Duffers mum v Sainsburys Bank

[Duffers Mum]

BB no but they might want to add a little bit of humble pie!

[Duffers Mum]

Blimey...anybody else having trouble with this site lately? just taken me about an hour to get this far!

 

No reply yet to my letter, but I have recently received a lovely sparkly barcode payment card from Crapot..what planet are they on..they think they can send me a lovely little card and I'll just start paying them..yea right dream on!

[Duffers Mum]

Latest update - have received a reply from Crapot in respect of my asking them if they had provided a true and exact copy of the credit agreement. They tell me I should know that the defination of a true copy as prescribed in Regulation 3 states what information can be omitted, and that furthermore a true copy does not mean an exact copy! They go on to mention that it is entirely legible and they have therefore responded with enough information which complies with relevant laws.

 

They then tell me to contact their Collections Dept otherwise they might escalate the account (oh I'm scared I could squash a grape!)

 

So...what to do now, ignore it? Ask to go and vist them to view the actual agreement? Mention that its my belief they would still need the actual agreement to enforce it in court? Any ideas?

 

Thanks

[debt4get]

well that is their position..it certainly isnt yours...they have to produce an original copy and that is the end of it...threatograms as you now know are simply that and nothing more..i would ignore them until they either produce a copy or issue an N1..but i fear you may be waiting a long long time for either to happen

[Duffers Mum]

I really do want to ignore them, but I also want them to know that I know what they have provided is ok for "information" but probably wouldn't stand up in court....its such a rubbish document there is no way any judge could say its enforceable. My worry is that they will keep adding interest, this is already a large debt and I can't see them just sitting back and letting it go, i'm pretty sure they will issue court proceedings and I really want to avoid that if I can (because I'm a wuss!).

[Undercover-Elsa]

Hi DM

It's up to you, but I'd be inclined to ignore this one, if only to show that you're unimpressed by their response and confident in your stance.

Next time they write, well consider what to say to avail them of the fact that any attempt at legal action will be vigorously contested and that they WILL be required to produce a copy of an original signed agreement to show they have right of action. Don't forget, if they thought for a minute they could use the reconstruction, you have proof that that one didn't apply at the time the agreement was taken out. One to keep under your hat

 

Elsa x

[Duffers Mum]

Thanks Elsa - was about to fire off a response to them stating I am well aware that they would need to produce a copy of the original signed agreement if they issue any legal proceedings, but think I'll just leave it, although am rather inclined to send them back their shiny payment card which they think I might use roflmao...as if

[Undercover-Elsa]

LOL cut it up before you do

[Duffers Mum]

Quick question about Default Notices and when they are invalid. I know the original company has to terminate the account by requesting payment in full and if that happens and the DN is dodgy you can sometimes get away with only having to pay the arrears mentioned on the DN. I never received an actual termination notice, but looking through my file I've just found a letter from Blair Oliver & Stupid stating "we have been instructed by our above named client to obtain payment of the balance owned by you. Our client requires payment of the full outstanding balance as soon as possible" so is that the same as getting a termination notice? As they are asking for the full balance I presume it does and effectively means the dodgy DN could come into play at some point in the future? If its any help the letter was dated the day after the date Sainsburys requested I pay the arrears by in the second dodgy DN.

 

If somebody could clarify, I'd be very grateful.

 

Thanks

[Duffers Mum]

Anyone?

[Gallahad]

Any request for the full balance would be considered as a termination.

G

[Duffers Mum]

thanks, that's what I was hoping!

[tastethediff]

Hi,

 

Looks as though you are almost in the same situation as me.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/263913-tastethediff-sainsburys-court-action-2.html

 

I never recieved a DN from Sainsburys and they are unable to provide a copy of the DN mentioned in their POC's(only a template of DN's they send out.

 

I too received letters for the full outstanding balance(from Albion Collections and then Blair Oliver Scott) and I suspect like you the amounts kept rising month after month. In fact I was still receiving statements from Sainsbury's along with the letters chasing the outstanding balances.

[Duffers Mum]

I have received a DN (2 in fact!) thankfully both are rubbish! I've received a reconstituted agreement which also, thankfully, is rubbish and I'm dealing with Crapot..who as we all know are, well....rubbish I'm sure if Sainsbury's thought they could get anything in court they would have done so and by palming it off to Crapot they know it would probably get chucked out of court. However Crapot are a stubborn bunch of idiots and advise me they have complied with my request and can now get a CCJ against me but would prefer that I pay them...haha of course they would but do they really think I came down with the last shower? I'm awaiting their next threat-o-gram, but will sub to your thread to see how you get on and wish you good luck

[Duffers Mum]

Its update time apparently I have missed a payment from my payment plan...ummm what payment plan would that be, because I certainly haven't come to any arrangement with Crapot! I must contact them else they will send me off to pre-litigation department aparently....so..should I reply to them, or just ignore them bearing in mind the only thing they've come up with is some mickey mouse reconstructed rubbish.

 

Also, on a totally separate issue, why do these postings only take up half my screen now? Anybody know how to make the page bigger?

 

Thanks

[debt4get]

i too ended up in the pre-school department before i had the letter stating they were very disappointed with my attitude...in fact i ignored both letters and haven't heard from them for bout a year now...personally i would ignore them..you have made your position clear to them..if they cant/wont get it into their thick heads that is their problem..writing only encourages em...i too am not happy with new layout but suppose i will get used to it

[Duffers Mum]

I think I will ignore them, although am also tempted to write back and say (1) I don't have a payment plan with you as I don't acknowledge any debt to you and (2) until you provide me with something resembling the agreement I allegedly have signed, you can go forth and multiply. However I do have some funds and was wondering whether it would be worth making them a "without prejudice" f&f offer? Anybody any idea whether Crapot accept F&F's?

[debt4get]

if crapbot smell you have any funds they will be after you quicker than a rat out of a drainpipe..seriously they are best ignored..it really just does encourage them....and of course they will accept a f and f..you have already told them you are giving them nothing...if you tell them now you are gonna give them money they will bite your hand off..also remember if they were gonna go to court they would have done it a long time ago

[Duffers Mum]

Crapot have only recently taken over my account from Sainsburys so I wouldn't like to say that they won't take it as far as court..it has quite a big outstanding balance, and they were quite happy to quote the Carey case to me about how they are now allowed to provide reconstructed agreements. I don't think there is any clear guidelines yet on whether they have to produce the actual agreement in court, probably depends who the judge is I have a few things in my favour if they do go down the court route though, might not be quite as easy as they envisage!

[debt4get]

cabot are always happy to quote different things including the carey case...their favorite is their interpretation of the consumer credit agreement...where they try the smoke and mirror trick by saying...

‘A regulated agreement is not properly executed unless

(a) A document in the prescribed form itself containing all the prescribed terms and conforming to the regulations (Consumer Credit (Agreement) Regulation 1983) under section 60(1) is signed in the prescribed manner both by the debtor….....

they conveniently forget to add the ending to this part of S61(1), which actually states

A regulated agreement is not properly executed unless

(a) a document in the prescribed form itself containing all the prescribed terms

and conforming to regulations under section 60(1) is signed in the prescribed

manner both by the debtor or hirer and by or on behalf of the creditor or owner,

 

 

so try not to get caught up with their rhetoric...because believe me most of it is total bulls***

[Undercover-Elsa]

Hi DM

If you click the arrow to the right of the right side menu near top of thread it will collapse the menu and bring you back to full width..

Re quoting Carey...they deliberately mislead on this.

You can always quote Wilson back at them which makes it quite clear that a signed agreement is needed in court:

 

Wilson – Court of Appeal

 

29. The contrast between sections 127(1) and 127(3) of the 1974 Act is striking. Section 127(1) provides that, on an application under section 65(1) of the Act for an enforcement order in relation to an improperly executed agreement, the court shall dismiss the application if, but only if, it considers it just to do so. In considering whether it is just to refuse an enforcement order, the court must have regard to questions of prejudice and culpability; and to its own powers to reduce or discharge any sum payable by the debtor or to impose terms and conditions in the order. Section 127(3) provides that the court shall not make an enforcement order on an application under section 65(1) of the Act where the reason why the agreement is not properly executed (for the purposes of section 61(1)) is that there is no document signed by the debtor, which contains all the prescribed terms. In such a case the court can have no regard to prejudice or culpability. It is immaterial that the creditor was in no way to blame for the omission; it is immaterial that the omission has caused no prejudice to the debtor; it is immaterial that any prejudice which the omission has caused to the debtor could be the subject of some compensating provision in an enforcement order.

 

 

43. Section 127(3) of the 1974 Act falls into three parts: (i) "The court shall not make an enforcement order under section 65(1)"; (ii) "if section 61(1)(a) (signing of agreements) was not complied with"; (iii) "unless a document (. . .) itself containing all the prescribed terms of the agreement was signed by the debtor . . ." Section 61(1)(a) requires "a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) . . . signed in the prescribed manner both by the debtor . . . and by or on behalf of the creditor . . ." It is clear that, notwithstanding what we have identified as the second part of section 127(3), the prohibition in the first part of the section does not prevent the making of an enforcement order in all cases where section 61(1)(a) has not been complied with. But the irreducible minimum requirement is that spelt out in the third part of the section. No enforcement order can be made unless there is a document signed by the debtor which contains all the prescribed terms of the agreement. We can see no way in which it is possible to read and give effect to section 127(3) of the 1974 Act which avoids that irreducible minimum requirement

[Undercover-Elsa]

I was checking one of my own loan agreements recently and noticed a clause which stated:

"This agreement is not enforceable against us unless it is signed by our official representative."

Ironically, there was no corresponding clause in respect of myself.

Just shows how its OK to rely on technicalities if it benefits THEM, but if WE do it, in self defence, they bring up the moral argument.

[Duffers Mum]

Hi Elsa I hope you are well. Can't find any arrow to collapse things so will just have to put up with the page as it is, but its very annoying

 

Thank you for the Wilson extract, I will not quote that to them just yet, but will wait and see what their next threat-o-gram says, I think i'll sit tight for now, no doubt they will shortly start piling on the interest! However with the cruddy documentation they have they would be very brave (or stupid) to take this one before a court..Time will tell....

[Duffers Mum]

Another thing I'm not sure of...they have sent me a Reconstructed agreement which states in it that they (as in Sainsbury's at the time) could continue to add interest if defaulted, now Crapot are going to take that to mean they can to, however its a reconstructed agreement, so how would they, Sainsbury's or myself know if this clause was in the original agreement? Where would I stand in court if Crapot increase the balance by thousands due to interest they say they can charge because its in the agreement?

[Duffers Mum]

Crapot are quick off the mark, as I didn't respond to their previous letters, they've sent me another threat-o-gram mentioning all sorts of scary things like external collection agencies and county court judgments! This worm is not for turning