No CCA agreement or Unenforceable - take them to court?

[hisholinessthepope]

I have for a few weeks now been researching and considering how to proceed with an account that has no credit agreement (or an unenforceable credit agreement) under the Consumer Credit Act. The following post(s) are my thoughts at this time. I would welcome any input, comments or advice that others may have.

The first issue is with creditors that (1) still pursue balances on accounts. (2) Process adverse credit information. (3) Pass the “debt” on to multiple third parties.

Under section 127(3) the courts are precluded from enforcing a debt without an agreement that contains the prescribed terms. It becomes altogether unenforceable: section 65(1).

So I could file a claim at a County Court that goes (a) XXX does not have my consent under section 173(3). (b) Information may not be disclosed in accordance with sections 174 (1)+(2). © In accordance with section 142(1)(b) I request that the court declares agreement unenforceable under section 65(1) by virtue of section 127(3).

The only danger here (and the only defence, I think) is that they produce an agreement that is valid!

[rory32]

But then if you already sent them a CCA request and they didn't comply there is the issue of disclosure.

[remus]

Hi hhtp, subscribing:)

[hisholinessthepope]

Disclosure rory32?

 

Was planning to include their reply to my CCA request in the court papers. "Dear Pope we do not hold a credit agreement for your account, but this will not stop us coming after you!"

 

Ben

[remus]

Hi, think this thread may be of interest 1st Credit - What do I do next? as Heavenly1 has done a letter.

Going back to deed of assignment thread, right at the start, the posts read to me that what we have to do is go to court, and they won't because they would have to produce figures that show how much they paid for the debt, and other methods of abuse that they have carried out.

HHTP, are you going to go for it??

[hisholinessthepope]

What I really would like to know is have I got the right clauses from the CCA. Do the ones I quote in my first post say and mean what I think?

 

Can I start a county court action and have the debt declared unenforceable and stop all processing of my data?

[Peterbard]

Disclosure rory32?

 

Was planning to include their reply to my CCA request in the court papers. "Dear Pope we do not hold a credit agreement for your account, but this will not stop us coming after you!"

 

HI

Unfortunately there is nothing stoping them from so doing,they just can't do it through the courts you would have to use the harresment proceedures, Administration of Justice section40 etc. to stop them

 

Regards

Peter

[Peterbard]

What I really would like to know is have I got the right clauses from the CCA. Do the ones I quote in my first post say and mean what I think?

 

Can I start a county court action and have the debt declared unenforceable and stop all processing of my data?

Hi

According to current belief if you got an order to make the debt unenforceable you could stop them from sharing data with cra's

 

Peter

[hisholinessthepope]

Thanks Peter. Presumably it would also stop them hawking the "debt" from one DCA to another? Then only they could chase for the outstanding balance, though not via the courts, as you rightly say.

 

This however is only the first barrel of my shot gun. I will post details of the second barrel this evening when I return to my residency.

[Jeff2000]

Hi,

 

 

Subscribing.

[hisholinessthepope]

The second barrel is regarding restitution, consolidation, reclaiming monies, pay it all back, etc. I have come to the conclusion that all we need is already in place from the Wilson case. Lord Nicholls of Birkenhead stated [note my underlining and emphasis]

“30 These restrictions on enforcement of a regulated agreement cannot be side-stepped by recourse to a pledge or other form of security furnished in support of the debtor's obligations under the agreement. The security is not enforceable to a greater extent than the loan: section 113. Where an application for an enforcement order is dismissed, except on technical grounds only, or the court makes a declaration under section 142 that the agreement is not enforceable, any security provided in relation to a regulated agreement 'shall be treated as never having effect': section 106(a). Property lodged with the creditor by way of security has to be returned by him 'forthwith'.”

“44 ... The rigid ban on enforcement of security and contractual rights prescribed by section 127(3) alone and in conjunction with sections 106 and 113 engages article 1 of the First Protocol. The lender's rights were extinguished in favour of the borrower by legislation for which the state is responsible. This was a deprivation of possessions within the meaning of article 1: see James v United Kingdom (1986) 8 EHRR 123,140, para 38. Whether this statutory interference with First County Trust's peaceful enjoyment of its possessions was justified, and therefore not a breach of article 1, is a separate issue.”

I think that the debtors can no more “side-step” the Consumer Credit Act than the creditor can. Therefore I believe all reference to any other case law that is not directly the Consumer Credit Act will be doomed before the courts. Accordingly I think we need to use Consumer Credit Act case law to assist us and nothing else. Returning to Wilson and her motorcar.

The Lords confirmed on several occasions that enrichment, windfall, etc would occur and that this is as Parliament intended, further this could occur up to £25,000.00.

“77 …. Moreover, I have in mind that the statutory provisions apply only to loans up to a prescribed financial limit, currently £25,000. So the exposure of a creditor in any one case is confined. The burden imposed on him is not excessive.”

All rights under the Consumer Credit Act are removed by clause 127(3).

“72 Undoubtedly, as illustrated by the facts of the present case, section 127(3) may be drastic, even harsh, in its adverse consequences for a lender. He loses all his rights under the agreement, including his rights to any security which has been lodged. Conversely, the borrower acquires what can only be described as a windfall.”

I think we should argue that all monies were paid under the misapprehension that these monies had to be paid as the rights enjoyed by the Creditor under the Act. As these rights do not exist, they have no right to these monies; therefore I want it all back!

[Peterbard]

Hi

Unfortunately i know nof a couple of people on here that have tried to get money refunded from a incorrectly executed agreement and the judge has said something like this money was paid volunatarrily to the creditor and i can see no reason why i should issue an order to refunded.

Look at ingotechs postings i think she was one of the ones i mentioned.

 

Regards

Peter

[hisholinessthepope]

Thanks Peter, I was aware of some unsuccessful attempts and have had discussions with Pam (inkognehto).

 

I was hoping that mine was a new angle in just referring to Wilson and not using restitution, consolidation and mistake of law etc.

 

In the Wilson original county court case the judge actually decided her agreement was enforceable and this was subsequently overturned by the higher courts.

 

So I was hoping that by (politely) "enlightening" the county court judge with nothing but reference to Wilson I could focus his mind as it were. I feel the two main principles of (1) you can not side step the CCA and (2) you have no rights - are pretty clear from Wilson.

 

Whether this would lead a judge to agree to order all monies returned is another matter! But as I would be tacking this on my claim as post one above to have agreement declared unenforceable, plus no processing of data, etc.

 

I think it is a course I may well take on, as I have an account where the creditor has written to me and said "we have no agreement". That with the fact the balance is less than £500 and the account payments over 12 years are in excess of £14,000 makes me think it is all worth a punt.

[debt_mountain]

HHTP

 

I am at stage 1 of this legal battle. I have taken Cabot to court for sharing my data and damages. 3 accounts are settled and 1 is alleged. 1 agreement does not exist, 2 are illegible and the 4th (alleged balance) only has an application form which is illegible.

 

I am using this action to get all the documents put up as part of the prove you can share my data. I am asking for the DOA and sales agreement too. these are all needed for the stop sharing case but depending how this goes I may well go onto part 2 which would be a"give it all back then".

 

I have to reply to their defence next week and the judge will give his next orders by mid July.

[un1boy]

Hi Guys,

 

I am at the stage where they sent me an agreement in August 2006 with no prescribed terms but are still processing my data with the CRA's. All regulatory bodies are not interested so I am now going to take them to court.

 

I want the court to make an order uof unenforcability and award damages since August 2006 for the extra amount I have has to pay for a car loan.

 

I will help on ths thread as much as I possibily can.

[hisholinessthepope]

Welcome on board uniboy

[un1boy]

Thanks Pope - let's see if we can nail these Bar stewards together, shall we?

[nannamoon1]

hi guys,

 

I am very interested in this thread although I have a slightly different situation I have been paying a debt for 13/14 years and they have NO INFORMATION to prove the debt, have a look a my ongoing thread

Solicitors Letter Received

 

Have a read of all the letters they are something else!!!

 

I would love to take the DCA/In House solicitor to court for damages & compensation can someone have a read of the thread and maybe advise.

[noomill060]

Hi guys, Im in the same boat. No agreement, only a copy application form supplied by Barclaycard.

 

I stopped paying last November. No hassle since, but would like to get it sorted for good, the default removed and preferably by getting at least the interest and penalty charges back as well.

 

Budge over! Heres a letter I sent Barclaycard today, I'll let you know how I get on:

 

my name and address

 

 

Adrian Ruffhead

Barclaycard Litigation & Disputes Team,

Level 29,

1 Churchill Place,

London,

E14 5HP.

1 June 2007

Re: a/c number xxxxxxxxxxxxxxxxxx

 

Dear Mr Ruffhead,

On 31 August 2006 Barclaycard issued a default against me, apparently under s.87 (1) of the Consumer Credit Act 1974.

I note that Barclaycard continued to debit interest to my account after the default.

On 19 October 2006 I sent a request under s.78 of the Consumer Credit Act 1974 for a true, executed copy of my Credit Agreement to your recovery agents “Debt Managers Ltd” to whom you had delegated recovery of my alleged debt.

This was sent by Recorded Delivery (Royal Mail id:evil:xxxxxxxx) together with a £1 postal order (id: xxxxxxxxx) in the prescribed manner as per CCA s.78 , and was delivered to and signed for by your agents “Debt Managers Ltd” on 23 October 2006.

You had 12 working days in which to comply, after which time the alleged agreement became unenforceable by law. A further calendar month later, Barclaycard was deemed to have committed an offence.

s.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.

 

 

 

s.78 (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.

On 5 April 2007 another offence was committed when I received a demand for payment (threatening legal action) from Barclaycard, via “Wescot Credit Services Ltd” and I again requested a true copy of my Credit Agreement is the same manner described earlier. Wescot acknowledged my s.78 CCA request.

I believe this attempt to enforce an apparent debt was a crude retaliatory action against me due to Barclaycard’s deadline to enter a defence in my Small Claim (07/01692) against Barclaycard under the Data Protection Act 1998 (now settled, thank you) and was intended in some way to intimidate me.

As you are now aware, it didn’t intimidate me in the slightest.

On 26 May 2007, I received a copy of my original application form. This is not a Credit Agreement as it contains none of the Prescribed Terms as specified in s.60

S.60 Form and content of agreements

(1) The Secretary of State shall make regulations as to the form and content of documents embodying regulated agreements, and the regulations shall contain such provisions as appear to him appropriate with a view to ensuring that the debtor or hirer is made aware of—

(a) the rights and duties conferred or imposed on him by the agreement,

(b) the amount and rate of the total charge for credit (in the case of a consumer credit agreement),

© the protection and remedies available to him under this Act, and

(d) any other matters which, in the opinion of the Secretary of State, it is desirable for him to know about in connection with the agreement.

(2) Regulations under subsection (1) may in particular—

(a) require specified information to be included in the prescribed manner in documents, and other specified material to be excluded;

(b) contain requirements to ensure that specified information is clearly brought to the attention of the debtor or hirer, and that one part of a document is not given insufficient or excessive prominence compared with another.

And not properly executed as specified in s.61

s.61 Signing of agreement

(1) A regulated agreement is not properly executed unless—

(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and

(b) the document embodies all the terms of the agreement, other than implied terms, and

© the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible. CONTINUED

It is clear from your failure to supply me with such on demand, that no Credit Agreement exists, nor has ever existed, between myself and Barclaycard.

In the absence of any Credit Agreement, any alleged debt is unenforceable under s.127 (3) of the Consumer Credit Act 1974.

(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).

 

 

I require the following:

a) that within 7 days Barclays Bank PLC t/a Barclaycard ceases to process my data to third parties and that all Default Notices in my name be removed from all credit reference agencies.

( Please find enclosed s.10 Notice under the Data Protection Act 1998 to “cease and desist” processing information. I may seek redress for removal of information and damages under s.13 and s.14 of the Data Protection Act 1998.)

b) that within 7 days Barclays Bank PLC t/a Barclaycard provide me with a statement of account showing my balance as zero.

c) Consolidation and restitution of all monies and interest paid, and restitution of all unlawful penalty charges and all interest levied thereon.

Failure to do so will leave me no option but to inform Trading Standards, the Office of Fair Trading and the Information Commissioner’ Office.

 

 

As it is my intention to consider litigation in this matter, you may consider this as a letter before action and your attention is drawn to:

CPR 4.6 © enclose copies of documents asked for by the claimant, or explain why they are not enclosed;

I would therefore request in compliance with CPR 4.6© a copy of the document that you be relying on as proof that a properly executed agreement, complying in all respects with the form and content requirements of the CCA and signed by both parties in respect to the alleged debt.

In accordance the CPR, I expect your prompt response to this formal request without further delay.

I look forward to your reply.

 

Yours Sincerely,

 

Noomill060

[noomill060]

nannamoon- that link doesnt work.

[debt_mountain]

Thanks Pope - let's see if we can nail these Bar stewards together, shall we?

Who is this debt with? is it one of the big bad DCAs.

[nannamoon1]

noomill060

 

Hopefully this will work

 

Solicitors Letter Received

 

just checked and it seems to work

[humbleman]

My stragtegy for commencing legal action for non-complainace or no CCA

 

I would write to the CEO of the company along the lines

 

Dears mr CEO

 

I would like to bring to your attention... your company has been unable to supply me a properly executed agreement for an alleged account re: acc. no. 222222..... and contrary to the CCA 1974 your operatives are still seeking to enforce this agreement without realising that this is an offence, Before I commence legal action against your company in respect of such actions I would like a confirmation from you that you are either endorsing such actions or a confirmation that you will not harrase me for this alleged debt and that you will agree to conform to my earlier letter and stop transmitting any data to the CRA's. you might want to recite Ian McCartneys' letter....Larcos etc.

 

Please be warned that in the absence of a reply from you within the next 14 days I will issue proceeding jointly against you and your company.

[noomill060]

Dont kid yourself.

 

The only thing that will make them sit up and take notice is the prospect of having to go in front of a judge.

 

There are professional business people directing this from the top who will exploit any weakness they perceive in you for their own profit.

 

It is clear from the OFTs attitude of appeasement and their statement that a simple civil remedy for a continued default of s.78 is available seems to signify that this should be attacked through the civil courts.

 

But it wont get as far as Court. Do you really think they would willingly go in front of a judge knowing they were going to lose?

[noomill060]

Our task is to let them know, that we know they will lose and that we are prepared to go as far as Court to prove it.