dpick oh v reliable collections/jd williams

[dpick]

Hi all bit of background I have sent CCA and SAR requests to JD Williams copy to unreliable re my wifes account with the value catalogue.

 

I have had a response to the CCA request.

 

They have sent the latest version of their credit agreement not a copy of the original (there never was one my wife never had to sign anything)

 

No signature for my wife and the real biggy the address is our present address not our previous address.

 

Their letter is this

 

"Please find attached a 'true copy' of your credit agreement as required by the consumer credit (cancellation notices and copies of documents) regulations 1983 regulation 3."

 

I used CCA 1974

 

For the moment I am just going to hold hard until they have committed the offense (12+2 days + 30 days) or do you think I should write to them asking why they have manufactured an agreement for us.

 

dpick

[dpick]

Hi all,I rang Consumer Direct to check my position re this supposed agreement JD Williams have sent me. They are treating this as a criminal matter and are also forwarding details to my local Trading Standards and to Manchester TS. I have been instructed not to start any communication with JD Williams and if JD Williams or any other body try to enforce payment to simply say that this alleged debt is in dispute and no payments will be made until dispute is resolved then communicate this to OFT, FOS, ICO and TS at Manchester and my local office with Consumer Direct ref number.

 

When I was discussing this with Consumer Direct I said I was not sure if I should treat this as trying to create an agreement or just totally ignoring my CCA s77-s79 request. thats when they said don't worry if you are happy we can take this as a criminal matter for you and proceed from there, I asked would I have recourse to court etc after their actions if I wanted to proceed re interest paid etc. They advised me not to do anything further until they contacted me again but they would be in contact within the CCA and SAR time scales.

 

Please not that the above is my recollection of the call, in my words.

I could have OFT, FOS organizations name wrong I am just trying to remember them from the call, I wish I had recorded this call now.

dpick

[dpick]

Just got this info from another site could Consumer direct be acting withing the new fraud act 2006

 

A very short extract from the act

 

The Fraud Act 2006. The Act creates a new general offence of fraud with three ways of committing it:

• Fraud by false representation
  
• Fraud by failing to disclose information, and
  
• Fraud by abuse of position
  
• 
  
• Fraud must give a gain of money or property

I have a idea this is the criminal matter they are investigating

 

1. false representation, they have sent me a blank agreement with our latest address on it not the address we were at when my wife started this account.

2. failing to disclose. My wife never had to sign an agreement, they have failed to disclose they have no agreement.

 

In 1 and 2 above the gain to them would be to for us to keep making payments.

 

dpick:eek:

[surprise]

I am joining in, I have posted on quite a few Littlewoods Threads as a word of warning but this is what has happened to me.

8th May

[surprise]

I am joining in, I have posted on quite a few Littlewoods Threads as a word of warning but this is what has happened to me.

8th May - blank agreement sent

14th May - they admitted to no signed and dated agreement and wrote of the debt.

23rd May - same letter as 8th May.

 

7th July received a letter posted 5th July but dated 15th May enclosing a true signed copy of an agreement.

 

I will leave it to everyone's imagination what has occurred. I have emailed and written to my local TS who haven't responded but now that you say Consumer Direct will, I will contact them.

 

Are JD Williams connected to Littlewoods?

 

I am also prepared to pay for document testing but I too have an ace up my sleeve re signatures which I am not posting on an open forum just in case the MIB are viewing.

[dpick]

I am joining in, I have posted on quite a few Littlewoods Threads as a word of warning but this is what has happened to me.

8th May - blank agreement sent

14th May - they admitted to no signed and dated agreement and wrote of the debt.

23rd May - same letter as 8th May.

 

7th July received a letter posted 5th July but dated 15th May enclosing a true signed copy of an agreement.

 

I will leave it to everyone's imagination what has occurred. I have emailed and written to my local TS who haven't responded but now that you say Consumer Direct will, I will contact them.

 

Are JD Williams connected to Littlewoods?

 

I am also prepared to pay for document testing but I too have an ace up my sleeve re signatures which I am not posting on an open forum just in case the MIB are viewing.

 

Hi surprise I think that JD Williams and Littlewoods are rival companies, my wife also has account with Littlewoods they have not responded to CCA for 2 accounts they are in default but not yet commited offence.

 

all the best dpick:?

[Josie8]

Hi dpick subscribing..................looks like you've got it covered:D

[dpick]

Hi dpick subscribing..................looks like you've got it covered:D

 

Hi josie welcome aboard you know help always appreciated

 

dpick:p

[dpick]

Just rcieved letter after their attempt at an agreement

 

Letter advising as payments stopped admin charge £12 twits the account is in dispute.

 

so have been pinching bit and pieces from all over for this letter.

 

IE my no agreement bog off letter.

 

DEFAULT UNDER THE CONSUMER CREDIT ACT 1974

FAILURE TO PRODUCE AGREEMENT

 

Dear Sir/Madam

 

ACCOUNT NUMBER: ***********************

 

I wrote to you by Special Delivery/Recorded Delivery ( Ref ***********) on ********, 2007 asking for a copy of the above agreement together with the relevant information under Section 77-79 of the Consumer Credit Act 1974, enclosing the statutory payment of £1.00. This letter was delivered and signed for on ***** , 2007.

 

The Consumer Credit Act allows 12 working days for this request to be carried out before your company enters into a default situation. This occurred on *******, 2007. If the request is not satisfied after a further calendar month, your company commits an offence. Therefore on *******, 2007 this time limit will have expired.

 

I have still not received a true copy of the agreement as required by S78 Consumer Credit Act 1974, just a blank copy of an agreement on which your company has hand printed my wife’s name and an incorrect address. As such I can only assume that no contract was ever signed by me wife. As you are no doubt aware

 

A credit agreement that is not properly documented and signed by the customer is totally unenforceable under the Consumer Credit Act 1974 and is therefore a complete defense to any court claim that is issued.

Please take note that any legal action you may contemplate will be vigorously defended and contested.

Furthermore your actions arguably do not comply with the Office of Fair Trading (OFT) Debt Collection Guidelines of July 2003, in that you have ‘communicated in an inaccurate or misleading manner (section 2.1) by ‘presenting information in that it creates a false or misleading impression’ and ‘failing to provide information on the status of debts’.

 

Should you nevertheless choose to initiate legal proceedings against me, I will expect to receive, with any Letter before Action, a copy of the document that you will be relying on as proof that a properly executed agreement, complying in all respects with the form and content requirements of the CCA was signed by my wife in respect of this alleged debt.

 

 

What I require

 

I require you with immediate effect to ensure that all data held by you regarding the alleged agreement/debt is removed from any and all Credit Reference Agency database.

 

Ensure that all data held by you regarding my wife is fully destroyed.

 

Ensure that no telephone calls are made to my wife.

 

Ensure that all correspondence is made in writing.

 

I require written confirmation of the above together with a quarterly statement that no data has been processed by you regarding my wife.

 

Failure to comply

 Failure to comply with my request under the Data Protection Act 1998 will result in the matter being referred to the Information Commissioner.

 Failure to comply with the requirements of the Consumer Credit Act 1974 will cause me to refer the matter to the Office of Fair Trading, and Trading Standards.

 Failure to comply with the requirements Office of Fair Trading guidelines will lead to a report being submitted.

 Continued telephone contact will generate a complaint for harassment to the police.

 If you fail to comply with any or all of the above I reserve the right to take action against you without further contact.

I expect to hear from you within 12 working days from the date of this letter.

 

Failure to do so will be taken that you have complied with my request and I will consider the matter closed.

 

 

 

Yours faithfully,

 

 

dpick for Mrs dpick

 

 

any comments would be welcome going to post office Tuesday

[Josie8]

Just rcieved letter after their attempt at an agreement

 

Letter advising as payments stopped admin charge £12 twits the account is in dispute.

 

so have been pinching bit and pieces from all over for this letter.

 

IE my no agreement bog off letter.

 

DEFAULT UNDER THE CONSUMER CREDIT ACT 1974

FAILURE TO PRODUCE AGREEMENT

 

Dear Sir/Madam

 

ACCOUNT NUMBER: ***********************

 

I wrote to you by Special Delivery/Recorded Delivery ( Ref ***********) on ********, 2007 asking for a copy of the above agreement together with the relevant information under Section 77-79 of the Consumer Credit Act 1974, enclosing the statutory payment of £1.00. This letter was delivered and signed for on ***** , 2007.

 

The Consumer Credit Act allows 12 working days for this request to be carried out before your company enters into a default situation. This occurred on *******, 2007. If the request is not satisfied after a further calendar month, your company commits an offence. Therefore on *******, 2007 this time limit will have expired.

 

I have still not received a true copy of the agreement as required by S78 Consumer Credit Act 1974, just a blank copy of an agreement on which your company has hand printed my wife’s name and an incorrect address. As such I can only assume that no contract was ever signed by my wife.

 

As you are no doubt aware a credit agreement that is not properly documented and signed by the customer is totally unenforceable under the Consumer Credit Act 1974 and is therefore a complete defense to any court claim that is issued.

 

Please take note that any legal action you may contemplate will be vigorously defended and contested.

 

Furthermore your actions arguably do not comply with the Office of Fair Trading (OFT) Debt Collection Guidelines of July 2003, in that you have ‘communicated in an inaccurate or misleading manner (section 2.1) by ‘presenting information in that it creates a false or misleading impression’ and ‘failing to provide information on the status of debts’.

 

Should you nevertheless choose to initiate legal proceedings against me, I will expect to receive, with any Letter before Action, a copy of the document that you will be relying on as proof that a properly executed agreement, complying in all respects with the form and content requirements of the CCA was signed by my wife in respect of this alleged debt.

 

 

What I require from you:

 

I require you to ensure that all data held by you regarding the alleged agreement/debt is removed from any and all Credit Reference Agency database with immediate effect

 

Ensure that all data held by you regarding my wife is fully destroyed.

 

Ensure that no telephone calls are made to my wife.

 

Ensure that all correspondence is made in writing.

 

I require written confirmation of the above together with a quarterly statement that no data has been processed by you regarding my wife.

 

Should you fail to comply:

 

 Failure to comply with my request under the Data Protection Act 1998 will result in the matter being referred to the Information Commissioner.

 

 Failure to comply with the requirements of the Consumer Credit Act 1974 will cause me to refer the matter to the Office of Fair Trading, and Trading Standards.

 

 Failure to comply with the requirements Office of Fair Trading guidelines will lead to a report being submitted to that body.

 

 Continued telephone contact will generate a complaint for harassment to the police under The Harrassment Act

 

 If you fail to comply with any or all of the above I reserve the right to take action against you without further contact.

 

I expect to receive a response from you within 12 working days from the date of this letter. In the event that I do not I will assume that you have complied with my request and I will consider the matter closed.

 

Yours faithfully,

 

 

dpick for Mrs dpick

 

 

any comments would be welcome going to post office Tuesday

 

 

Hi Dpick good letter - made a couple of suggestions

[dpick]

Thanks josie will use those amendments and thinking about this will probable use same letter for Littlewoods as my wife never signed anything for the 2 account she has had with them.

 

Both JD Williams and Littlewoods sent their latest agreement with no signatures and our present address hand printed on them, shame for the DOLTS that we were not at our present address when any of these account were started.

 

You know with these two and MBNA(they have stopped ring for the moment) I may just change numbers on my home phone and mobile and then write to them to say no phone you will have to write now.

 

Lets see what they do when they get number not available, one big raspberry to them all.

 

dpick

[elliesnan]

subscribing

[alibobsy]

I'm just sending off a simular letter to reliable collections for simply be (all various names for j d williams) as they have defaulted and sent a blank non agreement to me as well. I am also at this stage with littlewoods as well lol. So will watch this with interest. I have 3 dcas in default of CCA requests and 2 original creditors, plus another 6 CCAs ongoing. Just 1 creditor so far has actually provided the original agreement. These companies have just ignored the law and completey disregarded the fact that they should hold the correct documents to enforce any credit. They then harrass and threaten (on top of adding unlawfully high charges) and treat customers as money bags they can empty . Its about time we started fighting back go get em

ali xxx

[dpick]

Guess what I have sent CCA's for 5 different agreements and so far

1 to 3 now in default and have supplied made up agreements bog off letters sent

 

4 received application form have checked they owe me more than I owe then so, so far have reclaimed £1660 charges and interest. Now after PPI + interest = £2413.31 plus £1.56 added each day.

 

5 received very poor copy of microfiche file of application form and agreement almost unreadable but can not see any of the prescribed terms. Also supplied as part of CCA Terms & Conditions from June 2006 not original T&C from original card supplier. A different bog off letter sent to this one, I am now at a standoff with them I wont pay them they wont take me to court, then after getting 4 to 6 calls a day from them re you are in arrears pay up or else. I started sending e-mails to six different persons with them including chairman and corporate solicitor for each call I received from them. Have now heard nothing from them for 3 weeks. I can feel another letter coming they are still putting interest and charges on the account.

 

I think that if any one has an agreement older than 3 years old there is a very good chance that the agreement could be unenforceable.

 

dpick:D

[alibobsy]

The only one hubby and I have that have so far produced a proper agreement is a 2 yr old credit card so I think you are right anything older than that (or a catalogue company) just don't seem to have the agreements at all or just an application form which is not correct.

Like your idea of emailing the bosses every time one of the muppets rings you, think I will try this with cap one who have just ignored our first phone harrassment letter.

ali x

[dpick]

The only one hubby and I have that have so far produced a proper agreement is a 2 yr old credit card so I think you are right anything older than that (or a catalogue company) just don't seem to have the agreements at all or just an application form which is not correct.

Like your idea of emailing the bosses every time one of the muppets rings you, think I will try this with cap one who have just ignored our first phone harrassment letter.

ali x

 

Totally agree with you only thing you spelt pratalogue company wrong.

 

MBNA and Crap1 are the two most awkward companies I have had to deal with.

 

all the best dpick:)

[dpick]

Well TS got back to me while I was on holiday they have in their wisdom said they will treat this as not responding to CCA request.

 

"***%^&$@@$£**" now I feel a tiny bit better.

 

Below first bash at letter to JD Williams re their responce to my letter regarding their created agreement.

and of course thanks to all member where I have nicked parts of their letters.

 

Mr Dpick

Teesside

 

 

date

 

J D Williams & Company Limited

t/as Home Shopping Direct

Griffin House

40 Lever Street

Manchester

M60 6ES

 

ACCOUNT NUMBER: XXXXXX

 

Thank you for your letter dated 6th August 2007, as a response to my Letter of 24th July 2007 after your response to my request under the CCA 1974 section 77-78. I am afraid however that I cannot accept that these are true copies of any agreements alleged to have been executed between JD Williams and my wife, I am sure you are aware the burden on proof for the existence of any such agreements lies with you.

 

Also I do not agree with your interpretation of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983. I believe that Sections 77 and 78 of the consumer credit act 1974 are not bound by the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983; any request under Sections 77 and 78 of the Act can only be fulfilled with a copy of the fully and properly executed agreement conforming to Section 61 of the Act.

 

 

Now as to use of inflammatory or intemperate language please find below excerpts from the Fraud Act 2006 regarding fraud by false representation.

 

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

 

Fraud by false representation

 

 

1 Fraud

(1) A person is guilty of fraud if he is in breach of any of the sections listed in subsection (2) (which provide for different ways of committing the offence).

(2) The sections are-

(a) section 2 (fraud by false representation),

(b) section 3 (fraud by failing to disclose information), and

© section 4 (fraud by abuse of position).

(3) A person who is guilty of fraud is liable-

(a) on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum (or to both);

(b) on conviction on indictment, to imprisonment for a term not exceeding 10 years or to a fine (or to both).

 

2 Fraud by false representation

(1) A person is in breach of this section if he-

(a) dishonestly makes a false representation, and

(b) intends, by making the representation-

(i) to make a gain for himself or another, or

(ii) to cause loss to another or to expose another to a risk of loss.

(2) A representation is false if-

(a) it is untrue or misleading, and

(b) the person making it knows that it is, or might be, untrue or misleading.

(3) "Representation" means any representation as to fact or law, including a representation as to the state of mind of-

(a) the person making the representation, or

(b) any other person.

(4) A representation may be express or implied.

(5) For the purposes of this section a representation may be regarded as made if it (or anything implying it) is submitted in any form to any system or device designed to receive, convey or respond to communications (with or without human intervention).

 

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

(please note I have not informed JD Williams that the address they entered on their 'agreement' is incorrect)

 

The copy agreement your company supplied to me as a true copy of my wife’s original credit agreement I believe falls under sub section 2(1).

In that the document your company supplied is a false representation of an agreement in my wife’s name and address. Your intent in making this representation is to make a gain in that you are leading me to believe that this is a true agreement and your gain would be continuing to receive payments on this account.

 

 

I am surprised that J D Williams & Company Ltd, with all it's legal resources is unaware of the applicability of the various sections of the Act and associated regulations especially as a high proportion of your business in the UK is regulated by the Act. I am left with no other option than assuming of course that this is a wilful attempt to mislead me which of course would be a serious offence.

 

Perhaps I might suggest that production a true copy of the alleged executed agreement including signatures might serve to settle the matter.

 

 

Please be advised that you have 14 days from the date of this letter to respond and supply the documentation requested under Section 77 and 78 of the Act or to write confirming that you are unable to supply a signed and dated credit agreement and as such you will not be pursuing the balance of this account. If you have not responded within 14 days of your receipt of this letter(special delivery), or if I do not receive a satisfactory response I will issue a letter before action giving you a further 14 days to respond. At which point I will commence legal proceedings for you to produce the properly executed credit agreement for the above account without further communication.

 

Yours sincerely

 

dpick:-x

__________________

[dpick]

JD Williams finally sent data for SAR after I sent LBA to them. After going through them about 3 times I finally sorted out what most of it is about, I have found that JD Williams have been charging my wife interest as well as charges. Total interest + charges applied £561.97, now no agreement = no right to take interest or apply charges etc. Checked JD Williams web site interest is 39.6%. If I wanna be real nasty I could go after 39.6% interest on each charge and interest charge applied to the account from the day the charge applied to today. WOW £1174.92 and £0.59 a day added. Have just checked and the balance on the account is £257.21

 

Right boys and girls advise please

 

At this time I am chasing JD Williams to declare no agreement they have until 28/8/2007 before LBA, should I keep that going to give support to reclaiming charges etc later or should I start again with another prelim for declare no agreement and refund charges + interest applied to account.

 

As in no agreement gives no right to apply interest or charges to the account.

 

I know I can get charges + interest back, or should I stick it to them and try for interest at 39.6% apr on the charges and interest they have applied to account as well.

 

thanks in advance dpick

[dpick]

Well things are progressing, I finally checked through all the pages that JD Williams sent for the S.A.R - (Subject Access Request) and guess what no agreement at all. so after a further letter totally ignored I an now sending LBA any comments please on this first draft. Please remember that for CCA request JDW sent blank with personal details hand printed no signatures and the wrong address. Also we never signed an agreement at all.

 

28th August 2007

 

J D Williams & Company Limited

T/as Home Shopping Direct

Griffin House

40 Lever Street

Manchester

M60 6ES

 

ACCOUNT NUMBER: XXXXXXX LETTER BEFORE ACTION

 

I have previously written to your company on the 24th July 2007 and the 13th August 2007 without a satisfactory response.

As previously stated a blank agreement on which you have hand printed personal details will only comply with section 3 of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 if such an agreement exists. In my letter dated 13th August I gave you 14 days to write confirming that you are able to supply a signed and dated credit agreement, you have not responded to this letter.

 

I now require you to declare that no such credit agreement relating to account XXXXXX has ever been executed and as such you have no contract to apply charges or interest to the account. As such I now require that you refund all charges and interest applied to the account. At this time charges and interest total £561.97

I would therefore request, in compliance with CPR 4.6© a copy of the documents that you will be relying on as proof that a properly executed agreement, complying in all respects with the form and content requirements of the CCA was signed by my wife in respect of this alleged debt.

 

I expect, in accordance with CPR, your prompt response to this formal request within 14 days.

If I get no response or an unsatisfactory response to the above matters within 14 days I will issue county court proceeding to resolve these matters.

Yours truly,

dpick

[alibobsy]

I just pursued the CCA request with reliable collections (for simply be) both trading names for JD Williams and recently got a letter confirming that they agree no agreement=no enforcable debt, they have passed the account back to simply be and they state in the letter whilst they can't do anything else they will continue to "keep your details on our records for 6 years and you will not be able to get any further credit with our companies (lol)" and that they will "continue to process your details with the CRA". I have held the interest/charges issue back as a final whammy. Hope this will be levarage to get the account and my credit files cleared. I preferred to get them to declare the debt unenforecable first, they got for the rest. Mind you my balance probably wouldn't be cleared by the charges even with interest so I would be happy with a cleared account

Good luck

ali x

[sillygirl1]

Copy their letter to Trading Standards and the Information Commissioner. I understand that once the debt has been handed back they 'cannot keep your record for 6 years' as they never should have had it in the first place... this also comes under the Fraud act (so I was advised).

[dpick]

Hi all I have been keeping unreliable collections copied with all letters to JD Williams on last statement the opening balance has gone up to £310.17 from closing balance on previous statement of £257 with nothing applied to the account to show what the increase is for. Then the best bit "Remember failure to pay regular installments will result in your debt being sold to Nationwide Door Step Debt Recovery Company who employ specialist debt collectors"(thugs)

 

I am sending very short letter (they wont bother to read but evidence for me) This account is in dispute you are not allowed to sell etc.

 

I am now wondering should I make JD Williams and Reliable Collections joint defendants in court as I have no idea how the balance rose from £257 to £310 between the last two statements with nothing applied to either statement. I believe that I can force disclosure of how these statements differ using CPR (not sure of section yet will look it up)

 

JD Williams have supplied a blank agreement the correct CCA 1974 heading on which they have hand printed my wifes name and an incorrect address, no signatures. I believe they are bound in court by this as they sent it for s77 CCA 1974 request.

 

I have sent two prelim letters and LBA

 

My position is JD Williams have no agreement at all under CCA 1974 so they have no contract that allows them to apply interest or charges to the account. I am claiming back all charges and interest applied to the account and I am charging them interest at their advertised rate from Internet of 39.6% on each charge and interest charge they have applied to the account from the date it was applied.

 

I shall add a line to schedule of charges for £53 with description of no information and include a point in POC to say that JD Williams/Reliable collections have added this amount to the account with no information being given on the statements to account for the difference.

 

Will post again when something to post dpick:)

[dpick]

Received the usual bog off we dont owe you nowt you had the goods and we sent you an agreement that you did not sign and return we will pursue you etc.

 

Any comments on POC please

 

Particulars of Claim

 

 

1) The Claimant has a Account XXXXXXXXX ("the Account") with the Defendant which was opened with J. D. Williams trading as The Value Catalogue on or around August 2001

 

2) On 3rd July 2007 the claimant requested a true copy of the original executed credit agreement from the defendant under section 78 of the Consumer Credit Act 1974 (as amended). The defendant has failed to supply a true copy of the original credit agreement. The defendant had also failed to provide a copy of the original terms and conditions which were applicable at the time.

 

3) The Claimant contends that:

 

(a) The Defendant has failed to comply with a request made under s.78 (1) of the Consumer Credit Act 1974 (as amended) since 3rd July 2007 to provide a true copy of the executed agreement which has all the prescribed and required terms.

 

(b) The Defendant produced a blank agreement with the Claimant’s name and an incorrect address hand printed in ink (Exhibit 1)

It is respectfully submitted

That the court declares that no written agreement had been made between the Claimant and the Defendant and as such no contract had been signed to allow the Defendant to apply interest or charges to the account.

 

4. A schedule of the charges and interest applied to those charges is attached to these particulars of claim.

 

5. Interest claimed

 

a) The Claimant claims simple interest on the charges and interest applied to the Account at the annual rate of 39.6%. This is the rate currently applied by the Defendant to the Claimant’s use, as would have been provided for in signed contract.

 

The Claimant’s case for claiming this rate is based on the recent precedent in Sempra Metals Limited (formerly Metallgesellschaft Limited) (Respondents) v. Her Majesty's Commissioners of Inland Revenue and another (Appellants) allows. Or alternatively interest pursuant to section 69 County Courts Act at such rate and for such periods as the court deems just.

Or in the alternative.

 

It is respectfully submitted that the court is precluded from issuing an enforcement order by way of s. 127 of the Consumer Credit Act 1974, since the document does not contain all the prescribed terms defined in the Consumer Credit (Agreements) Regulations 1983, these being defined by Reg 6(1) as being specified in Sch 6 to the Agreements Regulations for the purposes of s61(1)(a) and s127(3). (The omitted terms including Credit Limit, Rate of interest, and Payment terms under the Consumer Credit (Agreements) Regulations 1983 schedule 6.

 

© Under s.78 (6) of the Consumer Credit Act 1974, if the Defendant cannot supply this information within the prescribed time they may not enforce the agreement and if the default continues for one month further, they commit an offence.

 

(d) The Defendant has continued, while in default to add interest and charges.

 

(e) The defendant is still enforcing the agreement.

4) The Claimant requests that the court declares the credit agreement unenforceable under section 65(1) by virtue of section 127(3) of the Consumer Credit act 1974.

 

5. During the period in which the Account has been operating the Defendant debited numerous charges to the Account in respect of purported breaches of contract on the part of the Claimant. The Claimant understands that the Defendant contends that the charges were debited in accordance with the terms of the contract between itself and the Claimant.

 

6. A schedule of the charges applied is attached to these particulars of claim.

 

7. The Claimant contends that:

 

a) The charges debited to the Account, as outlined in the attached schedule, are punitive in nature; are not a genuine pre-estimate of cost incurred by the Defendant; exceed any alleged actual loss to the Defendant in respect of any breaches of contract on the part of the Claimant; and are not intended to represent or are not related to any alleged actual loss, but instead unduly enrich the Defendant which exercises the contractual term in respect of such charges with a view to profit.

 

b) The contractual provision that permits the Defendant to levy such charges is unenforceable by virtue of The Unfair Terms in Consumer Contracts Regulations (1999) paragraph 8 and schedule 2 (1) (e), The Unfair Contracts Terms Act 1977 section 4 and the Common Law.

c) The Claimant believes these charges to be a penalty. Penalty charges are irrecoverable at Common Law. The precedent for this was Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79, along with Murray v Leisure Play [2005] EWCA Civ 963. It was held that a contractual party can only recover damages for an actual loss or liquidated losses. It is clear that these charges do not reflect any actual and or real loss. In the event that the charges are not a penalty, they are unreasonable under The Supply of Goods and Services Act 1982 section 15.

 

8. Interest claimed

 

a) The Claimant claims simple interest on the charges to the Account at the annual rate of 39.6%. This is the rate currently applied by the Defendant to the Claimant’s use, as provided for in the contract.

 

The Claimant’s case for claiming this rate is based on the recent precedent in Sempra Metals Limited (formerly Metallgesellschaft Limited) (Respondents) v. Her Majesty's Commissioners of Inland Revenue and another (Appellants) allows. Or alternatively interest pursuant to section 69 County Courts Act at such rate and for such periods as the court deems just.

 

 

The Claimant deems the Defendant’s charging regime to be unlawful, since the charges are unconscionable, remain unsubstantiated, and amount to unenforceable penalties at law. If the Defendant avers that its charges are fair, reasonable and therefore enforceable, its remedy will be to defend the claim by providing evidence of its actual losses or pre-estimate of costs in relation to the Claimant’s account breaches. Since the Defendant has been invited to do so prior to the issue of court proceedings, and has refused, and since the Claimant is aware that the Defendant has failed to defend any other similar claim, choosing to settle before the trial dates, the Claimant deems the Defendant’s charges to the Account to be indefensible, and unenforceable at law. It was clearly not in the Claimant’s contemplation when entering into the contract, that the Claimant would authorise the Defendant to apply penalty charges to the Account, or to profit in an unlawful manner from the Claimant’s account breaches.

 

For the contract to confer advantageous terms (i.e. entitlement to compensation) on one party (the Defendant) where there is no comparable term in favour of the other party (the Claimant) is to create an imbalance in the parties’ rights and is contrary to the requirements of Regulation 5 (1) of the Unfair Terms In Consumer Contracts Regulations 1999 ("UTCCR").

 

Regulation 5 (1) of the UTCCR states as follows:

 

5. (1) "A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer."

 

Therefore, to satisfy the requirement of fairness within the definition given by the UTCCR, the contract would have to provide a mutual or reciprocal term permitting the customer to apply the same rate of interest on any unauthorised withdrawals from the customer’s account by the bank (the Defendant). The interest claimed is therefore deemed to provide an equitable remedy.

 

b) In the alternative to 5 a), if the court finds that the Claimant is not entitled to contractual interest, the Claimant claims interest under section 69 of the County Courts Act 1984.

 

 

Accordingly the Claimant claims:

 

a) The return of the amounts debited in respect of penalty charges and interest in the sum of £561.97;

 

b) simple interest at a rate of 39.6% per annum, calculated from the date of each transaction to 9th September 2007 of £622.03, and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of £0.57. As set out in the attached schedule of charges.

 

 

c) In the alternative to b), interest under Section 69 of the County Court Act 1984 at the rate of 8% per annum from the date of each transaction to 9th September 2007 of £135.48 and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of £0.13.

 

It is the Claimants wish that any claim granted by the court is to be used in part to clear any balance remaining on the account and the remainder to be paid direct to the claimant by cheque.

 

I believe that the contents of these particulars of claim are true.

 

Signed

 

 

dpick:p

[dpick]

Filed N1 at court today

 

dpick:evil:

[dpick]

This may be interesting to anyone having trouble with Unreliable Collections, I got another letter today the usual "Despite numerous attempts to talk with you etc. £12 admin charge etc"

 

Rang them advised that 0870 was a premium phone number and under OFT guidelines they are not allowed to do this. Got the normal bla bla until I said I have filed papers at court re your so called agreement, charges and interest applied to the account when you have no agreement to do so etc.

 

This is the interesting point I was told the lady dealing with my complaint was at the desk opposite her??? All letters have been from JD Williams regarding so called agreement not unreal. Coll. So Unreliable collections is just another desk in same office at JD Williams

 

Spoke to this lady advised her now a court matter and you are still trying to enforce they agreed to put a stop on any activity until case sorted.

 

dpick:p