DonkeyB
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Oh dear. That has a different rate of interest to the second one they have sent you. And it doesn’t match either the first or second agreement issued in response to the CCA request. Where did this set of T&Cs come from?
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When you were sent this, was it made clear it was a reconstituted agreement rather than an original? There are some very strange clauses in the first document. The right to cancel is the oddly-named right of withdrawal at clause 6, which seems to be the same thing. It sounds archaic. However, this clause itself causes them an issue, because it states that you receive a copy of the agreement with the credit card. The current T&Cs – see here – don’t say that. See clause 9: https://www.bankofscotland.co.uk/creditcards/help-guidance/terms-and-conditions/ That’s a problem for them. You should receive the agreement at the point of signing, not when you get the card. They also seem to think they can end the agreement instantly with you repaying instantly – that falls foul of the CCA under which the agreement is supposedly rendered. Odd. The agreement should continue at the proper terms until any amounts are paid off. Again, the current T&Cs don’t say this. If that agreement is to fall foul of s61 of the CCA and be irredeemably unenforceable, you’d need to show why, ie. a missing or incorrect required term, wrong APR, etc. So the date you opened the account is important, and hope it’s pre-2007... Did the card change from BOS to Halifax at some point? Same company, just wondered if the product changed.
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Would have been useful to see that sooner, Poppay! Was that sent all together? It may actually comply with a CCA request, as it has your name and address on two sets of T&Cs which, though undated, may be the T&Cs when the account was opened, and those when it was closed (though your name is spelled wrongly in the second set of T&Cs). Were you living at the same address when the account was opened (and when was this?) as when it was closed? I need to double check on the requirements of the Waksman conditions in Carey v HSBC to see if that response complies with a CCA request. What you need to do is check through those T&Cs and look for things that aren’t right – for example, if you opened the account in 2003, and the charges in the supposedly original T&Cs are stated at £12 rather than £25 for a missed payment, then there’s something amiss as charges didn’t come down till about 2006, I think, after OFT action.
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Thank you silverfox.
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Delete that sharpish.
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It would be interesting to see what they did send as a CCA. Can you post up?
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Always worth checking these things.
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Yep, get the defence going. Apologies, no time to go back over thread – did you receive a valid default notice? Do you still have it?
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You can get your defence in anyway, because that will move things on quickly. By their own admission they expect to miss the 12 day deadline. And they are already in default of the previous request – did you make it clear that this was a repeated CCA request?
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Sounds like it did go on 13th, they got it on 14th and responded on 14th if you received their response on 15th. So go from 14th – is that the date on their letter? Must be! It’s 12 working days if I remember correctly – so your due date is around 30th October.
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Yes, they lied, and their admission confirms it. It’s an abuse of process, and in some cases judges are actually making something of it (though sadly most are not). Until the people who sign these PoCs and statements of truth are held to account for telling blatant lies, they will get away with it – there’s plenty of case law that says they can’t just rely on the ‘fact’ that there ‘would have been an agreement’. But you need to bring it to the court’s attention in your defence, just as you will point out they have litigated when the know they remain in default of a valid CCA request. You have to play the game yourself, sadly. You also need to be prepared for what to do in case an agreement miraculously appears, which is of course a possibility. As DX has so rightly suggested, why let them have more time? And also, if they don’t come up with the goods in 12 days, you have every right – based on the history – to apply for a strike out.
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Exactly – sorry, didn’t see this post as it went to a new page.
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Slight problem with that response. The issuing of legal proceedings does not remove their obligation to respond properly and within time limits to a valid CCA request. The two issues are not in any way linked, and they are deliberately misleading you by suggesting they are. Any upcoming trial is irrelevant. For all they know, you might apply for a strike out if they don’t come up with the agreement within 12 days. And once again, they admit they have issued a statement of truth in their claim based on a document they don’t have, haven’t seen, and have been told does not exist, according to the original creditor. So they lied in their statement of truth, which is something you must now put in your defence.
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It does indeed Andy, but as I mentioned it’s another way to show you are trying to work towards the ‘overriding objective’... can’t say they weren’t warned or put on notice. After all, Poppay is just trying to save Cabot money...
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By being specific, it means you can only asks for items mentioned in the particulars of claim. They mention the credit agreement, so you are entitled to see it. Give them a problem by offering to go and inspect it, as you are allowed – after all, you are trying to establish their entitlement to the alleged debt and are entitled to see that the agreement is properly executed.
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It was up to the debt seller and buyer and anyone involved to ensure that issues like outstanding CCA requests were included part of the package sold. Caveat emptor. It’s their problem. Technically you don’t need to keep reminding them about the CCA request, but it’s just good practice and will make them look silly if they go to court and can’t come up with anything – they were warned. No harm in copying in Weightmans. They will probably sh** a brick. But do state specifically that as the owner of the alleged debt, they remain in default of a valid CCA request.
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Just going back over your thread. Failure to produce an agreement or copy in accordance with s77-78 of the CCA is an absolute defence. You have evidence of replies to your CCA request where they have stated: (i) we don’t have the agreement. They then correctly quoted McGuffick to point out that the debt still exists and is reportable to CRAs. They did not point out the debt remained unenforceable without the agreement. (ii) we don’t need an agreement, because this account falls outside the CCA. Sadly, the claim form proves this was nonsense. I also note that they are only claiming for the Aqua account, not Argos – or have they lumped two sums together under one account? As things stand, this will be easy to defend. It may be worth writing to the claimant pointing out that you have been told previously there is no agreement, and that in the absence of an agreement being produced prior to any hearing, you will seek costs (you really can do this, even in small claims where the claimant’s behaviour is unreasonable). You may even want to get lawyered up, as any solicitor worth their salt would lick their lips at this. Did you remind them there was no CCA? For background, when exactly did you open the account? Could it have been opened online after 2007? My concern is that they miraculously come up with the goods in court. Who is the claimant? Is it still under Cabot or under Marlin? Get a CCA request into them now, as well as a CPR31 request, but make sure you make it crystal clear this is a DUPLICATE CCA request. Well worth a £1 – belt and braces...
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I note this was a storecard. Was it actually a credit card, regulated under the CCA?
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Richard Durkin wins Supreme Court appeal – beware lenders!
DonkeyB replied to DonkeyB's topic in Financial Legal Issues
If that is so, then according to the Black Horse ruling, a default cannot be legally recorded, and damages would be due for recording such a default. I think Richard’s costs might identify the level of damages expected. -
I think your response on the Motormile thread gave that away. Providing misleading information that is of benefit to debt purchasers who flout the law and flout debt collection guidelines probably just makes you dangerous.
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Indeed, do your homework, as you suggested...
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unheard of debt - motor mile finance
DonkeyB replied to Skolley1987's topic in Motormile Finance UK Ltd/Lantern
They also have the same obligations, not just the same powers. It depends what’s in the original contract. I think your time on CAG may be short lived. -
unheard of debt - motor mile finance
DonkeyB replied to Skolley1987's topic in Motormile Finance UK Ltd/Lantern
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Richard Durkin wins Supreme Court appeal – beware lenders!
DonkeyB replied to DonkeyB's topic in Financial Legal Issues
Richard, in any part of your case, was is established that the agreement was technically unenforceable in any way, due to the conduct of the seller or finance company? Apologies, I can’t remember the detail. If you, you should search out the Grace v Black Horse judgment. -
I must say, intheknow82, your advice on default dates being the cause of action for SB is remarkably similar to the guff spouted by Lowell – and it’s plain wrong.
