself into a fair bit of financial problems over the last few years and I came across this forum which I have been readnig for a few weeks now.

 

 

 

He has 4 different credit cards.

 

I made CCA requests using a letter template available on this forum. I submitted the request on the 16th April but only got 1 reply from Monument.

 

What kind of letter should I now send to the 3 non-complying companies: MBNA, 1st Credit, and A&L.

 

The Monument reply was nothing less than an application form and definitely had no prescribed terms. I

 

 

Another question I have is… What is the norm for getting this debt removed? Would I have to go to court? or Do they offer to wipe the debt out?

[Lula]

you need to do some more reading in the debt forums, before you start this process you need to have a handle on what you are undertaking, so go to the debt forums and start reading, different things can happen but generally there is nothing new, so it is to your fathers and your own advantage to get genned up. There is another letter in the template letters to send creditors if they havnt sent a compliant copy on time.

[A05087]

Thanks for your reply!

 

I've had legal companies ringing me say they will do this for a small fee. Is this advisable?

[Lula]

No, not really, there is nothing that you cannot do yourself and of course there is support and varying fields of expertise. and the best thing is that it is all free

[A05087]

Thanks for the advice Lula.

 

I'll keep reading this forum. Would it do any harm in sending the letters below to the none-replies as a starting point? :

 

I DO NOT ACKNOWLEDGE ANY DEBT

 

ACCOUNT IN DISPUTE

 

You have failed to respond to my legal request to supply me a true copy of the original Consumer Credit Agreement for the above account.

 

On 10th April 2009 I made a formal request for a true signed agreement for the alleged account under consumer credit Act 1974 s77/8. A copy of which is enclosed for your perusal and ease of reference.

 

You have failed to comply with my request, and as such the account is now in default as of 24th April 2009 (12+2 days after you sent the CCA request)

 

The document that you are obliged to send me is a true copy of the executed agreement that contained all of the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself as defined in section 61(1) of CCA 74 and subsequent Statutory Instruments. If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document. In addition a full statement of this account should have been sent to me detailing all debits and credits to the account.

 

Furthermore;

 

You are aware that the Consumer Credit Act allows 12 working days for a request for a true copy of a credit agreement to be carried out before your client enters into a default situation. This limit has expired

 

As you are no doubt aware section 77(6) states:

 

If the creditor fails to comply with Subsection (1)(a) He is not entitled , while the default continues, to enforce the agreement. 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. 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.

 

Please note you may also consider this letter as a statutory notice under section 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 from my records 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. It is not sufficient to simply state that you have a ‘legal right’; You must outline your reasoning in this matter and state upon which legislation this reasoning depends. Should you not respond within 14 days I expect that this means you agree to remove all such data.

 

Furthermore you should be aware 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 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. You have 14 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint. I therefore request a copy of your official complaints procedure which you are obliged to supply.

I would appreciate your due diligence in this matter.

I look forward to hearing from you in writing.

 

 

Yours faithfully,

[Lula]

That is exactly the letter to send, if your father is sending it he mustn't sign it, just type his name.

[A05087]

Lula.... Thats great advice. I'll put these in the post and keep reading the threads !

 

cheers your a star!

[A05087]

I got a reply from 1st Credit offering that Vanquis Bank will be prepared to discount on the balance if my Dad pays it within 7 days. No sign of the credit agreement.

 

Does this mean they don't have the agreement and are trying to offer a golden carrot?

[IdaInFife]

most likely.

 

you said in your first post:

 

Another question I have is… What is the norm for getting this debt removed? Would I have to go to court? or Do they offer to wipe the debt out?

 

If they do not have a valid agreement, the debt still exists it just becomes unenforcable through court. This gives you 2 options, you can either withold payments until such time they produce a valid one or gives you a much better chance of offering a reduced full and final settlement to get rid of it.

 

ida x

[A05087]

I got a reply from my 2nd letter to Monument 'I DO NOT ACKNOWLEDGE ANY DEBT'

They say that Section 78(1) does not require them to provide an exact copy of my Dad's agreement just a copy of the agreement which looks like it. They say that they are not required to provide a signed agreement and that the CCA does not impose them to retain or produce a copy showing my dad's signature.

I'm not sure how to respond to this? Can anyone help me out?

[madasamuppet]

Have they actually sent you anything. if so use photobucket to loads the images on here taking out identifiable details so that someone can look over them and see what they've sent.

[A05087]

Have they actually sent you anything. if so use photobucket to loads the images on here taking out identifiable details so that someone can look over them and see what they've sent.

 

Cheers... I'll photobucket when I get home.

[A05087]

I've uploaded the monument reply to photobucket, can someone please have a look? Thanks

 

monument :: Monument reply1 page2 picture by A05087 - Photobucket

 

monument :: Monument reply1 page1 picture by A05087 - Photobucket

[IdaInFife]

what did they send you as a cca?

 

can you upload it?

 

 

ida x

[A05087]

Sorry for the late reply... I've been flat out at work.

 

I've uploaded the agreement monument sent me. Can someone please look at it to see if my dad has a case? They sent this with a print out of there latest t&c's.

 

monument :: Monument credit agreement picture by A05087 - Photobucket

 

How should I reply to monument?

 

Thanks for the help!

[IdaInFife]

hi,

 

what they have sent does not comply,

 

Dear Sirs,

Account no xxxxxxxxxxxxxx

 

Re: my request under the Consumer Credit Act 1974

This account is in Dispute .

On xx/xx/2007 I wrote to xxxxxxxxx requesting that xxxxxxx supply me a true copy of the executed credit agreement for this account.

In response to this request I was supplied a mere reply card which did not comply with the requirements of the Consumer Credit Act 1974.

The document sent purporting to be a credit agreement does not contain any of the prescribed terms as required by section 60(1) Consumer Credit Act 1974. The Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) made under the authority of the “1974 Act” sets out what the prescribed terms are, I refer you to Schedule 6 Column 2 of SI 1983/1553 for the definition of what is required. Suffice to say none of the terms are present in the document

Since this document does not contain the required prescribed terms it is rendered unenforceable by s127 (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 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.

In addition should you continue to pursue me for this debt you will be in breach of the OFT guidelines, 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

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

Since the agreement is unenforceable and the default notice is non compliant, it would be in everyone’s interest to consider the matter closed and for your client to write the 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

I respectfully request a response to this letter in 14 days

 

I trust this out lines the situation

 

ida x

[A05087]

Thanks alot IdaInFife, your a star! I'll get this in the post tomorrow.

 

Cheers for the help, I'll post back with there reply.

[A05087]

Hi,

 

I got a final reply from monument... can someone please have a look at it and advise what to do next?

 

monument :: monument final reply1 picture by A05087 - Photobucket

 

monument :: monument final reply2 picture by A05087 - Photobucket

 

Thanks!

[IdaInFife]

basically they are saying fook off.

 

now either you can wait to see if they will issue court papers and defend it on the basis there is no agreement and hop ethey don't have one or you can go down the cpr route to get the courts through disclosure to ensure they do not have one:

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/173201-why-you-shouldnt-use.html

 

and smt who used this method:

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/165349-smt37-morgan-stanley-goldfish.html

 

Ida x