ADDABET vs GOLDFISH

[millymollymoo]

Hi Addabet,

 

Good luck in getting the full amount. I think they are a bit flustered as the DPC said to me they were inundated with requests:)

 

I did receive my statements one day before the deadline. Could I ask the address you sent your prelim to?

 

Milly X

[bobtheb]

This is the address I used Goldfish

Morgan Stanley Bank International Limited

25 Cabot Square

London

E14 4QA but they reply sometimes from

PO Box 25201

Glasgow

G2 8XD

[millymollymoo]

Thanks bobtheb, I have got the Glasgow address on the DAR from them, I was not sure if that was ok:)

[ADDABET]

Another update,

 

Well its been 30 days since my original consumer credit request so believe from what iv'e read on here and particularly in the very helpful thread 'Re: Loan Company Cannot Supply The Original Agreement' that Goldfish have committed a criminal offence in not supplying a copy of my original signed agreement and therefore the debt becomes unforecable thus gets written off:D . Bearing in mind my original claim was for just over £1000.00 but outstanding on the card is £3500.00 i'd say this is a favourable outcome, although something in writing from Goldfish to confirm this would be much more satisfying:-| .

Anyone care to recommend the next best step for me to take in order to get Goldfish to confirm this outcome ?:-?

[Mike220359]

Not that I've had this experience yet with MS, but I have just sent off my SAR.

 

However, just because the bank is in default and the loan is unenforcaeble doesn't mean that they will stop harrassing you once the payments stop. Lloyds TSB have been in default since July 2005 under section 85 of the 1974 act and two months under section 78. But that hasn't stopped their systems ringing me up to get money off me depsite being them acting in contravention of the OFTs guidleines on debt collection. IMHO you have to take them to court before they cave in. When I can get the £150 together thats what I'm going to do with them anyway.

 

Be strong, they're in the wrong!

 

Mike

[JonCris]

If they DIDN'T comply with your original SAR (which they didn't) then there are no time limits other than those you may wish to impose on them to respond to your further demand that they comply with your original SAR dated whatever.

 

Also tell them that if they continue to fail to comply you will report them to the ICO as well as taking legal action

[Peterbard]

I am having a similar problem with a dca at the moment and have just sent this letter

 

9th January 2006 My Address

Letter Before Action

Debt Managers Ltd

4 Jamaica Street

Edinburgh

SH3 6UP

Dear Sirs

Account Reference *************

As per my previous correspondences I draw to your attention your continued failure to provide the information requested under the 1974 CCA section 77 and the Subject Access Request under the Data Protection Act.

With regard to your recent response stating you have passed the debt back to the initial creditor I remind you of section 189 of the CCA 1974 which defines the Creditor as:” the person providing credit under a consumer credit agreement or the person to whom his rights and duties under the agreement have passed by assignment or operation of law, and in relation to a prospective consumer credit agreement, includes the prospective creditor;”

The requests were made and monies were paid to yourselves whilst you were the creditor, you are liable for the default and may incur both civil and criminal action taken against you for the breaches of the ACT.

You must immediately remove any notice of default recorded on this account as payment has been withheld entirely due to your non compliance.

Any alleged agreement or contract made between us would now be unenforceable (section 79 of the act)

I therefore demand the total refund of all monies paid by myself as per the itemised list attached.

The timescale for this action will be as follows:

If after 7 days from the date of service of this letter there is no refund I shall commence action through the small claims court on the following three counts.

• For return of the monies paid plus interest as per section 69 of the County Courts Act.

(Including possible damages due to any unlawful entries made on my credit record.)

• For non compliance of the 1974 Section 77 Request. (The OFT may also pursue this.)

• For non compliance with the Subject Access Request, (Data Protection Act 1999.)

Yours faithfully

Me

Cheers

Peter

[alanfromderby]

Another update,

 

Well its been 30 days since my original consumer credit request so believe from what iv'e read on here and particularly in the very helpful thread 'Re: Loan Company Cannot Supply The Original Agreement' that Goldfish have committed a criminal offence in not supplying a copy of my original signed agreement and therefore the debt becomes unforecable thus gets written off:D . Bearing in mind my original claim was for just over £1000.00 but outstanding on the card is £3500.00 i'd say this is a favourable outcome, although something in writing from Goldfish to confirm this would be much more satisfying:-| .

 

Anyone care to recommend the next best step for me to take in order to get Goldfish to confirm this outcome ?:-?

 

 

You admit that you have an outstanding balance of £3500 on your card, and that the amount in dispute is £1000.

 

On the basis of this, and the fact that Goldfish will have plenty of documentary evidence that you have been benefiting from the use of the credit they have extended, then I would say that you have absolutely no chance of getting them to agree that the balance should be written off.

 

I would also suggest that a District Judge would would not be willing to accept such an argument either.

 

Whilst CCA requests are fine for dealing with DCA's, I am of the opinion that the original creditor would be able to show enough evidence to prove that a contract exists - even without the original agreement.

[ADDABET]

Sorry but i presummed as read in 'Re: Loan Company Cannot Supply The Original Agreement' after 30 days from a CCA request that not supplying a copy of the original signed agreement by law the debt becomes unforceable, i think i missed something somewhere ???

[alanfromderby]

When a third party (usually a DCA) is seeking payment of a debt that they claim to own, then certainly a debt would be unenforceable by THAT DCA if they failed to produce the agreement within the time-frame stated. You would also be able to seek repayment of any sums collected by THAT DCA.

 

However, when dealing with the original creditor, things are slightly less clear cut, as they will usually have other means for proving that a debt exists - and they do not have to rely solely on the CCA to enforce a sum owed to them.

 

Of course they must still provide these documents, and you have the right to complain to Trading Standards or the Financial Ombudsman. You could also use their failure to produce documents within your claim.

 

However, a District Judge will wish to see a settlement which is fair to both parties - and would not be supportive of anything that could be seen as a way of avoiding a liability that has been properly incurred.

[ADDABET]

I see now, as its the original creditor the debt isn't unenforceable (shame:D ) but i could still carry on with my original claim for charges and PPI as i still haven't had any signed agreements sent to me, so its LBA for the original amount and them MCOL......................

[alanfromderby]

With a claim as complex as yours, I would strongly advise that you do not use MCOL. You will need to be very careful in particularising your claim, and the character limit will not allow you to do this fully.

[Peterbard]

However, when dealing with the original creditor, things are slightly less clear cut, as they will usually have other means for proving that a debt exists - and they do not have to rely solely on the CCA to enforce a sum owed to them.

 

"This was my concern and i wrote to my MP about it the respose from Ian McCarthy at the DTI stated "If there were a dispute about the agreement the lender would need to prove to a court that there was and agreement and,it is highly likely that the lender would have to produce the original signed documoent to prove they had an agreement to start with. If the lender can't prove the existence of the agreement,winning any court case would prove difficult."

 

I think i read on here somewhere that just making payments isn't sufficiant proof that you owe anything.

Haven't we all been paying bank charges for years that are totaly unlawful.

 

Regards Peter

[alanfromderby]

I think i read on here somewhere that just making payments isn't sufficiant proof that you owe anything.

 

I would totally agree. However authorisation receipts for credit card transactions would almost certainly provide enough proof that the customer was using the credit that had been made available. This could be backed up with transactional information, and the payments made by the customer would be additional proof.

 

It is also worth remembering that any claim for refund of charges relies on the fact that a contract exists, and that the CUSTOMER has breached that contract. Having started the process by quoting your account number, and suggesting that a refund of unlawful penalty charges (for breaches in contract) is to be pursued through court, would tend to alert any Judge to the fact that a contract does indeed exist.

 

I have said on numerous other threads that it is vitally important to know what you are trying to achieve BEFORE you start the process. If one of your aims is to claim that a contract does not exist, then to seek to challenge charges levied in breach of that same contract would not be a very wise approach.

 

Please also be aware that a District Judge COULD decide you are correct, and that the contract is unenforceable. HOWEVER, if he was to feel that you were indeed trying to avoid a properly incurred debt by using a loophole in the law, he COULD levy costs against you - thus any victory would be extremely hollow.

 

Of course, this is all just my own opinion.

[Peterbard]

Of course, this is all just my own opinion

 

And a very valid opinion too.

 

I may have missed something here am I correct in assuming the creditor does not the executed signed agreement? If this is the case then the agreement is unenforceable anyway under 127 section 3-4.

So he would be unlikely to even take it to court.

 

Regs Peter

[alanfromderby]

My personal opinion is that should a customer in the same position as the OP simply refuse to pay any money to Goldfish, then they will probably not pursue the matter without a copy of the agreement. However, they will issue a default and pass the debt on to a DCA, with the resulting hassle/damage to credit rating etc.

 

The only way that the OP can avoid this is to take legal action against Goldfish - at which point Goldfish will probably counter-claim, and the legal argument over the existence of the contract would then be played out.

 

It is impossible to second guess what a District judge will do - just read Jonni2bad's thread regarding default removal. He seemingly had a sound legal argument, but the Judge just did not want to listen to it.

[Peterbard]

It is impossible to second guess what a District judge will do - just read Jonni2bad's thread regarding default removal. He seemingly had a sound legal argument, but the Judge just did not want to listen to it.

 

I think we must have our wires crosed here.

 

The judge cannot enforce an improperly executed agreement currenly even if he wanted to because of the restrictions imposed by section 127 of the CCA. If the creditor cannot produce a true copy of the orriginal executed agreement then they cannot enforce it,any derault would be unlawful and you could take action for damages against the creditor if one was issued.

 

Regards

 

Peter

[alanfromderby]

The judge cannot enforce an improperly executed agreement currenly even if he wanted to because of the restrictions imposed by section 127 of the CCA. If the creditor cannot produce a true copy of the orriginal executed agreement then they cannot enforce it,any derault would be unlawful and you could take action for damages against the creditor if one was issued.

 

 

You would think so wouldn't you?

 

I totally agree with your legal argument. However, would you be prepared to risk YOUR money by pushing the point before a District judge. It is one thing where the whole amount owed is being disputed - but in this case the OP has indicated that £2500 is properly owed.

 

Remember also that Goldfish do not have to rely totally on the CCA. They could quite easily bring the agreement to an end due to breach of contract, and then the full balance would be due immediately.

 

However, I would repeat my view that they would probably decide not to proceed with enforcement action in this case - but I certainly would not relish having to fight a claim for removal of default in such circumstances.

 

It is one thing to prove that a contract exists, or does not exist - it is totally another to claim that sums of money have not been loaned by one party to another.

 

Without an agreement, you prove that you do not have to pay interest, charges, etc - you do not prove that you can keep the money you borrowed.

[JonCris]

I disagree Alan

 

House of Lords - Wilson and others v. Secretary of State for Trade and Industry (Appellant)

 

29. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: Thus such a document (whilst it may lack some of the terms required under the CCA it must be produced to enforce the debt..even in contract section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and 63, section 127(4) precludes the court from making an enforcement order.

 

49. I consider, however, that there is no relevant restitutionary remedy generally available to a lender in the circumstances now under consideration. The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan. That being the consequence intended by Parliament, the lender cannot assert at common law that the borrower has been unjustly enriched. No two bites of the cherry That would be inconsistent with the parliamentary intention in rendering the entire agreement unenforceable. True, the Consumer Credit Act does not expressly negative any other remedy available to the lender, nor does it render an improperly executed agreement unlawful. But when legislation renders the entire agreement inoperative, to use a neutral word, for failure to comply with prescribed formalities the legislation itself is the primary source of guidance on what are the legal consequences. Here the intention of Parliament is clear.

 

72. Undoubtedly, as illustrated by the facts of the present case, section 127(3) may be drastic, even harsh, in its adverse consequences for a lender. He loses all his rights under the agreement, including his rights to any security which has been lodged. Conversely, the borrower acquires what can only be described as a windfall. He keeps the money and recovers his security. These consequences apply just as much where the lender was acting in good faith throughout and the error was due to a mistaken reading of the complex statutory requirements as in cases of deliberate non-compliance. These consequences also apply where, as in the present case, the borrower suffered no prejudice as a result of the non-compliance as they do where the borrower was misled. Parliament was painting here with a broad brush.

[alanfromderby]

Totally agree, and I would thank you for directing me to that Judgement as it certainly clarifies the issue.

 

As I have said, I don't believe that Goldfish would try to seek enforcement as clearly they would fail on the basis of this judgement. However, I would not relish fighting a default action against them under such circumstances.

[JonCris]

I agree Alan unless you CAN argue that a default IS a form of enforcement & therefore not permissable.

 

Bit like thowing their toys out of the pram is how the courts might see it. We didn't win but we are going to make your life hell anyway

 

What do you think?

[Peterbard]

Goldfish do not have to rely on the cca

Goldfish have no choice the agreement is regulated by the cca

 

It is one thing to prove that a contract exists, or does not exist - it is totally another to claim that sums of money have not been loaned by one party to another.

 

Sorry don't understand i thought that was one of the functions a contract performed.

 

Yes I would I don’t see the risk you are simply exercising your right tiosee a true copy of the agreement it is the law not you that says they are in default and committing an illegal act by not providing one, the law is the law and as it stands the agreement is unenforceable.

The case you quoted was brought because of a relatively minor discrepancy in the agreement and it was still found to be unenforceable. This is why the sections in question are being removed in the cca 2006 fortunately that does not come into force until April 6th 2007 so for now yes i would definitely not pay another penny. We are talking about no agreement or an agreement without a signature.

Even without section 127 the court would find “it very difficult indeed to prove an agreement existed.”

 

The last sentence is a direct quote from the dti in a letter received by me when i argued the same point.

The letter is posted ion here in the cca thread.

 

Remember also that Goldfish do not have to rely totally on the CCA. They could quite easily bring the agreement to an end due to breach of contract, and then the full balance would be due immediately.

 

 

What agreement?

 

Also they cannot legally register a default if they do not have a copy of the agreement as they do not posses your consent to share data.

 

 

 

 

Regards

 

Peter

[alanfromderby]

I agree Alan unless you CAN argue that a default IS a form of enforcement & therefore not permissable.

 

Bit like thowing their toys out of the pram is how the courts might see it. We didn't win but we are going to make your life hell anyway

 

What do you think?

 

Isn't that what the banks and DCA's have been doing all along?

 

Of course, if Goldfish were stupid enough to take it to court then I would expect the court to take a heavy line against them. I am also not arguing against the legalities outlined in this thread.

 

What I am saying is that, in the circumstances outlined, if the OP made no further payments then I would expect Goldfish to issue a default and then pass the debt to a DCA. In these circumstances, if the OP was to seek to get the default removed by court action, then the Judge may not be sympathetic.

 

It is not a black-and-white legal opinion, it is an opinion based on some of the eccentric decisions that have been made in cases noted elsewhere on the forum.

 

Of course, if we had unlimited resources available these could be taken to appeal - and the law would undoubtedly prevail. Unfortunately prudence is often an option that has to be given serious consideration.

[JonCris]

I agree Alan but it has to be attempted just as was the argument against bank charges out the begining.

 

Perhaps the threat of further litigation will have a simular effect as the threat of litigation as their is on charges.

 

Nothing ventured...nothing gained

[ADDABET]

Chaps,

 

Some very interesting and useful reading there:D , so am thinking i should sit tight say nothing and pay nothing???

or should i write to them saying this ???

or report them to the Information Comissioners Ofiice ???

or complain to the Trading Standards ???:-|