CCA's and Dave against the world !!!

[davefirewalker]

ok guys.............an update

 

Morgan Stanley are behaving badly ive hit a brick wall.............

 

They are in default and have been since april 07 they've promised me my charges back, promised to remove the default........

 

And have SOLD the debt to HFO services, who I believe are lower than something you could scrape off your shoe.

 

These people dont worry me, and I have them in hand.

 

I am really annoyed at MS / goldfish though. They know that they are in trouble and continue to ignore me.....lets see if they ignore Trading Standards and OFT

 

Anyway this is what I sent to HFO

 

dear HFO

 

With regard to your most recent letter of the 10th Dec. I deny all knowledge of ANY debt to your company.

 

Let me explain………

 

A few years ago the government in its wisdom decided to regulate the credit market to protect consumers from greedy and unscrupulous creditors. They came up with an Act of Parliament called “The Consumer Credit Act 1974”.

 

Now then this piece of legislation laid down rules and regulations as to how credit should be lent and what format the agreements must be in. If you have not studied this legislation I suggest that you do, it is very informative. There are certain things that MUST be on an agreement for it to be valid these are called PRESCRIBED terms.

 

Sections 60 -61 explain the format of the agreement, however this is gone into in more detail in The Consumer Credit (Agreements) Regulations 1983.

 

There are other terms that must also be in the agreement, these are called REQUIRED terms.

 

The Act also gives rights to the consumer to see their agreement at any time this is section 78. To this date Morgan Stanley / goldfish have not supplied an agreement.

 

What they did in fact supply was a copy of an application form that did not comply in any way shape or form to “The Act”. They do NOT have a regulated agreement, and they cannot enforce the debt.

 

The thing about s.78 is that it gives twelve days to supply the documents requested, if the agreement is not supplied within that timeframe they CANNOT enforce the agreement. After a further 30 days they have committed an offence……..the debt has been unenforceable since about the end of march and Morgan Stanley have been in criminal default since sometime in April.

 

Here is S.78 in its entirety just in case you haven’t seen it…I draw your attention to para 6 …………

 

 

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.

(2) If the creditor possesses insufficient information to enable him to ascertain the amounts and dates mentioned in subsection (1)©, he shall be taken to comply with that paragraph if his statement under subsection (1) gives the basis on which, under the regulated agreement, they would fall to be ascertained.

(3) Subsection (1) does not apply to—

(a) an agreement under which no sum is, or will or may become, payable by the debtor, or

(b) a request made less than one month after a previous request under that subsection relating to the same agreement was complied with.

(4) Where running-account credit is provided under a regulated agreement, the creditor shall give the debtor statements in the prescribed form, and with the prescribed contents—

(a) showing according to the information to which it is practicable for him to refer, the state of the account at regular intervals of not more than twelve months, and

(b) where the agreement provides, in relation to specified periods, for the making of payments by the debtor, or the charging against him of interest or any other sum, showing according to the information to which it is practicable for him to refer the state of the account at the end of each of those periods during which there is any movement in the account.

(5) A statement under subsection (4) shall be given within the prescribed period after the end of the period to which the statement relates.

(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; and

(b) if the default continues for one month he commits an offence.

 

(7) This section does not apply to a non-commercial agreement, and subsections (4) and (5) do not apply to a small agreement.

 

Not being able to enforce the debt means…….they cannot add interest……they cannot add charges…..the cannot ask for payment…….they cannot pass the debt onto THIRD PARTIES…..they cannot do ANYTHING………….

 

How clear do you want me to make it? I DO NOT OWE YOUR COMPANY ANYTHING. Morgan Stanley did not have the right to sell it on.

 

Do you comprehend?

 

I strongly advise that you get some PROPER legal advice before continuing. Any further requests for payment will be met with legal action for harassment under the 1997 protection from harassment act.

 

There have been penalty charges associated with this account, which Morgan Stanley had promised to pay, these come to about £762, they also agreed to remove the default, possibly in an effort to try and dissuade me from any intended action.

 

I have further rights granted under the data protection act in that data processed and passed onto third parties must be accurate. Given that there wasn’t any agreement to begin with and any penalty charges etc I don’t see how ANY data that you hold can be accurate.

 

So therefore just in case you fancy trying to ruin my credit profile with an inaccurate default or any adverse data,

 

I give you notice under S.10 of the data protection Act 1998 that you must stop processing any data and not start to process any new data. Any data that is inaccurate should be removed. Not complying with this request can lead to criminal action with a fine of £2500 and / or six months in prison

 

Also I am calling into doubt the validity of the agreement and will be asking for restitution of all monies paid. So it looks like this may be an expensive do for someone.

 

To paraphrase your letter …. ” You can save yourself a great deal of expense and aggravation by dealing with this now”

 

Could you please tell me if the assignment was absolute or equitable? I need to know if I am going to sue the right people

 

Papers are now being prepared to be filed, I was going to file against Morgan Stanley, but it looks like I may well have to file against you. So in before I start my action can I please have the £762.00 which is due.

 

I expect payment by return or I may choose to pass this account onto a debt collection agency. Any court action may affect your credit rating and make it difficult for you to get credit. If you hold a consumer credit licence this may be revoked.

 

 

Merry Christmas

 

 

Davefirewalker

.............................

 

muppets

[car2403]

Excellent Dave!

 

You should get this added to the templates library as the formal follow up to the CCA request template letter, IMO!

 

 

All joking aside, I bet there's something (although I clearly wouldn't speak to a Judge like this...) that I can take from this as I'm about to construct Skeleton Arguments for claims in progress. So, taking away the **very subtle** sarcasism, (my interpretation ) this explains the situation perfectly!

[Josie8]

ditto:D

[davefirewalker]

Thanks car and josie.... final draft of poc is ready (i think) will post if you want to see it.

 

The basic POC is valid for credit cards with no agreement or an agreement missing vital terms....

 

Dave

[The GodMother]

That letter is brilliant, Blunt and straight to the point.

 

Just a thought but can we actully pass debts on to a DCA for something like this or a court judgement? As i thought we were not able to. BTW l like this line.

 

How polite of you to wish them a merry christmas.

 

Chrissi

[davefirewalker]

That letter is brilliant, Blunt and straight to the point.

 

Just a thought but can we actully pass debts on to a DCA for something like this or a court judgement? As i thought we were not able to. BTW l like this line.

 

How polite of you to wish them a merry christmas.

 

Chrissi

 

A debt is a debt.....I can hire anyone I wish to collect it, from another debt collector or even from a bank....

 

A judgement in court can be chased by a court bailif if you choose...or by another dca....play them at their own game

 

thanks for the positive vibes

 

and after all it IS the Christmas season

 

best wishes to all

 

Dave

[car2403]

.... final draft of poc is ready (i think) will post if you want to see it.

 

Would be good to see, just so I can laugh at them when you win in Court at least

[davefirewalker]

Ok Car....here we go

 

there is always something to pick holes in.....but I think it is pretty comprehensive.

 

I started off as one page and it sort of spiralled from there

 

edited for brevity...please see post 521

[car2403]

Looking good. As you say, always something to question, but I think this is relevant feedback;

 

- Where you are referring to the Act, it might be an idea to quote the text of the Act/Sections then explain how they apply. You might get Judgment by Default, so you don't want to leave anything to the imagination, IMO.

 

- You've said it's a cancellable agreement, but haven't said why you think that is the case? This is what I used in my claim; [taken from a post by Peter Bard]

 

The agreement was improperly executed and did not contain cancellation details in breach of section 64 0f the act.

 

In that antecedent negotiations took place with the creditor prior to the agreement being sent for signing, and that signing took place away from creditors’ premises making the agreement cancellable as per regulations.

 

The creditor is therefore in breach of section 64(1) and 127(4) of the act which renders the agreement unenforceable.

 

- You've referred to specific paragraphs from the Wilson Judgment. Given what I've said above, might be an idea to quote these paragraphs verbatim?

 

- At i) and j), it may be worth including s.59, as it's clearly a prospective agreement as isn't signed (or you can argue it anyway) and is void and not binding on you as a result. (Better than being improperly executed, IMO!)

 

- At n), I'd remove the word appears; (it either is or isn't executed)

 

n) Further as no executed regulated agreement appears to exist the defendant could not possibly have complied with Section 85 of The Act

 

- You haven't mentioned the Data Protection Act? Is this deliberate, or have I missed something? I would ask for an order under s.14(1) (removal, disposal and rectification of incorrect data from the data controller) and s.14(3) (removal, disposal and rectification of the same from third parties that have had the data shared with them)

 

The rest looks good - I can see why you can't issue this via MCOL! I've probably just added some more paragraphs to it too!

 

I'll watch this one with interest...

[davefirewalker]

Looking good. As you say, always something to question, but I think this is relevant feedback;

 

- Where you are referring to the Act, it might be an idea to quote the text of the Act/Sections then explain how they apply. You might get Judgment by Default, so you don't want to leave anything to the imagination, IMO.

 

- You've said it's a cancellable agreement, but haven't said why you think that is the case? This is what I used in my claim; [taken from a post by Peter Bard]

 

 

 

- You've referred to specific paragraphs from the Wilson Judgment. Given what I've said above, might be an idea to quote these paragraphs verbatim?

 

- At i) and j), it may be worth including s.59, as it's clearly a prospective agreement as isn't signed (or you can argue it anyway) and is void and not binding on you as a result. (Better than being improperly executed, IMO!)

 

- At n), I'd remove the word appears; (it either is or isn't executed)

 

 

 

- You haven't mentioned the Data Protection Act? Is this deliberate, or have I missed something? I would ask for an order under s.14(1) (removal, disposal and rectification of incorrect data from the data controller) and s.14(3) (removal, disposal and rectification of the same from third parties that have had the data shared with them)

 

The rest looks good - I can see why you can't issue this via MCOL! I've probably just added some more paragraphs to it too!

 

I'll watch this one with interest...

 

Hi car last point first...S.14(1) & s.14(3) is mentioned in claim 5

 

I didnt want to really mention s59........if it is declared void It might put me in a slightly worse position as i want to claim all the interest back and not have to give them anything in return

 

I dont see the need to quote Wilson v hurstanger verbatim..All the judge really needs is the reference and what the lord justice found

 

I'll remove the word APPEARS

 

thanks for the input though.....it all helps

 

 

 

Dave

[pt2537]

 

You might get Judgment by Default,

 

 

 

Hi Car

 

i would really doubt this would be the case, IMHO they will turn up and defend this like their lives depend upon it

 

the implications here are massive, there is no case law which confirms that payments made under an improperly executed credit agreement can be classed as a mistake. should Dave be successful this will surely be subject to appeal and would almost certainly create a precedent.now then the flood gates would surely open to claims and look at the amount of agreements that we see on here that are improperly executed this would lead to thousands of pounds being repaid and i have to be honest, as much as i would like to say it will succeed i cant see it happening

 

however i think there is mileage in the recovery of penalty charges and any mis sold PPI

 

also this is highly like to be transfered to the commercial courts where the costs could truly substantial if you were to lose. if you win then no problems but if you lose...... well im not even wanting to think about that

 

sorry to sound negative , i hope you do win Dave as id make a fortune out of littlewoods for starters but on the advice of a QC im only taking littlewoods on for the default removals and damage to my credit rating

 

regards

paul

[davefirewalker]

Hi Paul.....

 

I would tend to agree with you in that when the implications of this suddenly hit them they will crap themselves.

 

However I'm being chased by a particulary nasty dca, and MS are not being nice either. They have sold this debt on unlawfully while in default.

 

My initial claim is for less than £5k so its small claims........... but if the judge allows compound interest as per sempra then it could skyrocket exponentially.

 

My hands are sort of tied now, I have to do something as the dca is talking about charging orders etc.

 

I feel that the claim IS justified though and win-able.

 

the agreement does not contain ANY prescribed terms so is at least irrevocably unenforceable. nothing they can do can change that.

 

fingers crossed

 

Dave

[davefirewalker]

Hi Dave

Been reading your threads.Dont know how you do it,marvellous bit of interpretation of the law covering CCA etc.You have shown just what can be achieved,so all credit to you mate.

Dealing with DCA's and there underhanded ways is difficult enough but to take them to the wire is something else.

Thanks Dave for your cool but determined attitude shown in all your battles.

Regards

Stripper

 

i'm not as cool as I appear...... I'm actually a mass of nerves and self doubt. If I ever did get to court I'm sure I might fluff it. I never seem to say what I want when I need to. writing it is one thing...speaking is another.

 

I am however very determined and driven....no-one gets away with anything if i can help it.

 

If I need to I will do what is needed and see it through to the end

 

BUT I do know that the law is there to not only to be used against us , but it is also there to protect us. As someone recently quoted "the law is a double edged sword and the consumers edge has just got sharpended".

 

thanks for the comments and good wishes

 

Dave

[patrickq1]

hi dave superb thread i am up against HFO/MORGAN STANLEY who have passed this debt to several DCA since 2004,i am still fighting them,but below is some passages FOR THE BENEFIT OF DEBT COLLECTORS i am sure their is data their that is worth noting

patrickq1

 

 

DEBT COLLECTION PRACTICE REVIEW.

 

The OFT has published guidance notes [OFT298] in January 2000 outlining the Director General’s views regarding misleading letters and collection charges with relation to licensing persay, and under the Consumer Credit Act 1974.

 

The OFT has duly reminded creditors and debt collection agencies that the issue of documents;

Resembling a court summons or other official document.

Leading the debtor to believe they come from or have the authority of a court.

Otherwise containing false or misleading information intended to obtain payment.

 

May be criminal offences under the County Courts Act 1984 and/or the Administration of Justice Act 1970.

 

Any practice liable or intended to mislead the debtor – whether as to the origin or authority of any document or as to any other material matter is likely to be regarded as deceitful or oppressive or otherwise unfair or improper within the meaning of section 25(2)(d) of the Consumer Credit Act 1974, whether the practice is unlawful or not.

 

It is an offence under Section 135/136 of the County Courts Act 1984 to deliver or cause to be delivered to any person any document;

Which, by reason of its form or contents has the false appearance of having been issued under the authority of a county court.

Falsely purporting to be a copy of any summons or other process of a county court, knowing it to be false, or to act or profess to act under any pretence of the process or authority of a county court.

 

It is an offence under Section 40(1)©/(d) of the Administration of Justice Act 1970 to falsely present;

A document as having some official character which it has not with the object of coercing another person to pay money claimed as a debt due under a contract.

An individual to be authorised in some official capacity to claim or enforce payment.

 

It is an offence under Section 40 of the Administration of Justice Act 1970 and Section 1 of the Malicious Communications Act 1988;

To harass of debtors with a view to obtaining payment including the issue of letters which convey a threat or false information with intent to cause distress or anxiety.

 

Documents may be in breach of the County Courts Act and/or the Administration of Justice Act even if they do not exactly resemble a court summons or other official document.

 

Documents may not;

By reason of their form or contents or both, appear to have been issued by or under the authority of a court or other official body.

Mislead as to the nature of the processes involved or the likelihood of legal proceedings.

 

All statements contained in letters and other documents to consumers must be capable of being substantiated in the event of a complaint.

 

Debt Collection Charges

 

There is no legal basis for a creditor or a debt collection agency acting on its behalf to claim collection costs from a debtor unless there is an express provision in the original agreement.

 

Without such provision, collection charges cannot be demanded as a debt due under the agreement.

----------------------------------------------------------------------------------------------------------------

 

If an agency claims the right to recover charges under a separate agreement with the debtor, there must be a binding contact to this effect, with legal consideration (ie benefit) provided to the debtor.

 

A letter advising the debtor of a liability for certain charges is not such an agreement, regardless of whether it is signed by the debtor.

 

If an indication of charges payable on default is not included in a credit agreement regulated under The Consumer Credit (Agreements) Regulations 1983, it is not properly executed and will not be enforceable against the debtor without a court order.

 

It is likely to be an ‘unfair or improper business practice’ under Section 25(2)(d) of the Consumer Credit Act if;

Creditors or collection agencies fail to ensure that they do NOT recover collection charges in the absence of an express contractual provision entitling them to do so;

Debtors are led or allowed to believe that they are legally liable to pay such charges where this is not the case.

Any ambiguity in the debtor-creditor agreement as to whether it covers a particular charge, or the permitted amount of the charge is not resolved in favour of the debtor;

Collection charges provided for in the credit agreement are levied at an unreasonable amount and/or are disproportionate to the main debt.

 

All these issues should be relevant to questions of fitness to hold a licence under the Consumer Credit Act, whether or not they result in prosecution of the individual(s) or company(ies) concerned.

 

Under section 25(2) of the Consumer Credit Act the fitness of a licensee can be brought into question by the actions of any of its employees, agents or associates, and section 25(3) defines ‘associate’ for these purposes as including a business associate.

----------------------------------------------------------------------------------

This document is © Copyright to David Buckley. (diskmandave) “Debt Help Resource UK.” A not for profit self help resource.

 

This document may be copied freely as long as it is not for profit. No charge may be levied to pass on this document whatsoever. No postage fee may be charged to pass on this document whatsoever.

 

Exclusive licence is granted to Consumer Action Group (.co.uk) to freely copy and/or distribute this document on a “not for profit” basis.

[davefirewalker]

Patrickq1

 

thanks for this I'll read and digest

 

good luck with you battles with MS/HFO, please keep me informed if you will

 

best rgds

 

Dave

[pt2537]

Hi Paul.....

 

I would tend to agree with you in that when the implications of this suddenly hit them they will cr*p themselves.

 

However I'm being chased by a particulary nasty dca, and MS are not being nice either. They have sold this debt on unlawfully while in default.

 

My initial claim is for less than £5k so its small claims........... but if the judge allows compound interest as per sempra then it could skyrocket exponentially.

 

My hands are sort of tied now, I have to do something as the dca is talking about charging orders etc.

 

I feel that the claim IS justified though and win-able.

 

the agreement does not contain ANY prescribed terms so is at least irrevocably unenforceable. nothing they can do can change that.

 

fingers crossed

 

Dave

 

Hi Dave

 

i must admit i didn't wish to sound negative, and i only posted after consultation with someone far more experienced than me in these matters

 

if the agreement is unenforceable then the option of a charging order is out the window anyway

 

i understand you feel the claim is winnable, you have to be bonkers to take such an action without a firm belief that you could succeed

 

however my concern would be that this could due to the importance of such a case be transfered to a higher court. you know they are not just going to sit back and do nothing and let you win by default

 

as i said previously you will face probably the most experienced barristers as these companies will do everything to win this as the ramifications of them losing would be massive.

 

you could for sure get the agreement deemed unenforcable, you could also get the charges returned and any defaults removed. im not convinced that there is an arguement for mistake

 

i have a full law library here and have many documents on pdf and having looked over Halsburys Mistake,Contract,Equity,Restitution and Estoppal i still believe that this is a seriously dangerous action to be considering without first having the particulars looked at by a lawyer

 

as i said ive posed the question regarding this to a Qualified Barrister of 20+ years and he shares my concerns

 

however he does see certain merits of your case and agrees with my view that the PPI,charges etc would be the best course of action for you

 

i would happily email you those PDFs for you to browse over so you can see where im coming from

 

Regards

paul

[The GodMother]

So does this mean when a DCA sends you a letter saying they are going to take court action and dont they have committed an offence under section 40 of the admistration of justice act 1970 and section1 of the malicious communications act 1988 and the criminal offence under the county courts act 1984 and the admistration of justices act 1970?

 

Sorry to sound blonde.

 

Chrissi

[davefirewalker]

Hi paul

 

I don't take your comments as negative...just conservative and playing safe, which considerering the potential losses can be a good thing.

 

I will have to play this by the seat of my pants and see what transpires

 

email sent

 

rgds

 

Dave

[patrickq1]

i am not too worried about HFO and MS as i see it the arguement i have is they added a second PPI whilst i was ill they have since tried denial but its their in black and white also they instructed me to destroy my card so since the illness i was expecting the Bill to be cleared as their staff promised this did not happen it doubled during the PPi payments only 33 months ,their conversation with me at the time it was being recorded they now deny any recordings were made..i beleive they did record it..as for HFO they are the seventh DCA employed by MS and four of them defaulted me so i have told them on countless occasions send the contract and also as far as i am concerned they are p++++ng in the wind and i aint giving them a penny if they want court action i have instructed them to go for it

patrickq1

ps i have a leaflet here from MS and it gives the impression that the PPI would take care of the bill ?

[scousepie]

I do like this item from the OFT rules so to speak.lol.

 

 

Debt Collection Charges

 

There is no legal basis for a creditor or a debt collection agency acting on its behalf to claim collection costs from a debtor unless there is an express provision in the original agreement.

 

Without such provision, collection charges cannot be demanded as a debt due under the agreement.

----------------------------------------------------------------------------------------------------------------

 

If an agency claims the right to recover charges under a separate agreement with the debtor, there must be a binding contact to this effect, with legal consideration (ie benefit) provided to the debtor.

 

A letter advising the debtor of a liability for certain charges is not such an agreement, regardless of whether it is signed by the debtor.

[davefirewalker]

So does this mean when a DCA sends you a letter saying they are going to take court action and dont they have committed an offence under section 40 of the admistration of justice act 1970 and section1 of the malicious communications act 1988 and the criminal offence under the county courts act 1984 and the admistration of justices act 1970?

 

Sorry to sound blonde.

 

Chrissi

 

Hi gm

 

No I dont think it implies what you wrote

 

Its main implications are misrepresentations of powers....

 

ie sending out official looking documents that imply that they have authorities that they dont

 

ie a dca might send you a letter saying "court action" with official looking seals etc, and most people would be terrified, and pay up.

 

theyve tried it on with me a few times....

 

but they know better now

 

Dave

[patrickq1]

hello godmother well according to the script i put on here it seems that they are guilty of threats...

[patrickq1]

Debt Collection Charges

 

There is no legal basis for a creditor or a debt collection agency acting on its behalf to claim collection costs from a debtor unless there is an express provision in the original agreement.

 

Without such provision, collection charges cannot be demanded as a debt due under the agreement.

you will find already dave that HFO have already charged you aprox 500 as they have tride with me same as wescot they withdrew when i pointed out their error same as moorcroft they withdrew when the error was pointed out ...

[Josie8]

Well done Dave the POC is v good.

 

As to reclaiming monies paid it is a gamble as PT says because of the threat of multi track - but it was an equally big gamble for Penelope Wilson and boy did she win....................... :D

[davefirewalker]

Debt Collection Charges

 

There is no legal basis for a creditor or a debt collection agency acting on its behalf to claim collection costs from a debtor unless there is an express provision in the original agreement.

 

Without such provision, collection charges cannot be demanded as a debt due under the agreement.

you will find already dave that HFO have already charged you aprox 500 as they have tride with me same as wescot they withdrew when i pointed out their error same as moorcroft they withdrew when the error was pointed out ...

 

Hi patrick

 

Yes you are quite correct my "balance" seems to have jumped from approx £4400 to about £5200, not that I care too much...

 

they dont have the right to collect it anyway.....

 

MS are going to rue the day they tried to get tough with me....I was prepared to let things lie (as I tend to do) but they drew first blood...and now I'm a bit "Rambo-esque"

 

god help them

 

best rgds

 

Dave