HFC Loan - Is this an enforceable CCA?

[shieldblaster]

Having spent most of the afternoon reading the posts on trhis site i wonder if i might ask for your invaluablke help/advice

 

On the 22/4/07 i sent a cca to HFC Bank over a debt that they have defaulted me on with Experian. As yet all i have received is a replay from their 'Executive Complaints Dept' telling me they are looking into it. I already know that the debt has been reassigned cos I have been paying Wescot 50 quid a month. So my questions are:

 

As i have had no reply to my original letter, and certainly no sign of the original agreement let alone a copy, nor a deed of assignment, nor a true copy of the default notice, am i right in thinbking that they are now in default under the 12 day rule? and also now commiting an illegal act under the 30 day rule cos the debt is now unenforceable?

 

If the answer to these is yes do I then write to them disowning the debt and report them to TS?

 

Do I also write to Wescot? and if so send them copies of my correspondence with HFC? cos if HFC can't supply the info i requested i'm pretty sure Wescot won't be able to too.

 

And finally Do I stop all further payments and request any monies back that i have paid Wescot as it would appear they are enforcing a debt that doesn't exist under CCA?

 

Sorry to go on but i would really like to know exactly where to go form here and where i stand right at this moment.

 

Last but not least! - Thank you for such a wonderful and helpful forum!!!

[tiglet]

Having spent most of the afternoon reading the posts on trhis site i wonder if i might ask for your invaluablke help/advice

 

On the 22/4/07 i sent a cca to HFC Bank over a debt that they have defaulted me on with Experian. As yet all i have received is a replay from their 'Executive Complaints Dept' telling me they are looking into it. I already know that the debt has been reassigned cos I have been paying Wescot 50 quid a month. So my questions are:

 

As i have had no reply to my original letter, and certainly no sign of the original agreement let alone a copy, nor a deed of assignment, nor a true copy of the default notice, am i right in thinbking that they are now in default under the 12 day rule? and also now commiting an illegal act under the 30 day rule cos the debt is now unenforceable?

 

If the answer to these is yes do I then write to them disowning the debt and report them to TS?

 

Do I also write to Wescot? and if so send them copies of my correspondence with HFC? cos if HFC can't supply the info i requested i'm pretty sure Wescot won't be able to too.

 

And finally Do I stop all further payments and request any monies back that i have paid Wescot as it would appear they are enforcing a debt that doesn't exist under CCA?

 

Sorry to go on but i would really like to know exactly where to go form here and where i stand right at this moment.

 

Last but not least! - Thank you for such a wonderful and helpful forum!!!

 

If you sent your request on 22/04/07 (by rec del I hope!), then they default on this on 14/05/07 (12 calendar days plus 2 for posting). If tehy do not provide your agreement by this time, you are within your rights to with-hold payment until they do. They tehn have a further 30 calendar days to produce the agreement before they commit an offence.

 

If this happens, post back here then and we can take it stage by stage from there.

[shieldblaster]

Thanks tiglet for your reply. I made a msitake with my dates and actually sent the cca on the 22 March and although i forgot to rec del it they sent me a letter aknowledging the fact that they have recieved it so i guess that is the same

 

That being the case they are now in default and are commiting an offence as the are way past the 12 and 30 day deadlines - yes?

 

If so where do i go from here? bearing in mind that Wescot now have the debt and i am currently paying them a monthly sum?

[shieldblaster]

Bringing this to the top in the hope that someone can offer some more advice

[tiglet]

Withold payment, send them the letter telling them they ahve defaulted on the CCA 1974 and send a complaint to the OFT.

[Mike220359]

Withold payment, send them the letter telling them they ahve defaulted on the CCA 1974 and send a complaint to the OFT.

 

agreed

 

Mike

[shieldblaster]

Letter sent today recorded and will be organising a complaint to the OFT. My payments are to Wescot who have admitted in previous correspondence that they are acting as clients for HFC so is it ok to stop payments to them as of now?

 

Just want to get everything straight..and thanks both of you

[shieldblaster]

Hi

 

Having sent a CCA to HFC bank they have finally replyed albiet several weeks late.

 

Included was the original CA (no problem with that, definitley mine),

A statement of accounts, and a template letter of a default notice what would have been sent out, no name address etc.

 

Does this constitute compliance with my original request? Personally I don't think so cos my original argument was that i found a default on my credit file with no knowledge or ever receiving any notice, hence my CCA.

 

Also on the statement it states 'passed to Wescot solicitors on 24-5-05'. Yet the default was placed on experians site on the 4-6-05. If I am right Wescot has bought this debt and as far as i'm aware that terminates my contract with HFC, including all its clauses which give them persmission to transfer my data. So why are they still doing it a week later with Experian?

 

Any help/advice/observations will be gratefully accepted

[PriorityOne]

If HFC have complied with your request for a CCA... then the account was not sold to Westcott. Some on here will argue over the legalities of a Default Notice, but if a creditor has the original CCA.... they also have the right to default you. You can argue that the Default Notice didn't contain this and that... but if the creditor has the CCA... and it is indeed a CCA and not an Application Form, then the debt remains enforceable.

 

You have to ask yourself what you want out of this. Of course, you are free to write back and say that they have not provided a true copy of the Default Notice and put them to proof.... but while they have an enforceable CCA, I don't really see the point.

 

I am sure someone will come along and shoot me down in flames now.

 

[LAN01]

I agree with prioityone, it depends what you want to get of it. I would only argue a DN if the creditor cannot produce the CCA, which in your case they have so I wouldn't see the point.

[shieldblaster]

Thanks for both your input. I don't particularly want anything out of this..other than that if they are going to place default on my record that is was done in the correct manner and in a legal way. I have no record of any sort of receiving a default notice..if i had i would have attempted to do something about it hopefully.

 

What they have sent me is a template of what they might of sent and the date when they say i was defaulted. Id doesn't prove to me that one was actually sent to me..at my address, and if that is the case then as far as i am aware the default hasn't been served properly and so shouldn't have been recorded on my credit file

[LAN01]

Laiste better explains it in this thread:

 

http://www.consumeractiongroup.co.uk/forum/general-debt/87677-egg-no-obligation-provide.html#post795514

[shieldblaster]

Thanks Lan. I have already been in touch with Laiste via pm and he has been most helpful and forthcoming with his advice

[Laiste]

If HFC have complied with your request for a CCA... then the account was not sold to Westcott. Some on here will argue over the legalities of a Default Notice, but if a creditor has the original CCA.... they also have the right to default you. You can argue that the Default Notice didn't contain this and that... but if the creditor has the CCA... and it is indeed a CCA and not an Application Form, then the debt remains enforceable.

 

You have to ask yourself what you want out of this. Of course, you are free to write back and say that they have not provided a true copy of the Default Notice and put them to proof.... but while they have an enforceable CCA, I don't really see the point.

 

I am sure someone will come along and shoot me down in flames now.

 

 

Hi Priority,

 

I haven't come along to shoot you down in flames, but I am more than a little concerned about the dismissive attitude you are taking in respect of Default Notices. A Creditor does NOT have the right to default you if the DN does not contain the correct information and/or does not conform to the prescribed form. He cannot bring the contract to an end in this circumstance and it would give the debtor a right to claim damages on that basis. There is no less a requirement for consumers to be protected where DN's are concerned as there is in respect of credit agreements needing to contain the prescribed terms etc...

 

You are arguing two separate points here:-

1. If the creditor has the credit agreement and it isn't defective in some way, the debt is enforceable- I agree with that proposition.

 

2. If they have said agreement, they have a right to default you-no they do not!

 

These two points raise entirely different arguments! There may be an enforceable agreement, but if the process of terminating the agreement has not been carried out as per the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983, it will render the termination unlawful. Creditors have a legal obligation under the CCA 1974 to be no less careful when terminating a contract, as when they enter into an agreement with a potential customer.

 

You may not see the point of arguing these issues in respect of the legal validity of DN's, however, in terms of "building a case" (a phrase you have heard me utter a thousand times) against a creditor, it is just as valid as raising arguments on the basis of harassment. If an issue raised helps to reduce or discharge a debt, then that is a good thing is it not? Debtors have to put ALL cogent arguments forward in their defence. If we are going to start advising people to disregard relevant legal arguments, we are not going to do anybody any favours! Law is a subject which requires the consideration of what one might deem minute points; that does not make them any less relevant! I don't for a moment by the way, think that issues to do with DN's are minute! You posed the question for shieldblaster to ask himself what he wants out of this, and I would venture that it is to achieve the best possible outcome for his financial circumstances; that involves exploring ALL the legal arguments to support his position, which is impossible if we are going to encourage him to only consider whether the agreement is valid or not! This is a very narrow and misguided proposition in my opinion, as to which legal principles are relevant. On what legal basis have you arrived at this conclusion?

 

The issues surrounding DN's are not insignificant and should not be portrayed as such, it is counter-productive.

 

Regards,

 

Laiste.

[PriorityOne]

Hi Laiste,

 

As I have said in an earlier post, if OP wants to contact the creditor and put them to prove that the DN was issued in the correct manner, then it remains his choice to do so.

 

Whilst I respect your view, I also maintain my own. If OP was "building a case", then I agree that it would be important to fight with anything at his disposal... but OP is not building a case. He is not being sued by this creditor. Therefore, if any case was to be brought.... he would be bringing it himself.... hence my query about what he wants to achieve from this ?

 

You say that "Debtors have to put forward all cogent arguments forward in their defence". I agree.... but as OP is not being sued, there is no defence to argue.

 

As such, I see no point in arguing with them over the DN issue because at the end of the day, the debt is still enforceable with the CCA that is in their possession.... and OP is not challenging that fact.

 

[shieldblaster]

Hi PO and thanks once again for your input.

 

So if I am reading you right you are saying that because the creditor confirms i have been defaulted and sends me a template of what they might have sent me without any details pertaining to me, or without proof of postage to my address or receipt of said DN then i am to accept that and sit back whilst they destroy my credit record and credit score? Because if that's what you are saying (and i could be wrong) they haven't a chance in hell. If they have followed the proper and legal route as Laiste has pointed out then I will happily accept that, as I am happy to pay of the debt and am doing. But if they haven't then I want them to be held accountable and I want their default shifted from my CR. It's a point of law that i'm after if anything...Do things right and legal..if you have I haven't a problem with you..if you haven't then I have.

 

Hi Laiste,

 

As I have said in an earlier post, if OP wants to contact the creditor and put them to prove that the DN was issued in the correct manner, then it remains his choice to do so.

 

Whilst I respect your view, I also maintain my own. If OP was "building a case", then I agree that it would be important to fight with anything at his disposal... but OP is not building a case. He is not being sued by this creditor. Therefore, if any case was to be brought.... he would be bringing it himself.... hence my query about what he wants to achieve from this ?

 

You say that "Debtors have to put forward all cogent arguments forward in their defence". I agree.... but as OP is not being sued, there is no defence to argue.

 

As such, I see no point in arguing with them over the DN issue because at the end of the day, the debt is still enforceable with the CCA that is in their possession.... and OP is not challenging that fact.

 

[Laiste]

Hi PriorityOne,

 

You must be in a privileged position to know definitively that Shieldblaster is not intending to pursue HFC in this matter! He stated in an earlier post that he wants to know that the DN has been applied, "in a correct manner and a legal way". Whether that means Shieldblaster will pursue them or not, I wouldn't presume to know, but having all the correct arguments at his disposal should he decide to, or in the event that HFC pursue him is by no means a pointless exercise! If he has been defaulted there is every chance the matter may proceed to litigation at some point, I know HFC very well and they are very litigious, so being thoroughly prepared for that eventuality is time well spent IMO. I speak in terms of a defence, because sooner or later if you have a debt that you can't pay, or are only able to make nominal pmts, you will have to put forward arguments in your defence, or find a way to meet that obligation, those are your only choices! Whether the points I have raised are relevant now, or at some point in the future, they are nevertheless relevant. I stand by my points made in my last post entirely.

 

I am sure that Shieldblaster will confirm his intentions regarding the DN in due course, as it's inappropriate for me to comment on his PM's to me, suffice to say, if he does feel that he needs to start proceedings vis a vis the DN, he has the ammunition at his disposal to do so.

 

Regards,

 

Laiste.

[PriorityOne]

Laiste, at no point have I ever said that I was in a "privileged position" over anyone..... all I have done is express an opinion different to your own.

 

As it is now very obvious that the pair of you have been in touch via a PM(s)... and as this is getting a tad childish now.... I am leaving the thread.

[nannamoon1]

laiste,

 

I think you are being rather harsh on PriorityOne...

 

he/she is only expressing their opinion, which everyone is entitled to..

[Laiste]

Laiste, at no point have I ever said that I was in a "privileged position" over anyone..... all I have done is express an opinion different to your own.

 

As it is now very obvious that the pair of you have been in touch via a PM(s)... and as this is getting a tad childish now.... I am leaving the thread.

 

Priority,

You have entirely misconstrued my comments. I did not not suggest in my last post that you had said you were in a "privileged position over anyone", I asserted my own viewpoint, given your previous comments, that you seemed to be giving a definitive perspective on what Shieldblaster was intending to do regarding the DN. If you re-read your own comments it is abundantly clear that you considered it a complete waste of time arguing/pursuing matters in respect of the DN, as Shieldblaster was neither the subject of legal action or intent on issuing proceedings. I do not believe that Shieldblaster had confirmed his intentions one way or another, which is why I was dismayed at what you were saying. Shieldblaster has a right to know what the relevant arguments are, if and when he decides to pursue the issue and it would have been remiss of me not to give him that information.

It was "very obvious" to you well before your last post that Shieldblaster and I had been in touch through PM's, as he stated this fact to Lan in a reply, a few messages up.

If you are suggesting that I am childish, then I take complete exception to such comments Priority. You have taken a couple of unfair and unjustified sideswipes at the fact that I am raising arguments in respect of the legalities of DN's, for reasons I cannot fathom. You haven't just expressed a difference of opinion you have been quite scornful of the issues I have raised. Paying attention to detail and not dismissing arguments has enabled me to win cases, and I am very happy with the methods I use to achieve this. If I can help others on and outside this forum do the same, so much the better.

Nannamoon,

That is your view, I disagree.

Laiste.

[shieldblaster]

I'm sorry that PO has decided to leave the thread and that she regards a full and frank discussion as 'a tad childish' as she was the one to point out that she has a right to her opinion, which i respect, but she must also extend that right to Laiste as well, who after all was merely expressing hers.

 

I am also uneasy with the fact that someone who has so obviously been around these forums for some time so easily accepts that cos the CA says they have sent a default..without proof of any sort..then we must accept that everything is above board and legal-like. If I have learnt anything in my short time on this forum it is patently obvious that that isn't the case and that DA's are actually quite economical with the truth or for whatever reason do not abide by the laws as laid down and I for one applaud Laiste's attempts at trying to make people..especially newcomers..aware of that fact so that we are at least furnished with all the facts and information to make an informed decision on future actions

[Guest NATTIE]

Guys, can we keep this on the matter in hand because i am confused by 2 points on this. Is the fact that the original CCA that has been provided mean that it is enforceable or are we saying, that aside, that a specific original Default Notice is at issue? My understanding from reading is that from post 1 CCA provided and that both Laiste and Priority One have confirmed from what i have read that it is enforceable, or have i missed something ie Default Notice bit?

[LAN01]

The question was whether or not a default notice had to be proved by the creditor/dca and that they in fact issued it whilst following the correct procedures.

 

Sheildblaster does not contest the credit agreement but does contest that he/she ever received a default notice so has requested proof that it was sent in the first instance, a copy of what would have been sent on what date does not prove it was sent or received.

[Laiste]

Guys, can we keep this on the matter in hand because i am confused by 2 points on this. Is the fact that the original CCA that has been provided mean that it is enforceable or are we saying, that aside, that a specific original Default Notice is at issue? My understanding from reading is that from post 1 CCA provided and that both Laiste and Priority One have confirmed from what i have read that it is enforceable, or have i missed something ie Default Notice bit?

 

Hi Nattie,

 

Thank you for the reputation click, it's appreciated.

 

I think normal service will be resumed now. Judging by the last comments made by myself, Priority and Shieldblaster, we have all said what we felt was necessary and left it at that.

 

If a credit agreement has been furnished by the creditor and it conforms to the requirements of the CCA 1974 and the Regulations made under the Act, there is an enforceable debt.

 

However, if a Default Notice (DN) hasn't been served, or there are problems with it (as with credit agreements) the creditor does not have an automatic right to terminate the agreement. A classic example of a fundamental flaw with a DN, which makes it unenforceable against you, and the termination of the contract unlawful, is the inclusion of penalty charges in the amount requested to remedy the breach. The amount stated has to be accurate.

 

So whilst there may be a debt that is enforceable, unless the creditor gets the termination procedure correct, he is not entitled to default/end the contract. As I have previously stated, the consequences for a debtor when this happens cannot be overstated, so a claim for compensation for unlawfully defaulting/ending the contract should be included in any claim. I believe The Unfair Terms in Consumer Contract Regulations 1999, would support a debtor in such a case.

 

I hope I've answered your question!

 

Regards,

 

Laiste.

[shieldblaster]

Perhaps it might help here (including me ) if I explain where I am coming from and what the dispute is that I have with HFC at this moment in time.

 

I recently checked mt CR file with Experian and found I had a default recorded against me placed by HFC. Now although I was aware that the original bedt had been passed to Wescot I had no knowledege of ever receiving a formal default notice from HFC and this lead to my CCA to HFC in order to ascertain primarily whehter or not a formal DN had been sent to me, and in doing so I would also be able to check whehter they had a copy of the original(enforceable) credit agreement. What I wanted form the start was to make sure that the DN had been placed properly, above board and legal, I WASN'T particularly disputing the debt or what was owed..just the DN

 

They have since replied (albeit lateer than the 30 days) and have included what appears to be on face value (i am checking it closely with assistance ) a bona fide CA with proper form and content...OK..no problem with that so far..I owe the money and will repay it as I have been doing for now.

 

Now to my origianl dispute (The default)..All they sent to me was a template of what they MIGHT have sent..nothing to mention my name or address...just basically a blank form. It is a proper DN with regards to form and content as far as I can see...but is it the one that was sent to me?

 

Bearing in mind the implications that can derive from a DN being placed on your CF eg. loss of credit status, adverse responses to automated checks or manual ones come to that...as Laiste has succinctly pointed out..then it is important (to me especially) that it was done properly..ie That the default was sent to me, at my address, and i received it..because if i had it gives me 7 days to do something about it..something i contend i was deprived of cos i contest i never received it in the first place!

 

Had they sent me a true copy of the original DN i wouldn't have a problem (hopefully ) I would have accepted that everything was legal, but unfortunately under the CCA (which i find very ambigiuos on this piont) they are not required to send a me an actual copy and only have to prove that they posted it (which they haven't by the way), but there are other Acts that have been so helpfully pointed out to me which they have to abide by re. form and content etc. and also that they are processing my data in a legal fashion (which carries criminal repercussions if they aren't)

 

So what I want basically is absolute proof that they sent me a DN..that it was to me at my address ie. served properly..and that it was proper in form and content. f they haven't..or didn't..I want the DN shifted from my CR! and if i can prove that they didnt follow the (very strict) rules I will also be after them for wrongful use and processing of my personal data..that includes any CRA's that where complicit in that also.

 

Ok..there it is..hope it makes sense..its helped me anyway