Will & won't I..... your help is needed

[joemay]

I need some more opinion's on whether to send a letter to Blair Oliver & Scott, who are hassling my OH (threat-0-grams, text mgs).

 

The CCA is unenforceable, defective DN and confirmation from OC that agreement has ended. My original thread http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/197540-bos-halifax.html , has all the history, but when checking if i'm sending the correct letter threw up a discussion as to whether I should put the account in dispute, as they have terminated the agreement and would I therefore not be opening the gate for them to re-issue a defective DN.

 

I'm new to all this & value all opions, but I am a little unknowlegeable (stupid) when it comes to these things

 

If you could have a look and let me know if I can go ahead and send and if not what should my course of action be.

 

Thanks

[Bazooka Boo]

Hi joemay, I began reading your other thread, and only got as far as you OH health issues, and it made my blood boil:mad:

 

I'm sure the other BB who is looking at this thread now will give you good advice as to your next best action, I on the other hand, would like to give you links to all the agencies you should make a formal complaint to:wink:

 

Firstly if you haven't done so already tell damn shallow fax you want a copy of their complaints procedure within 7 days. Then dig your heels in and use it all the way to the very end, as it is them who are responsible for the DCA's actions, even though BOS are their own in house DCA.

 

Swiftly follow that up with a complaint to the following, in no specific order:

Financial Ombudsman Service

 

The Office of Fair Trading: Contact us

[email protected]

 

Consumer Direct

 

How to Complain

 

Complaints - Privacy & electronic communication - ICO

 

Home page | Ofcom

 

Boo:wink:

[Pinky69]

Don't send the dispute letter - the account has been rescinded so no longer exists. A faulty DN followed by termination causes unlawful rescission and they cannot issue another DN - there is no longer any account for them to default on. By terminating the agreement without issuing a lawful DN they have breached the CCA 1974 S 87 (1) of the CCA 1974.

 

Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but gives rise to a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119

 

My letter to them would be that as there never was an executed agreement for this alleged debt they never had any lawful right to ask for payment and as they rescinded the account on (date) by terminating without a lawful DN you are now considering your options for a claim for general damage to your creditworthiness (using quote above). Make all the complaints as advised.

[joemay]

Don't send the dispute letter - the account has been rescinded so no longer exists. A faulty DN followed by termination causes unlawful rescission and they cannot issue another DN - there is no longer any account for them to default on. By terminating the agreement without issuing a lawful DN they have breached the CCA 1974 S 87 (1) of the CCA 1974.

 

Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but gives rise to a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119

 

My letter to them would be that as there never was an executed agreement for this alleged debt they never had any lawful right to ask for payment and as they rescinded the account on (date) by terminating without a lawful DN you are now considering your options for a claim for general damage to your creditworthiness (using quote above). Make all the complaints as advised.

 

Hi Pinky - thank you.

 

OK as you probably read on the other thread my concern is that they will try to back track on the DN. I've sent a SAR to try and get concrete evi that it's terminated & when DN was issued. I have seen on many-a-thread that the OC/DCA have put "wrongly worded" letters down to "Human Error":rolleyes: (yeah right like they have humans working for them), & this normally happens at court stage.

 

Pniky is there a templated letter that I could send them once I have the SAR.

 

Does anyone know of any other thread which is similar to this, that I can look at.

 

Thank you

Joemay (now in a spin)

[joemay]

Thanks Boo,

 

I'm terrible at complaining, but I suppose now is the time to get a back bone;)

[Pinky69]

"Human error" is no defence in law and wouldn't affect the outcome of a court case. Banks and DCAs must comply with consumer credit law. I don't know of any template after a SAR but you are looking for a copy of the termination notice. If they don't send one, ask for it specifically.

[joemay]

OK I'll wait 'til we receive the SAR. I suppose in the meantime I should be swotting up in the legal forum, because no doubt that's were it's heading.

 

Thanks again pinky:)

[joemay]

Hi joemay, I began reading your other thread, and only got as far as you OH health issues, and it made my blood boil:mad:

 

I'm sure the other BB who is looking at this thread now will give you good advice as to your next best action, I on the other hand, would like to give you links to all the agencies you should make a formal complaint to:wink:

 

Firstly if you haven't done so already tell damn shallow fax you want a copy of their complaints procedure within 7 days. Then dig your heels in and use it all the way to the very end, as it is them who are responsible for the DCA's actions, even though BOS are their own in house DCA.

 

Swiftly follow that up with a complaint to the following, in no specific order:

Financial Ombudsman Service

 

The Office of Fair Trading: Contact us

[email protected]

 

Consumer Direct

 

How to Complain

 

Complaints - Privacy & electronic communication - ICO

 

Home page | Ofcom

 

Boo:wink:

 

Hi Boo,

 

Still trying to grow a back bone:oops:. But I have a question, why are we complaining exactly, now I know from a morale point of view they shouldn't be putting any pressure, but is there some kind of legislation stating that they shouldn't be sending letters, texts etc. If you can point me in the right direction I would be eternally grateful.

 

Thanks.

Joemay

[harrassed senior]

Your main complaint is that this account is in dispute, (No CCA etc.) and until such time as this is put right, they should not be harrassing you at all.

 

Hopefully someone will find the relevant quotes to use from the Acts.

[cerberusalert]

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 refer to 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

Print name do not sign

[joemay]

Your main complaint is that this account is in dispute, (No CCA etc.) and until such time as this is put right, they should not be harrassing you at all.

 

Hopefully someone will find the relevant quotes to use from the Acts.

 

Hi harrassed, thanks for looking in. Actually it would appear that it's more complicated than that. Never actually got to put the account in dispute, because they have confirmed when sending the cca:rolleyes: that the agreement has now ended, and that's on the back of CCA without prescribed terms & dodgy DN. Dodgy DN & termination then makes it tricky, i'm being told, so if you state that the account is in dispute, then effectively you are not accepting that the agreement has been terminated and I wouldn't dream of doing that.

 

This is OH account, and of course nothing is simple when it concerns him, he's always been difficult:razz:

[joemay]

Thanks cyberusalert, but I've been informed that I shouldn't be sending this letter as account has been unlawfully rescinded (i think it's the right spelling).

[cerberusalert]

You have two arguments against them, the first is the 'unlawful rescission' because of the defective default notice and the second with the unenforceable CCA. With your first argument they would only be entitled to the arrears on the a/c, not the full outstanding amount. However, with the unenforceable agreement they would be unable to collect anything.

 

They have to prove an enforceable agreement exists and if they try to take you to court without one you would have an absolute defence. The defective DN is your 'secret weapon', you can use it to shoot them down in both scenarios, whether they have an enforceable agreement or not.

 

If it goes to the court stage, the a/c must have been terminated for them to be able to do so. In which case they would be unable to rectify their mistake and reissue the DN, not that they could anyway because they've already sent the termination notice, hence the unlawful rescission.