Ang V LTSB

[landy_alert]

Oh yes please, I've got some classics to send them. Are they looking at Cabot as well, I think they even surpass LTSB:D

 

Hi cymruambyth:)

 

I don't know about Cabot - I think I read about the LTSB thing on MSE - but it wouldn't hurt to report Cabot in a similar way. The more complaints we make about all these creeps the better!

 

Although generally speaking these bodies don't seem to be much use when helping the consumer and seem to be more use for 'window dressing' purposes, the fact that they've specifically requested these 'fob-off' letters must be a move in the right direction.

 

Regards,

 

Landy x

[angmarie]

Hi Capricorn

 

I posted recent activity on your LTSB thread by mistake, im sorry getting all in a muddle lol:confused:.

Have today had Default Notice, looks ok as well.

 

 

Ang

[angmarie]

Hi all

 

I am also dealing with hubbies accounts.

I requested cca, usual response then I sent SAR they sent a form for him to sign so he signed it not his usual signature though and put line through it. Form was returned on 16th August, still no reply.

Had letter from them on 25th Aug Sorry you have cause to complain blah blah blah.

1st Sept response to cca request, the usual typed up rubbish.

This is where i first get confused, the response says

I have enclosed with this letter:

A copy of your original agreement, which has been updated with current financial profule of your account. (It was the usual typed tripe, how the hell can it be copy of the original agreement he signed if its been updated FGS!!!!!!)

Wrote again this account in dispute, do any of you understand the queen's English.

Response 4th Sept FINAL RESPONSE, sorry your unhappy (I doubt it) but we dont agree (surprise) we have no obligation to provide you with anything, this account is not in dispute stop twinning, and pay up.

They are out of time limit for SAR response

Today he got letter from MHA Collections, anyone heard of them?

SCH will contact you shortly if you dont pay required amount.

The actual reason I requested SAR information was not originally for the cca, but to check how they have been managing hubby account because they reduced his balance without contacting him, then started banging on charges at this time he had never missed a payment.

 

Any comments

 

 

Ang

[cymruambyth]

Hi MHS are a part of LTSB. They usually 'pass account back' when you advise that it is in dispute.

Re SAR, you can send a letter advising that they have failed to comply (plus copy of your original letter) and give them 7 days to supply the information. Then it is a complaint to the ICO, who are snowed under, or going to court to enforce the production of documents.

Edited September 19, 2009 by cymruambyth

[Spamalot]

Hi Ang...

 

The phone calls have started on mine now...... first one I refused to answer security q's and told them to go away ...then they rang half hour later so I told them they'd got wrong number... complaint going in to FOS next week...

 

Spam.

[angmarie]

Hi Spam

 

FOS are really snowed under at the moment but still worth a letter, paper trail if nothing else.

 

Ang

[vint1954]

Hi all

 

I am also dealing with hubbies accounts.

I requested cca, usual response then I sent SAR they sent a form for him to sign so he signed it not his usual signature though and put line through it. Form was returned on 16th August, still no reply.

Had letter from them on 25th Aug Sorry you have cause to complain blah blah blah.

1st Sept response to cca request, the usual typed up rubbish.

This is where i first get confused, the response says

I have enclosed with this letter:

A copy of your original agreement, which has been updated with current financial profule of your account. (It was the usual typed tripe, how the hell can it be copy of the original agreement he signed if its been updated FGS!!!!!!)

 

What they need to supply for CCA s78 is a copy of your agreement at the time it was signed, Copy of current terms and conditions and a statement of account. They cannot roll it into one agreement, incorporating new terms. After all your original agreement may not have allowed them to alkter terms!

Wrote again this account in dispute, do any of you understand the queen's English.

Response 4th Sept FINAL RESPONSE, sorry your unhappy (I doubt it) but we dont agree (surprise) we have no obligation to provide you with anything, this account is not in dispute stop twinning, and pay up.

 

Send letter 1 below.

They are out of time limit for SAR response

 

Send SAR letter 2 from the templates.

Today he got letter from MHA Collections, anyone heard of them?

SCH will contact you shortly if you dont pay required amount.

 

Send MHA letter 2 below.

The actual reason I requested SAR information was not originally for the cca, but to check how they have been managing hubby account because they reduced his balance without contacting him, then started banging on charges at this time he had never missed a payment.

 

Reclaim the charges.

 

Any comments

 

 

Ang

Letter 1

 

xxxxxx 2009.

Dear xxxxxxxxx,

ACCOUNT IN DISPUTE

Re account no xxxxxxxxxxxxxxxxxxxxxxxxxxx

I write regarding recent communication regarding the above account.

Further to my request under the above act, your attention is drawn to the fact that this account remains subject to a lawful serious dispute. On xxxxxxxx, 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, supplying only a generic agreement and terms & conditions, which cannot be linked to any agreement which you claim that I have signed and a set of again unrelated terms and conditions. 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.

Contrary to your assertion, xxxxxxxx have not complied with the terms of CCA 1974 s78. The documents that you have supplied, do not comply with your duties to supply a “True Copy” of any agreement you claim to have been signed by me, for pre 2007 agreements. As you will be further aware, an agreement is not executed, until signed by both parties, so the document that you have supplied, being a reconstruction, cannot be a True Copy of an Executed Agreement.

While this account remains in serious dispute, the relevant main points of the Law and OFT regulations while the account is in this state and xxxxxx remain in default are:

• You may not ask for payment against this account.
  
• I am not obliged to offer any payment against this account.
  
• You cannot register any data with a third party.
  
• You cannot take any enforcement action, including registering Defaults.
  
• You cannot pass the account on to a third party for collection.
  
• You cannot sell the account.
  

What is a true copy:

In a recent letter from the enforcement department of the OFT, the text below was quoted, explaining what is required.

“The copy of the executed agreement need not be an exact copy but it must be a ‘true copy’ and not some reconstruction of what the original might have been and it must contain the same terms as the original. Where the terms have been varied as provided for within the agreement, the copy of the original agreement must be accompanied by a document setting out the current terms, as varied. Certain details may be omitted from the original agreement eg the signature but the debtor must be in no doubt as to the true nature of his obligations under the loan.

 

Should no original agreement be in existence it is very hard to say that the copy the creditor offers to the debtor is, in fact, a true copy as there would be no original with which to compare it. In our view the onus of proof would be on the creditor to show that the copy is a true one and where none existed he may have difficulty discharging this. Neither should creditors suggest that a consumer has signed a credit agreement where they are unable to provide evidence to support this — to do so is likely to be a misleading action under Regulation 5 of the Consumer Protection from Unfair Trading Regulations 2008 (the CPRs) and would also constitute an unfair or improper business practice.”

 

I also refer you to the information below.

1. A valid credit agreement must contain certain terms within the signature document (s.60(1)(2) CCA 1974). These core terms are the credit limit, repayment terms and the rate of interest (SI 1983/1553 (6 Signing of agreement) which states that the prescribed terms must be within the signature document. (Column 2 schedule 6). s.61(1)(a) states the agreement must contain all the prescribed terms and be signed by both the debtor and on behalf of the creditor.

 

 

2. Further, s.127(3) CCA 1974 makes the account unenforceable if it is not in the proper form and content or improperly executed.

 

In Wilson and another v Hurstanger Ltd (2007) it was stated “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 … and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s.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. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement”.

 

2. The need for prescribed terms to be contained in the credit agreement is confirmed by the Author of the CCA1974 act, I quote ““As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97.

 

Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn’t be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I’m glad the House of Lords has now vindicated my reasoning and confirmed that nobody’s human rights were infringed.” - 167 Justice of the Peace (2003) 773.”

I am now granting to you a further 7 days to produce a copy of an executable agreement. After that I will consider that the above matter is closed and that you will no longer pursue the alleged debt. If you are insisting that the non enforceable document, that you have supplied, is the only alleged agreement in your possession, then I would suggest that the best course of action would be to immediately set the balance of the above account number to zero.

I look forward to your response.

 

Letter 2 for MHA

 

Ref Account xxxxxxxxxxxxxxxxxxxxxxx

 

Dear xxxxxxxxx,

 

I was somewhat bemused to receive your letter of xxxxxxxxx 2009, the content of which is noted. No debt to your company or client is acknowledged.

 

On xxxxxxxxxx 2009 I made a formal request to your client pursuant to s.78(1) of the Consumer Credit Act 1974. xxxxx have failed to comply within the statutory time limit, supplying only a reconstituted copy of terms and conditions. In addition, this alleged account was placed in dispute on the xxxxxxxxx 2009. It should not be necessary to have to remind you that the provisions of s.78(6) now apply. These letters are enclosed.

 

In the circumstances, your threat of legal action would appear to be a breach of the Consumer Protection from Unfair Trading Regulations 2008 and the Office of Fair Trading Guidance on Debt Collection and your attention is drawn to this guidance document.

Your attention is also drawn the ICO on Data protection, as passing details on to a third party while an account is in dispute is contrary to the Data Protection Act. I have previously issued letters to xxxxxxxxxx under s10 of this act. You may wish to refresh yourselves of the implications of ignoring the Data Protection Act.

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 considered vexatious and unlawful. The Court's attention will drawn to the above statutory breaches . Furthermore, I reserve the right to bring the conduct of your client to the Court when the issue of costs is being considered.

I would remind you that while this alleged account remains in dispute, that xxxxxxxxxx:

• May not ask for payment against this account.
  
• I am not obliged to offer any payment against this account.
  
• Cannot register any data with a third party.
  
• Cannot take any enforcement action, including registering Defaults.
  
• Cannot pass the account on to a third party for collection.
  
• Cannot sell the account.
  

I trust this out lines the situation and that you will take note of my comments, to avoid any further breaches of the Law, being committed by you.

 

 

 

 

[angmarie]

Vint

 

Im on the case, thank you so much for your time and help:).

 

 

Ang

[angmarie]

Vint

 

Sorry but is there an easy way to copy from here into word.

 

 

Ang

[Spamalot]

Vint

 

Sorry but is there an easy way to copy from here into word.

 

 

Ang

 

Just highlight copy and paste ang... if you can switch between screens... open up new word document and paste it on..

 

Spam.

[angmarie]

Spam

 

yeah I know how but once in word it has all the borders still around it dont know how to edit lol

 

 

Ang

[vint1954]

Spam

 

yeah I know how but once in word it has all the borders still around it dont know how to edit lol

 

 

Ang

[ATTACH]12562[/ATTACH]

[cymruambyth]

Hi ang, if you just highlighted each letter and not the whole post you should have no problem.

[vint1954]

Post 31 has word attachment

[angmarie]

vint

 

Brilliant, tytyty right gotta go get busy again.

 

 

Ang

[Capricorn1601]

Hi ang

 

good to catch up with you, and to know I am not alone. Let me know how you get on. DO you want a copy of my 4 page epilogue I sent LLoyds stating chapter and verse. Looks really good (thanks to the member of Cag who I cant remember but borrowed it off their page!!)

[angmarie]

Hi Capricorn

 

yes please that be good Default attached.

 

 

Ang

Edited September 22, 2009 by angmarie

[angmarie]

Hi

 

Ooopppssss its a bit big sorry, not very good at this yet lol

 

Ang

[jonnyt79]

Subbing...ive just sent off my CCA letter to lloyds

 

keep up the good work!!

[Capricorn1601]

its identical to mine, including the date. I'll send you the letter Monday as Its on my work machine.

[Spamalot]

Ang,

 

You have left identifying details on your default post..( account number).

 

Be VERY careful when posting docs as Lloyds sols **** have been known to get information off this site and try and use it against the defendant..

 

As in this thread..

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/183724-tonka99-sechiari-clark-mitchell.html

 

They copied the default and used it at court!!.

 

With regards to the default... unless they sent it recorded delivery, you can always say you didn't receive it and it's up to them to prove that you did...

 

Spam.

[Capricorn1601]

Hey spamalot, thats good news. Mine was done exactly the same time, and was wondering what happens re the 14 days especially with postal strikes on. I did however receive mine two days after it was printed!!!!

 

Ang

 

This is the letter. I remembered I had stored it on Google docs for safekeeping:

 

 

ACCOUNT IN SERIOUS DISPUTE

 

 

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 28th May 2009, 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. To date you have failed to comply with my request. On 6th August I wrote to you again under CPR 31.16 again requesting a true copy of the Credit Agreement. You have failed to respond to me at all regarding this issue. 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;

 

These include below, the relevant main points of the Law and OFT regulations while the account is in dispute and Lloyds TSB remain in default.

• LLOYDS TSB may not ask for payment against this account.
  
• I am not obliged to offer any payment against this account.
  
• LLOYDS TSB cannot register any data with a third party.
  
• LLOYDS TSB cannot take any enforcement action, including registering Defaults.
  
• LLOYDS TSB cannot pass the account on to a third party for collection.
  
• LLOYDS TSB cannot sell the account.
  

2.

What is required of a true copy.

 

In a recent letter from the enforcement department of the OFT, the text below was quoted, explaining what is required.

 

“The copy of the executed agreement need not be an exact copy but it must be a ‘true copy’ and not some reconstruction of what the original might have been and it must contain the same terms as the original. Where the terms have been varied as provided for within the agreement, the copy of the original agreement must be accompanied by a document setting out the current terms, as

varied. Certain details may be omitted from the original agreement eg the signature but the debtor must be in no doubt as to the true nature of his obligations under the loan.

 

Should no original agreement be in existence it is very hard to say that the copy the creditor offers to the debtor is, in fact, a true copy as there would be no original with which to compare it. In our view the onus of proof would be on the creditor to show that the copy is a true one and where none existed he may have difficulty discharging this. Neither should creditors suggest that a consumer has signed a credit agreement where they are unable to provide evidence to support this — to do so is likely to be a misleading action under Regulation 5 of the Consumer Protection from Unfair Trading Regulations 2008 (the CPRs) and would also constitute an unfair or improper business practice.”

 

I refer you also to the information below.

1. A valid credit agreement must contain certain terms within the signature document (s.60(1)(2) CCA 1974). These core terms are the credit limit, repayment terms and the rate of interest (SI 1983/1553 (6 Signing of agreement) which states that the prescribed terms must be within the signature document. (Column 2 schedule 6). s.61(1)(a) states the agreement must contain all the prescribed terms and be signed by both the debtor and on behalf of the creditor.

 

2. Further, s.127(3) CCA 1974 makes the account unenforceable if it is not in the proper form and content or improperly executed.

 

In Wilson and another v Hurstanger Ltd (2007) it was stated “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 … and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s.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. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement”.

 

3. The need for prescribed terms to be contained in the credit agreement is confirmed by the Author of the CCA1974 act, I quote ““As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97.

 

Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn’t be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I’m glad the House of Lords has now vindicated my reasoning and confirmed that nobody’s human rights were infringed.” - 167 Justice of the Peace (2003) 773.”

 

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 now 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).

3.

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 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 am now granting to you a further 7 days to produce a copy of an executable agreement. After that I will consider that

4.

the above matter is closed and that you will no longer pursue the alleged debt. If you are insisting that the non enforceable document, that you have supplied, filled in by yourselves, is the only alleged agreement in your possession, then I would suggest that the best course of action would be to immediately set the balance of the above account number to zero.

 

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

[vint1954]

The DN does give enough time if it was sent 1st class. If it was sent second class then it is defective.

 

Do you still have the envelope?

 

If it was sent UK mail with an s in the top right hand corner, then that is also second class

[angmarie]

Spam

 

How can i delete acc number from default shall i just remove whole post.

 

Ang

[Capricorn1601]

go back in and remove attachment (advanced screen).... edit and reupload