DCA question

[StinkyFeet]

subbing boys & girls

[vengeancedemon]

Larest rubbish from Wescot, in response to telling them that a CCA request made to Apex is still outstanding.

 

They seem convinced that I have to contact the Bank for a CCA request, and it is irrelevant that the first in line, Apex are in default.

Plus they yet again provide an address that would appear to have no relevance to a Current and loan account ( at least Apex said send a CCA to more or less a correct address!)

 

Also, should I tell them that they are most definitely in breach of a Data Protection Act, CCA and CPUTR and that now I am making formal complaint to the regulatory bodies that they are unfit to hold a Con Cred licence?

w1.pdf

[vengeancedemon]

Latest is a letter offering a 30% discount if I pay up on an (unenfoceable) card account or if I contact their friendly helpful team I can pay by installements over 5 years.

 

If as has been observed many times, if you have enforceasble papers why offer a discount?

[debt4get]

totally agree..but you have to admire their persistence in chasing....im holding out for 100% discount....waiting with baited breath..over to you cabot!!

[vengeancedemon]

Any thoughts?

[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

 

Regards

[vengeancedemon]

Awesome !

 

Thank you

[vengeancedemon]

But, the CCA request is still in default from Apex (Nov 08) so are not Westcot acting as third part intervention? and therefore as it is in default still, they are not entitled to pursue in any way

 

Should there also be a NOA from OC even though Westcot say they are acting on behalf of to collect?

 

Presume that the comment to obtain documents myself from Bank is spurious ie W pursuing, they must supply but its in abeyance anyway with Apex

[cerberusalert]

The debt should not have been passed on whilst in default & no Westcot shouldn't.

 

You should have received a NOA yes, and a Default Notice if they've marked your credit file + Termination Notice if they've ended the agreement

[vengeancedemon]

Many thanks for your help:)

[vengeancedemon]

Ey Ey, two more of these, we have the goods on you accounts now being offered a 30 % discount same old same old

[Pinky69]

Cabot are desperate - and they can stay desperate!

[rinkydinkydoo]

Here Here

[vengeancedemon]

And yet another on a supposedly cast iron enforceable etc etc

 

will file, but ignore

[vengeancedemon]

Ohh Scared now, Westcot have now issued a Red pay up or we may send someone round and may start proceedings. Totally ignoring of course that a proper CCA to Apex in Nov 2008 was defaulted and "You should forward your request to OC"

 

Durr, sent them a trespass and Section 10 noticve in Februray, completely ignored of course

 

How stupid are they (Rhetorical question).

Have told them that they are now being reported to all bodies and if I hear anything further I will commence proceedings against them under CPUTR, Prot Harr and Admin J in the criminal(?) courts

 

Anythingh else |I should do?

 

And I dont care if the Barststewards do put two and two together ands work out who this is, they are very very stupid people

[Bazooka Boo]

I would let the CSA know aswell, Welcome to the CSA

 

As they do like to keep there members in line

 

There is another post on here which tells you how to go about seeking compensation from them if they are processing your data without the correct documents, I'll have a look and see if I can find it..

 

Not exactly what I was looking for, but this will give you some idea..

http://www.consumeractiongroup.co.uk/forum/legalities/24013-defaults-proposed-method-removal.html

 

Boo..

Edited April 17, 2010 by Bazooka Boo
Added Link

[vengeancedemon]

Many thanks

 

The CSA? dont they look after their viperous members and to H with the public?

[vengeancedemon]

Ohhhh now I am going to have my doorstep collected, but not if I telephone IMMEDIATELY!

 

(So sends "Trespass" letter)

[spidey41]

i sent the trespass leter so they passed debt over to FIRE now i have had to send the trespass letter to fire as well as they are threatening doorstep collector

[vengeancedemon]

Who are Fire? and have they done anything?

[spidey41]

fire are another part of cabot only the letters seem to be nastier , they only give you a po box to reply to so holds up your response for longer , but at the end of the day if they have no agreement it should be the same routine to put them out

[vengeancedemon]

Ahh, so anything from them just gets P***** upon then?

[spidey41]

that about sums it up yes

[Pinky69]

Cabot should be resurfaced - then evened out with a road roller for good measure!

[setubal]

Yes Fire are Cabot. The address for fire is-----

Unit5 Mitchell Court

Castle Mound Way

Central Park

Rugby

Warwickshire

CV23 OUY.

Hope this address helps. I've been dealing with them since Feb'. They are sending the same crap threats as Cabot--0n a stat' barred debt.