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

[sevenhorsestakes]

No the agreements are as you have seen just T&C. No signature on them. The wakman case - he said it's not necessary to have a signature - which has been a big blow - but it must contain the address and name in the CCA.

 

This is the BBC link: http://news.bbc.co.uk/1/hi/business/8435867.stm

[Bigdebtor]

Be careful not to be led into the DCA trap re what Waksman was actually all about. The signature is not required to comply with S 77/78 but SHOULD be necessary in a properly executed agreement and to enforce the agreement (although it seems some Judges are ignoring this point).

 

CPUTR2008 (see related threads) should flush out whether they do actually have a properly executed agreement. See PriorityOne's posts (and also others) on this powerful weapon.

 

BD

[sevenhorsestakes]

Thanks BD - I think I understand. What I have been sent is the CCA/T&C in response to the s77/78. Correct they don't have the signiture as refered to in Wakman, but also referred to in Wakman was the need for it to contain the name and address at the time. Both the CCA for Monument and abbey are without a name and the Monument doesn't have an address either. According to VJ they are in breach in breach under s65 and 127.

 

In the issuing of my s77/78 to them they have complied and produced documents! whether the ones I have uploaded are properly executed is the question. I uploaded them via photobucket if you would care to take a look.

 

I sent the SAR yesterday to see what the content was of the phone payment made in October 2009. The SAR I sent that I never got a response to last time was in August 2010 and I sent a PO so no access to my account details on it.

 

Re PriorityOne posts have downloaded CPUTR2008going to print and read today.

Edited March 17, 2011 by sevenhorsestakes

[vjohn82]

Compliance wise they have met the standard required by the CCA. If they wish to enforce, they need a signature.

 

Remind me, have they issued proceedings?

[sevenhorsestakes]

Hi vj

 

No they haven't issued proceedings. there is no signature on either agreement and the signature only appears on the reply form for Monument and application form for Abbey.

[Bigdebtor]

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?

 

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.

 

SHS

 

Just noticed this bit. Do you have your bank statements showing two £10 payments taken out on the same day? If so you really need the recording (not just a transcript) of the phone call. If they have cloned the second payment then (IMHO) they will be most reluctant to pursue EITHER debt.

 

I think this will be a much stronger card to play than anything about the £10 being for a SAR.

 

You might need to SAR your bank too to get older statements - but the £10 is cheaper than paying the Bank's charge for every statement requested.

 

BD

[sevenhorsestakes]

Hi, I thought of that already and have a copy of the statement showing three transactions on the same day for the same amount of £10. I have already sent an SAR to Cabot and will wait to see the results. If there transcript of the conversation comes back and it is as you say a question of whether they have written to suit or not. I will ask for a copy of the recording. If they have it and they are right, it that's fair play to them.

 

In the meantime I just want to establish if the T&C - CCA's that they have sent are enforceable or not.

[Bigdebtor]

SHS

 

I thought you had been pressured into agreeing to pay £10 to one creditor. Do you think it might have been to all 3?

 

Might it be worth clarifying - before they do the transcript - that you want a copy of the actual recording - so they don't destroy it?

 

There are two opposing views

1. Is it stronger to have nothing at all on the conversation (i.e force them to admit they don't have a recording - even if they're lying) than a transcript which might be forged but would still be your word against theirs?

2. If they give you a transcript it's most likely they made it just to satisfy the SAR - as I doubt the type up every call afterwards. So if they give you a dodgy transcript and then can't back it up with a copy of the recording then surely they're on even thinner ice - as how on earth did they make the transcript and if it was from the recording why on earth didn't they keep it, knowing how important it might be?

 

Not sure what views best though?

 

BD

[sevenhorsestakes]

Hi BD - I think your point is very interesting and very will thought out. I think that the SAR will be telling. If they provide the transcription I will ask for a copy of the recording - if they can not provide a copy of the transcript in recorded for it actually counts for nothing. That is what they would have to produce in court to prove that they are right and they were right to take the money.

 

The 3 payments are separated and they have sent me copies for each of the accounts they hold against me to prove they have taken against each account. On my bank statement it is just three separate transactions.

 

This give me enough time to see if there is any room in the unenforcabilty of the agreements.

 

Thanks

 

SSS

[Bigdebtor]

SSS

 

Is it not a bit odd that the one DCA was acting for all 3 OC's?

 

BD

[sevenhorsestakes]

Cabot bought the first two from MBNA - abbey and A&L then Monument. They are very aggressive and have never given up - why should they of course. It come down to the last showdown. So If they have the recording and they have the proof I agreed. The only question is if they are unenforceable.

[Bigdebtor]

SSS

 

Good luck! Cabot have just bought an old Barclaycard debt which I thought might reach SB. I have just CCA'd them - and they replied to say they have asked Barclaycard for the info but it may take a bit of time - and they returned by £1 PO. Unfortunately it was made out to them so I can't cash it in again!

 

It will be interesting to see what they come up with - and CPUTR will probably be my next move.

 

BD

[vjohn82]

• Last payment made was in June 2004.
   
  
• CCJ registered 14/02/06.
   
  
• Judgement set aside in Dec 2009 under "judgement entered in error".
  

 

No other acknowledgement made of debt in that time.

 

Is the debt statute barred?

[cerberusalert]

Is the debt statute barred?

Yes. In this case it reverts to 'as was' as if no judgement was made.

[vjohn82]

My thoughts exactly.

 

Have a butchers at this letter if you get the chance please... there seems to be a lot wrong in their letter especially reg. acknowledgement

 

 

 

[vjohn82]

This is what I sent:

 

 

Dear Mr Prosser,

 

I found your details on the Credit Services Association website as the first point of contact for all

complaints relating to issues with Robinson Way Limited hence me writing directly to you.

 

My letter is regarding the correspondence I received this morning, dated 24/01/11, from Robinson

Way Limited stating that you are now making a “FORMAL DEMAND” for payment on this account.

The letter contains a number of points which are all contrary to the Consumer Protection from Unfair

Trading Regulations 2008 and also with the recent Credit Services Association/Office of Fair Trading

collaboration regarding the form and content of debt collection letters. Furthermore, the letter I

received invokes issues related to the OFT Debt Collection Guidance which Robinson Way Limited

are bound by their membership with the CSA to follow.

 

I was surprised and more than concerned that your firm have again contacted me demanding a

payment on this account. I received a similarly worded letter last month but I filed it because I

believed that it must have been some sort of admin error, so long has it been since I last heard from

you. However, this new letter has given me such concern that my only option was to contact you

directly.

 

My complaint initially considers the OFT Debt Collection Guidance content on statute barred

debts/accounts. You can find this information for yourself on page 9 of the guidance. It states:

2.14 In the past we have dealt with a number of statute barred debt cases governed by the Limitation

Act 1980, which applies to England and Wales. Based on that experience our position with regard to

England and Wales remains:

 

a. we accept legally the debt exists

b. it is the methods by which the debt is collected that can be unfair as follows:

• it is unfair to pursue the debt if the debtor has heard nothing from the creditor

during the relevant limitation period

• if a creditor has been in regular contact with a debtor before the debt is statute

barred, then we do not consider it unfair to continue to attempt to recover the debt

• it is unfair to mislead debtors as to their rights and obligations, for example, falsely

stating or implying that the debt is still legally recoverable and relying on consumers

not knowing the relevant legal provisions, and

• continuing to press for payment after a debtor has stated that they will not be

paying a debt because it is statute barred could amount to harassment contrary to

section 40 (1) of the Administration of Justice Act 1970.

 

I have written to your firm on no less than 13 occasions informing you that the debt is statute barred

and that I wanted you to stop contacting me. Now that you have continued to do so, you have

breached the OFT guidance and the CSA membership guidelines. Unless there is a perfectly good

excuse, and I cannot imagine what one would look like, then I revert back to the guidance and state

that my complaint has merit and should be investigated.

 

The second portion of my complaint considers matters relating to the content of the letter. I refer to

CSA Code Clause 1b, 4j and paragraphs 2.2b and 2.2c of the Debt Collection Guidance where I

believe your firm are committed breaches of those conditions which set out how you communicate

with alleged debtors. The use of “enforcement” and “court orders” are misleading terms not only

because you have been informed the debt is statute barred but because the legal remedies are not open

to you anyway.

 

Furthermore, the use of “enforcement by court officers”, “order for deductions from your earnings”,

“unpaid court order”, and the court considering “your refusal or neglect to pay” are all terms which

pre-empt any processes that are undertaken under the civil procedure rules, are terms which attempt to

exploit a potential debtors lack of knowledge and are perceived to be threatening. The relevant issues

with this area of the letter are clarified by the CSA Code Clauses 4a, 4b, 4j7 and paragraphs 2.2b, 2.4b

and 2.6g of the Debt Collection Guidance.

 

The letter also breaches CSA Code Clause 4q and paragraph 2.6g of the Debt Collection Guidance

because the threat of court action is more than apparent despite the position being that the debt is

statute barred. Your firm have been informed of this and yet you continue to make these threats.

You might also like to refer to CSA Code Clause 1b, 4a, 4b and paragraph 2.6g of the Debt Collection

Guidance because using phrases like the one below are considered:

 

“THIS DEBT WILL NOT GO AWAY – IT MAKES SENSE TO PAY”

 

The debt has to go away at the point where you have been informed that it is statute barred. Your

continued presence on my doorstep is disconcerting and is preventing me from moving on with my

life.

 

SETTLEMENT

 

In light of the above complaints I am preparing to take legal action to stop your company from

contacting me and to use the consumer protection laws to their fullest extent to ensure that your

company gets the message that oppressive tactics are draconian and not conducive to any sort of

humanist philosophy. I understand you have a business to run but any business must be conducted

legally, within all consumer regulations and with due concern for the people you are contacting.

Your firm have already made it very obvious that you are not willing to cease contacting me and have

made it clear, once again, that court action is going to happen. Therefore, please take note that I will

issue legal proceedings within the next 14 days unless your firm agree to the following:

 

1. Remove all of my details from your systems in compliance with section 10 of the Data

Protection Act 1998 thus ensuring that I receive no more threatening letters.

2. Agree to revise your literature in line with the OFT and CSA collaborative effort in ensuring

transparency with customers going forward.

3. Pay £250 compensation in recognition of your harassment, non compliance with consumer

legislation and regulations, non compliance with OFT and CSA regulations when contacting

alleged debtors and for all of the time I have spent in correspondence reiterating that the

account is statute barred.

 

These three conditions are absolutely non-negotiable because number one, I should not be contacted

by your organisation because there is no contract in force allowing you to retain my personal data.

Number two, you should already be meeting every section of the OFT and CSA guidance because

your consumer credit licence depends upon it and number three because I can demonstrate that you

have been breaching the relevant laws and that £250 is considered to be appropriate reparations, at

this stage, for your companies conduct.

 

Please also be advised that my husband, xxxxxxxxxxx, has my complete authority to act on my

behalf in these matters and I agree to any data protection principle which is invoked because of this.

Acknowledgement of this letter is requested within 7 days and a letter resolving matters within 14

days is politely requested.

 

[Guest]

vjohn

this HL judgement may also give an idea of what could be regarded as an 'acknowlegement'.

bradford and bingley v rashid 2006 UKHL 37

[silverfox1961]

Just throwing a thought in here.

 

When a judgement is set aside, isn't that all it is-set aside. The original court claim still stands, giving the solicitors another bite of the cherry

 

When a court claim is filed, the clock is stopped for SB purposes

[cerberusalert]

They cannot rely on a telephone conversation as an admittance of liability, nor can they take enforcement on a judgement that has been set-aside. the very fact that it is set aside means it goes back to square one as if it never existed.

[vjohn82]

Just throwing a thought in here.

 

When a judgement is set aside, isn't that all it is-set aside. The original court claim still stands, giving the solicitors another bite of the cherry

 

When a court claim is filed, the clock is stopped for SB purposes

 

The original claimant had sold the account and thus would have no cause of action in any proceedings that might have automatically followed... plus the original judgement was a split claim I think... but no-one had any details of the POC or any associated paperwork so in all effect the judgement should never have been entered.

 

The first my wife knew about it was when we started digging around... weird set of events!

[vjohn82]

vjohn

this HL judgement may also give an idea of what could be regarded as an 'acknowlegement'.

bradford and bingley v rashid 2006 UKHL 37

 

Interesting, thanks. None of the letters they have ever received have entertained indebtedness or proposed negotiation; all letters have been for the purpose of fact finding.

 

They cannot rely on a telephone conversation as an admittance of liability, nor can they take enforcement on a judgement that has been set-aside. the very fact that it is set aside means it goes back to square one as if it never existed.

 

Thought as much... isn't their letter evidence of a misleading statement?

[cerberusalert]

isn't their letter evidence of a misleading statement?

Yes.

[vjohn82]

Any advice on next steps bearing in mind the letter they sent?

 

Obviously this is their final response... but I'm not sure that they have investigated this properly. Not only that, but do the FOS consider the OFT Debt Collection Guidance etc?

[royalscot]

subbing

[cerberusalert]

I would wait to see what other trash they'll dream up.