Suspect I have no loan agrrement

[Acerfan]

Thanks again joneshousehold, that looks great. Will look into it more a little later as I've just spent most of the day sieving about a tonne of soil for my neglected veg patch, so in desperate need of a long soak in the bath. However, I really like the ammo you've given me & agree that is probably the best way. Will probably pick out the most relevant bits and try to send out letter asap. Would you mind sending me the link to the OFT doc please? I'm sure I've got it somewhere, just not sure where...

Thanks again,

Acerfan

[joneshousehold]

Here you go. Hope you feel better after your bath - nothing worse than gardeners back!

 

http://www.oft.gov.uk/shared_oft/reports/consumer_credit/oft664.pdf

[Acerfan]

Right, this is what I've got - any advice anyone? Constructive criticism welcomed - I don't want to get this wrong!!!

 

Dear XXXXXX

 

Sort Code: XXXXXX Account Number: XXXXXXXXXXXX

 

Thank you for your letter dated XX/XX/XX. However, I would like to draw your attention to my requests for information which remain unanswered. I stated in my letter dated xx/xx/xx that I required information relating to the above account in order to verify your adherence to the Consumer Credit Act 1974. To this end I submitted a Subject Access Request to you under the Data Protection Act 1998. I was most disappointed to find that the staff at XXXXXXXXXXXXX were unable to locate the relevant information clearly stated in my letter. I have since re-submitted my request, but consider this action to be a tactic to buy time. The witholding of this information merely confirms in my mind your failure to comply with the requirements of the Consumer Credit Act 1974, and until and only if this is contradicted by the information requested under the Subject Access Request, I consider the above account to be in dispute and not properly executed.

 

Further to this I must also remind you that you have failed to respond to my query regarding the interest and charges added to my account whilst you were in default. May I remind you that the default period began on xx/xx/xx. Furthermore, until I receive the information as detailed above, I consider the account to remain in dispute.

 

While you argue that you would have complied within the timescale had I visited the branch, I clearly stated in my letters to you and by telephone that I was not able to do so. Furthermore, you did not provide me with the option of visiting the branch until the statutory time had expired, thus you had already entered a default situation and committed an offence.

 

Therefore the Notice of Default which I have received for the above account may not stand. I refer to The Office of Fair Trading Debt collection guidance document Final guidance on unfair business practices July 2003 (updated December 2006) which states that unfair business pracices include:

 

· ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment

 

· failing to investigate and/or provide details as appropriate, when a debt is queried or disputed, possibly resulting in debtors being wrongly pursued

 

· not ceasing collection activity whilst investigating a reasonably queried or

disputed debt.

 

· applying unreasonable charges, for example, charges not based on actual and necessary costs

 

· applying charges which are disproportionate to the main debt

 

· leaving out or presenting information in such a way that it creates a false or misleading impression or exploits debtors' lack of knowledge

 

· asking or instructing debtors to make contact on premium rate telephone numbers

 

· falsely implying or stating that action can or will be taken when it legally cannot

 

· putting pressure on debtors or third parties is considered to be oppressive.

 

· sending demands for payment to an individual when it is uncertain that they are the debtor in question

 

· passing on debtor details to debt management companies without the debtors' informed prior consent

 

· misleading debtors into believing they are legally liable to pay collection charges when this is not the case

 

Furthermore, I consider the demands for repayment of the overdrafts on my XXXXX account and XXXXX account to be a punitive measure and therefore unlawful.

 

In response to your offer to repay the charge of £XX applied to my account on xx/xx/xx, I accept this offer but retain the right to reclaim any further charges applied to my account, particularly those which relate to the disputed account.

 

I request that you refrain from pursuing me for repayment until these questions and concerns are answered and that you contact the collections department to this end.

 

I must also notify you that I have informed Trading Standards of the problems I have encountered with xxxxxxxxxx and will not hesitate to contact The Office of Fair Trading who may call your right to hold a consumer credit licence into question should these matters remain unresolved.

 

Please note that I will not enter into discussion of this matter by any means other than in writing.

 

I await your rapid response.

 

Yours faithfully

[Peterbard]

HI

 

I thnk you are confusing the Data Protection Act with the CCA request under section77-79.

The DPA costs ten pounds and requests copies of all intomation held by them in accordance with your account (statements ets). Failure to do this can be reported to the information commisioners office.

 

The Section 77-78 request which is the one i think you are refering to is made under the 1974 Consumer Credit Act you cannot threaten action under the cca for failure to adhere to a request under the DPA 1998.

You need to alter the first part of your letter

 

Regards

peter

[Acerfan]

Hi Peterbard & thanks for that.

I've already gone through the CCA request & they (finally) complied. What I'm trying to find out through the SAR is if they've complied with sections 63 and 64 - sending copies of agreement & cancellation rights. I didn't receive them, but if they've got proof they sent them then it could be considered that they've complied.

[Peterbard]

Hi

 

I see can i ask what kind of agrement this was fixed amount.running credit etc

 

Peter

[Acerfan]

Fixed amount

[Peterbard]

Hi

Itmeets the criterea for a cencellable agreement,not secured on land ,not signeed on creditors premises, signed way from creditors premises with previous anticedent negotiations.

Sorry if i am repeating what you have alredy gone through but just getting the full picture it might help others.

 

Regards

 

Peter

[Acerfan]

Hi, loan not secured on land and pretty sure not signed on premises, but there is a possibility it was (can't remember 100% as there were 2 agreements - 1 cancelled - and one of them was signed where I worked although I'm pretty sure it was this agreement)

 

What I'm worried about really is if I have grounds to argue the account is in dispute whie I wait for their response to my SAR. If so, then they can't enter a default against me & surely demanding repayment on my other accounts is a punitive measure even if (and I haven't checked yet) it states they can do so in the T&Cs

[Peterbard]

hi

I presume you have gone over your agrement with a fine tooth comb to make sure it's kosher?

 

Petr

[Acerfan]

Sorry - had to go out. I'm pretty sure it's kosher - can email you a copy if you'd like to take a look

[joneshousehold]

Acerfan, sorry I didn't get in touch earlier. I still haven't been able to go through your letter in any detail but it does look OK to me.

 

I don't think I would have even bothered with the SAR. I would have just told them that you have no recollection of the cancellation notice etc and that it would be for them to show they had in court if they were to try and recover any alleged debt so they should produce the evidence to you now if it is available. As you have not seen it, you are of the opinion they did not comply with all the requirements of the Act.

 

Did you get cancellation rights on the document you received, I can't remember?

[Acerfan]

Hi Joneshousehold, yes on the back of the agreement, near the signature box it does say the usual bit about having a right to cancel within a certain amount of time (not specified there) and they will send exact details of how and when.

[joneshousehold]

Well then as you have the right I would write to them and say you can't remember getting the relevant documents so could they show you what and when sent.

[Acerfan]

Thanks again joneshousehold. Have updated letter:

 

Dear XXXXXX

 

Sort Code: XXXXXX Account Number: XXXXXXXXXXXX

 

Thank you for your letter dated XX/XX/XX. However, I would like to draw your attention to my requests for information which remain unanswered. I stated in my letter dated xx/xx/xx that I required information relating to the above account in order to verify your adherence to the Consumer Credit Act 1974. I have no recollection of or evidence that you sent me a copy of my agreement and the cancellation notices under sections 63 and 64 of the Act. It would therefore be for XXXXXXXXXXXXX to show it had in court if you were to try and recover any alleged debt. Should the evidence be available, I ask that you produce it now rather than waste the court’s time. As I have not seen this information, I am of the opinion that you did not comply with all the requirements of the Act.

 

To this end I submitted a Subject Access Request to you under the Data Protection Act 1998. I was most disappointed to find that the staff at XXXXXXXXXXXXX were unable to locate the relevant information clearly stated in my letter. I have since re-submitted my request, but consider this action to be a tactic to buy time. The witholding of this information merely confirms in my mind your failure to comply with the requirements of the Consumer Credit Act 1974, and until and only if this is contradicted by the information requested under the Subject Access Request, I consider the above account to be in dispute and not properly executed.

 

Further to this I must also remind you that you have failed to respond to my query regarding the interest and charges added to my account whilst you were in default. May I remind you that the default period began on xx/xx/xx. Furthermore, until I receive the information as detailed above, I consider the account to remain in dispute.

 

While you argue that you would have complied within the timescale had I visited the branch, I clearly stated in my letters to you and by telephone that I was not able to do so. Furthermore, you did not provide me with the option of visiting the branch until the statutory time had expired, thus you had already entered a default situation and committed an offence.

 

Therefore the Notice of Default which I have received for the above account may not stand. I refer to The Office of Fair Trading Debt collection guidance document Final guidance on unfair business practices July 2003 (updated December 2006) which states that unfair business pracices include:

 

· ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment

 

· failing to investigate and/or provide details as appropriate, when a debt is queried or disputed, possibly resulting in debtors being wrongly pursued

 

· not ceasing collection activity whilst investigating a reasonably queried or

disputed debt.

 

· applying unreasonable charges, for example, charges not based on actual and necessary costs

 

· applying charges which are disproportionate to the main debt

 

· leaving out or presenting information in such a way that it creates a false or misleading impression or exploits debtors' lack of knowledge

 

· asking or instructing debtors to make contact on premium rate telephone numbers

 

· falsely implying or stating that action can or will be taken when it legally cannot

 

· putting pressure on debtors or third parties is considered to be oppressive.

 

· passing on debtor details to debt management companies without the debtors' informed prior consent

 

· misleading debtors into believing they are legally liable to pay collection charges when this is not the case

 

Furthermore, I consider the demands for repayment of the overdrafts on my XXXXX account and XXXXX account to be a punitive measure and therefore unlawful.

 

In response to your offer to repay the charge of £XX applied to my account on xx/xx/xx, I accept this offer but retain the right to reclaim any further charges applied to my account, particularly those which relate to the disputed account.

 

I request that you refrain from pursuing me for repayment until these questions and concerns are answered and that you contact the collections department to this end.

 

I must also notify you that I have informed Trading Standards of the problems I have encountered with xxxxxxxxxx and will not hesitate to contact The Office of Fair Trading who may call your right to hold a consumer credit licence into question should these matters remain unresolved.

 

Please note that I will not enter into discussion of this matter by any means other than in writing.

 

I await your rapid response.

 

Yours faithfully

[Peterbard]

Hi

 

I was just about to raise the same point as Jones (soory con't now how else to address you)

The box on your form shoud read:

 

YOUR RIGHT TO CANCEL

Once you have signed this agreement, you will have for a short

time a right to cancel it. Exact details of how and when you can

do this will be sent to you by post by the owner.

 

A copy of this document should have been sent with yur 77 request as per

"shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it,"

If not they are in default of the act and you do not have to request using the Data Protection Act.

 

Also if the unexecuted agrement signed by you was sent to the creditor tor signature under 63(1), then the copy of the executed document sould have been sent by post 63(3).

[iconoclash]

Quick question - for me and anyone else getting loan agreements 'thrown out' as not in prescribed form (or other reasons) - once this is established, can the money paid on said agreement be claimed back plus interest at 8 % and use usual template for those sums ?? Thanks

[Peterbard]

Hi

The loan agreement can either be put in default buy virtue of the creditor not corresponding to a cca77-78 request, or can be made unenforceable due to the fact that it was not executed correctly,the first bieng post contractual the latter being a precontractual error.

 

If the agreement is in defaulf ie. after 12 days of isuing a post contractulal section 77 request they hae not produced a true copy of the orriginal. the cannot pursue any payments or add any interest to the account until the default is lifted by production of the document.

 

If you obtain a defective copy or do not get one at all you can say that the agreement is unenforceable because it mever met the precontractual terms required for it to be correctly executed.

In this case you can apply for refunds of interest and monies paid on the account, if you wish to do this it is better to apply to the court to have the debt rendered unenforceble first although not essential as the burden of proof rests with the creditor to show a correctly executed agreement exists aand not on you to prove it doesn't.

 

In most cases ( although othes may dissagree) the judge will stop any further enforcemnt of the debt effectively canelling it but usuall not refund any money paid up to the date of the default.

 

Regards

Peter

[iconoclash]

Thanks Peter - so just to confirm - in my case where a CCJ has been entered against a document that I now know to be unenforceable as it falls outside of the CCA 1974 part 5, section 60 (1) (5) plus parts of 61 and 62, I apply for CCJ to set aside as based on a 'false' document - then possibly? apply for costs afterwards, i.e., what has been paid on said agreement plus court fees I had to pay in same matter. ?? thanks....

[Peterbard]

Hi

Yes

I didn't know you hac aCCj on the account not that it makes any difference.

You could say that the crditor was in default under secton 77 of the cca and did not produce for documention essential to preperation of the defence.

 

It would be wouth it just to imaginre the look on the face of the creditor when he recieved the notification of your "set asside" notice.

 

Best regards

 

Peter

[un1boy]

Hi

Yes

I didn't know you hac aCCj on the account not that it makes any difference.

You could say that the crditor was in default under secton 77 of the cca and did not produce for documention essential to preperation of the defence.

 

It would be wouth it just to imaginre the look on the face of the creditor when he recieved the notification of your "set asside" notice.

 

Best regards

 

Peter

 

Peter, can you PM me details of how to request a removal of a CCJ entered when most of the balance was unlawful charges and/or they have no CCA?

[maybelline]

Thanks Peter - so just to confirm - in my case where a CCJ has been entered against a document that I now know to be unenforceable as it falls outside of the CCA 1974 part 5, section 60 (1) (5) plus parts of 61 and 62, I apply for CCJ to set aside as based on a 'false' document - then possibly? apply for costs afterwards, i.e., what has been paid on said agreement plus court fees I had to pay in same matter. ?? thanks....

 

Campari2, thats very interesting because I have been advised on another thread that I cannot reclaim the money already paid out, even though unenforceable?

 

(copied over from other)

 

Hi Maria

 

I can't see any court accepting that there NEVER WAS a contract between carinas and the creditor. There will be details of the loan/credit card repayments and/or goods financed.

 

The court will not however be able to make an enforcement order because the creditor cannot PROVE what terms were agreed.

 

It's possible that there is an argument for the refund of any interest paid because of no proof of terms, but IMO the principle of the agreement, e.g. the loan/credit/goods supplied is not reclaimable.

 

I'd love to be proved wrong though!!

 

Regards, Pam

 

(hope this is ok, just trying to get my head round this, no offence - maybelline)

[Peterbard]

Hi

The loan agreement can either be put in default buy virtue of the creditor not corresponding to a cca77-78 request, or can be made unenforceable due to the fact that it was not executed correctly,the first bieng post contractual the latter being a precontractual error.

 

If the agreement is in defaulf ie. after 12 days of isuing a post contractulal section 77 request they hae not produced a true copy of the orriginal. the cannot pursue any payments or add any interest to the account until the default is lifted by production of the document.

 

If you obtain a defective copy or do not get one at all you can say that the agreement is unenforceable because it mever met the precontractual terms required for it to be correctly executed.

In this case you can apply for refunds of interest and monies paid on the account, if you wish to do this it is better to apply to the court to have the debt rendered unenforceble first although not essential as the burden of proof rests with the creditor to show a correctly executed agreement exists aand not on you to prove it doesn't.

 

In most cases ( although othes may dissagree) the judge will stop any further enforcemnt of the debt effectively canelling it but usuall not refund any money paid up to the date of the default.

 

Regards

Peter

 

Hi Campari2

 

Seems funy to be quoting myself but if you read the highlighted bits you will see i agre with the lovely maybaline.

I have just posted my thoughts on recalaims on the Consumer credit act agreements if you want to take a look

 

Best regards

 

Peter

[Acerfan]

Hi Peterbard and thanks for your excellent point about the cancellation rights not being included. I don't think though that I asked for all documents though when I sent the CCA request. However, would this be implicit in that it asks for compliance under section 77 which states 'and any document referred to in it' or am I hoping for too much?

[iconoclash]

Campari2, thats very interesting because I have been advised on another thread that I cannot reclaim the money already paid out, even though unenforceable?..........

 

Hiya - I think Peter is saying that this agreement is now and has always been - from inception - precontracutal **** is unenforceable, not worth the paper its written on and any monies paid against it are due back, as it shouldnt exist, has no worth, is defunct, dead as a parrot....