information exchanged with the CRA remains accurate even if CCA is Un-en?

[Josie8]

.....and I don't think in equity the courts can allow that................

[hisholinessthepope]

Well my credit history now is anything but unblemished, so in for a penny and lets get a definite answer from a judge!

[Guest ArthurP]

When you used the card you accepted their terms and conditions.

 

But that seems to be at odds with the need of an agreement in the first place.

 

Why bother to CCA request them if they are able to say a similar thing, as in 'you used the card so pay the money?'

 

How can data sharing be decided to have been entered into when there is nothing (CCA non-compliance) to refer to?

[tomterm8]

I have yet to find any case law. But I do not see it as risky taking court action. You pay your £30 and make a case, if you lose so what, they have already been processing your data and are allowed to continue.

 

Personally, I think the route that people seem to be taking is more risky than it needs to be. If i were going down this route, i would wait until they hadn't supplied the credit agreement for at least three months, and the creditor had sent me several letters threatening court action, then I would issue an application under s142 for the court to declare that enforcement action could not be taken:

 

 

 

142.

--(1) Where under any provision of this Act a thing can be done by a creditor or

owner on an enforcement order only, and either--

(a) the court dismisses (except on technical grounds only) an application for an

enforcement order, or

(b) where no such application has been made or such an application has been

dismissed on technical grounds only, an interested party applies to the court

for a declaration under this subsection,

the court may if it thinks just make a declaration that the creditor or owner is not entitled

to do that thing, and thereafter no application for an enforcement order in respect of it

shall be entertained.

 

i would only manke an application to the court; not claim any damages whatsoever.

 

once the court awarded me the declaration, i would go at them under the Data protection Act 1998.

 

[Josie8]

Personally, I think the route that people seem to be taking is more risky than it needs to be. If i were going down this route, i would wait until they hadn't supplied the credit agreement for at least three months, and the creditor had sent me several letters threatening court action, then I would issue an application under s142 for the court to declare that enforcement action could not be taken:

 

 

 

142.

--(1) Where under any provision of this Act a thing can be done by a creditor or

owner on an enforcement order only, and either--

(a) the court dismisses (except on technical grounds only) an application for an

enforcement order, or

(b) where no such application has been made or such an application has been

dismissed on technical grounds only, an interested party applies to the court

for a declaration under this subsection,

the court may if it thinks just make a declaration that the creditor or owner is not entitled

to do that thing, and thereafter no application for an enforcement order in respect of it

shall be entertained.

 

i would only manke an application to the court; not claim any damages whatsoever.

 

once the court awarded me the declaration, i would go at them under the Data protection Act 1998.

 

 

Good tactics - I remember reading somewhere that the top man at experian had said if we want them to stop processing the data against their clients wishes get a court order.

 

In his eyes we need to be able to show that the court has declared the cca to be unenforceable - doesn't matter what TS say or us the individuals.

 

Personally I think when he said that a few months ago he didn't think any of us would have the nerve to take it that far lol!

[Fred_Funk]

Sorry for butting in but, then again, seeing as I instigated this thread I reckon it's my prerogative! ;-)

 

I was hoping you guys might spare me a moment to take a look at another of my threads...

 

http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/79616-fred_funk-hillesden-sec-ltd.html

 

... and let me know what you think. As ever, thanks in anticipation of your help and co-operation.

 

Fred_Funk

[sequenci]

 

Why bother to CCA request them if they are able to say a similar thing, as in 'you used the card so pay the money?'

 

Becuase the legislation is there in black and white.

[Guest ArthurP]

Becuase the legislation is there in black and white.

 

Not my point.

 

The post informed us that a CCC can share data because ' past use of the credit card is enough evidence to do it.' Or words to that effect.

 

In that case why cannot a CCC just say 'you used your credit card in the past so regardless of providing an agreement to comply with the law you have to pay?'

 

Either there has to be a form of agreement or there doesn't. Which one is it?

[Josie8]

I think Sequenci meant that the legal responsibilty to produce a CCA is laid clearly in statute.

 

Its a bit more murky regarding the CRA's. I think the answer is to obtain a court decalration that the agreement is unenforceable and at the same time ask the court to order removal of history from CRA's............

 

I imagine several of us fiesty Caggers are taking this path...........and the first one to acheive it will no doubt have a massive press conference lol!

[Monty2007]

I think you are right Josie. I spent the last three days reading everything I could on this area and there is very little legal case precedent. I find the ICO response puzzling since they seem to side with the creditors and there are some real problems with getting information changed, it seems Experian etc., essentially do not make any changes unless instructed to by the creditor and do not need to see any proof.

 

Does anyone know if a ccc can assign the debt once it has been shown to be unenforceable (by lack of production of a CCA) to a DCA? What is the going rate for settlement of an unenforced debt, some companies just seem to write it off?

 

And (i) does the interest becomes void since the terms cannot be shown and (ii) the serving of a default notice in the same respect of lack of a CCA.

[Guest ArthurP]

I think Sequenci meant that the legal responsibilty to produce a CCA is laid clearly in statute.

 

Its a bit more murky regarding the CRA's. I think the answer is to obtain a court decalration that the agreement is unenforceable and at the same time ask the court to order removal of history from CRA's............

 

I imagine several of us fiesty Caggers are taking this path...........and the first one to acheive it will no doubt have a massive press conference lol!

 

Yes, I can see that now.

Many apologies for my ignorance.

[Josie8]

I think you are right Josie. I spent the last three days reading everything I could on this area and there is very little legal case precedent. I find the Information Commissioners Office response puzzling since they seem to side with the creditors and there are some real problems with getting information changed, it seems Experian etc., essentially do not make any changes unless instructed to by the creditor and do not need to see any proof. Yes though a court order would compell them to do so.

 

Does anyone know if a ccc can assign the debt once it has been shown to be unenforceable (by lack of production of a CCA) to a DCA? What is the going rate for settlement of an unenforced debt, some companies just seem to write it off? They can but who would want it - particularly if it belonged to a Cagger? 10% I believe is the going rate.

 

And (i) does the interest becomes void since the terms cannot be shown Yes and (ii) the serving of a default notice in the same respect of lack of a CCA.

I think yes because wilson V Sec of State made it clear that the creditor couldn't sidestep the CCA and defaults are specified in the CCA but in any case the issue will soon be determined by a court (hopefully looking at the equity of the situation)

[santos ehelper]

If my memory serves me correctly, "surlybonds" has posted quite a bit of useful information with regards to this thread, and I even seem to remember reading about him threating a CRA with court action if they didn't comply with his request.

 

I am trying to find the relevant thread at the moment.

 

It is a really good read if you can find it.

 

Santos

[Josie8]

If my memory serves me correctly, "surlybonds" has posted quite a bit of useful information with regards to this thread, and I even seem to remember reading about him threating a CRA with court action if they didn't comply with his request.

 

I am trying to find the relevant thread at the moment.

 

It is a really good read if you can find it.

 

Santos

Please post it if you find it

[Josie8]

If my memory serves me correctly, "surlybonds" has posted quite a bit of useful information with regards to this thread, and I even seem to remember reading about him threating a CRA with court action if they didn't comply with his request.

 

I am trying to find the relevant thread at the moment.

 

It is a really good read if you can find it.

 

Santos

Please post it if you find it

[Monty2007]

Thanks Josie, I am just waiting on them to get to 42 days.

 

I have read surlybonds threads and they are informative but incomplete, I have attached to them to my s10 link.

[redsue]

Hi everyone - excellent thread - its great to come across people in the same situation as me.

http://www.consumeractiongroup.co.uk/forum/mbna/81907-mbna-ding-ding-round.html#post729106

 

My agreement has been improperly executed in that it's an illegible application form missing many prescibed terms and the only t&cs they can provide are current ones. They also failed to provide any documentation between 1st March 2006 (CCA sent) and 18 June (dodgy app sent) and where therefore in default themselves from 23 April.

 

I wondered if I could run a few things past you all as the best way forward

 

I'm about to sent them a LBA to reclaim the unlawful late fees and interest they charged in the period they where in default. 23 April - 21 June.

 

I am very disappointed with your letter dated 4 July 2007, in which you consistently fail to offer any explanation of the actions of MBNA raised in my previous letter dated 21 June 2007.

 

As you are aware on 1st March 2007, I wrote to MBNA Customer Advocates Office by recorded delivery on 1st March 2007 asking for a copy of the alleged agreement together with the relevant information under Section 77-78 of the Consumer Credit Act 1974, enclosing the fee payable. This letter was delivered and signed for on 2nd March 2007 and the £1 payment was cashed on 18th April 2007.

 

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

 

I am frankly shocked that you have chosen to ignore the Consumer Credit Act 1974, you leave me with no option but to claim back the interest and late fees unlawfully applied to my account whilst MBNA where in default of this CCA request.

 

I calculate from 23 April 2007 to date, you have charged £36.00 in late payment fees and £53.29 in interest to the account. Total £89.29.

 

I require repayment in full of £89.29 to the account and to cease processing any data in relation to this account, from 23 April 2007 onwards, with immediate effect.

 

I shall also issue an application under s142 for the court to declare that enforcement action cannot be taken: on the basis that the credit agreement supplied does not conform to the Agreement Regulations s.60(1) on several counts, is therefore improperly executed as per s.61(a), and as a consequence is irredeemably un-enforceable.

 

If you do not comply fully within 14 days then I shall begin a claim against you for the full amount plus interest plus a claim under ss.7 and 13 of the Data Protection Act 1998 plus my costs and without further notice.

 

Furthermore, you should remember that a creditor is not permitted to take any action against an account whilst it remains in dispute. The lack of a properly executed credit agreement is a very clear legal dispute.

 

You are also reminded of my request that you forward a copy of the documents on which you are relying on in court. These are requested under CPR Pre-Action Protocol 4.6©, and your failure to provide them will be brought to the attention of the court, should it be necessary to commence a county court action.

 

I require repayment in full of this money. If you do not comply fully within 14 days then I shall begin a claim against you for the full amount plus interest plus my costs and without further notice.

 

If this then goes to court and the judge deems the agreement unenforceable it is then my intention to go and get the all the data removed for this account - although I know this is also a matter for discussion.

 

I'm in two minds as to whether to offer them a 10% full and final settlement on this alleged account to bring this matter to a swift end.

Now I know I strictly don't have to do this - but they are marking my credit record left, right and centre and apart from this account my credit record is in quite good condition. Plus I want to appear reasonable to a judge that I'm acting in good faith and tried to settle this out of court. Are there any downsides to this way forward?

 

I also want them to know that they have never had any agreement to charge me interest and would like to hint that if they don't find this offer acceptable I'll go after them to recover all the interest charges on this account - BTW I've had the card for 14 years - any suggestions as to wording to use?

 

I've complained to the OFT plus trading standards at Chester. TS are in current discussions with them about their behaviour but quite frankly I'm sick of their actions and I'm keen to bring this issue to a head.

 

Any comments or advise about the way forward would be appreciated

[Josie8]

Hi everyone - excellent thread - its great to come across people in the same situation as me.

http://www.consumeractiongroup.co.uk/forum/mbna/81907-mbna-ding-ding-round.html#post729106

 

My agreement has been improperly executed in that it's an illegible application form missing many prescibed terms and the only t&cs they can provide are current ones. They also failed to provide any documentation between 1st March 2006 (CCA sent) and 18 June (dodgy app sent) and where therefore in default themselves from 23 April.

 

I wondered if I could run a few things past you all as the best way forward

 

I'm about to sent them a LBA to reclaim the unlawful late fees and interest they charged in the period they where in default. 23 April - 21 June.

 

 

 

If this then goes to court and the judge deems the agreement unenforceable it is then my intention to go and get the all the data removed for this account - although I know this is also a matter for discussion.

 

I'm in two minds as to whether to offer them a 10% full and final settlement on this alleged account to bring this matter to a swift end.

Now I know I strictly don't have to do this - but they are marking my credit record left, right and centre and apart from this account my credit record is in quite good condition. Plus I want to appear reasonable to a judge that I'm acting in good faith and tried to settle this out of court. Are there any downsides to this way forward? I wouldn't off er at this stage it shows weakness .................the time to do the offer is once you've initiated court proceedings because it will concentrate their mind as they will know you are serious about getting a court to declare the agreement unenforceable etc.

 

I also want them to know that they have never had any agreement to charge me interest and would like to hint that if they don't find this offer acceptable I'll go after them to recover all the interest charges on this account - BTW I've had the card for 14 years - any suggestions as to wording to use?

 

I would add into your preliminary letter that I am also considering issuing a claim for repayment of all interest you have charged on my account once the issue of uneforceability has been decided by the court.

 

I've complained to the OFT plus trading standards at Chester. TS are in current discussions with them about their behaviour but quite frankly I'm sick of their actions and I'm keen to bring this issue to a head.

 

Any comments or advise about the way forward would be appreciated

 

 

Think its a very good prelim letter - should get Cheshire Towers feeling a wee bit queasy...........especially as yours is the the first of many (I would imagine - my family alone will be another 4 lol!). :D

[tomterm8]

Personally, given they have already stated that their response is their final response, and they will not enter into any further corrispondance... I would not bother with a LBA...

 

I would say...

 

IT'S COURT TIME, BABY:)

[redsue]

I think I'll send this as an LBA and not head straight to court as I'm a very reasonable gal Would like to judge to think I've been as reasonable as possible whilst MBNA have not.

Then once the 14 days are up I'll issue a court claim - oo er! - I hope you will all be able to hold my hand through this

thanks guys for your comments

[Monty2007]

Excellent letter Redsue, I was drafting one into the night and have the following draft:

 

Accountxxxxxxxxxxxxxxxxxx

 

 

Dear xxxxxxx

 

I am in receipt of your letter dated xx June 2007.

 

You will be aware of the Consumer Credit Act 1974 provisions regarding furnishing copy documents in the prescribed period and that you have failed to adhere to the twelve working day timescale which places both alleged accounts in default.

 

I have also requested the same from your agents, xxxxxxxxxxx, who despite your constant insistence to correspond with, do not actually respond whatsoever to any written legal requests or legitimate correspondence.

 

The purported agreements supplied to me do not accord in form and content to sections 60 and 61 of the Consumer Credit Act 1974 and the Consumer Credit (Agreements) Regulations 1983 and are therefore unenforceable. Should you wish to take legal action in relation to enforcing these alleged credit agreements you will be aware that Civil Procedure Rules will require you to furnish said information during the pre-trial/hearing disclosure phase.

 

In addition, the Default Notices that you served on me are legally invalid as they both request amounts in excess of the alleged breach of contract. For both a/cxxxxxxxxxxxxx and a/c xxxxxxxxxxxx, the amount requested contains penalty charges which were levied to the alleged account, and are unlawful at Common Law, under the The Unfair Contract Terms Act 1977 and The Unfair Terms in Consumer Contracts Regulations 1999.

 

You have also conveniently failed to acknowledge, or address, the processing of my data by your agents, xxxxxxxxxxx who have acted illegally under the Data Protection Act 1988. You must confirm to me on what, or who’s, authority you provided my data to this organisation and on what or who’s authority they processed it.

 

On several occasions I have written to you in relation to xxxxxxxxx breach of the (i) the Administration of Justices Act 1970 (S.40) which makes it a criminal offence for a creditor or creditor’s agent (i.e. debt collection agency) to make demands (for money), which are aimed at causing “alarm, distress or humiliation, because of their frequency or publicity or manner”. Equally a creditor will be committing an offence if they falsely imply that non-payment of the debt will lead to criminal proceedings; or the creditor pretends to be someone they are not. And (ii) the Protection of Harassment Act 1998 that provides provisions in terms of debt collection harassment. This act is clear in that it is a criminal offence for any person to pursue a course of action “which they know, or ought to know, amounts to harassment of another person”.

 

Given this impasse and subject to contract, I am prepared to enter into a without prejudice compromise settlement with you in relation to this matter. This offer is defined below and is attached as a Terms of Settlement Agreement. This offer is open to you until xxxxxxxxx 2007.

 

For settlement I require you to:

 

1. Return the balance of both accounts to zero and close them out forthwith.

 

2. Inform xxxxxxxx (including its subsidiary companies) that these accounts are closed and no further action is required from them whatsoever.

 

3. Agree not to impose any further charges or interest on these accounts or assign it to any other party.

 

4. Withdraw all information including any default notice(s) served in relation to these disputed accounts from all credit reference agencies and agree not to place any future notices in relation to these above accounts with any credit reference agencies. xxxxxxxxxx Limited agrees to execute this action within a reasonable period of time and not longer that eight weeks following execution of this agreement.

 

I attach a ‘Terms of Settlement Declaration”, please return one executed copy to me.

 

If we are unable to reach a compromise settlement I will issue an application under Section 142 for the court to declare that enforcement action cannot be taken: on the basis that the credit agreements supplied does not conform to the Agreement Regulations; Section 60 on several counts, is therefore improperly executed as per Section 61, and as a consequence is irredeemably un-enforceable. I will also take the necessary legal and regulatory steps to have you conform to the Section 10 Data Protection request that you have vigorously contested.

 

Yours sincerely

Monty

[payingonlyencouragesthem]

 

Given this impasse and subject to contract, I am prepared to enter into a without prejudice compromise settlement with you in relation to this matter. This offer is defined below and is attached as a Terms of Settlement Agreement. This offer is open to you until xxxxxxxxx 2007.

 

For settlement I require you to:

 

1. Return the balance of both accounts to zero and close them out forthwith.

 

What a magnanimous gesture:D:D:D

[Monty2007]

Hey, its a start!

 

Any suggestions, should I be generous and offer say 10%.......

 

I am game for a laugh

[shieldblaster]

Good letter

[redsue]

excellent Monty2007 - which company are you after?