ftolad v. Scotcall

[ftolad]

Hi all, this should be a fairly short posting, but may need a few suggestion on my reply.

 

Before I became more enlightened about my rights, I was paying Scotcall, from the end of last year. This was for a debt dating back to around 2000, so I was sure it was Statute Barred, but slightly concerned about the dates and the fact that I had started paying them.

 

Anyway, I CCA'd them earlier this week, and they replied today in writing:

 

Dear ftolad

 

I write in reponse to your copy of credit agreement in respect of the above referenced account.

 

Please note we have contacted our client and are unable tosupply, however we can confirm that we have been receiving payment on this account since ****** and would request that you continue to do so.

 

We return your postal order for £1.00.

 

Yours sincerely

 

Scotcall.

I realise that without the agreement, it's not enforceable. Any suggestions on how to word my reply?

 

TIA.

 

Edited May 16, 2008 by ftolad

[ftolad]

Well, after mulling it over for a few minutes, I'm of the mind to just let the time continue until they default, then the following 30 day period and advise that if they still try to pursue, then it's the full complaint procedure for them.

 

I'm thinking it would be better for them to have gone the extra 30 days so they are definitely committing an offence, which I hope would further substantiate my position when I take it to TS... or should I just let it be and send them a nice and polite sod off letter?

[maroondevo52]

Hi, ftolad.

 

You could send SAR to the Origional Creditor and then you would know the score regarding payments ect.

 

Just a thought.

 

Regards.

 

Scott.

[ftolad]

Any other suggestions? One thing about the SAR would be to show up any activity with the CRA's, but I'm thinking about sending one to them separately to highlight any activity.

 

As they cannot provide the CCA I'll be stopping payment, but I'm not sure just how persistent they will be. I musty admit that the letter received yesterday was almost apologetic, almost begging me to continue paying.

[Dispirited]

Here you are ftolad - from ZUBO's thread on the Consumer Credit Act

 

http://www.consumeractiongroup.co.uk/forum/consumer-forums-website-questions/79147-consumer-credit-act-resources.html

 

Letter For: A sterner reminder that they have failed to meet the CCA request you submitted.

 

Hello! Dear Plonker

 

CA 1974 (Consumer Credit Act)

 

As you are aware, I wrote to you on day/month/year requesting you supply me with the relevant information, which is my legal right under section 77-79 of the CCA 1974 and you had 12 days plus 30 days inclusive of holidays and weekends (ie until day/month) to respond to me with the information.

 

This time has passed and you have now committed a Criminal Offence under the said Act and it is my intention to report you for this criminal conduct to the appropriate authorities (Then do it in writing to TS & the Police. Don't make empty threats)

 

I also understand that under the Act, due to your failure to comply with my statutory request you or any acting agent are unable to enforce an agreement therefore I am ceasing any further payments forthwith and will seek to recover any payments made to date (assuming your making any)

 

 

Data Protection Act (Data Protection Act 1998

 

Furthermore under the Data Protection Act (D10), you are also denied the authority to pass on any of my personal data. To do so in the circumstances is I understand a breach of the Data Protection Act 1998, and also the OFT guidelines, and should you ignore my request it would again result in you being further reported to the relevant authorities.

 

 

I also require that you remove all my data from your files within the next 7 days and look forward to receiving a letter from you within 10 days confirming that you have complied with this request.

 

Yours faithfully

 

Mr. Stuff You

----------------------

[ftolad]

Thanks for that, so just leave the clock ticking until they default, plus the 30 calendar days then? Not sure if I mentioned it, but as well as the postal order, they also sent my letter back, plus the envelope.

 

I would certainly report them to TS if they continue to pursue, plus the OFT and FOS if they fail to respond to a formal complaint, but I hadn't really thought about reporting them to the police. Has anyone actually done that before?

[ODC]

Failure to supply the CCA is not a Police matter. Just send Snotcall a simple short letter

 

Dear Snotcall

 

Thank you for your letter dated XXXXX the contents of which are noted.

 

As you are now in default of my LEGAL request under S 77/78 of the CCA 1974 please note that I will not be making any further payments until this default is remedied.

 

Should you make any demand for payment in the interim I will report the matter to TS and the OFT as well as raising an Official Complaint with yourselves.

[ftolad]

An update... I didn't send a further letter, I've left it until they have defaulted, and I think I shall wait until the further 30 days are up.

 

This morning I have the following:

 

Dear Sir/Madam

 

We have been advised by your bank that you have cancelled the direct debit due to ourselves on the above referenced account.

 

We have an outstanding balance of £400.00 due tn this account, and we require immediate payment.

 

Yours sincerely

 

Administration Department

 

 

Firstly they can't even close the letter properly, if they are referring to me as sir or madam! Anyway, they have more or less admitted that they haven't got the agreement, and it's pretty unlikely they will ever get it.

 

I feel a complaint coming on! Not yet though, I think I shall wait an see what they spit at me next, and then file a full complaint. Thanks Scotcall, you have put me in a good mood for the day.

[ODC]

You must now report them to TS, the OFT and your MP. They are demanding money yet have not complied with your LEGAL request for a CCA

[TaxedAndConfused]

2000 to 2007 would make this statute barred would it not ? As I understand it even if you start paying again the clock doesn't restart, so if that is the case you may be able to stop ?

 

I may have the wrong end of he brown sticky thing here though ?

[PGH7447]

T&C - clock starts from last payment or acknowledgement made

[PGH7447]

"We have an outstanding balance of £400.00 due tn this account, and we require immediate payment"

 

Looks like they intend to take your debt off you, if they are saying they have an outstanding balance due, at least that's what you could read into that sentence

[TaxedAndConfused]

T&C - clock starts from last payment or acknowledgement made

 

Ok.

[ODC]

They have admitted they cannot produce a CCA so as it stands the debt is UNENFORCABLE and they know it. They should be very thankful that you have paid them anything. Ignore them for the time being. If they come up with any empty threats then report them

[chasin sunsets]

I am waiting for the letters back as i am sending prove it letters to 2 dca's, after that a cca request,,depends what they come back with..

[ftolad]

2000 to 2007 would make this statute barred would it not ? As I understand it even if you start paying again the clock doesn't restart, so if that is the case you may be able to stop ?

 

I may have the wrong end of he brown sticky thing here though ?

 

As PGH7447 says, the Limitations Act 1980 states that creditors have a period of 6 years to get payment. As long as you have not paid anything towards the debt or acknowledged it then it would become statute-barred... as it was around 2001, I wanted to double-check by getting the agreement.

 

But... if any payments are made after the initial 6 year period is up, the clock is not restarted, despite what DCA's will tell you... and I've had them tell me that it does.

 

I've part-drafted a nice letter to send to them, cobbled from a few letters flying around on the forums (!) thanks to all... I shall wait for their next move and see if they send another letter out before I do anything. I'm betting that they will try to call me next... that should be an interesting phone call!

[ftolad]

In the past few days as well as a reminder that I have cancelled my DD, Scotcall have kindly advised me that I am in arrears with their payment plan.

 

I was going to wait until the further 30 calendar days were up, but I'm thinking of sending this off to them. I must admit I have unashamedly pilfered bits from other letter provided kindly by other CAGers, and posted on teh forums... I hope that's ok with everyone.

 

Consumer Credit Act 1974 S78 request

OFFICIAL COMPLAINT

 

Dear Sir/Madam

 

Your ref:

 

Your attention is drawn to the fact that this account is subject to a serious dispute. On 13/05/08 I requested Scotcall supply me a copy of the credit agreement covering this account pursuant to the Consumer Credit Act 1974 section 78 that you have a duty to supply either as equitable or as absolute assignees of this account under CCA s(175,189). Scotcall have already notified me that they are unable to produce the original agreement, a copy of this letter you will find enclosed.

 

Without production of the said agreement I am unable to assess if I am indeed liable to any alleged debt to Scotcall or its clients, nor does it give me any chance to evaluate whether any original agreement was ‘properly executed’ as required by the Consumer Credit Act 1974.

 

For the avoidance of any doubt I have included section 78(1) and 78(6) of the Consumer Credit Act 1974, which states:

 

78 Duty to give information to debtor under running-account credit agreement

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of [£1], shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a) the state of the account, and

(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

(6) If the creditor under an agreement fails to comply with subsection (1)—

(a) he is not entitled, while the default continues, to enforce the agreement; and

(b) if the default continues for one month he commits an offence.

 

Clearly as no agreement was supplied on request, this is no way complies with the requirements of the Consumer Credit Act 1974 and I now draw your attention to section 78 subsection (6) which clearly states:

 

“(a)if the creditor under an agreement fails to comply with subsection (1) he is not entitled, while the default continues, to enforce the agreement.”

 

For your records, my request under the Act to Scotcall defaulted on 30/05/08. Scotcall have a further 30 calendar days from that date in which to provide the agreement as defined in section 78 subsection (6):

 

“(b)of the default continues for one month he commits an offence.”

 

May I draw your attention to the Office of Fair Trading’s guidance on debt collection.

 

The OFT guidance which was issued July 2003 (updated December 2006) relating to debt collections and what the OFT considers unfair, I have enclosed an excerpt from page 5 of the guidance which states

 

Examples of unfair practices are as follows:

 

2.6{h} Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment.

 

2.8{k} Not ceasing collection activity whilst investigating a reasonably queried or disputed debt.

 

 

Furthermore, since Scotcall has defaulted on my CCA request, you have still continued to pursue payment contrary to not only the Consumer Credit Act 1974, as well as the above noted OFT guidelines.

 

Please accept this letter as an official complaint due to Scotcall’s disregard of necessary legal practices under statute law.

 

What I Require.

 

I require that you send me a true copy of the executed agreement as required by the Consumer Credit Act 1974. If you are unable to supply the requested documentation because no such agreement is in existence I require written clarification as such.

 

I also require removal of all defaults entered by Scotcall with any Credit Reference Agencies. Note this is to be a complete deletion and not merely an amendment. I will be obtaining a full report from the Credit Reference Agencies to ensure compliance.

 

I require that you acknowledge my complaint and that you will carry out the actions I have requested within 14 days of receipt.

 

Please be aware that if Scotcall continues to pursue this matter without providing the aforementioned agreement, from 30/06/08 it will be committing a criminal offence under the CCA.

 

As you are aware while my Consumer Credit Act request remains in default, enforcement action is NOT permitted under s127; this constitutes a complete defence at law. Consequently, any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

 

Also, should Scotcall decide to continue with further action this will result in the regulatory bodies being notified of its actions, without any prior warning. Such action may include but is not limited to a full complaint to Trading Standards, the Financial Ombudsman, as well as the Office of Fair Trading, questioning your credibility as a company to hold a license, plus possible legal action.

 

I trust that this outlines my complaint fully, and that Scotcall will carry out my requests in the timeframe specified.

 

I would appreciate your due diligence in this matter.

 

I look forward to your response in writing.

 

 

 

Yours faithfully

 

It is a bit long, at 3 pages, but being an official complaint I think I've covered most of the points needed. What do you guys think?

[ODC]

Send them the letter. By reading it you will let them know you are a CAGGER.

 

If they continue to demand money without producing your CCA then report them to TS, the OFT and your MP as well as making a formal complaint to Snotcall

[ftolad]

Letter went in the post yesterday... "light the blue touch-paper...". I'm looking forward to their response.

 

On another note (and no thread posted yet), I CCA'd BCW over 14 days ago, they're in default. Since then, despite continuous requests for them to communicate in writing only, they've phoned twice... after the default!

 

They've had a nice letter sent to them as well, mentioning harassment, etc. If it gets any more serious with them I'll start another thread.

[ftolad]

Hi all,

 

OK, another update. This seems to be getting a little more complicated. It looks like Debt Managers were originally dealing with this claim and they gave it to Scotcall (not related to my other DM post).

 

Scotcall received the letter above on the 11th as confirmed by RM. They've sent a letter to me today (dated 12th):

 

Dear Sir/Madam,

 

Please find the enclosed paperwork relating to an account we are no longer dealing with,

 

It was returned to our client on 11-Jun-2008.

 

Please contact them at the address supplied quoting their reference number.

 

Yours sincerely

 

Administration Department.

I am SOOOOO mad, I'm seething. I cannot believe that when the going gets a little tough they have decided to wash their hands completely. I have yet to receive anything from Debt Managers on this particular claim yet.

 

Now, they've simply returned my complaint letter after stamping it with the date, and have not acknowledged it in any way. I'm not sure what I should do next? Scotcall are obviously in default and I feel they should have answered the complaint. I believe they have a complaint to answer and they are avoiding it. Should I just forget about this or remind them again and report to TS, et all?

[ftolad]

Any advice on my next actions? Thanks.

[ftolad]

I've drafted the following two letters to send off tomorrow, the first one to Scotcall:

 

IF YOU DO NOT UNDERSTAND ANY TERMS IN THIS LETTER PLEASE SEEK LEGAL ADVICE.

 

ScotCall Debt Collecting Services

Spectrum Building

3rd Floor

55 Blythswood Street

Glasgow

G2 7AT

 

OFFICIAL COMPLAINT

 

NOTICE BEFORE ACTION

 

Dear Sir/Madam

 

Your ref:

 

I refer to your letter dated 12/06/08, received 13/06/08, the contents of which are noted.

 

I also refer to my official complaint sent to Scotcall on 07/06/08, a copy of which I have enclosed for your convenience.

 

I note from your recent letter that Scotcall has passed on this disputed account to Debt Managers Ltd.

 

May I draw your attention to the Office of Fair Trading’s guidance on debt collection.

 

The OFT guidance which was issued July 2003 (updated December 2006) relating to debt collections and what the OFT considers unfair, I have enclosed an excerpt from page 5 of the guidance which states

 

Examples of unfair practices are as follows:

 

2.8{k} Not ceasing collection activity whilst investigating a reasonably queried or disputed debt.

 

Please note that this is a letter before intended action.

 

 

I require that you acknowledge my original complaint within 7 days. Scotcall is NOT permitted under s127 of the CCA to continue action on this account; including but not limited to passing the account to a client or any other third party.

 

This issue will not go away, failure to comply with my request will result in this being raised to TS, OFT and FOS.

 

Also, should Scotcall decide to continue with further action this will result in the regulatory bodies being notified of its actions, without any further warning. Such action may include but is not limited to a full complaint to Trading Standards, the Financial Ombudsman, as well as the Office of Fair Trading, questioning your credibility as a company to hold a license, plus possible legal action.

 

I hope that this matter can be solved amicably.

 

I would appreciate your due diligence in this matter.

 

I look forward to your response in writing.

 

 

Yours faithfully

 

 

The following one is to be sent to Debt Managers Ltd:

 

ACCOUNT IN DISPUTE

 

Dear Sir/Madam

 

Your ref:

 

I refer to a letter from Scotcall Debt Collecting Services dated 12/06/08, stating that they have passed this alleged account to Debt Managers Ltd.

 

I must admit that I am rather bemused as to why this account has been passed to yourselves, as it is in dispute with Scotcall Debt Collecting Services and has been since. Not only is this a breach of OFT collection guidelines, but also in breach of the Consumer Credit Act 1974 and Data Protection Act 1998.

 

My last letter from Scotcall Debt Collecting Services was 12/06/08 advising that they had passed this account to yourselves. Scotcall have yet to acknowledge this complaint.

 

As Scotcall Debt Collecting Services are now in default of my Consumer Credit Act request and OFT Collection Guidelines, I consider this account to be in SERIOUS DISPUTE.

 

As you are aware while my Consumer Credit Act request remains in default enforcement action is NOT permitted, under s127 this constitutes a complete defence at law.

 

Now I would respectfully suggest that this account is returned to Scotcall Debt Collecting Services for resolution of these defaults and breaches, as Debt Managers Ltd cannot lawfully pursue any enforcement activities.

 

If Debt Managers Ltd chooses to ignore my dispute and attempt enforcement, I will initiate legal action and file reports with the appropriate authorities, including, but not limited to, Trading Standards, Office of Fair Trading, Information Commissioners Office, Financial Ombudsman Service and possible court action.

 

After taking advice, I am of the opinion that any continued pursuit is in violation of the Administration of Justice Act 1970 section 40 as well as breaching a number of the OFT Collection Guidelines

 

I hope that this will not be necessary and an acceptable solution can be accomplished.

 

I would appreciate your due diligence in this matter.

 

I look forward to your response in writing.

 

 

Yours faithfully

 

 

 

Am I jumping the gun a little bit with this, or should I just go straight to TS? At the moment I would like to give Scotcall the benefit of the doubt and give them the opportunity to answer my complaint(!). I'd appreciate any comments.

[ftolad]

bump.

[maroondevo52]

Hi, ftolad.

 

The letters look OK, send them both and see what they come back with.

If they don't reply swiftly,like ODC say's report them to TS and OFT.

 

 

Regards.

 

Scott.

[ftolad]

Both letters have gone off, one to Scotcall and one to DM, so I'll have to wait and see what they do next.