An all in one post re debt and collection agencies etc.

[Deb T]

I'll be as brief as I can, I have read thousands of posts but have gotten a little confused along the way.

 

-----------------

 

The story so far

 

8 credit cards - all in default 4 - 5 years ago.

 

Wrote to them all explaining the circumstances had changed and I would be making reduced payments to them all at the same amount each month.

Each letter was sent recorded delivery, on the same day.

 

Some wrote back accepting, others continued to add interest charges to accounts and because I was paying the amount offered to them the account took longer to go in to default and with that I guess there were other associated charges.

 

Since making these payments and without missing any of them some of the collection agents have changed hands, some of the original credit card companies have either passed the debt on or sold it off but I have no real way of telling. Some have sent on assignment letters.

 

My credit file is obviusly smashed and my financial position has deteriorated futher due to ill health on a long term basis.

 

I have had this noose round my neck for 5 years, the occasional letters asking for increased payments, the various agencies changing hands, the varying threats and phone calls etc but throughout this I have not increased my payments to any of them BUT have maintained them without a payment missed.

 

I am a little worse for it now, my concerns are these.

 

1 - I have been paying them, the credit files show the defaults but if I stop paying them and they move to court action I would then no doubt be given a CCJ which would then give another 6 years on the file so almost 12 years of a poor credit record. I guess this is how it works? Is it?

 

2 - Some of the original default amounts have actually increased since other agencies have taken them on ut none of them have ever informed of of these so called interest charges. I checking back I found a letter from one debt agency stating they were freezing interest payments for 12 months just as long as payments were received on time...no further letters from them other than the one asking to contact them with a view to paying more has been received and yet the outstanding amount owed has balloned by almost 4k to them. If they have legally purchased the debt are they allowed to charge interest on the entire amount owed or on just what they purchased it for? and surely if they apply interest they have to inform you/send out regular statements?

 

3 - I have nothing in regards to original credit agreements, I read somewhere that applying for the copy of the original credit agreement doesn't actually establish anything, the agency doing the collecting may not be able to produce your signature but they can still legally pursue the debt? Or that sending off the original CCA letter (whereever that is to be found) might not be the thing to do?

 

4 - I have an egg credit card default, I signed up for egg in 2000, I read somewhere that there may be an issue with them enforcing the credit agreement? Is this correct?

 

5 - Same as above except with MBNA who's credit agreements actually date back to the mid-nineties.

 

When I originally wrote to the lenders stating that I was unable to pay any further and to void my accounts some of them wrote back saying they wouldn't accept the 'token' payment and continued for a few months after adding charges and interest. Took some of them 8 months to issue a default and the end balances had vastly increased.

 

Sorry if I'm going on, I have much to go through.

[paulwlton]

I suggest you forward CCA requests.

 

You have been wrongly advised, requesting a copy of your agreement will determine whether it is enforceable.

 

PW

[cerberusalert]

First send them a CCA request to see if they are entitled to collect this debt & if it's enforcable. If they fail to provide it within 12+2 days or the CCA is unenforcable you can legally withold any payment until they do. Send it recorded delivery enclosing a £1 postal order. When you get a reply, scan it & remove any identifying details and post it back here where we can have a look at it. We'll advise you from there;

 

Dear Sir/Madam

 

Re:- Account No: XXXXXXXX/Your Reference Number: XXXXXXX

 

This letter is a formal request pursuant to s.77/78 of the Consumer Credit Act 1974. I require you to provide me with a true copy of the credit agreement relating to the above account, together with any other documentation the Act requires you to provide.

 

I expect you to comply fully and properly with this request, within the statutory time limit. You are reminded that should you fail to comply with my request, the provisions of s.77 will apply.

 

If it is your view that you are not the creditor, s.175 of the CCA 1974 applies in the case of a simple assignment, and places a duty upon you to pass this request to the creditor. In the case of an absolute assignment, you are a creditor as defined by s.189. If you contend that you purchased the rights but not the duties of any agreement, you are reminded that s.189 of the Act is clear that an assignment is of both rights and duties.

 

Your attention is drawn to ss.5(2), 3(b),6 and 7 of the Consumer Protection from Unfair Trading Regulations 2008 (CPUTR).

 

I enclose a postal order in the sum of £1.00, which is the statutory fee. Note that these funds are not to be used for any other purpose.

 

If you are unable to comply fully and properly with this request, you should confirm this in writing at the earliest opportunity, and certainly within the statutory time limit for compliance, and return the fee.

 

You should also note that I will only discuss this matter in writing and should it be your intention to arrange a “doorstep call”, please be advised that under OFT rules, you can only visit me at my home if you make an appointment and I have no wish to make an appointment with you or any of your associates.

 

There is only an implied license under English Common Law for people to be able to visit me on my property without express permission; the postman and people asking for directions etc (Armstrong v. Sheppard and Short Ltd [1959] 2 Q.B. per Lord Evershed M.R.). Therefore take note that I revoke license under Common Law for you, or your representatives to visit me at my property and if you do so, then you will be liable to damages for a tort of trespass and action will be taken, including but not limited to, police attendance. (Optional addition)

 

I look forward to hearing from you.

 

Yours faithfully **Edit to suit**

Print name do not sign

[Deb T]

Do I send it crossed? Who do I send it to? the DCA or the original lender?

[cerberusalert]

Yes you can send it crossed to whoever it is you are paying now. It's their responsibility to pass it on to the original creditor if they do not own the debt.

 

By what you have said there will be a strong possibilty that some of these CCAs will be unenforceable for various reasons.

[kurvaface]

CCA the DCAs. Chances are they will not be able to produce the goods.

[Deb T]

request.

 

made on 14th July, received on 16th July (tracked by Royal mail)

 

Nothing has been received, am I right to assume that they have commited an offence and to then send off a letter of dispute?

(where is the letter please)

 

as in they have 12 days + 2 from service...which I don't quite grasp how it works. Does it take into account non working days etc?

 

Once the dispute letter is sent what happens?

[42man]

The offence bit was scraped a while ago...they just remain in default of your request....send this next letter recorded - http://www.consumerforums.com/resources/templates-library/86-debt-collectors/571-failiure-to-provide-a-copy-of-the-agreement-within-the-prescribed-timescale

[42man]

And it is 12+2 working days from when you sent the request....

[Deb T]

Thank you for that. I guess the next question is it the norm not to hear anything back from them within the prescribed time? I sent three, nothing heard from any of them yet?

 

By my reckoning they should have gotten the documentation to me by today 3rd August.

[vint1954]

Thank you for that. I guess the next question is it the norm not to hear anything back from them within the prescribed time? I sent three, nothing heard from any of them yet?

 

By my reckoning they should have gotten the documentation to me by today 3rd August.

Perfectly normal

[Deb T]

and I guess then when/if they manage to supply what was requested they then attempt to start coming at you for lots more than the original plan and all other ridiculous charges they may think to add on for whatever reason.

[vint1954]

and I guess then when/if they manage to supply what was requested they then attempt to start coming at you for lots more than the original plan and all other ridiculous charges they may think to add on for whatever reason.

It depends on the bank and if you are still paying them.

 

Their time is up today, so dispute letter tomorrow.

[Deb T]

I have been paying them for five years, not missed a payment.

 

However, I guess while it is in 'dispute' it is not the correct procedure to continue paying them, 2 of these three have faulty default notices from the original creditor anyway but I don't think it's time to play that particular card, next is a Subject Access request and go from there.

 

Is it worth including in the 'dispute letter' that whilst the account remains in dispute I won't be making any further payments but I will keep the money I am paying them to one side pending a satisfactory resolution to the dispute/subject access? or is that too convuluted?

[vint1954]

I have been paying them for five years, not missed a payment.

 

However, I guess while it is in 'dispute' it is not the correct procedure to continue paying them, 2 of these three have faulty default notices from the original creditor anyway but I don't think it's time to play that particular card, next is a Subject Access request and go from there.

 

Is it worth including in the 'dispute letter' that whilst the account remains in dispute I won't be making any further payments but I will keep the money I am paying them to one side pending a satisfactory resolution to the dispute/subject access? or is that too convuluted?

 

There you go Deb t

Account no xxxxxxxxxxxxxxxxx

 

ACCOUNT IN DISPUTE

 

Re: my request under the Consumer Credit Act 1974

 

Further to my request under the above act, your attention is drawn to the fact that this account is subject to a serious dispute. On xxxxxxxxxxx, by recorded delivery, I requested that you supply me a copy of the executed credit agreement covering this account pursuant to the Consumer Credit Act 1974 section 78, a copy of this request is enclosed. To date you 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 you, 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 ( 12 working days + 2 ) 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 has been supplied on request, you have not complied 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 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 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 you become compliant with my request. As you 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 you comply with my request from xxxxxxxxxxxxx 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 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

 

What I Require.

 

I require that you send me a true signed 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 faithfully

Edited August 14, 2009 by vint1954

[Deb T]

Blimey, that's a long letter. I've saved that....Is that really what is needed to be sent? It takes up 3 pages of A4....

[vint1954]

Blimey, that's a long letter. I've saved that....Is that really what is needed to be sent? It takes up 3 pages of A4....

Yes, that is the recomended format. I have an even longer one if you like?:D:D

 

You mention that you have had default notices. Are you able to post them here. Have they terminated any of these agreements.

 

Vint

[Deb T]

If you look back on my posts you'll see some of them mentioned...

[Deb T]

Sorry to ask again, I've been sort of busy trying to put things in order.

 

In any cae, three CCA's sent, sent at the start of August, no reply from any of these three since ..As in they haven't sent one one in the 12+2 days that they're supposed to of, it's now almost 30 days since sent.

 

Is the above letter by Vint1964 the one I should print off and send and what does it do formally put the account in dispute and it's until they provide the cca's I am within my rights to pay nothing?

 

and is there another time period after the 12+ 2 and them not sending what was requested...that a further offence by them is commited? or does a dispute letter need to be sent first?

[Deb T]

Anyone?

[vint1954]

Sorry to ask again, I've been sort of busy trying to put things in order.

 

In any cae, three CCA's sent, sent at the start of August, no reply from any of these three since ..As in they haven't sent one one in the 12+2 days that they're supposed to of, it's now almost 30 days since sent.

 

Is the above letter by Vint1964 the one I should print off and send and what does it do formally put the account in dispute and it's until they provide the cca's I am within my rights to pay nothing?

 

and is there another time period after the 12+ 2 and them not sending what was requested...that a further offence by them is commited? or does a dispute letter need to be sent first?

12 + 2 days is all the time that they get now, although this is a tignt timescale.

 

Send the letter above, inserting your own dates where required. This letter puts the account in dispute and must be sent as a follow up.

 

As far as payments are concerned, that is your decision to make. While the account is in dispute, they are not allowed to ask for payment and you are not obliged to make payments, however the choice must be yours.

 

There is no further timescale involved. Once the account is in dispute, it remains there until such time as they supply an agreement.

[Deb T]

Well two of the debts have faulty default notices, one has an incorrect assignment notice..and one has changed OC's three times since the intial agreement in 1998...and all are collected by DCA's that have applied charges or at least increased the original debt from date of default...and I've paid them all for five years and yet owe much more than the initial debts...paying them whilst they cannot prove what I owe them would be folly I think.

 

I'll certainly print off that letter now and send them on...thanks for coming back to me, mucho appreciated.

[Deb T]

Have a debt (well ok I have more than a few) but one debt hasn't had anything paid on it for 5 yrs and 2 months when out of the bleu I had a letter/statement from them. I've ignored it for now...

 

However, what if they file for court and a judgement is entered against me in my absence ..I can get it set aside if I can prove I don't live where they've served the court papers to? If they still receive no payment from me for the next ten months is the debt then stat barred?

 

Or as an alternative, if they start sending threatening letters in the hope I'll respond can I then go down the route of CCA and Subject access? This I feel will inevitably delay matters and roll me past the 6 years?

[debt4get]

chances are if they have not gone to court they aint gonna do so now

if you do not acknowledge nor make payment for 6 years then it will be statute barred if you do get letters go down the cca route by the time if they manage to get anything 6 years will have gone happily sailing by and so will they

[Deb T]

Sent a cca, no reply for a while but eventually two have sent a CCA through and both predictably have tried the 'pay up in full now' route...

 

I can't see how they've come to the decision that by requesting a cca I have all of a sudden become wealthy and able to pay them and neither have I been requested to fill in a financial statement or asked if my circumstances have changed...I can only assume they don't like being asked questions or having what they consider as their authority questioned...but in any case.

 

Because they didn't initially send the CCA i then followed it up with a dispute letter....sometime later a cca arrived and the rest I've explained above.

 

I have already on one of them sent in a subject access request and the other I am about to...but am I to assume that as they have sent the cca that the account is no longer in dispute and that the subject access is merely my requesting info (I don't think the CCA's sent are enforceable) and does not keep the account in dispute?

 

If the above is the case then resuming payments at the previous level when I think the cca is unenforceable is folly? or should I continue until such time as I can actually establish beyond reasonable doubt that the cca in unenforceable etc?