unenforceable CCA- how to get started?

[seriously fed up]

Not sure exactly sure what you mean by having to wait. If you have the CCA and its not enforceable as Texanbar points out, then there are loads of letters in the Egg section of this site that you can send them (just adapt as necessary). This is a good place to start as it sets out the original ideas - http://www.consumeractiongroup.co.uk/forum/legal-issues/188093-egg-credit-agreements-what.html Get it done soon as.

As for the telephone calls, either include this with your letter disputing the enforceability of the agreement that they have sent you, or send it separately (I would probably do the latter, as too much detail at one time confuses them )

 

Dear Sirs

Harassment by telephone

COMPLAINT UNDER THE CONSUMER CREDIT ACT 2006 COMPLAINTS PROCEDURE

 

Account Number: XXXXXXX

 

I am writing in relation to the quantity and frequency of telephone calls that I have received from your company, which I deem to be personally harassing.

 

I have verbally requested that these stop, but I am still receiving calls. (Delete if necessary)

 

I now require all further correspondence from your company to be made in writing only.

 

I am of the view that your continued harassment of me by telephone puts you in breach of Section 40 of the Administration of Justice Act 1970, and the Protection from Harassment Act 1997.

 

If you continue to harass me by telephone, you will also be in breach of the Communications Act (2003) s.127 and I will report you to OFCOM, Trading Standards and The Office of Fair Trading, meaning that you will be liable to a substantial fine.

 

Please treat this also as a formal complaint, and send me a copy of your company complaints procedure.

 

Be advised that any further telephone calls from your company will be recorded. (**Even if you don‘t yet have recording equipment!!**)

 

Yours faithfully,

 

 

[NAME HERE] (type don't sign)

 

You can get a copy of this at http://www.consumeractiongroup.co.uk/forum/letter-templates/131250-dca-creditor-harassment-telephone.html

 

DO THESE THINGS SOON!

[seriously fed up]

Just go to the MBNA posts under Consumer Forums and start a thread there. Ironically I am dealing with Egg and MBNA just now as well. They are rather different in how they will approach you (though the common feature is wanting your money) and you will need distinct advice - what might do the trick with Egg wont necessarily work with MBNA.

Good luck

[seriously fed up]

You have got to much the same place as me, which can often be unsatisfactory, but there are two things you need to bear in mind here.

 

1. You have a CCA agreeement that you consider to be unenforceable, but they almost certainly wont agree with your judgement . Even if the only use for the document(s) they have sent is to wrap chips, they will NEVER say its unenforceable.I have one lot who sent me an application form (which I had signed) but with no sign of a single prescribed term, with a letter saying that this fulfilled my request and they intended to collect the debt.
   
2. The other thing is that, assuming you are right, this makes the debt unenforceable in law, so they cant get an order from court (or its unlikely - there are horror stories you can find on here of people being taken to court with plainly unenforceable agreements, but the judge takes the view that there is a debt, so to hell with the law, to hell with the documents, just pay them!). So that route is at least much less certain for them.. But this doesnt make the debt disappear. The debt still exists, and they may consider that its wortwhile using other collection methods to get their money. Now as long as the debt is in legal dispute then according to various Codes of Practice, they should cease collection activity. But, again, you will see any number of stories on here of lenders writing to say that no matter what old tat they have sent as a result of a CCA request, they do not consider the account to be in dispute. In other words, no matter what rubbish they have sent, they think its ok, the account is not in dispute in their view, so they carry on with collection regardless, but may never go to Court to enforce it (because they know they would lose, or they consider the possibility of a precedent to be too great).
   

What to do - well you can complain to the Financial Ombudsman, the Financial Services Authority and Trading Standards. If they are REALLY at it you MIGHT get some support, but probably not. Even so, it might be worth going down those sorts of tracks, as, you might have seen that the "bad banks" in terms of complaints by customers has just come out (Citi were the worst). Its not that your individual complaint matters all that much - it just adds to the total effect.

Two other possibilities. Could you afford to offer them something token (start at 2 or 3%) as a full and final settlement. This might not seem like much, but if they cant collect from you, they are just going to sell it on and about as much as they are likley to get is 10%.

The other one, is to keep your head down, just keep telling them what is wrong with the documents they have sent, and hope they get bored/ the idea (whichever comes first).

The phone calls are more worrying. Quite often, if you are firm with them when on the phone (and generally its better not to talk to them) they do stop it , but if that doesnt work, then the letter you were recommended to suggest OFCOM and actually reporting them might be worthwhile. Or try sending the same letter to someone more senior (but get a name) and tell them that you are happy to deal with the matter by correspondence but you will not deal over the phone. Or, if its not too much hassle (and I appreciate that it can be) get a new phone number.

I appreciate that you want to force their hand. But its a bit like a gun fight - think John Wayne - its the guy who blinks first that loses. Dont write religiously to them every month - the only one who gains from this is the Post Office - just reply as and when they write. Who knows, they may eventually chuck it?

Edited September 20, 2009 by seriously fed up

[seriously fed up]

The following is a full and final letter put by Ida in Fife - you could adapt it to your circumstances. The parts in bold are, I think, particularly important - but you would need to make up your own mind on that:

Dear Eejits

Thank you for your letter dated xx/xx/xx, in which you have sent an unenforceable application rather than any properly executed agreement that may or may not exist in relaton to the above alleged account. (please see the included response).

 

I am currently paying £xx per month/week towards this account and unfortunatley due to a change of circumstancs of reduction of incoming monies I may have to reduce my payments to £1 per month in the next few months.

 

While admitting no liability for the account and the sum claimed as owing, I am willing to offer the sum of £xx as an ex-gratia payment in full and final settlement of the account.

 

This offer is made on the clear understanding that neither you nor any associate company will take any further action to attempt to enforce or pursue this debt in any way whatsoever and that any and all liability on our behalf will be fully discharged on receipt of the above stated monies.

This offer is made on the condition that of all adverse entries regarding this account are removed from our credit files with the credit reference agencies.

Payment can be made within 2 weeks of receiving your written confirmation of your agreement of this offer and the subsequent terms of the offer. Please also identify your prefered method of payment and the details of making said payment.

Please note that this is offer is available for a short period only as this is being offered by family members and if declined will be offered to another creditor. This offer will expire on (date - give them a couple of weeks) if no letter of unconditional acceptance is forthcoming and will not be repeated. This offer is not open to negotiation.

We look forward to receiving your reply.

 

Ida x

If you do do this, please let us know how you get on. I have already made similar - but less explicit - noises to them without reply.