Creation/Irwin 1a small claim Summons old BOS then GE Money Joint Loan *WON*

[24233513afw]

Hi everyone

Have received a copy of the original agreement that I signed with first national in 2003.

 

They now want proposals for payment which I am prepared to do but only what i can afford which at present would be £10.00 per month, any ideas how you would word a letter to them saying that is all i have to pay i have seen something on the site BUT do you think i can find an appropriate letter...

 

.just like the thing when you need something you cant find it.

I have post a copy of the CCA for your viewing and comments.

Cheers afw

 

Hi flyboyagain

What I am trying to say is:

 

1. The CCA for my evans account from GE Money that I have posted on post #1 states the account no. as 63191*********** .

 

2. On my Evans statements and the demands for payment from GE Money and Debt Collectors the account number is a completely different no. and I cant understand why this should be.

 

3. Also the date of the GE Money signature on the agreement is 22/6/2009 I took this out in 2003-2004

 

CCA Agreement for viewing

[FlyboyAgain]

Have you signed another account with them? If not, they may be at it, though I know from experience that lenders can change account numbers for reasons lnown only to themselves.

[blueda]

Here is the link to the letter templates page

http://www.consumeractiongroup.co.uk/forum/generel-debt-issues/20758-creditors-dcas-letter-templates.html

[IdaInFife]

any chance you have a claim/relcaim on the payment protection plan?

 

ida x

[24233513afw]

Hi Ida

Unfortunately in this instance we didnt take PPI with this loan, there is not much left to pay to it as we had paid nearly 80% of the loan before we got into difficulties however it does seem a lot when you dont have any spare cash, hopefully they shall let us pay a minimum payment until we can get back on our feet...hopefully being the operative word here.

Many thanks for the suggestion it would have been the answer in this instance.

Have a nice evening.

Cheers

afw

[24233513afw]

Hi Ida, Busby & CitzenB (and anybody else I may have left out)

 

Sent a letter to OFS & WMDC as advised by citzenB on 2nd June 2009 got a reply from them more or less saying sorry but nothing we can do and then today I received another letter from WMDC assuring me they are going to pursue this debt further even although I have had a Blank copy of CCA and a letter from Creations telling me they are looking into my complaint(Default Letter) and will contact me in 4weeks.

 

WHat else can we do to get it through to their thick skulls that if they produce what I am asking for then I shall come to a affordable arrangement if this debt is enforceable.

Now I have received more letters from WMDC has anybody any idea what my next step would be.

Obvisiously OFS cant do anything......I feel like crawling in a corner and not coming out until doomsday or has that already been.

Cheers

afw

[24233513afw]

There is definately something going on as the two account numbers dont even resemble each other in any way.

Has anybody any idea what I should do.

 

1. They have sent me a CCA for Evans account with my signature on it.

2. Checking my evans account this does not match the number on CCA

3. Should I write and tell them numbers dont match or leave them to find this out for themselves. On phoning them to make a payment plan they were very cheeky and obnoxious should I ignore or tell them.

 

ANybody out there with any advise please feel free. As I feel inbetween the DEVIL & THE DEEP BLUE SEA.

Cheers

afw

[FlyboyAgain]

You need to be confident on when this account was taken out; there is a big difference between 2000 and 2009. However, you also state that the account was possibly opened in 2003/4.

 

Once you're clear on what account you are actually dealing with, I'd certainly write to them and point out this account number discrepancy. Furthermore, it's in their nature to be rude; it's called having power over someone and they will lord it over you.

 

First rule: take control.

Second rule: don't grovel to them.

 

Phone up the National Debtline National Debtline – Free, Confidential Debt Advice – Call 0808 808 4000 and speak to them and download their financial statement template. You also want to approach your local Citizens' Advice Bureau to help you initially, but I'll bet they are swamped right now. Don't let the DCA/creditor bully you into paying what you can't afford, and don't offer them any settlement until you are sure you are dealing with a valid account that has not been tampered with!

[IdaInFife]

have you ever had 2 evans accounts?

 

If not i think it would be time for a sar to find otu exactly what has been going on

 

ida x

[citizenB]

I am going to have a little think on this one.. BRB

[citizenB]

Okey dokey, well the response from the OFT is standard and what we expected.. and no, they are unable to advise on individuals. What they do is keep a record of all the complaints that are made in respect of each company and then investigate when their is sufficient numbers. Did they send you a form to complete and return in the event they do make a move on the company in question ?

 

As far as WMDC are concerned I think all you can do now is wait them out.

 

You will see from the following links that the OFT do investigate companies for not adhering to guidelines.

 

The Office of Fair Trading: OFT imposes requirements on Mackenzie Hall to improve handling of disputed debts

 

 

 

 

This is a copy of a letter sent from the OFT to miss muppet, the 2nd link is a text version so that it can be copied and pasted if required.

 

1st link, original letter from OFT - posts 35 - 37 . Not in order ie page 1, I think is the last page posted.

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-2271340.html

 

This is the text version in order, it might just be worth printing it off, highlighting certain parts especially the bit where it says DCAs should ensure they have the correct paperwork and sending it to WMDC:-D

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-2271340.html

 

HTH

[lilly white]

i have just read your tread. please take hart

 

this is the out come of CCA that do not confirm.

 

Just in case you miss it

 

Good read

 

 

 

IN THE LEEDS COUNTY COURT Case No: 9LS70096

The Combined Court Centre

Oxford Row

Leeds

1st June 2009

Before

HIS HONOUR JUDGE LANGAN QC

__________

BANK OF SCOTLAND

(Claimant)

-v-

ROBERT MITCHELL

(Defendant)

__________

APPROVED JUDGMENT

__________

APPEARANCES:

For the Claimant: MISS GARDNER

For the Defendant: MR BERKLEY QC

__________

Transcribed from tape by

J L Harpham Limited

Official Court Reporters and Tape Transcribers

55 Queen Street

Sheffield S1 2DX

BANK OF SCOTLAND -v- ROBERT MITCHELL

1st June 2009

APPROVED JUDGMENT

JUDGE LANGAN:

 

1. I have to deal with an issue as to costs which has arisen on the informal discontinuance of an action.

 

2. The action was commenced on 21st May 2008. The claimant bank had, in December 2003, issued a credit card to the defendant, and the claim was for £15,417.23, being the amount said to be due on the defendant's account. Judgment in default, for a total sum of £15,727.23, was obtained on 4th July 2008. The defendant subsequently applied to have the judgment set

aside. That application came before District Judge Jordan on 29th January this year and was successful. The recitals to the District Judge's order say this:

"And upon the defendant's proceedings on the basis of a breach of

Section 61(1)(a) of the Consumer Credit Act, namely that the claimant

failed to comply with the requirements to give copies of all the

documents relevant to the agreement at the time of signing, and upon

the defendant contending that notwithstanding Section 65 of the

Consumer Credit Act 1974, Section 127(3) of the Act preventing the

enforcement".

 

After those recitals it is ordered the court sets judgment aside, and it is ordered that there be, "A determination of the issue set out above". Various procedural directions then follow.

 

3. What has been listed for trial today is, "The determination of issue", referred to in the order which I have just recited.

 

4. The agreement made in relation to the defendant's credit card was a regulated agreement within the Consumer Credit Act 1974. Section 61(1)(a) of that Act provides:

 

"A regulated agreement is not properly executed unless 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".

 

Having regard to the date of the agreement made in this case, which was prior to amendments made to the Act which took effect from 5th April 2007, the result of non compliance with Section 61(1)(a) would be that the credit card agreement would be unenforceable against the defendant, see Consumer Credit Act 1974 Section 127(3).

 

5. This morning I was informed by Miss Gardner, counsel for the bank, that the bank was withdrawing its claim against the defendant. This announcement has been accepted by Mr Berkley QC, who appears for the defendant, as equivalent to the service of a notice of discontinuance under the Civil Procedure Rules Part 38.3. By the Civil Procedure Rules Part 38.6.1:

 

"Unless the court orders otherwise, a claimant who discontinues is

liable for the costs which a defendant against whom the claimant

discontinues incurred, on or before the date on which notice of

discontinuance was served on the defendant".

 

Miss Gardner contends that the court should, "Order otherwise", and make no order for costs as between the parties. Mr Berkley contends that the presumption in CPR 38.1.6 should operate, and further that the order for costs to be made in favour of his client should be an order for assessment on the indemnity basis.

 

6. The thrust of Miss Gardner's submission is that the issue directed by the District Judge, and on which the evidence has been focussed, is whether the bank supplied the defendant at the time of signing the application form for credit with documents which contained all the terms of the agreement between them. I shall elaborate a little further on this. It has been the defendant's case that he was supplied with nothing more than the application form which he signed. It has been the bank's case that in accordance with the usual practice of the bank the defendant would have been, and must have been, supplied with other documents, including a pack which will have contained all the terms and conditions of the agreement made between the parties. Miss Gardner goes on to say that the defendant has at the last moment taken a new and radically different point, namely that the document signed by the defendant did not contain all the prescribed terms of the agreement. I must again elaborate on this. It is common ground that the only document signed by the defendant was the application form. It is also common ground that the application form did not, on its face, set out the prescribed terms of the agreement between the parties. The point which is treated by Miss Gardner as a

new point is dealt with in paragraphs 22 and 23 of Mr Berkley's written argument, and it will, I think, be more economical if I simply quote those two paragraphs in full rather than attempt,in my own words, to expand on them:

 

"The key words in Section 61(1)(a) are the reference to a document

itself containing all the prescribed terms, and conforming to the

regulations under Section 61. This language is clear and specific, and

ensures that mere reference to terms contained in another document

will not suffice. The document must contain the prescribed terms, just

as the signed document referred to in Section 127(3), which might save

the day, must however contain the prescribed terms. The construction

contended for by the defendant is entirely consistent with the language

of Section 61(1), and is also supported by Professor Good in his

encyclopaedic work - see Good & Consumer Credit Law and Practice

volume 2, 2B 5.121, and see also the comments at 2B 5.247. There the

learned author draws a distinction between the language of paragraph

(a) contain and paragraph (b) embody. It is respectfully submitted that

the court should adopt the same reasoning in determining this issue in

favour of the defendant, irrespective of whether or not it finds that the

defendant was supplied with documents other than the credit

agreement itself".

 

7. In my judgment, the point with which I have just been dealing is not properly to be characterised as a new point on which the bank can present itself as being taken by surprise. I refer to four documents. First, on 3rd November 2008, when the defendant was acting as a litigant in person, in the request to have the default judgment set aside he said this:

 

"As the court is aware, in the absence of all the prescribed terms being

embodied, it will render a document unenforceable in court. These

terms must be contained within the agreement, and not in a separate

document headed 'Terms and Conditions', or words to that effect".

Secondly, on 18th February 2009, solicitors, who were by then acting for the defendant, sent to the solicitors acting for the bank a copy of what they called an expert report setting out the reasons why the agreement was in breach of Section 61(1)(a), and they went on:

 

"As you are aware it is our client's position that at the time he entered

into the agreement he was not provided with a copy of the terms and

conditions governing the agreement".

 

If one goes to the so called expert's report, one finds that it is in effect an opinion prepared by another firm of solicitors, and the opinion contains the following:

 

"Based on the information provided, it appears that the prescribed

terms and conditions were not included in the document signed by the

borrower. The agreement would appear to be in breach of the

regulations in that it does not contain within the signed agreement itself

all of the prescribed terms".

 

Thirdly, that point having been taken on behalf of the defendant, it was robustly rejected by the solicitors acting for the bank in their reply of 19th March 2009:

 

"Our client has sought counsel's opinion on this matter and her view is

that the agreement is compliant. We note that your client is arguing

that at the time of signing the agreement, the application for a credit

card, he was not provided with the actual terms and conditions which

were contained in a separate document to the application. Whilst our

client accepts that the application itself does not comply with the

requirements of the Consumer Credit Act 1974, and only becomes

compliant by reference to terms and conditions, there are references in

the agreement to the conditions in which it states that they are provided

in the Halifax credit card application pack".

 

Fourthly, going back in time a little, on 4th March 2009, in the defendant's witness statement made for the purpose of the trial of the issue, at the very beginning of the statement, in paragraph 3, he said this:

 

"It is my position that the agreement is not enforceable by the claimant

as it has failed to comply with its obligations under Section 61 of the

Consumer Credit Act 1974 by failing to include within the document

that I signed all the prescribed terms".

 

8. The absence of further reference to the point in the evidence is hardly surprising, since the point is one of law, on which there was no controversy as to the facts.

 

9. Miss Gardner has given no reason for the withdrawal of the action. She is in no way to be criticised for the omission. She is bound to act in accordance with her instructions, and those instructions were presumably to say no more than she has in fact said. But this does not prevent me from drawing what is in my judgment the only inference which can possibly be drawn from what has happened, which is that the bank realises that if the issue were to be

contested it would either lose on the issue or be at serious risk of losing. There may be hundreds of similar cases and the bank would plainly not wish other defaulting customers to get wind of an adverse decision on the fundamental point which is embodied in the quotation from Mr Berkley's written argument, which I have already set out.

 

10. Accordingly, I conclude, without hesitation, that there is no reason for displacing the presumption as to incidence of costs which is ordinarily applicable in a case of discontinuance. The bank will pay the defendant's costs of the claim, subject only to any existing order for costs in favour of the bank not being disturbed.

 

11. Finally, I have to consider whether the costs of the defendant should be assessed on the standard or on the indemnity basis. In my judgment the assessment should be on the indemnity basis. The only realistic view of what has happened is that the bank has surrendered on a straightforward point of law, to which it has on several occasions been alerted by the defendant or his solicitors. A large commercial enterprise which proceeds with litigation in the face of warning signs of the kind which were erected here, adopts a high risk strategy. The point in question was a simple one. There was no relevant controversy as to the evidence. To choose to abandon the claim on the very day of the hearing is doing a serious disservice to the efficient administration of justice, and comes very close to constituting an abuse of process. At the very least, the bank's conduct of the litigation falls comfortably within the range of cases in which, on the modern authorities, an assessment of costs on the indemnity basis is appropriate.

__________

 

Yesterday, 10:36 #44 (permalink

 

 

the very best regards lilly white

Edited August 6, 2009 by lilly white

[24233513afw]

Hi everyone

 

On the 7/5/09 I sent a CCA request to Robinson Way by Recorded Delivery, They received this 8/5/09.

 

On the 14/5/09 I received a reply saying account on delay trying to get me a copy.

 

On the 2/6/09 I sent a Account in Dispute letter as I had not got any CCA from them.

According to Royal Mail and their office they never received it so I resent another one on the 18/6/09 still have had no reply or any sign of my CCA.

 

What do you think I should do now.

 

They have not contacted me by phone or letter since I request this CCA.

 

This was for a Bank of Scotland Loan that was taken out in 2004 without PPI. It was sold or transferred to GE Money the same year dont knwow why as we were paying this loan faithully up until about 12 months ago when we started to get into great difficulty.

 

SO do you think the CCA will be with B oS or GE Money.

 

Then Robber Way took over the demands not sure if this was purchased by them or they are collection for GE Money.

 

Any help would be greatly appreciated.

cheers

AFW

[IdaInFife]

as long as you have proof it was delivered to rob way then that is fine,

 

wait until they contact you

 

ida x

[24233513afw]

Hi Ida

 

Cheers for the reply I had a sneaky feeling thats what someone would maybe say, but I felt I had to be reassured. I dont like bothering you people on here unless its really necessary as you have alot of things to do yourself and for other people on here. I do appreciate it very much will keep you all posted.

 

Hope that blooming rain keeps off tonight and give us all a break of sunshine.

Have good evening. I shall be tipping your scales hope your hubby doesn't blame me for you punching him.

Cheers

AFW

[IdaInFife]

no probs,

 

ida x

[24233513afw]

Hiya

 

Update on Rob Way/GE Money. Received letter from Rob Way saying they are no longer managing this account at their office all futire payments and correspodence must be sent to client. No sign of CCA could this be the reason why Robinson Way has sent it back to GE Money and do I now chase GE Money for the CCA.

Cheers

afw

[IdaInFife]

tends to mean they do not have the cca or they would still be chasing.

 

wait and see if GE make contact or they send to another bunch of ****.

 

Ida x

[Alphageek]

wait and see if GE make contact or they send to another bunch of ****.

 

I wonder which option they will choose? :grin:

[24233513afw]

Hi Folks

 

I have subject accessed GE Money regarding this Evans account as I had a demand for payment from AK regarding the Evans account however because the Account Numbers were so different I wrote to AK regarding this and I received a reply today by Recorded Delivery stating that GE states(The reason the account number on the original Credit Agreement differs from the current account is because you were issued with a replacement credit card bearing the current account number.)

 

They have not stated when where or why this account/card was replaced can anybody tell me am I entitled to know these details before deciding whether this is enforceable or not also as you will see on the agreement that is posted on post no. 1 the date of their signature states 22/6/09 I cant be sure but almost positive that this account was opened 2000. I should have a better idead when or if I receive their SAR from GE(Santander).

 

1. Am I entitled to know why this account number was changed as I dont remember them changing it ?.

 

2. I havent pointed out the date discrepancy yet about to do that in my next letter once I can find out what I am entitled to know.

 

I need to reply soon as they have threatened me with Court Action now they have original CCA (well thats what they say) would they have to prove in court when, where, why or how they changed the account numbers as certainly did not sign for any change. I am sure that would mean a change of contracts surely if they were changing account numbers.

 

I have posted up a copy of their letter, any chance somebody could have a look and let me know what they think as usual all comments welcome.

Cheers

afw

[IdaInFife]

to be homest there's not much that can be done until you receive you sar back from GE to find out what's going on.

 

 

To put your mind at ease you could send AK a letter stating that you have uncovered a few discrepencies with the account and waiting on GE money suplying documentation under your SAR and suggest that AK put a hold on the account for 60 days to resolve the issues with GE.

 

ida x

[24233513afw]

Hi Ida

JUst a wee up date.....sent AK letter asking them to put hold on the account as you advised in your last post, received letter yestereday from them agreeing to this can't thank you enough without your guidance I would not have even contemplated asking them to put a hold on this account especially for 60 days however as the saying goes IF YOU DON'TASK, YOU DON'T GET. Still awaiting reply to SAR from GE Money, if and when I get a reply I shall let you know.

Cheers

afw

[IdaInFife]

okies

 

ida x

[24233513afw]

Hi Folks

 

WEll seems as though you have a crystal ball Ida & Alphageek....surprise surprise received from Lewis Debt Recovery this morning a demand for this balance before 20/8/09.

How on earth can they do this. I have already paid Rob Way for the CCA which they never provided so do I have to pay Lewis Debt Recovery as well.

Any help with a letter to Lewis would be a tremendous help as the letters I tend to write go on a bit still haven't got the knack of letter writting to DCA yet!

Cheers

afw

[IdaInFife]

ACCOUNT IN DISPUTE

Dear Sir or Madam,

Account number: XXXX XXXX XXXX XXXX

I must admit that I am rather bemused as to why this account has been passed to yourselves, as it is in dispute with the **original creditor/DCA** and has been since DATE 2007. Not only is this a breach of OFT collection guidelines, but also in breach of the Consumer Credit Act 1974 and Data Protection Act 1998

My last letter from **original creditor/DCA** was DATE and intimated that my complaint would be resolved on **DATE**, this obviously hasn’t happened. As **original creditor/DCA** are now in default of my Consumer Credit Act request, OFT Collection Guidelines, *Subject Access 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 **original creditor/DCA** for resolution of these defaults and breaches, as **New DCA** cannot lawfully pursue any enforcement activities.

If **New DCA** 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 Administration of Justice Act 1970 section 40 as well as breaching a number of the OFT 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,

now fook off

AFW