Please help - Enforceable Agreement

[Jasper1965]

From the Payplan website:

 

 

Disadvantages of a DMP

 

• It isn't legally binding, so creditors can proceed with court action (although Payplan will assist you with this should it ever occur).
  

 

So if the Payplan DMP is not legally binding this has to work both ways.

 

The cause of action arose on the 27th April 2004 and proceedings were not initiated within a six year period.

 

In the event the account was terminated upon default, the only legally binding contract that existed between you and sainsburys was the original loan agreement and if the termination was longer than six years ago they have lost their right to action under that agreement.

 

Actions founded on simple contract

 

5 Time limit for actions founded on simple contract

 

An action founded on simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued.

 

 

That's quite explicit, it's six years from the date on which the cause of action accrued NOT six years from the date when you last acknowledged or made a payment.

 

 

This does of course depend upon the original agreement having been terminated which we can't be sure of in your case until you receive your SAR back.

 

 

Was the CCA request fully complied with?

[jamtastic]

From the Payplan website:

 

 

Disadvantages of a DMP

 

 

• It isn't legally binding, so creditors can proceed with court action (although Payplan will assist you with this should it ever occur).
  

So if the Payplan DMP is not legally binding this has to work both ways.

 

The cause of action arose on the 27th April 2004 and proceedings were not initiated within a six year period.

 

In the event the account was terminated upon default, the only legally binding contract that existed between you and sainsburys was the original loan agreement and if the termination was longer than six years ago they have lost their right to action under that agreement.

 

Actions founded on simple contract

 

5 Time limit for actions founded on simple contract

 

An action founded on simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued.

 

 

That's quite explicit, it's six years from the date on which the cause of action accrued NOT six years from the date when you last acknowledged or made a payment.

 

 

This does of course depend upon the original agreement having been terminated which we can't be sure of in your case until you receive your SAR back.

 

 

Was the CCA request fully complied with?

 

Thanks for your reply Jasper, I think Im getting the hang of it now, thanks for explaining everything to me - The CAA request was sent on the 23rd March 2010 and I received a letter from them saying they couldnt find it would close the account etc. Then I got a letter dated 21st May 2010 enclosing the CAA. (Which I can post up once I get a chance to blank it out etc.)

 

I've drafted an SAR letter to Sainsburys and also an account in dispute letter to Lowell.

 

Another problem which I might come into is the template letter I used to send the cAA request didnt have without prejudice on it so is that me admitting the debt to Lowell?

 

Thank you

[jamtastic]

The letter that I'm drafting to Lowell to say the account is in dispute how should I best word it to say that I'm contacting sainsburys for the SAR?

 

Does this sound okay or am I going down the wrong route?

 

 

Dear Sirs

 

ACCOUNT IN DISPUTE

I do not acknowledge any debt to your company or your clients.

On 23/03/10 I sent a request for a true copy of the credit agreement under the Consumer Credit Act 1974 by recorded delivery. This was to be supplied to me within 12 working days of receipt. This, you failed to comply with putting your company in a default situation. You finally supplied what you believe to be a true copy of the credit agreement on 27/05/10 (dated 21/05/10) which was actually 30 days late.

 

I will be contacting Sainsburys myself in an attempt to resolve this matter. During this time, this account is considered in dispute, your company must not attempt any recovery activity as this will breach the OFT guidelines.

 

I look forward to hearing from you in writing.

 

Yours faithfully

 

 

 

 

 

 

 

cc Sainsbury's

 

 

?????

[jamtastic]

Sainsbury's Bank plc

City House

City Road

Chester

CH88 3AN.

 

Lowell Financial

Enterprise House

1 Apex View

Leeds

LS11 9BH

 

And these are the addresses I have for both do you know if they are correct?

Thank you

[Jasper1965]

Look I'm sorry as I'm probably overcomplicating things here. The circumstances of my own case were probably very different to those of yours as the a/c had been terminated and sold on several times. It was really just an example of one of many things you would be able to do to make Lowell jump through hoops to gain judgment.

 

You paid sainsburys through Payplan so the repayments will have kept the a/c from going statute barred as the right to action was retained by sainsburys themselves. Where a debt is passed around several DCA's with minimal records it is possible to reach a stage where no right to action can be proven to exist by the claimant such right lost in the chain but but I don't for one minute think this will be the case here.

 

Don't worry about not writing 'without prejudice' etc. concentrate on getting as much info from the OC as possible then having it scrutinised by people who know what to look for.

 

The pressure may well be taken off you simply by posting up that CCA they sent you. Failing that there are many other things that they would have to produce to get a CCj awarded if you defend.

[jamtastic]

Look I'm sorry as I'm probably overcomplicating things here. The circumstances of my own case were probably very different to those of yours as the a/c had been terminated and sold on several times. It was really just an example of one of many things you would be able to do to make Lowell jump through hoops to gain judgment.

 

You paid sainsburys through Payplan so the repayments will have kept the a/c from going statute barred as the right to action was retained by sainsburys themselves. Where a debt is passed around several DCA's with minimal records it is possible to reach a stage where no right to action can be proven to exist by the claimant such right lost in the chain but but I don't for one minute think this will be the case here.

 

Don't worry about not writing 'without prejudice' etc. concentrate on getting as much info from the OC as possible then having it scrutinised by people who know what to look for.

 

The pressure may well be taken off you simply by posting up that CCA they sent you. Failing that there are many other things that they would have to produce to get a CCj awarded if you defend.

 

Thanks for your reply Jasper! I went through some more of my paperwork tonight and found some other bits from Sainsburys which I'll be able to post about properly tomorrow.

Ill send off the SAR tomorrow to Sainsburys recorded delivery with a £10 postal order as I dont have a cheque book. I understand now that the important thing is getting all the paperwork and info off Sainsburys - that makes sense now. I have no idea if the account was terminated at default - I know that they passed it onto a DCA before Lowell (First Credit Management I think) but dont know if this means it was terminated but like you say will have to send the SAR and see what comes back - will be able to post more on the paperwork I found tomorrow.

 

I think it was probably me overcomplicating things with that letter to Lowell as it was partly taken from another person in a similar sitch to mine that I found - it doesnt need all that bumpf in there, its just for my own peace of mind I wanted to send a letter saying the accounts in dispute while I do the SARs thing so I wont be worrying that theyre going to start court proceedings against me.

 

I know that I probably seem like I'm overreacting about the whole them taking me to court/getting a CCJ thing but I'm feeling really really stressed about it, feel sick in my stomach, finding it hard to sleep and just really scared of getting a CCJ keep trying to tell myself not to stress about it as I'll know if they do try as they have to send papers but I just want to do everything to stop it happening (obv) and thought that sending an account in dispute letter to them would put my mind at rest iykwim? Only so they dont start anything while Im waiting for Sainsburys to get back to me about the SAR>?

 

Hope that makes sense, I'll get my CAA up tomorrow and also post about what I've found once I've got the paperwork in front of me

 

Thanks again for posting it has helped me and please bear with a very scared jam!

[jamtastic]

This should hopefully be my agreement blanked out

[jamtastic]

Okay well that was pretty useless

 

Try this:

 

[jamtastic]

Okay so I've printed out the letter for Sainsburys I will go to the post office at lunch and get it sent off recorded delivery with a £10 postal order. I've also redrafted the letter to Lowell as below:

 

ACCOUNT IN DISPUTE

I do not acknowledge any debt to your company or your clients.

I have applied for a Subject Access Request from Sainsburys Bank, they have 40 days in which to respond. During this time, this account is considered in dispute, your company must not attempt any recovery activity as this will breach the OFT guidelines.

 

I look forward to hearing from you in writing.

 

Yours faithfully

 

Is this okay to go now? I should def get these sent off at lunch yes?

[cerberusalert]

Was that credit agreement signed at home or on 'trade premises'?

[jamtastic]

Was that credit agreement signed at home or on 'trade premises'?

 

I signed it at home. Does this make a difference?

[cerberusalert]

There's no 'Right to Cancel' see pages 4 & 5 of the CCCR 1983

3. Consumer Credit (Cancellation...cuments) Regulations 1983..pdf

[jamtastic]

There's no 'Right to Cancel' see pages 4 & 5 of the CCCR 1983

 

Thanks for your reply cerberus there was a second page which had terms and conditions with it which I wasnt able to get on here yesterday and they have a box in them which says "Your Rights" is this what you mean? It seems like unfortunately I have an enforceable agreement but I'm not an expert in these things so if theres anything else you can see that would be great, thanks again for having a look

[cerberusalert]

The right to cancel must be in a box near the signature.

[jamtastic]

The right to cancel must be in a box near the signature.

 

thanks for replying cerberus I've got to go out of the office now but will be back on later this afternoon to catch up properly, so does that mean my agreement doesnt have this? Would it be a tick box or a box with writing in it? (Sorry I havnt had time to read that link yet but will do that when I'm back so apologies if that link explains it!)

 

Speak soon and thanks again!

 

(Am going to Post Office as well to send the SAR)

[cerberusalert]

The link is a pdf file which contains the CCCR 1983, pages 4 & 5 explains all.

[jamtastic]

The link is a pdf file which contains the CCCR 1983, pages 4 & 5 explains all.

 

cheers dude, I've just tried to open up the attachment but it doesnt open and freezes my computer is there anywhere else I can read it?

 

What happens if the terms and conditions and YOUR RIGHTS box is on the back of the signed credit agreement?

 

Thanks!

[jamtastic]

I've sent the SAR to Sainsburys on Friday so will wait and see what I get back.

I sent the "holding" letter to Lowell to tell them that I had SARs Sainsburys and the account is in dispute until Sainsburys come back to me.

 

Am I in a strong position to negotiate F&F with them at the moment? The thing is the default has dropped off my credit report so I dont want to risk going down the non vaild default route as Lowell may be able to put one on now, the agreement looks like its pretty much enforceable so at the moment its not affecting my credit report anymore but I just really dont want a CCJ applied.

 

Is it true if you are negotiating a settlement or have offered monthly payments they cant try and take you to court?

 

What do you think I should do now? Well apart from wait to hear back but its hard because I'm scared of Lowell starting court action!

[cerberusalert]

cheers dude, I've just tried to open up the attachment but it doesnt open and freezes my computer is there anywhere else I can read it?

Try this Powered by Google Docs

[jamtastic]

Try this Powered by Google Docs

 

thanks Ill have a read now - will just see if I can upload the second page they sent me as well:)

[jamtastic]

 

These are the terms and conditions that they included with the CAA.

 

What do you think? Is the fact there isnt a box in the CAA about my ight to cancel near the signature box enough to stand up in court as an unenforceable agreement because everything else looks correct?

 

Thanks

[cerberusalert]

It's still defective if it was signed 'off premises', the right to cancel isn't even in the T&Cs.

[jamtastic]

It's still defective if it was signed 'off premises', the right to cancel isn't even in the T&Cs.

 

thank you - so do you think I'm in a good position to negotiate a full and final? What would you say I should do now?

 

Thanks again - I feel like I can breathe a bit more easily now!

[jamtastic]

Havn't heard anything as yet from either, its 40 days for Sainsburys to reply to the SAR though isnt it?

 

So I cant do anything but wait until they send through that info really. What do you think the chances of Lowell applying for a CCJ are?

[cerberusalert]

yes 40 days. Depending on what's produced will determine your options.