Cap1 & CCA return

[foolishgirl]

There is no point sending for CCAs on the accounts that are paid up calconnor. If the agreement is not 'live', the OC does not have to produce them under S77/78 of CCA1974.

 

You cannot reclaim capital repaid on any account; charges & PPI can be reclaimed.

 

You can do this yourself quite easily. Why add to your debts by paying someone to do it for you?

 

As Peter says, post up a few details of your live accounts for help from CAGers.

[foolishgirl]

I am assuming this account was taken out prior 2006?

 

If so, if you stop paying them paulrob, you would have to put the account in dispute (is this what you put in your letter?) & claim it was because they were in breach of S77/78 of CCA1974 & that they hadn't sent you a CCA. Of course, they will then claim they have fulfilled their responsibilites ('cos the T&Cs are all they have ).

 

At this point they will threaten all sorts to get you to pay up & will eventually take you to court. IMO you therefore now have a choice:

 

1. You stop paying & fight it out in court, hoping that they will not turn up an enforceable CCA or

2. If you are in a position to do so, you offer a F&F of a minimal amount based on the fact that they have not got an enforceable CCA & that they would therefore lose any chance of getting anything if they tried to pursue the debt.

[foolishgirl]

 

as you have failed to comply with a request for a true signed copy of the said agreement

 

It only has to be a true copy, not signed

If you do not respond positively to my request, court action may be taken under Section 14 of the Data Protection Act 1998 to force Barclaycard or any other company within the group to comply with the refund of all monies paid, removal of all defaults maintained and compensation for damage and distress as a result of unlawful data processing. I may also pass the matter to the relevant enforcement authorities including, but not limited to, the OFT, the Information Commissioners Office, Trading Standards, the CSA, the FOS and my local MP.

 

Are you really going to take them to court paulrob? Don't threaten it if you are not prepared to follow through. As for the others, BC won't give a damn!

 

 

Suggest you read through the forums thoroughly to acquire the knowledge you need to pursue this action - it will not be plain sailing if they take you to court.

[foolishgirl]

sorry but its all a mine field and i am sure they dont have them cca. maybe i shouldgo to one of these company's who know what they are doing. is there anyone on here who do it for a fee maybe

 

It can look a bit complicated when you start but if you take one step at a time & post back on to the forum for help with the bits you don't understand, you'll get there. Most people on here don't start out with knowledge, a lot have come because they faced the same problems with agreements that you face now.

 

Hi, you don't need to use a company, if they have provided nothing more than the t&c's then the debt is unenforceable until such time that they can produce a copy of the original agreement (for court purposes) which, as you say, they probably do not have. They will not necessarily take you to court.

 

I agree, Magda.

 

 

Whilst the OC probably won't start legal action without something that resembles a CCA, you have to be prepared for the possible. The forum contains SO much information but if you start with the 'Successes' it will help you see cases that have progressed from your stage to their end & the processes you have to go through if the OC comes up with an agreement.

[foolishgirl]

If I can butt in.

 

If the agreement is not enforceable, it is just that - unenforceable. The debt still exists.

 

A F&F settlemnt means that the debt is satisfied and gone - a much better outcome IMHO.

 

Agreed!!

 

It means you're not living with the possibility for at least the next 6 years that the OC might find a CCA (unenforceable or not, defendable or not) & then pursue for the full amount plus the bonus of a better credit rating if you need it at any time.

 

Whilst they are unable to find the CCA you have the cards in your hand re. a minimal F&F; if they find the agreement you're back to square one.

 

You have to weigh up your own situation & which option you prefer.

[foolishgirl]

Would you reccomend that you pay them a nominal amount while the account is in dispute or pay nothing at all. Also what is classed as a reasonable offer for a final setttlement say on a £3,000 debt?

 

If you don't pay, you are, in effect, inviting them to 'enforce' the debt by taking you to court; however if you carry on paying they may be quite happy with the knowledge that you will pay the debt in full at some date in the future & therefore not be so willing to discuss a realistic F&F. That's the dilemma. As peterbard has so eloquently pointed out above, you have no entitlement in law to stop payments.

 

Re. the amount of the settlement figure. IMO your offer should be based on:

1. is it a DCA? If so they have prob. bought the debt for between 10 & 20% of its value so anything they get over this sum is profit for them.

2. have they supplied an enforceable agreement or are they likely to be able to? If they have an unenforceable agreement (or are unlikely to be able to find one), it should strengthen you hand in negociation.

 

Suggest you start your offer lowish - they can always say no & then you can raise the game if necessary.

[foolishgirl]

Hi

Yes sorry

I have not been active on her for the last year or so and the lind i had took me to an address that had been closed.

Hopefully someone else will help you or if not i will write you one.

PM Me iif you get no joy

 

Peter

 

I think this is the letter you may be looking for - acknowledgment to car

 

Dear Sirs,

 

Account Number: XXX

 

Re; your recent reply to my request under section 77-79 of the Consumer Credit Act 1974

 

I note that you have replied to the above by sending a copy of an application form and your companies current Terms and conditions I must inform you that this is not sufficient to comply with the request and that your company is still in default under the act.

 

To clarify, just sending the Terms and Conditions is a breach of the Act and Regulations as, apart from the information that the Regulations provide that you may exclude, the copy must be a “true copy” of the agreement.

 

This breach of the agreement can be demonstrated as follows;

As you will know section 180(1) (b) authorises, “the omission from a copy of certain material from the original, or the inclusion of certain material in condensed form.” This refers to statutory instruments made under the heading Copies of document regulations and in this care in particular to SI 1983/1557.

 

Before leaving section 180 there are two other sections that should be remembered these are:

 

Section 2(2) (a) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not satisfied unless the copy supplied is in the prescribed form and conforms to the prescribed requirements;

 

And more importantly

 

Section 2(b) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not infringed by the omission of any material, or its inclusion in condensed form, if that is authorised by regulations.

 

You will see that this quite clearly states that whilst certain items may be left out of the copy document the rest of the document must be in the form and contain all items as prescribed by the regulations.

 

Turning to the regulations regarding what may be omitted from these copies these are contained with SI 1983/1557.

 

The regulations state:

(2) There may be omitted from any such copy-

(a) any information included in an executed agreement, security instrument or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations thereunder as to the form and content of the document of which it is a copy;

(b) any signature box, signature or date of signature (other than, in the case of a copy of a cancelable executed agreement delivered to the debtor under section 63(1) of the Act, the date of signature by the debtor of an agreement to which section 68(b) of the Act applies);

 

It is quite clear what can be omitted from the copy document, this again asserts that all other details of the agreement should presented in form and content as required by the regulations.

 

The requirements of the Agreement regulations 1983/1553 are very explicit in describing the form and content of an agreement and this as I have demonstrated also applies to the copy of any such agreement with the above mentioned proviso.

 

Nowhere within these regulations does it state that part of the agreement can be presented on a separate document headed terms and conditions.

It does state that all terms and conditions should be within the agreement document and is explicit of the form in which it is presented.

 

I hope this explains why your reply was unacceptable I await a True copy of my agreement and would remind you again that whilst the request has not been complied with the default continues

[foolishgirl]

Hi

Yes thats the one

 

I wrote this

I am sure Car wrote many supperior ones

wonderresd where it had gone.

 

Peter

 

Sorry I got the acknowledgment wrong!! I purloined it from one of car's threads & have used it to effect, so thank you peter.

 

Must be nice for you to see it's still going the rounds...

[foolishgirl]

Out of interest FG, what do you suggest someone in this situation does if they don't have the money to offer a full and final (it is being assumed that we are all in a position to do so)

 

Holley specifically asked about a F&F. I am not assuming that everyone is in a position to do so.

 

and no prospect of the debt ever really being cleared, given that the creditor does not have a valid agreement?

 

You don't know this for a fact unless they admit it

 

If you stop payments, how are you inviting them to take you to court?

If they don't have an agreement, they would be pretty stupid really if they did and as mentioned before you would of course have a perfect defence.

 

Agreed - very stupid.

In actual fact, creditors who do not have an agreement do actually cease pursuing debts and I have had several who have written and admitted they do not have the agreement and therefore are unable to make further recovery. Magda

 

Doesn't mean the debt doesn't still exist though, just that you have both agreed it's not enforceable.

 

 

Your strategy is obviously working for you magda

[foolishgirl]

Hi

Disclaimer

just looking at my last post and i would like to point out that the hospital was not responsible for my computer virus, as may be inferred.

 

Phew could feel the solicitors from the NHS breathing down my neck for a minute.

 

Peter

 

Reminder to myself - wash hands before sitting at computer...

[foolishgirl]

Try this one needabreak:

 

Dear Sirs

 

I refer to my letter dated xxx that was delivered via Recorded Delivery to your offices, received by you on xxxx, making a formal request for a true copy of the original credit agreement for the above account under the Consumer Credit Act 1974 (Sections 77-79).

 

You are reminded that you are obliged to supply these documents, whether you are the original creditor or not, as defined under Section 189 of the CCA 1974.

 

Under the terms of the above Act, a creditor has 12 working days to provide the requested documents. This deadline has now passed & I have not received the requested documents from you.

 

As I am sure you are aware, the absence of an agreement that does not contain all of the prescribed terms, and/or is not signed by the debtor, renders the account completely unenforceable in law & I therefore consider that this account is in dispute with immediate effect.

 

I draw your attention to the legal requirement that a creditor is not permitted to take any action against an account whilst it remains in dispute. The lack of a credit agreement is a very clear dispute and therefore the following applies:

 

• You must not demand any payment on this account, nor am I obliged to offer any payment to you.
  
• You must not add any further interest or charges to this account.
  
• You must not pass this account to any third party.
  
• You must not register any information in respect of this account with any of the credit reference agencies.
  
• You must not issue a default notice on this account
  

I hereby give you notice that if you proceed with any of the above actions, I will file reports with the appropriate authorities, including, but not limited to, Trading Standards, Office of Fair Trading, Information Commissioners Office, Financial Ombudsman Service.

[foolishgirl]

I requested a CCA, letter delivered to DCA on 16th Feb but nothing back. Yesterday I got letter from them saying that their client (RBS) would like to offer me a reduced settlement. They say toffer is for a limited period. What should my next step be?

 

Guess it depends on

 

1. if you think they will be able to produce an enforceable CCA at some stage & insist on full repayment

2. your financial position - are you able to make a F&F?

3. is the reduction a tempting offer to get them off your backs forever?

 

Your call...

 

However if you accept a F&F, make sure you get it in writing from them before you make any payment, that

1. it is a F&F settlement & that no further attempt at collecting the debt will be made by RBS

2. that the debt will not be passed on to any other person for collection

3. that your credit files are marked 'satisfied'

4. if you can get somebody else to submit the payment for you (a friend or relative), all the better

 

If you are looking to pursue this offer, see if you can get it reduced further by negociation

[foolishgirl]

Me too. Yes please Peter.

 

I hate those calculations.

[foolishgirl]

Is this the one you wanted HM?

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/123771-validity-debt-assignment-re.html

[foolishgirl]

Oh, found another one in my folder

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/155843-deeds-notifications-assignment.html

[foolishgirl]

YW - enjoy...

[foolishgirl]

Now, listen to this

 

When I told the Judge that according to LPA 1925 s136 this assignment is not valid, due to .........

 

Guess what he told me

 

Law of Property Act is to do with properties and not credit card agreements and the solicitors for Phoenix supported that too.

 

Where DO they get them from?!! - The purlers aswell as the judges.

[foolishgirl]

Welcome to CAG gaza.

 

Can I suggest that as you have several companies involved, you start a new thread for each in the appropriate forum eg. Barclaycard for BC. That way you can list the details individually & get help from others who have experience of the specific companies?

[foolishgirl]

Has any body got the link of an easy print off of the other Wilson Case.

 

The one where he mentions to be a gift

 

HAK

 

Think you want this one HAK - it's Para 26

 

Wilson v First County Trust Ltd [2001] EWCA Civ 633 (2 May 2001)

[foolishgirl]

Hi

 

I new to this, I have recieved a reply to my credit agreement request and I quote from it, " as the application was made in 1997 we cannot obtain a copy of the credit agreement. However we enclose a copy of an agreement you would have signed when opening the account.

 

What should I do. As far as I know this is breaking the consumer credit act. What should I write back with.

 

Did you make it clear when you applied that you were doing do under S77/78 of the CCA1974 & did you send your £1.00?

 

If so, is it possible to post up a copy of what they sent you? (blank out any personal details that may identify you)

[foolishgirl]

You might find this thread by Steven interesting pinny - it defines unenforceable agreements & gives examples:

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/162851-consumer-credit-agreements-guide.html

[foolishgirl]

Try this link Paul:

 

http://www.consumerforums.com/resources/templates-library/48-bank-templates/143-wasted-costs-order-.html

[foolishgirl]

Don't worry about it Peter. My sister is dyslexic & her letters are gratefully received & full of interesting content - just like your posts

[foolishgirl]

Well my sister is usually 'dashing' to avoid the boys so her letters are definitely 'interesting'. You really wouldn't want to be the subject of them!

 

You're perfect as you are peter...

[foolishgirl]

OK Ok lets drop all this as we should all try to get on.

 

just to confirm I was only querying what this Professor said ok. I put it on here to debate. End of story.

 

I think it is important to READ what the person says first before jumping down their throats as it starts up all sorts of problems and they can all be avoided.

 

This is a brilliant site and has extremely knowledgable peeps on here who have helped me and I as I quoted respect them. unfortunately I am a bit of a bimbo at times and take things too personally:rolleyes:

 

Hope this clears the air.

 

Milly X

 

Well, I thought it was a very interesting post Milly, regardless of the reactions it sparked & you did well to spot the original article.

 

Please post the Prof's reply when you get it.