help needed please - application form as CCA sec 77 ?

[Amethyst]

This is a starting point for the no CCA documents defence

1. This Defence is filed and served without prejudice to the right of the Defendant to apply for summary judgment in respect of and/or to strike out the Particulars of Claim.

2. The defendant wrote to the claimant on 13th September 2006 enclosing a statutory £1 fee to request a signed copy of the agreement, under section 77-79 of the Consumer Credit Act 1974. (Appendix A2)

3. This request has not been fulfilled.

4. The Consumer Credit Act 1974 (Sections 77−79) state clearly that the claimant has 12 days to fulfill the request after which the claimant is in default. After a further calendar month the debt becomes unenforceable.

5. By failing to comply within the specified prescribed time the claimant has committed a criminal offence.

6. The Defendant invites the Claimant to remedy the above by supplying a copy of the original credit agreement. In the event that the Claimant fails to do so within 14 days of the service of the Defence then the Defendant will apply to the Court for an Order striking out the Particulars of Claim.

7. The Defendant reserves the right to plead further to the Particulars of Claim once and if the Claimant produces the original agreement. In the meantime, it is denied that the Claimant is entitled to the relief claimed or any relief whether as pleaded or at all.

[Amethyst]

Hope that helps a little bit.

I would send a copy to the for your file.



Defence wise - do you want to defend the full claim on the basis no CCA has been provided ? ask for removal of defaults ? and to have the debt wiped.

then in the alternative if they should come up with the CCA you want to defend the collection charge and any charges, and plea to pay in installments at an amount you can afford ?

[Amethyst]

Hiya

Okay. Yes I think you should include something for removalof the defaults just so they have warning if you intend to incoprorate this into the defence.


The Letter

re OFT Guidelines.

I am sure that you are educated in the following:

The Office of Fair Trading Guidelines for Debt Collection (July 2003)

then I would say, specifically p1.2 or which ever parts are most relevant and just paste those on rather than the whoe caboodle.

Can you please clarify what the collection charge is in relation to this account. Is this charge for defaulting the account and can you point me to or clarify the contractual term that permits you to apply it and how is the charge justified in relation to your costs. I formally request that you give me a breakdown of the collection charge and how the figure has been calculated at £1,374.60 for my file..

maybe amend to

Please clarify the Collection Charge of £1,374.60 which has been added to my account. Please confirm the contractual term that permits you to apply it, and supply a full breakdown of how this charge has been calculated.

On the 11th April 2007, I also sent your Client HFC bank a request for a true signed credit agreement for the above account. On the 4th May 2007, I received a copy of a pre-contractual application form, I would be grateful if you would send me a copy of the true signed credit agreement for the account.

amend

A formal request under the Consumer Credit Act 1974 sections 77/78 was sent to your client on 11th April 2007. Your client has been unable to comply with this request and have only supplied me with a copy of the pre-contractual application for account. You will be aware of your responsibilities under the Consumer Credit Act 1974 and I look forward to receiving a true and legible signed copy of the orginal credit agreement for this account.

maybe use this sentence in relation to the dispute status of account

You will be aware that under the Banking Code, to which you subscribe, you may not default my account or take further enforcement action whilst the debt is in dispute. It is in both our interests to come to a swift resolution.

Also maybe add in

Your client, [bank/cc]., will be receiving a letter requesting the removal of the default on the register

[peed 'orf]

it appears I have been defaulted twice for the above account.
I have now sent my acknowledgement of Service to the Court with a intent to defend all of this claim

Are you going for the removal of the defaults?

[hellhasnofury]

Hello,

going to send this letter to restons re the court claim

Dear Mrs Im not so nice

Reference: HFC 5522011770074396

I write to you in response to the County Court Claim that has been issued to myself from HFC Bank Ltd. via yourselves.

I refer to my previous correspondence of 26th April 2007 in which I stated:

"Please note. I am now initiating investigations with HFC Bank Limited into the validity of the original amount that was claimed to be owed due to possible excessive charges and the fact it appears I have been defaulted twice for the above account. In the meantime please be aware that I consider this matter to be “in dispute”.

This letter appears to have been blatantly disregarded by yourselves.

I am sure that you are educated in the following:

The Office of Fair Trading Guidelines for Debt Collection (July 2003)

1. Introduction

1.1 The Office of Fair Trading has a duty under the Consumer Credit Act 1974 to ensure that licences are only given to and retained by those who are fit to hold them. The Act provides that the OFT take into account any circumstances which appear to be relevant and in particular any evidence that an applicant, licensee, or their employees, agents or business associates, past or present, have:

* committed offences involving fraud, or other dishonesty or violence

* failed to comply with the requirements of credit or other consumer legislation

* practised discrimination in connection with their business

* engage in business practices appearing to us to be deceitful, oppressive or otherwise unfair or improper (whether unlawful or not).


Physical/psychological harassment

(2.5) Putting pressure on debtors or third parties is considered to be oppressive.

(2.6)Examples of unfair practices are as follows:
(f) pressurising debtors to pay in full, in unreasonably large instalments or to increase payments when they are unable to do so.

(g) making threatening statements or gestures or taking actions which suggest harm to debtors.
(h) ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment.


Deceptive and/or unfair methods

(2.7) Dealing with debtors are not to be deceitful and/or unfair

(2.8) Examples of unfair practices are as follows

(g) failing to refer on to the creditors reasonable offers to pay by instalments

(k) not ceasing collection activity whilst investigating a reasonably queried or disputed debt.

Charging for debt collection

(2.9) Charges should not be levied unfairly

(2.10) Examples of unfair practices are as follows:

(a) Claiming collection costs from a debtor in the absence of express contractual or other legal provision.

(b) Misleading debtors into believing they are legally liable to pay collection charges when this is not the case, for example. When there is no contractual provision.

© not giving an indication in credit agreements of the amount of any charges payable on default.

(d) applying unreasonable charges, for example, charges not based on actual and necessary costs.

(e) Applying charges which are disproportionate to the main debt


Can you please clarify what the collection charge is in relation to this account. Is this charge for defaulting the account and can you point me to or clarify the contractual term that permits you to apply it and how is the charge justified in relation to your costs. I formally request that you give me a breakdown of the collection charge and how the figure has been calculated at £1,374.60 for my file..


On the 11th April 2007, I also sent your Client HFC bank a request for a true signed credit agreement for the above account. On the 4th May 2007, I received a copy of a pre-contractual application form, I would be grateful if you would send me a copy of the true signed credit agreement for the account.

I have now sent my acknowledgement of Service to the Court with a intent to defend all of this claim

I await your response

Yours sincerely


Can you think of anything to amend or to improve it?

Comments

[hellhasnofury]

That was really quite confusing, I thought for a minute you were adopting a dog!
I take it (after a lot of squinting) it's a RSPCA credit card?

Yeah, that Is the ploy they used to get you to transfer your balance, saying they support the RSPCA. I think oft should start a royal sociey of prevention of cruelty to customers...that truely would be more appropriate..lol

[peed 'orf]

That was really quite confusing, I thought for a minute you were adopting a dog!
I take it (after a lot of squinting) it's a RSPCA credit card?

[hellhasnofury]

I have tried to get this application ?agreement on site fingers crossed

[hellhasnofury]

Hello all,

Been busy trying to write this letter to restons solicitors, but not getting anywhere fast. I have asked for the breakdown of the collection charge and under what contractual terms is has been applied. I have further asked to a true copy of the credit agreement and not a pre-contractual application form.

I have also been looking at OFT debt collection guidence and they have certainly not followed that. I did ring the oft today and they did seem a little interested and took details and gave me a ref no and told me that ts would contact me in a few days. (Wait in anticipation for that one). The lovely guy at the oft did give me a number for the national debtline and they where really good.

They stated application not acceptable unless it has all of the prescribed terms and wished me luck in my fight. She said these companies have got to bit for their boots

Anyway back to reading the cca for bits to put in my letter

Any thoughs or advice greatly appreciated

[Amethyst]

Wicked ! Good luck hun. Get that letter off we'll spend a couple days working out the CCA stuff then get your defence started

[hellhasnofury]

Hello Amethyst,

Have been on MCOL and enter an aknowledgement of service and stated that I intend to defend the claim. (Oh s**t). About to write the letter to restons????They will probabley not response as you have stated, but I will have a go., If you don't try, you will never know.

Again thanks for your help advise and support. Hope to hear from you soon.

[Amethyst]

Its okay - it scary being on the other side isnt it, although having made a claim already you feel a little more confident about using the court process. Theres no need just to roll over and take it.

So yes - acknowledge on MCOL now - wiht intent to defend all of the claim. You have 28 days from SERVICE of the claim on you to defend, regardless of when in the first 14 days you get the acknowlegement in - so may as well do it now so you dont have to think about that bit anymore.


Write to restons...yes to counterclaiming. Do you have the actual balance owed without the charges on ?

Re the CCA - I have asked in the CCA forum but its not hugely populated yet - I'll ask a couple people privately what their opinion is, basically they need a court order to enforce the debt which is what thye are trying to do. No credit agreement is an absolute defence but we need to be 100% on rules re application forms.

Illegible isnt really a defence - I could read it well enough on the scan, and dont forget HFc will have the original if they sent you a copy. So I'd forget that part. The bit we need to concentrate on is the prescribed terms for running credit agreements - which I'm going to dig out now.

Re the interest - hmmmmm - I'd say no just be happy to have the debt written off - but it is quite unlikely even that will happen.

Be back in a while once ihave had a read of the CCA notes.

[hellhasnofury]

Morning Hel

Can't hurt and helps your case.... you wont get a reply - I tried a part 18 request on HFC to get that information and got nothing.

Costs are standard so even though they shouldnt have bought the claim really, they are just gaining the security of repayment through the court - so you do just have to swallow these..

So ask what the collection charge is, ask if its a charge for defaulting you account , and where the contractual term is that permits them to apply it and at what rate, how is that justified in relation to their costs etc etc. I would also include in the letter reference to the CCA request not being fulfilled.


Won't hurt then to attach a copy to your defence when you do that.

Get the claim acknowledged now - do it online with intent to defend
- you'll need the reference number off the front of the claim form. Just to get it out the way really and ensure you have the 28 days from service to do the defence.


hope this helps a bit....sorry probably rambling on a sunday morning

Hello Amethyst.

Thank you for being so helpful, the last post has pointed me in the right direction.

Sorry I probably am a bit dense, but up until now I have only issed summons I have not been on the receiving end So I go mcol and enter that I will be defending the case. Then do I have 28days to put in my defence to the court?

I now write to restons asking for a breakdown of the collection charge and ask them for a true copy of the excuted agreement. Do I mention that I have received a illedgible copy of an application form and that I will be couter claiming for penalty charges (probably only about £100, but mine nevertheless)

If this credit agreement ? application form is deemed invalid, can I not claim back all of the interest I have paid them over the years.

Thanks

[Amethyst]

Morning Hel

Can't hurt and helps your case.... you wont get a reply - I tried a part 18 request on HFC to get that information and got nothing.

Costs are standard so even though they shouldnt have bought the claim really, they are just gaining the security of repayment through the court - so you do just have to swallow these..

So ask what the collection charge is, ask if its a charge for defaulting you account , and where the contractual term is that permits them to apply it and at what rate, how is that justified in relation to their costs etc etc. I would also include in the letter reference to the CCA request not being fulfilled.


Won't hurt then to attach a copy to your defence when you do that.

Get the claim acknowledged now - do it online with intent to defend
- you'll need the reference number off the front of the claim form. Just to get it out the way really and ensure you have the 28 days from service to do the defence.


hope this helps a bit....sorry probably rambling on a sunday morning

[hellhasnofury]

Hello Amythst,

Should I be writing to restons for a breakdown of the collection charge and costs etc