Discontinued claim... but now enforcing judgement??? robbersway/HSBC

[sevenhorsestakes]

I must confess that is very amusing reading. I certainly never meant to or had a direct intention of Hijacking. I joined this thread because it contained information relevant to my problem and case, It has been really useful - VJ for one has provided me with useful insight. I'd also like to thank BD as I hadn't notice the threat information. I don't feel this thread was hijacked just continued in the vain it start. This is a great site and have been grateful for the information I have found for one.

 

Cheers guys. I will return with more on my SB/Harassment case when I have new information.

Edited March 4, 2011 by sevenhorsestakes

[Bigdebtor]

I agree entirely and am sure VJ will welcome your further contributions on "his" thread in the spirit they are offered!

 

Seeing the outcome of these varied posts is a great way to build up our knowledge and confidence to deal with these sharks.

 

BD

[sevenhorsestakes]

Acknowledgement is anything in writing from the debtor. Telephone calls do not count. Acknowledgement could also be a payment, a payment arrangement (again in writing with the permission of the debtor).

 

I just want to go back to this statement here about payment - If a payment was made over the phone does that count or not? Or has the payment to be agreed in writing? I maybe clutch at straws here. But as I have previously said it's sometimes hard to be sure exactly where and what is payment and acknowledgment. The first time they called me - they harassed me and not having a clue they took a payment over the phone - I signed nothing and they took nothing after - that was Sept 2009 - Any thoughts?

[Bigdebtor]

If your statement records the payment - and it has come out of another of your own accounts by credit or debit card then I would say (IMHO) they have succeeded in re-starting the SB period. That is the KEY reason why they are SO KEEN to get a payment of ANY AMOUNT - even £1 - when they contact you.

 

I would say your only hope would be if someone else made that payment on your behalf - and without your knowledge and authority - but it would then be down to you to prove this on balance of probabilities - which would be VERY difficult. Had previous payments been taken for the same debt using the same means in the past? If so, you could argue that they must have replicated that without your authority if you don't remeber making the payment by phone - but again very difficult to prove - and they may well have a recording proving you did agree to the payment by phone. You could ask them to produce the recording and see if they can do so?

 

Sorry - I think you've now got to brazen this out for another 4 1/2 years - so you may need to go down the CCA, then account in dispute route and then CPUTR to hopefully keepm them from going to court.

 

BD

[vjohn82]

I just want to go back to this statement here about payment - If a payment was made over the phone does that count or not? Or has the payment to be agreed in writing? I maybe clutch at straws here. But as I have previously said it's sometimes hard to be sure exactly where and what is payment and acknowledgment. The first time they called me - they harassed me and not having a clue they took a payment over the phone - I signed nothing and they took nothing after - that was Sept 2009 - Any thoughts?

 

A payment is a payment meaning the SB time is "reset". However, I'll add this condition which is a sort of get out clause if you like;

 

There is nothing to stop a DCA from applying a "credit" onto the account and calling it a payment. However, they would have to prove that the payment came from you. The only way of doing this is to fetch the payment record from the bank with the card authorisation code. If they do not have this they cannot prove the payment came from you. Therefore the DB timeline remains intact unless they can prove you paid some money onto the account. Only a card authorisation code can prove this and the burden of proof is upon them.

[Bigdebtor]

I agree with that. I would just stick it out and then - at the 11th hour (the later the better) play the SB card - and hope they can't PROVE where the payment came from.

 

BD

[sevenhorsestakes]

Gentlemen thank you. The reason I asked is that they just don't seem to be getting to the point of...

Oye you - pay or court! Fact is they got me over the phone. fact is they never started a DD. I think you are right... face it out as long as possible until they have the balls to go for it and then ask them to prove it. If they can provide my bank details I am right royally - if not, SB. I have had the agreement audited and it is supposed to have breaches - but this according to the BBC website seems like clutching at straws. Is it worth posting the agreement here and seeing if it's agreed about the breaches?

[vjohn82]

Post it up and I'll have a look. Remove personal info though. And remove anything here which demonstrates that you are admitting to owing anything to them just in case they try to use it against you in the future ;-)

[sevenhorsestakes]

Hi - Attached is a copy of the agreement sent from Monument - according to the Manchester case as sited on the BBC article it should contain the address at the time - which it doesn't. I have managed to attach the agreement.

 

Am having problems posting the other information which is

The application form. I have also attached the audit I received. Will try load again and put them up shortly

[sevenhorsestakes]

Here is the monument agreement and audit.

 

The current situation is that, the DCA there last letter July 26th 2010 after the letter regarding breaches I heard nothing until 24th Jan/3 Feb then 28th Feb - all by emails.

 

I have not replied to date. I thought I'd try and find out if they know they can't win but are trying anyway. I thought it prudent not to write until I was sure. I definitely don't want to have another audit as I simply can't afford one and the BBC suggested caution. I have looked for stock letters that can be adapted - but to no avail.

 

Thanks.

 

SSS

[Bigdebtor]

Gentlemen thank you. The reason I asked is that they just don't seem to be getting to the point of...

Oye you - pay or court! Fact is they got me over the phone. fact is they never started a DD. I think you are right... face it out as long as possible until they have the balls to go for it and then ask them to prove it. If they can provide my bank details I am right royally - if not, SB. I have had the agreement audited and it is supposed to have breaches - but this according to the BBC website seems like clutching at straws. Is it worth posting the agreement here and seeing if it's agreed about the breaches?

 

SS

 

If they already had your bank and card details from previous payments then a possible argument is that they used this info without your permission or authority to deliberately stop the SB happening - but this would need used with care - i.e. you would need to do a SAR and demand copies of telephone recordings as well as all other doumentation. If they can't provide that - then SB could well be on the cards. How much is the balance? That might determine whether they'll fight or just move on to someone who gives them less hassle.

 

BD

[sevenhorsestakes]

They were a new account card so not the case. I agree I think that maybe it would be a good idea to SAR them and see what they have. I do know that from this and other forums you have to keep fighting Cabot as they never give up unless they have no option. But it is obvious they make a lot of mistakes. And would not surprise me in the slightest if the don't have all the documentation.

 

I think a combination of the lack of documentation and the possible breaches could be enough. If not then a F&F arrange would have to be considered.

[Bigdebtor]

SS

 

If new then the more creditor-friendly post 2007 rules will apply. I have set up a thread to try to get info on how readily any DCA will go to court. I have just CCA'd Cabot and they wrote back telling me they'll contcat Barclaycard to get the CCA etc. - but they don't accept the £1 - so if you want to CCA them you don't even need to send the £1.

 

Good luck!

 

BD

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?227592-How-ready-are-various-DCA-s-or-Original-Creditors-to-go-to-Court&p=2520642&viewfull=1#post2520642

[sevenhorsestakes]

SSS

 

If new then the more creditor-friendly post 2007 rules will apply.

 

Good luck!

 

BD

 

Hold your horses!!!! What creditor friendly post 2007 rules? I am stumped, lost and now frothing at the mouth with antici....pation. Please explain?

[Bigdebtor]

Newer agreements seem to be much easier to enforce than older ones - due to (I believe) changes to the CCA in 2007. I don't know much more as mine are all from around 2002 or earlier, so I've never looked into this issue. I recollect one post saying a Bank tried to get a CAGGER on to a new card with "better" T&C's - but he smelt a rat - and it now appears the old CCA was either lost or unenforceable.

 

Sorry to have got you worried - hopefully others with more knowledge can clarify?

 

BD

[sevenhorsestakes]

The situation was that I closed down everything. This was a monument card taken out around 2000/1 - the debt sold to Cabot. The found me after 5 years, because a managed to get a job back in the UK and had to have a bank account. That was it - they got me on the phone I panicked and paid with the new bank card. If they don't have the payment details - I would think they have - then I would do the SAR. But think it sense as said to SAR and find out exactly what they have.

[vjohn82]

This is going to annoy you but all of the images are too small.

 

What you need to do it set up a photobucket account, upload the images there and then post the "img" link in the sharing tool. This is the only way for the images to be presented within the text box (well not the only way but the most simplest).

 

Don't worry about the issue with post-2007 requirements; the legislation is far more consumer friendly than at first glance.

 

Even so, I think an SAR is now the best route for you to follow. Get these images onto photobucket too... it's the only way to examine your docs.

[sevenhorsestakes]

Here's the link to the agreement/reply and breaches

 

http://s1132.photobucket.com/albums/m567/sevenhorsestakes/

[vjohn82]

Nothing signed?

[sevenhorsestakes]

Hi vjohn. That is what they have sent me in total. The Reply Card and T & C along with a statement that shows they have taken £10 from my current account on 12/10/09.

 

In addition - Here's one to think about. They have at last sent me a reply to my Statute Barred for the Abbey and they have sent me a transaction sheet stating payment taken of £10 on the same day as the Monument. So it's not SB.

 

What do you suggest. Send an SAR for all information and see if there is grounds to say they have activated it themselves?

 

The other thing I have is the copy of confirmation and CCA. On this CCA it does include the address but not my name according to the Waksman:

 

• a copy of the loan agreement must contain the name and address of the borrower as it was at the time it was signed

• if an agreement has been subsequently varied by the lender, then the lender is obliged to supply a copy of both the original agreement as well as the current one.

 

This is definitely the original CCA I have left it at photobucket http://s1132.photobucket.com/albums/m567/sevenhorsestakes/CABABBEY/

 

So in light of the above - what is the best course of action? SAR as a matter of course and then see if the CCA can be challenged? Advice appreciated.

[vjohn82]

Two points;

 

1) The credit agreement as it stands does not comply with section 65 of the Consumer Credit Act 1974 and the court is barred from enforcing the agreement under section 127 (3)

 

2) The £10 they claim has been applied... could this have possibly been a £10 SAR fee at any point in the past mistakenly applied to the account? Hmmmm... something to think about ;-)

 

If you have any correspondence post it up aswell.

[sevenhorsestakes]

Hi VJ.

I have so much correspondence from Cabot you could wallpaper your bedroom with it!

So I think that you are referring only to the Monument and the s65 is the section regarding the none inclusion of address and name. As a point does this being under 5k make any difference?

 

Did you have a chance to look at the other one from Abbey - that's the heavy duty on at 31k.

 

As said - they caught me on the phone and I made payment through a DC. They have taken £10 via phone for the Monument and then the same for their other accounts. I am posing an SAR today to find out if they have a transcript of that conversation. If I agreed unwittingly then they have me on that but if I didn't agree for all three on the phone or the cannot prove that I agreed, then they could have cloned the payment and I could contest that.

 

However I feel with both these that they fall short under s65 & s127 and if you agree that is probably the reason they haven't taken me to court. If they prove I agreed payment over the phone, I think the best way forward to be under the breaches suggest that they write the debt off.

[Bigdebtor]

SHS

 

If they've taken more than one payment of £10 then as you say they have "cloned" this.

 

I seem to recollect a similar case where someone did a SAR - but did not include the £10 and subsequently paid the £10 over the phone and the DCA then applied this as a "payment" to stop the SB kicking in. That person had forgotten the actual circumstances until he came across his copy of the SAR letter some time later. The DCA denied getting the SAR letter and stuck to his story but couldn't provide the recording of the phone call to back it up. On "balance of probabilities" a debtor who was savvy enought to go down the SAR route was most unlikely to fall into the trap of paying the £10 to stop the SB kicking in. DCA's DO lose or misfile letters - they get an awful lot of them - and the Interpretation Act deals with the "deeming of delivery" of letters. After all why would a Debtor have a copy of a letter if they didn't send it?

 

I think you should:

a) do the SAR PDQ (to both?) - and see what they have in the way of info - including phone recordings, screen shots etc.

b) search your own files in case you had sent such a SAR letter a couple of weeks or so before the phone call?

 

Just one point - when did you first become aware of the DCA's involvement - maybe it was to Monument themselves you sent the SAR letter?

 

BD

[sevenhorsestakes]

VJ

 

No, I sent an SAR with a PO not a cheque in August 10 and didn't get a reply. The phone payment was made 10/09. As this is only to do with one DCA which is Cabot. I will send them an SAR in respect of all the accounts they have on me and see what transcripts are returned. Then if they don't have a copy of the telephone call from 10/09, then it can be assumed that they cloned the Monumet payment to the other two accounts.

 

Having said that I think that the unenforceablilty under the CCA/T&C sent to me may well be enough. As said after looking at the information on both the NDL and other similar sites. It is unlikely that they will bankrupt me unless it's just for the hell of it. What say you?

[vjohn82]

Have any of the agreements been signed?