We have so much debt, it seems only hope is selling house!

[wilchil64]

ps - sorry - just realised i had left your home address in the above sample letter - hope life is good in 7th heaven!

 

lol

[Undercover-Elsa]

Hi,

It's more usual to send a CCA Request first (agreements prior to April 2007) then if they come up with a recon ask if they do indeed hold an original signed agreement and refer them to CPUTR 2008 (sections 5 and 6) (which requires them to respond honestly).

 

Elsa x

[Bigdebtor]

Elsa

 

Thanks for this - but can we not just go straight for CPUTR - put them on the spot earlier in the process AND save the £1 they charge for their reCONstituted S77/78 guff (with emphasis on the CON)?

 

I think one risk of using CCA is they send a photocopy of a microfiched signature page with contemporaneous T&C's (or mor elikely irrelevant non-applicable T&C's) - and you are left not sure if this is just a print of a microfiche or an actual copy of the original which they still have - and if they take this copy to a creditor-friendly judge he will accept it on balance of probablities - whereas asking them under CPUTR is more likely to put them on the back foot.

 

After all, isn't the objective of S77/&8 to give us "information" on the agreement?

 

Most of us just want to KNOW - can they enforce it or not?

 

This is just my opinion - no experience of this personally - as so far NO ONE has taken me to court (although many have threatened and then accepted token payments, low F&F's - or are still in dispute).

 

BD

Edited February 8, 2011 by Bigdebtor

[Undercover-Elsa]

Well you could, but I always feel it's best to be seen to be the reasonable one (should it ever get to court) in requesting it through the normal method first.

That way you give them fair chance to respond in the timeframe, and can then dispute the account if they fail to comply.

Once they do reply, you may then have more ammo against them if they use smoke and mirrors to confuse you.

Put more succinctly.......Give them enough rope..then utilise CPUTR 2008 to put them on the spot.

 

Just my opinion, of course

[Bigdebtor]

Elsa

 

Thanks for the prompt reply.

 

I'm really not sure - which is why I'm asking the question - but my view would be to delay and rebut their claims as long as possible - especially once farmed out to a DCA or bought by clowns like Aktiv Kapital or Cabot - and then if they do actually produce something which I think will be an enforceable agreement then I would try to avoid court by negotiating ongoing token payments (based on CCCS suggestions based on my I&E) or low F&F's (with funding help from my family).

 

This is just my opinion - and probably not based on as much experience as yours - but it seems to me that both approaches are valid - so if anyone has specific info or evidence against mine then I would really appreciate knowing before I do something wrong.

 

Thanks again

 

BD

[AnnC]

I have been through the same as you and my husband still struggles to deal with the creditors. However, the advice is sound and you need to take a deep breath and start sending those CCA letters to everyone. Get yourself organised, make a file for every creditor and keep copies of everything in there. If they start to phone you, there is a letter that you can send to stop the calls, if they ignore it, just refuse to speak to them, you know when its them as they will want to ask you the usual security questions - just say no and put the phone down. They may threaten to send someone round, again there is a letter on the site to stop that. Believe me, the help I have got from this website over the last year or so has stopped me going under from the pressure. I don't panic anymore, when we recently got a letter from an older creditor, instead of panicking my first thought was "I know where I can get help with this - here". Good luck.

[Undercover-Elsa]

Hi BD,

Fair enough, but I would not recommend sending that particular letter. Unfortunately there's quite a lot wrong with it.

I appreciate that you want other opinions though, so I'll let others explain it....why not pm Priority One?

kind regards,

 

Elsa x

[Bigdebtor]

Elsa

 

I cobbled it together from other bits on various threads - so fully accept that it may well be quite flawed, and I really don't want to look stupid or a "barrack room" lawyer in front of creditors - and especially DCA's.

 

I'll pm P1 as you suggest but I'm equally keen to hear your own views on what's wrong with it if you've got time.

 

Thanks again

 

BD:-)

[Undercover-Elsa]

Hi BD,

I'm happy to go through it, but didn't want to seem to be being "not nice" by pulling it to bits uninvited.

Elsa x

 

I refer to your letter dated dd/mm/yy and now formally request, under the Consumer Protection From Unfair Trading Regulations 2008 (specifically regulations 5 and 6) and the Office of Fair Trading Guidance on debt collection that you confirm whether you currently hold or have ever held a properly Executed Credit Agreement pertaining to the above account and if so please forward a copy to me by return.

If YOU DO NOT have a signed, properly executed Consumer Credit Act Agreement pertaining to myself, then I require written confirmation by return (CPUTR 2008 reg 5 and 6).

Above para is used as a response when they have failed to supply an enforceable agreement IN RESPONSE TO A CCA REQUEST. Also, it would be seen as unreasonable to demand the document or a response BY RETURN. Also a request under CPUTR 2008 is for INFORMATION/ CONFIRMATION not documentation..(much like Practice Direction Part 18 once a summons has been issued) the offence lies in not giving you accurate information OR withholding information which may influence a transactional decision.

I understand that under the Consumer Credit Act, creditors are unable to enforce an agreement if they fail to comply with such a request. This applies to non compliance with a CCA request, not to a request for info under CPUTR. The penalty for non compliance with CPUTR is in action taken by the OFT/Trading Standards or as part of your defence if it went to Court.

Also, since you are a Debt Collection Agency, I would also ask that you supply a signed true copy of the executed deed of assignment for the above referenced agreement. This is an obligation, whether you are the original creditor or not, under section 189 of the Consumer Credit Act 1974.

All Section 189 does is define the creditor in terms of assignment. There is no obligation under s 189 to supply a Deed of Assignment. Under the Law of Property Act 1925 they are legally required to provide you with a NOTICE of Assignment.

If they are the original creditor there won't be a Deed of Assignment. If the DCA is simply acting for the creditor ("our client"), there won't be a Deed of Assignment. (This is a wodge of docs about 20 pages long and afaik not usually supplied unless court action is instigated).

Why would you want this? The main potential benefit to a debtor in assignment matters is only after a case has gone to court, when, if the debtor has not received a NOTICE of ASSIGNMENT (not deed) by a recordable method PRIOR to court action, and the action is being solely taken by the assignee, it can scupper the claim. If you point out to them before then that you haven't received one they can simply issue another before issuing a claim.)

Non-compliance with my request is a criminal offence under the above Act and will result in a report being submitted to the relevant statutory authorities.

As your request for documents by return is unreasonable this statement is wrong and inappropriate. It should be placed directly below the CPUTR request and instead state "Non compliance with relevant sections of CPUTR 2008 is a criminal offence" I wouldn't include it at all TBH.

 

In summary, I DO NOT ACKNOWLEDGE THIS DEBT AND THEREFORE REQUIRE YOU TO SUBSTANTIATE THIS BY PROVIDING THE FOLLOWING DOCUMENTATION BEFORE I CORRESPOND FURTHER :

1.True copy of original credit agreement a recon IS classed as a "true copy" unfortunately

2.Statement of account

The above is, in effect a CCA Request but without the £1 and formal wording has little effect and provides no protection in event of non compliance.

3.Copy of the executed deed of assignment from the original creditor

4.Fair Processing Notice.

3 and 4...more appropriate in a SAR or CPR 31.14 request once legal action has commenced.

As you are aware, a credit agreement that is not properly documented and signed by the customer is totally unenforceable under the CCA and therefore is a complete defence to any court claim that is issued. (Pre April 2007)

Take note at this stage, that any legal action you may contemplate will be both vigorously defended and contested.

Further to the above, please ensure that any contact by yourselves or any agent or associated company or organisation is made in writing only to the above address or by e-mail. telephone calls and personal visits will not be accepted and viewed as harassment. Continued telephone calls after the receipt of a request not to call may constitute a criminal offence under Section 127 of the Communications Act 2003.

 

As this account is now in dispute, (on what basis? - you haven't sent a CCA Request which they've subsequently failed to satisfy, or given them chance to respond to your CPUTR request in this letter)

I would also draw your attention to The Banking Code section 13.6:-

We may give information to the Credit Reference Agencies about personal debts you owe us if:

·The Amount Owed is Not in Dispute.

The Office of Fair Trading provided a Code of Guidance that is in relation to Debt Collection: OFT 664 Response to consultation paper and final guidance on unfair business practices dated July 2003

Deceptive and/or Unfair Methods-

2.8 Examples of unfair practices are as follows:-

k. Not ceasing collection activity whilst investigating a reasonably queried or disputed debt.

 

If you continue in your pursuance of this account I will have no other alternative than to report you to both The Information Commissioner and The Office of Fair Trading (OFT). Furthermore, I shall submit a Consumer Credit Act 1974 complaint to the OFT upon the basis that you have failed to comply with the OFT's direction of 5 April 2006 and are therefore not a 'fit and proper person' to hold a consumer credit licence under the 1974 Act.

 

If you do not understand what this means then I would recommend you seek appropriate independent legal advice.

 

Yours faithfully

 

 

There's probably other things I've missed, or points others may not agree with.

I still think it's far better to CCA first, then send a request for information under CPUTR depending on what you get back. In your CPUTR request, always refer to "an original signed, executed agreement" rather than a "true copy" which it has been clarified can include a recon.

Edited February 9, 2011 by Undercover-Elsa

[Bigdebtor]

Elsa

 

Thanks for that. I do appreciate it - and take on board all you write. I have been asking for a while "Why CCA when CPUTR is more powerful?" You've just answered that. What worries me a bit is that ALL of this came from various other letters I've found on CAG (nowhere else) - including the bit about going straight for the Deed of Assignment (which I know they'll never produce as it shows exactly what they've bought the debt for - if an absolute assigment) and bypassing the NOA. It would seem other CAGGERS are using a similarly badly worded CPUTR version.

 

I need to go back to the drawing board on this - as I don't want to show how little actual legal knowledge I have.

 

However I have one case where they've sent me a copy of a microfiche agreement (without me asking under CCA) - with my signature - but I need to flush out if they have the original - so am struggling a bit as to what to say to them now you've shot down my draft!

 

 

Thanks again (seriously! - not !)

 

BD

 

PS - PriorityOne's pm box is full - so couldn't pm him. Hope he sees this post?

Edited February 9, 2011 by Bigdebtor

[Undercover-Elsa]

Hi BD,

No probs, it's a constant steep learning curve for us all on here.

Any letters P1 has used/advised re CPUTR will be spot on, but you do need to make it specific to you and sometimes mixing and matching bits of templates can cause inaccuracies. I'm not all that au fait with Assignment myself, here's a good thread:

http://www.consumeractiongroup.co.uk/forum/showthread.php?242324-Notice-of-Assignment-the-law-of-Property-Act-Arrow-Global

 

Is the microfiche legible and does it contain the prescribed terms?

Better yet do you have a thread on this, then we can all get our Caggy heads together and draft the perfect bespoke letter for your circumstances 8-)

[Bigdebtor]

Elsa

 

The microfiche is an Egg agreement - which I had hoped PT2537 would get ruled unenforceable last year - but it is legible and does seem to have precribed terms, although I'm not at all certain the other pages are actually from my own agreement - probably just samples of the T&C's applying at that time. I would like to know if they have the ORIGINAL - as otherwise I would call their bluff and let them go to court if they dared. I'm in Scotland so they would need to AVER they have the original before taking any court action - but CCA, CPUTR etc. is all as in England (and the adjoining small principality which we Scots used to rule too:-)).

 

I'll take up your suggestion and start a thread so I can hopefully get a perefect bespoke letter to send off. I'm in no great hurry as I'm still at the stage of ignoring their "please contact us to discuss" letters.

 

Thanks again

 

BD

[Undercover-Elsa]

Ahh good old Egg. A lot of their accounts seem to have gone very quiet, maybe due to the fact that Citibank is trying to offload Egg (they're not exactly scrambling to buy it... no one has shelled out for it yet)

Let us have a link when your thread's up..

 

Elsa xx

[Neeta]

Hi all, just wanted to let you know about a mini success

 

Today I received a letter from one of our creditors Clarity (card transferred from Diners to Citibank to Clarity over the years) stating they are happy to accept our arrangement to pay a reduced amount and have frozen all charges and interest. They have done this without any request for I&E etc and from our first offer. So it can be done!

 

Regards

N x

[AnnC]

Congratulations. I hope you have similar success with the others.

[Bigdebtor]

Neeta

 

That's good news - but probably means the original signed CCA is lost or unenforceable - so there may be an even better deal to be had here - like paying nothing more or negotiating a 10-15% F&F (for peace of mind if they pester you).

 

Have you asked for the CCA at any time, how much is the balance, when did you last pay and how much less have you offered than the previous minimum monthly payments required?

 

I don't want to seem nosey - but this info is important in putting things into context so others can see the full circumstances of the offer.

 

BD

[Neeta]

Neeta

 

That's good news - but probably means the original signed CCA is lost or unenforceable - so there may be an even better deal to be had here - like paying nothing more or negotiating a 10-15% F&F (for peace of mind if they pester you).

 

Have you asked for the CCA at any time, how much is the balance, when did you last pay and how much less have you offered than the previous minimum monthly payments required?

 

I don't want to seem nosey - but this info is important in putting things into context so others can see the full circumstances of the offer.

 

BD

 

I haven't actually asked them for the CCA, to be honest I don't want the stress of courts and arguing about whether something is enforceable, I've been ill too long to go through anything more and it scares the hell out of me so Im happy to pay these debts just as long as I can pay what I can afford. We're hoping to get some money together to be able to offer F&F at some point in the future.

 

In answer to your other questions the balance is £7500 approx and we have offered £40 pm, we haven't paid anything on this for the last 2 years but while the card was with Citibank they didn't pursue us at all and I never bothered with them either. I'm thinking now after your questions and comments that maybe I should have done things differently but this whole thing is so stressful for me I'm scared it will make me ill again.

 

Regards

 

N x

Edited February 16, 2011 by Neeta
advice

[Bigdebtor]

Neeta

 

OK - fair enough. I understand how stressful this can be - believe me! I've always found it worth asking for an F&F figure early on - as that gives you a marker for the MOST you'll likely to pay that OC or DCA - as it's difficult for them to put it up but you can always offer less in future.

 

Another argument for an early F&F is that if they agree on say one third (33.33%) then every two thirds of what you pay monthly is going down the drain. For example if you paid all creditors combined £150 per month on a total £15000 of debt (1% or more is typically what a DCA will try to get initially if interest and charges frozen) and they offered a 33.33% F&F you could settle now for £5000. If you didn't do an F&F now but paid the £150 for ten more months and then did the F&F they would settle for £4500 - but the amount you would have paid would be £6000 - this £4500 plus the £1500 (ten payments of £150) paid over the previous ten months.

 

So early F&F's are always better - unless you get them so worried you'll stop all payments that they reduce the F&F % pretty quickly and pretty far.

 

Hope this makes sense?

 

BD

 

PS - You should edit out the exact figure shown above to just "£7500 approx" - so you can't be identified from the exact balance you're showing.

[Neeta]

Makes perfect sense BD, thanks for the advice

 

N

[Tingy]

Hi all, just wanted to let you know about a mini success

 

Today I received a letter from one of our creditors Clarity (card transferred from Diners to Citibank to Clarity over the years) stating they are happy to accept our arrangement to pay a reduced amount and have frozen all charges and interest. They have done this without any request for I&E etc and from our first offer. So it can be done!

 

Regards

N x

 

 

That's great news and it's a positive start. Well done. Sorry, I've only just got in so am late catching up tonight!

[wilchil64]

Sorry haven't posted for a while - haven't been receiving updates strangely!

 

Anyway, Neeta that's good news, glad to hear that.

 

We too have a mini success. Two creditors,Sainsos and M& S have accepted £1 monthly payments for now. The others aren't pestering as much at the moment, but I'm sure that'll change. Several have requested proof of mortgage, proof of income, docs signed by the job centre, bank statements etc. Is there anything that says whether they are entitled or not entitled to this information that I can quote at them/point them in the direction of? Or should I send this info to them? Actually, we have sent a copy of a bank statement and mortgage docs to one creditor but heavily edited, i.e. we scanned and then took out the information we didn't think they needed, i.e. most of it, apart from my husband's name and address and the actual sum! Hope it'll be enough for them to tick a box and accept lower payment offered.

[Bigdebtor]

Wilchil

 

Not sure about guidelines about what they can ask for. I think they have to accept the Common Financial Statement format used by National Debtline etc. - but can't quote anything to back this up. Basically if you have things that will back up your case - like Job Centre documents etc. then I don't see any great harm in giving them. If anything will harm your case then I would then fall back to just giving abbreviated I&E and heavily edited bank statements.

 

Hope this helps?

 

BD

[wilchil64]

Thanks BD.

[Bigdebtor]

Wilchill

 

Some good reading here about MBNA.

 

BD

 

http://www.bbc.co.uk/news/business-12622318

[wilchil64]

Thanks BD, very interesting reading!

 

Quick update:

 

5 out of 7 creditors have accepted our token offers for varying periods of time (3, 6 and 12 months). MBNA and Sant ander loan are still being stubborn.