Dealing with DCA's

[FlamingParrot]

Re: Dealing with DCA's

Hi Curlyben
It's five and a half years old this thread, it's almost SB'd but I found it very useful.
I've just used two of your template letters, slightly altered and sending them off recorded delivery tomorrow.

I've a question. You said in post #5 and again in post #8.
Can you explain the importance of the 12+ months, and is it still relevant today?

Thanks for taking the time all those years ago to write this thread, I'm very glad you did.

Do bear in mind quite a few things have changed since then, some as a result of more recent cases such as McGuffick v RBS and Carey v HSBC as well as changes in legislation.

For example, you can no longer ask them to remove the default if they can't produce an enforceable agreement, nor is it an offence not to respond within the 12+day timescale.

[labman]

Re: Dealing with DCA's

Do bear in mind quite a few things have changed since then, some as a result of more recent cases such as McGuffick v RBS and Carey v HSBC as well as changes in legislation.

For example, you can no longer ask them to remove the default if they can't produce an enforceable agreement, nor is it an offence not to respond within the 12+day timescale.

A very valid point FP. Much of the guide is still excellent, but as you say, there are a few bits now which should, in an ideal world, be updated. :beagle:

[charitynjw]

Re: Dealing with DCA's

A very valid point FP. Much of the guide is still excellent, but as you say, there are a few bits now which should, in an ideal world, be updated. :beagle:

Is that lab-speak for "Get ya finger out, Curley?"

eep:

Seriously though, to still be pertinent after 5 years plus is amazing!
I still often use it, & refer others to it (with the appropriate salutation to Cb!).

[Guest]

Re: Dealing with DCA's

I suspect it refers to 12 days + 1 month for failure to comply with a Section 77-79 request which used to trigger a criminal offence, punishable by a hefty fine and /or 6 months in prison. I think this was repealled in the 2006 Act.

It was the CPUTR's that revoked those particular sections

[labman]

Re: Dealing with DCA's

It was the CPUTR's that revoked those particular sections

Just checking you're awake!

[timdog]

Re: Dealing with DCA's

Hi Guys

I Have posted numerous times in this topic with updates from Lewis Group then Cabot Financial about them hounding me for a debt I don't know of or acknowledge - I have attached a photo of the latest response from Cabot with regards to gaining a copy of the credit agreement - as I suspected there is none avaiable so they are harrassing me for a debt I don't owe. They are still claiming I should be paying the "DEBT" - this surely is still harrassment for money I don;t owe - please can someone advise me how to put this to bed as I feel I have them on the back hoof? Is there any way to get this finished?

Thanks in advance for anyone's time and responses - I could not have done this without your help as I normally get angry and don't think straight !!!!

PS I have noticed the attachment is on it's side so if you need me to type it out so you can read it let me know I tried to rotate it it keeps uploading on its side?!?!?

Regards - Timdog

[dogtired]

Re: Dealing with DCA's

Timdog you have left your name on the attachmet.
I have had almost identical letters from Cabot.
After almost five years they have now decided to stop pursuing the alleged debt.
:tinysmile_hmm_t2:

[labman]

Re: Dealing with DCA's

How about this?

[Address]

[Date]

Dear Sir,

Your Ref: abcd1234

I write with reference to previous correspondence, and in particular to the above numbered account which, for ease and clarity, I hereby deem unenforceable in line with s.127(3) CCA(1974). This letter is my final response on the matter.

In my original letter, dated dd/mm/yyyy, I requested a true copy of the credit agreement. I expected to receive an exact copy of this which you should hold in your records - i.e.- an actual "replica" of the agreement, allegedly signed by both myself and your representative. To date, no agreement has been sent and as a result this account is unenforceable in line with s.127(3) Consumer Credit Act 1974. [You have confirmed this in your letter dated dd/mm/yyyy.]
I have explained my position to you, which reflects fully current legislation, namely s.127(3) of the Consumer Credit Act 1974 which, for ease and clarity, is quoted below:

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

As is clear from the above, without a "true copy" of the signed agreement, containing the prescribed terms and my name and address, this account is lawfully deemed unenforceable and no formal action can be taken so long as this remains the case.

The recent McGuffick and Carey cases confirmed that a lender should submit, on request, a valid true copy of the original CCA. You are allowed to report the account "conduct" to the Credit Reference Agencies, but you may not enforce this agreement until you comply fully with the provisions set out within the Act, taking into account the recent judgments.

Unless you can satisfy my s.78 request in full, I have nothing left to say to you. This matter is wasting my time, and I trust you will now let the matter drop.
There are several 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.

There is 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.

In Murphy v Cabot the recorder, Nigel Clayton, found the copy of the agreement was illegible. Similarly, in Paterson v Cabot Judge Russell decided the copy of that agreement was illegible, the terms and conditions were not the ones originally supplied. In both the Cabot cases they lost as they had clearly failed to produce a properly reconstituted document.

Also, in line with the most recent OFT Guidance surrounding unenforceability (October 2010), you should be aware that the OFT has stipulated the following, to which I require you clarify your position, as failure to do so, even by omission or lack of a response, will be regarded as an attempt to deliberately misrepresent or conceal the legal position regarding this matter, and a complaint will be made to the OFT:

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 the account is clearly unenforceable, I do not expect to hear from you again unless you bring it out of default and correct your previous errors. I have no intentions of responding to you unless you comply with my original request.

I therefore consider this account closed and no further correspondence should take place. Your current conduct amounts to harassment, and in the absence of proving the existence of any debt with you, it is unreasonable to demand payments. Why would I pay towards a debt which does not exist?
Yours faithfully,

[IMG]file:///C:\Users\Home\AppData\Local\Temp\msohtmlclip1\01\c lip_image001.jpg[/IMG]


Print Name





Where the image is above print name at the end, I insert an anti tamper signature strip as below.

Hope this helps! :beagle:

[timdog]

Re: Dealing with DCA's

How about this?

[Address]

[Date]

Dear Sir,

Your Ref: abcd1234

I write with reference to previous correspondence, and in particular to the above numbered account which, for ease and clarity, I hereby deem unenforceable in line with s.127(3) CCA(1974). This letter is my final response on the matter.

In my original letter, dated dd/mm/yyyy, I requested a true copy of the credit agreement. I expected to receive an exact copy of this which you should hold in your records - i.e.- an actual "replica" of the agreement, allegedly signed by both myself and your representative. To date, no agreement has been sent and as a result this account is unenforceable in line with s.127(3) Consumer Credit Act 1974. [You have confirmed this in your letter dated dd/mm/yyyy.]
I have explained my position to you, which reflects fully current legislation, namely s.127(3) of the Consumer Credit Act 1974 which, for ease and clarity, is quoted below:

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

As is clear from the above, without a "true copy" of the signed agreement, containing the prescribed terms and my name and address, this account is lawfully deemed unenforceable and no formal action can be taken so long as this remains the case.

The recent McGuffick and Carey cases confirmed that a lender should submit, on request, a valid true copy of the original CCA. You are allowed to report the account "conduct" to the Credit Reference Agencies, but you may not enforce this agreement until you comply fully with the provisions set out within the Act, taking into account the recent judgments.

Unless you can satisfy my s.78 request in full, I have nothing left to say to you. This matter is wasting my time, and I trust you will now let the matter drop.
There are several 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.

There is 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.

In Murphy v Cabot the recorder, Nigel Clayton, found the copy of the agreement was illegible. Similarly, in Paterson v Cabot Judge Russell decided the copy of that agreement was illegible, the terms and conditions were not the ones originally supplied. In both the Cabot cases they lost as they had clearly failed to produce a properly reconstituted document.

Also, in line with the most recent OFT Guidance surrounding unenforceability (October 2010), you should be aware that the OFT has stipulated the following, to which I require you clarify your position, as failure to do so, even by omission or lack of a response, will be regarded as an attempt to deliberately misrepresent or conceal the legal position regarding this matter, and a complaint will be made to the OFT:

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 the account is clearly unenforceable, I do not expect to hear from you again unless you bring it out of default and correct your previous errors. I have no intentions of responding to you unless you comply with my original request.

I therefore consider this account closed and no further correspondence should take place. Your current conduct amounts to harassment, and in the absence of proving the existence of any debt with you, it is unreasonable to demand payments. Why would I pay towards a debt which does not exist?
Yours faithfully,

[IMG]file:///C:\Users\Home\AppData\Local\Temp\msohtmlclip1\01\c lip_image001.jpg[/IMG]


Print Name





Where the image is above print name at the end, I insert an anti tamper signature strip as below.

Hope this helps! :beagle:

Hi Labman

Well what can I say this is over and above the response I was expecting - thanks so much for your time in writing this - the quotes of previous cases are great - shows them I have done my research (or you have of course - thank-you!) - your amazing thanks again for coming to my rescue - I hope there will be no further correspondence after this but if there is I will post back.

I will dispatch this letter "signed for" on Monday morning!

Thanks Again - Timdog:tongue2:

[Amethyst]

Re: Dealing with DCA's

Have taken your attachment down & reuploaded it without your name . (oh and turned it up the right way lol)

[timdog]

Re: Dealing with DCA's

Thanks so much Ameythist good idea......:-)

[dogtired]

Re: Dealing with DCA's

Good luck Timdog!
:tongue2: Cabot, dont you just love them, say it is unenforeable but want you to pay them anyway!

[timdog]

Re: Dealing with DCA's

Good luck Timdog!
:tongue2: Cabot, dont you just love them, say it is unenforeable but want you to pay them anyway!

Yes like they are so consumed with getting the money they cannot even accept when they clearly have no case, I am fortunate I am web savvy enough to have found you guys on this forum I just feel sorry for more vunerable people they must exploit like the old, it really winds me up.

Thanks dog tired - Tim

[labman]

Re: Dealing with DCA's

Much as I'd love to take all the credit, it is a template response I have on my computer which adapts somebody else's original. My halo doesn't shine that brightly sadly! However, it seemed appropriate - ish to your situation, so hopefully may serve a purpose for you. :beagle:

[dogtired]

Re: Dealing with DCA's

Yes like they are so consumed with getting the money they cannot even accept when they clearly have no case, I am fortunate I am web savvy enough to have found you guys on this forum I just feel sorry for more vunerable people they must exploit like the old, it really winds me up.

Thanks dog tired - Tim

Timdog, I let them bully me at first, then found LB, best thing ever I have done, you can then help others xx:tinysmile_kiss_t4: