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OldDebts

No CCA but continued threats

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I write to a DCA recently requesting a copy of the original signed agreement. The responded by sending a typed statement produced in excel of a few year's worth of payments, and said the debt was not in dispute as we had been paying it for a while.

 

I wrote back to say the statement was insufficient, and until they could produce the original CCA I was not making any more payments.

 

They wrote today to say the debt has never been in dispute, and just as soon as they find the paperwork they are taking us to court for the full amount. The original CCA request was at the beginning of April 2009, it is now 2.5 months since we requested the CCA, long out of the statutory period for providing it.

 

Do I need to write back to refute the debt again, do I leave them alone and wait for them to find the paperwork and if they do, can they take me to court even though they are in breach of CCA Act now?

 

Can they keep sending threatening letters?

 

Thanks

 

Old debts

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I write to a DCA recently requesting a copy of the original signed agreement. The responded by sending a typed statement produced in excel of a few year's worth of payments, and said the debt was not in dispute as we had been paying it for a while.

 

I wrote back to say the statement was insufficient, and until they could produce the original CCA I was not making any more payments.

 

They wrote today to say the debt has never been in dispute, and just as soon as they find the paperwork they are taking us to court for the full amount. The original CCA request was at the beginning of April 2009, it is now 2.5 months since we requested the CCA, long out of the statutory period for providing it.

 

Do I need to write back to refute the debt again, do I leave them alone and wait for them to find the paperwork and if they do, can they take me to court even though they are in breach of CCA Act now?

 

Can they keep sending threatening letters?

 

Thanks

 

Old debts

 

You need to send an account in dispute letter.

 

It matters not a jot, if you have been paying in the past, or what they consider a dispute.

 

Send the letter below.

 

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 xxxxxxx, 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 xxxxxxx 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

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The punch line here is

 

"as soon as they find the paperwork they are taking us to court for the full amount"

 

If they find it!

If they had it in the first place.

If they had a brain.

If they could understand logic.

 

Sadly not many DCA ever manage to produce anything enforceable HA HA HA.

 

As above send them the 'account in dispute' letter and wait

Never speak to the planks on the phone and when 'IF' they find anything resembling an agreement post it on here and we will take a look

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Send them vint1954's letter and report there sorry arses for chasing a debt while in default of a cca request, as the very act of a cca request puts the mater in despute

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Send them vint1954's letter and report there sorry arses for chasing a debt while in default of a cca request, as the very act of a cca request puts the mater in despute

Quite right. They are breaking the law, sadly not criminal, by chasing for payment while there is a dispute, or the situation is deadlocked.

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But as no DCA has any understand of anything - legal or otherwise - they will keep on pestering as is their right.

 

No CCA = NO Enforceable debt. But doesn't mean the debt does not exist!

 

But does not stop them from taking court action regardless. Wether they WIN in court is another story

 

So can pester you for 6 years, and many still try it on well after the 6 year statue barred period.

Defaults on your credit file that they are not entitled to add, interest added to the balance, threat after threat that court action will be initiated, bailiffs will call, attachement of earnings orders. all the nice things you can look forward to.

 

The above DCA tactics are ALL BULL**** I might add, but they go their merry little way in the hope you will get cheesed off with their constant anoyance and cough up.

 

Stand firm and pay them nothing.

 

Could I ask who the DCA is?

and what is the debt relating to, Credit card, mail order account, bank account?

Edited by alfwithhair

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DCA is CreditSec, debt was credit card. Not heard more, yet....

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Who?


PGH7447

 

 

Getting There Slowly

---------

 

Advice is given freely but is in no way meant to be taken as Gospel:-)

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