CCA's and Dave against the world !!!

[dpick]

Hiya,

 

thanks a lot for replying, i eagerly await to hear your court outcome. My dilemma is that if the correctly executed agreement is produced during the court proceedings then the debt becomes enforable again and then you run the risk of having to pay their legal costs as well. Is there some way, some legal action/requirement that will allow me to effectively request that the creditor provide this properly executed agreeement before it is heard infornt of a judge, that way if they cannot supply it then i know that for a fact and any surprises in court the might suddenly uncover later on could be classes as inadmissable?

 

Don't know fully the legal way of saying this but if a creditor takes you to court and you defend due too previous CCA request and creditor representing application as executable agreement and you feel it not enforceable then creditor has to disclose to you copies of all documents/evidence they are going to use in court. This gives you option to withdraw and arrange payment of debt before the case get to court. If creditor produced enforceable agreement in court at last minute but not before case was in court (if a judge would allow this) then the judge would want to know why they had not produced document before entering court, and would I think be very much against awarding costs against debtor.

 

As I say this is my opinion not law.

 

dpick:mad:

[bluedawn]

i dont know the original interest rate as until i get cca from them its a mystery, however i do know that they are no longer charging interest nor have done for a number of years. on the occassions that they do write to me that they put on the bottom of the letter they reserve the right to reinstate interest in whole or in part, which may have been postponed in the past. i am very scared that they will do this and then this debt for £4000 will go on till my grave! at the end of the day if they cant provide loan agreement i dont have anything to worry about and simply stop paying, or is it not that simple? also last week i received my CRA reports from all three agencies, two of them are the same infomation, the third, from equifax shows no defaults the other two show three defaults, i thought they all held the same infomation, howcum they differ? thanks for your time and replies

[shane5408]

Don't know fully the legal way of saying this but if a creditor takes you to court and you defend due too previous CCA request and creditor representing application as executable agreement and you feel it not enforceable then creditor has to disclose to you copies of all documents/evidence they are going to use in court. This gives you option to withdraw and arrange payment of debt before the case get to court. If creditor produced enforceable agreement in court at last minute but not before case was in court (if a judge would allow this) then the judge would want to know why they had not produced document before entering court, and would I think be very much against awarding costs against debtor.

 

As I say this is my opinion not law.

 

dpick:mad:

 

Hi Dpick,

 

thanks for expressing your views, I like what you are saying! granted, the judge will not think kindly if the creditor, aftter numerous requests from me and before the claim was filed failed to provide the agreement suddenly produced it at a later stage in the case and may infact have the case awarded in my favour because of it.

 

Then again, the creditor could claim thay have been inundated with these requests in recent months and have now been able to locate the correct agreement. the judge might not like it but allow it to be included and base the case on those merits, in which case i'm amfraid i would be the underdog!

I know there is a lot of speculation going on here and 'ifs' and 'but's' don't allways cometo pass but i just want to understand the situation and possible consequences as best i can before i commit to it. once again, i thank you all for your comments, please keep them coming!!

 

kind regards,

shane

[shane5408]

Shane

 

After this great letter Josie's done for you, please don't come back still wearing your pessimistic hat. Think positive and be optimistic!

 

Hi Joe,

 

I don't mean to be pessimistic, just realistic! lol, I know what you're saying though and besides from all the comments i see here it really has strengthened my resolve.

 

Oh and thanks very much to Josie for that kick ass letter! Will definitely be adding that to my arsenal! I was reading a thread a few days ago and came accross this very interesting letter from the OFT, well worth a read!

 

A letter from the OFT outlining sec77-79.

Dear mr xxxx

Consumer Credit Act 1974 (‘the Act')

Our Ref: Epic/Enq/E/1760

Thank you for your email received on 31 March about your enquiry into the Consumer Credit Act Sect 77 & 78.I apologise for the delayed response.

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.

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 do 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 licence fitness if a trader failed to investigate and/or provide details as appropriate when a debt is queried or disputed.

If you would like to make a formal complaint. Please fill in the attached complaint form.

Thank you again for writing to us.

Yours sincerely

[finlander]

thanks everyone for your answer to my query.. and the info after. I will try and scan the info I received from RBS. basically thou it was an application form which you see in a magazine. It has no credit limit, interest rate, amount repayable etc.

I also got a copy thru from Morgan stanley today after a CCA request to them. They have been taken over by gold fish and their copy was signed and dated yeaterday!!!!! it looks like they just printed off an agreement yeaterday and signed it!no signature from me or anything.surely that isnt a true copy?

 

I have sent a CCa request to all my credit card companys now and a SAR request as well. My tactic is that if they have the original agreement then they will have to supply it in one of the two requests. If they dont then it turns up later surely the have breached the data protection act by not supplying it with ALL my account info.

My tactic is probably going to be starting an official complaint with the trading standards. Make enuf fuss and I may get them to come to a very nice compromise to avoid a proesecution. I think its worth a try....

[ODC]

thanks everyone for your answer to my query.. and the info after. I will try and scan the info I received from RBS. basically thou it was an application form which you see in a magazine. It has no credit limit, interest rate, amount repayable etc.

I also got a copy thru from Morgan stanley today after a CCA request to them. They have been taken over by gold fish and their copy was signed and dated yeaterday!!!!! it looks like they just printed off an agreement yeaterday and signed it!no signature from me or anything.surely that isnt a true copy?NOPE hold on to that because they have shot themselves in the foot

 

I have sent a CCa request to all my credit card companys now and a S.A.R - (Subject Access Request) request as well. My tactic is that if they have the original agreement then they will have to supply it in one of the two requests. If they dont then it turns up later surely the have breached the data protection act by not supplying it with ALL my account info.

My tactic is probably going to be starting an official complaint with the trading standards. Make enuf fuss and I may get them to come to a very nice compromise to avoid a proesecution. I think its worth a try....

You wont have to compromise with them at all if they cannot produce the CCA

 

NO CCA = No enforceable debt:D

[davefirewalker]

Ok guys……..

 

A further update regarding Monument, strange things have been happening

 

My case against Monument for PPI has now turned into a full blown “I want it all back”

 

A brief history for those not too familiar with what’s going on.

I had a “Providian” card in the late nineties, which got maxed pretty quick due to business going bust and trying to pay employees etc (the banks were behind that one ). They took the card off me….or so I assumed….Anyway been making minimum payments, never missed one until recently, then I got 5-6 calls (maybe more) a day at all hours and a couple of letters.

I had by now found this site and with one substantial win and a couple of minor ones under my arm, and a new found confidence I decided to have a go at them.

 

The CCA and S.A.R - (Subject Access Request) requests were met with silence and then returned cheques, to be sent right back at them. They finally realised I meant business and sent the “agreement” (this is posted on page 2 I think)

 

Realising I had them by the short and curlies, I started twisting the knife. The claim for charges went undefended and a default judgement entered. The claim for missold PPI was defended???

They have admitted in writing that they don’t have any record of me signing or agreeing to it (so why defend?) They made an offer of about a third (£455)

 

Anyway in-between me telling them to stuff there derisory offer and filing the N1 they paid about 1/3 to the account . I had already told them I wanted a cheque (for it all)

 

Now then I get a letter from BARCLAYCARD telling me I’m late with a payment……..WTF. It now seems as though my Monument account has been transferred to a Barclaycard account complete with a new number?? This was the perfect opportunity to tell them I don’t recognise any debt to them.

They have broken their own rules in that they must inform you of any change to the account at least seven days before.

 

I sent them a reminder of the harassment law and what the oft says about unfair business practises regarding chasing debts that are in dispute. Then I followed it up with the “ I don’t owe you any money at all ” letter. I am awaiting a reply to it.

 

Regarding the default judgement I got a letter from Adrian Ruffhead (real name )asking me to allow a setaside and some forms to sign……..I dutifully crossed out all the terms I didn’t like and sent it back to him saying he can have the set aside as long as I get the cheque beforehand, and I wont agree to anything else.

 

The docs that he sent me as part of my request to see what they were relying on regards the PPI were my original agreement and some recent t&c’s…. (I can feel a s172 coming on)

I promptly wrote back………by now totally pi**ed off with them also giving him the “this agreement sucks” letter, closely followed by the “I don’t owe you any money” letter, and finished with the “As this agreement is unenforceable I want all the money back” letter

 

As I said ….strange developments !! would love to be a fly on the wall in that office !

 

All quiet on the Morgan Stanley (now goldfish) front…they have gone past the two weeks I had given them to take me to court or go away…….seems like they have gone away …I’ll have to start poking again .

 

All quiet on the MBNA front as well……I’m a bit worried with this one, I’m a bit unsure…..

I know I have a reasonable case, but don’t quite feel 100% certain, I don’t think I’ll be poking that bear until I get some satisfaction and confidence from monument or MS

 

Anyway that’s my life up till now……sorry for the long post, but it is my thread ... and I’m allowed. Besides I’m listening to some nice Floyd and drinking a bottle of merlot and feeling rather nice

 

Rgds

 

Dave

[shane5408]

Hi Dave,

 

Sorry for hijaking your post, even though i said i wouldn't! Just needed some technical questions answered. Looks like monument really don't stand a chance, they actually wrote to you asking your permission for a setaside! priceless!

 

looks like my monument case is going down the same route as yours, i sent in judgement request last week.

 

regards,shane

[davefirewalker]

Hi Dave,

 

Sorry for hijaking your post, even though i said i wouldn't! Just needed some technical questions answered. Looks like monument really don't stand a chance, they actually wrote to you asking your permission for a setaside! priceless!

 

looks like my monument case is going down the same route as yours, i sent in judgement request last week.

 

regards,shane

 

I dont mind at all....please feel free, as long as it is about cca's and sticking it to them, I look forward to readinghow other people are getting on, who are in a similar position

 

rgds

 

dave

[shane5408]

thanks dave really appreciate it, seems all the experienced caggers are subscribed to this thread!! Makes for some good advice. Incidentally, did you see the letter from the OFT i posted? Its good to hear the 'no signature no enforcement argument' confirmed from them, even if they won't prosecute!

[davefirewalker]

thanks dave really appreciate it, seems all the experienced caggers are subscribed to this thread!! Makes for some good advice. Incidentally, did you see the letter from the OFT i posted? Its good to hear the 'no signature no enforcement argument' confirmed from them, even if they won't prosecute!

 

 

Yeah Ive been using that one for a while now..., you'll have to get up a little earlier :)

 

best rgds

 

dave

[itsmeandonlyme]

Anyway that’s my life up till now……sorry for the long post, but it is my thread ... and I’m allowed. Besides I’m listening to some nice Floyd and drinking a bottle of merlot and feeling rather nice

 

We will excuse you this time only:)))))how many glases did you have?))( and how r you?)))

 

 

Regards,

 

Itsme

[davefirewalker]

Hi Maria.....

 

I'm fine.....went through a really rough patch not long back, but got my confidence back, and I am still at them.

 

How are you? i have been following what has been happening on your thread, sorry to hear the prelim hearing didnt go to well . BUT i feel that you will win in the end

 

Just nearly finished the bottle.....might open the other one as I'm feeling rather fine

 

warmest wishes

 

Dave

[itsmeandonlyme]

How warm are the warmest wishes????( just joking)....)))

 

I didn't know you were going through not nice time, but glad you passed it...was it personal or was it with your claims?

 

 

xx

[davefirewalker]

How warm are the warmest wishes????( just joking)....)))

 

I didn't know you were going through not nice time, but glad you passed it...was it personal or was it with your claims?

 

 

xx

 

my warmest wishes are the best!

 

the bad time was a bit of both brought on mainly by the debt I'm in

 

it's still ongoing, but i think I'm on top again. It seems to come and go in waves, one time im on top a feeling great, then for no reason I seem to despair

 

anyway I'm OK for now....but I do drink too much

 

rgds

 

Dave

[itsmeandonlyme]

We all do. Why not, if it makes you feel better..but do not let it go far..we need you warmest BEST wishes with a clear head:))

xx

[davefirewalker]

Ok .....I'm well past my best at the moment ......but a thought has just entered my somewhat wine befuddled brain,... Ive forgotten all about AMEX

 

These cowboys are going to get it from me on monday. I still have a £1 debit...... already had about £400+ in charges, and had sent them the "your agreement sucks " letter. had a phonecall a week or so back, but in waiting for their letter TOTALLY forgot about it .

 

They are also on my list to get all the interest back....must be worth about £3k+

 

***** for anyone of an enquiring mind have a look at this link, it opens the way for CI claims and restitution of interest!! *****

 

House of Lords - Sempra Metals Limited (formerly Metallgesellschaft Limited) (Respondents) v. Her Majesty's Commissioners of Inland Revenue and another (Appellants)

 

what do you guys think ??

[finlander]

dave,

 

I dont believ it..I found that as well at about 9pm tonite..great minds..Ive added it to my court bundle for abbey who im fleecing at the end of august... im going for the fudiciary arguement...

 

geoff

[davefirewalker]

dave,

 

I dont believ it..I found that as well at about 9pm tonite..great minds..Ive added it to my court bundle for abbey who im fleecing at the end of august... im going for the fudiciary arguement...

 

geoff

 

Good... i had posted it a few times, in diferent threads. it is a VERY important decision for all of us. (and I'm sure you meant fiduciary )

 

rgds

 

Dave

[tomterm8]

Ok .....I'm well past my best at the moment ......but a thought has just entered my somewhat wine befuddled brain,... Ive forgotten all about AMEX

 

These cowboys are going to get it from me on monday. I still have a £1 debit...... already had about £400+ in charges, and had sent them the "your agreement sucks " letter. had a phonecall a week or so back, but in waiting for their letter TOTALLY forgot about it .

 

They are also on my list to get all the interest back....must be worth about £3k+

 

***** for anyone of an enquiring mind have a look at this link, it opens the way for CI claims and restitution of interest!! *****

 

House of Lords - Sempra Metals Limited (formerly Metallgesellschaft Limited) (Respondents) v. Her Majesty's Commissioners of Inland Revenue and another (Appellants)

 

what do you guys think ??

 

Oh.. we're off to see the banker, the wonderful banker of barclaycard, because, because, because, because, we're gonna screw them for 26.3% compound interest over the last 12 years:)

[minky93]

Hiya Dave & Co

 

Can I please ask your advice?

 

Very briefly: sent DCA Equidebt my CCA request on 4th May (also informing them of change of address) it is passed the 12+2 and the further month is up today.

 

I did however receive a letter 8th June from Equidebt confirming receipt and that they have requested a copy of signed agreement & statements from their client Halifax Bank of Scotland (letter sent to old address)

 

The advice!

 

1. send a letter to them informing them that their client HBOS are in non complience & in criminal default and also tell them ... since their client does not appear to have an executed agreement, I insist that they confirm that the balance on the alleged account is set to zero, or else I will report them to the OFT for non-compliance and a likely penalty of £2500.

Failure to respond favourably to this letter within seven (7) days of receipt could result in legal proceedings being commenced against your client.

2. Just send a standard non complience (without the reduce balance to zero) and inform them yet again of change of address.

3) Just inform of change of address ( I am worried that I won't get any future mail that is sent to old address as the person who lives there moves out this weekend)

4) Do nothing and wait and see what their next move is

5) None of the above

 

Thanks for your time...

 

minky xxx

[ODC]

Asssuming you sent tem the change of address by recorded delivery.

 

Send them the non compliance letter. Ask for a copy of their internal complaints procedure and make an official complaint to them as well as informing Trading Standards that they have committed an offence

[davefirewalker]

Hi Minky

 

I would (for the time being) do no.2, but with the addition of "as they havent complied and are in default, you do not acknowledge any debt etc"

 

i would also tell them that as they are in criminal default they cannot while the default exists enforce the debt, add interest, or pass data onto third parties.

 

I would put the ball into their court and increase the pressure!

 

this letter may suffice...edit it as you think

I refer to my letters dated XXXXXXXX which was delivered via recorded delivery to your offices on XXXXXXXX, and my follow up letter dated XXXXXXXX.

 

In my letter xxxxxxI made a formal request for a copy of the signed, executed credit agreement for the above numbered XXXXXXXX account under section 77(1) and section 78(1) of the Consumer Credit Act. In addition a statement of my account should have been sent along with any other document mentioned in the credit agreement.

 

The Consumer Credit Act allows 12 working days for this request to be carried out before your company enter into a default situation. If the request is not satisfied after a further 30 calendar days, Your company commit an offence.

 

These time limits expired on XXXXXXXX and XXXXXXXX respectively.

 

As you are no doubt aware subsection (6) states:

 

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.

 

Therefore as at XXXXXXXX this account became unenforceable at law and it is now my intention to refer this matter to the enforcement authorities.

 

Any default notices or adverse comments your company has recorded on my credit reference file should be immediately removed.

 

Failure to respond favourably to this letter within 14 days of receipt will result in immediate litigation being commenced against your company without further notice.

 

I await your rapid response.

 

 

Yours Faithfully

[fergal71]

subscribing , how cool what happens if you cancel direct debit. will they chase if they have not got cca...

[ODC]

subscribing , how cool what happens if you cancel direct debit. will they chase if they have not got cca...

They can chase but it would be a bit pointless as without the CCA the alleged debt would be unenforcable in court