URGENT HELP NEEDED RE: cca request

[peterq2]

Hi guys,

 

I am hoping one of you clever people can help me, as I am really panicking..

OK to summarise (and apologies in advance if this is a long winded post)

 

On 8th January I sent the following letter to Blackhorse :

 

8th January 2007

 

Agreement No: **********

I would be grateful if you could send me a true copy of the above agreement.

 

I understand that under the Consumer Credit Act 1974 (Sections 77-79), I am entitled to receive a copy of my ‘signed credit agreement’ on request.

I enclose a payment of £1.00 which represents the fee payable under the Consumer Credit Act.

 

Thank you for your time spent in dealing with this request.

 

Yours Faithfully

**********

 

I sent the letter via recorded delivery which they received on 10th Jan and they also cashed the enclosed cheque of £1.

Since then I have heard nothing from them regarding my request, so after the initial 12 *working* days I ceased any payments on the account (pending receipt of the requested documents).

(Did I do that correctly? I mean, should I have continued to make the monthly payment even though they didn't comply with my cca request)?

Anyhow I have received a couple of letters saying your agreement is in arrears, please pay immediately to avoid any charges being applied etc, but no mention of my cca request.

They have also been ringing my mobile and house phone approx 4 times or more practically every day trying to get hold of me (I have been avoiding the calls and asked my partner to tell them that they should put any communication in writing as she was fed up getting their phone calls asking for me numerous times of the day)...

 

As far as I know they have defaulted by not sending me the documents within the 12 working days and if they don't comply within a further calendar month from then, they will have committed a criminal offence (is that correct)? The deadline for them to comply is 26th Feb, so they still have approx 2 weeks to do so...

 

So here's why I am now panicking: I have received the following letter from them today (please excuse the lengthy text as I can't get the scanner to work)

 

Dear Mr *********

IMPORTANT - YOU SHOULD READ THIS CAREFULLY

This is a default notice served under S87(1) of the consumer credit act 1974. It relates to your agreement with us numbered *********. The agreement says that you must make all payments on their due date.

You have broken your agreement as there are arrears of £126.24 To remedy your breach you must pay us these arrears before 25th February 2007.

IF THE ACTION REQUIRED BY THIS NOTICE IS TAKEN BEFORE THE DATE SHOWN NO FURTHER ENFORCEMENT ACTION WILL BE TAKEN IN RESPECT OF THE BREACH.

IF YOU DO NOT TAKE THE ACTION REQUIRED BY THIS NOTICE BEFORE THE DATE SHOWN THE FURTHER ACTION SET OUT BELOW MAY BE TAKEN AGAINST YOU (OR A SURETY)

if the arrears are not paid to us before 25th February 2007 days we will:

(a) Demand payment of the outstanding balance of £6,061.14

(b) Enforce our rights to charge interest on that balance until it is paid

© Enforce our rights under the terms of the agreement against you

If you do not pay the arrears before that date this notice is to be treated as our demand for payment of the balance.

IF YOU HAVE DIFFICULTY IN PAYING ANY SUM OWING UNDER THE AGREEMENT OR TAKING ANY OTHER ACTION REQUIRED BY THIS NOTICE, YOU CAN APPLY TO THE COURT WHICH MAY MAKE AN ORDER ALLOWING YOU OR ANY SURETY MORE TIME.

IF YOU ARE NOT SURE WHAT TO DO, YOU SHOULD GET HELP AS SOON AS POSSIBLE FOR EXAMPLE YOU SHOULD CONTACT A SOLICITOR, YOUR LOCAL TRADING STANDARDS DEPARTMENT OR YOUR NEAREST CITIZEN'S ADVICE BUREAU.

Yours sincerely

David Kennedy

Black Horse Ltd

Eeeep, what do I do now guys??? Shall I pay the arrears? shall I contact them and explain that I am not disputing the debt I just want to clarify the interest rates and terms of that debt? and require them to comply with my original cca request? or should I just wait it out?

I am surprised that they are quoting the Consumer credit act to me when they have not complied with my request under the same act!!! and I am suspicious of the deadline they have given me which is one day short of MY deadline to them (i.e 12 working days plus one month from my initial request)!

 

They also put in a supplemental page with the above letter stating that I have to pay a £25 unpaid charges fee in addition to the outstanding amount owed!

 

As an aside the debt in question is a joint loan taken out with my ex girlfriend, when we seperated I took over the debt, and asked Blackhorse to put the debt in my name only (they said they could not comply) but would make a note of the fact that I am the one paying the debt and not my ex.

This is the reason I want copies of the original agreement as I want to check out my position regarding my obligation and theirs in such an event that one of the joint lenders defaults etc

 

Please please help as that letter has really rattled me and I am starting to really panic!

 

Thanks guys (and again sorry for the mammoth post)

 

Pete

[peterq2]

Any advice gratefully received guys, I am bricking it here!!! :o

[peterq2]

Sorry to keep on bumping this thread but I desperately need some input from you clever peeps .... pretty please?

[gizmo111]

This is the reason I want copies of the original agreement as I want to check out my position regarding my obligation and theirs in such an event that one of the joint lenders defaults etc

 

As this debt is in joint names you will both be liable - which in theory should mean that your ex has been defaulted also.

Just as a sid ethought - if you only wanted that info why did you stop paying?

[peterq2]

Hi m8 thanks for the response, I stopped paying as the 12 working days had elapsed as I had read on a thread on here (a long thread which I can no longer seem to locate) that you should stop paying after that until they send the requested document, because they have defaulted at that point.

 

I wonder if I should try to get in contact with my ex and ask her to also send a cca request?

[gizmo111]

What action you take will depend on what you aretrying to acheive - what is it you want to acheive from requesting the agreement? I don't see any point in your ex requesting it as well - once is sufficient.

[peterq2]

Hi m8, I want to read all the small print and interest charges etc Ideally I would like my ex' name removed from the agreement as per my request as I want no further financial connections with her, I also want to check whether I am held responsible for the entire debt (even though she has relinquished her interest in the whole affair) I don't mind paying the entire debt IF they agree to remove her name from it but I am annoyed that I will be paying the entire loan back if she remains named on it. I want to cut all ties with her (financially speaking) and if they wont agree to remove her name from the loan (even though they acknowledge that it is me now paying it without any imput from her then I don't see why I should pay the full amount and so I want to read the terms of the loan to see if in fact they are acting in the correct way, in a joint loan if one person stops paying should the remaining person have to pay the full loan?

 

This is probably coming out wrong, in a nutshell I don't mind paying the entire amount IF they remove her from the loan, but if they aren't willing (or able) to do this then surely I should only have to pay back my half of the loan? This is why I want the paperwork to read through it in its entirity to see in her absence am I fully responsible for the entire amount.

 

So do you think I should pay the last months payment to bring up to date the loan and stop any "action" being taken against me as in their letter of today or am I correct in my assumption that as they have defaulted under the terms of the cca request that I should halt any further payments until they conform?

 

*very stressed atm*

[gizmo111]

Basically as the loan was in joint names they can come after either one of you - they will keep her on the agreement as this gives them a bit extra insurance if you default.

Personally if you ahve a good credit record, have paid on time are not disputing the amount you owe, then I would catch up withthe arrears and ask for the default ot be removed.

I would alsolook at ways of refinancing this into your own name depending on how long you ahve left and the balance - eg could you apply for a 0% credit card - the longerthe term the better and transfer the balance - or a lower rate loan that you could overpay to clear the debt quicker.

Whilstthis loan remains in joint names you wil lretain a financial association with your ex.

[peterq2]

My credit is shot at the moment, I have defaulted on my HSBC credit card (self employed and came out of work temporarilly over christmas and stupidly fell behind with the credit card payment and when I rang up HSBC and asked if they'd accept a lower payment for a couple of months and they asked why I told them I had come out of work and they immediately closed the account and I had to cut up the card and return it)!

So I don't think I have any way of getting any further loans / credit etc which is why I am trying to sort out all my finances now that I am back in work, the only debt that I haven't fell behind with is the mortgage and even that has been a struggle!

I absolutely refuse to get any loans secured on the house so for the time being I am a bit bogged down with debts (robbing peter to pay paul lol)

I'd love for Blackhorse to say ok you just pay your half but somehow I doubt it, and so I am being a bit stubborn thinking why am I having to pay her half lol like I said if they removed her name from it I'd probably feel different but as of now I am in that mindset of WHY ME! lol

Who knows maybe I'll win the bluddy lotto and none of it will matter lol (it'd probably help my chances if I ever remembered to buy a blinkin ticket)

 

I am also still peeved at Blackhorse quoting the cca at me when they themselves are obviously not following its rules - that's banks for you though m8 one rule for us and all that!

[joneshousehold]

Whilst they are in default of S77-79, they cannot enforce the agreement so they could not issue any default notice after the 12 working days. I calculate that to be 26th January or so. If you only received the letter today, it must have been issued whilst they were in default. I cannot see that this is lawful as it is an attempt to enforce an agreement that they are already in default on (and they cannot enforce).

 

Having said all that as gizmo says you need to be sure of what you are trying to achieve here. I cannot give you any advice on the name removal. What I would say is that now the creditor is in default they cannot charge you interest or apply any other charges. Until they provide an agreement that exactly complies with the Act the position is unchanged. As it stands you do not have to pay anything and if you are of a mind to make the creditor pay for their actions then you are potentially a debtor of an unenforceable debt that will never be rectified by the creditor.

 

If this is a credit card account you may also be able to identify other default actions by the creditor under S85 and S63. You need to look at this thread

 

http://www.consumeractiongroup.co.uk/forum/general/33174-consumer-credit-act-agreements.html

 

I suggest you get a strong coffee before you start as it's a monster of a thread.

[peterq2]

Thanks for that m8, it's not a credit card its an unsecured loan.

 

I'm just a bit shaken by the 'tone' of todays letter so I wanted to clarify my position (legally speaking) as I don't want to be the one to break the rules as it were,

Do I send them a follow up letter stating that they still haven't complied with my request or just wait and see if they do so before hoiking my ar*e into court?

[gizmo111]

OK peter now I see where youre at - you are doing absolutely the right thing by keeping your mortgage and I hope council tax up to date. Next work out your utilities and other essentials,and then your surplus income divide pro rata between your creditors and write to them and make an offer of this as a monthly payment and ask them to freeze interest and payments - some will - some won't. do not offer a penny per month more than you can afford even if you can only afford £1 per month.

If you have an overdraft - open another account for your income and treat your overdraft as just another debt- do not open an account with anyone you owe money to.

As to the loan - up to you how you deal wit hit - you have the option of making pro rata pyments as above - or as joneshh above says at present the debt is unenforceable.

Also have you charges to claim on these accounts - get the ball rolling on these.

Good Luck

[peterq2]

Thanks m8, unfortunately I am behind with the council tax also so that's stressing me out big time!

I have wrote to HSBC asking if they will freeze the interest on the credit card and if they will accept a token payment of £20 per month (to be reviewed in 6 months) but as I owe them over £2600 I suspect their answer will be a resounding NO when they reply!

At the moment my first priority will have to be the council tax which I should be able to get sorted (fingers crossed) and of course the mortgage, but whilst money is tight the wolves are at the door and I am starting to go under!

I will download those forms from the debt management thing and try working out the budget, and make all the creditors an offer, but I am worried that they may insist on securing the presently unsecured loans on the house, and that terrifies me!

There are no charges to reclaim I don't think, I will have a look but I am pretty sure that there are none so thats not really an option.

I am probably clutching at straws with this cca request but I had kind of hoped that the debt would be able to be halved and they could pursue her for her half seperately (however if I ever get the requested forms from them I suspect that in the small print it may well say that I am responsible for 100% in her absence) *sigh*

[joneshousehold]

Peter, as gizmo says, now I see where you are at. I assume from what you say you have other debts too. I would suggest you draw up that list of income and expenses as gizmo suggest. I would also send a CCA letter to all your creditors where CCA applies (basically all credit cards and loans but not an overdrawn current bank account). Before you offer anything to any of them make sure they have an enforceable agreement as they could try to say by making an offer you are acknowledging existence of the debt. Whilst you are waiting for the replies get some research done on the CCA and read that thread I gave you a link to.

 

You have two options really, the advice from gizmo which is the usual one for a debtor in difficulty. It's the safest option and probably the one that has a greater recognition of moral responsibility. The other is the approach I suggest where you could get at least some of the debts rendered unenforceable. It is less safe but if the creditor can demonstrate the existence of an enforceable agreement then the debt is reinstated and you can then revert to gizmo's advised approach.

 

It is your call as to how you approach this. If you need advice just post on here and I will read it within a day or so. You will also find others chip in too when they see your thread so keep posting to bring it back to the top of the pile.

 

Good luck

[peterq2]

Thanks m8 as far as the HSBC credit card goes I don't think I can do a cca request as that was all done electronically so I know what my terms and conditions were on that score, I have no other credit cards but I do have a further 2 loans with Blackhorse however they are finance loans for the car (its a private hire taxi so I can't give that up as there goes the job) and also the remainder of a loan for the previous car which was stolen and the insurance didn't pay out enough to cover the entire cost of the finance - just the book price which I think they got wrong but according to the financial ombudsman service they were within their rights to pay ot the amount they did (Nothing but bad luck since early last year for me m8)!!!

which is why I am struggling not to mention the insurance payments accountants fees etc (it's a minefield)

 

I think I will sit down this weekend and get out all the debts and try to make sense of it all once and for all as burying my head in the sand or chasing payments is not really working!

 

Thanks for the imput guys, it has helped to get it all written down

 

Pete

[gizmo111]

Peter, they can't automatically make an unsecured debt secured without court action which you will know about. Don't worry if they won't happily accept your lower offer of payment just continue to pay what you can afford even if it is a £1 per month. make the council tax arrears your priority as these do have repurcussions - would it help to just pay interest on your mortgage for say 6 months to get you back in control.

I'm afraid there is practically no chance you wil lget the loan halved, and stick to your gut instinct so not take out secured loans.

[joneshousehold]

Glad we have been of some help and really the best thing you can do is sit down and take a good look at everything you have. You will have to look it in the face and not just hope it will go away - it won't.

 

You have got the input from two different people with a different approach and in that respect you have a chance to look at all the problems in the light of both bits of advice. I still think the CCA approach is worth a shot for some of the debts. Have a look at the thread I gave you a link to and make a note of the relevant bits (it goes on rather a lot) plus another one here

 

http://www.consumeractiongroup.co.uk/forum/other-institutions/10900-loan-company-cannot-supply.html

 

The better informed you are the better you will be able to make the right decisions for you.

 

Let us know how you get on.

Cheers

[peterq2]

Thanks guys, I have read most of that thread before but will set aside saturday afternoon and a pot of strong coffee and get stuck into it again.

I have calmed down a tad now that I know whilst they are defaulted under the cca rules they can't enforce any of their threats, you'd think that a major financial institution would be a bit more law abiding and quick to comply considering that they like to quote the cca in their own letters to customers... *deep breath and calming thoughts* must stop thinking about it too much as am getting annoyed all over again!!!!

Thanks again to you both for your imput, and I will keep you updated as to the outcome.

If nothing else I have a bit of breathing room until they supply the paperwork and so I can concentrate on the other bills.

Pete

[peterq2]

Ok guys any help now appreciated...

 

On 22 Feb I sent the following letter to Blackhorse:

 

-----------------------------------------------------

 

Agreement Number: **********

22nd February 2007

 

Dear Sir / madam.

 

I am most disappointed with your failure to comply with my Statutory Request under Section 77 of the Consumer Credit Act 1974 on 8th January 2007.

 

The Consumer Credit Act allows 12 working days for this request to be carried out before your company enter into a default situation. If the request is not satisfied after a further calendar month, your company commits an offence.

 

These time limits expired on 25th January 2007 and 22nd February respectively.

 

As I’m sure you are aware, failure to comply with this request is punishable on summary conviction with imprisonment or a fine not exceeding level 4 on the standard scale, or both.

 

As you have been unable to provide me with a copy of an agreement which complies in every respect with Section 61 of the Consumer Credit Act 1974, I do not acknowledge this debt to Blackhorse and do not consider that I have any obligation to make payments to you.

 

Any default notices or adverse comments your company has recorded on mine or my associates’ credit reference file should be immediately removed.

 

Additionally any monies I may have paid to your company should be returned to me forthwith.

 

Failure to respond favourably to this letter within seven (7) days of receipt will result in litigation being commenced against your company without further notice. Additionally, complaints will be registered against you with Trading Standards, the information commissioners’ office, and the Office of Fair Trading.

 

Furthermore, you have telephoned me both at home and on my mobile repeatedly seeking to discuss the alleged debt with me, I informed your operatives that I will only deal with this matter in writing (so if required I could produce the relevant evidence in court) but the telephone calls continue.

 

I need not remind you that further attempts to discuss the matter with me or to seek payment from myself in this manner would be an act of criminal harassment.

 

Under the Protection from Harassment Act 1997 s 1. A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months, or a fine not exceeding level 5 on the standard scale, or both.

 

I will not enter into any telephone discussions on this matter.

 

I await your rapid response.

 

Yours faithfully,

 

--------------------------------------------------------------------------

 

Today I received a letter from their legal dept saying as I had not made any payments on the above account recently and the account was in arrears they intend to take legal action against me if I do not pay the arrears within 10 days!!!

 

The letter is dated 27th Feb so they already have my letter since 23rd feb and obviously are completely ignoring it as there is no mention of it or the cca request / the fact they defaulted etc

 

So what do I do now? obviously I always intended to pay the thing but wanted to buy myself a few weeks whilst they sorted out the default situation and my cca request.

 

Any ideas as to what my next step is and any hints on what to write in reply or if i should not bother to reply???

 

Very scared atm

 

[joneshousehold]

It sounds like a standard letter although perhaps someone with experience of Blackhorse can confirm this. I would write back and refer them to your earlier letter. This is probably more a case of the left hand not knowing what the right hand is doing!

[peterq2]

good idea I think I'll put a copy of both letters cca request and the one above and see what they have to say on the matter .. thanks m8

[peterq2]

Dear Sir,With regards to your letter of 27th February, might I draw your attention to the fact that the debt in question is currently unenforceable due to you clients flaunting of the law and ineptitude in furnishing me with a properly executed copy of an agreement under the rules of the consumer credit act. I have enclosed both letters from myself to your clients of which I have proof of delivery, and also the fact that they cashed the cheque for payment to supply me with the requested documents but they never did comply with my request. They didn’t even show me the courtesy of replying to say they had received the request.If this matter does go to court then I have full defense in that Blackhorse have now committed an offence in not supplying me with the requested documents. After the initial 12 working days of them receiving my request no further action could lawfully be taken i.e. the extra charges they kept adding etc as they were at that point in a default situation. I am not an unreasonable person, but will not sit idly by, whilst being threatened with court action by a company who has so glibly disregarded the law in their dealings with me.I await your response with interest as I am now considering my options and will be drafting letters to the following bodies for their consideration Trading standards, the information commissioner, the office of fair trading, and the FSA.Yours Sincerely

[joneshousehold]

This is how I did ours

I wrote to you by recorded delivery on xxx asking for a copy of the agreement under S77-79 of the Consumer Credit Act 1974, enclosing a fee of £1. This letter was delivered and signed for on xxx according to the Royal Mail.

 

The Consumer Credit Act allows 12 working days for this request to be carried out before your company enter into a default situation. If the request is not satisfied after a further calendar month, your company commit an offence. These time limits expired on (12 day limit here) and (plus 1 month limit here) respectively. I have still not received all the documents as required by S77/8 (depending on the agreement) Consumer Credit Act 1974. I am of the opinion that an offence has now been committed.

 

As you are no doubt aware subsection (4) states: (note this is S77 - S78 is subsection 6 I think)

 

If the creditor under an agreement fails to comply with subsection (1)—

(a) He is not entitled, while the default continues, to enforce the agreement; and

(b) If the default continues for one month he commits an offence.

 

Therefore as at xxx (first date above) this account became unenforceable at law and it is now my intention to refer this matter to the enforcement authorities. As an offence of this nature may have an impact on your ability to hold a credit licence, it is important that you give this letter your immediate and prompt attention.

 

In addition this account is no longer enforceable and payments to it have therefore ceased immediately. You cannot take any action to collect payment and this includes telephoning me. Any default notices or adverse comments your company have recorded on our credit reference file should be immediately removed.

 

Additionally any monies I may have paid to your company should be returned to me forthwith.

 

Failure to respond favourably to this letter within seven (7) days of receipt will result in immediate litigation being commenced against your company without further notice.

 

I await your rapid response.

 

Can't remember who posted this before. Just adapt it to suit. Otherwise your letter is OK, it's just this is more measured and probably more forceful as a result

[peterq2]

thanks m8 I agree your letter is more formal, i will use that as a template instead.Thanks again

[peterq2]

just a question you know this bit "In addition this account is no longer enforceable and payments to it have therefore ceased immediately. You cannot take any action to collect payment and this includes telephoning me. "would that include that they aren't allowed to send threatening letters ie like the one i received today, threatening me with court action if I don't pay the arrears within 10 days?