qwerty321's UE Diary

[qwerty321]

Hi
I've been reading quite a lot and have a couple of questions please ...

Firstly, has anybody ever had any success with arguing un-enforceability on the grounds that the Terms and Conditions aren't easily legible? The printed copy provided has typing so small that it has to be read with a magnifying glass whilst wearing glasses and even then some words are unclear!

Secondly, where can I find information about any rules (if there are any) surrounding the selling on of a debt?
Can the OC sell a debt when a payment arrangement's in place and being maintained and when they haven't proved the amount of the debt?
Reason I ask is that I complained about missing information from a SAR to the OC.
They issued a final response dated 18th June 2014 saying they'd sent all they have. (Still not provided any transaction list or statements from Oct 2010 to date)
Next come two letters dated 16th July which are in the same envelope but say they are from two different companies. One says it's from NewDay Ltd and the account has been sold to Lowell Portfolio I Ltd on 12/06/14. (The letter heading doesn't look quite right). The second letter in the envelope says it's from Lowell Portfolio I also saying the debt was sold to them on 12/06/14.
I replied saying account in dispute and referred to FOS. My letter seems to have crossed with another this time from "Lowell Financial" chasing up the 16th July letter and pushing to make a payment arrangement. (The existing payment arrangement hasn't been cancelled and the amounts on both letters show that the payment has been received)

Just wondering what to do next as don't want to do anything to "accept" their amount of debt quoted?
I've also read somewhere that when a debt is sold to a third party like a collection agency it's been paid in law so can't actually be pursued unless the terms stated it could be sold on. Is that true?

It's all a bit confusing

[Grassy_K]

Re: qwerty321's UE Diary

Hi
I've been reading quite a lot and have a couple of questions please ...

Firstly, has anybody ever had any success with arguing un-enforceability on the grounds that the Terms and Conditions aren't easily legible? The printed copy provided has typing so small that it has to be read with a magnifying glass whilst wearing glasses and even then some words are unclear!

Secondly, where can I find information about any rules (if there are any) surrounding the selling on of a debt?
Can the OC sell a debt when a payment arrangement's in place and being maintained and when they haven't proved the amount of the debt?
Reason I ask is that I complained about missing information from a SAR to the OC.
They issued a final response dated 18th June 2014 saying they'd sent all they have. (Still not provided any transaction list or statements from Oct 2010 to date)
Next come two letters dated 16th July which are in the same envelope but say they are from two different companies. One says it's from NewDay Ltd and the account has been sold to Lowell Portfolio I Ltd on 12/06/14. (The letter heading doesn't look quite right). The second letter in the envelope says it's from Lowell Portfolio I also saying the debt was sold to them on 12/06/14.
I replied saying account in dispute and referred to FOS. My letter seems to have crossed with another this time from "Lowell Financial" chasing up the 16th July letter and pushing to make a payment arrangement. (The existing payment arrangement hasn't been cancelled and the amounts on both letters show that the payment has been received)

Just wondering what to do next as don't want to do anything to "accept" their amount of debt quoted?
I've also read somewhere that when a debt is sold to a third party like a collection agency it's been paid in law so can't actually be pursued unless the terms stated it could be sold on. Is that true?

It's all a bit confusing

I believe the recent case of Hillesden Securities vs Harry Moore (2014) set some positive precedent for illegible documentation leading to unenforceability.

The OC can sell the debt even if there is a payment arrangement in place, as long as there is no current dispute. Happened on a few of mine.

NewDay used to be SAV Credit didn't they? 1st Credit (debt purchaser) are still scrabbling around trying to find my SAV agreement 4 months later, sooo... if it's a pre-April 2007 agreement, for example an old Marbles card....

[MrsD]

Re: qwerty321's UE Diary

welcome to AAD

a few misconceptions hanging around about the OC selling on debts. they can do this, and do with amazing regularity. You should read this

http://forums.all-about-debt.co.uk/s...ide-to-UE-2014

and it's really helpful if you set out the details of your debts as illustrated in http://forums.all-about-debt.co.uk/s...-Read-me-First!

I'm afraid you admit the debt everytime you make a payment , so that argument wouldn't really fly.

It helps if we know the whole story, are you in a DMP, managed or self managed and the dates of your debts are key. Have a read around the diaries when you have a minute, some really successful challenges of bad paperwork.

[qwerty321]

Re: qwerty321's UE Diary

Thanks Grassy_k and Mrs D for your replies.

Below is the full story which as a bit of a saga I'm afraid. I've been trying to deal with it all alongside full time work, my own family life and other serious ill health issues and bereavements.

Credit Card: Asda Credit Card
Start Date 19/04/2005
Current Balance £6395
Date of Last Full payment: unknown
Arrangement Made: £4.88 monthly
Status: Default
Account Owner: Santander/NewDay/Lowell Portfolio Ltd

25/03/13 Data Subject Access Request posted 27/03/13 to Santander by Recorded Delivery to establish the details of account to confirm amount owed and to check what charges had been applied.
13/06/13 followed up DSAR as 40 day response time exceeded.
20/06/13 Reply from Santander stating response sent 12/04/2013 (never received)
09/07/13 complaint sent Recorded Delivery
17/08/13 Followed up complaint letter as no reply received
Gap in correspondence due to family bereavement
05/02/14 daughter wrote offering a settlement £1603 from own endowment policy proceeds to avoid further stress in view of health issues
13/02/14 Santander declined settlement offer (£1603)
03/03/14 Raised complaint with Santander about failure to respond to original complaint letter within required timescales and still missing information in DSAR
10/03/14 Acknowledgement from Santander of complaint made 03/03/14
26/03/14 Notice of Assignment letter from Santander to NewDay Ltd
02/04/14 Letter from NewDay Ltd stating unable to trace letter sent July 2013 by Recorded Delivery
25/05/14 Letter sent to NewDay Ltd company clarifying complaint – missing data from October 2010 to date, lost correspondence despite Recorded Delivery postage and failure to reply to complaints in required timescales
18/06/14 NewDay Ltd state final response; have sent all they have and apologise for missing data (encl FOS leaflet)
16/07/14 NewDay Ltd state account sold to Lowell Financial Ltd/ Lowell Portfolio I state have bought it (£6396.35)
30/07/14 Lowell Financial ask to make repayment arrangement (£6391.47)
31/07/14 sent reply to advise Lowell daughter acting on behalf and complaint made to FOS
12/08/14 Lowell Group ask for 3rd party authority and FOS reference number

I've been trying to deal with my parent's debts since my dad had a heart attack a couple of years ago. Dad has heart failure and both have diabetes and high blood pressure and are 78 years of age. The stress of her situation is really getting to mum and she's very anxious and tearful.
When I started this my parents had already entered the debt spiral getting new cards in an effort to keep afloat and owed around £25k to creditors.(I find this astounding for a joint income at the time of around £9k). I've managed to get one debt written off and have made partial settlements on two others for them. I calculated affordable repayments for the others using guidelines from Stepchange and started making regular monthly payments by standing order.

For this account I sent a Data Subject Access Request in April 2013 as mum has no statements and I wanted to know how such a big Asda debt had arisen. Mum has only been able to provide me with two statements from 2012 which show "Late Payment" fees and I suspect she hasn't spent on the card or made the full payments for a long time. My intention initially was to get information about the transactions, interest and charges added to the account. I was then going to consider if it was possible to challenge any that had been unfairly applied, but I'm still not in a position to know that yet. Should I dispute the amount of debt with Santander as they've not provided information to prove it and it may include unfair charges?

I'm now wondering if there should also be a Notice of Assignment from Asda Credit Card to Santander in the DSAR too?

[MrsD]

Re: qwerty321's UE Diary

firstly this shouldn't have been sold on as it was clearly in dispute.

did you go to the FOS at any point about the missing stuff in the SAR? or is the complaint in July the first one?

i would be inclined to send a prove it letter to Lowell, never mind giving them documentation for acting on behalf. Is it an informal arrangement for your Mum or do you have anything official?

I've asked you a few questions and I'm going to ask another couple of moderators to pop in, SXGuy is very good at the acting on behalf stuff and Undercover Elsa has a good handle on getting stuff sorted out when their are health issues. how on earth did your Mum get a credit card when she was 69 on retirement income? Can you check if it was one of those signups in store, I seem to remember asda did this at one point.

it is very difficult dealing for someone else and your Mum will have to co-operate fully to help you. There is absolutely no shame in being in debt, the fact that your Mum and Dad are elderly and not in good health, I would be paying zilch absolutely nothing. Are they home owners?

[qwerty321]

Re: qwerty321's UE Diary

There was a previous complaint to the FOS in October 2012 that wasn't upheld and yes, it was a sign up in an Asda store with the promise of cheaper fuel as an incentive.

I couldn't understand how on earth she had been given a card either so I asked for the Credit Agreement.
What I got looks like a copy of the application form and from that I can see what looks like mum's signature. However the rest of the form has clearly been completed by someone else and states an inflated income that my parents have never achieved. When I asked mum what she could remember about it she said she just signed the form and wasn't asked any questions.(I should also point out that she is a housewife who has never worked and has little financial understanding).

I was furious as, in my opinion, it had clearly been filled in fraudulently by a staff member to ensure that sales targets were met and a card issued. My parents are homeowners (small mortgage) and I complained that this had been the basis on which a card was issued and how the credit limit had managed to be increased to almost £7000.

After exhausting the complaints process with Santander, I complained to the FOS about how the debt had arisen (04/10/12) but the complaint wasn't upheld and I had a final decision (22/10/13).
The July FOS complaint is about the later issues surrounding Data Protection and Complaint handling.

Mum is fully co-operating with me but is quite frankly worried sick and stressing before the postman even gets there. I've been trying to get her to allow me to go with her to the doctors to get a letter from them to confirm her health issues but she's very reluctant. (She has diabetes, high blood pressure and cares for my dad who has heart failure)

[Undercover Elsa]

Re: qwerty321's UE Diary

Just answering the call, thanks MrsD

I'm just making Sunday dinner but I'll have a close look at this in the morning. They seem to be treating your elderly parents abominably, and I'm so glad you've found your way here so we can help.
Am I right in thinking you've just sent a SAR and not a CCA Request (request for the agreement under s.77-79 of the Consumer Credit Act. If you haven't then that would be my next step, but we need to look at getting this written off on health grounds if we can.
Enjoy your evening and I'll be back first thing in the morning.

Elsa xx

[SXGuy]

Re: qwerty321's UE Diary

Not much more I can add to what others have said. Definitely get a section 78 request off first and foremost. In regards to dealing with them on behalf of your mother. Personally what I do is write to them as if I'm my mother. She let's me handle it all. So long as she knows what I've sent and in reply to what's been received that's fine.

[MrsD]

Re: qwerty321's UE Diary

thanks guys

[qwerty321]

Re: qwerty321's UE Diary

Yes Elsa I've sent a SAR and at the outset I asked for a copy of the Credit Agreement but I didn't state "under S78 of CCA" or send £1 as I was even more clueless then than I am now
So I should I do that now - send to Santander and ignore Lowell for the time being? and do I leave the standing order payments going? (Santander accepted the payment arrangement by letter dated 10/03/14)

Thanks so much for your replies, I really appreciate the help

[MrsD]

Re: qwerty321's UE Diary

let's wait and see what Elsa thinks in the morning

meantime if you read this http://forums.all-about-debt.co.uk/s...ide-to-UE-2014
it'll give you the back ground

try not to worry we will help you to get this sorted and tell your Mum not to get in a state, trust me these buggers are definitely not worth her worry, it's only money after all, much more important stuff going on.

[qwerty321]

Re: qwerty321's UE Diary

Thanks Mrs D
Yes I agree - if it was my own account I'd find it a bit easier I think
I'll read the link now

[Pixie]

Re: qwerty321's UE Diary

See what Elsa says this morning...she's very good when people with health issues are in debt.

Please tell your Mum to stop worrying....debts really aren't worth it...and concentrate on looking after both herself and your Dad.

Why don't you have a look at some of the older diaries in the meantime...it might help you to set your Mum's mind at rest? My diary MrsD's diary diddlydee's diary nightwatch's diary

[SXGuy]

Re: qwerty321's UE Diary

See the good thing about dealing with the debts on their behalf is, it takes the worry and strain away from them. It does work.

Plus I must also say, don't stress, debt is the last thing to worry about, my mother will be 3 years in to this process in December. Yes there will be flurry of letters to start with, but they all die down in the end. And you can continue to enjoy life once again.

In regards to the CCA Requests, they should be made to whoever is contacting you regarding the debt, it is there duty to pass it on to whoever it needs to go to.

Please find the link here -> CCA Requst

You will also need to re-register to access the templates if you haven't already done so by clicking here -> Registration

You may even get a few who admit that they can not enforce and you will never hear from them again. Always a great feeling when you win the battle.

[Undercover Elsa]

Re: qwerty321's UE Diary

Hi qwerty,
Just to put one of your original queries to bed, ie

I've also read somewhere that when a debt is sold to a third party like a collection agency it's been paid in law so can't actually be pursued unless the terms stated it could be sold on. Is that true?

That's not the case unfortunately, although it's a theory bandied about by various "Freeman of the Land" sites. Avoid them like the plague!

I do think you need to start by doing a CCA Request to Lowells (not Santander), as linked above by SXGuy. Before using the CCA link you'll need to register on the AAD main site first, but use the same name and password as you use for this forum. You can use a cheque on your account (not your Mum's) for the £1 fee, rather than a PO if that's easier.
I would also like to do you a cover letter to send with the CCA Request. Could you email me a copy of what you sent to Lowells, and a copy of their reply.
Did they enclose their own Letter of Authority template with the reply? If not I can let you have one.
My email address is below in my signature.

The difference in a DSAR and a CCA Request is that failure to comply with a DSAR does not afford the same protection as does failure to comply with a CCA Request. In the latter case they cannot take action until they comply. So we need to get that off to Lowell, as they now own the debt. What they'll do then is write and tell you the account is on hold while they pass it on to Santander. That will get them off your Mum's back and give us time to think.

Moving on to the failure to provide all the info in the DSAR. If it was me I would now make a complaint to the Information Commissioner's Office (ICO). They are responsible for ensuring that DSAR's are met correctly. Have a look here: http://forums.all-about-debt.co.uk/s...ain-to-the-ICO

Your Mum will unfortunately probably need to get a doctor's letter at some stage. However if she is dead set against it, one way round it it to DSAR the surgery for a copy of her records (Usually around £10 for the computer records, which will include prescriptions, diagnoses etc up to £50 for copies of Consultant letters etc.) I've used selected copies from these in the past as proof.

That's probably enough to get started, you've done great on your own so far, your parents are lucky to have you to sort this out for them. Been there and got the T Shirt so I know how difficult it can be. The older generation are so proud, and private and tend to put unerring trust in authority, including the banks. This is how they end up being misled and mistreated, and it's not their fault or anything to be ashamed of, bless them.

Anything else at all you need to know, just ask.

Take care,

Elsa xx