Hi, as always... advice needed from you all

[longlunchbox]

Dear Forum members

 

I've been a long-time lurker but I've since felt compelled to write to you asking for your advice regarding two outstanding issues.

 

I'm around £10,000 debt in total and whilst my main creditors have agreed to a repayment figure (after many, many long winded and arduously penned letters!) I am still receiving particular trouble from two previous store cards.

 

Firstly, allow me to explain my situation. I moved to Spain last year and kept up with my direct debits until August 09 from my English account. At that point I had a huge amount of money (£1000) taken from my account from O2 relating to a phone bill that should never have occured. Whilst they have not refunded me the money yet (this is something I intend to chase later) I have received as a 'gesture of goodwill' that they will remove all negative credit ratings and notices against my name and will not pursue me any longer for the last outstanding bill (and rightly so, as it was down to their negligence previously.)

 

Anyway, that left me seriously overloaded on my current account in England and I unfortunately was unable to continue my direct debit payments. Having bounced a couple I decided to cancel my direct debits and attempt to pay them with my spanish card. As it turns out, this was not possible and so the situation rumbled on.

 

As I mentioned above, I negotiated with my main creditors a satisfactory monthly payment scheme but two store cards are still being particularly difficult to pin down. So much so, that it makes me want to nail them myself.

 

Anyway, my unresolved problems are as follows:

 

Argos - they have been hammering me for late payment, non-payment and god knows what else fees since September. I decided that I wanted to play hardball with them and asked for a copy of my CCA. I received it 1 month after (exceeding the 12+2 days rule) I sent the initial request and have since been served with notice of litigation from Moorcroft (dealt with them before, no problems - these guys just **** in the wind.)

 

However, the CCA I received was nothing more than a signed application form 2004 (which, weirdly enough, doesn't even look like my signature!) and a copy of the terms of conditions. My question is... where do I stand on this now, considering they issued the 'CCA' after the time limit exceeded?

 

Secondly are the more sinister Burtons. They've since passed on the debt to the infamous Lewis Debt Recovery. I owe Burtons around £420 (a sizeable chunk in late payment fees etc) but was offered by Lewis a settlement figure of £315.00. I sent a letter back stating that I was unable to meet the settlement fee and was wondering, considering most of my other creditors were happy to negotiate a repayment plan whether they would do so. I heard nothing back apart another letter and reports from my parents (whose address the card is registered at) that another door-to-door collection officer had stopped by to issue a 'final chance' warning. I've sent another letter to Burton and Lewis notifying them of my desire to communicate them by letter and that I do not welcome doorstep calls - especially as that is bothering my parents (ultimately my fault but its not as if I haven't tried with them.) I also mentioned in the letter that they have decided to ignore my repayment offer and have assumed that it was on purpose. The letter was sent by recorded delivery so that I can be sure that they will receive this one.

 

Of course, my next question is... what to do next?

 

There is a third matter, the matter of MBNA who have agreed a repayment schedule but after requesting a CCA decided to send me a 'we can help you letter' and nothing else - I'm assuming they haven't got my agreement and have since been very forthcoming about allowing me a repayment schedule. That however, can wait for the moment and the debt is around £4,000.... to be honest, I wish to honour this debt as I suppose in a sense I did rack it up in the first place (that said, I don't know what on - this looks like a late payment, payment protection, non-payment, transaction fee, credit facilty this-that-etc kinda situation, so I wouldn't bet against me having about £1,000 in charges to come back from them over the years I've had the card)

 

Anyway, apologies for the long winded diatribe... It's a bit annoying really having this on my mind and I want to cause no stress for my parents as they are the ones bearing the brunt of the store cards chasing me at the moment. Like I said, I want to get this resolved and honour my majot debts but the smaller ones are kinda agrravating me now..

 

Thanks in advance for reading.

[Guest Old_andrew2018]

Bump

[GARY68]

Hi LONGLUNCHBOX,

WoW thats a name and half.

I know you have explained in some detail about all your creditors, but you maybe better advised to split up into diffrent threads,

 

o2- sorry cant help you with that.

MNBA-sorry again, but if you post in mnba thread sure you will get some.

 

Argos-seems they keep turning up the same t+c and sending in the moorcroft group, but you say you are handling this.

Have you put the account in dispute?

ACCOUNT IN DISPUTE

DO NOT IGNORE THIS LETTER

address

 

 

19/03/09

Dear sir/madam,

 

Account Ref:-

 

 

Re: my request under the Consumer Credit Act 1974

 

 

This account is in Dispute.

 

On xx/xx/2009 I wrote to you requesting that Argos 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 also 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

 

The prescribed terms referred to 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

 

 

 

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.

 

Further more, since the prescribed terms referred to above do not appear within the agreement you have supplied, the agreement is rendered totally unenforceable, as the prescribed terms must be contained within the agreement and not a separate document, case law confirms this opinion

 

I refer you to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

 

”[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated

consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting the provisions of the two schedules the Judge said:

 

 

"33 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 (with the benefit of legal advice if necessary) 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. More detailed requirements, which

are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the

minimum terms) are to be found in Schedule 1."

 

Therefore the prescribed terms cannot be contained within a separate document outside of the agreement

 

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

 

 

As it stands, the document supplied by you is not a valid credit agreement nor is it enforceable by any court

 

 

What I Require

 

 

Firstly, I require all correspondence in writing from here on; any persistent attempts to contact me by phone will be reported to Trading Standards, the Financial ombudsman service and the Office of Fair Trading.

 

I would like to draw your attention to the fact that you do not hold a signed copy of a credit agreement with my signature on it, the reasons for this is that I never signed one. Therefore the fact that they do not hold such document means that you cannot obtain an enforcement order in court. The case of Wilson-v-FCT sets this out as previously referred to above

 

However should you believe that you have grounds to enforce this agreement, please provide me with a signed copy of the credit agreement that you would consider relying upon? 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 you have supplied as it stands is unenforceable, should you be unable to produce a compliant agreement it would be in everyone’s interest to consider the matter closed and for you 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

 

Regards

 

Burtons-have you asked for a cca on this and have they turned anything up, you could also put this in dispute. you say the" more sinister" and Lewis Debt recovery, I dont agree, they are will go away with the rest.

 

If your still in spain why dont you tell your parents to put return to sender on the envelopes, not at this address;)

 

I dont know if its a long term plan to stay in spain and at what point your credit rating is and how you want to approach this, but if you are comming back and want to keep it clean then I would assume you want to negotiate a settlement figure or payment terms as you are doing if that is the case then they shouldnt be visiting your parents,

 

If your going to dispute all the debt and you are staying away for some time and want to get the dc's off your parents case then either..

 

a)tell your parents to tell callers or letters that you no longer live there.

b) send off for your cca with the creditors find out what they have and dispute them all,

but be warned, if they have your parents phone number they will harrass on the phone and im sure the parents wont like that,

 

if you think that the balances are made up mostly of charges then you may find this a good negotiating tactic with the account in dispute,

 

sorry I cant help much more but at least it will bump your thread,

[dx100uk]

i'd get reclaims going for all the late payment fees etc etc and the mis-sold ppi on bot the cards.

dont forget to charge them int at their puchase rate from the date of the charge to the dte of your claim, and do the same again at 8% stat int rate on top,

 

then revisit the outstanding balances.

 

btw the claims go to the oc not any dca's.

 

dx