Cap1 & CCA return

[Scrapper]

Hi to all and many thanks for the advise and help given so far.

 

I sent off the following letter to MBNA and Barclaycard a few days back after not receiving the required information with previous requests for a true copy of my credit agreement (T&C sent only by both) nothing with my signature on it. So I sent them the I do NOT acknowledge any debt letter followed by the account is in dispute letter only to recieve a letter from MBNA basically stating they had forefilled their legal requirements and can do what they like and for Barclaycard to sent me my T&C's again. Still nothing from either of them with my signature on.

 

ACCOUNT IN DISPUTE

 

Re: my request under the Consumer Credit Act 1974

 

Thank you for your letter dated 27th January 2009, the contents of which are noted.

 

Your attention is drawn to the fact that this account is subject to a serious dispute. On.21st January 2009 & 29th January 2009 I requested that ........................ supply me a copy of the original signed credit agreement covering this account pursuant to the Consumer Credit Act 1974 section 78. To date ............................. has 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.

 

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 21st January 2009 & 29th January 2009 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

 

I true form I recieved yet another copy of their current terms and conditions and NOTHING with my signature on it.

 

Any help with my next steps would be very appreciated as this is getting most annoying now as they either don't understand the CCA regulations or they really do tink they are in the right and as I'm no legal eagle I'm getting confused myself.

 

Many thanks in advance

 

Scrapper Coco

[noomill060]

"pre-ticked PPI" request?

 

*ears prick up*

 

Where? You have a claim against them if you didnt specifically agree to this.

 

Messes up the entire contract and probably makes it fataly flawed as a result and therefore, irredeemably unenforceable.

[Having_A_Knightmare]

Hi

 

Will a fax to Court be as good as me hand delivering??

 

Cheer

HAK

[foolishgirl]

Depends what it is HAK.

[Having_A_Knightmare]

Just got to inform the Court that a company that are taking me to Court have not not complied with a Directions Order from the Judge

 

HAK

[foolishgirl]

Hmm...not sure, HAK

 

If it was me I would write & mail the letter if I couldn't deliver by hand & ask it to be presented with my file? Or you could phone the court & ask if a fax is acceptable.

[bathgatebuyer]

 

 

The bulk of the letter I received back from the FOS.

[volvo]

OK, Having received a number of fob off complaints from a Graham Harbour of the FOS myself, is it not time with all the media attention , for a CAG campaign to ,request and ensure that future FOS complaints are addressed with regards to the statutory laws of the land, ie: CCA 1974 and why as a goverment funded body they are allowed to disregard such matters, as statutory laws in their determinations?

 

VOLVO

[Goldlady]

Fax to court is fine - have done it many times!

[car2403]

Fax to court is fine - have done it many times!

 

Although they will treat it as a posted letter and deal with it within their usual turnaround times - for most County Courts, that is up to 5 days.

 

Faxing doesn't guarantee a quicker response, although it will reduce those 5 days to 4 days against a posted letter...

[Scrapper]

Hi all

 

Can anyone help with my previous question

 

Many thanks

 

Scrapper Coco

[Muffintop]

Guys/Steven

 

Know your up on internet applications. My Tesco which i believe is RBS credit card says on it that it was an internet application.

Taken out in 2005. what they have sent says its an application form. but recall you saying something came in aout internet apps cant recall year.. think some electronic communication act came in around 2004 that made some sort of change re a tick in a box or something.

This doesnt say credit CARD application. and its an application but it has my sig and also someone elses on it. but can see a tick.

as far as the t and cs are concerned they have sent current ones.

 

Could you give me your opinion where I stand with it.

 

cheers

http://i369.photobucket.com/albums/oo137/skeggs885/tescoapp.jpg

[Having_A_Knightmare]

Although they will treat it as a posted letter and deal with it within their usual turnaround times - for most County Courts, that is up to 5 days.

 

Faxing doesn't guarantee a quicker response, although it will reduce those 5 days to 4 days against a posted letter...

 

Will a hand delivered letter get treated better?

[foolishgirl]

No HAK, you just save the post delivery time. All docs. received by a court are logged with the date stamp of the day received & then dealt with in date order.

[MAGDA]

Just got to inform the Court that a company that are taking me to Court have not not complied with a Directions Order from the Judge

 

HAK

 

If they haven't complied, then from personal experience, I would ring the court and remind them (they are not always exactly on the ball) and ask if you can email/fax a letter requesting that the claim be struck out, as the claimant has not complied with the order within the given timeframe. I take it the directions order was to provide you with certain information, i.e, Default Notice, etc. In this situation, because the order didn't contain a statement that the claim would automatically be struck out if they didn't comply, it will need to go before the judge again. Again, from my own experience, he will then give them further time (usually 14-21 days) in which to comply, but this time with a statement that if they do not respond, the claim will be struck out. Magda

Edited February 7, 2009 by MAGDA
typo

[Kanga14869]

Could one of you kind knowledgable souls have a look at this for me please? I'd be very grateful.

 

http://www.consumeractiongroup.co.uk/forum/hfc-household/183136-kanga-gm-card-hfc.html#post1973572

[Viscount Stair]

 

 

The bulk of the letter I received back from the FOS.

FOS might only expect the lender to provide the current ts and cs but that is not what section 78 and regs 3 and 7 say or what the head of the OFT told Sion Simon that they expect lenders to provide.

[sanrhythm]

hi i got final letter from Alliance/leicester MBNA

 

We can confirm that MBNA dose not regard this account balance on your obligation to repay as being in dispute (see attached letter)

 

 

 

please help

 

Attached Files final reply.pdf (168.6 KB, 0 views)

[foolishgirl]

What a load of rubbish sanrhythm!

 

If your account was in 'agreed dispute', it wouldn't be in dispute would it? - 'cos hopefully, MBNA would be doing something about it!

 

Of course you can withold payments - the account is in dispute, full stop.

[sanrhythm]

Thank you foolishgirl do i need to write back or just ignore for time being !

 

 

 

 

[foolishgirl]

sanrhythm - have you got your own thread on this? This thread is so long, your queries will just get lost.

 

If you have a thread, please paste the link here; if you haven't got a thread, just start on in the MBNA forum & you will get lots of advice.

[sanrhythm]

hi i tried creating my own thread no reply there from anyone

[Desperate Daniella]

Hi Sanrhythm,

 

I've just checked your thread, and you have had over 100 views, but the reason no-one has replied is that you are just saying what you think of the card companies, and you are not asking specific questions.

 

You need to go back to your thread, and post exactly the questions you need help with and then it will go to the top of the new posts. I'll keep an eye out for you and bump it if no-one comes back by this time tomorrow.

 

DD

[sanrhythm]

Thank you Desperate Daniella i have done on my thread asking specific questions. lets hope will get reply.

[dad]

 

 

Bathgate,

 

I think it would be worth your while writing back to the FOS to justify how they came to this conclusion - Possibly as a FOI request. The House of Lords in Wilson set out exactly what 'unenforceable' meant. See Lord Nicholls at paragraph 49:

49. I consider, however, that there is no relevant restitutionary remedy generally available to a lender in the circumstances now under consideration. The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan. That being the consequence intended by Parliament, the lender cannot assert at common law that the borrower has been unjustly enriched. That would be inconsistent with the parliamentary intention in rendering the entire agreement unenforceable. True, the Consumer Credit Act does not expressly negative any other remedy available to the lender, nor does it render an improperly executed agreement unlawful. But when legislation renders the entire agreement inoperative, to use a neutral word, for failure to comply with prescribed formalities the legislation itself is the primary source of guidance on what are the legal consequences. Here the intention of Parliament is clear.

 

So in my view the HoL has said unenforceable = inoperative.

 

From well established principles: where a Act uses the same word in different places it has the same meaning in every case unless it expressly says otherwise and that words have their plain english meaning.

 

The Oxford English Dictionary says 'inoperative' means "Without practical force, invalid".

 

It would be very interesting to see how the FOS justify their position.

 

Dad

Edited February 12, 2009 by dad