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Zaraphin

Argos CCA - is it enforceable

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Hi everyone

 

Hope everyone has been getting good results and peace of mind with this fantastic forum who ever set it must feel so proud of themselves considering the amount of people at their wits end they have helped.

 

After getting cheeky demanding letters and abusive phone calls from Bryan Carter & Co I requested my Argos CCA which was taken out in 2002. In return I received this Application form with my Signature on it this morning (I have read somewhere that application forms can be enforceable) any comments would be greatly appreciated.

As if its enforceable I will need to set a payment plan with the next 10 or they will proceed with further action, (Court Action I presume)and if its not enforceable this may allow me to negotiate some kind of payment that I can comfortably afford if necessary.

I get butterflies and that scarey feeling in my stomach when they send me something like this.

If only our creditors would listen to reason and not tar everybody with the brush especially after being customers for many years who never missed payments.

Everyone feel free to comment either negative or positive as this the way we all learn.

 

Copy of requested CCA

Cheers

SW

Edited by Zaraphin
Forgot to post copy of application on forum

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Hi,

As you are new, I will give you this piece of advice.

 

BRYAN CARTER is sneaky. He will take you to court at the drop of a hat. If that happens, come on and help will be there to fend off this "lawyer"

 

Anyhoo, on to the CCA. If that is all they sent you then in my humble opinion, it's rubbish.

No APR

No repayment terms

No credit limit

 

I can't see anything on the "agreement" that refers you to any other conditions.

 

Methinks an account in dispute letter is in order.

 

fox

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No APR

No Credit limit or mention of limit TBC

No repayment terms

Account opened prior to 2007

 

I might be wrong (and it has happened before, ask my wife) but I think what they have provided is not enforceable.

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I have had the same thing from them and consider it unenforceable. Still worth sending a SAR request if you have not already to get all info on there as I am sure there will be charges for late payments etc that woud be worth reclaiming.

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No terms and conditions, no credit limit = unenforcable.

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Right then folks down to nitty gritty here!!! what would advise me doing first....

 

Subject Access Request or default letter (There is charges on this account many infact, didnt think about these at the begining.

I think I am in for something hard letter writting can anybody point me some templates or letter they have hanging around all contribution gratefully received.

SW

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SAR first

 

Data Protection Act 1998 Subject Access Request

Dear Sir/Madam,

ACCOUNT NUMBER:

Please supply me with a complete list of transactions and charges relating to my banking history with your organisation. Alternatively, a complete set of statements for that period will be acceptable.

 

Additionally, where there has been any event in my account history over this period which has required manual intervention by any member of your staff, or any other person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my banking business with you.

 

If you are unable to supply this data because there has been no such manual intervention, then please be so kind as to confirm this in your response.

 

I enclose the statutory maximum fee of £10. You have 40 days in which to comply. Furthermore, if I discover that you have levied disproportionate penalties against me, then I shall be reclaiming them, and also reclaiming the enclosed £10 Data Protection Act subject access request fee.

 

If there is specific information which you require in order to satisfy yourself as to my identity, please let me know by return. However, please note that the above address is the one which you normally use to communicate my private business to me and which you have hitherto found to be acceptable.

 

Yours faithfully,

DO NOT SIGN THE LETTER OR SEND A CHEQUE WITH YOUR NAME ON IT.

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go for sar so you can find you what the reclaimable charges are and weigh it up

 

ida x


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Hi Stoke a Badger

 

Fast as the speed of lightening reply.

 

Subject Access Request can seemingly take up to 40 days and Bryan Carter wants a reply from me with payment in 10days so not sure if I can wait 40 days for SAR without replying something to Brayn Carter thats why I wondered would it be worth while sending CCA letter non compliance to keep them out my hair while I SAR Argos.

Just a thought I am no expert I shall be guided by all you experts on here.

SW

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So you requested a copy of the credit agreement and they produced an application form. Did they produce anything else?

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Account number:

Dear Sir/Madam,

Thank you for your response to my request under the Consumer Credit Act section 78.

 

I am pleased to see that you confirm that the unsigned Credit Agreement provided is a true copy of the original agreement executed by yourselves.

As you must realise this agreement does not conform to sections 60(1) and 61(1) of the Consumer credit Act and is therefore unenforceable under section 127(3) of the same act.

Under the terms of the above Act, a creditor has 12 working days to provide the requested document. Should they fail to do this, they have a further calendar month to rectify this default. Failure to comply within these timescales is a criminal offence.

Both of these deadlines have now passed and (insert DCA name) has failed to produce a properly executed Credit Agreement. This can lead me to only one conclusion that no signed credit agreement exists in relation to this account.

As I am sure you are aware, an agreement that does not contain all of the prescribed terms, and/or is not signed by the debtor, is completely unenforceable, even in a court of law. This will be a complete defense to any court action that you may consider taking. I may also elect to file an application notice under s142 of the consumer credit act 1974.

 

Please note, you may also consider this letter 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 the 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.

 

Under the Data Protection Act I have principled rights in that:-

 

(Schedule I)

1. Personal data shall be processed fairly and lawfully

2. Personal data shall be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with that purpose or those purposes

(Schedule II)

1. The subject has given his consent.

2. The processing is necessary

a. For the performance of a contract to which the data subject is a party.

The fact that you cannot provide me with a copy of the agreement negates any Notice of Default being served on me, as required by the conditions of the Consumer Credit Act 1974. If the documentation were to be produced as you are aware the default notice cancels any original terms and conditions and as such cancels any right to share my information without my consent.

There has never been any regulated agreement in relation to this account, and therefore you have never had my consent to process my data. I also do not see how you can state that you have a legitimate interest in processing my data as we have never had any contract that would enable you to do this.

Should you fail to respond within 21 days, I will expect that this means you agree to remove all such data.

Furthermore, you should remember 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 therefore the following applies:

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

You may not add any further interest or charges to this account.

You may not pass this account to any third party.

You may not register any further information in respect of this account with any of the credit reference agencies.

In this instance as it is clear to both parties that there is not a correctly executed document, I must insist that the full account balance is discharged IMMEDIATELY.

 

I look forward to your final decision on this complaint by (inser date). This should include your proposed actions in relation to the lack of a credit agreement and confirmation that the alleged date will be written off.

 

Yours faithfully

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No all they produced was a 1 page copy of the application form which is in my 1st post on this thread.

Now that you have told me how sneaky Bryan Carter can be I am a bit frightened to just ignore him or would that be the best way treat him with the comtempt he deserves after all how many people has he threatened to the point of misery...hmmm I wonder if he sleeps at night.

SW

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send the sar to argos and send this to lovely Bryan:

 

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 application form 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

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Hi Ida

Another great letter, can you tell me I wrote to OFS regarding another DCA and the response I got was merely there was nothing they could do..do you know if this a run of mill response that they put out to consumers. I must say I was a bit disappointed as I complained about a DCA harrassing me for payment even although I received a Blank CCA and advise them of this.

ANyway I shall get letters out to Argos & Bryan C between your letter and stoke a badgers hopefully they wont have a leg to stand on.

Have a good evening will keep you posted.

afw

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Depending on how far you want this to go it may be worth requesting a copy of the agreement citing CPR 31.16.

 

Have a read of pt2537's thread http://www.consumeractiongroup.co.uk/forum/legal-issues/173201-why-you-shouldnt-use.html

 

Use this letter

 

Account Number:

Dear Sirs,

I write with regards to the above account which I hold with your organization.

 

I respectfully request that you provide me by return a copy of the 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 Procedure Rules (Pre action protocols and Part 31.16) and therefore unsigned copy will not suffice, only a copy of the original contract bearing my signature in its unaltered form will suffice.

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 (use date 2 weeks from date posted).

Regards

 

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Hi Stoke a badger

 

I am in Scotland and I think I have read (Correct me if I am wrong) on the forum we cant do CPR here...unfortunately

Kindest regards

afw

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I stand corrected, said the boy with the orthopedic shoe. Sorry I didn't notice your location. :(

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they generally won;t investigate indivisual complaints but put will add them to others

 

ida x


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Hi Folks

Anybody know the address I would send my Subject Access Request for Argos

Ta

SW

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Argos Limited

Avebury

489-499 Avebury Boulevard

Milton Keynes

MK9 2NW

DATE

DATA PROTECTION ACT 1998

SUBJECT ACCESS REQUEST

 

Dear Sir/Madam

 

Your name:

Account No: XXXXXXXXXX (in addition to all previous linked accounts)

 

I understand that you currently hold details of my personal and financial information within your internal record systems with regard to running credit account previously held with your company.

Please supply me with a complete list of transaction and charges relating to my history with your organisation, INCLUDING payment protection insurance and other products. Alternatively a complete set of statements for the accounts or associated accounts is acceptable. I would be grateful if you would provide the following for ALL accounts or associated accounts I have held with your organisation:

-Full copies of all contracts which you believe exist or have existed between myself and your organization, including true copies of any documents you hold in support of the same.

 

- A complete list of all transactions or statements relating to ALL running credit accounts with your organisation.

 

-Copies of all documents which include any of my personal information including copies of any contacts or invoices, emails or computer records containing my personal information, or any records which pertain to this information.

 

-Full copies or transcripts of any correspondence in postal, email or any other format which you have entered into with any individual, organisation or third party which contains my personal or financial, or which pertains to me.

 

- Where any previous information or records held have been deleted or disposed of, the methods used to do so, including dates, certificates or references confirming details of destruction. Where you are unable to provide such certificates, please provide a declaration, signed by an authorised officer of your company, confirming the dates and methods of destruction of this data.

 

-Full hard copy print outs of my personal or financial information, held in a digital, magnetic or any other format which is held in any archives, backups or other storage devices / locations.

 

I enclose a cheque in the sum of £10 to cover your fee (NOT WITH YOUR SIGNATURE)

IF YOU UNABLE TO DEAL WITH THIS REQUEST, YOU SHOULD IMMEDIATELY FORWARD IT TO THE PERSON WITHIN YOUR ORGANISATION RESPONSIBLE FOR DATA PROCECTION.

 

I look forward to hearing from you in the first instance of receipt.

 

Yours faithfully

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Hi everyone

Received replies for my Subject Access Request this morning, just the same as they sent for CCA request - Application Form with no T & C, no Interest Rates, No payment details, No monthly rate absolutely nothing apart from a basic Application Form which you can see in my first post on this thread.

 

Stacks of charges which I shall be claiming back, which will wipe out at least a third of the balance owing on this account.

 

They have not taking as long as I thought to send me this info there is sheets and asheets of paper that I could wallpaper my house with. However still no sign of the Consumer Credit Agreement what they do state on their letter that came with these details where that thye had enclosed a copy of my Application/Credit Agreement so I really do feel that this is all they have.

I have been getting a few phone calls from Bryan Carter who are dealing with this account. These calls started back up since receiving the first Application form copy that I requested from Bryan Carter and I have sent them Account in Dispute.

 

Where do I go from here...I know I need to claim my charges back but what about the balance I am not in a position to offer them a full and final settlement just now and probably not in the foreseeable future.

 

Would you recommend making token payments, ignoring them or writting saying unenforceable once again and waiting to see what reply I get.

 

Cheers for all the guidance up till now caggers it has been very much appreciated, dont know where I would have ended up if I hadn't found this site.

Edited by Zaraphin
spelling

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did you send the letter to bryan carter in post 15? if so have they responded?

 

if it was me,

 

 

I would claim back the charges to reduce the balance then wait and see if i could offer a massively reduced full and final to get rid of it.

 

you are under no obligation to pay but obviously as i don't know what the balance is like if token payments would clear it in a year or to or no pay anything at all then it will drop of the creit files 6 years from default

 

ida x


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did you send the letter to bryan carter in post 15? if so have they responded?

 

if it was me,

 

 

I would claim back the charges to reduce the balance then wait and see if i could offer a massively reduced full and final to get rid of it.

 

you are under no obligation to pay but obviously as i don't know what the balance is like if token payments would clear it in a year or to or no pay anything at all then it will drop of the creit files 6 years from default

 

ida x

 

Hi Ida

 

Sent that delightful letter you sent me to Brayn Carter on 9th July 09 after receiving copy of application form and letter asking me to forward payment proposals which I received on the 7th July 09. According to Post Office track and trace it has not been delivered yet and they will not try and trace it until 30th July 09 (15 working days after posting) when phoned BC they were not interested in talking about my letter so I just hung up on them so dont know if they have received it or not.

 

I think the balance shall be approx £800 after I claim charges. As for credit files I shall never take credit out in my life again this has put me off credit in general for life, Its strange how it takes something drastic in your life to make you change direction.

 

As for default I cannot recall receiving a default notice for this account (maybe I did at the time my head was up my a**e with worry and serveral other things also they did not send me any copies of a default notice with the SUbject Accesss Request details.

 

Cheers

afw

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