DCA quoting McGuffick v RBS Judgement -where do I stand now

[Pinky69]

Yes, you should report them to the OFT and the more of us who do the better. I reported them earlier and I didn't even get a letter - I saw Tony Squeezony off a long time ago.:grin:

[Nagasis]

Just out of interest, has anyone changed the 'dispute' letter templates to something which responds to the carey and mcguffick or come up with a letter to a dca/oc non compliance with a s77-79 request?

 

sorry if ive missed it if there is

[lamb909]

Wow, seems to be a lot of you in the same boat, thank muchly for all your replies, I shall just ignore until or should I say "if" they produce the CCA, though after approx 2 years I somwhat doubt they will but who knows? Would be interesed in hearing if able to report them (according to other posts) if they start getting stupid and asking for money and if anything can be done.

 

I also would like to write back with some terrific letter but that said I will take advice that has been offered ;-)

 

Thanks all for your replies, nice to know I am not alone - not that there is other people is same situation, not nice for anybody so not glad you are in same boat I mean but glad I am not alone, bl))dy hell, I'm digging myself deeper in it so I'll shut up now, sorry

 

Thanks for the replies though, cheers

[esmerobbo]

They cant understand simple letters so understanding a judgement would be way beyond them.

 

I could not ignore it so wasted a stamp explaining yes they can ask for payment but if they want it take me to court.

 

Im bored here I could do with a day out.

[chilli_bird]

Hello. I posted the letter that has been in circulation on my original thread and i got the below reply from Pete. not sure what to do now....i received the same letter as all of you have received and they as in Hilsden can not provide me with my CCA....been 12 months now

 

Hiya chilli_bird, as they state themselves the account is uninforceable so all you need to do is make a regular payment of whatever YOU can afford, ignore there this is not enough letters.

 

To call you or send operatives to your home they would need to get a CCJ against you and if your attempting to repay the debt (however small the repayments are) on a fairly regular basis then I dont think they would succeed in doing this.

 

pete

[morteee]

yup got one of those, put it on the shelf with the 3 years worth of letters informing me my account is on hold until their request with the OC is fulfilled.....

 

not holding my breath LOL!

[chilli_bird]

Hiya chilli_bird, as they state themselves the account is uninforceable so all you need to do is make a regular payment of whatever YOU can afford, ignore there this is not enough letters.

 

To call you or send operatives to your home they would need to get a CCJ against you and if your attempting to repay the debt (however small the repayments are) on a fairly regular basis then I dont think they would succeed in doing this.

 

pete

 

 

Please can i have advise on what you thnik of Pete's advise please please

[Pinky69]

I personally wouldn't pay any sleazy DCA a penny if the debt was unenforceable. Serves them right for buying debts without checking on the legality of them and the less we pay them , the quicker they go under.

[Gaznkaz08]

i've got one of those as well

 

i've just tried knocking this up with a bit of help as a reply

 

**edited slightly**

 

 

 

In your letter you also refer to the Mcguffick v RBS case and suggest I read it.,you are correct in the fact it is available on the internet and has been available to myself on my own PC for a number of months now enabling me to study it at length. I take it you know this case well as you have quoted it and can therefore point out exactly how this case applies to my individual case. As far as I am concerned this has no bearing on my own case what so ever as you are unable to prove what authority, and indeed if any, was ever given to you,

 

Edited February 23, 2010 by Gaznkaz08

[morteee]

one thing I just want to check

 

this fell OFF my credit record sometime ago

 

they cant re-add it can they? My understanding is they can't

[chilli_bird]

I have not really read the case,,, did not want it to worry me if i read something that worried me.....not hat i am a worryer.

So they actually lost the case ha ha ha.....the ppl at Hilesden are bunch a t****rs, pardon my French. Do they really think that this can stick?

[chilli_bird]

one thing I just want to check

 

this fell OFF my credit record sometime ago

 

they cant re-add it can they? My understanding is they can't

 

hello, i hope note. im in the same boat as you . i do not want it back on my file again....i am not sure but i dont think that they can default you for the same debt once off your file....someone correct me if i am wrong.

but i dont know what the situation is if another company buys the debt and categorises it as a different debt by saying that the original was with XXX and this is now with XXXX

hope im not confusing anyone....or myself

[morteee]

well just checked my credit record and its totally clear - will check it again next month even though I get email alerts if someone has amended anything on it

[chilli_bird]

Nice one Mortee

i get regular updates too, its worth the small fee each month to have your file check and keeping you up to date.

[morteee]

just read McGuffrick v RBS and my interpretation is that whilst they cant enforce the agreement via the courts they can continue to process info with CRA's and also request payment, however as a CCA request places an account into dispute and collection activity is to cease whilst there is a dispute there is a definite conflict of laws here!

 

I have also found that once an account has dropped off your credit record they cant re-add it

 

seeming as they dont have my telephone number then they can keep writing letters, my response will be that the account is still in dispute as as such I will not be making payment until they have complied with Section 77 of the CCA

 

I have just looked through the paperwork they have sent me and thus far I have received over the last 3 years

 

1) a credit application form with no counter signature from the OC or T&C's etc attached

2) a statement of account from DLC, no statements from the OC

3) NO copy of the default notice

4) NO copy of notification of assignment to DLC or their agents

 

therefore they haven't satisfactorily proved that the account is even mine and not my ex husbands or that they have the legal right to collect on the account

 

they can go whistle

[esmerobbo]

I had a letter today in reply to a letter I sent them basically saying put up or shut up in response to their RBS V McGuffick letter. Their letter states they understand payment can not be enforced through the courts and do not intend litagation. They will endeavour however to attempt to retrieve the paperwork from the OC.

 

OK I will wait another two years then shall I.

 

Do you think they have had someone read the case and explain it to them.:grin:

[count orlok]

Do you think they have had someone read the case and explain it to them.:grin:

 

They already knew, they were just hoping you didn't

[lickthewallfatboy]

exactly.....

[twinkle1977]

Hi

Received the original letter stating McGuffick v RBS. Ignored it.

Then received letters from Mercantile (MDB) chasing for money on this debt whilst at the same time, receiving the usual "we are following up on your request for copy of your CCA" from Hillesden.

 

MDB letters were becoming more frequest, so I sent them the account in dispute letter .

 

Received letter today from Hillesden stating

"I apologise that you have yet to receive the documentation requested under the CCA 1974. I have again pursued the matter with Egg Banking, expressing the urgency of the matter.

 

Whilst we may not be able to enforce the agreement until the documentation is provided, the monies remain outstanding and the underlying obligation to repay remains intact. In view this, the account will remain with our collections department for collections activity to continue"

 

I've been waiting for the CCA from them since May 2008, so i'd be interested to see if they come up with the goods.

 

Most importantly though, how do I get MDB off my case - threatening usual boll** and saying about interest to the account.

 

Anyone got a great "up yours" letter I can send to these morons?

 

Thanks!

[cerberusalert]

Dear Sir or Madam,

 

 

Account no

 

ACCOUNT IN DISPUTE

 

Re: my request under the Consumer Credit Act 1974

 

 

Thank you for your letter dated ........, the contents of which are noted

 

Your attention is drawn to the fact that this account is subject to a serious dispute. On ......... I requested that ........... supply me a copy of the credit agreement covering this account pursuant to the Consumer Credit Act 1974 section 78. To date ........... 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 .............., nor does it give me any chance to evaluate whether any original agreement was ‘properly executed’ as required by the Consumer Credit Act 1974.

 

If it is your view that you are not the creditor, s.175 of the CCA 1974 applies in the case of a simple assignment, and places a duty upon you to pass this request to the creditor. In the case of an absolute assignment, you are a creditor as defined by s.189. If you contend that you purchased the rights but not the duties of any agreement, you are reminded that s.189 of the Act is clear that an assignment is of both rights and duties.

 

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 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 was supplied on request, this in no way complies 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 ............... become compliant with my request. As ................ 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 ............. comply with my request from .date........... 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 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

[twinkle1977]

oh wow! this is the letter that I always dreamt of sending!!! thank you so much. No doubt i'll get some lame response from our good friends Hillesden.

 

But lets see what happens

 

Thank you VERY much

[twinkle1977]

hello all

posted the letter (as above) and came back from holiday yesterday to receive a letter from aktiv kapital - saying phone us immediately about the account (shall ignore) and a letter from hillesden, their response to the above being:-

 

thank you for your letter

As i mentioned in my letter of 25 june 2010, I am making every effort to obtain the information you require.

However, I would like to draw your attention to the recent ruling in the case of McGuffick V RBS judgement dated 6 October 2009 in relation to "what is considered enforcement". The judgement stated that the bringing of proceedings is not enforcement. It follows that demanding payment is purely a step taken prior to the commencement of proceedings and therefore not considered enforcement. We will continue to report the account status to the Credit Reference Agencies as thi sis also not considered enforcement.

Yours sincerely

 

Anyone know how to respond to both Hillesden and Aktiv Kapital....? (who coincidentally I sent the telephone harrassment letter and account in dispute letter to)

[cerberusalert]

Ignore them.

[twinkle1977]

ok. no letter to aktiv kapital saying account in dispute don't contact me... shame, I quite enjoy a good battle. thanks!!

[cerberusalert]

The letter in post #45 was headed 'Account in Dispute'.