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Is My Agreement Enforceable - Useful


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I wonder if someone would be kind enough to take a quick look at my thread containing my Lloyds agreement here. It has been looked at by many and it seems that it is enforceable. However, I've just been reading through it and have spotted something. I'm not sure how important it is but the APR under "key financial information" is quoted as 6.40% but under "other financial information" the annual interest rate quoted is 6.26% - grateful if anyone could tell me if this would make any difference as to unenforceability. Thanks in advance.

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at a guess from what i can see i'd say "not in a million years"

 

its not even headed as a regulated agreement!!

And strangely, the person who signed it over the date stamp, worked for MBNA in 1996 and still does:D Must be a good job just signing agreements for Abbey and MBNA all day long, but would'nt yu get bored after 13 years.

 

I bet the wore out sveral pairs of cycle clips, between MBNA and abbey.

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Hi wonder if I could get some advice.:confused: I requested a CCA from Capquest in May I heard nothing until this month whereby they have sent me a copy of a Priority application form with my signature. It says at bottom this is Page 1 of 4 but pages 2-4 (which are the terms and conditions) were not sent to me.

They have now they have sent a statement showing charges of interest of £38/month even though I negotiated a reduced payment of £5/month with original lender Marbles.

What step should I take next? any help would be greatly appriciated.

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Can anyone advise if/how this affects CCA unenforceability claims?

 

 

http://business.timesonline.co.uk/to...cle6868968.ece

 

 

https://www.eversheds.com/uk/home/ar...ements_07Oct09

 

Thanks for posting these Chickenboy. I see that Eversheds are solicitors acting for banks, so it would be best to get a copy of the judgement for us to see ourselves what the judge did or did not say. This is the judgement: http://www.judiciary.gov.uk/docs/judgments_guidance/mcguffick-v-rbs.pdf

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Just having a quick read through of that judgement, McGuffick vs. RBS. I really don't understand why the CMC brought such a poor case as a test case - even they accept that the agreement was a valid and properly executed agreement.

 

In this case, after borrowing the money, the consumer had never personally paid anything on the debt, two years later the CMC made a CCA request and the bank could not provide a copy of the agreement in the prescribed time. Later the agreement was found and sent, and was accepted as properly executed by both sides. Why would anyone be so stupid as to still take such a case to court and make it a test case??? :confused:

 

The CMC took the case to court to test what unenforceability would mean if the full requirements of s. 77 CCA request had temporarily not been met. The argument was weak because it was not a case of unenforceability because the agreement was irredeemably unenforceable. But nevertheless the judge went on to define what might or might not be classified as 'enforcement'.

 

The case goes on to establish whether reporting the debt to credit reference agencies amounted to 'enforcement' while the consumer claims a debt to be unenforceable (even only temporarily unenforceable). The judge seems to have accepted that reporting the debt to a CRA is more about banks sharing information to 'promote responsible lending' (yes the banks' solicitors have mastered the persuasive art of using currently fashionable language to their advantage), rather than CRA reporting being necessarily about 'enforcement'.

 

Who knows if a better case might have been argued more convincingly and with appropriate evidence to show the motive for reporting to a CRA was one of blackmail or coercion.

 

The judge noted that the consumer had a recourse because he could ask the CRA to record against the entry that the agreement was unenforceable and the CRA would have to add this to the record or give legitimate reasons why it could not to the Information Commissioner.

 

Following on from that the judge also deemed it was alright for banks to send letters demanding payment, pass the debt on to other agencies for collection, telephone calls etc. He classified all these as taking steps with a view to enforcement, not enforcement itself (just like taking action to bring the case to court), and therefore permissible. Basically, my understanding of this is, the bank can try to get you to consent to paying them the debt by these methods, but they can't grab your possessions or money.

 

I think this case undermines the CMCs because they were more proactive, trying to establish that banks could not ask for the repayment of debts. But for us caggers, we are more reactive, most of us wait for the banks to take us to court, or to try and settle out of court, or to write off the debt because they haven't got the resources to keep chasing. Most of us have lived with the bad credit record, the telephone harrassments and threats of court action until it is statute barred or the banks give up chasing because of exhaustion. So nothing changes for us. If an agreement is unenforceable, it is still unenforceable, it means they can't take our homes, our money, our possessions without our consent - all they can do is keep asking and hope one day we might cave in and consent.

 

That's my understanding after reading the test case, but I am not an expert - so I welcome any other views that might enlighten us further.

 

Just tried to post this on the test case thread but realise a lot of people have been arguing (quite ungraciously) over opinions on this judgement already on that thread, so that thread is closed!

Edited by Redfish
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simply

 

where a fully executable agreement exists and is not disputed- the reporting of information to CRA's is not considered enforcement

 

the judge made it clear that this was a very narrow case and the judgement could well be different in different circumstances

 

so UNLESS you have a valid agreement and are seeking to have your credit record expunged- it means diddly squat!

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simply

 

where a fully executable agreement exists and is not disputed- the reporting of information to CRA's is not considered enforcement

 

the judge made it clear that this was a very narrow case and the judgement could well be different in different circumstances

 

so UNLESS you have a valid agreement and are seeking to have your credit record expunged- it means diddly squat!

 

:-D:-D:-D:-D

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simply

 

where a fully executable agreement exists and is not disputed- the reporting of information to CRA's is not considered enforcement

 

the judge made it clear that this was a very narrow case and the judgement could well be different in different circumstances

 

so UNLESS you have a valid agreement and are seeking to have your credit record expunged- it means diddly squat!

 

 

See here

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/223570-cabot-financial-dealing-cabot-7.html#post2533619

 

+ a couple of posts further on in the post which explains it better.

 

:mad::mad::mad:

 

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Hi There,

 

I am new to this site and have seen a lot of useful information to other users so i have joined in hope of help.

 

I am being chased by Phoneix Commercial OCllections.

 

I had council tax arrears of £785.12 so the Phonexi Bayliff attended my property and I paid him £245.12 leaving me with a balance of £540.00 to be paid in 3 installments of £180.00 at the end of August, September and October.

 

I paid my August payment on the 02nd September and my October payment on the 06th October.

 

When I reached home today (28-10-2009) I had a letter demanding an immideate payment of £400.00 other wise he will enter they will be forced to enter the property tomorrow (29-10-2009) with a locksmith and a policeman to gain entry intot he property.

 

I called the person named on the letter at 09:00 pm and queried the charge which was brokern as follows:

 

£180.00 owed + £10.00 brokern arrangement fee and £210 cost of the bayliff visit.

 

He asked me to pay before 09:00 am the next day and when I said I could raise the funds he threatened to remove the goods. I finally paid him the £400 and the £5 for using a debit card.

 

My questions are

 

1. are his fees legal?

2. Is he within his rights to give me a 12 hour deadline

3. are his threats real?

 

Thanks for your help (in advance)

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Hi There,

 

I am new to this site and have seen a lot of useful information to other users so i have joined in hope of help.

 

I am being chased by Phoneix Commercial OCllections.

 

I had council tax arrears of £785.12 so the Phonexi Bayliff attended my property and I paid him £245.12 leaving me with a balance of £540.00 to be paid in 3 installments of £180.00 at the end of August, September and October.

 

I paid my August payment on the 02nd September and my October payment on the 06th October.

 

When I reached home today (28-10-2009) I had a letter demanding an immideate payment of £400.00 other wise he will enter they will be forced to enter the property tomorrow (29-10-2009) with a locksmith and a policeman to gain entry intot he property.

 

I called the person named on the letter at 09:00 pm and queried the charge which was brokern as follows:

 

£180.00 owed + £10.00 brokern arrangement fee and £210 cost of the bayliff visit.

 

He asked me to pay before 09:00 am the next day and when I said I could raise the funds he threatened to remove the goods. I finally paid him the £400 and the £5 for using a debit card.

 

My questions are

 

1. are his fees legal?

2. Is he within his rights to give me a 12 hour deadline

3. are his threats real?

 

Thanks for your help (in advance)

 

i would start a new thread- that way you'll get more help use pheonix in the title that way you'll attract others with dealings with them

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did the bailiff enter the property on any previous visits?

 

theres no such thing as a "broken arrangement fee"

 

ask for a breakdown of the bailiffs fee

 

there will be an attendance allowance and a van fee probably- i'm out of date with teh actual charges but you can chekc with the council as most of them stipulate what the bailiffs acting on their behalf may charge

 

if he has already entered and done an inventory (walking possession order) then his threats are very real and yes- he can demand that you pay him "on the spot"

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simply

 

where a fully executable agreement exists and is not disputed- the reporting of information to CRA's is not considered enforcement

 

the judge made it clear that this was a very narrow case and the judgement could well be different in different circumstances

 

so UNLESS you have a valid agreement and are seeking to have your credit record expunged- it means diddly squat!

Diddly squat is as good a term as any:grin:

 

This case originated without an enforceable agreement but they found one! Not a good test case.

 

They still need your signed permission to report or hold your data. In this case, they did.

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Hi guys im back again - I requested my CCA from M & S and was sent very blurred copy of an account card application form it has 2 pages on the first is my signature on part 12 DATA POLICY but underneath it there is a part that says signed for and on bealf of M & S financial services but this is NOT signed

 

A Limit is ticked at £500 but was obviously increased over time as the o/s balance stands at £1838.42 according to m & S but rockwell say it is £2293 (I think this may have beed CCJ June 06 but I have never responded to it)

 

The number at the side of the form and on the account number does not correspond with anything I have been sent regarding the debt

 

Is this enforceable? What do I do if it has gone to CCJ already and if not what shall I do next?

 

Any advice welcome

 

I have scanned the document on here

ms cca request.pdf

Edited by Damaged ratingz
attatchment amended
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Hi guys im back again - I requested my CCA from M & S and was sent very blurred copy of an account card application form it has 2 pages on the first is my signature on part 12 DATA POLICY but underneath it there is a part that says signed for and on bealf of M & S financial services but this is NOT signed

 

A Limit is ticked at £500 but was obviously increased over time as the o/s balance stands at £1838.42 according to m & S but rockwell say it is £2293 (I think this may have beed CCJ June 06 but I have never responded to it)

 

The number at the side of the form and on the account number does not correspond with anything I have been sent regarding the debt

 

Is this enforceable? What do I do if it has gone to CCJ already and if not what shall I do next?

 

Any advice welcome

 

I have scanned the document on here

 

Sorry I can't be of any help enforceability wise but your name, address and account numbers are all visible on here, best to remove. Good luck.

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Is this in response to my M&S CCA ?

Yes DR,

 

Read through this, edit as required and send.

 

xxxxxx 2009.

Dear xxxxxxxxx,

ACCOUNT IN DISPUTE

Re account no xxxxxxxxxxxxxxxxxxxxxxxxxxx

I write regarding recent communication regarding the above account. I acknowledge no dept to your organisation.

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 application form, devoid of all prescribed terms, and unconnected generic terms & conditions, which cannot be linked to any agreement which you claim that I have signed. 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 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.

Let me explain here, what a true copy is:

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.

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Hi All

I have a loan with PPI, the agreement is good :Cry:.

 

But despite S77/78, Subject Access Request, CPR18 and a court order for disclosure, (by 4pm 29 Oct). I have not recieved ;

PPI Policy

PPI Terms and Conditions

 

I am the defendant in this case and my defense and counterclaim to the claim is based on;

Multiple Agreements falling within section 18, (not PPI).

Secret commissions

Mis-selling of PPI

 

But is this agreement also unenforceable if they do not supply the PPI Policy or/and the PPI Terms & Conditions?

 

The agreement refers to the Optional PPI,(yea, right). But nothing else.

Many Thanks

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hiya guys

 

I hope I am in the right place. I cca''d vanquis a couple of weeks back and yesterday I received the following, quote 'A copy of the executed Agreement being:- A copy of the executed Agreement being:-

 

1) The Vanquis Visa Card terms and conditions

2) The reply card

 

That's it. Can anyone advise what to do next?

 

Many thanks

 

Suze

x

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Hi Suzannah,

 

You can respond with this letter.

 

You will need to start your own thread.

 

xxxxxx 2009.

 

Dear xxxxxxxxx,

 

ACCOUNT IN DISPUTE

 

Re account no xxxxxxxxxxxxxxxxxxxxxxxxx xx

 

I write regarding recent communication regarding the above account. I acknowledge no dept to your organisation.

 

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 a copy of your generic terms & conditions, which cannot be linked to any agreement which you claim that I have signed and which breaches s78 of the CCA 1974. 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 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.

 

Let me explain here, what a true copy is:

 

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.

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This is the reply from HFC in responce to my CCA request. Could someone with more knowledge have a look at it and post thoughts please.

I have the original and this is not the same,credit limit is wrong,the terms and conditions are from 2001 the account was opened in 1998. In the covering letter it states that the copy agreement contains the original t&c's that we accepted.:confused: They go on to say Clause 8 gives the bank the right to vary the t&c's.

Any thought appreciated :)

 

Covering letter:

hfc2-1.jpg

 

Agreement supplied:

hfc1-1.jpg

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I'd be tempted to send them Scots letter below & see what their response is;

 

Re: my request under the Consumer Credit Act 1974

 

Thank you for your recent letter sent to me, the contents of which are noted. I appreciate your quick response to my original letter. However, the reply received by me does not fulfil your requirements under the Consumer Credit Act 1974.

 

The Act demands that I be supplied with a true copy of any properly executed credit agreement that exists in relation to the above account. I may ask for this on demand providing that a fee of £1.00 is paid. This fee was sent with my original letter.

 

My request remains outstanding. The items you sent in your reply, does not constitute a true copy of any credit agreement that may or may not have been signed by me on the opening of this account. It neither confirms that I am liable for any alleged debt to you, nor gives me any chance to evaluate whether any original agreement was ‘properly executed’.

 

I still require you to send me a true copy of the original credit agreement that you allege exists. As you will know, under the Consumer Credit Act 1974, a judge is not permitted to make any enforcement order unless the creditor can provide a true signed copy of the original credit agreement. This means that unless you can produce such an agreement, this alleged debt is not enforceable in law.

 

You had until XX/XX/2008 to provide me with the true copy I requested. You are now in default of my request. Any account I hold with you is now in legal dispute. Whilst the account remains in dispute, you are not permitted to ask for any payment, nor am I obliged to offer any payment to you. Furthermore, whilst the dispute remains, you are not entitled to charge any interest on the account, nor make any further charges to the account. Additionally, you are not entitled to register any information on this account with any credit reference agency.

 

To register information with a credit reference agency, you must have written consent from the customer to collate and share such information. This consent is given in the form of a signed credit agreement, so until you produce such an agreement, you may not do this.

 

The requirement for consent to share data is a clear requirement of the Data Protection Act 1998. any such attempts to share my data without my consent will be met with a complaint to the Information Commissioners Office

 

To sum up, I will not be making any further payments to you until you provide me with the document I have requested. Whilst you remain in default of my request, you are not permitted to take any action against this account. This includes adding further charges and passing any information to the credit reference agencies.

 

Should you not have any signed credit agreement in relation to this alleged debt, please confirm this in writing to me.

 

 

I look forward to your reply.

 

Yours faithfully

Print name do not sign

 

**amend to suit your circumstances.**

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