Debt written off due to Carers Allowance?

[steven4064]

Thanks Jose for the amplification/clarification

[davey77]

Hey Josie! ah yes that's very interesting thanks! and i will remember saying that when/if the FOS start writing to me on why i am not accepting 'application forms' as compliant!

 

Just read the FOS letter re my original complaint and they say they will write to me upon the creditor's final response so imagine they will ask and i will have great delight in informing them of the law. So far they have been ok but i will be very interested to see how they deal with my 5 complaints!

[davey77]

From the FOS today;

 

Acknowledgment letter re my complaint about MBNA and also another letter stating that the Crap1 complaint is being passed to a casework area to await allocation.

[Maggiebroom]

From the FOS today;

 

Acknowledgment letter re my complaint about MBNA and also another letter stating that the Crap1 complaint is being passed to a casework area to await allocation.

 

Davey boy

 

Did your complaint re Crap 1 and MBNA go to TS first or at all, and if so, what did they say regarding the same? I am also trying to get the FOS to take up my complaint re Crap 1 (Very similar to your own), but all they have replied to me is that although it will be recorded as such they do not deal with individual complaints per se. And my local TS have been more than useless, by writing to Crap 1 and telling them they have complied. Made me very angry that did

Very annoying as not everyone writes to complain and what if the consumer waits years till enough people have complained that they have to take notice?

 

By the Way? Sorry to hear your romance went down the toilet. That is where Crap 1's

applications should go. Not to be flippant mate, just trying to heal the wound a little. However perhaps your are relieved, I don't know.

 

OK OK I'll put the shovel down my mouth before the hole gets any bigger..

 

maggiebroom

[davey77]

Hey Maggiebroom!

 

I did complain about Crap1, Halifax, HFC, MBNA and Mint to TS offices all over the country (where the creditors are based) mostly in May of this year. They all referrred it to my local TS and the only contact i have had with them is in regard to Mint via email. She asked if i had had a reply yet to my CCA and i sent (as an attachment) the application form. Her reply was:

 

From your previous email I see that you have also finally received the requested agreement from Mint. I have forwarded the details of your complaint to the Home Authority Trading Standards who will be able to deal with the time delay of them responding to your request and advise them accordingly.

 

My reply to that was partly:

 

....i should like to clarify that my issue re Mint is down to the validity and compliance of the CCA docs themselves and not just their delay in replying....

 

That's all the contact i have had from Trading Standards! I suppose i could have chased it up but after reading people's experiences with TS on here i felt my time was better spent dealing with creditors directly and complaining to the FOS.

Your reply from the FOS was very out of character and totally incorrect because that's exactly what they are for.. to investigate individual consumer complaints! ugh!

I think TS know what they are doing in ignoring consumer complaints as they are scared of going up against big creditors on behalf of consumers and it makes me sick! (I read your thread and see your TS have the backbone of a jellyfish too!)

 

Oh thanks... but i'm ok with the romance thingy. Quite experienced these days and have taken it on the chin squarely! Already have an invite from an internet friend to visit Truro at some point so that's something to look forward to!

[gill5blue]

From the FOS today;

 

Acknowledgment letter re my complaint about MBNA and also another letter stating that the Crap1 complaint is being passed to a casework area to await allocation.

 

 

I have also complained to FOS about MBNA (and CITI), I have also complained to OFT, TRADING STANDARDS, INFORMATION COMMISSIONER and to FAS, something should come of this from one of the 5 I complained to-I am giving them 2 weeks, if I am not satisfied about their response to my complaint of not supplying the CCA I will be looking at going to court to have the debt unenforceable

good luck with yours

[davey77]

hi there gill.. yes you would think at least one of those bodies you mention would take your complaint seriously wouldn't you! I think if i don't get satisfaction then i too will be (saving my pennies) and going down the court route as, to many on here, that seems the only way to get a definitive answer after being let down by, so called, consumer protection organisations!

Good luck to you too!

[gill5blue]

Hi again

just a quick question

how much is it to take them to court?

[davey77]

I am not very familiar with the process (still researching) but from what i can gather you send £100 with th N1 court form and then there's the aspect of losing and paying costs etc!? ouch. More poeple on here much more knowledgable about that process than me though.

 

Thought what i would do when/if that time approaches is just ring the local County Court. Not for advise on the details as they wouldn't give that but i'm sure they can help with court fees and form filling questions. That's what i'll be doing.

[steven4064]

gill5blue - see here

[davey77]

oh.. Thanks Steven! That's very handy!

[gill5blue]

Thanks,,,,,,,, but I am going for unenforceable agreement

How much does that cost?

[steven4064]

Thanks,,,,,,,, but I am going for unenforceable agreement

How much does that cost?

"To issue proceedings where your claim is for something other than money £150"

[gill5blue]

Thanks for that

I understand now

[davey77]

Mint's Final Response:

 

Dear Mr x,

 

You have recently been contacted by Heather Compton-Edwards regarding your request for information under the Consumer Credit Act (CCA). Heather has referred your file to me as part of my role is to review such complaints and write what we call the Bank's final response letter. This gives you the option, should you remain dissatisfied; to further refer your case to the Financial Ombudsman Service.

 

I believe it appropriate for me to set out my understanding of the circumstances surrounding your concern and to provide you with my own personal assessment.

 

From previous correspondence held, I note you wrote to us 19 March 2007, asking us to write off the debt due to your circumstances and send you a copy of the credit agreement, together with a statement of account. You also enclosed £1 for this service. You were sent our reply on 25 April.

 

In that reply our Debt Recovery Office confirmed that even though they were not prepared to write-off the debt, they would accept a reduced settlement of 70%. They also provided you with a 'true copy' of the application form, also known as the credit agreement, a statement of account, and it's current terms. They also returned your £1 fee.

 

You then wrote to us on 18 July 2007, to state that you had referred this matter to the Financial Ombudsman Service (FOS) as you do not consider the above to be compliant with a CCA. You also consider the account to be in dispute and will not be making any payments. You also stated that as such, we cannot refer the account for further action nor place information onto your credit file.

 

We then received contact from the FOS and a reply was sent to you on 23 August, from this office by a member of my team, Mrs Smallbone. I reiterate that providing you with the above information means that we have fully complied with the CCA. The application form itself states it is regulated by the CCA and you signed and dated it on 14 May 2004, accepting that fact. The account was opened in our records on 22 May.

 

This office has now also located a copy of the original terms and conditions and a copy is enclosed for your reference. You will note that it is issued in leaflet form at the time of application, in addition to the above, and does not need a signature. We have therefore exceeded our requirements under the CCA.

 

I do appreciate that you have spent considerable time in raising this issue with us. I am grateful to you for taking the time to do so and for the patience you have shown in allowing us to address matters. I am sorry that we have not been able to agree with your view of the CCA and the information we are obliged to supply.

 

Please now contact our Debt Recovery Office to discuss your current proposals of repayment as no arrangement is in place at the moment. As stated, we last received a payment on 14 march 2007. Further action will be taken against you if you do not, and this may lead to us passing the account to our chosen debt-collecting agents for immediate collection of the full balance. You have already been sent a letter of final demand dated 13 July 2007.

 

With regards to your credit file, adverse information is aplied to it when you are in default of the account terms and do not pay at least the minimum sums due. We have also sent you letters of default and termination dated 29 November and 30 December 2006. An actual default was applied on 30 Januaary 2007, after the account was passed to our Debt Recovery Office, and after they sent letter reference ***, dated 30 December 2006.

 

If you are dissatisfied with this final response, you may further refer your concern to the FOS. I can assure you that we will co-operate fully with any investigation they may undertake. If you decide to take this course of action, you must do so no later than six months from the date you receive this letter.

 

Yours sincerely,

 

Samantha Nickol

Team Manager

Customer Care Team

 

The A4 pages of T&Cs:

 

http://i157.photobucket.com/albums/t42/davey77_2007/DSCF6648.jpg

http://i157.photobucket.com/albums/t42/davey77_2007/DSCF6649.jpg

http://i157.photobucket.com/albums/t42/davey77_2007/DSCF6650.jpg

http://i157.photobucket.com/albums/t42/davey77_2007/DSCF6651.jpg

[davey77]

These do seem to be the T&Cs that were in force at the time of application and they are a leaflet.. just been pulled out to A4 size and confused me for a mo. But how they can be connected to the paperwork i signed is anothr matter. Surely just having someone write my name and account number on each page with a biro doesn't make it clear that it is associated with my account?

[davey77]

And here is the application form that they sent me back in April:

 

http://i157.photobucket.com/albums/t42/davey77_2007/Application-mint.jpg

[steven4064]

I think it is pretty clear that, altough they may have satisfied the requirements of s78(1) of the CCA (as modifdeid by the 1983 regulations) they have not sent you a copy of an enforceable agreement. Section 127 of the Act:

127.--(1) In the case of an application for an enforcement order under--

(a) section 65(1) (improperly executed agreements), or

(b) section 105(7)(a) or (b) (improperly executed security instruments), or

© section 111(2) (failure to serve copy of notice on surety), or

(d) section 124(1) or (2) (taking of negotiable instrument in contravention of section 123),

the court shall dismiss the application if, but (subject to subsections (3) and (4)) only if, it considers it just to do so having regard to--

(i) prejudice caused to any person by the contravention in question, and the degree of culpability for it; and

(ii) the powers conferred on the court by subsection (2) and sections 135 and 136.

(2) If it appears to the court just to do so, it may in an enforcement order reduce or discharge any sum payable by the debtor or hirer, or any surety, so as to compensate him for prejudice suffered as a result of the contravention in question.

(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).

Section 127(3) makes it clear that an agreement is only enforceable if it is singed by you and has all the prescribed terms of the agreement.

[davey77]

Thanks Steven.. that's just the kind of legal remarks i was looking for. I will state that as part of my response to the FOS when i send the forms back asking them to reinvestigate and with plenty more i have to say on the matter too!

[davey77]

My reply from the OFT has arrived finally and this is what they had to say:

 

Dear Mr x,

 

Consumer Credit Act 1974 ('The Act')

Complaint Against: HFC Bank, MBNA, Halifax, Mint (Royal Bank of Scotland), Capital One

Licence No: 007329, 363167, 280013, 176720, 489354

 

Thank you for your email received on 09 September 2007, regarding the problems you have been experiencing with the above traders. I apologise for the delay in responding.

 

We are always interested to receive complaints such as yours as they are a vital source of information in helping us to investigate the behaviour of traders that hold consumer credit licences. The traders you have complained about do hold a consumer credit licence.

 

If a business wishes to be involved in activities relating to consumer credit or hire, including debt collection, they must have a consumer credit licence. The Office of Fair Trading (OFT) has a duty to monitor the fitness of all traders that hold a consumer credit licence. In considering fitness, we take into account whether a business has engaged in unfair business practices. This includes any evidence that traders have not complied with any guidance issued by the OFT. The OFT has, for example, issued guidance to consumer credit licence holders engaged in the debt collection industry. The guidance sets out minimum standards that we expect of debt collection traders, consistent with fitness to hold a consumer credit licence. The guidance is intended to ensure that debt collectors treat debtors fairly. Non-compliance with this guidance will call into question the fitness of licence holders and applicants.

 

With reference to your Consumer Credit Agreement query, the general effects of sections 77-79 requires the creditor/owner (in the case of a hire agreement) under an agreement for (fixed-sum credit, running account credit and hire agreement) to provide the debtor/hirer with a copy of the executed agreement and a statement of account on request. I have highlighted the word request because the debtor/hirer must make a valid request. For the request to be valid it must be in writing and must be accompanied by a fee of £1.

 

If a creditor/owner fails to comply with a valid request within a period of 12 days (not including the date of receipt of the request) he may not enforce the agreement at all. This prevents enforcement with or without a court order.

 

If a default lasts for a month (for example a calendar month) it constitutes an offence. We understand your concerns in this matter but please do remember however that once the creditor/owner complies with the request albeit out of time, he may once again enforce the agreement.

 

A ‘true copy’ of an agreement principally consists of the terms and conditions of the agreement and the statutory content of the agreement. The name, address and signature of the debtor does not have to be provided. Additionally, the creditor must supply the total sum paid under the agreement by the debtor; the total sum which has become payable under the agreement but remains unpaid; and the total sum which is to become payable under the agreement by the debtor (the latter two must include the various amounts comprised in that total sum and the date when each is/was due). However, the copy must be a copy. It need not be exact on immaterial points, but it cannot be a conjectured reconstruction. If the trader has no original copy, the trader will have difficulty showing that he has complied with the regulation by supplying a ‘true copy’, since nobody would know what was in the original. When the trader comes to enforce the debt in court, he needs to have a signed copy of the agreement in order to enforce. As the law stands currently he cannot otherwise.

 

We note your concerns that in the absence of a copy of the original agreement someone's liability for a debt can only lead to further query. However in circumstances like this we would view it is as unfair practice under section 25(2)(d) of the Act and relevant to license fitness if a trader failed to investigate and/or provide details as appropriate when a debt is queried or disputed.

 

 

 

We investigate all complaints received about consumer credit licence holders and, where we have the necessary evidence, we do take appropriate action. In our initial investigation of all complaints we consider how many complaints we have received overall and how strong the evidence is to support any action. It is unlikely that a licence would be revoked on the strength of one complaint. Where we have strong evidence that unfair business practices have occurred, we may take steps to revoke or refuse the licence of the business in question. However, if we are to do this we need to take account of factors such as the number of complaints received how recent they are and how well evidenced. In cases where evidence is less strong we may issue a warning letter to the business putting it on notice that its behaviour, if repeated, will call their fitness to hold a licence into question. Any action we do take has to be proportionate. If an approach from the OFT makes a trader change its behaviour and treat consumers fairly in future, this is preferable to putting a trader out of business.

 

If we do take any licensing action against this trader it is likely that we would need to disclose your identity to this trader along with details of your complaint. I should therefore be grateful if you would provide me with written authorisation to disclose these details to the traders. I have enclosed a disclosure consent form for you to sign and return to me in the post via hard copy.

 

We have noted the details of your complaint, to consider alongside any other complaints we have received with a view to any licensing action we may decide to take. We may therefore contact you again if we require further information. Meanwhile, given that the sanction of licence refusal or revocation is such a significant one there are constraints built into the process for taking such action. For example, because of restrictions in Part 9 of the Enterprise Act 2002 relating to disclosure of information, we cannot disclose specific details about any action we may take, nor comment on any adverse information we hold on individual licence holders.

 

Unfortunately the OFT has no power to intervene in individual disputes, and therefore we are unable to assist you directly in this matter. However, you will be able to obtain practical advice by contacting Consumer Direct either by telephone (08454 04 05 06) or online at Consumer Direct.

 

Furthermore, the Financial Ombudsman Service ('FoS') can help with most complaints about consumer-credit products and services if the consumer has failed to satisfactorily resolve the matter directly with the financial institution itself. The FoS can be contacted at:-

 

The Financial Ombudsman Service

South Quay Plaza

183 Marsh Wall

London E14 9SR

Tel: - 0845 080 1800

 

Financial Ombudsman Service

 

I have also enclosed details of organisations which may be able to assist you.

 

With regards to Trading Standards, we are unable to comment on the level of service they have provided.

 

Thank you again for writing to us and bringing this matter to our attention.

 

Yours sincerely

 

 

 

 

Pierre Cagnon

Enquiries and Preliminary Investigations Centre

Markets and Projects

 

Permission To Disclose Complaint

 

Consumer Credit Act 1974 ('the Act')

Complaint Against: HFC Bank, MBNA, Halifax, Mint (RBS), Capital One

Licence No: 007329, 363167, 280013, 176720, 489354

 

Reference: Epic/Enq/E/13754

 

*Please delete as appropriate

 

I give/do not give* my consent for the Office of Fair Trading (OFT) to disclose details of my complaint concerning the above trader, including my name and address details, in any further action that it may take under the Act or under any other legislation administered by the OFT.

 

I also confirm that I have no objections/object* to the OFT using the information provided by me in the performance of any of its functions and disclosing that information to others where legally permissible. By way of example, the OFT may disclose such information in connection with enforcement or regulatory action under its own powers or may refer the information to another government department or enforcement authority.

 

Signed: ………………………………………………………………………………………

 

Print name: ………………………………………………………………………………..

 

Address (Please print): ……………………………………………………………………

…………………………………………………………………………………….

…………………………………………………………………………………….

…………………………………………………………………………………….

…………………………………………………………………………………….

Date: ………………………………………………………………………………..

 

Please note the OFT can only use your details in any action we may take against the above trader if you give your written permission for us to do so.

[davey77]

Also from HFC today:

 

dated: 27th Sep 07

 

FINAL DEMAND

 

TOTAL AMOUNT DUE £5000+

 

As you have failed to respond to our numerous attempts to resolve this matter, your account is now being passed to our Litigation Department for

 

COMMENCEMENT OF LEGAL PROCEEDINGS, OR TO INSTRUCT AN EXTERNAL DEBT COLLECTION AGENCY.

 

To prevent this course of action please call 0870 010 8558.

 

If you are able to clear the balance in full, please send a cheque to the above address, quoting your account number on the reverse of the cheque or call us on the above telephone number to make a debit or credit card payment over the telephone.

 

You have 7 days from the date of this letter (tomorrow then ) to respond either by calling us on the above telephone number or paying the total amount due as stated above.

 

Yours sincerely,

Mr M Dudrah

Operations Manager

[hellhasnofury]

Also from HFC today:

 

dated: 27th Sep 07

 

FINAL DEMAND

 

TOTAL AMOUNT DUE £5000+

 

As you have failed to respond to our numerous attempts to resolve this matter, your account is now being passed to our Litigation Department for

 

COMMENCEMENT OF LEGAL PROCEEDINGS, OR TO INSTRUCT AN EXTERNAL DEBT COLLECTION AGENCY.

 

 

To prevent this course of action please call

[davey77]

Also the other day what i can only assume is some kind of response to my SAR request from Cahoot which included a one page list of charges and payments. I'm sure that doesn't comply with a SAR request as i also asked for details of any manual intervention and any deed of assignment also:

 

Dear Me x,

 

You have asked to a copy of your bank statements, which we assume is to enable you to reconcile your bank charges. We are happy to provide these to you and we enclose copies of your statements as requested.

 

Should you decide to complain to us about unathorised overdraft charges or refer your case to the Financial Ombudsman Service (FOS) after making a complaint to us, we should make you aware of our current policy on handling complaints from customers about bank charges.

 

Although we believe the charges are fair, clear and lawful, Abbey (along with six other banks and a building society) has now become involved in legal proceedings with the Office of Fair trading (OFT) in relation to unauthorised overdraft bank charges which we believe will resolve the legal issues regarding the fairness and legality of unauthorised overdraft charges.

 

It would be our normal approach to resolve any complaint through our internal complaints process as quickly as possible. However, until the determination of the legal issues in the above proceedings, we have asked the FSA to suspend the normal timetable for dealing with bank charges complaints, and the FSA has agreed to this request subject to conditions that protect your rights.

 

Given this court case we have asked both the FOS and the courts not to proceed with any other case they are hearing until the test case is resolved. The FOS has indicated that as a general proposition it will indeed not proceed with cases which rely on the legal issues being considered in the test case.

 

Similarly, you should be aware that if you choose to issue a claim in the Courts, the bank will immediately apply to the Court for an order to stay your action until resolution of the bank's proceedings with the OFT.

 

We are sorry that we will not be able to respond in full to any complaint that you make now, but we (together with the FSA and the OFT) think that it is necessary to resolve the key legal issues before we decide how we should respond to complaints. We can assure you that once the legal proceedings are completed we will resolve any complaint you make as quickly as possible. If at that stage you do not agree with our conclusions you will of course be able to refer your case to the FOS or to the courts.

 

Exactly what will happen next will depend on the courts. We do not know how long the case will take - we have promised to proceed as quickly as possible but inevitably given the importance of the issues being considered this may take many months to finally resolve.

 

We can assure you that if you do make a complaint to us, we will register and store your complaint. Please retain your bank records, as this will make it easier on resolution of the test case for you to support any complaint you may make.

 

We will keep you updated appropiately about proceedings with the OFT. You can check the latest position on our website at Abbey

 

The FSA requires us to ensure that any complaint you make will not be adversely effected by the dealy in dealing with it.

 

Yours sincerely,

The Cahoot Team

[davey77]

Hello Hell! Were you trying to say something just then as only my partial quote is showing?

[Maggiebroom]

Hi Davey

 

Your reply from the OFT was very similar to mine except that they didn't ask me for permission to dislcose my name.

 

don't know whether or not that is ominous. However good luck as you are going along nicely at the moment.

 

watching with interest.

 

maggiebroom