Help with Lowell and Cabot!

[teledude]

Hi All!

 

Quick one -

 

Have been dealing with Cabot for a debt with Monument (now Barclaycard) for a while now and after bouncing letters to and from got a supposed agreement from them.

 

Its totally unenforceable as it has not been signed by them AND they have sent me a signed rapid reply card thing on A5 (which they have blown up) and 3 pages of Monuments conditions on A4 - thus not linked to my signature at all.

 

Lowell was a HSBC debt and again is not signed by them - it may have other problems but its so small its hard to read!!

 

Have sent them both the below - what can I do now? Im bored of letters and waiting for more **** from them

 

 

Dear Sir/Madam,

 

With reference to my previous letters, I wish to draw you attention to your company's lack of compliance with my legal request.

 

On 09/03/2009 I made a formal request for a true signed agreement for the alleged account under consumer credit Act 1974 s77/8.

 

The document that you are obliged to send me is a true copy of the executed agreement that contained all of the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself as defined in section 61(1) of CCA 74. If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document. The Documents forwarded to myself have NOT meet the requirements of sec 61 (1) which states :-

61.—(1) A regulated agreement is not properly executed unless

(a) a document in the prescribed form itself containing all the prescribed terms

and conforming to regulations under section 60(1) is signed in the prescribed

manner both by the debtor or hirer and by or on behalf of the creditor or owner,

and

(b) the document embodies all the terms of the agreement, other than implied terms,

and

© the document is, when presented or sent to the debtor or hirer for signature, in

such a state that all its terms are readily legible.

 

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. The following examples are from high court and the court appeal case law which backs up any legal defence, or counter claim under Consumer Credit Act 1974 s.142

 

Wilson v First County Trust Ltd [2001] EWCA Civ 633, Sir Andrew Morritt, Vice Chancellor said:

The creditor must…be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid

 

In the case of Dimond v Lovell [2000] UKHL 27, Lord Hoffmann said:

Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay.

 

As you may not be aware , failure to comply with this request within 12 working days renders the alleged debt UNENFORCEABLE in law.

 

Furthermore you should be aware that a creditor is not permitted to take ANY action against an account whilst it remains in dispute.

 

The lack of a compliant credit agreement is a very clear dispute and as such the following applies.

 

* may not demand any payment on the account, nor am I obliged to offer any payment to you.

* may not add further interest or any charges to the account.

* may not pass the account to a third party.

* may not register any information in respect of the account with any credit reference agency.

* may not issue a default notice related to the account.

 

Therefore this account has become unenforceable at law.

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

 

After taking advice, I am of the opinion that your continued pursuit is in violation of the Administration of Justice Act 1970 section 40 as well as breaching a number of the OFT Collection Guidelines.

 

I reserve the right to report your actions to any such regulatory authorities as I see fit.

 

I herby request that all data you are processing with all CRA’s is ceased and all defaults removed forthwith.

You have 14 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint.

 

I hope that you will enter into a sincere dialogue with me about this matter and I am writing this letter to you on the assumption that you would prefer to do this than merely respond with standard letters and leaflets.

 

I would appreciate your due diligence in this matter.

 

I await your rapid response.

[teledude]

Lowell have responded and the HSBC one they have admitted to not being able to furnish a valid agreement - how can I now insist they remove the defaults in place?

[GamekeeperToPoacher]

Hi Teledude,

 

Welcome

 

I would recommend that you use the CPR route as in this thread if you want to kick butt

 

GK

 

If you like my idea please feel free to tickle my scales aver there

[silverfox1961]

Lowell have responded and the HSBC one they have admitted to not being able to furnish a valid agreement - how can I now insist they remove the defaults in place?

 

 

Hi,

 

Although lowell can't furnish a valid agreement, they will say you had the benefit of the money which proves you had a relationship with them therefore they can mark your credit file. this is bull! They need to prove you signed, giving them permission to use your data.

 

From what I have been reading on the forum and my own experience with the lowlifes of Leeds, you will have to take them to court to get the defaults removed and there is no guarantee either.

 

I think the same applies to crapbot too. Although they have supplied an "agreement", without the correct terms within it they can't enforce either but if it contains your signature anywhere, you may have given them permission to use your data but as I see it, it's just for basic searches and not for reporting purposes.

 

These are my opinions only.

 

fox

[teledude]

Thanks guys - I'm not concerned overly about the defaults but sadly Banks will be when applying for a mortgage

 

So if I CPR Lowell and Cabot and then drag them through the courts I guess? Or can I skip all the CPR stuff and take them to court over the lack of a valid CCA??

[GamekeeperToPoacher]

The CPR is a means of preventing you from being mugged when "Hey Mr Judge - look what we have found" They have to produce what they will rely on in court.

 

Once again if hey had it why would they not show it?

 

GK