Santander/CCM issued claim for car finance on faulty DN/term - refused £1PCM sold it on

[Bazooka Boo]

Keep a diary of events regarding their phone calls, if they persist then you should make a formal complaint to your local Police station for the criminal offence of harassment.

http://www.bbc.co.uk/news/business-13199797

[Always Struggling]

Just a thought but would it be worthwhile mentioning the current contact from a DCA while it is now in default by including something in the letter. I have put it in italics a paragraph added .... or to not mention anything for the moment?

 

Dear Sir/Madam

You have failed to respond to my legal request to supply me a true copy of the original Consumer Credit Agreement for the above account.

On **DATE** I made a formal request for a true signed agreement for the alleged account under consumer credit Act 1974 s77/78. This was signed for as delivered on the **DATE**

You have failed to comply with my request, and as such the account entered default on **DATE** (12+2 working days after you made the initial request).

The document that you are obliged to send me is a true copy of the executed agreement that contained all of the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself as defined in section 61(1) of CCA 74 and subsequent Statutory Instruments. If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document. In addition a full statement of this account should have been sent to me detailing all debits and credits to the account.

Furthermore, you are aware that the Consumer Credit Act allows 12 working days for a request for a true copy of a credit agreement to be carried out before you enter into a default situation.

This limit has expired.

As you are no doubt aware section 78(6) states:

If the creditor fails to comply with Subsection (1)

(a) He is not entitled , while the default continues, to enforce the agreement.

Therefore this account has become currently unenforceable at law.

As you have failed to comply with a lawful request for a true, signed copy of the said agreement and other relevant documents mentioned in it, Failed to send a full statement of the account and Failed to provide any of the documentation requested. You will also be aware of the CPUTR 2008 and the OFT's guidelines on debt collection which state under the title Deceptive and/or unfair methods - Examples of unfair practices are as follows - 2.8

(i) - 'Failing to investigate and/or provide details as appropriate, when a debt is queried or disputed, possibly resulting in debtors being wrongly pursued'

(k) - 'Not ceasing collection activity whilst investigating a reasonable queried or disputed debt'

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

Furthermore I shall counterclaim that any such action constitutes unlawful harassment.

It appears that not only are you in default of the afore mentioned legal request but I have now recieved telephone calls from a debt collection agency apparently acting on your behalf. This would appear to be in violation of the fact you are currently in default of my CCA request.

I reserve the right to report your actions to any such regulatory authorities as I see fit.

You have 21 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint.

 

I look forward to hearing from you.

This should be in writing, I have no wish to correspond by telephone.

 

**In relation to the afore mentioned telephone call from a debt collection agency, can you please send a Notice of Assignment in regards this matter.

 

Yours faithfully

Edited May 18, 2011 by Always Struggling
Last 2 lines added

[teaboy2]

looks good to me.

[bmwman]

Hi always struggling

 

I have just seen your default notice and it is invalid within the body of text it must contain the creditors name and address yours does not. It appears many creditors and DCA'S are still not compling with the OFT's Debt Collection Guide Lines 2006

OFT Debt Collection Guide Lines.pdf

[Always Struggling]

Yep, thx bmw.... TB mentioned it also. As it is somethring rectifiable I think we're 'keeping mum' on that point perhaps it'll get sold on - then its value increases

 

My personal view is that I can't believe these kind of things are continuously going on today. These people are doing a job that they would appear not to understand are legally binding points, they seem not to care one way or another, just that they look like they are following the rules (even if the aren't)

Edited May 18, 2011 by Always Struggling

[naomi25]

have today recieved a letter form the DCA stating that on the 17th May 2011 they purchased this agreement under a written agreement with Santander. Will scan this up for you to see later. Is this my notice of assignment? as not sure thanks

[Always Struggling]

If that is the case then I'm sure they have a problem then. As mentioned before with the DN being invalid then if it has in fact been sold on then they are unable to correct this situation as they (the DCA) were not party to the original agreement and so cannot rectify the invalid DN.

 

I'm sure teaboy, bmw or someone will clarify this point and explain better to you exactly what the situation is in regards this.

[Always Struggling]

Plus Santander had received the CCA request prior to the sale of the debt to the DCA and had not complied with the request. I'll have a read up and see if this has any bearing on the matter also.

[Always Struggling]

Have just had a quick read on another thread where santander did the same thing, ignored the CCA request, apparently with a view to selling it on elsewhere quickly. It would appear that CCM will try to bully and threaten with CCJ's etc. regardless of failures by santander and then try to begin / persue court action. Not sure if they are aware of faults made by Santander or not.

Keep a log of everything (including telphone calls they make -dates and times - messages left etc) as this will all go in your defence. Main thing is not to worry as I feel they fall way short of following any pre-court action permitted.

 

Maybe they also fall foul by even threatening court action as this account is in dispute now through Santanders failure to comply with the CCA request.

What (if anything) should naomi send to CCM?

Should she write to them stating about the CCA request default by Santander or mention the invalid DN?

[teaboy2]

have today recieved a letter form the DCA stating that on the 17th May 2011 they purchased this agreement under a written agreement with Santander. Will scan this up for you to see later. Is this my notice of assignment? as not sure thanks

 

Naomi, if they have defiantly sold the account to the DCA and the default notice sent to you was invalid, then they santander have now committed unlawful rescission of contract, which once the account is sold they can not remedy the default notice as the agreement between yourself and santander ceases to exist once the account is sold. so the following applies.

 

"Failure of a Default or Termination Notice to be accurate not only invalidates such notice (Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1998 ) but it is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt (Wilson v First County Trust Ltd (2003) UKHL 40, Wilson V Robertsons (London) Ltd(2006) EWCA Civ 1088, Wilson v Pawnbrokers (2005) EWCA Civ 147) - but would also give the claimant a claim for damages in the sum of £1000 (Kpohraror v Woolwich Building Society (1996) 4 All ER 119)."

 

Simplay sent the DCA the following letter,

 

 

Account/Ref Number xxxxxx

 

Dear Sir/madam

 

UNLAWFUL RESCISSION OF CONTRACT - ACCOUNT IN SERIOUS DISPUTE

 

I am writing to you in reference to the account/ref number above. You claimed in your letter dated DD/MM/YY that you have now purchased the account from santander. I therefore bring to your attention a photocopy of the INVALID Default Notice received from Santander (If not DN was received then edit this to suit) (go on to explian reason it is invalid)

 

As you are aware, selling of an account is an act of termination of agreement - Therefore once the account was sold, the agreement between myself and Santander ceased to exist. As you are also aware that only when the agreement is still in place, can Santander remedy the invalid default notice NOTE: Only an original party to the agreement can remedy a breach of the agreement and yourselves were not named original parties to the agreement. As such you are not legally entitled to remedy invalid default notice, and as Santander have sold the account to yourselves, then Santander also are not legally entitled to remedy the agreement as the agreement ceased to exist when the account was sold to yourselves.

 

I there for refer you to the relevant case law:

 

Failure of a Default or Termination Notice to be accurate not only invalidates such notice (Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1998 ) but it is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt (Wilson v First County Trust Ltd (2003) UKHL 40, Wilson V Robertsons (London) Ltd(2006) EWCA Civ 1088, Wilson v Pawnbrokers (2005) EWCA Civ 147) - but would also give the claimant a claim for damages in the sum of £1000 (Kpohraror v Woolwich Building Society (1996) 4 All ER 119).

 

Note: That the recent High Court Case in Febuary this year (Harrison v Link Financial Ltd 2011 EWHC B3 (Mercantile) (28 February 2011)) has no bearing on accounts that have been sold on the back of invalid default/termination notices. The case only makes clear that the original creditor has the right to remedy if and only if they are still the owners of the account i.e. prior to selling the account.

 

As Santander have sold the account off the back of an invalid default notice, then they have committed unlawful rescission of contract and as the account was sold the agreement no longer exists and therefore can not be remedied. I therefore suggest the you refrain from attempting to enforce this account as any attempt to enforce will be met with a counter claim against you.

 

Also you are not to contact myself by phone, and must only communicate with myself in writing, any letters demanding payment will be deemed as vexatious and as an attempt to harass myself for payment of account for an unlawfully rescinded contract therefore making such request unlawful

 

I expect in your response that you will confirm that this account is now closed at zero balance and that the invalid default recorded on my credit file is removed, such inaccurate recording of data on my credit file, is libelous and i will sue for libel and/or financial detriment if not removed forthwith.

 

Note: That i reserve the right to legal action at any time without any further notice.

 

Yours Sincerely and Without Prejudice

 

Print Name DO NOT SIGN BY HAND.

Edit and Delete the bits highlighted in red and added the info required by the bits highlighted in red. Also if you wish to maintain token payments, you can add at the bottom of the letter, that you will be making token payments of an amount of your own choosing every month (amount may vary per month) by standing order. So please send me the required details so that i may set up a standing order. You should also mention all/any failure by them and Santander to honor your CCA request.

 

Of course its entirely up to you if you pay anything or not, i personally with my own similar issue with MBNA Credit card prior to starting my own company, as a matter of principle refused to pay due to their unlawful rescission of contract, and i only hear from the DCA once every six month if am lucky. Off course they get the same response (i.e. get stuffed losers). Also never believe a word they tell you as they will and do try to trick people in to paying, the DCA with my MBNA tried to tell me that new legalization allowed them to remedy the default and told me to check the OFT website, yet they could not tell me the name of the legalisation or section of the CCA Act that was amended to include it, LOL Muppet's.

 

Anyway, you do not have to worry about this debt any longer to be honest as they would be fools to take it to court or to hound you for payments.

 

So i would also suggest you send them this too force them to remove your data from their systems as they only have your data as result of unlawful rescission meaning they got access to your data unlawfully : http://www.consumeractiongroup.co.uk/forum/content.php?411-Legal-notice-issued-under-Section-10-of-the-Data-Protection-Act-1980

 

 

P.s. My grammar isn't the best so you should check and correct any grammar mistakes in the letter.

Edited May 23, 2011 by teaboy2

[Always Struggling]

Great letter TB. naomi will be on later and I will get a 'double check' on the DN by hopefully getting it uploaded in pdf along with the letter from the dca.

[teaboy2]

Ok mate, i'll keep an eye out for it and have a look see if its invalid or not.

[Always Struggling]

Just managed to sort out the problem n had with uploading as pdf ..... only took 3 hrs to sort out a talk through of her hp scanner settings, uninstall / reinstall lol. She's a little pc wiser now at least, vista .... it'll be up tomorrow thanks TB

[teaboy2]

Lol sounds like you had a fun evening then.

[Always Struggling]

'Fun'..... now that'd be a way to describe it... completely wrong but still a way to describe it lol Onto tomorrows challenges lmao

[naomi25]

i have been looking through your post that you sent me tb and thank you for that, i am just trying to upload the default notice now aswell as the letter from the dca

[naomi25]

scan0004.pdfhopefully this is my DN

[Always Struggling]

WOO HOO!!!! ..... well done on getting the pdf up... I know how hard it was to sort out ...now you just need to remember we're not in Australia lol

[naomi25]

i am now uploading my letter from the dcascan0006.pdf

[teaboy2]

having a look at it naomi. bear with me

[teaboy2]

Can you rescan the DN notice, but this time make sure its not upside down Scratch that i have managed to rotate it so its the right way up.

 

The Notice of assignment is improperly executed as they failed to include the title (NOTICE OF ASSIGNMENT)

Plus it does not show their credit license either.

[teaboy2]

Right the Default notice is invalid if sent by 2nd Class post 4 working days till deemed served (Envelope will have S in the postage mark, and most are sent by second class) So its invalid by 2 days (before the date of the 27th means last date for remedy is the 26th) as the date of service would have been the 14th, the 15th being the first day out of your statutory 14 days to remedy, the 28th being the 14th day so the 28th should have been your last day to remedy.

 

So they basically are screwed as the last date should have been before the 29th and not before 27th as stated on the Notice, So they failed to account for the Weekend of the 12th and 13th which are not working days and therefore can not be included in the 4 working days of service.

 

So definitely unlawful rescission of contract so fire of the letter i posted yesterday and sit back and relax and enjoy, also send the section 10 letter too.

[Always Struggling]

Makes a change to benefit from the workings of 'cowboys' lol.

n has logged off for the night TB (works shifts - 5 days off coming up) she'll be sorting out the letter tomorrow along with the section 10 letter. Just send them in the same envelope or seperately?

[teaboy2]

Same Envelope will be fine.

 

Yeah i love it when the DCA cowboys become a cropper and realise they have bought a dead-end account that they can not enforce lol

 

Also love it when the idiots do not even send letters out in the correct form lol.

[Always Struggling]

It does start to look like there are so many errors it's actually creating work to keep a proper track of them all to list them back.... not the kind of extra work you mind doing theough lol