Account in dispute - query??

[RoadToRecovery]

Does an account in dispute letter have to have been sent / received before a credit card account can be considered in dispute?

 

The timescale for receiving a CCA has long since passed and I had not sent an a/c in dispute letter to MBNA. They have now passed the matter over to RMA yet have still not sent any correspondence regarding the original CCA request.

[AndyOrch]

Hi RtR

 

Try this

 

Formal Complaint

Letter Before Action

 

Dear Sir/Madam,

 

With reference to my previous letters,(If Any) I wish to draw you attention to your company's lack of compliance with my legal request.

 

On **DATE** 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 purusal and ease of reference.

You have failed to comply with request, and as such the account entered default on **DATE**.

 

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.

 

As you may not be aware , failure to comply with this request within 12 working days renders the alleged debt UNENFORCEABLE in law.

 

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 compliant credit agreement is a very clear dispute and as such the following applies.

 

* may not demand any payment on the account, nor am I obliged to offer any payment to you.

* may not add further interest or any charges to the account.

* may not pass the account to a third party.

* may not register any information in respect of the account with any credit reference agency.

* may not issue a default notice related to the account.

 

Therefore this account has become unenforceable at law.

 

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

 

After taking advice, I am of the opinion that your continued pursuit is in violation of the Administration of Justice Act 1970 section 40, Protection from harrassment Act 1997 section 3 as well as breaching a number of the OFT Collection Guidelines.

 

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 hope that you will enter into a sincere dialogue with me about this matter and I am writing this letter to you on the assumption that you would prefer to do this than merely respond with standard letters and leaflets.

 

I would appreciate your due diligence in this matter.

 

I await your rapid response.

 

Yours Faithfully

 

 

Edit to suit / dont sign print name/ Recorded Del

 

 

Regards

 

Andy

[RoadToRecovery]

Thanks andy. I have been reading through the forums trying to take in as much as possible. I never saw this letter in the templates library but it looks good to me

[rev.ian]

And this to RMA

RMA

Old Docks House

90 Watery Lane

Preston

PR2 1AU

ACCOUNT IN DISPUTE

 

Date:

 

Dear Sir or Madam,

 

Account number: XXXX XXXX XXXX XXXX

 

I am in receipt of your letter dated XXXXX

 

This account is in dispute with MBNA and has been since DATE MBNA SHOULD OF SUPPLIED CCA.

Not only is this a breach of the Consumer Protection From Unfair Trading Regulations 2008 in line with the Office Of Fair Trading's debt collection guidelines, but also in breach of the Consumer Credit Act 1974 and Data Protection Act 1998

 

As MBNA are now in default of my Consumer Credit Act agreement request and have also breached *s10 Data Protection Act request , I consider this account to be in SERIOUS DISPUTE.

 

As you are aware while my Consumer Credit Act request remains in default enforcement action is NOT permitted, under s127 this constitutes a complete defence at law.

 

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

 

Now I would respectfully suggest that this account is returned to the MBNA for resolution of these defaults and breaches, as RMA cannot lawfully pursue any enforcement activities.

 

If RMA chooses to ignore my dispute and attempt enforcement, I will initiate legal action and file reports with the appropriate authorities, including, but not limited to, Trading Standards, Office of Fair Trading, Information Commissioners Office, Financial Ombudsman Service and possible court action.

 

After taking advice, I am of the opinion that any continued pursuit is in violation of the Consumer Protection From Unfair Trading Regulations 2008 in line with the Office Of Fair Trading’s Collection Guidelines

 

I hope that this will not be necessary and an acceptable solution can be accomplished.

 

I would appreciate your due diligence in this matter.

I look forward to hearing from you in writing.

 

Yours faithfully

[nicklea]

The lack of a compliant credit agreement is a very clear dispute and as such the following applies.

 

* may not demand any payment on the account, nor am I obliged to offer any payment to you.

* may not add further interest or any charges to the account.

* may not pass the account to a third party.

* may not register any information in respect of the account with any credit reference agency.

* may not issue a default notice related to the account.

 

Therefore this account has become unenforceable at law.

 

Please be very careful about this and carefully consider your present situation before witholding any payments.

 

If a creditor does not reply to a s77/s78 request it does NOT mean that there is no agreement in existence. It simply means that they may not take you to court until they have replied to your request.

 

If no agreement exists then what is written in the quote above is correct. However, just because they have not replied to your s77/s78 request it DOES NOT mean that there is no agreement.

 

If you want to see a copy of the signed agreement I suggest that you either send them a sar, a s10 DPA notice followd by an application to the court or follow this thread:-

 

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

 

 

If you stop paying the creditor they WILL do all of the above.

[RoadToRecovery]

Thanks for the replies.

 

For the record I haven't stopped paying any of my creditors, although I cannot meet the minimum monthly payments I have been paying an amount as per my income & expenditure report previously sent.

[bazaar]

You can treat all your creditors the same, IE CCA or SAR requests. If they do not comply, the next step would be CPR to force them to produce a valid document.

Some here will say pay a minimum until such time they admit they dont have an agreement ( Very unlikely).

Or you stop payments until your dispute is resolved ( Again unlikely, they will trash your credit files etc.).

My issue with continued payments is that the account, if it exists, will be running and you'll never reach a point in time that it is Statute Barred.

At the end of the day, you are here because you dispute something about your account(s). Probably because they have started threatening you. Youre obviously a cant pay person, so a court is not going to make you pay more than you can afford ( If you lost a case). The more paperwork you can show to a Judge that youve tried to resolve this issue prior to court by requesting a valid agreement will go a long way for you. They on the other hand will try everything to scare you into paying up before court, thats how they work.

All youve got to ask yourself is whether you want to put up with the threats and phone calls, or you want to take away the initiative and give em a kick up the ar*e.

Do you really think that if they had your signature on an agreement they wouldnt just show you it and be done with all the BS?

[RoadToRecovery]

Thanks for the replies. I need to think clearly about the course of action to take.

 

Out of interest where are the staff who call on behalf of RMA based, is it an overseas call centre? All of them have had a very strong Chinese accent.

[AndyOrch]

It serves no useful purpose whatsoever to send any letters to OC's/DCA's once a CCA request has been made! In fact, if anything it will have a detrimental effect on your case! I have been making this point till I'm blue in the face and unfortunately some people on here are giving contrary advice, when they know nothing about the litigation process! Nobody can afford to take a narrow view of a situation once pmt problems start, you have to look ahead from a well rounded perspective. Hence why I say start preparing for a Court claim to be issued from day one!

 

Consider the following two scenarios:

 

A CCA request is sent to an OC. They don't comply either with the 12 w/d . Having been told by people on here to pester the life out of the OC/DCA until you get an agreement or confirmation that one no longer exists, you start firing off letters. Within 2 months (for example) and after various letters you've sent, they provide you with an agreement. Lets for arguments sake assume it's enforceable, they then issue a claim and get Judgment, because aside from a few penalty charges totalling £300, you don't have a case against them, The fact that they didn't provide the agreement for 3mnths, is neither here nor there. So it's all over, they win and you end up paying them forever and a day and if you're really lucky they'll put a Charging Order on your

property for good measure!

 

Then there's the second scenario that for some bizarre reason posters dont understand:-

 

The CCA request is sent to the OC and the deadlines come and go and they don't respond, in fact by all appearances the request has been completely ignored, which is great news, it's time to start monitoring everything the OC does! They send all manner of threatening letters and phone calls are being received 6 days a week, on average 8 times a day, all logged of course! You answer the calls, but refuse to go through security and tell them each time they ring to put everything in writing. You don't mention the CCA request on the phone, in fact you don't tell them anything about laws they've broken, you simply carry on making a record of all calls and in particular any abuse you're subjected to. The calls continue for 6mnths and then they stop suddenly. They sell the debt on to one of the lovely DCA's, having still not provided the agreement, but we're not remotely concerned about that! They start bombading you with letters and calls, both of which are much more threatening. You continue doing what you did with the OC. After 5mnths, they issue a Court claim. In your Defence you can confidently state that you requested an agreement 11mnths ago, (which you can prove because you have the g/d slip and it was signed for on ???) which hasn't been furnished. So, the OC has unlawfully sold the alleged debt on whilst being in default of the request and that's for starters..... You have been unlawfully harassed by letter and phone by both the OC/DCA in the absence of an agreement. The DCA has processed your personal info unlawfully under the Data Protection Act 1998, as they had no legal right to do so because the OC had no legal right to sell the debt. There are other offences under the Data Protection Act 98 also, but I haven't got time to list them all! lol You haven't been provided with a DoA, so they haven't proved a right to issue a claim. The NoA wasn't sent to you, so they can't enforce the alleged debt. When they do provide it, (as part of the proceedings) it's incorrect, so therefore unlawful on that basis also. It is a breach of confidence that your personal info has been provided to the DCA, which you can claim damages for. It is also an invasion of your privacy, which is covered by the Human Rights Act (HRA). They eventually get round to providing the agreement and it is enforceable, but it doesn't matter, they can't get round the DoA or NoA, so they're screwed-oh dear! So as well as having a watertight defence, you have a c/c for harassment, breaches under the Data Protection Act, HRA and breach of confidence for which you will be seeking substantial damages of course!

 

If it turns out to be case that the agreement isn't enforceable or no longer exists, then both the OC and DCA are in even bigger trouble, as neither of them have any legal right to process your personal info and you have been harassed for a debt that doesn't even exist! I think that damages claim has just increased even more.....! Oh and not forgetting, there is the small matter of the "agreement" not being produced in 11mnths or at all! Which is going to look worse to a Judge, an agreement not produced in 3mnths or 11mnths? And, by the same token what looks worse, an unenforceable agreement (UA) produced after nearly a year, accompanied by harassment and all the other unlawful acts, or a UA produced after three mnths, at which point a claim is issued, which deprives you of the opportunity of building a case against the OC?

 

So it all comes back to the issue of what to do when a creditor doesn't comply with a CCA request and the answer is simple.... do ABSOLUTELY NOTHING!!!! Ignore the advice of anyone who tells you otherwise, they don't know what they're talking about!

 

 

Sorry its a bit long but hope this explains my approach on how to deal with the process

 

 

Regards

 

Andy

[RoadToRecovery]

Blimey, spelled out like that it sounds like a fairly convincing case for doing what you suggest....nothing!!

 

I have read hundreds of threads trying to bottom out the best course of action and left with a blurred vision of what to do next.

 

Thanks for this latest piece of advice, which I must confess to have not read on any of the threads.

[trooper68]

Thank you andyorch

 

That has hit the nail on the head, this is what happen to me. They sold the account on to a DCA, even though I had an agreement with the court and the finance company... So they claimed to have sent a NoA, which i've not recieved, checking via SAR the DCA have everthing, apart from the court papers.... witch means they have processed my info illeagly?

 

Trooper68

[nana buzzz]

Hi sorry to highjack the thread..but I have a question regarding my own situation.

So @ andyorch does that include sending a subject access request to the OC??? Or do I as you say, do nothing.

http://www.consumeractiongroup.co.uk/forum/legal-issues/202722-hfc-bank-restons-newbie-5.html

[AndyOrch]

Hi sorry to highjack the thread..but I have a question regarding my own situation.

So @ andyorch does that include sending a subject access request to the OC??? Or do I as you say, do nothing.

http://www.consumeractiongroup.co.uk/forum/legal-issues/202722-hfc-bank-restons-newbie-5.html

 

Would depend what one wants to achieve by the F.S.A.R if there are penalty charges involved in your case,you need your statements.I wrote the above really in relation to requesting a copy of your CCA 1974 which one tends to request seperatly with the statuary £1.00 request.The OC becomes in default if they decline (12+2)days were as the S.A.R is 40days and as very little relevence if they respond or not.

 

I trust the above helps.

 

Regards

 

Andy

[nana buzzz]

Thank you Andy yes it does help a lot

[RoadToRecovery]

Andy, thanks again for this reply.

 

One question, and this regards an account in dispute dispute.

 

As you may be aware Barclaycard (in particular) suggest the account is not in dispute as they have sent a copy of current terms & conditions. They use a combination of various parts of the Cumsumer credit act to demonstrate they have fulfilled the original CCA request. They claim a precedent has been set in the High Court yet make no referecen to the case.

 

As you seem clued up on these matters, how would a judge view this claim by a CC company when a debtor claims the debt was sold unlawfully whilst the account is in dispute? The CC company have claimed it was not in dispute and they have satisfied the CCA request?

 

Your input would be greatly appreciated.

[katedog]

Andy, thanks again for this reply.

 

One question, and this regards an account in dispute dispute.

 

As you may be aware Barclaycard (in particular) suggest the account is not in dispute as they have sent a copy of current terms & conditions. They use a combination of various parts of the Cumsumer credit act to demonstrate they have fulfilled the original CCA request. They claim a precedent has been set in the High Court yet make no referecen to the case.

 

As you seem clued up on these matters, how would a judge view this claim by a CC company when a debtor claims the debt was sold unlawfully whilst the account is in dispute? The CC company have claimed it was not in dispute and they have satisfied the CCA request?

 

Your input would be greatly appreciated.

 

And if they do send you the above rubbish are you not then better sending the CPR 13.61 request as so many suggest on here? I dont know I'm only asking. These people seem to bend the CCA to their own ends but I cant see them messing with the court system, can you?

[bazaar]

In their tiny minds they have complied with the CCA, its all part of the game. You now have a choice dont you? Either wait until they try to go to court, or you apply the CPR 13 action.

Andyyorch says DO NOTHING, in which case you'd apply the CPR After they initiate proceedings.

IMHO its now your choice, whether you can stand the wait only you can answer

[RoadToRecovery]

Thanks for the replies.

 

I can certainly stand the wait. Having dealt with thier calls for only a short time it is remarkable how being talked to like you are the **** of the earth strengthens ones resolve to not roll over.

 

My point was more specifically regarding the legal issue of an account being in dispute. I am thinking worst case scenario and at the eleventh hour they produce an enforceable agreement. The question then concerns all the charges and interest that would have accrued in the meantime. Could a judge rule that the account was NEVER is dispute since they sent the current T&C's. Therefore all the interest and charges applied to the account for nn months would be due??

[katedog]

This is something I've been asking around the forums and the answer I've been getting is "no CCA is a clear dispute" but no one will come down and say yes it says so in section 27 calsue 5 para 2 of what ever act, which is what I think we both want to hear.

 

So I guess it would be for a judge to decide or the OFT or FOS.

 

Unless an enlightened one can let us know!

 

And remember they cant add interest/charges whilst account is in dispute.

[AndyOrch]

Andy, thanks again for this reply.

 

One question, and this regards an account in dispute dispute.

 

As you may be aware Barclaycard (in particular) suggest the account is not in dispute as they have sent a copy of current terms & conditions. They use a combination of various parts of the Cumsumer credit act to demonstrate they have fulfilled the original CCA request. They claim a precedent has been set in the High Court yet make no referecen to the case.

 

As you seem clued up on these matters, how would a judge view this claim by a CC company when a debtor claims the debt was sold unlawfully whilst the account is in dispute? The CC company have claimed it was not in dispute and they have satisfied the CCA request?

 

Your input would be greatly appreciated.

 

Hi RtR

 

Did you recieve a response to your Account in Dispute? If so post it up and a copy of their so called CCA that they maintain as satisfied their legal obligations.(less your personal details of course).

 

Regards

 

Andy

[RoadToRecovery]

Andy, thanks for the reply.

 

The following is the current terms & conditions and associated letter explaining that the current terms and conditions are a true copy of an original agreement. They openly admit what they send is no more than current T&C's but imply this satisfies a CCA request?

 

 

 

 

 

 

 

The letter explaining how the above T&C's represent a true copy;

 

 

 

[AndyOrch]

Hi RtR

 

Ok so basically they have not got it under their smoke screen of reasons for not providing;)

 

So they are in default and the account remains in dispute.So now the clock starts ticking and a case of who blinks first.Dont concern yourself re interest etc they know the rules they have confirmed them in their response.I would remind you of my earlier lengthy post and suggest you take up fishing:D

 

Regards

 

Andy

[nicklea]

So, the OC has unlawfully sold the alleged debt on whilst being in default of the request and that's for starters

 

Hi Andyorch,

 

I totally agree with your approach, it's one that I've used in the past as well.

 

However, there is one tiny issue I would take with what you said in the bit I've pulled out above.

 

It is not unlawful to sell a debt while in default of a s77/s78 request. Lots of people say that but it simply isn't the case.

 

However, the purchaser of the debt would be a very unwise person in this situation.

[RoadToRecovery]

Thanks guys for your replies. As you can tell my legal knowledge is limited but I believe in Karma and hope you help is repaid with interest

[AndyOrch]

So we are in agreement Nicklea.The fact remains thats the law and providing the OP retains a very detailed papertrail of events leading to any litigation then as you state the new purchaser if any would be very foolish to instigate said action.I personally have delt with the above scenario numerious times and the debt has been passed from DCA to DCA for numerious years.Incidently once the account as been assigned (which Barclays invariably do) interest as been frozen.

So we are back to what to do in the above event NOTHING.

 

Regards

 

Andy