Robinson Way \ Harwich Farrelly issue cap1 debt

[BRIGADIER2JCS]

Did you actually send cheques for the stat fees, it's best to send unsigned postal orders, it is alleged

that some DCA's have lifted signatures.

how much of the 12+ 2 days have passed?

[adenjago]

hi BRIGADIER2JCS

 

yeah unfortunately we did send cheques !!

 

the Timlines are as follows...

 

28/04/2011 - sent first CCA request for (both Lowell and RBS)

 

02/05/2011 - received a letter from Harwich saying that lowell had past the debt onto them

03/05/2011 - Sent Harwich a CCA request ( I know I should have sent account in dispute)

19/05/2011 - RBS Cashed the cheque showed up on bank statement

20/05/2011 - RBS replied saying CCA is not need for overdraft (the previously uploaded letters)

 

02/06/2011 - Lowell Cashed the cheque showed up on bank statement

02/06/2011 - Account is in Dispute (to both Lowell and Harwich)

 

Regarding the RBS letters, As I read them I get the Feeling that is all the information they have ....and regarding the statur and barred is that from the date of the registered default ?? (which I was never notified of)

[BRIGADIER2JCS]

Stat barred is 6 years from the cause of action, last delinquent payment and/or last acknowledgement of

the debt in writing.

[adenjago]

okay...so the Stat barred is 6 years is not necessarily from when the default was made (which I was never notified)

 

I have never acknowledged it

 

So I should be requesting when my Account Activity or the date I closed my Account and the Balance (which should have be £0), Would I need a SAR to to get that from them ??

 

I think I opened the account in 2003\2004 but closed it a year or two later so depending on the date it may be Stat barred already

[adenjago]

Hi Guys

 

Thanks for all the previous Help

 

RBS - still not had a response from regarding the SAR request

Lowell - have sent the Following...

 

After liaising with SAV Credit Limited in an effort to obtain this document we have been advised that is is no longer availiable due to the length of time the account was open with you

 

We are Closing your Account

At this time we have closed our file and will make no further contact with concerning payment against this account unless a copy of the agreement is received at some point in the future from SAV Credit Limited

 

So Lowell have not got the agreement, but Lowell Is the Name the Default and not SAVFILE (who I do not know who there are and its the first time they have mentioned ???)

So can ask Lowell to remove the Default as if there is no agreement or what would be the route to take try and get Default removed

[BRIGADIER2JCS]

You can certainly request the removal, but they may insist that it is correct and will remain for 6 years.

Also Lowell may have closed the account but they may sell it on so keep all correspondence in case it crops

up from else where.

[adenjago]

thanks for the reply BRIGADIER2JCS

 

If they sell the debt on, will i have to go through the CCA route again ??

[BRIGADIER2JCS]

No just write and tell them to''bog off'' there is NO CCA.it's all you need, that's why I said keep all

correspondence.

[adenjago]

just had another glance @ my credit history regards to the Lowell account details...

 

Account type: Credit card / Store card

Started: 09/03/2004

Defaulted On: 18/10/2006

 

so would it be worth sending a SAR to see when the last account detail was ( I assume Lowell will still honour the SAR even though account is closed) as it might statur and barred)

[BRIGADIER2JCS]

SAR the original creditor, Lowell will have nothing!!

[adenjago]

Hi Guys

 

Another quick update and a bit of success

 

Lowell

just received the following....

 

"after reviewing the account we are prepared to take the commercial view in relation to this matter and as a gesture of goodwill and without admission of liability we are prepared to close the account and write-off any outstanding balance."

 

so I should asking them to confirm this reflected on my credit history and that because the Default is Registered in there name they need to remove it ?

 

RBS -

After a SAR request, they said the said the signature on the SAR does not match or records.....we are unable to accept an electronic signature.

 

I assume I should send the following .....

 

 

Dear Sirs,

RE Account NO XXXXXXXX

Thank you for your letter dated xx/xx/2008 the contents of which are noted.

In your letter you make reference to requiring my signed authorisation /specimen signature** before you comply. I draw your attention to the fact that the Consumer Credit Act 1974 does not require that i supply you a copy of my signature before you comply with my S77/78** request.

If it is for Data Protection purposes then i can happily supply you with documentation to substantiate my identity to you.

However please note that to date you have happily sent statements and correspondence containing extensive sensitive private information to my address. I have to ask if you are concerned that you are corresponding with the correct person why has it taken so long to raise this?

As you are aware, disclosing data without adequate checks of identity is contrary to the 7th principal of data protection, listed in schedule 1 of the Data protection Act 1998:

7. Appropriate technical and organisational measures shall be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data.

My request for a true copy of my credit agreement under section 77/78** was made on xx/xx/2008 and the 12 working days for your compliance expire on xx/xx/2008. I note that there is no provision that removes the requirements of the act to provide this information on time, even if you are unsure of my identity.

I look forward to receiving the documentation requested

Yours faithfully

Print dont sign

 

Anything I'm missing ???

Edited July 12, 2011 by adenjago

[BRIGADIER2JCS]

[adenjago]

Hi Guys

 

Lowell Portfolio - have confirmed they are removing the Default from Credit Record.....so thats one WON...many thanks

 

RBS - Still awaiting my SAR, heard nothing since their Signature request to which I responded "get lost and give me my SAR" that was on 12th July now (sent SAR on 30th June 2011 and have a note that Expiry should be 9th August 2011 )

 

 

I have had the CCA back from Harwich Farrelly(Cap one) which contains the Agreement, Statement Details & Terms & conditions, I have not posted the Terms & conditions as there are quite a few pages, but I have Attached the agreement and what i can see are relevant parts of the Statements (the Last Standing order Payment as there is 10 Pages in total)

 

but do have a few questions.......

 

Regarding this Thread here http://forums.moneysavingexpert.com/showthread.php?t=1868507 it says that the Prescribed Terms should be pressent on a CCA

 

Prescribed Terms

 

A Amount of credit

A term stating the amount of credit

 

B Repayments

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-

 

(a) Number of repayments;

(b) Amount of repayments;

© Frequency and timing of repayments;

(d) Dates of repayments;

(e) 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.

 

C Rate of interest

A term stating the rate of interest to be applied to the credit issued under the agreement

 

D Credit limit

This may be a term or the manner in which it will be determined or that there is no credit limit.

None of these are present on the agreement i have received ??

 

• on the Charges there is a "Delinquency Charge-off" for £996...what is that charge ??
  
• I assume the Standing ordering dated 02/08/07 would be classed as my last acknowledgement of the Debt
  
• The "Agreement" they sent, actually states "Guaranteed Acceptance Form" is this still classed as the Agreement ??
  
• I have had a look at the Enforceability Thread, and im curious in regards to the "A term stating the amount of the credit" as I can't see it on my Agreement
  

 

 

Can anybody Advise What should be my next play ??

Edited August 2, 2011 by adenjago

[citizenB]

I think the "delinquency chargeoff" is an internal entry, made prior to selling/assigning the account on.

 

I believe they are required to do that for tax purposes.

 

I would say yes, if you made a standing order payment on that date, but none afterwards, that would be classed as the last acknowledgment.

 

Unless the "Guaranteed Acceptance form" contained all the prescribed terms, then it cannot be classed as properly provided agreement.

 

HTH

[adenjago]

Thanks for the Reply, very helpful regarding the clarifications

 

So the "Guaranteed Acceptance form" is not the Agreement, Should I be disputing that they have not fulfilled the CCA request ??

 

 

could any one advise where i should be looking or give a rough draft of what kind off response i should send back

 

something like below I assume ????

 

Dear Sirs,

 

Account No:

 

On xx/xx/2009 I wrote to xxxxxxxxx requesting that xxxxxxx supply me a true copy of the executed credit agreement for this account.

 

In response to this request I was supplied a document a copy of which is attached which did not comply with the requirements of the Consumer Credit Act 1974.

 

The document sent purporting to be a credit agreement does not contain any of the prescribed terms as required by section 60(1) Consumer Credit Act 1974. The Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) made under the authority of the “1974 Act” sets out what the prescribed terms are, I refer you to Schedule 6 Column 2 of SI 1983/1553 for the definition of what is required. Suffice to say none of the terms are present in the document

 

Since this document does not contain the required prescribed terms it is rendered unenforceable by s127 (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 situation 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.

 

In addition should you continue to pursue me for this debt you will be in breach of the OFT guidelines, 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

I require you to produce a compliant copy of my credit agreement to confirm I am liable to you or any organisation, which you represent for this alleged debt, if you cannot do so I require written clarification that this is the case. Should you ignore this request I will report you to the Office of Fair Trading to consider your suitability to hold a credit licence in addition to a complaint to Trading Standards, as you will be in breach of the Administration of Justice Act 1970 section 40.

 

Since the agreement is unenforceable, it would be in everyone’s interest to consider the matter closed and for you to write the debt off. I suggest you give serious consideration to this as any attempt of litigation will be vigorously defended and I will counter claim for all quantifiable damages

 

I respectfully request a response to this letter in 14 days.

 

Yours faithfully

Edited August 3, 2011 by adenjago

[citizenB]

I am rather interested in this "Standing order" payment.. you should certainly ask them for proof of the bank account from which that payment was made.. IMHO, though it is likely to be an "error" on their part

 

You might want to wait for other comments regarding your letter. I think perhaps it is unnecessary to go into to much detail with regards the acceptance form.. Especially if this is statute barred.

[BRIGADIER2JCS]

A lot of those ''errors '' around at the moment all either £1 or £10..

[adenjago]

A lot of those ''errors '' around at the moment all either £1 or £10..

 

when your saying errors.....as this was for about £25 i think and there are some a couple of months earlier should i query them as well ?...I will have a look at the other 10 pages of statements....so should i ignore the standing orders ??

[BRIGADIER2JCS]

Standing orders are OK as you are in control they cannot

be amended by anyone else, unlike a DD.

Query any payments that you cannot be sure of.

Brig.

[adenjago]

Standing orders are OK as you are in control they cannot

be amended by anyone else, unlike a DD.

Query any payments that you cannot be sure of.

Brig.

 

I think I'm being a bit thick here......or simple

 

when you say OK.....do you mean they are not classed as an acknowledgement of the Alleged Debt ???

[BRIGADIER2JCS]

No I meant that if you have paid by SO then that

payment you will know for certain is genuine.

Any payment in the ''6 year '' period restarts the clock.

[adenjago]

so the Standing Order restarts the clock...

 

So the start of clock would be 6 years from 02/08/07 ???

[BRIGADIER2JCS]

so the Standing order restarts the clock....so the start of clock would be 6 years from 02/08/07

Afraid so ANY PAYMENT DOES RESTART AS DOES ANY ACKNOWLEDGEMENT

OF THE DEBT IN WRITING> if the SO is he last payment ever

made that is the date of the start of the 6 years.

[adenjago]

Afraid so ANY PAYMENT DOES RESTART AS DOES ANY ACKNOWLEDGEMENT

OF THE DEBT IN WRITING> if the SO is he last payment ever

made that is the date of the start of the 6 years.

 

Okay so should I be contrating on the fact the sent the T&C and a "gauranteed acceptance" as opposed to the agreement which has the prescribed terms on

 

Can anybody confirm that what they have sent is not a Valid CCA ?,

 

 

Should still query the last SO in regards to the previous post mentioning errors ??

Edited August 3, 2011 by adenjago

[BRIGADIER2JCS]

Certainly query it if you have doubts about it.

The acceptance form may be considered

an agreement as the very title implies,

but as earlier advised it must have all the required

details on it.

 

It may well be worth challenging them as to it

not being an agreement and see what they come up with.

 

Brig.