Disputed Debt Assigned - Please help

[Sweeney Todd]

Hi,

 

Sorry for the long story, but I am hoping that if I give the full facts, someone might be able to direct me on what, if anything, I should do.

 

I took out a loan with Lloyds in 2001 which I paid on time for three years, but then following the break up of my marriage I got into financial difficulties and had to go on to reduced payments.

 

However, Lloyds continued to charge me late payment fees, despite my being in constant contact with them, and the balance continued to rise.

 

I eventually wrote to Lloyds in 2009 asking them to provide me with a copy of the agreement. I also copied in BLS Collections who Lloyds appointed as their Debt Collection Agency.

 

I had to write a number of letters to all parties (Lloyd Collection Centre in Brighton, Customer Services Centre in Durham and BLS) with letters going out over a seven month period from March to November 2009.

 

On 22 July, Lloyds wrote to me to say that they are currently unable to provide me with copies of my Loan Agreement Documents, but advising that they can provide me with the information that I require. They then proceeded to provide a summary of the loan agreement, albeit with incorrect information, such as stating the Term of the Loan to be 94 months instead of 60, and stating that the Balance of Loan was £0!

 

On 28 July 2008, I wrote to Lloyds & BLS to tell them that the Account was in Dispute.

 

Lloyds and their agents continued to pursue me and so on 9 November 2009 I wrote a letter to say that the Account was in Serious Dispute.

 

On 20 November, Lloyds write back to me advising that they were enclosing a copy of the executed agreement, but stating that there is no obligation for them to provide a copy of the original signed agreement. They then attached a re-constituted agreement which was nothing like anything that would have been presented in 2001. They also included a statement that showed a repayments and interest charges to Jun 2003 and then a final 'Referred to Lloyds TSB Recoveries' figure which was over £6k higher than the running balance.

 

I wrote back to say that they hadn't fulfilled their obligations and re-iterating that the account was in serious dispute.

 

On 7 December 2009, Lloyds wrote back to me, again stating that they had been unable to locate the original agreement and so were providing a recreated copy and provided exactly the same information that they had with their letter of 20 November.

 

I did not reply to this letter and heard nothing else from Lloyds TSB.

 

Today I received a letter from Direct Legal & Collections saying:

Dear Mr Todd,

dlc Reference: xxxxxx

Lloyds Reference: xxxxx

We write to inform you that Lloyds TSV Bank plc ("the Bank") has now assigned to Hillesden Securities Ltd trading as direct legal and collections (dls) the outstanding balance unde the above-referenced Loan account, effective .

Under the terms of this assignment and as defined in the Data Protection Act 1998, Hillesden Securities is now the data controller of your personal data contained in the records of this account.

Though the bank has transferred the outstanding balance on your account to Hillesden Securities Ltd, you can still contact the Bank in relation to any complaints you have about the time they held your account.

You have the right to access (on payment of a fee) and, where it is inaccurate or incomplete, to update, your personal data. Should you wish to access your personal data, and unless and until you are notified of an alternative contact for such requests, please write to Data Subject Access Requests, Lloyds Banking Group, PO Box 66, Fife KY11 2WG.

dlc has been appointed by Hillesden Securities Ltd to manage your account. All contact regarding your account should now be directed to dlc.

The total outstanding balance on the account is £xxxx

You should contact us on 0844 335 8498 to arrange an immediate payment on your account xxxx

Yours sincerely

xxxxxx

 

The letter was accompanied by a letter which purports to be from Lloyds (although it includes the same grammar mistakes with mis-use of commas and missing dates as the dlc letter) which read:

Dear Mr Todd,

Reference: Loan Account No. xxxxxxxxxxxxxxxx

dlc Reference: xxxxxxxxxxxxxxx

We are writing to notify you that Lloyds TSB Bank plc has assigned all of its respective rights, title and interest in respect of the above referenced account (including the outstanding balance) to Hillesden Securities Ltd effective .

The total balance sold was £xxxx as at the date of sale. Any payments made towards your Loan account after will be forwarded to Hillesden Secrities Ltd, and will be deducted from the balance shown above.

Uner the terms of this assignment, and as defined in the Data Protection Act 1998, Hillesden Securities Ltd is now the Data Controller of your Personal Data contained in the records of this account.

dlc has been appointed by Hillesden Securities Ltd, to manage your account and it is essential that all future payments and correspondence regarding this account be directed to dlc at:

direct legal & collections

Buckingham Road

Brackley

NN13 7DN

Telephone: 0844 335 8498

You should contact dlc to organise payment on this account as a matter of urgency.

Yours sincerely

xxxx

 

Can anyone tell me who I should write or correspond with and what I should advise?

 

Many thanks for any help,

Sweeney.

[coledog]

Well - Hillesden have basically bought a lemon! The account is obviously still in dispute no matter who 'owns' it. You can write to Hillesden and inform them of this and see what they try next!

[basa48]

Well - Hillesden have basically bought a lemon! The account is obviously still in dispute no matter who 'owns' it. You can write to Hillesden and inform them of this and see what they try next!

 

Plus of course the debt is unenforceable without a copy of a signed and compliant agreement. Which of course is why the OC got rid for as much as they could get for it!!!

 

Just ask the DCA for a copy of the signed agreement and listen to the silence!!

[42man]

They are allowed to supply a reconstituted agreement, how does the reconstitued one differ from what you signed ? Take a look at Kotecha vs Phoenix but more importantly this - http://news.bbc.co.uk/1/hi/business/8435867.stm

[coledog]

Yes - they are allowed to provide a 'recon' and judges will accept these but the recon has to be correct and you are clearly disputing this debt from what you have said, including fees and charges. Why did they sell it on rather than take action against you or try and resolve the dispute?

[coledog]

Also - if they produced a recon they should have told you why they did not produce the original and what has happened to it.

[Sweeney Todd]

Thanks for the feedback, all.

 

To address the points made, the only explanation for not providing me with a copy of my agreement is that they say that they couldn't find it. Their three letters to me on this matter are as follows:

 

The first letter that was sent to me, was on 22 July 2009. This letter said:

Dear Mr Todd,

Thank you for your letter dated 19 June 2009

I am sorry but we are currently unable to provide you with copies of your Loan Agreement Documents; however we can provide you with the information that you require:-

Loan Amount: £xxx

Term of Loan: 94 Months

Monthly Repayment: £xxxx

APR Rate: 14.80%

Balance of Loan: £0

Term Remaining: 0 Months

Total Charge for Credit: £xxx

Date Loan Opened: xxxxx 2001

I hope this helps with your query regqrding your agreement with us.

If you have any further queries please do not hesitate to contact me, my number is at the top of this letter.

Yours sincerely,

xxxxx

 

After ongoing correspondence, notice that the account was in dispute, and further requests for copies, I received the following letter:

 

Dear Mr Todd,

I write in response to your request for a copy of your consumer credit agreement under section 77 of the Consumer Credit Act 1974 (CCA)

I have enclosed with this letter a copy of your executed agreement and a signed signed statement of your account. By providing you with the documents attached to this letter, we have satisfied our obligation to provide a copy of the executed agreement under section 77. There is no requirement under the CCA to provide you with a copy of the original signed agreement. We are endeavouring to locate the copy of your signed agreement but please be assured we would not have advanced a loan without having sight of a signed agreement. For the avoidance of any doubt, we have set out in the appendix to this letter your rights under section 77.

Having satisfied our obligation under section 77, the agreement you have with us is fully enforceable and we shall continue to treat it as such. We will not be entering into further correspondence with you regarding the provision of copy agreements.

If you are using the services of a debt management company or another third party to request copies of your agreement under section 77 we would remind you of the warnings issued by the Office of Fair Trading and Ministry of Justice in August 2008 where they stated:

"Consumers should think very carefully before committing themselves to making claims and handing over hundreds of pounds in advance to do so, even where refunds may be promised of the claim is unsuccessful... Consumers with specific debt problems may wish to contact their local Citizens Advice Bureau who will often be able to provide advice free of charge. Free, impartial advice can also be obtained from cotacts at the end of this alert."

The OFT/MOJ alert can be read in full at http://www.oft.gov.uk/news/pres/2008/consumeralert

If you would like to discuss your finances, come in to one of our branches and see a financial health specialist. Our financial health specilists have been trained to provide a free service to help you with your finances, giving you guidance and action plans to get your finances back into shape. All you need to do is come into a branch and have a chat with one of them.

To find your closest financial health specialist, simply yse the financial health specialist locator at http://www.lloydstsb.co.uk or call 0845 3 000 000.

Finally we must remind you that failure to make payments under this agreement will result in collection activities and any default may also be reported to credit reference agencies.

Yours sincerely

xxxx

Appendix - Your Rights Under Section 77 of the Consumer Credit Act 1974

Compliance with section 77 is achieved simply by sending you a current version of your agreement but we understand that some customers wrongly believe that they are entitled to an original signed copy of the agreement.

You will note that section 77 refers to the requirement to provide a copy of the executed agreement. The executed agreement is the document which has been signed by or on behalf of both parties or, in other words, the original signed agreement - see section 189(1). The copy of the executed agreement, however, is the copy required to be sent by virtue of section 63 of the CCA.

The form and content of copies of agreements (including those to be provided under sections 63 and 77) are prescribed under the power contained in section 180 of the CCA which authorises "...the omission from a copy of certain material contained in the original...". This provision therefore enables copies of documents to differ from the original signed agreement.

Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983.

The Regulations that have been enacted under section 180 and which set out what information needs to be contained in the different copies of documents are the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (CNCD Regulations). Regulation 3(1) of the CNCD Regulations provides for the general obligation that all copies of executed agreements must be "true copies" of the agreement. The CNCD Regulations then set out the content that may be omitted from or altered in any such "true copy" so, when creating a copy of the relevant executed agreement which must be provided under the CCA, a creditor may exclude, amongst other information, any signature box or date of signature. Since the relevant copies may be altered as permitted under the CNCD Regulations, it is evident that photocopues of the orginal signed agreement do not need to be provided.

 

Copy of a reconstituted agreement were then attached, which I will come to in a second. When I disputed the facts of their letter, I got another letter, dated 7 December 2009, which read:

 

Dear Mr Todd,

Thank you for your recent request for a copy of your loan agreement form.

As we have been unable to locate the original agreement you signed when you took out your loan we have recreated this copy using the original details of your loan and the terms and conditions that were applicable when you entered into your agreement.

Under consumer credit legislation we are permitted to provide you with such a copy in place of the original and we will continue to operate your loan under the original terms and conditions and the applicable legislation, without affecting your rights under the agreement.

Please do contact us if we can be of any further help. Our number is at the top of this letter.

Yours sincerely,

xxx

 

Another copy of the same reconstructed agreement was attached.

 

Now, about this agreement that they have provided.

 

I have grave reservations as to whether this is a true reconstruction of the agreement that I signed.

 

• For starters, I believe that the loan agreement was a fixed personal loan agreement. The letter received from Lloyd on 19 May suggests likewise, stating the sum advanced and the cost of the credit (a total repayment of circa £8k). The copy agreement shows a monthly charge for credit and does not guarantee a fixed number of fixed payments. Even after making payments over the first half of the loan, the debt is now showing as double the amount originally borrowed.
  
• The reconstructed agreement shows my current address, not the one I was living in when I took out the loan
  
• The Address where the Loan is held shows a head office address, and not my branch where it was held
  

In summary, whilst this may have been a type of loan agreement that Lloyds TSB had in use in 2001, it looks like a centrally offered loan agreement and I do not believe that this is a true copy of the agreement that I signed in the branch.

 

But then, if it went to court, surely this would be just my word against theirs. And 42man's link suggests that the court would be likely to believe them.

[brokebutnotbeatn]

Can I clarify. I thought a recon was acceptable in court if the OC was the defendant BUT if the OC is the claimant then the burden of proof is on them and they will need to produce the signed original in order for any agreement to be enforced??

[OnMyWayOut]

Sounds like a request is needed for them to provide evidence of how they came by the facts used to reconstruct the document if they don't have the original, quoting the CPUTR 2008.

 

OMWO

[42man]

If they used the copy they have sent you in court, then in line with the Kotecha ruling a judge would throw it out.....especially so as they have not provided one with your original address on it (apart from the other pieces you mentioned too)...

[Sweeney Todd]

Thank you so much everyone for your help. Does this look like a suitable reply to send back to them?

 

WITHOUT PREJUDICE

Dear sir or madam,

Further to your letter dated 18 July, your telephone call and your text message, all received today, I kindly refer you back to correspondence between myself and Lloyds TSB dating back to the periods between March 2009 and December 2009.

I have asked Lloyds TSB to provide me with a true copy of any agreement. However, to date they have only produced a reconstituted copy that I believe does not represent a true copy of any agreement that I would have been asked to sign and is certainly not a fixed term loan agreement that would have been provided to me at a branch of Lloyds TSB for signing. I have, subsequently, advised Lloyds TSB that this account is in serious dispute. It is, therefore, disappointing that they have assigned this debt without having resolved the issues that they have been asked to address.

Before entering into any further correspondence, I would kindly ask that a copy of the True Signed Agreement (if a reconstituted copy is provided, then confirmation of how the terms and conditions and all aspects of the agreement are verified as being part of the original agreement), and a statement of all activity on the account be provided to me.

Yours sincerely,

Sweeney Todd