Alphageek's OH Vs Argos Store Card

[Alphageek]

Sent Argos a CCA and received this:

 

Dear M

 

Re: Account Ref - xxxxxxxxxxxx

CCA

Section 78 Request

 

Thank you for your recent letter.

 

Under s78 CCA 1974, following receipt of a £1 fee, we are obliged to send a copy of the executed agreement and of any other document referred to in it together with a statement showing (a) the state of the account, (b) the amount currently payable under the agreement and © the amount and due date of payments which will become due if you do not draw further on the account.

 

The Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 explains what must be included in the copy agreement. Regulation 3 provides that the copy may omit certain information, including the signature box and your name and address. Regulation 7 provides that if the agreement has been varied the copy must include a statement if the terms of the agreement as varied.

 

In accordance with this, we enclose the following:

 

1. A copy of the executed agreement as required by s78 (this is a copy of the agreement with the signature box and name and address omitted as provided by Regulation 3).

 

2. A statement of the terms of the agreement as varied as required by Regulation

 

We also confirm the state of the account is as follows:

(a) amount currently payable (current balance) - £19xx.xx

 

Yours sincerely

 

pp Val P

Customer Service Manager

 

 

and this:

 

 

Bizarrely, they quote not having to include signature box etc., confirm they have omitted it and then send the app form with the "omitted" items on!

 

Using template letters eh?

 

She is looking to make a F&F and as this was opened in 2003, there is a good chance this application form is all they have.

 

Is 10% a fair offer do you think?

[cerberusalert]

Only if they give a written agreement that it is a F/F settlement & they remove any defaults from your credit file.

[Alphageek]

Hi, thanks for popping in.

 

There are no defaults and she says there are no fees to reclaim either.

 

She has just finished working and can't afford to keep paying them so was looking to make a F&F as a "gesture of goodwill"

[dpick]

I know my eye sight is bad but I cannot see any prescribed terms at all so my opinion that though this application could be call an agreement it would be unenforceable under s127(3) etc.

 

dpick

[cerberusalert]

Well as it is an application form and doesn't fulfill the requirements of the CCA she can offer what she likes. Of course they can refuse and get nothing in the end as it's unenforceable in law.

[Alphageek]

Yes, that's the angle I will be using. She has a clean CRA file at the moment and it would be nice I we can avoid all the default/claim for damages & removal nonsense.

 

Need a nicely phrased letter making the offer. I'll see what I can cook up.

[cerberusalert]

Have you sent the 'in dispute' letter to warn them off passing the debt on or processing her data?

[Alphageek]

No, not sent anything else to them yet.

 

Is it best to dispute the account before making a F&F?

 

(I think i know the answer)

[cerberusalert]

There are pros and cons both ways. If you send them the in dispute you are telling them that you know it is unenforceable and that can give you leverage to make an offer. The downside is out of bloody mindedness they may enter a default, unless they haven't issued her with a 'Statutory Demand' yet? With the SD they have to give her 21 days to remedy the arrears before they can register it with the CRAs.

[Alphageek]

There is no arrears at the moment. I get the feeling that they will reject any F&F offer but it would be possible to make payments to the account while the negotiation is ongoing, so they wouldn't be able to truthfully register any adverse CRA entries.

[cerberusalert]

It's a bit of a conundrum this one, at present you don't have any real leverage as she is up to date with her payments. I suppose she could threaten to stop further payments unless they reduced the debt. If they refused then slap them with the 'in dispute' letter to stop them entering a default & then stop payments.

[Alphageek]

I don't know why I am taking advice from someone who is "in: Seine", but considering where I say I am, perhaps we'll be meeting soon

 

As you say, a bit of a conundrum. I think I will send a F&F letter stating loss of work as the reason and reminding them that the agreement they hold would be unenforceable at court so it is in their best interests to accept.

 

Thanks guys, I'll post up what I am to send for comments before posting.

[cerberusalert]

I was in Muckle Flugga but I was getting lonely:)

[Alphageek]

How about this?

 

Dear Sir/Madam

Re: − Account Number 6335 40990 00235 58523

 

Thank you for your letter of 20th January 2009 in which you replied to my Consumer Credit Act 1974 s78 request.

 

I have recently left full time employment and am not working at all currently. I am writing to all my creditors along similar lines.

 

I am unable to offer to pay the money which you claim is outstanding. However, I can raise £xx and I want to offer this as an ex−gratia payment in full and final settlement of the account. This offer is made on the clear understanding that, if accepted, neither you nor any associate company will take any other action to enforce or pursue this debt in any way whatsoever and that we will be released for any liability.

 

I also request that, if accepted, you will make an entry on a credit reference agency file relating to the above account as "satisfied" in full.

 

Payment can be made within 28 days of receiving your written agreement of this offer and preferred method of payment.

 

I realise that this will likely come as disappointment to you and would have the option of litigating. I have taken advice on the document you provided to me on 20th Jan and understand that your position would be unenforceable via s127(3) of the 1974 act. I also understand that your usual procedure would be to write off this account and sell it to a debt collection agency for 10% or less of the outstanding balance. My offer is for more than you would receive from this method of resolving this issue.

 

I look forward to receiving your positive reply.

 

Yours faithfully,

All comments gratefully received.

[cerberusalert]

That's fine, but I would up the offer slightly because when they sell debts on they also receive tax relief.

[Alphageek]

Ah yes, I forgot about tax relief. I have reworded it slightly and also upped the offer slightly as well.

 

Thanks.

[Alphageek]

Quick update: I wrote to them in late April, the standard Harassment by telephone letter and added "I am also still awaiting a response to my letter dated x April 2009 (copy enclosed)." and I enclosed a copy of the F&F letter.

 

The harassment and copy of F&F was sent by Royal Mail Signed For delivery and has been tracked delivered.

 

Not had a reply to either of the letters and it's all quiet on the Argos telephone front.

[cerberusalert]

Maybe they've choked on their dummies?

[Alphageek]

This account has now been passed to Experto Credite (the funniest name yet). I have just realised that she opened the account in 2008 (that'll teach me to blur out the dates on app forms) so I guess this fact changes the situation quite considerably?

[cerberusalert]

It still has to contain the prescribed terms.

[cerberusalert]

You could always send them this http://www.consumerforums.com/resources/templates-library/86-debt-collectors/574-letter-when-account-has-been-passed-on-whilst-agreement-request-is-in-dispute

[Alphageek]

Actually, I have just phoned the o/h as she is not here right now and she says she's had the card account for years.

 

I have looked again at the form and it was opened in 2003. You can see on the scan I posted in #1 the stamp on behalf of Argos conveniently fades away where the year would be and I would not put it past them to have added a little bit to the date my o/h wrote to make it look like 2008!

 

So, the game is back on. Thanks cerbs.

[Alphageek]

Sent this to the Expertos.

 

Experto Credit Limited

Windrush House

24 Portman Street

Reading

Berkshire RG30 1EA

 

ACCOUNT IN DISPUTE

 

Date: Tuesday, 27 October 2009

 

Dear Sir or Madam,

Account number: XXX

 

I am in receipt of your letter dated 15th October 2009.

 

This account is in dispute with Argos and has been since 27th April 2009.

 

For Argos to have passed this account to you is not only a breach of the Consumer Protection From Unfair Trading Regulations 2008 in line with the Office Of Fair Trading's debt collection guidelines, but also in breach of the Consumer Credit Act 1974 and Data Protection Act 1998

 

My previous dispute from 27th April 2009 has not been answered. As Argos are now in default of my Consumer Credit Act agreement request and have also breached the Data Protection Act, 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. Consequentially any legal action you pursue will be averred as both unlawful and vexatious.

 

I respectfully suggest that this account is returned to

the Argos for resolution of these defaults and breaches, as Experto Credite cannot lawfully pursue any enforcement activities.

 

If Experto Credite 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 and Financial Ombudsman Service.

 

I hope that this will not be necessary and an acceptable solution can be accomplished. I would appreciate your due diligence in this matter and look forward to hearing from you in writing.

 

Yours faithfully,