Elephant in the room

[Paul.]

Re: Elephant in the room

costs?

I dont do costs, but Civil and Commercial costs lawyers are the firm i use for all my costs now.

David Jones is excellent, a really good professional and very helpful.

[transformer999]

Re: Elephant in the room

Thats a great help Paul...maybe I could get him to assess Blemain's solicitors costs in my possession claim as they are nearly £10k'ish...the swines...

Going back to templates...I am dealing with a small debt from BG.....have not started a thread as I don't have enough time. Looks like the DCA sent a letter again after they said they would hold all action until I received proof and copy of my bill....still have not received my bill...and they sent me another threatening letter the other day.

I was a bit pissed off and thought I will file and ignore....but thought no!!! I need to reply...so I did by email.... and received this response from the TOSSPOTS yesterday...so must have worked.

This is the email I sent them:

Dear Sirs,

Further to your email dated the 12 November 2012 you advised me that you had requested a copy of the bill and placed the account on hold whilst you were waiting for British Gas. You also advised that I would not receive any further contact from you until then.

Today I have received a letter dated the 30 November 2012 advising you may take further action. I have not received a copy of my the bill from either you or British Gas.

Please explain why you have sent me this letter.

I look forward to hearing from you.

Kind Regards

Their response

Dear T999,

We write in reference to your recent email received 10/12/2012 with this office regarding an account that you hold with our client, British Gas Residential.

We apologise for our administrative error regarding the letter that you have received regarding further action, as this was wrongly sent out after we had responded to your letter concerning your dispute of this account.

We can confirm that we have requested a copy bill for this account from our client.

We have placed your account on hold in the meantime, which will suspend any further action whilst we await their reply.

We will contact you as soon as we receive a response.

Please do not hesitate to contact us on 0844 55 65 440 if you have any further queries regarding your account.


Yours sincerely,

Administration Department.

I have been promised a copy of my bill for over a year now,...the amount is only £150'ish....but I want to see if I owe this or nor first...

[transformer999]

Re: Elephant in the room

This was their previous email to me:

Dear T999,

We write to you in relation to your recent correspondence and to advise you that we can now correspond with you via email, as you have confirmed our necessary Data Protection checks with us to do so.

We advise that we responded to your initial email on the date: 08/11/2012 via letter and this should arrive with you shortly. Please find a copy of the letter enclosed for your information:

Dear T999,


We write in response to your recent correspondence regarding an account you hold with our client, British Gas Residential.

We can confirm that the outstanding balance of £159.77 relates to gas used at your current address between the period of the 7th January 2008 to the 30th November 2011.

We note that you dispute the balance and that you are dissatisfied with our contact; please be assured that we fully comply with OFCOM’s regulations and the OFT’s guidelines to debt collection with regards to the contact that we have with our customers.

Please be advised that if you dispute the balance as you were not residing at the property during this period we require supporting documentation which covers the full billing period.

We are able to accept this in the form of a full signed tenancy agreement, or a letter on headed paper from your lettings agent.

We can confirm that we have requested a copy of the bill on your behalf and placed your account on hold whilst we await this from British Gas. You should receive no contact from Advantis during this time.

If you have any further queries in relation to this matter, please do not hesitate to contact one of our specialist account managers on 0844 55 65 440.

Yours sincerely,


Administration department

[PriorityOne]

Re: Elephant in the room

People cannot afford to be complacent in any stage of this game; as a game is what it is.

We are here to help and guide; not to do it all for you. I've seen attitudes like this time and time again over the years and it doesn't wash. Creditors/DCAs are not stupid. If they get a whiff that you're not sure what you're on about pre-court, they're more likely to move in with court papers and leave you to the mercy of a Judge.

Once you receive court papers, it becomes a totally different ball game and bloody hard work; as Paul can verify.

[Enforcer]

Re: Elephant in the room

Paul, have read all through this thread several times, still confused though. You state that S78 is redeemable UE for S61(1)(A) CCA is not. Later on in the thread you say that the only signature required is the debtors.

I have sent a S78 request which although received and signed for has not been replied to. They have not cashed the cheque either. Enclosed with my request, was a copy of the unexecuted agreement, received by way of a SAR request, with a tick on it for PPI, my signature, no date, not signed for and on behalf of the creditor, again undated, not showing or referring to any of the prescribed terms, also stating, when we consider your application. This dates back to early 2000.

So, my question is, as I have signed this form, is it, or is not, redeemable.

Confused now.

[Paul.]

Re: Elephant in the room

Paul, have read all through this thread several times, still confused though. You state that S78 is redeemable UE for S61(1)(A) CCA is not. Later on in the thread you say that the only signature required is the debtors.

I have sent a S78 request which although received and signed for has not been replied to. They have not cashed the cheque either. Enclosed with my request, was a copy of the unexecuted agreement, received by way of a SAR request, with a tick on it for PPI, my signature, no date, not signed for and on behalf of the creditor, again undated, not showing or referring to any of the prescribed terms, also stating, when we consider your application. This dates back to early 2000.

So, my question is, as I have signed this form, is it, or is not, redeemable.

Confused now.

Ok, for an agreement to be open to enforcement via the Court, it must be a document, signed by the debtor containing the prescribed terms

This is the position certainly before 6th April 2007.

So if that document signed by you contained the prescribed terms, then the Court could enforce it. as to what the word contains means please see Carey v HSBC Bank Plc.

If the agreement is not signed by the bank then it is improperly executed and subject to s65(1) CCA 1974.

the Courts powers are defined in s127(1)&(2) for this type of failing



The question of fact for you however, is, did this document when you signed it contain the prescribed terms?

[Paul.]

Re: Elephant in the room

Paul, have read all through this thread several times, still confused though. You state that S78 is redeemable UE for S61(1)(A) CCA is not. Later on in the thread you say that the only signature required is the debtors.

I have sent a S78 request which although received and signed for has not been replied to. They have not cashed the cheque either. Enclosed with my request, was a copy of the unexecuted agreement, received by way of a SAR request, with a tick on it for PPI, my signature, no date, not signed for and on behalf of the creditor, again undated, not showing or referring to any of the prescribed terms, also stating, when we consider your application. This dates back to early 2000.

So, my question is, as I have signed this form, is it, or is not, redeemable.

Confused now.

I should add

Not all breaches ill lead to irredeemable unenforceability

Only a missing prescribed term for an agreement pre 6th Apr 2007 will kill it, or of course the failure to provide cancellation rights in a cancelable agreement per s127(4) CCA ** ADDED** or the failure to sign the document by the debtor and sign must be construed as electronically after 1st Jan 2005

But things like misstated APR out side tolerances, or not signed by creditor, or missing default charges, they would leave the agreement unenforceable without a court order.

A good case on this is Rank Xerox v Hepple

[julian]

Re: Elephant in the room

Template letters are also used by the DCAs and lenders and it has been commented on several times that the wrong name/date/etc have been issued in a letter. I sent a SAR to one and received their email log/chain in the pack. It showed in the log a letter constructed to another person for another account and amount, however, the letter that I received from the same date had completely different date inserted.

I expect they use a template and a Word Merge. That makes it quicker for them to issue standard responses. Like all tools they are only as good as the user. It gives rise to the disputes when they get the information wrong, as they have no idea what they actually wrote in the first place, unless you tell them, and leaves them open to disputes with DPA. Although I do expect some may be slightly more competent.

[Enforcer]

Re: Elephant in the room

I honestly don't know. The OC states that the prescribed terms were on the back of the document, although there is no reference to them. Same OC mentioned this fact in the case of Carey vs Hsbc, although this was not brought into the case.

[Paul.]

Re: Elephant in the room

I honestly don't know. The OC states that the prescribed terms were on the back of the document, although there is no reference to them. Same OC mentioned this fact in the case of Carey vs Hsbc, although this was not brought into the case.

then this is where you will have difficulties i think,

The Courts at first instance and higher have held that you need to make a positive assertion as to what you did or did not sign.

[Enforcer]

Re: Elephant in the room

As this is currently unenforceable until the OC takes it to court, will they have to produce the original document to the court? This would then prove beyond doubt whether the terms were on the rear. Or will they recon it!

On a second note, the OC has used their "legal right of set off" against me. Are they allowed to do this whilst the agreement is improperly executed?

[jon1965]

Re: Elephant in the room

So I get it,if they produce a good reckon then it is down to you to make a positive statement in court that you did not sign a good agreement. The downside being if you are shown to have lied its a trip to the cells for you.
Now there is the question of de minimus errors, someone said that no signature by the creditors is such but you seem to say that this is not the case. I have an agreement that shows my signature dated after the creditors which suggests it would have been sent to me signed. Not usual practice.

Finally its great to see a definitive statement that templates should be edited to suit. Not always the opinions given in the past.

[Never-In-Doubt]

Re: Elephant in the room

Carey says they can rely on a recon so long as it has the same info (content & form) - unless you give a statement denying receipt and yes they can offset.

[Never-In-Doubt]

Re: Elephant in the room

Finally its great to see a definitive statement that templates should be edited to suit. Not always the opinions given in the past.

ahh don't get confused. At the early ping-ping stage it's fine to leave the templates unedited but we're specifically talking about the more complex or if you like older cases where a standard template is of little use. I'm talking about at LBA stage and generally not earlier but that's just my opinion.

[The Tech Clerk]

Re: Elephant in the room

offset. then open another account elsewhere which has no connection to the one you use?