CCA received - enforceable? First one - help please!

[lilly white]

Have Been Following You Are Getting Sound Advise Todate.

 

Will Pitch In When Needed.

 

 

Regards Lilly

[exchange]

Should I notify M&S that they have not fully complied with the SAR as they have not provided all statements, only those going back to 2007 when the account was opened in 2003?

If so, do I give them 40 days to comply again or do I just add this discrepancy to the list to use against them if it gets to legal action?

[exchange]

They might think they have sent them all by the way, because I have someone elses going back to 2003!!

[cerberusalert]

You should contact them listing the items that you still require, tell them that they have included someone elses information and then make a complaint to the ICO https://www.ico.gov.uk/Global/contact_us.aspx sit back and wait for the brown stuff to hit the fan.

[diddydicky]

You should contact them listing the items that you still require, tell them that they have included someone elses information and then make a complaint to the ICO https://www.ico.gov.uk/Global/contact_us.aspx sit back and wait for the brown stuff to hit the fan.

 

you could mention that just before you suggest that they should write the debt off!!

[exchange]

I have decided to do nothing until the 40 days are up on the SAR (if I tell them about missing statements now they still have time to comply!), I want to give more time for a proper termination letter to turn up (as this would be potentially useful with two DN's received so far which are defective) and/or wait for them to start any proceedings against me.

If anyone disagrees or has comments please feel free.

[diddydicky]

I have decided to do nothing until the 40 days are up on the SAR (if I tell them about missing statements now they still have time to comply!), I want to give more time for a proper termination letter to turn up (as this would be potentially useful with two DN's received so far which are defective) and/or wait for them to start any proceedings against me.

If anyone disagrees or has comments please feel free.

 

so would i- and if they havent complies by 40 days write and give them another 14 out of the goodness of your heart (rope , hang, to, enough.themselves)

[exchange]

Thanks dd, I have learned the lesson that taking your time and not replying to everything that CCC's throw at you seems to be the best policy as they just seem to make mistake after mistake. It seems some caggers cannot resist responding and playing ping pong with letters going backwards and forwards constantly which may keep them happy but silence at the right time really does seem to be just as effective!

[diddydicky]

Thanks dd, I have learned the lesson that taking your time and not replying to everything that CCC's throw at you seems to be the best policy as they just seem to make mistake after mistake. It seems some caggers cannot resist responding and playing ping pong with letters going backwards and forwards constantly which may keep them happy but silence at the right time really does seem to be just as effective!

 

youre right, all you need to keep in mind is that if a DCA rasies a point already covered then just file and ignore it BUT if they raise a NEW issue then deal with that in writing so that you can show a file to a court in which you have responded promptly when required

[scubadiver]

watching with interest:)

[exchange]

Understood dd, that's why I said silence at the right time.

[exchange]

M&S now only ones not to cash SAR payment.

 

Voice message this morning to contact Pre Legal Recoveries urgently.

 

About to write to them pointing out their error regarding the SAR. Any advice on how to break gently that they have broken Data Protection Act rules by sending me someone elses data and presumably sending my data to the wrong person too?!

[cerberusalert]

Why break it to them gently? Just hit them full on in the face with the fact that you are seriously thinking about contacting the ICO & the people who's data you've been sent.

[exchange]

I was being sarcastic. Should I go for the whole list of errors, i.e. two dodgy DN's as well as the ICO situation. They have not sent an account termination letter but have demanded full payment in a letter headed 'FINAL DEMAND'.

[cerberusalert]

No keep the DN's in reserve, no point in using all your munitions at once.

[exchange]

Thanks cerberusalert, I will take your advice.

[exchange]

I have had a reply to my last letter in which I pointed out that they had breached the data protection act by sending me details of someone else's account.

They start with 'On further investigation I have found that our previous letter did not fully answer the queries you have raised.' In other words we didn't read it last time but now we have!

They say that for my information, 'the application and agreement forms are one and the same.' This would therefore make it difficult for them to come up with another document at a later stage at least.

They then go on to the SAR cock up.

They say that this is 'extremely rare' and they would be 'grateful for the return of the documentation' and enclosed a pre-addressed envelope for my use.

The envelope is a standard size envelope for a normal letter when I need an A4 envelope big enough to take about 100 pages! The envelope is also pre-paid with second class postage, not much use to me in another country!

They have also asked for a signature on a document saying that I 'agree not to make any use of this information.'

Any advice on what I should do?

[cerberusalert]

They say that this is 'extremely rare' and they would be 'grateful for the return of the documentation' and enclosed a pre-addressed envelope for my use.

I bet they would be grateful.

They have also asked for a signature on a document saying that I 'agree not to make any use of this information.'

What are they offering in return? by them saying;

They say that for my information, 'the application and agreement forms are one and the same.' This would therefore make it difficult for them to come up with another document at a later stage at least.

I sounds like a half hearted attempt at implying that they won't be taking any enforcement, but I'd want it in plainer language than that, they are being too ambiguous.

[exchange]

Hi cerberusalert, they haven't offered anything in return but interestingly they say 'We have examined the agreement and account and are satisfied that we have a legally enforceable agreement with you, and this at the least, is evidenced by your use of the account and receipt of the credit funds.'

Sounds like they are not 100% about the enforceability, or why bother mentioning use of the account and receipt of funds.

Should I now go on the attack and threaten to send the documents to the ICO?

[cerberusalert]

The issue isn't whether you've had the funds, in the absence of an enforceable agreement that is seen in law as a gift from them to you.

 

This is backed by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 the agreement cannot be enforced.

Wilson v First County Trust Ltd [2001] EWCA Civ 633, Sir Andrew Morritt, Vice Chancellor said:

The creditor must…be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid

In the case of Dimond v Lovell [2000] UKHL 27, Lord Hoffmann said:

Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay.

[diddydicky]

Hi cerberusalert, they haven't offered anything in return but interestingly they say 'We have examined the agreement and account and are satisfied that we have a legally enforceable agreement with you, and this at the least, is evidenced by your use of the account and receipt of the credit funds.'

Sounds like they are not 100% about the enforceability, or why bother mentioning use of the account and receipt of funds.

Should I now go on the attack and threaten to send the documents to the ICO?

 

what takes the wind out of their sails is if it is pointed out to them that the question of whether or not you owe any debt to them is not the issue, the question of whether they can legally enforce any alleged debt is the issue- this blunts one of their main weapons in court

 

often these people think that debtors will never admit to the POSSIBILITY of any debt being owed-and they mistakenly beleive that every debtor they get in court has not fully grasped what it is they are disputing

 

IMO it is important that you make them fully aware early on that you know EXACTLY what the legal arguments

 

if the judge reads in your evidence that you know the difference between whether a debt is owed and whether any alleged debt even if it is owed, is legally enforceabla and that you are not "afraid" of the question - he is far less likely to ask the question himself or be unduly influenced by the other side asking it (IMO)

[exchange]

Thanks diddydicky, understood.

I am not going to send anything back to them agreeing 'not to make any use of the information' they sent to me for someone else's account for a while.

But should I send a copy of it to the OFT or tell them I am going to first?

[diddydicky]

Thanks diddydicky, understood.

I am not going to send anything back to them agreeing 'not to make any use of the information' they sent to me for someone else's account for a while.

But should I send a copy of it to the OFT or tell them I am going to first?

 

i would personally photocopy it then send it to the person it concernes with a covering letter

[exchange]

I don't have an address for the third party concerned, but M&S don't know that yet:).

[exchange]

SAR second attempt turned up today and it seems to all be mine, only mine! I suppose they might have checked before sending this time:rolleyes:.

I still wonder who got the missing statements in my name:eek:.