CCA's need some hand holding

[scotsgirl]

Re: CCA's need some hand holding

Hi All

I've been under a lot of pressure of late and havent had a minute to do an update.

I'm going to start a page for each card in the cc forum pages but for now here is an update. Ive separated each card into one post each so that if your responding my initial message will be smaller

I made up a I/E spreadsheet but I was minus 400 pounds on it! so I need to work it around a bit more I guess. Also Ive had some issues at work and they are cutting an allowance that I get, as I am on only light duties, so my salary is going to drop again from this month, so I was holding off on the I/E until I get a final amount from my employer.

Also was thinking, obviously I cant afford to pay them much, if anything at the moment, but If I did pay them something wont it look like im accepting the debt etc from them and make it more complicated for myself? My thoughts were if they dont get a payment at all, and they havent complied, then why pay them something for now until they comply?? Im just scared of doing the wrong thing if I am in for the long haul.

Also I read in CAG that pehaps you shouldnt send a CCA request using S78 but use the CPR instead. What should I do, because I do want to follow up with them all.

Below is a post for each card as it stands for now.

Kind Regards

Scotsgirl
------------------------------- merged -------------------------------
Barclaycard

Barclaycard have me on some automated phone thing whereby they continually ring all day and then theres a voicemail left with an automated message to call them. On top of that I am getting in between human calls, of course I am ignoring them all.

Now as far as I am aware they went over their 12 working days on the 27th of May. They received their recorded deliver letter with CCA request on the 12th May. But to send them your letter CB telling them they are now over their time the letter also says that it became an offence 30 days after that. Is that 30 days after the 27th of May? because they are not over that yet.

So do I send them CB's letter (the first of the follow up letters in the library) which says it became an offence on.... and if so, do I delete out the 30 days bit, or do I tell them it becomes an offence on.... or do I just hold my guns for now and dont send them anything until the 30 days have passed?

Also, they had only sent me a set of standard terms and conditions with a date on the print as 10/08, so these were never the terms I allegedly received from them at the start. So I can then send the letter saying that they never complied with my request? I read somewhere that if they just send terms and conditions then they (Barclays) will say that they did comply with the request.

So far they have added a £12 penalty charge.

Also, if I log into their online customer area does that prove anything to them? I havent done it yet cos I was scared they could use that against me too :-) god i have become paranoid :-)

Thanks

Scotsgirl
------------------------------- merged -------------------------------
Egg

OK Egg sent an agreement which I have found a similar one on CAG which is apparently unenforceable, I will post it up here once I find out how exactly to do that. But the main thing is the prescribed terms. They have approved limit and they will decide from time to time what that is going to be. I am gonna post it up later tonight as I now have a scanner so you can have a look at it.

But again, I wanted to send them a letter saying that they hadnt complied with my request, but really they have, because they sent me this agreement, so what letter do I use to say that its unenforceable agreement because some of the prescribed terms are missing, also you will see that the bit that is signed by me and my ex partner is the CCAct which by the looks of it was on a separate page and not part of the agreement. Obviously I'll need to put it up so you can see it first.

Anyway, on Egg they are sending reminder letters and the odd phone call (I think because I get that many from private number or 0845's etc its hard to know who's who)

I cant change my number because I have family abroad etc and also use my number for work so it would inconvenience so many people to change it right now. Ive got used to ignoring the calls now so its not stressing me too much now. Apart from the times of day, its not a big issue.

I'll put up the agreements letters etc as soon as, and can you advise me on what letter should go to them next then too. They also received their CCA on the 12th of May, so again they are over time but I havent put anything in writing saying this is in dispute so again I need to know if it is in dispute automatically.

Thanks

Scotsgirl
------------------------------- merged -------------------------------
MBNA card and MBNA Virgin

Ok so on them I didnt get another call back from RMA, just a couple of letters which I will scan in also. and since then some voicemails and letters direct from MBNA. So I guess my warning to RMA must have worked because it seems MBNA are pursuing me themselves.

Again they are over their 12 days and have sent nothing at all.

Except some letters, the latest one says my account may be outsourced to a third party agency within the next week so I have until the X of June to pay £over 200. (ive taken out exact amounts etc due to my paranoia :-))

Now comes the fun part. I got my statements in for both cards (which I will scan in)

The big card (MBNA) has added the following to this months statement

Transaction date Posting Date
X May Xth May Return Payment Late Default Sum £12
X May Xth May Unpaid Direct Debit £nearly 100
X May Xth May Return Payment Default Sum £12
X Jun X June Late Default Sum £12
X June X June Interest Charged £nearly 100

How can they charge me all of these charges? also how can they charge me £nearly 100 !? i.e. they are charging me this for not paying this as my payment on top of all of the other charges. Not only that but on the reverse of the 2nd page of the bill it explains charges as....

£12 each time your payment is late, each time a direct debit is returned unpaid and each time you go over your credit limit.

So even if I was to be charged I cant for the life of me see how they can charge so many charges and also add another 100 nearly onto the bill. And interest! :-)

Same with the Virgin version, only they have also charged me an overlimit fee! because their charges put me over the limit!

Transaction date Posting Date
X May Xth May Return Payment Late Default Sum £12
X May Xth May Unpaid Direct Debit £nearly 50
XMay Xth May Return Payment Default Sum £12
X Jun X June Late Default Sum £12
XJune X June Overlimit default sum £12
X June XJune Interest Charged £more than the initial direct debit!

Is it safe to post all this up here, or are they watching???? :-) (ive edited to take out the actual dates now - paranoia))

So I want to hit them with a letter too, but should I wait until the 30 extra days have gone and then add in about the charges? if so what should I put on the letter.

Im sorry to be such a burden :-)

Scotsgirl

[scotsgirl]

Re: CCA's need some hand holding

Here is everything I received so far from Barclaycard....

http://i1004.photobucket.com/albums/...ringLetter.jpg

http://s1004.photobucket.com/albums/...page119May.jpg

http://i1004.photobucket.com/albums/...verse19may.jpg

http://i1004.photobucket.com/albums/...ithcharges.jpg

http://i1004.photobucket.com/albums/...uestforpmt.jpg

[scotsgirl]

Re: CCA's need some hand holding

This is everything I received from Egg

http://i1004.photobucket.com/albums/...ementpage2.jpg

http://i1004.photobucket.com/albums/...ntrecd3jun.jpg

http://i1004.photobucket.com/albums/...trecd3june.jpg

http://i1004.photobucket.com/albums/...umpofterms.jpg

http://i1004.photobucket.com/albums/...3junepage2.jpg

http://i1004.photobucket.com/albums/...3junepage1.jpg

[Amethyst]

Re: CCA's need some hand holding

Now as far as I am aware they went over their 12 working days on the 27th of May. They received their recorded deliver letter with CCA request on the 12th May. But to send them your letter CB telling them they are now over their time the letter also says that it became an offence 30 days after that. Is that 30 days after the 27th of May? because they are not over that yet.

that isnt actually the case any more I will go and double check the letters, i think they may be posted in two different places. It doesnt any longer become an offence and you only need work off the 12 working days then they are in default of the CCA. The letters on this thread ~~~ Consumer Credit Agreements - A Guide ~~~~ inc. Letters - Legal Beagles should be right I will double check and remove and historical versions from the site now.

EDIT - ok there were three old versions darn this sites getting too big must do some reorganising. have removed those now the link above is correct and upto date. We will also add to it information about CPR 31.14 etc. I'll let Curly look at your agreements etc.

[Curlyben]

Re: CCA's need some hand holding

I'll let Curly look at your agreements etc.

What agreements

So far all you have is some meaningless T&C's from Sharkly and a non-compliant document from Egg..

Also I would recommend that you change your phone number soonest.

[scotsgirl]

Re: CCA's need some hand holding

Hi CB and Amethyst

Thank you so much for getting back to me so quick

CB I cant change my number just now cos my partner and a lot of family are abroad, and I use my number for work and overseas contacts, also it is part of my partners business associates contact numbers for us. So it would be a nightmare to try and tell everyone its been changed at this point.

What do you think my next step is then with Sharkleys and Egg.

I will post up tomorrow hopefully everything from MBNA. They've sent a letter today threatening to tell CRA's about what a bad person I am. :-)

Thanks again, CB when I read your post about how the agreements werent actually agreements you have no idea how much pressure lifted off of my head.

Honestly, you have all been so supportive of me, thank you all so very much.

Scotsgirl

[frisp]

Re: CCA's need some hand holding

SG

If you can't change your number and I agree with CB that its the best thing you can do, then the DATA protection act allows you to request that they remove your number from their systems, I can't remember the reference but have successfully used the following in letters to get them to stop calling.

Under the data protection act, as this it is my data, I revoke the right for you to hold and use my telephone number on your systems, I require you to remove and confirm that you have removed it from all your systems. I now require that you carry out all contact in writing.

Further automated or personal calls will result in a complaint of harassment to to my local trading standards. I strongly recommend that you appraise yourself with the relevant case law, I refer to Ferguson v British Gas (http://www.bailii.org/ew/cases/EWCA/Civ/2009/46.html)

You must follow through with a ccomplaint of harassment to trading standards so find there contact in your area and explain the situation.

I agree with CB the agreements are moody and you should initiate complaints to the FOS (PM me with your email and I'll send you a template) against all the parties.

This will have the effect (once the FOS acknowledge your complaint) of placing each account in formal dispute and you may lawfully threaten to stop payment but will consider proposals for a payment schedule until such time as FOS deals with your complaints. This shows willing which may be important later.

The plus side of this is that whilst the FOS are investigating the dispute OFT guidance prohibits them from initiating collection action (read courts action)

All of which buys you time to sort things out at a pace you can deal with.

On the Income sheet if you've put all the stuff on that needs paying and it comes out at a minus number, I'd not massage the figures, I'd send them the truth as there is no point in saying its better than it is.

Hope this helps

[scotsgirl]

Re: CCA's need some hand holding

Hi everyone,

sorry ive been missing in action the last few weeks, I have been under immense pressure at work and just havent had a minute.

im confused.

Should I be sending a letter to Sharkleys saying that their terms and conditions do not meet the request that I sent to them?

I have been logging their calls and I want to include a part that you suggested Frisp about the data protection act as I have received 34 calls from them, where they left a message or I managed to 1471 the call, in 15 days.

There is so many bits to the letters I dont know what bits to include and what bits not to, so if someone could advise me on what bits suit my situation I would be grateful.

MBNA have only left a couple of messages, no major harrassment, since I hammered RMA about harrassment. and they havent at all complied with the CCA request, so do I just sit tight or do I send them a letter?

Egg, again a couple of calls, but of course they sent me the agreement that CB you said wasnt enforceable. Do I send them a letter telling them that? or do I sit tight.

Because I am on light duties my salary has dropped again and also my employer is trying to reclaim monies that they say they over paid so my I/E will dramatically drop again. To be honest, it changes every month right now with my employer messing about with my salary.

Im concerned about sending an I/E to the card companies as does this not give them information that I am not able to pay thereby agreeing that I owe them money?

Sorry for being a pain in the butt, but I am just going round in circles here.

Kindest Regards

Scotsgirl.

[scotsgirl]

Re: CCA's need some hand holding

Hi,

Can anyone update me?

Scotsgirl

[frisp]

Re: CCA's need some hand holding

I've PM'd you with some bits n bobs

Try this one to Sharkleys with no agreement

Dear Sirs
Thank you for supplying me with a copy of my application, however this does not meet the specific requirements of the Consumer Credit Act 1974. This is not a true copy of an executed agreement.
The RT Hon Ian McCartney MP, when he was Minister for Trade Investment and Foreign Affairs stated "It is also a breach of the Act and the Regulations to send the application form rather than a true copy of the agreement.”
In addition, I draw your attention to CCA S61 (1) A regulated agreement is not properly executed unless -
a.the document embodies all the terms of the agreement
b.the document is in such a state that all its terms are readily legible.
So you have clearly failed to comply with my request which leads me to conclude that you have no such agreement.
You must therefore immediately cease processing my data, consent is not given, you are unable to default the agreement, sell the alleged debt or add any charges to this alleged debt. If you have issued defaults you must withdraw these.
Please note I am within my rights not to make any further payments until such time as you provide an enforceable agreement and now require you to submit your proposals for restitution of unlawful interest charges and penalties.
Finally, in the event that you are considering litigation, your attention is drawn to CPR 4.6 (c) enclose copies of documents asked for by the claimant, or explain why they are not enclosed;
I would therefore request, in compliance with CPR 4.6(c) a copy of the document that you will be relying on as proof that a properly executed agreement, complying in all respects with the form and content requirements of the CCA was signed by myself in respect of this alleged debt.
Yours

This one to Egg for a moody agreement

[IMG]file:///C:/DOCUME%7E1/MAC/LOCALS%7E1/Temp/msohtmlclip1/01/clip_image001.gif[/IMG]Their Address
15/8/2007


Dear Sir or Madam
I am in receipt of your letter dated xx xxxx xx, the contents of which are noted.
Thank you for sending me what you have confirmed to be true copies of the credit agreements that exist in relation to these accounts. As you have sent these documents in response to my requests under Section 78 (1) of the Consumer Credit Act 1974, then these statements by you are now binding on you as per section 172 of the Act.
Section 172 states:
172 Statements by creditor or owner to be binding
A statement by a creditor or owner is binding on him if given under—
a.Section 77(1),
b.Section 78(1),
c.Section 79(1),
d.Section 97(1),
e.Section 107(1)(c),
f.Section 108(1)(c), or
g.Section 109(1)(c).
This means that the documents you have sent are the only documents you may now rely on in any attempt at enforcing these alleged debts. Any further documentation you may present is irrelevant as you did not provide it in response to my lawful request.

I maintain that these alleged debts are completely unenforceable under Section 127 of the CCA 1974. The CCA 1974 is clear on what agreements must contain in order to be enforceable, even in court. For full details I refer you to the excellent guidance from the Office of Fair Trading;
a.For cancellable agreements, you can find the guidance
b.For non-cancellable agreements, you can find the guidance
For your further convenience, I also refer you to the guidance on Debt Collection
At the very least, an agreement must contain the following within the signature document to be enforceable, even in court: a.A credit limit or a statement as to how this will be determined.
b.An APR.
c.A schedule of repayments.
These are the prescribed terms as required by the Act and subsequent Regulations. There are also many other things, which are called required terms, that should be in an agreement. These include:
a.Total cost of Credit
b.Details of default charges.
c.Statements of protection for customers.
Neither of the agreements you have sent me includes all of the information needed to make it enforceable, and therefore they are completely unenforceable under Section 127 of the Consumer Credit Act 1974.
I am aware that Section 127 was repealed in the Consumer Credit Act 2006 but this is not retrospective and applies only to agreements signed after 6th April 2007. I refer you particularly to the Transitional Provisions outlined in Schedule 3 which confirm that the repeal of Section 127 is NOT retrospective.
Should you deny that the documents you have sent me fail to comply with the CCA 1974 perhaps you could direct me to all of the prescribed and required terms in the agreements you have sent me. I think you will find that they are not there.
Once you have confirmed for yourself that they are not there, perhaps you would be so kind as to point me in the direction of the relevant legislation that allows you to enforce an agreement that is clearly unenforceable under Section 127.
The case law in these matters is clear. The case of Wilson and others v. Secretary of State for Trade and Industry makes it clear that if a creditor does not have the correct paperwork to comply with the CCA 1974, then they cannot expect to benefit from this.
Under these circumstances, the creditor loses all rights within the agreement, including the right to money already given out.
Once again, I challenge you to give me an example of case law that supports your view that you may continue to seek to enforce an unenforceable agreement. At the risk of repeating myself, I think you will find that there is none.
In light of all of this information I have given you, I do not see how you can possibly maintain that these agreements are enforceable. Should you wish to try and construct a case (that has a basis in law) then I would be most interested to read it.
If you cannot construct such a case, I expect you to confirm (within 21 days) that all collections activity on these accounts will cease.
I await your response with interest.

Yours Faithfully

[frisp]

Re: CCA's need some hand holding

I've PM'd you with some bits n bobs

Try this one to Sharkleys with no agreement

Dear Sirs
Thank you for supplying me with a copy of my application, however this does not meet the specific requirements of the Consumer Credit Act 1974. This is not a true copy of an executed agreement.
The RT Hon Ian McCartney MP, when he was Minister for Trade Investment and Foreign Affairs stated "It is also a breach of the Act and the Regulations to send the application form rather than a true copy of the agreement.”
In addition, I draw your attention to CCA S61 (1) A regulated agreement is not properly executed unless -
a.the document embodies all the terms of the agreement
b.the document is in such a state that all its terms are readily legible.
So you have clearly failed to comply with my request which leads me to conclude that you have no such agreement.
You must therefore immediately cease processing my data, consent is not given, you are unable to default the agreement, sell the alleged debt or add any charges to this alleged debt. If you have issued defaults you must withdraw these.
Please note I am within my rights not to make any further payments until such time as you provide an enforceable agreement and now require you to submit your proposals for restitution of unlawful interest charges and penalties.
Finally, in the event that you are considering litigation, your attention is drawn to CPR 4.6 (c) enclose copies of documents asked for by the claimant, or explain why they are not enclosed;
I would therefore request, in compliance with CPR 4.6(c) a copy of the document that you will be relying on as proof that a properly executed agreement, complying in all respects with the form and content requirements of the CCA was signed by myself in respect of this alleged debt.
Yours

This one to Egg for a moody agreement

[IMG]file:///C:/DOCUME%7E1/MAC/LOCALS%7E1/Temp/msohtmlclip1/01/clip_image001.gif[/IMG]Their Address
15/8/2007


Dear Sir or Madam
I am in receipt of your letter dated xx xxxx xx, the contents of which are noted.
Thank you for sending me what you have confirmed to be true copies of the credit agreements that exist in relation to these accounts. As you have sent these documents in response to my requests under Section 78 (1) of the Consumer Credit Act 1974, then these statements by you are now binding on you as per section 172 of the Act.
Section 172 states:
172 Statements by creditor or owner to be binding
A statement by a creditor or owner is binding on him if given under—
a.Section 77(1),
b.Section 78(1),
c.Section 79(1),
d.Section 97(1),
e.Section 107(1)(c),
f.Section 108(1)(c), or
g.Section 109(1)(c).
This means that the documents you have sent are the only documents you may now rely on in any attempt at enforcing these alleged debts. Any further documentation you may present is irrelevant as you did not provide it in response to my lawful request.

I maintain that these alleged debts are completely unenforceable under Section 127 of the CCA 1974. The CCA 1974 is clear on what agreements must contain in order to be enforceable, even in court. For full details I refer you to the excellent guidance from the Office of Fair Trading;
a.For cancellable agreements, you can find the guidance
b.For non-cancellable agreements, you can find the guidance
For your further convenience, I also refer you to the guidance on Debt Collection
At the very least, an agreement must contain the following within the signature document to be enforceable, even in court: a.A credit limit or a statement as to how this will be determined.
b.An APR.
c.A schedule of repayments.
These are the prescribed terms as required by the Act and subsequent Regulations. There are also many other things, which are called required terms, that should be in an agreement. These include:
a.Total cost of Credit
b.Details of default charges.
c.Statements of protection for customers.
Neither of the agreements you have sent me includes all of the information needed to make it enforceable, and therefore they are completely unenforceable under Section 127 of the Consumer Credit Act 1974.
I am aware that Section 127 was repealed in the Consumer Credit Act 2006 but this is not retrospective and applies only to agreements signed after 6th April 2007. I refer you particularly to the Transitional Provisions outlined in Schedule 3 which confirm that the repeal of Section 127 is NOT retrospective.
Should you deny that the documents you have sent me fail to comply with the CCA 1974 perhaps you could direct me to all of the prescribed and required terms in the agreements you have sent me. I think you will find that they are not there.
Once you have confirmed for yourself that they are not there, perhaps you would be so kind as to point me in the direction of the relevant legislation that allows you to enforce an agreement that is clearly unenforceable under Section 127.
The case law in these matters is clear. The case of Wilson and others v. Secretary of State for Trade and Industry makes it clear that if a creditor does not have the correct paperwork to comply with the CCA 1974, then they cannot expect to benefit from this.
Under these circumstances, the creditor loses all rights within the agreement, including the right to money already given out.
Once again, I challenge you to give me an example of case law that supports your view that you may continue to seek to enforce an unenforceable agreement. At the risk of repeating myself, I think you will find that there is none.
In light of all of this information I have given you, I do not see how you can possibly maintain that these agreements are enforceable. Should you wish to try and construct a case (that has a basis in law) then I would be most interested to read it.
If you cannot construct such a case, I expect you to confirm (within 21 days) that all collections activity on these accounts will cease.
I await your response with interest.

Yours Faithfully

[scotsgirl]

Re: CCA's need some hand holding

Hi Frisp et al,

This is what I've drafted for Sharkleys, i've taken bits from the egg one and the harrassment info and data protection bits you put in your other posts frisp, can someone have a quick glance over it and let me know if it all makes sense put together.

Thanks

------------------------------- merged -------------------------------
Date:


Collections Dept
Barclaycard Customer Services
Barclaycard House
PO Box 5592
Northampton
NN4 1ZY


Re:− Account/Reference Number xxxxxxxxxxxxx

Dear Sirs

Thank you for supplying me with a copy of your latest terms and conditions, however this does not meet the specific requirements of the Consumer Credit Act 1974.

This is not a true copy of an executed agreement.

The RT Hon Ian McCartney MP, when he was Minister for Trade Investment and Foreign Affairs stated "It is also a breach of the Act and the Regulations to send the terms and conditions rather than a true copy of the agreement”

In addition, I draw your attention to CCA S61 (1) A regulated agreement is not properly executed unless –

a. the document embodies all the terms of the agreement
b. the document is in such a state that all its terms are readily legible.

The CCA 1974 is clear on what agreements must contain in order to be enforceable, even in court. For full details I refer you to the excellent guidance from the Office of Fair Trading;

a. For cancellable agreements, you can find the guidance
b. For non-cancellable agreements, you can find the guidance


For your further convenience, I also refer you to the guidance on Debt Collection

At the very least, an agreement must contain the following within the signature document to be enforceable, even in court:

a. A credit limit or a statement as to how this will be determined.
b. An APR.
c. A schedule of repayments.


These are the prescribed terms as required by the Act and subsequent Regulations. There are also many other things, which are called required terms, that should be in an agreement. These include:

a. Total cost of Credit
b. Details of default charges.
c. Statements of protection for customers.

The document you have sent me does not include all of the information needed to make it enforceable, and therefore it is completely unenforceable under Section 127 of the Consumer Credit Act 1974. Indeed it is not even signed by yourself or myself.

I am aware that Section 127 was repealed in the Consumer Credit Act 2006 but this is not retrospective and applies only to agreements signed after 6th April 2007.

So you have clearly failed to comply with my request, which leads me to conclude that you have no such agreement.

You must therefore immediately cease processing my data, consent is not given, you are unable to default the agreement, sell the alleged debt or add any charges to this alleged debt. If you have issued defaults you must withdraw these.

Please note I am within my rights not to make any further payments until such time as you provide an enforceable agreement and now require you to submit your proposals for restitution of unlawful interest charges and penalties.

Finally, in the event that you are considering litigation, your attention is drawn to CPR 4.6 (c) enclose copies of documents asked for by the claimant, or explain why they are not enclosed;

I would therefore request, in compliance with CPR 4.6(c) a copy of the document that you will be relying on as proof that a properly executed agreement, complying in all respects with the form and content requirements of the CCA was signed by myself in respect of this alleged debt.

I will also point out to you that your continued multiple daily telephone calls to both my mobile phone and my home phone are as such that they constitute harassment, you may wish to appraise yourself with s.40 of the Administration of Justice Act 1970

In addition to this, under the data protection act, as this it is my data, I revoke the right for you to hold and use my telephone numbers on your systems, I require you to remove and confirm that you have removed them from all your systems.

I require that you carry out all contact in writing.

Further automated or personal calls will result in a complaint of harassment to my local trading standards.

I strongly recommend that you appraise yourself with the relevant case law, I refer to Ferguson v British Gas (http://www.bailii.org/ew/cases/EWCA/Civ/2009/46.html)

Yours




Scotsgirl
------------------------------- merged -------------------------------
And this is the one to Egg, pretty much exactly as Frisp put it together....

Collections Dept
Egg
Riverside Road
Pride Park
Derby
DE99 3GG


Dear Sir / Madam

Account Number: xxxxxxxxxxxxxxxx

Dear Sir or Madam

I am in receipt of your letter dated 29 May 2009, the contents of which are noted.


Thank you for sending me what you have confirmed to be true copies of the credit agreements that exist in relation to these accounts. As you have sent these documents in response to my requests under Section 78 (1) of the Consumer Credit Act 1974, then these statements by you are now binding on you as per section 172 of the Act.

Section 172 states:
172 Statements by creditor or owner to be binding
A statement by a creditor or owner is binding on him if given under—
a. Section 77(1),
b. Section 78(1),
c. Section 79(1),
d. Section 97(1),
e. Section 107(1)(c),
f. Section 108(1)(c), or
g. Section 109(1)(c).

This means that the documents you have sent are the only documents you may now rely on in any attempt at enforcing these alleged debts. Any further documentation you may present is irrelevant, as you did not provide it in response to my lawful request.

I maintain that these alleged debts are completely unenforceable under Section 127 of the CCA 1974. The CCA 1974 is clear on what agreements must contain in order to be enforceable, even in court. For full details I refer you to the excellent guidance from the Office of Fair Trading;

a. For cancellable agreements, you can find the guidance
b. For non-cancellable agreements, you can find the guidance


For your further convenience, I also refer you to the guidance on Debt Collection

At the very least, an agreement must contain the following within the signature document to be enforceable, even in court:

a. A credit limit or a statement as to how this will be determined.
b. An APR.
c. A schedule of repayments.
These are the prescribed terms as required by the Act and subsequent Regulations. There are also many other things, which are called required terms, that should be in an agreement. These include:
a. Total cost of Credit
b. Details of default charges.
c. Statements of protection for customers.

Neither of the agreements you have sent me includes all of the information needed to make it enforceable, and therefore they are completely unenforceable under Section 127 of the Consumer Credit Act 1974.

I am aware that Section 127 was repealed in the Consumer Credit Act 2006 but this is not retrospective and applies only to agreements signed after 6th April 2007.

I refer you particularly to the Transitional Provisions, outlined in Schedule 3, which confirm that the repeal of Section 127 is NOT retrospective.

Should you deny that the documents you have sent me fail to comply with the CCA 1974 perhaps you could direct me to all of the prescribed and required terms in the agreements you have sent me. I think you will find that they are not there.

Once you have confirmed for yourself that they are not there, perhaps you would be so kind as to point me in the direction of the relevant legislation that allows you to enforce an agreement that is clearly unenforceable under Section 127.

The case law in these matters is clear. The case of Wilson and others v. Secretary of State for Trade and Industry makes it clear that if a creditor does not have the correct paperwork to comply with the CCA 1974, then they cannot expect to benefit from this.

Under these circumstances, the creditor loses all rights within the agreement, including the right to money already given out.

Once again, I challenge you to give me an example of case law that supports your view that you may continue to seek to enforce an unenforceable agreement.

At the risk of repeating myself, I think you will find that there is none.

In light of all of this information I have given you, I do not see how you can possibly maintain that this agreement is enforceable. Should you wish to try and construct a case (that has a basis in law) then I would be most interested to read it.

If you cannot construct such a case, I expect you to confirm (within 21 days) that all collections activity on these accounts will cease.

I await your response with interest.

Yours Faithfully

[frisp]

Re: CCA's need some hand holding

IN the main its fine but for me it doesn't flow. so being picky how about this

Dear Sirs

Thank you for supplying me with a copy of your latest terms and conditions, however this does not meet the specific requirements of the Consumer Credit Act 1974 as it is not a true copy of an executed agreement.

Further I am reliably informed that "It is a breach of the Act and the Regulations to send the terms and conditions rather than a true copy of the agreement”

In addition, I draw your attention to CCA S61 (1) A regulated agreement is not properly executed unless –

a. the document embodies all the terms of the agreement
b. the document is in such a state that all its terms are readily legible.

The CCA 1974 is clear on what agreements must contain in order to be enforceable, even in court. For full details I refer you to the excellent guidance from the Office of Fair Trading;

a. For cancellable agreements, you can find the guidance
b. For non-cancellable agreements, you can find the guidance

At the very least, an agreement must contain the following within the signature document to be enforceable, even in court:

a. A credit limit or a statement as to how this will be determined.
b. An APR.
c. A schedule of repayments.

These are the prescribed terms as required by the Act and subsequent Regulations for your information there are some required terms, that should be in an agreement. These include:

a. Total cost of Credit
b. Details of default charges.
c. Statements of protection for customers.

The document you have sent me does not include all of the information needed to make it enforceable, and therefore it is completely unenforceable under Section 127 of the Consumer Credit Act 1974. Indeed it is not even signed by yourself or myself.

I am aware that Section 127 was repealed in the Consumer Credit Act 2006 but this is not retrospective and applies only to agreements signed after 6th April 2007.

I contend that you have failed to comply with my request, which leads me to conclude that we have no contract in force therefore you must cease processing my data. As my consent was not given, you are unable to default the agreement, sell the alleged debt or add any charges to this alleged debt. If you have issued defaults or shared my data with 3rd parties (e.g.credit reference agencies) you must withdraw these.

Please note I am within my rights not to make any further payments until such time as you provide an enforceable agreement and now require you to submit your proposals for restitution of unlawful interest charges and penalties.

Finally, in the event that you are considering litigation, your attention is drawn to CPR 4.6 (c) enclose copies of documents asked for by the claimant, or explain why they are not enclosed;

I would therefore request, in compliance with CPR 4.6(c) a copy of the document that you will be relying on as proof that a properly executed agreement, complying in all respects with the form and content requirements of the CCA was signed by myself in respect of this alleged debt.

I will also point out to you that your continued multiple daily telephone calls to both my mobile phone and my home phone are as such that they constitute harassment, you may wish to appraise yourself with s.40 of the Administration of Justice Act 1970

In addition to this, under the data protection act, as this it is my data, I revoke the right for you to hold and use my telephone numbers on your systems, I require you to remove and confirm that you have removed them from all your systems.


I require that you carry out all contact in writing, further automated or personal calls will result in a complaint of harassment to my local trading standards.

Yours

Egg

Dear Sir or Madam

I am in receipt of your letter dated 29 May 2009, the contents of which are noted.

Thank you for sending me what you have confirmed to be true copies of the credit agreements that exist in relation to these accounts. As you have sent these documents in response to my requests under Section 78 (1) of the Consumer Credit Act 1974, then these statements by you are now binding on you as per section 172 of the Act.

This means that the documents you have sent are the only documents you may now rely on in any attempt at enforcing these alleged debts. Any further documentation you may present is irrelevant, as you did not provide it in response to my lawful request.

I maintain that these alleged debts are completely unenforceable under Section 127 of the CCA 1974. The CCA 1974 is clear on what agreements must contain in order to be enforceable, even in court. For full details I refer you to the excellent guidance from the Office of Fair Trading;

a. For cancellable agreements, you can find the guidance
b. For non-cancellable agreements, you can find the guidance
At the very least, an agreement must contain the following within the signature document to be enforceable, even in court:

a. A credit limit or a statement as to how this will be determined.
b. An APR.
c. A schedule of repayments.

These are the prescribed terms as required by the Act and subsequent Regulations. There are also many other things, which are called required terms, that should be in an agreement. These include:

a. Total cost of Credit
b. Details of default charges.
c. Statements of protection for customers.

Neither of the agreements you have sent me includes all of the information needed to make it enforceable, and therefore they are completely unenforceable under Section 127 of the Consumer Credit Act 1974.

I am aware that Section 127 was repealed in the Consumer Credit Act 2006 but this is not retrospective and applies only to agreements signed after 6th April 2007.

I refer you particularly to the Transitional Provisions, outlined in Schedule 3, which confirm that the repeal of Section 127 is NOT retrospective.

Should you deny that the documents you have sent me fail to comply with the CCA 1974 perhaps you could direct me to all of the prescribed and required terms in the agreements you have sent me. I think you will find that they are not there.

Once you have confirmed for yourself that they are not there, perhaps you would be so kind as to point me in the direction of the relevant legislation that allows you to enforce an agreement that is clearly unenforceable under Section 127.

The case law in these matters is clear. The case of Wilson and others v. Secretary of State for Trade and Industry makes it clear that if a creditor does not have the correct paperwork to comply with the CCA 1974, then they cannot expect to benefit from this.

Under these circumstances, the creditor loses all rights within the agreement, including the right to money already given out.

Once again, I challenge you to give me an example of case law that supports your view that you may continue to seek to enforce an unenforceable agreement.

At the risk of repeating myself, I think you will find that there is none.

In light of all of this information I have given you, I do not see how you can possibly maintain that this agreement is enforceable. Should you wish to try and construct a case (that has a basis in law) then I would be most interested to read it.

If you cannot construct such a case, I expect you to confirm (within 21 days) that all collections activity on these accounts will cease.

I await your response with interest.

Yours Faithfully

[scotsgirl]

Re: CCA's need some hand holding

Wonderful Wonderful Wonderful! Thank you so much Frisp. I got that carried away with cutting and pasting all the good stuff I was losing the will to live :-)

Thank goodness you have my back.

I will post them off today Recorded Delivery

Thank you so so so much!

Scotsgirl
xx

[scotsgirl]

Re: CCA's need some hand holding

HI Frisp and everyone,

Ok I have the letters ready to go Recorded Delivery tomorrow to dregs (Egg) and Sharkleys. Now I need to ask, what do I do about MBNA x 2 Cards. They have never sent me the CCA or responded to my letter about it. All I get is their normal crappy letters, they might default me, they might make a note on my credit reference file, but they would love to help me :-)

Anyway, do I write to them now telling them they are in default of the CCA? I have taken CB's letter and adapted it a little to make it written reply etc. Should I send this or do I just ignore them?

(dregs. the least valuable part of anything: the dregs of society. )

Dear Sir/Madam,

With reference to my previous letters, I wish to draw you attention to your company's lack of compliance with my legal request.

On 10th May 09 I made a formal request for a true signed agreement for the alleged account under consumer credit Act 1974 s77/8. A copy of which is enclosed for your perusal and ease of reference. This letter was signed for, on 12th May, by a member of your staff.

You have failed to comply with my request, and as such the account entered default on 28th May (12 working days after receipt)

The document that you are obliged to send me is a true copy of the executed agreement that contained all of the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself as defined in section 61(1) of CCA 74 and subsequent Statutory Instruments. If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document.

As you may not be aware, failure to comply with this request within 12 working days rendered the alleged debt UNENFORCEABLE in law.

Furthermore you should be aware that a creditor is not permitted to take ANY action against an account whilst it remains in dispute.

The lack of a compliant credit agreement is a very clear dispute and as such the following applies. You;

* may not demand any payment on the account, nor am I obliged to offer any payment to you.
* may not add further interest or any charges to the account.
* may not pass the account to a third party.
* may not register any information in respect of the account with any credit reference agency.
* may not issue a default notice related to the account.

Therefore this account has become unenforceable at law.

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

After taking advice, I am of the opinion that your continued pursuit is in violation of the Administration of Justice Act 1970 section 40, Protection from harassment Act 1997 section 3 as well as breaching a number of the OFT Collection Guidelines.

I reserve the right to report your actions to any such regulatory authorities as I see fit.

You have 14 days from receiving this letter to contact me, in writing, with your intentions to resolve this matter which is now a formal complaint.

I hope that you will enter into a sincere written dialogue with me about this matter and I am writing this letter to you on the assumption that you would prefer to do this than merely respond with standard letters and leaflets.

I would appreciate your due diligence in this matter.

I await your rapid response.

Yours Faithfully