Help

[Amethyst]

Re: Help

They wouldn't get a CCJ by default without complying with the CCA and supplying you with legible terms from inception. Actually they wouldn't get one by default anyway because you'd defend your ass off xx

[winner12]

Re: Help

Thanks again
So what should I say to Shoosmiths I like it to be water tight as much as possible I never had half the hastle with Wescot (funny that is considering some stories I have read)

[winner12]

Re: Help

Can anyone advise on how to handle Shoosmiths please and If they have complied with s78 request as they state but its a recon as I suspect is it still a possibility they could try and take me to court or would it be Arrow who would have to decide

[Amethyst]

Re: Help

not readable only when magnified

Could you type them out from the copy you have? (not asking you to just if it is clear enough when magnified to do so)

If it is just a single column of terms then it is unlikely to be the whole agreement, to evidence that it is not the entire agreement there will most likely be some parts in that text which refers to other paragraphs which are not included.

Basically you should write to them and say that although they have sent you a copy of your application form and current terms they have not fulfilled their obligations under the consumer credit act ... the copy of the executed agreement must contain any terms and conditions which were contained in the original, together with all the prescribed information and statements of protection and remedies required by the Consumer Credit (Agreements) Regulations 1983 that were set out in the agreement. They must ensure that they give you the terms and conditions applicable at the time the contract was executed. They have not done this.

[winner12]

Re: Help

FINANCIAL AND RELATED CONDITIONS
IMPORTANT YOU SHOULD READ THIS CAREFULLY YOUR RIGHTS
The consumer credit act 1974 covers this agreement
and lays down certain requirements for your protection
which must be satisfied when the agreement is made
If they are not the Bank cannot enforce the agreement
against you without a court order.
The Act also gives you a number of rights.You have a
right to settle this Agreement at anytime by giving
notice in writing and paying off all amounts payable
under this Agreement.If you have obtained
unsatisfactory goods or services under a transaction
financed by this agreement, apart from any
purchased out of a cash Loan, you may have a right to
sue the(cant read this word)the Bank or both. Similarly if the
contract is not fulfilled perhaps because the supplier
has gone out of business you may still be able to sue the
Bank.
Seperate Box

LOSS OR MISSUSE OF CREDIT CARDS
If the credit card is lost stolenor misused by someone
who obtained it without your consent,you maybe
liable for upto £0 of any loss to the Bank.If it is
misused with your permission you will probably be
liable for all losses. You will not be liable for losses to
the Bank which take place after you have told it of
the theft etc.
SEPERTATE PARAGRAPH

Set out as paragraph 1-12 below are some of the
provisions contained in Conditions 8 and 9 of the
MBNA Credit Card terms and conditions.the other
Conditions referred to in those parargraphs and the
applicable definitions can be found in those terms &
conditions.
1.We will from time to time choose the credit
limit and notify you of this.
2. We will choose the first Statement date.Later
statement dates will be approximately one month
apart.If you ask we may change the statement date.
3.Within 28 days after the original statement date
you must make either the minimum payment shown
on the or any larger payment chosen by
you,unless we allow a payment holiday under
condition 9.4
4.The minimum payment shown on the statement
will be the greater of
(a) 2% of the account balance as shown on the
Staement
(b) £5 or the account balance as shown on the
statement if less than £5
exceopt as mentioned in conditions 9.4 10.5 and 10.6
5. We will charge interest on the outstanding
amount of
(a) any retail transaction at 1.24% monthly
except as mentioned in condition 9.1
(b)any cash advance
(1) if made during the period of 6 months
starting on the date of opening the
account at 0.40% monthly during that
period and then at 1.24% monthly and
(2) in any other case at 1.24% monthly and
(c)any charge under conditions 14 1 at 1.24% monthly
(6)We will charge a handling charge for a cash
transaction of 1.5% minmum £1.50 maximun
£25
(7)This table shows how the APR depends on this
type of Transaction when interest is charged
and the credit Interest

I cant really read any of the table exceopt 15% APR under the transaction column
(8)The APR does not does not take into account any of the
following alterations we may from time to time
(a) alter the interest on any item by notice
published in at least (unreadable)National
daily Newspaper and
(b)alter the interest rate on any item also any
change under this agreement and alter the
basis on which any interest is charged or
any charge under this agreement is made.
by such notice in writing to you as is
required by law except as mentioned in
condition 8.1(I think thats what it says)
where this is required by law
we will at the earliest opportunity inform you
of a valid reason for altering any charge
(9) We will not charge interest on the outstanding
amount of a retail transaction shown on the latest
statement if the whole Account balance as shown
on the previous and latest statements are paid
within 28 days after the relevant statement date
(10)We will charge interest on the outstanding
amount of
(a) a Retail Transaction(except as mentioned in condition (cant make out the number)
any cash transactions and handling charges starting on the transaction date and ending
on the date of full payment
and
(b) a cheque transaction charge under condition 14.1 and interest
starting on the date when
the amount is last debited to the account
and ending on the date of full payment
(11)We will charge interest on a daily basis both before and
after any judgement
(12)We may at anytime allow you to (not readable )all or part of a
minimum payment during the payment holiday
prescribed in a notice under condition 15 if we do
this we will charge interest as % no payment holiday
had been allowed and we will and we will not extend
the period within which payment must be made in order
to avoid interest on Retail Transactions

And thats it in a Nutshell plus the application form
Thanks for looking now got a headache and I cant see very well now I was wearing my glasses and using a magnifying glass

[winner12]

Re: Help

Just BUMPING

[FlamingParrot]

Re: Help

Basically you should write to them and say that although they have sent you a copy of your application form and current terms they have not fulfilled their obligations under the consumer credit act ... the copy of the executed agreement must contain any terms and conditions which were contained in the original, together with all the prescribed information and statements of protection and remedies required by the Consumer Credit (Agreements) Regulations 1983 that were set out in the agreement. They must ensure that they give you the terms and conditions applicable at the time the contract was executed. They have not done this.

To that effect, you could write to them with something like this:

Dear Sirs

Account No: XXXXXXXX

On XX/XX/XXXX I wrote requesting that you supply me a true copy of the executed credit agreement for the above account. In response to this request I was supplied a document that did not comply with the requirements of the Consumer Credit Act 1974 (CCA1974), You sent a reconstituted copy containing the current terms and conditions, which does not comply with current CCA legislation because you are required to supply me with the terms contained on the original agreement at the time of inception and any variations.

The recent McGuffick and Carey cases confirmed that a lender should submit upon request a valid true copy of the original CCA and also went on to suggest that both the creditor and debtors name and address are clearly displayed - the Judge dealt with this point at paragraph 60 of his judgement when he said this:

"As a matter of common sense It is difficult to see how a copy of a document can omit the names of the parties. It might he thought that the address of the debtor, however, was immaterial, at least to the debtor, who can be assumed to know what it was at the time, if different from his present address. However, as noted above any application of the concept of materiality must not override the requirements of section 78 and the Copies Regulations properly understood. In my view it is clear that the name and address must be provided"

In MBNA v McCullagh; the Judge ruled;

"The terms and conditions are plainly not a copy of those on the original agreement. There may only be one difference identified (it is difficult to tell from the illegible copy of the original) but that is enough. The obligation is to provide "a copy of the executed agreement". This plainly cannot be a copy of the original agreement. It is not open to the claimant to say that the difference is 'de minimis'. They have to provide a copy of the original (reconstituted or otherwise)"

There are also several other recent cases that alleviate the Carey Judgment such as Hayes v HFC, at Blackpool county court in July 2010. She successfully overturned a charging order on her home. Judge Bell agreed that the reconstituted agreement was not accurate. Then you have the case of Kotecha v Phoenix in which Phoenix attempted to recover a debt owed on a HFC bank credit card. The appeal judges agreed the bank had not been able to supply an accurate copy of the original agreement.

Similarly, in line with recent OFT Guidance surrounding Unenforceability, I presume you're aware that the OFT has stipulated the following;Sections 77-79 of the Consumer Credit Act 1974 outline the information creditors must provide to debtors under fixed-term, running account & Hire Agreements. Under these sections a debtor can pay £1 to get:

• a copy of their agreement
• copies of some of the other documents mentioned in their agreement
• a statement of account

If this information is not provided within 12 working days the debt becomes unenforceable. This means a creditor cannot:

• make the debtor pay the debt before they're supposed to
• get a court judgment against the debtor

As this account is clearly unenforceable, I expect you to write back and confirm that no further action will be taken and that the account is now closed and no further correspondence will take place.

Yours faithfully,

[winner12]

Re: Help

Hi FP
Thanks for the letter above
Just wondered what you thought of the above terms they sent which took me about 2 hours to type up using a magnifying glass on the same page was a mock picture of a credit card the above were printed down the right hand side and only measured about 2 inches wide across very tiny writing

[winner12]

Re: Help

UPDATE
Oh no its gone horribly wrong
Yesterday I received a letter from Shoosmiths they have insisted they have sent my relevant documents and fullfilled my CCA request and will be recommending litigation proceedings including a CCJ and a Charging Order be placed on my property as a firm of Solicitors have they not just broken all the rules by stating the above can someone please advise me.
I was thinking of writing to Arrow Global as a formal complaint with regard to Shoosmiths responses and the lack of a Original documentation as all I have reeived is a application form dated 2000 illegible T&Cs and present T&Cs what do you think

[FlamingParrot]

Re: Help

UPDATE
Oh no its gone horribly wrong
Yesterday I received a letter from Shoosmiths they have insisted they have sent my relevant documents and fullfilled my CCA request and will be recommending litigation proceedings including a CCJ and a Charging Order be placed on my property as a firm of Solicitors have they not just broken all the rules by stating the above can someone please advise me.
I was thinking of writing to Arrow Global as a formal complaint with regard to Shoosmiths responses and the lack of a Original documentation as all I have reeived is a application form dated 2000 illegible T&Cs and present T&Cs what do you think

Don't panic, that's fairly standard. They are not even saying they will be ISSUING proceedings, just RECOMMENDING them. They can't just place a charge on your property, it's a long process where they have to go to court, obtain a CCJ, apply for an interim CO, etc.

There is no point in sending Arrow a formal complaint about their own solicitors, they are doing exactly what Arrow wants them to do, i.e. attempting to frighten you, knowing that people generally worry more about letters from solicitors and, in many cases, a letter is all it takes to make people pay or do something.

Having said that, it's always good to suitably respond to solicitors letters threatening legal action and treat them as letters before action, even if they are not headed as such. Check the dates and numbers, as well as the bit about the discrepancies in charges (delete it if no applicable, i.e. you were not able to identify discrepancies).

Dear Sirs,

Ref: xxxxxxxx

Thank you for your letter of xx/xx/2014, the contents of which I have noted.

Since your letter clearly refers to the threat of litigation, I am treating it as a formal letter of claim, albeit an entirely defective one. Since you are a firm of solicitors, such failures cannot be excused, and I place you on notice that I have asked for copies of documents and you have failed to send them to me. If proceedings are issued, I will inform the court of this and ask for sanctions to be imposed as per paragraph 4 of the Practice Direction. Paragraph 4.4 cites “without good reason, not disclosed documents requested to be disclosed” as an example of non compliance.

I refer you to the Civil Procedure Rules Pre Action Protocol Practice Direction, in particular, Annex A;

Paragraph 2.2 of Annex A states that the letter should "list the essential documents on which the claimant intends to rely", your letter contains no such list of documents.

Paragraph 3.2 of Annex A allows me to "request further information to enable [me] to provide a full response." The information I require is within the documents I request.

Paragraph 5.1 of Annex A states that you should “provide the documents requested by the defendant within as short a period of time as is practicable or explain in writing why the documents will not be provided”.

I request the following documents:

1. A copy of the original credit agreement;
2. A copy of the Default Notice;
3. A copy of the Termination Notice;
4. A copy of the Notice of Assignment;
5. Copies of statements;
6. Copies of any communication between yourselves and the creditor.

These are documents I would expect to be disclosed if proceedings were issued and which should be in your possession before you issue a claim, so I expect no difficulty in supplying them.

There is also a duty to supply documents imposed by the Consumer Credit Act. On xx/xx/xxxx I made a request under s.78 of the Act. In response, I received what can only be described as an irrelevant and barely legible set of Terms and Conditions. Notwithstanding the consideration that Terms and Conditions alone cannot satisfy a statutory request under Section 78, the documents I received were not even related to the account in question. This can be proven by the fact that quoted amounts for xxx charges are from a different period of time.

As a result, my request under s.78 submitted remains firmly in default, the agreement is therefore unenforceable whilst that failure to comply remains outstanding. To issue proceedings in such circumstances would be premature and would be met by an application by me to strike out the claim as having no prospect of success.

Upon receipt of the documents requested and your reply to the above, I will be in a position to provide you with a full response so that the issues can be identified and I'm also willing to consider alternative dispute resolution upon receipt of the documents requested.

Yours faithfully

[winner12]

Re: Help

Hi FP
Thanks for your help will post again when they reply