No CCA agreement or Unenforceable - take them to court?

[noomill060]

The penalty charge issue is evidence of this. Despite knowing these are unenforceable, they enforce alleged debts which consist wholly of these charges everyday.

 

Only when challenged do they relent.

 

Same in cases where there is no credit agreement.

 

Its a scandal, but thats the way they work.

 

Its a war between them and us. In a war where they believe they are all powerful the best appraoch is to do what they least expect.

 

Attack them with the only force greater than them, the Law.

 

Force them on to the back foot, keep them having to justify themselves and finally put them in a position where they have no option but to capitulate in their own self interest or face humiliation in Court.

[un1boy]

Dont kid yourself.

 

The only thing that will make them sit up and take notice is the prospect of having to go in front of a judge.

 

There are professional business people directing this from the top who will exploit any weakness they perceive in you for their own profit.

 

It is clear from the OFTs attitude of appeasement and their statement that a simple civil remedy for a continued default of s.78 is available seems to signify that this should be attacked through the civil courts.

 

But it wont get as far as Court. Do you really think they would willingly go in front of a judge knowing they were going to lose?

 

I am more than happy to take them to court now, not a problem at all - just need an idea on POCs that's all.

[hisholinessthepope]

Thanks for all the posts, very pleased to have you all in.

 

I have two accounts with no agreement (in writing from the creditor) and two other accounts that have sent agreements that are pathetic.

 

 

The first of these I intend to tackle is just awaiting the conclusion of court action by me to enforce a S.A.R - (Subject Access Request) against the creditor. I want to know as much as possible about what they have before I kick off with the unenforceability.

[hisholinessthepope]

I am more than happy to take them to court now, not a problem at all - just need an idea on POCs that's all.

 

I am preparing POC at the moment, draft number 1 as it were. I will happily PM them to you un1boy when they are done. Am sure they will need careful consideration and revamping several times.

 

I will not post them openly until they are filed. But if anyone else feels they could contribute looking over them with revisions and getting them right, let me know.

 

Equally if anyone has their own POC, I would be pleased to see them for consideration, comparison and plagerising!

 

Regards

[un1boy]

I am preparing POC at the moment, draft number 1 as it were. I will happily PM them to you un1boy when they are done. Am sure they will need careful consideration and revamping several times.

 

I will not post them openly until they are filed. But if anyone else feels they could contribute looking over them with revisions and getting them right, let me know.

 

Equally if anyone has their own POC, I would be pleased to see them for consideration, comparison and plagerising!

 

Regards

 

 

Pope, I'll PM you my email address.

[noomill060]

We cannot fail.

 

We clearly have God (or at least his Earthly representative) on our side.

[un1boy]

lol

[noomill060]

Here is something that I've been thinking about:

 

1. The Claimant has an Account with the defendent. a/c number XXXX (the Account)

 

2.During the period in which the Account has beenoperating, the Defendant debited numerous charges to the Account in respect of interest charged for money borrowed and purported breaches of contract on the part of the Claimant and also levied interest upon the charges once applied. The Claimant understands that the Defendant contends that the charges were debited in accordance with the terms of an alleged contract between itself and the Claimant.

 

3. The Claimant asserts that no such contract in compliance with the Consumer Credit Act 1974 has ever existed between the Claimant and xxxx Bank PLC which would allow the defendent to do so.

 

4. Accordingly the Claimant claims:

 

a) the return of the amounts debited in respect of interest and charges in the sum of £xxand any interest charged thereon;

[noomill060]

A bit rough round the edges, but its a start.

[wednesday1867]

Thanks for the heads up your holiness

Im in a quandry regarding a cca i sent to MBNA, goes criminal in roughly a fortnight.

I do want to have a right go at MBNA, see my thread hehe http://www.consumeractiongroup.co.uk/forum/mbna/84974-wednesday1867-mbna.html

I will be watching this with baited breath tho.

Good Luck

[standingupformyself]

Hi your Holiness, got your PM and am subscribing to this thread.... Think both of my Credit Cards are in default of CCA, MBNA and Barclaycard... at this point I am continuing to claim charges back from them, with contractural interest.. but thoughts on some threads are the possibility of using lack of CCA to remove defaults, and even the possibility of reclaiming back all interest paid to them...... But I am reading and learning all the time.... keep us posted x

[Peterbard]

HI

I think we should take some affirative action about the discraceful none action of the OFT.

What i am suggesting is a letter of complaint to the DTI with a few examples on board.

I would like this to be a joint effort so what i have done is produce a rough draft document and invite modifications and especially cases that comply in the form of X verses y defaulted such adate reprted to OFT sucha date no action taken .

just copy the document and post any recomendations to changes in tthe form of the letter and esecially your experiances with the OFT I would hope to get this in the post by the end of the week preferably sooner

 

Best regards

and here it is Peter

 

 

Date

 

Ian McCarty DTI

 

Ref: refusal or inability for the OFT to enforce defaults and offences of the consumer credit act 1974.

 

Dear Sirs

 

We write to you in a matter of great concern regarding the above.

Currently there are a number of creditors that blatantly disregard the requests made by members of the public to provide information as regulated by section180 of the act.

We have a number of records of cases where creditors have failed to comply with the copy of documents regulations in particular sections 77-78 and are currently in the position where they are not only in default by none compliance but have committed an offence.

The designated procedure in these cases is to report the offence to the OFT for investigation and subsequent prosecution if required.

We find however that the response we receive from the OFT is that they cannot afford to pursue the action.

The result of this is that the creditor continues unlawfully to pursue the debt.

A brief example of the cases currently in this position detailed below

 

Example

• 12 May 2007: Request received by capital one for copy documents undet section 77.
  
• 26th May 2007:No response after first statutory period 12 working days they are now in default.
  
• 26th May2007 Offence reported to OFT 25th May Case Number ********
  
• Creditor continues unlawful pursuance of debt.
  
• 26th June 2007:Stil no response From Capital with correct documentation.
  
• 27th june the creditor have now committed an offence this is reported again to the OFT.
  
• No action taken by OFT due to shortage of recources.
  
• Creditor continues to unlawfully pursue agreement irrespetive of the legisation.

Obviously your details will be different you may not have a case nimbler or you may not have reported until after the full 42 days just adapt where necessary.

You can PM me and i will add the details to the letter or Copy and paste this posting back on the thread with your details on it and I will combine it with the others, (with the posters permission) before i send the completed letter. I will post it in full in case the are any alteration people want to make.

If there are any details you want to send but do not want posting let me know and i will leave them off the final posting but include them in the letter.

I do not want anyone to take offence at me doing this off the cuff but we need to do something.

 

Best regards

Peter

__________________

[angel49]

subscribing

Hi,

would appreciate comments/views on this little saga. Thanks.

 

http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/80392-london-scottish-still-paying.html?highlight=london+scottish

[humbleman]

 

Date

 

Ian McCarty DTI

 

Ref: refusal or inability for the OFT to enforce defaults and offences of the consumer credit act 1974.

 

Dear Sirs

 

We write to you in a matter of great concern regarding the above.

Currently there are a number of creditors that blatantly disregard the requests made by members of the public to provide information as regulated by section180 of the act.

We have a number of records of cases where creditors have failed to comply with the copy of documents regulations in particular sections 77-78 and are currently in the position where they are not only in default by none compliance but have committed an offence.

The designated procedure in these cases is to report the offence to the OFT for investigation and subsequent prosecution if required.

We find however that the response we receive from the OFT is that they cannot afford to pursue the action.

The result of this is that the creditor continues unlawfully to pursue the debt, at times threatening to issue and register defaults at the CRA's causing undue stress and anxiety to the debtor/s.

 

We believe that you should procure an undertaking form such creditors that they will not be resuming collection activity on any account which they have defaulted upon, until such time as they have complied with any compliance under the act as requested by the debtor/s

A brief example of the cases currently in this position detailed below

 

Example

• 12 May 2007: Request received by capital one for copy documents undet section 77.
  
• 26th May 2007:No response after first statutory period 12 working days they are now in default.
  
• 26th May2007 Offence reported to OFT 25th May Case Number ********
  
• Creditor continues unlawful pursuance of debt.
  
• 26th June 2007:Stil no response From Capital with correct documentation.
  
• 27th june the creditor have now committed an offence this is reported again to the OFT.
  
• No action taken by OFT due to shortage of recources.
  
• Creditor continues to unlawfully pursue agreement irrespetive of the legisation.

Best regards

Peter

__________________

 

My suggested addition in red

[hisholinessthepope]

Excellent letter Peter and is a way forward that I think should be followed.

 

At present I do have the OFT investigating one of my no agreement creditors. Though at present they are only at the preliminary stage.

[Peterbard]

HI

Thank H

When we get a few more contributers i will post the letter in full before sending it.

Regards

Peter

[hisholinessthepope]

Peter,

 

would you be interested in looking over a copy of my POC rev A as it were? or could you recommend any other CAGers?

 

Regards

[Peterbard]

HI

I think we should take some affirative action about the discraceful none action of the OFT.

What i am suggesting is a letter of complaint to the DTI with a few examples on board.

I would like this to be a joint effort so what i have done is produce a rough draft document and invite modifications and especially cases that comply in the form of X verses y defaulted such adate reprted to OFT sucha date no action taken .

just copy the document and post any recomendations to changes in tthe form of the letter and esecially your experiances with the OFT I would hope to get this in the post by the end of the week preferably sooner

 

Best regards

and here it is Peter

 

 

Date

 

Ian McCarty DTI

 

Ref: refusal or inability for the OFT to enforce defaults and offences of the consumer credit act 1974.

 

Dear Sirs

 

We write to you in a matter of great concern regarding the above.

Currently there are a number of creditors that blatantly disregard the requests made by members of the public to provide information as regulated by section180 of the act.

We have a number of records of cases where creditors have failed to comply with the copy of documents regulations in particular sections 77-78 and are currently in the position where they are not only in default by none compliance but have committed an offence.

The designated procedure in these cases is to report the offence to the OFT for investigation and subsequent prosecution if required.

We find however that the response we receive from the OFT is that they cannot afford to pursue the action.

The result of this is that the creditor continues unlawfully to pursue the debt.

A brief example of the cases currently in this position detailed below

 

Example

• 12 May 2007: Request received by capital one for copy documents undet section 77.
  
• 26th May 2007:No response after first statutory period 12 working days they are now in default.
  
• 26th May2007 Offence reported to OFT 25th May Case Number ********
  
• Creditor continues unlawful pursuance of debt.
  
• 26th June 2007:Stil no response From Capital with correct documentation.
  
• 27th june the creditor have now committed an offence this is reported again to the OFT.
  
• No action taken by OFT due to shortage of recources.
  
• Creditor continues to unlawfully pursue agreement irrespetive of the legisation.

Obviously your details will be different you may not have a case nimbler or you may not have reported until after the full 42 days just adapt where necessary.

You can PM me and i will add the details to the letter or Copy and paste this posting back on the thread with your details on it and I will combine it with the others, (with the posters permission) before i send the completed letter. I will post it in full in case the are any alteration people want to make.

If there are any details you want to send but do not want posting let me know and i will leave them off the final posting but include them in the letter.

I do not want anyone to take offence at me doing this off the cuff but we need to do something.

 

Best regards

Peter

__________________

HI RE Letter to DTI regarding none compliance with section77-78 requests

 

I wondered if it would simplify matters if we put the information in a standard form. If you are in the situation of have notified the OFT or T/S and are having no luck perhaps you would copy this to a word doc fill it in and email it to

 

peter.bardsley@btinternet.com

 

Type of request (section 77/78)

 

Date Request sent

 

Response within 12 working days if any

 

Response within 42 days if any

 

Date default reported to OFT/TS

 

Case Number given if any

 

Response from OFT

 

Comments on conduct of creditor whilst in default if applicable

 

Comments on feedback from OFT/ TS

 

Regards Peter

[fluffycloud]

Hi sorry to trouble you, I have sent CCA requests to a few institutions and to date NO REPLIES yet they continue to chase the debt one is for ebay fees! Anyway do you know where I can get a template of the next letter for non compliance?

 

Much appreciate your help oh knowledgeable one!

[Rhia]

Subscribing...count me in

 

PS his name's McCartney...like Paul but not as handsome (or rich..well for now we'll not mention the missus)

[Peterbard]

Hi sorry to trouble you, I have sent CCA requests to a few institutions and to date NO REPLIES yet they continue to chase the debt one is for ebay fees! Anyway do you know where I can get a template of the next letter for non compliance?

 

Much appreciate your help oh knowledgeable one!

 

Try here

 

http://www.consumeractiongroup.co.uk/forum/site-questions-suggestions/53182-cant-find-what-youre.html#post436526

[Fullyskinted]

Ill sub to this one too I guess...

[lookinforinfo]

Pope, it is interesting that you cited the Wilson case in your argument.

 

The Judges are aware that s.127 does involve a degree of harshness on

the lender when a contract is adjudged unenforceable, even though there

is not much they can do about it: and the unjust enrichment that therefore

accrues to the borrower who is thus absolved from from further payiment.

 

Indeed they cited an example by Justice Lord Diplock-

 

Lord Diplock observed that, while the Moneylenders' Acts were designed to protect unsophisticated borrowers from being overreached by unscrupulous moneylenders, they were capable of being used by unscrupulous borrowers to avoid paying their just debts to moneylenders. He considered whether a remedy in subrogation to redress the unjust enrichment might be available. But he concluded that, much as he should have liked to have done so, it was not open to him to mitigate the harshness to the moneylender and the undeserved enrichment of the borrower which had resulted from the technical failure to observe the provisions of the Act.

 

So in his view that law is unduly harsh on the lender and he dislikes the

undeserved enrichment of the borrower.

 

In the same case, Lord Scott of Foscote had this to say

 

One of the sub-issues argued before your Lordships was whether, when considering whether the provisions of the 1974 Act infringed FCT's Convention rights, the court should take into account other legal remedies which might be available to FCT. It was argued that under the general law a restitutionary remedy was available to FCT enabling recovery of at least the £5000. I am not clear whether the proposed remedy would be a common law remedy for money had and received or an equitable remedy based on Mrs Wilson's unjust enrichment, but identifying the correct description of the remedy is not for present purposes important.

 

 

So that was another Judge who felt disquiet with the provisions of s.127 and

opined that there may be a remedy.

 

And those are not voices crying in the wilderness as it were. I have seen

other Judges infer similar misgivings.

 

 

My point therefore is that going to Court is very much of a lottery. It will

depend on the strength of your argument versus that of their legal counsel.

And the view of the Judge. Pick the wrong one, and you may well lose the

case. In the Wilson case, there was a Pawnbroker involved .

As your case does not involve a pawn, the Court may well fall back on the Human Rights Act again rather than coming to a decision that goes

against the grain. After all, while they cannot prove that a contract exists

because the agreement is missing, they can prove that you paid x amount

for x years. Doubtless they will have a copy of your signed application [why

do they retain that but not the actual agreement?}.

 

If you did take out a loan, and receive the money, then what grounds to you

feel you have to reclaim what you were due to pay?

[hisholinessthepope]

lookingforinfo,

 

I cite the Wilson case so heavily, it is the only case I intend to refer to, because it has already been to the House of Lords. In para 30 Lord Nicholls makes it clear that the CCA can not be side-stepped and in para 44 says the Lender rights are extinguished in favour of the borrower.

 

I take your point that some of the Lords clearly didn't like "the harshness" of clause 127(3) but it is also clear they had no choice but to accept it.

 

As for the lottery of the courts, if I don't take it to court I lose, at least if I go to court there is a chance as it were.

 

When I read Wilson I thought the Lords made it clear that the CCA did not fall foul of the HRA. And though Wilson was prior to the HRA the first Lord made it clear that his decision would not be changed if it had been in effect.

 

In my case they have absolutely nothing signed by me. No credit agreement and no application form. They might be able to prove a contract exists but only outside the CCA and then am back to no side-stepping the CCA. This account is not a loan. The grounds for reclaiming all monies paid is that they have no rights to the money - all as Wilson and her car.

 

Thanks for the post and input lookingforinfo. I have found that reasons why I can't do this from CAGer's such as yourself are helping enormously to polish up the case as it were and (hopefully) improve my arguement. If you would be interested in viewing my Particulars of Claim please feel free to PM. Equally any reply to this post would be welcome.

 

Regards Ben

[joneshousehold]

Hi, I have been watching this thread with some interest.

 

I know Inkogneetoh had a case that went to court where she used the Wilson case. She tried to get all her money back but the judge was reluctant to rule in her favour and I think that is what lookinforinfo is suggesting too. In her case the judge seized on the fact that during the Wilson case, Mrs Wilson made the payment required to release the car. It was eventually returned to her. The judge in Inkogneetoh's case said that her payment was made voluntarily as part of the alleged agreement rather than part of the legal process as in the Wilson case. He sought to distinguish between the two and wouldn't rule in Inkogneetoh's favour. There was a lot of opinion on the forum that the judgement was flawed but Inkogneetoh said she couldn't afford to take the matter further. She actually managed to 'get off' with a technicality that gave her an acceptable result so she had no inclination to carry on.

 

Have a search for her posts and see what you can find if you want to do some research. I think it would be useful to at least get another perspective because it will aid your case and it will give some insight into how the other side argued their case.