N1 help re CCA request failure and Default Notice non-disclosure

[zootscoot]

Hi Un1boy,

 

Firstly you might want to remove your account no from above letter.

 

Regarding the debt

 

You need do nothing. Simply not pay. If they continue to chase right and tell them they have failed to comply with CCA request whish is a defence to any court action they may bring under the agreement. Be prepared however, they may bring proceedings against you.

 

Regarding the default

 

Send LBA of your intention to seek court order to get them to remove it.

 

Hope this helps

 

Zoot

[zootscoot]

You'll need to do another CCA against the DCA. Then wait 12 days from when that is received before you stop paying. The CCA needs to be done to the company that currently owns the debt.

 

Do you know if it was HSBC or the DCA that defaulted you? Chances areit is HSBC. If HSBC you need to wait for the thirty days otherwise you'll need to do CCA on DCA and start the process over again.

 

Don't worry about the acknowledgement letter the fact that they have cashed the cheque proves they received the CCA request.

 

Hope this helps

 

Zoot

[zootscoot]

HSBC and NTL are the ones who defaulted me, not the DCA's. So, I am right to send the s10/12 to them?

Yes

 

However, if I want the payments to stop I have to send one to the DCA?

 

Yes a CCA request for a copy of the original signed agreement and the deed of assignment. No need to add the bit about default.

 

Hope this helps

 

Zoot

[zootscoot]

Could I get away with writing to the DCA saying that I have asked HSBC but they haven't supplied it?

 

No

 

Or should I now just send them the request and wait 12 days? No money though, eh?

 

Send the request now. You will need to pay the fee.

Dear XXXX,

 

I do not acknowledge ANY debt to your company. I require you to supply the following documentation before I will correspond further on this matter:

 

1. You must supply me with a true copy of the alleged agreement you refer to. This is my right under your obligation to supply a copy of the agreement under the legislation contained within s.78 (1) Consumer Credit Act 1974 (s.77 (1) for fixed sum credit).

2. A signed true copy of the deed of assignment of the above referenced agreement that you allege exists.

 

You are notified that you are obliged to supply these documents, whether you are the original creditor or not under S189 of the CCA 1974. Non-compliance with my request is a criminal offence under the above Act and will result in a report being submitted to the relevant statutory authorities.

 

As you are aware, a credit agreement that is not properly documented and signed by the customer is totally unenforceable under the CCA and therefore is a complete defence to any court claim that is issued.

 

I enclose a £1 postal order (or cheque) in payment of the statutory fee, PO Serial Number xxxxx.

 

Yours faithfully

xxx

[zootscoot]

I'm going to send the letter to the DCA on Monday.

 

Make sure it is sent either recorded or special delivery. Also do not personally sign the letter. Simply type your name.

 

After 12 the account is 'suspended' they can not enforce the agreement until they come up with the documents. So if they do produce the documents any time in the next 6 years they can then enforce it.

 

After the 30 days they have committed a criminal offence and you can report them to Trading Standards.

 

Are both accounts with the same DCA?

 

If they produce the original signed document this means the debt is enforceable however, if they fail to produce the deed of assignment they have not proved they own the debt so they can not enforce it. They may return it to the original creditor to enforce.

 

Hope this helps

 

Zoot

[zootscoot]

Oh no!! Why is this? I signed the request I sent to the bank and to NTL, is this bad?

 

Don't worry to much although there is a slim chance they could try to forge your documents.

 

So, after 12 working days they cannot ask me to pay anything until they send me the docs?

 

 

Yes thats right

 

Even though after 30 calendar days from the 12 days it becomes unenforcable?

 

After the 30 days they have committed a criminal offence. The agreement is still merely suspended. Although chances are if they have the documents they would have sent them within the timescale.

 

Ok, but I thought that after this timescale the Default had to be removed?

 

Yes they have committed an offence and should remove the default, not entirely sure about the timescale for removing the default.

 

Should I be writing direct to NTL now because the debt is settled?

Yes to get the default removed.

 

 

Do you mean the signed credit agreement when you say "signed document"?

 

Yes

 

So, without the deed of assignment HSBC would have to "reactivate" my accounts and take the debt direct from me?!

 

Its the DCA that need to produce the deed of assignment. If they can not provide it the chances are they will return the debt to HSBC, although they may not. If they do then HSBC have to come up with the original signed document.

 

Hope this helps

 

Zoot

[zootscoot]

Ok this means that your original CCA request to HSBC stands and thus the time scales started from when they received it. So yes the agreement is now unenforceable until such a time as they do supply the documents if ever.

[zootscoot]

I think there is some confusion surrounding the effect of 77/78 CCA. Failure to comply with this makes the agreement unenforceable. It does not cancel the debt.

 

So whilst you can claim back what you have paid un1boy, they can also claim back any benefit you have received.

[zootscoot]

The contract is unenforceable but the debt isn't. They have the right to bring a restitutionary claim for money paid to you which exists outside the contract. The Contract becomes unenforceable under the CCA but the debt remains and can be proved as they will have your statements. The issue is not to do with acknowledging the debt but the fact you have received money and there has been a total failure of consideration.

 

See para 46 in the following case (Wilson v First County) where the contract was unenforceable because it was not executed properly. The court stated that the lender has a right based on the unjust enrichment of the debtor.

 

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

 

If they bring an action based on unjust enrichment and you can not pay you will get a CCJ which you can not remove from your file.

[zootscoot]

Morality does not come into it.

 

He owes the debt both legally and morally.

 

Barracad has offered some good practical advice and warnings regarding the risk that Un1 could face and he should ignore this advice at his peril.

[zootscoot]

Sometimes the tone seems to give the impression " we should give the banks some slack"

 

I don't think that attitude has come across at all. All we are concerned with is that the bank act within law. If the bank fails to supply the documents then that is a matter for Trading standandards to deal with any punishment. It is not means to escape a legitimate debt incurred.

[zootscoot]

I don't think anyone has suggested that getting a default removed which has wrongly been applied is immoral.

[zootscoot]

Hi Un1boy,

 

Whilst there is a duty to provide a copy of the original signed agreement under s77/8 of the Act, I don't think there is a similar provision relating to default notices. S.87 simply states that a creditor can not take certain actions unless a default has been issued, but I can't see anything relating to providing a copy of the notice on request.

 

http://www.passprotect.studio400.me.uk/Consumer_Credit_Act_1974.PDF