LLoyds up the creek?

[greatburdon]

Hi,

 

Received the letter posted below in response to my CCA requests. I replied with a letter along the lines thank you now stop all collection and reporting of my data.

 

http://i597.photobucket.com/albums/tt51/greatburdon/Natwest.jpg

 

The collection activity has increased! and I assume as I have just had a credit agency threat letter that they will still report 'missed payments'.

 

They obviously choose to ignore my correspondence is there a way to be pro-active i.e. CPR 31.16 ish route. They have admitted there is no agreement so can I invite a court to stop the numpties?

 

They are driving me mad!

 

greatburdon

Edited June 26, 2009 by greatburdon

[zazen.warrior]

 

LETTER BEFORE ACTION

27 May 2009

Dear

Alleged Account

 

I am in receipt of your latest execrable letter regarding the above account and have, needless to say, reported your continuing misconduct to the OFT.

 

I now respectfully request that you provide me by return a copy of the alleged Credit Agreement which bears my signature. I require this as I have reason to believe that there may be discrepancies within the agreement which may leave it improperly executed.

 

Obviously if the agreement is improperly executed I would be entitled to ask the court to consider the agreement and make a declaration of the rights of parties to the agreement.

 

I must stress this request is NOT made pursuant to section 78 Consumer Credit Act 1974 but is made pursuant to the Civil Procedures Rules ( Pre action protocols and Part 31.16) and therefore an unsigned copy will not suffice, only a copy of the original contract in its unaltered form will suffice in these circumstances

 

Please confirm if you still hold a copy of my signed agreement and that you will provide me with this document.

 

I do not view this as an unreasonable request given that by supplying the document which I have asked for it will allow me to assess if my case has merit and will help to resolve matters possibly without the need to involve the court and will undoubtedly save costs on both sides

 

I look forward to your reply and would ask for a response by 4pm on

 

Kind Regards

The two I sent this to ran away.

[greatburdon]

Thank you Zazen. I suppose if they do not respond positvely i.e. still continue collection/ data processing I would go down this route and into court?

 

greatburdon

Edited June 26, 2009 by greatburdon

[zazen.warrior]

You won't need to:)

[greatburdon]

LOL -- You are hired! You can be my barrister, noy paying more than £600 an hour though.

 

GB

[ScarletPimpernel]

 

They are driving me mad!

 

 

 

Which is precisely their intention. They know that ultimately they can't force you to pay, so they hope you'll get so sick of them you'll pay just to make them go away.

 

However, when someone behaves in a way that creates an intimidating, hostile, degrading, humiliating or offensive environment for another, that's harassment - which is unlawful.

 

 

Dear Clowns

 

I refer to your letter dated (date), in which you acknowledge that you are unable to comply with the request I made under s.78(1) of the Consumer Credit Act 1974.

 

Despite this, you have continued to conduct collection activity in a way I find to be hostile and intimidating in a way that amounts to harassment. This letter is a formal complaint of harassment, which you should deal with under your complaints procedure, a copy of which should be sent to me without delay.

 

Yours etc.

[greatburdon]

Just received the following:-

 

http://i597.photobucket.com/albums/tt51/greatburdon/NatWest-1.jpg

 

I must be a bit thick! I am expected to meet my obligations on an agreement that does not exist.

 

They have registered a default (I do not recall a notice) and the account is terminated (when??)

 

I have until 13 Thursday 2009 to come to an agreement?? what sort of date is that? lol

 

Not sure how to respond now, any help please.The stronger the better.

 

greatburdon

[UnitedFront]

Just out of interest did you send them the CPR letter posted above?

[greatburdon]

Hi UnitedFront the letter of mine which they refer to is:

 

Nat West Bank Plc

Cards Customer Services

PO Box 5636

Southend On Sea

SS99 1WJ

Account No.

18th June 2009

Dear Miss Bennett,

 

I write with reference to the above account number, and your letter of 12th June 2009.

 

Your letter of June 12th 2009 confirms that you do not hold, and are unable at this time to locate an executed Consumer Credit Card Agreement. Therefore this account has become unenforceable at law as you have failed to provide a copy of an executed and enforceable agreement. NatWest therefore cannot lawfully pursue any enforcement activities. The lack of a properly executed Consumer Credit Card Agreement is clearly a reason for the account to be in serious dispute. *1

 

Any subsequent legal action you pursue will be averred as both unlawful and vexatious. Furthermore I shall counterclaim that any such action constitutes unlawful harassment.

 

The issuing of a Default Notice when no Consumer Credit Card Agreement exists is also a serious breach of the Consumer Credit Act 1974. How can there be a breach of an agreement when no such agreement exists?

 

As you do not have an executed Consumer Credit Card Agreement the reporting of any data to any Credit Referencing Agency is a breach of s10 Data Protection Act 1998, as you cannot provide any proof that I have consented to my data being processed. The consequence of such a breach is demonstrated by a recent legal case. *5

 

Schedule 2 Data Protection Act 1998:

3.1.1 Conditions for Processing

At least one of the following conditions must be met in the case of all processing of personal data (except where a relevant exemption applies):-

The data subject has given his consent to the processing (see paragraph 3.1.5 below).

 

The processing is necessary –

(a) for the performance of a contract to which the data subject is a party; or

(b) for the taking of steps at the request of the data subject with a view to entering into a contract.

 

Please note you may also consider this letter as a statutory notice under s 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 those held 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.

 

The reason for this demand is that you have not proven that I have given my permission to you to process my data. It is not sufficient to simply state that you have a ‘legal right` as without my written permission you have no right to do this. I refer you to *6, for the consequences of processing data illegally to the detriment of a persons credit rating. You must outline your reasoning in this matter and state upon which legislation this reasoning depends. Should you not respond within 14 days I will accept this as your agreement to remove all such data by yourselves and those held by any credit referencing agencies.

 

Furthermore you should be aware that a creditor is not permitted to take any action against an account whilst it remains in dispute. Please inform your recoveries department of this fact.

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 e.g. Trading Standards, Information Commissioners Office, OFT, FSA, Banking Ombudsman and my M.P.

 

If you are not sure of anything contained within this letter I would suggest you take advice from your local Citizens Advice Bureau or trading Standards office.

 

 

I look forward to your prompt reply.

 

 

Yours faithfully

 

*1

CCA 1974

s.61

"(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”

 

S.127

Enforcement orders in cases of infringement

(1) In the case of an application for an enforcement order under -

(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)."

 

*2

Wilson & Anor v Hurstanger Ltd [2007] EWCA Civ 299 (04 April 2007)

 

33. In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under section 61 that all the terms should be in a single document, and backed up by the provisions of section 127 (3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them.

 

*3

Dimond v. Lovell [2000] UKHL 27; [2000] 2 All ER 897; [2000] 2 WLR 1121 (11th May, 2000)

 

Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay.

 

*4

The Vice Chancellor Lord Justice Chadwick in the Supreme Court of Judicature Court of Appeal (Civil Division) on Appeal from Epsom County Court (HHJ Hull)

 

Wilson v First CountyTrust [2000] EWCA Civ 278 (3 November 2000)

 

26. The question arises from the terms of s.61 (1), 65 and 127 to which I have referred in paragraphs 9 and 10. It is apparent from the terms of s.61 (1) that there are several grounds on which a regulated agreement may be "not properly executed" so as to require enforcement by court order under s.65. The restrictions on such enforcement contained in s.127 are in two forms; the first (s.127(1) and(2)) leaves it to the discretion of the court, the second contained in s.127(3) is an absolute bar if the regulated agreement did not contain the prescribed terms.

 

 

*5

Judgement of SHERIFF J K TIERNEY

 

Durkin v DSG Retail & HFC Bank PLC (May 2008)

120. The cases of Kpohraror, King and Wilson were all based on contract but it does not seem to me that there is any difference in principle between the nature of damages to be awarded in respect of a loss of credit brought about by a breach of contract, and one brought about by negligent misrepresentation.

 

121. I find that the pursuer is entitled to an award for the general damage to his credit in addition to an award in respect of the actual loss flowed sustained. Having regard to all the circumstances I consider that an appropriate award would be £8,000.

 

 

Are you suggesting the CPR letter as kindly posted by zazen is the way forward?

greatburdon

[diddydicky]

I would re draft that letter in light of the fact that NOT ONLY do they say they do not have an agreement but they confirm that the agreement that they allege they have (but have simply misplaced) is terminated

 

If they have terminated it then you don't want to do or say anything to disagree with that fact - you want to AGREE that it is terminated (presumably without a effective DN being served)

 

so now you can tell them that even were it to be the case that they had a properly executed agreement ,

 

by virtue of the fact that they have now terminated it without first issuing an effective DN then any claim they would have had to the benefits of s87 even if they found the alleged misplaced agreement and even were it found to be properly executed - are forever lost

Edited July 8, 2009 by diddydicky

[greatburdon]

I must admit I am now totally lost and not sure of the response I should make.

 

I understand that they cannot enforce the non existent agreement but they continue to seemingly disregard what I understand to be the 'law' on collection and reporting on this account.

 

Is diddydickys point that if the account is now terminated then the account no longer exists?

 

The confusion tactics are certainly working!

 

greatburdon

[diddydicky]

I must admit I am now totally lost and not sure of the response I should make.

 

I understand that they cannot enforce the non existent agreement but they continue to seemingly disregard what I understand to be the 'law' on collection and reporting on this account.

 

Is diddydickys point that if the account is now terminated then the account no longer exists?

 

The confusion tactics are certainly working!

 

greatburdon

 

ok lets start from scratch I am not legally qualified but beleive my advicse is sound....

 

first how much is the debt?

 

secondly if you use 31.16 (and then the court process which follows) to demand they produce a document that have already told you they don't have then that IMO will constitute an abuse of process and may land you up with a lot of costs

 

What they have told you is 100% correct, but note they have NOT said that they did not or do not have the agreement- but that they have mis filed it anything mis - filed could easily turn up!

 

Now all the time they are in default of s78 (not producing it) they cannot legally ENFORCE the agreement- but the debt still exists

 

IF they suddenly find the agreement then they go back to square one and once again they can enforce it (if it is valid -that is)

 

so at the present time you owe them money but they can do nothing to collect it legally- stalemate

 

Now, there is a debate as to whether, in such circumstances the creditor is allowed to mark your credit files as in default as you hav'n't paid them what you owe them

 

some argue that this constitues "enforcement" which they are not allowed to do whilst in default of the s78 request as they have no proof of the debt

 

personally i do not agree as i believe there is ample documentation other than the agreement to suggest that a debt does exist

 

The argument is that the marking of the cra file is "enforcement"

 

However enforcement IMO means to persuade or pressurise you into dong a certain thing or act whereas the marking of the fact that you did not pay a sum of money owed to the creditor is simply recording a true fact in the opinion of the creditor

 

the purpose of these records with cra's is to show other potential creditors what your conduct of any given account has been like in order for them to be able to make informed decisions as to the risk they may take in lending to you.

 

I know that others disagree but although a debtor myself i am a firm beleiver that you can't make omlettes without breaking a few eggs

 

those who want to get rid of their debt or make reduced settlements AND expect a squeeky clean credit record IMO are being in the main totally unrealistic

 

back to your case

 

Your creditor believes the agreement to still be valid even though it has temporarily "misplaced" your agreement.

 

However they have told you in writing that it has been terminated.

 

now, on the basis that you were in breach of the agreement (missed payments) then they can ONLY legally terminate the agreement and demand monies that were not due by first giving you an opportunity to rectify that breach ( a Default Notice) which has to be precise and accurate in order to be effective).

 

If they terminate without issuing this DN, and giving you that opportunity or by terminating on the back of a defective DN then that termination is an unlawful rescisson of the agreement ( they did it unilaterally when they had no authority to do so)

 

Once it is terminated it no longer exists. It is as john cleese would say "no more" "extinct" " it is a dead parrot"

 

it is to your advantage to acknowledge the fact that the agreement has been terminated (albeit unlawfully by them) since the only way it can then be resurrected is if both parties agreed to do so. and it would rarely be to your advantage as the debtor to do so!

 

because they did it wrong the ONLY monies they can claim are the arrears genuinely outstanding at the time they terminated and not the full amount of the account

 

so it would help to know what the total account balance is and what arrears of payments (roughly) are outstanding

 

clearly you will not have exact figures if you have no DN and no notice of termination to hand

 

armed with this information then the best way forward (IMO) is to point out their failings to them in a carefully worded without prejudice letter and offer to settle the matter by them removing any adverse information from your cra files and marking your credit files settled in full- in return for an ex grataia payment from you in full and final settlement of all outstanding matters which will be a percentage of the total debt (which is why we need to know what the total is )

 

the reason is that 10% of say 3000 will not have them "wetting their knickers" whereas 10% of 15,000 would!!

 

the lower the debt the higher you may need to offer

 

 

if of course after all this you dont give a flying F*** about your credit record for the next 6 years then you could just tell them to shove it!

 

I hope this has helped

 

there may be someone who will nit pick on one or two legal technicalities but i beleive this to be a fair appraisal of your situation

 

dick

 

you could of course take the court route to get the cra files amended this is possible but tortuous

Edited July 9, 2009 by diddydicky

[greatburdon]

Firstly thank you very much diddy for taking the time to post to my thread, much appreciated.

 

The total sum outstanding has just gone over £10k after the last interest charge.

 

The only reference to default in any correspondence is in the following letters and I was unaware that the account has been terminated until the letter received dated 4 July, but have had no official notification that I am aware of.

 

http://i597.photobucket.com/albums/tt51/greatburdon/NWestdefault2.jpg

 

On the subject of recording missed payments/default with CRA's, whilst I understand your points I am still at a loss to understand how reporting can continue when the main document, the signed contract, is missing having been 'mis-filed'(save as you say evidence of expenditure/payments statements etc).... So I would certainly like to challenge the wrecking of a credit history.

 

As far as the offer of payment to settle goes I am not prepared to make an offer until/unless the agreement turns up and is executable.

 

I am considering writing asking for the default notice and confirmation of the date of termination of the account then start complaints procedure with anyone I can think of with a view to challenging the data reporting. They will be told there will be no further correspondence or payments until the agreement magically appears.

 

Not sure if this is the right tack as my head is still fuddled, think I will sleep on it!

 

greatburdon

Edited July 9, 2009 by greatburdon

[diddydicky]

Firstly thank you very much diddy for taking the time to post to my thread, much appreciated.

 

The total sum outstanding has just gone over £10k after the last interest charge.

 

The only reference to default in any correspondence is in the following letters and I was unaware that the account has been terminated until the letter received dated 4 July, but have had no official notification that I am aware of.

 

http://i597.photobucket.com/albums/tt51/greatburdon/NWestdefault1.jpg

http://i597.photobucket.com/albums/tt51/greatburdon/NWestdefault2.jpg

 

On the subject of recording missed payments/default with CRA's, whilst I understand your points I am still at a loss to understand how reporting can continue when the main document, the signed contract, is missing having been 'mis-filed'(save as you say evidence of expenditure/payments statements etc).... So I would certainly like to challenge the wrecking of a credit history.

 

As far as the offer of payment to settle goes I am not prepared to make an offer until/unless the agreement turns up and is executable.

 

I am considering writing asking for the default notice and confirmation of the date of termination of the account then start complaints procedure with anyone I can think of with a view to challenging the data reporting. They will be told there will be no further correspondence or payments until the agreement magically appears.

 

Not sure if this is the right tack as my head is still fuddled, think I will sleep on it!

 

greatburdon

 

ok

 

well the reason they continue is because they have all the relevant details of the agreement on their computer or microfiche probably but they know this is not acceptable.

 

what you must NOT do is ask for the DN or the terminaion notices they dont normally keep a copy of a DN anyway it is usually spewed out of a computer and they just log the date it was (allegedly) sent

 

instead look on the templates and send of a SAR request - this wil cost you 10 quid- when you sign your request either ADD or subtract a letter into your signature

 

(this way if they "lift" the signature and use it elsewhere you will know about it)

 

also send them a copy of a utility bill as proof

 

you don't have to but they may well "bugger about" and its just as easy to do as not

 

what you are after is evidence from THEIR files of any issue or non issue of these documents without alerting them to exactly what it is you are after!!

 

it can take up to 40 days

 

on a 10G debt i would say without the agreement 1 grand would be enough to get them to redeem your credit file

 

(after all 10% of something is better than 100% of nothing right?

 

however any less than a grand and i very much doubt that they will do anything other than mark your file part settled

 

hope that helps

[greatburdon]

I have drafted this response to the letter dated 4 July (post #7):-

 

Dear Amanda Tretton,

 

I write with reference to the above account number, and your letter of 4th July 2009 the contents of which are noted.

 

Please be advised that no further payments will be made on this account until such time as my request has been complied with, namely copies of a fully compliant signed original agreement as stated under the Consumer Credit Act, as I have not had the opportunity to consider the document which I believe may contain discrepancies which may leave it improperly executed.

 

Please advise your collections team to stop telephoning my contact numbers immediately.

I have verbally requested that these stop but I am still receiving calls .

 

Your continued harassment of me by telephone puts you in breach of section 40 of the Administration of Justice Act 1970 and the Protection of 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 which could result in you receiving a substantial fine.

 

Be advised that any further telephone calls from your company will be recorded for the purpose of evidence and reported promptly to the appropriate authorities.

 

For the avoidance of doubt I again emphasise that no further payments will be made on this account which has been terminated by you. I also expect you to comply with my statutory notice under section 10 of the Data Protection Act given to you in my letter dated 1st June 2009 to cease processing any data relating to this account immediately and rectify the mis-reporting that has already taken place.

 

I will be complaining to the Financial Ombudsman Service regarding your conduct in handling this account and my dispute.

 

I trust this clarifies matters for you.

 

Yours sincerely

 

ANY comments before I send it would be appreciated.

 

greatburdon

Edited July 12, 2009 by greatburdon

[greatburdon]

Bump .. Just looking for comfort that the draft letter is the way forward.

 

 

GB

[diddydicky]

Bump .. Just looking for comfort that the draft letter is the way forward.

 

 

GB

 

imo you would be ill advised to send this letter

 

the account has been terminated

 

your comments clearly give the impression that you consider that the agreement is still live

 

you stated earlier that it was your intention to pay nothing until they provided an agreement

 

you should therefore either

 

do nothing at all

 

if you have not already done so send the CPR3.16 request and then follow up any failure to comply with a court application ordering them to produce

 

continuing correspondence along the lines of your above letter would IMO be counter productive

[greatburdon]

Thanks diddydicky for your reply. The problem I could see sending the CPR was they would just respond confirming they did not have the agreement and as she says in her letter "we do not dispute that the agreement is currently not enforceable so we see no need for any threatened action by you or a third party to obtain a court declaration to that effect".

 

Therefore what would the CPR achieve? Would it address the issues of collection and reporting?

 

So confused.

 

GB

[diddydicky]

yes my apologies there i was guilty of not re reading the post and i had already advised against a cpr31.16

 

now you need to decide what you want to acheive.

 

if you are not concerned about your credit rating then you could do nothing but you would have the inconvenience of continued pestering

 

or you could make the F & F offer and try and get rid of it

 

 

or you could go on the offensive and ask a court to rule on the matter in view of their constant annoyance

 

 

whatever, there is no pressure on you take your time

 

 

are they phoning you? if so can you afford a true call?

 

letters- just file em and ignore em

[greatburdon]

Hi diddydicky, there's no need to apologise your input is valued, thank you.

 

I am not to bothered about the credit file, and not prepared to offer a f&f settlement.

 

They are phoning but I can handle that.

 

I would prefer to go on the offensive but am not sure of what steps to take so in the meantime I will just sit and ignore.

 

greatburdon

[diddydicky]

Hi diddydicky, there's no need to apologise your input is valued, thank you.

 

I am not to bothered about the credit file, and not prepared to offer a f&f settlement.

 

They are phoning but I can handle that.

 

I would prefer to go on the offensive but am not sure of what steps to take so in the meantime I will just sit and ignore.

 

greatburdon

 

thats good same as me really

 

i prefer not to go to the trouble and expense of going on the offensive a/ because it involves cost and b/because i can wrest control from them quite easily by using 31.14 in the unlikely event that they start action themselves.

 

keep me up do date on developments

[greatburdon]

31.14 ?? What is that please. I will put it in the locker until it may be required. ;-)

 

greatburdon

[diddydicky]

simply,

 

31.16 is what you use when you want to see if you have a case to mount against them

 

31.14 is what you use immediately upon service on you to get the same information basically ( subject to the nature of their claim)

 

the former costs you money

 

the latter costs you nowt

[greatburdon]

Like the sound of costing nowt. Will keep in touch as and when.

 

Take care .. greatburdon

[angmarie]

Hi Greatburdon

 

Just subbing with interest, when did you take out the lloyds cc please.

Im just waiting for them to respond to my cca, they have sent me one reply i laughed till i almost cryed. There was no mention of cca any where but lots of other bull:p.

 

 

Ang