Adcice needed on a issue regarding a default notice

[valhala]

This is for my wife really but a few years ago she had an Argos card, we moved on and she forgot to inform about change of address, sicne then they have located her and asking for the debt to be paid(a few hunded pounds)

 

She has asked for a copy of the default notice as the account was passed onto a Debt Collection Agency which she was unaware about, they have given her the credit agreement but unable to supply the default notice, they are now saying they do not have to supply this, are they correct?

 

cheers

 

 

Matthew

[cosalt]

Hi, it depends on what they are chasing you for. If its for late payments then they don't need to have sent a DN. However if they are chasing for the full balance then they need to have sent a valid DN, and if they have sold the debt on, a termination letter and a letter of asignment.

 

Remember DCA's have no power whatsoever, they are just there to try and bully you into making payments.

 

Cosalt

[cerberusalert]

Can you scan your agreement, remove any identifying details and post it up. It is not at all unusual for these 'agreements' to be unenforceable.

[valhala]

The debt colelction agency chasing the money is Cabot financial. This is where Argos sent the debt to. They are chasing the full balance and have said they do not need to supply a copy of the default notice.

 

I will look for the signed agreement they supplied and fax it tomorrow.

 

Is there a template letter I can access that I can send to them about this, my wife has just had a baby and we could do without them calling for payments, if we can hold them off untill they supply the default notive that would be good.

[cerberusalert]

Dear Sir or Madam

 

Harassment by telephone

 

I am writing in relation to the quantity and frequency of telephone calls that I have received from your company, which I deem to be personally harassing.

 

I have verbally requested that these stop, but I am still receiving calls. (Delete if necessary)

I now require all further correspondence from your company to be made in writing only. [if you Want Them to]

I am of the view that your continued harassment of me by telephone puts you in breach of Section 40 of the Administration of Justice Act 1970, and the Protection from Harassment Act 1997.

If you continue to harass me by telephone, you will also be in breach of the Communications Act (2003) s.127 and I will report you to OFCOM, Trading Standards and The Office of Fair Trading, meaning that you will be liable to a substantial fine.

Be advised that any further telephone calls from your company will be recorded. (**Even if you don‘t yet have recording equipment!!**)

 

Yours faithfully, **Print name do not sign**

[valhala]

[cerberusalert]

It's an application form which doesn't contain the prescribed terms so it is rendered unenforceable. Send them this;

 

Dear Sirs,

 

Account no xxxxxxxxxxxxxx

 

 

Re: my request under the Consumer Credit Act 1974

 

This account is in Dispute .

 

On xx/xx/2007 I wrote to xxxxxxxxx requesting that xxxxxxx supply me a true copy of the executed credit agreement for this account.

In response to this request I was supplied a mere application form which did not comply with the requirements of the Consumer Credit Act 1974.

 

The document sent purporting to be a credit agreement does not contain any of the prescribed terms as required by section 60(1) Consumer Credit Act 1974. The Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) made under the authority of the “1974 Act” sets out what the prescribed terms are, I refer you to Schedule 6 Column 2 of SI 1983/1553 for the definition of what is required. Suffice to say none of the terms are present in the document

 

Since this document does not contain the required prescribed terms it is rendered unenforceable by s127 (3) consumer Credit Act 1974, which states

 

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).

 

This situation 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.

 

In addition should you continue to pursue me for this debt you will be in breach of the OFT guidelines, 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 refer to page 5 of the guidance which states;

 

2.6 Examples of unfair practices are as follows:

 

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

 

I require you to produce a compliant copy of my credit agreement to confirm I am liable to you or any organisation, which you represent for this alleged debt, if you cannot do so I require written clarification that this is the case. Should you ignore this request I will report you to the Office of Fair Trading to consider your suitability to hold a credit licence in addition to a complaint to Trading Standards, as you will be in breach of the Administration of Justice Act 1970 section 40

 

Since the agreement is unenforceable and the default notice is non compliant, it would be in everyone’s interest to consider the matter closed and for your client to write the debt off. I suggest you give serious consideration to this as any attempt of litigation will be vigorously defended and I will counter claim for all quantifiable damages

 

I respectfully request a response to this letter in 14 days

 

Yours,

Print name do not sign

[valhala]

hold on I need to send again, this one is to small

[valhala]

 

 

 

This is the copy of the agreement they sent

[cerberusalert]

The letter above still stands, I could magnify your original post enough to spot a dud at a thousand yards.

[valhala]

The letter above still stands, I could magnify your original post enough to spot a dud at a thousand yards.

 

 

Thanks for your help mate. Should I send the lette about phone calls seperately?

[cerberusalert]

If it's to the same people why waste postage.

[valhala]

I got a reply today after sending the letter you suggested, this is what they said

[valhala]

I got a reply today after sending the letter you suggested, this is what they said

[valhala]

....

Edited April 9, 2009 by valhala

[cerberusalert]

It's a standard bull$hit response from Crapbot, send them this;

 

Dear Sir/Madam

 

Re:− Account/Reference

 

ACCOUNT IN DISPUTE

 

I have received the documents you sent and in the accompanying letter you have confirmed this to be a true copy of the credit agreement that exists in relation to this account. As you have sent this document in response to a formal request under Section 78 (1) of the Consumer Credit Act 1974, this statement is now binding on you as per section 172 of the Act.

 

I must inform you that the information received does not meet the requirements of a properly executed credit agreement under the 1974 Act.The document received does not contain any of the prescribed terms as set out in the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) Schedule 6 Column 2.

 

Since this document does not contain the required prescribed terms it is rendered unenforceable by s127 (3) consumer Credit Act 1974

 

 

The absence of a properly executed credit agreement prevents you from:

Adding interest to the account

Taking any enforcement action on the account

Issuing any default notices or registering any default marker with a credit reference agency

This situation 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.

I would also point out that if you continue to pursue me for this debt while it is dispute you will be in breach of the OFT guidelines.

 

 

 

 

What I Require

I require all correspondence in writing from here on; any persistent attempts to contact me by phone will be reported to trading standards

I require you to produce a compliant copy of my credit agreement to confirm I am liable to you or any organisation, which you represent for this alleged debt, if you cannot do so I require written clarification that this is the case.

Should you ignore this request I will report you to the Office of Fair Trading to consider your suitability to hold a credit licence in addition to a complaint to Trading Standards, as you will be in breach of the Administration of Justice Act 1970 section 40

 

Since the agreement is unenforceable it would be in everyone’s interest to consider the matter closed and for you to write the alleged debt off. I suggest you give serious consideration to this as any attempt of litigation will be vigorously defended and I will counter claim for all quantifiable damages

 

 

Yours Faithfully

Print your name do not sign

[valhala]

It's a standard bull$hit response from Crapbot, send them this;

 

Dear Sir/Madam

 

Re:− Account/Reference

 

ACCOUNT IN DISPUTE

 

I have received the documents you sent and in the accompanying letter you have confirmed this to be a true copy of the credit agreement that exists in relation to this account. As you have sent this document in response to a formal request under Section 78 (1) of the Consumer Credit Act 1974, this statement is now binding on you as per section 172 of the Act.

 

I must inform you that the information received does not meet the requirements of a properly executed credit agreement under the 1974 Act.The document received does not contain any of the prescribed terms as set out in the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) Schedule 6 Column 2.

 

Since this document does not contain the required prescribed terms it is rendered unenforceable by s127 (3) consumer Credit Act 1974

 

 

The absence of a properly executed credit agreement prevents you from:

Adding interest to the account

Taking any enforcement action on the account

Issuing any default notices or registering any default marker with a credit reference agency

This situation 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.

I would also point out that if you continue to pursue me for this debt while it is dispute you will be in breach of the OFT guidelines.

 

 

 

 

What I Require

I require all correspondence in writing from here on; any persistent attempts to contact me by phone will be reported to trading standards

I require you to produce a compliant copy of my credit agreement to confirm I am liable to you or any organisation, which you represent for this alleged debt, if you cannot do so I require written clarification that this is the case.

Should you ignore this request I will report you to the Office of Fair Trading to consider your suitability to hold a credit licence in addition to a complaint to Trading Standards, as you will be in breach of the Administration of Justice Act 1970 section 40

 

Since the agreement is unenforceable it would be in everyone’s interest to consider the matter closed and for you to write the alleged debt off. I suggest you give serious consideration to this as any attempt of litigation will be vigorously defended and I will counter claim for all quantifiable damages

 

 

Yours Faithfully

Print your name do not sign

 

 

 

 

 

Cheers, I am going to remove the letters as I realised I didn`t censor it that well

[valhala]

Just out of interest how do you delete a post from the thread, I cant seem to find the right icon to do it

[joneseyblod]

Interesting but rubbish letter from cabot. Trying to be clever. Im a couple of steps behind you so subbing with interest.

[joneseyblod]

Dont think you can delete only edit

[cerberusalert]

Go to the post you want, click edit & delete the URL

[valhala]

Cabot4.pdf

 

 

 

 

This is the next letter I have got from them in this ongoing saga. what should my next letter be?

 

Cheers

[cerberusalert]

Send the idiots this;

 

 

Dear Sirs,

 

I write in response to your letter dated XXXXX

 

Your letter is incorrect and frivolous, you are fully aware of legally valid reasons why no payment has been made on this account, namely that the agreement which underpins this account has not been supplied despite a perfectly valid request and furthermore, it is suggested that notwithstanding the failure to supply a copy, the agreement itself is improperly executed, devoid of all prescribed terms and deficient in respect of detail relating to APR, total charge for credit and statements of rights ,remedies and protections as required by schedules 1,2 and 6 Consumer Credit Agreements Regulations 1983

 

Therefore the agreement as outlined in section 65 (1) Consumer Credit Act must be laid before the court to be granted an enforcement order before any further action can be taken

 

It is my view that the court would not grant such an order due to the deficiencies that I have outlined within the agreement, further more this has already been raised with you and the absence of any documents disproving my points itself speaks volumes

 

Therefore, I would indeed welcome the opportunity to place this before the court. furthermore should you proceed with the threats to issue a statutory demand/ court claim I will make an immediate application to have it set aside for the grounds outlined above, also I shall refer the judge to this letter when the matter of costs falls due.

 

I trust this outlines my position clearly enough for you

 

Yours,

Print name do not sign.

[cerberusalert]

 

If the continue to pursue make a complaint to your local trading standards & the OFT with regards to their harassment and threats, they are in clear breach of OFT guidelines & CPUT;

 

Debt collection guidance - Final guidance on unfair business practices - oft664

 

http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/DebtCollectionComplaintForm.DOC

 

The Office of Fair Trading: Contact us

 

debtcollectionguidance@oft.gsi.gov.uk

 

The Office of Fair Trading: Debt collection practices

 

tel: 020 7211 5823

[valhala]

cheers they tend to phone every day even though we sent a couple of letters regarding their calls. My missus just blocked their number