Stubie-One:

Its this bit that concerns me, I have to know what this "agreement" is.

S

See upferrets 2nd post in this thread.

I'm getting too old for this stuff.

I need a holiday

I can't even claim to have missed it as I replied to it.

OK, scrub my concerns, go for them.

Alternatively, sit tight and wait for them to go for you. Chances are they will go for the dirty tricks brigade rather than a frontal assault. The only benefit of this is that they have to prove their case rather than you prove yours.

S

Ok great thanks for the help everyone. So, next move, if I understand correctly is to send them a letter as mentioned above stating they have not provided a CCA so I dont have to pay and want the account reduced to 0 and the PPI premiums refunded with 14 days for them to reply. So should I stop paying the card payments now or wait for their response and then stop paying?

Try this
NOTICE OF DEFAULT

Served under Section 78(1) Of The Consumer Credit Act (1974) as amended

Creditor:

Account No:

You are duly notified that you a have been in default under the aforementioned section of the above Act since (date)

In order to correct this breach you must provide a true copy of the executed agreement.

To correct this, the above document must be supplied within 21 days of this notice.

If the correction required by this notice is taken before the date of expiry of this notice then no further action will be taken in respect of the breach.

If the action required by this notice is not taken within 1 month of this notice then the default will be registered with a credit reference agency.



Notes under Section 78

(a) The Creditor is not entitled, while the default continues, to enforce the agreement

Yours faithfully

upferret:

Ok great thanks for the help everyone. So, next move, if I understand correctly is to send them a letter as mentioned above stating they have not provided a CCA so I dont have to pay and want the account reduced to 0 and the PPI premiums refunded with 14 days for them to reply. So should I stop paying the card payments now or wait for their response and then stop paying?

Yeh send them a letter explaining the situation as you see it (i.e. they have no mandate to collect money off you) and stop paying (else everything you have done so far is pointless).

Understand this though. Your debt exists and even if a court ultimately decides it is an unenforceable debt it still will exist, but the creditor will have no way to collect via the courts (which as far as I know is the ONLY way a creditor can collect a debt).

Ok,many thanks, Ill send the default notice as above (does it matter that Ive already sent them a default letter earlier? which they pretty much ignored) and I'll cancel my direct debit. Can anyone also point me in the direction of some info on the "letter before action"? which I need to prepare as mentioned above.

upferret:

Ok,many thanks, Ill send the default notice as above (does it matter that Ive already sent them a default letter earlier? which they pretty much ignored) and I'll cancel my direct debit. Can anyone also point me in the direction of some info on the "letter before action"? which I need to prepare as mentioned above.

A bit soon for a LBA, wait for the reply to your last letter first. Think about what result you are looking for and prepare a letter asking for that and why. Wait for response to that then get your LBA off. Each letter should allow 14 days for a reply.

Ok, it's been 14 days and they havent replied, Ive also cancelled my direct debit to them , what is the next step please? thanks

OK time for action.....maybe.

Not sure what you last wrote to them or what you expect. I see you have cancelled the DD - good, you start saving money from here on in.

See the thing is at this stage, unless they've made any threats of enforcement or pursuing the debt (defaults, late payment charges, etc.) in my opinion there is nothing much more to do. You've got to go through the motions of giving them every chance to write off the debt and not default you.

If you want to threaten legal action then this is a template LBA. It will need heavy and careful editing to suit your situation and case, plus press home the remedies your seek.

The sections in square brackets require editing in particular.

Card Company
Card address



Dear Sirs


Account # xxxx xxxx xxxx xxxx - IN DISPUTE


LETTER BEFORE CLAIM - DO NOT IGNORE THE CONTENTS OF THIS LETTER

On the [date] a Statutory request, made under the provisions of section 78(1) Consumer Credit Act 1974, was sent to your company by Royal Mail Recorded delivery requesting that you supply me with a true copy of the credit agreement for the above account.

Your Company has to date, failed to comply with my request for the relevant information in that the document you sent me appeared to be no more than [your current Terms and Conditions] [a signed Application Form] not a properly executed credit agreement [try and give brief reasons]. Despite [2] further letters reminding your company of its obligations you have totally ignored my correspondence and continued with repeated requests for payment.

I would remind you, should a creditor fail to comply with a request for information under s.78(1) they are constrained as to what enforcement and collection activities they may pursue and the debtor is not obliged to offer any payment in respect of a disputed account.

***On [dates] I made further requests, by Royal Mail Recorded delivery, pursuant to the Civil Procedure Rules (Pre-action protocols) for a signed agreement for this account. Again my lawful requests were not complied with.**** [this paragraph needs editing to suit any other letters you sent]

I now require this matter resolved as a matter of urgency, therefore, I require your action on the following within 14 days of your receipt of this letter:

1). You supply a true copy of the signed credit agreement for this account along with the related terms and conditions current at the time of signing. (For the avoidance of doubt, an application form, copies of only the terms and conditions, a sample or new credit agreement or a reconstructed agreement will not suffice).

2). You enter into correspondence with me to resolve the matter to the satisfaction of both parties.

If you are unable to supply a true copy of the agreement as described above, for whatever reason, I require written clarification of this plus written confirmation that the account has been discharged and ‘account satisfied’ recorded with all credit reference agencies.

It is my intention, should you fail to reply to this letter or comply with my requirements within 14 days, without further notice, to commence litigation against your company by issuing a claim in the [Local] County Court for a judicial ruling on the enforceability of the agreement under s.142(1) Consumer Credit Act 1974 as I am of the opinion that if an enforceable agreement existed you would have sent me a copy by now.

I will also seek any quantifiable damages and removal of all adverse data, which you or associate companies may have added to my credit file since you entered into default of my request for a true copy of any credit agreement for this alleged account.

Please be aware that under the Civil Procedure Rules, should I issue such a claim you will be required to provide the information I have lawfully requested by order of the court. Therefore it would be better and less costly for you resolve this issue now.

I this respect I am mindful of the Overriding Objectives, and in particular the duty of the parties to help the court further them, that the issues outlined above are the crux upon which this claim rests and in identifying these issues will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously.

If you are unable to deal with my requests you should pass this letter urgently to someone who will. I expect your due diligence in this matter.

Regards

Thanks! Ill get that sent to them once Ive edited it.

Hi again! Ok they've replied to the last lettter, with a "reconstituated agreement form" which is a credit card request form which theyve filled in some details such as my name and address. Basically the same one they sent before blank, but theyve written on it... Theres also a letter stating that "such unenforcability does not apply in this case, it is to prevent a lender from enforcing the credit agreement in court, it does not render the credit agreement void" They also sent a demand for the minimum payment and a letter saying theyve added a £12 late payment charge. Whats next?

Thanks again

upferret:

"such unenforcability does not apply in this case, it is to prevent a lender from enforcing the credit agreement in court, it does not render the credit agreement void"

Whats next?

Thanks again

WTF!! If unenforceablity does not apply why do they go on to say prevent a lender from enforcing ??

I think they mean the debt still exists. That is disputable too. Can you post a bit more of what they wrote.

Anyway what's next largely depends on you. You have effectively won, they have all but admitted they cannot pursue through the courts to make you pay. If you don't mind a few payment demands and the odd default notice you can ignore them unless they start a legal case in which case you go for them.

Or, well there isn't much of an 'or' really unless you want to remove the default notices, in which case it's a bit of a long fight which there is no guarantee of winning (the default removals that is not the unenforceability).

Thanks for the reply,

Heres what they wrote,

"I refer to my previous correspondence dated 3 June concerning your request that we provide you with an origional signed agreement for the above account. Please find enclosed a reconstituted agreement from compliant with regulation 3 of the consumer credit (cancellation notices and copied documents) regulations 1983. With regard to your requests concerning closing the account and refunding charges, please be aware that the effect of the unenforcability under CCA , and such unenforcability we aver does not apply in this case, is to prevent the lender from enforcing the credit agreement in court. It does not render the credit agreement void. Whilst I understand this may not be the response you wer hoping to receive, I trust I have now clarified the banks financial postition on this matter."

They enclosed a "credit card request form" with my name and my address (my old address which I didnt sign up with) filled in by someone and a few boxes ticked. They are still adding interest and charges to the account, do they ever aknowledge that theyre in default and stop doing this? they just ignore every default notice I've sent.

Do I need to report them to anywhere (only asking because I've seen this mentioned) before I sit back and do nothing?

They lie!! There are desparate!!

The Regs state a 'true copy' (but may omit signature box and personal details) is required. An application, reconstituted or current agreement are not acceptable. It should be a true copy of an agreement pertaining to the time of signing.

Unenforceablity may not render the agreement void but they cannot enforce it (and payments thereto) through the courts.

I thought they were talking rubbish......they might have well sent me a xmas card,as that would have been about as relevent as the thing they did send. I dont understand why they didnt even try to send tme the credit agreement I got sent form the PPI dept. Even though it is unenforcable, it would be better than an application form, I'm guessing they have now probably lost that "agreement" or something. Ok thanks for all your help! Ill let you know how it turns out.