Is My Agreement Enforceable - Useful

[vint1954]

Hi Sunilrai, and welcome to CAG.

 

If you click the link below, then 1/4 of the way down the page, on the left, is a button marked new thread.

 

Give your thread a title, then some detail in the message box. If you can scan your agreement and post it in your thread, others will be able to look and comment. Don't forget to edit your personal details out.

 

Debt Collection Industry - The Consumer Forums

[swlabr]

Can someone explain what the 12+2 timescale is please? And why is it 12+2?

 

Does it count from the date of your letter, the date you posted or the date received by creditor?

 

e.g I dated it 10th Sep, posted it on the 11th, it was signed for on the 14th...when should a reply be posted out by them/received by me?

 

Thanks.

[lc1983]

Hello, can any one help me with my post?

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/221402-cabot-barcalycard-cca-request.html#post2449936

 

Any help would be great!!

[N.P]

Can someone explain what the 12+2 timescale is please? And why is it 12+2?

 

Does it count from the date of your letter, the date you posted or the date received by creditor?

 

e.g I dated it 10th Sep, posted it on the 11th, it was signed for on the 14th...when should a reply be posted out by them/received by me?

 

Thanks.

 

 

Simply, they have 12 working days to comply with your request before defaulting. Also allow a further 2 working days for delivery.

 

If it was signed for on the 14th, then start your 12 working days from then. They should respond within that time, if not, they default on your request and then you can legally dispute the account.

[amyneedshelp]

Hi

I have been told this morning that I can potentially do something about the cc debt I have. I was looking on the net and found your site. Can anyone help me with this please. I have 10 credit cards and owe a fortune on them, what do I have to send to the cc companies? Any help is greatly appreciated.

[ohitsonlyme]

You are in the right place for help read as much as you can thro as many threads as you can.

you will soon get the jist of it all

start by sending of cca requests(credit card agreement ) by the time you get them you should ahve read alot of the site and be able to post up in the relevant section to your enquiries NEVER sign any letters to the companies and always keep records as clear as possible

I am in the same boat as you but seem to be fighting them off following advice from this amazing site

 

keep on reading !!!!

ohitsonlyme:)

[vint1954]

Hi Amy,

 

To start things off you need to send this letter for each of your creditors that you are struggling to pay. This is to see if the agreement that you signed is legally binding.

 

Spend some time reading through similar threads to understand just what you will be up against.

 

You will then need to start your own threads, one for each card.

 

Dear Sir/Madam

 

Re account no xxxxxxxxxxxxxx

 

With reference to the alleged debt to your company, this letter is a formal request of true copy of a signed and dated credit agreement for the above account number, under the terms and conditions of section 78(1) of the CCA act 1974. I enclose the statutory maximum fee of £1.00

 

I expect you to comply fully and properly with this request, within the statutory time limit.

I enclose a postal order no xxxxxxxxxxxxxin the sum of £1.00, which is the statutory fee. Note that these funds are not to be used for any other purpose.

 

If you are unable to comply fully and properly with this request, you should confirm this in writing at the earliest opportunity, and certainly within the statutory time limit for compliance, and return the fee.

 

I look forward to hearing from you.

 

Yours faithfully

 

Print do not sign your name.

[Artie44]

If it was signed for on the 14th, then start your 12 working days from then. They should respond within that time, if not, they default on your request and then you can legally dispute the account.

Not sure about that. I read on another thread which I cannot find at present that if they fail to respond or dont send a true copy of the agreement, you can dispute the enforceability of the agreement but cannot dispute the account unless it includes unlawful charges.

The main point being that the account exists and money is owed whether or not the agreement is enforceable by a court.

 

It would be great if a legal eagle on the forums could clarify this point.

[vint1954]

No a legal eagle, but that is wrong. If they do not provide the agreement within the prescribed time frame, the account goes into dispute.

 

Having a non enforcable agreement, does not mean that the debt goes away. The full amount may not be the true debt level, but without the agreement, they cannot enforce through a court.

[swlabr]

if they fail to respond or dont send a true copy of the agreement, you can dispute the enforceability of the agreement but cannot dispute the account unless it includes unlawful charges.

I'll try to find this for myself but can anyone explain why & what this consists of?

[foolishgirl]

Look at your statements swlabr - you may find charges listed such as 'late payment fee', 'overlimit fee' etc. These are the unlawful charges & can be reclaimed.

 

If you haven't got all your statements you can send a SAR (cost £10.00), template here:

http://www.consumerforums.com/resources/templates-library/48-bank-templates/110--data-protection-act-1998-subject-access-request-

 

You may also find this guide useful on reclaiming:

http://www.consumeractiongroup.co.uk/forum/faqs-please-read-these/

 

And please don't forget a donation to the site that helped you - CAG - when you get your refund

[swlabr]

OK thanks, I'll take a look at those links.

 

Maybe I confused myself but I was reading the post as saying you could only dispute the account (backed by an unenforceable agreement) as long as it included unlawful charges. I suppose it means you can dispute the charges element of the account.

[foolishgirl]

Maybe I confused myself but I was reading the post as saying you could only dispute the account (backed by an unenforceable agreement) as long as it included unlawful charges.

 

Not sure which post you mean but you should put the account 'in dispute' in writing if they don't send you an agreement within the 12+2 days. It is then up to you if you wish to withold payments until they produce an agreement but be aware that they may default you & take legal action on the debt.

 

The balance of the account is disputed if it contains the unlawful charges but you can't withold payments on that basis; the correct action is to make a claim for them, backing it up with legal action if necessary.

[GAVBU28]

Can someone please point me in the direction of a good letter to explain to cabot that they've sent nothing more than an illegible application form. I’ve got them ringing me and threatening me with court action and I’ve seen letters around that will put these idiots right in there place.

I shouldn’t send them anything really because I’ve already done this once, but they’re claiming they didn’t get my correspondence despite recorded delivery.

I’m not after a letter from the templates here, I’ve seen several that have been added to threads but I’m struggling to find one now.

Thanks in advance

[vint1954]

Can someone please point me in the direction of a good letter to explain to cabot that they've sent nothing more than an illegible application form. I’ve got them ringing me and threatening me with court action and I’ve seen letters around that will put these idiots right in there place.

 

I shouldn’t send them anything really because I’ve already done this once, but they’re claiming they didn’t get my correspondence despite recorded delivery.

 

I’m not after a letter from the templates here, I’ve seen several that have been added to threads but I’m struggling to find one now.

 

Thanks in advance

xxxxxx 2009.

Dear xxxxxxxxx,

ACCOUNT IN DISPUTE

Re account no xxxxxxxxxxxxxxxxxxxxxxxxxxx

I write regarding recent communication regarding the above account.

Further to my request under the above act, your attention is drawn to the fact that this account remains subject to a lawful serious dispute. On xxxxxxxx, by recorded delivery, I requested that you supply me a copy of the executed credit agreement covering this account pursuant to the Consumer Credit Act 1974 section 78, a copy of this request is enclosed. To date you have failed to comply with my request, supplying only an illegible copy of the front page to an application form and generic terms & conditions, which cannot be linked to any agreement which you claim that I have signed and a further set of again unrelated terms and conditions. Without production of the said agreement I am unable to assess if I am indeed liable for any alleged debt to you, nor does it give me any chance to evaluate whether any original agreement was ‘properly executed’ as required by the Consumer Credit Act 1974.

Contrary to your assertion, xxxxxxxx have not complied with the terms of CCA 1974 s78. The documents that you have supplied, do not comply with your duties to supply a “True Copy” of any agreement you claim to have been signed by me, for pre 2007 agreements. As you will be further aware, an agreement is not executed, until signed by both parties, so the document that you have supplied, being an application and a reconstruction, cannot be a True Copy of an Executed Agreement.

While this account remains in serious dispute, the relevant main points of the Law and OFT regulations while the account is in this state and xxxxxx remain in default are:

• You may not ask for payment against this account.
  
• I am not obliged to offer any payment against this account.
  
• You cannot register any data with a third party.
  
• You cannot take any enforcement action, including registering Defaults.
  
• You cannot pass the account on to a third party for collection.
  
• You cannot sell the account.
  

What is a true copy:

In a recent letter from the enforcement department of the OFT, the text below was quoted, explaining what is required.

“The copy of the executed agreement need not be an exact copy but it must be a ‘true copy’ and not some reconstruction of what the original might have been and it must contain the same terms as the original. Where the terms have been varied as provided for within the agreement, the copy of the original agreement must be accompanied by a document setting out the current terms, as varied. Certain details may be omitted from the original agreement eg the signature but the debtor must be in no doubt as to the true nature of his obligations under the loan.

 

Should no original agreement be in existence it is very hard to say that the copy the creditor offers to the debtor is, in fact, a true copy as there would be no original with which to compare it. In our view the onus of proof would be on the creditor to show that the copy is a true one and where none existed he may have difficulty discharging this. Neither should creditors suggest that a consumer has signed a credit agreement where they are unable to provide evidence to support this — to do so is likely to be a misleading action under Regulation 5 of the Consumer Protection from Unfair Trading Regulations 2008 (the CPRs) and would also constitute an unfair or improper business practice.”

 

I also refer you to the information below.

1. A valid credit agreement must contain certain terms within the signature document (s.60(1)(2) CCA 1974). These core terms are the credit limit, repayment terms and the rate of interest (SI 1983/1553 (6 Signing of agreement) which states that the prescribed terms must be within the signature document. (Column 2 schedule 6). s.61(1)(a) states the agreement must contain all the prescribed terms and be signed by both the debtor and on behalf of the creditor.

 

 

2. Further, s.127(3) CCA 1974 makes the account unenforceable if it is not in the proper form and content or improperly executed.

 

In Wilson and another v Hurstanger Ltd (2007) it was stated “In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties … and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s.61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement”.

 

2. The need for prescribed terms to be contained in the credit agreement is confirmed by the Author of the CCA1974 act, I quote ““As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97.

 

Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn’t be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I’m glad the House of Lords has now vindicated my reasoning and confirmed that nobody’s human rights were infringed.” - 167 Justice of the Peace (2003) 773.”

I am now granting to you a further 7 days to produce a copy of an executable agreement. After that I will consider that the above matter is closed and that you will no longer pursue the alleged debt. If you are insisting that the non enforceable document, that you have supplied, is the only alleged agreement in your possession, then I would suggest that the best course of action would be to immediately set the balance of the above account number to zero.

I look forward to your response.

 

 

 

If yuo post on your own thread, others can also advise.

[vanda]

hope you guys can help, i wrote to barclaycard asking for them to send me my credit agreements on both my accounts. For one account all i got back was a letter saying they was not enough information for them to find it please provide more information although they didn't say what they needed.they also returned my fee. For the second one i recieved 2 very badly phototcopied pages which are bearly readable. On the front it reads 1996 Barclaycard T/C. on the page behind it reads Barclaycard conditions of use , a copy for your records. The second pages says barclaycard agreement, a copy for your records. There are no signatures of any kind on these documents, surely this is not what i requested from them. By the way the first account is with Calder and the other has just been given to RMA.

[GAVBU28]

That just about covers it vint1954, many thanks.

[vint1954]

hope you guys can help, i wrote to barclaycard asking for them to send me my credit agreements on both my accounts. For one account all i got back was a letter saying they was not enough information for them to find it please provide more information although they didn't say what they needed.they also returned my fee. For the second one i recieved 2 very badly phototcopied pages which are bearly readable. On the front it reads 1996 Barclaycard T/C. on the page behind it reads Barclaycard conditions of use , a copy for your records. The second pages says barclaycard agreement, a copy for your records. There are no signatures of any kind on these documents, surely this is not what i requested from them. By the way the first account is with Calder and the other has just been given to RMA.

Helo Vanda,

 

You need to start your own thread, in order to keep your situation separate. You will get more assistance that way.

 

In the mean time send the DCA's this:

 

Ref Account xxxxxxxxxxxxxxxxxxxxxxx

 

Dear xxxxxxxxx,

 

I was somewhat bemused to receive your letter of xxxxxxxxx 2009, the content of which is noted. No debt to your client is acknowledged.

 

On xxxxxxxxxx 2009 I made a formal request to your client pursuant to s.78(1) of the Consumer Credit Act 1974. They have failed to comply within the statutory time limit, or at all. In addition, this alleged account was placed in dispute on the xxxxxxxxx 2009. It should not be necessary to have to remind you that the provisions of s.78(6) now apply. These letters are enclosed.

 

In the circumstances, your and your clients threat of legal action would appear to be a breach of the Consumer Protection from Unfair Trading Regulations 2008 and the Office of Fair Trading Guidance on Debt Collection and your attention is drawn to this guidance document.

 

Your attention is also drawn the ICO on Data protection, as passing details on to a third party while an account is in dispute is contrary to the Data Protection Act. I have previously issued letters to MBNA under s10 of this act. You may wish to advise your client of the implications of ignoring the Data Protection Act.

 

Should you feel encouraged to attempt litigation it will be vigorously defended and the failure to supply documentation under the CCA 1974 is a complete defence to any legal action and your actions will be considered vexatious and unlawful. The Court's attention will drawn to the above statutory breaches . Furthermore, I reserve the right to bring the conduct of your client to the Court when the issue of costs is being considered.

 

 

I would remind you that while this alleged account remains in dispute, that your client:

• May not ask for payment against this account.
  
• I am not obliged to offer any payment against this account.
  
• Cannot register any data with a third party.
  
• Cannot take any enforcement action, including registering Defaults.
  
• Cannot pass the account on to a third party for collection.
  
• Cannot sell the account.
  

I trust this out lines the situation and I require you to return this matter to your client to avoid any further breaches of the Law, being committed by you or your client.

 

 

Follow up with the letter above in post #871 to the original creditor.

[captain2]

Hi - not sure if this post should go into MBNA thread but as it is of a general nature i'll include it here -

 

I wrote to MBNA in early August for copy agreement and had reply within 5 days saying they were processing the request. Then instead of a copy agreement arriving a letter threatening that if i did not come to some arrangement to pay the debt it would be written off ! As I already had got a copy of their agreement earlier in the year I had a lengthy letter waiting to fire off with the very numerous shortcomings that were in the that agreement - but I wanted to see what they sent 2nd time around first. While it looks attractive having the debt written off, it is at the expense of my credit history, as the full amount will be defaulted - but as i already have probably numerous defaults and am not wanting to borrow any money again im not viewing that as especially serious - just wondering what other members think about this ?

 

I know they can probably still reactivate it or possibly sell it on at a low price to an aggressive DCA but DCA's are bound by the same legislation and banking code only permits lenders to sell on to reputable firms but how often is the banking code breached anyway so its maybe no comfort !

 

Also have any members had experience of complaining to banking code board ? I'm tempted to see what happens then reactivate my earlier letter waiting on file.

 

Any views would be very welcome in this surprise turn of events !

[N.P]

Hi - not sure if this post should go into MBNA thread but as it is of a general nature i'll include it here -

 

I wrote to MBNA in early August for copy agreement and had reply within 5 days saying they were processing the request. Then instead of a copy agreement arriving a letter threatening that if i did not come to some arrangement to pay the debt it would be written off ! As I already had got a copy of their agreement earlier in the year I had a lengthy letter waiting to fire off with the very numerous shortcomings that were in the that agreement - but I wanted to see what they sent 2nd time around first. While it looks attractive having the debt written off, it is at the expense of my credit history, as the full amount will be defaulted - but as i already have probably numerous defaults and am not wanting to borrow any money again im not viewing that as especially serious - just wondering what other members think about this ?

 

I know they can probably still reactivate it or possibly sell it on at a low price to an aggressive DCA but DCA's are bound by the same legislation and banking code only permits lenders to sell on to reputable firms but how often is the banking code breached anyway so its maybe no comfort !

 

Also have any members had experience of complaining to banking code board ? I'm tempted to see what happens then reactivate my earlier letter waiting on file.

 

Any views would be very welcome in this surprise turn of events !

 

 

If you have CCA`d them, they are now in default of your legal request. So, let it be.

 

They may not have an agreement and are trying to get you to acknowledge the debt.

 

If they haven`t sent you the CCA you requested, then ignore them, or you could write and tell them they are now in default of your legal request.

[captain2]

Hi thanks I probably will take that advice - if they sell debt on to a DCA then they are bound by the Banking Code and the CCA too so maybe nothing to worry about - the one thing that is always a worry is cowboys sending out Statutory Demands as these can be difficult to deal with and bankruptcy can soon ensue if not careful - have any members experiences of these ?

 

Courts don't worry me as a court cannot enforce a defective or no signed agreement.

 

Anyone know anything about mis-selling of PPI and ASU accident sickness unemployments as my defective MBNA agreement has a ticked box for that and at 68p per £100 per month over 10 years at average balance of £13 - £15k it would add up ! I didn't even know I had it until I saw it on the agreement they originally sent me in March this year !

[N.P]

Hi thanks I probably will take that advice - if they sell debt on to a DCA then they are bound by the Banking Code and the CCA too so maybe nothing to worry about - the one thing that is always a worry is cowboys sending out Statutory Demands as these can be difficult to deal with and bankruptcy can soon ensue if not careful - have any members experiences of these ?

 

Courts don't worry me as a court cannot enforce a defective or no signed agreement.

 

Anyone know anything about mis-selling of PPI and ASU accident sickness unemployments as my defective MBNA agreement has a ticked box for that and at 68p per £100 per month over 10 years at average balance of £13 - £15k it would add up ! I didn't even know I had it until I saw it on the agreement they originally sent me in March this year !

 

 

I received a Statutory Demand Notice from MIL Collections regarding an Argos account. They rang me up so I abused them, they then hung up on me so I rang them back and abused them again for hanging up on me when I wasn`t finished. He said he would send me a letter to deal with on my door step, it was a SD Notice.

 

I just sent them a Account In Dispute letter, stating I would have the SD set aside with costs. I`ve heard nothing for a few months now.

 

They must be about the 6th or 7th bunch of **EDITED** to have this account.

Edited September 27, 2009 by car2403
Language, Timothy ;)

[captain2]

yes thats good thanks - I haven't paid a credit card company for months now its great - I was paying £3k a month ! Some of my friends also in business borrow money to pay them in order to keep their credit files clean ! But so what why worry about keeping you file clean just to service debt - if borrowing just to pay these cowboys back you will eventually go bankrupt at the amount I owe £80k on cards which is not that unusual ! If MBNA is the first to 'wilt' so to speak after only asking for a copy agreement the default on my file for the whole sum could actually be quite a useful deterrent to others to demonstrate no funds available and maybe others may follow suit !

[foolishgirl]

If MBNA is the first to 'wilt' so to speak after only asking for a copy agreement the default on my file for the whole sum could actually be quite a useful deterrent to others to demonstrate no funds available and maybe others may follow suit !

 

Hmm, don't count your chickens captain. MBNA in particular have a habit of coming back to bite you just when you least expect it.

 

You also have to be very sure before you stop making payments to creditors that they have no enforceable agreements or you could land up in court with additional fees etc. added to your debt & then eventually be made BK anyway.

[captain2]

Thanks for the warning no never counting chickens - was just a light hearted comment in the middle of an otherwise bleak but recovering position for me !The agreement they have already provided is so defective a court could probably not enforce it even if they wanted to - I am probably going to write to the ombudsman anyway re MBNA but just waiting now as they are in breach of a request to produce the agreement. Thanks.