RBS Credit Card - insists that agreement is not void

RBS Credit Card - insists that agreement is not void

Postby sosii » Mon Jul 19, 2010 4:15 pm

Here's a good one, not mine it's my Dad's, his otherwise perfect record marred by one card, I've got them to admit they no longer have an agreement and amazingly they still said this:

Please note that, although the credit agreement is currently unenforcable, the credit agreement is not void and your obligations to make payments to us under the credit agreement remain.


2010_06-29 - CC RBS Card Services Reply.gif


Obviously this is the statutory route, not my bag, but my dad is old school. Proving an unenforceable contract is understandable to him. I've drawn up a notice to compel, could someone check it over please, as I said... not my preferred route this.

Notice To Compel Upon Account In Dispute.
Notice to Principal is Notice to Agent; Notice to Agent is Notice to Principal.

Cards Customer Services
PO Box 5747
Southend on sea
SS19AG

Dear Sirs,

This is a notice, it informs your company, do not disregard it nor take my intent lightly in this matter. I do not acknowledge any debt to your company, and by your own admission as you do not, nor does your agent, possess any true copy of a Consumer Credit Agreement upon which I have to perform.

I recently noticed Intrum Justitia, who had informed me that they were your acting (on your behalf) as your agent, a formal letter sent by Recorded Delivery on 19th May 2010 demanding for a true copy of the Consumer Credit Agreement together with any relevant information under Sections 77-79 of the Consumer Credit Act 1974, enclosing a £1.00 cheque / postal order as the fee payable.

In your response by Miss S Jaconelli dated the 29th June 2010, you confirming you have no Consumer Credit Agreement then the account must remain in dispute which refers to s.10 of the Consumer Credit Act 1974 which enforces you and your agents to cease & desist processing my data. In your letter you admit not having any agreement and stated:

“Please note that, although the credit agreement is currently unenforceable, the credit agreement is not void and your obligations to make payments to us under the credit agreement remain.”

As, by your own admission, you are unable to comply with my request for the true agreement, as required by s.78 of the Consumer Credit Act 1974, nor any other information relating to the account and as such, this account has become unenforceable by law. As you will no doubt be aware ss.6 of the CCA.1974 states:

"If the creditor under an agreement fails to comply with ss.1 (CCA.1974) then (a) He is not entitled, while the default continues, to enforce the agreement"

Whilst it is unenforceable, no interest can be added to the account and no action can be taken against me such as defaults or adverse data registered at any of the credit reference agencies. I was deeply distressed to discover on acquiring my credit report from the reporting agencies. I had placed the account into dispute on the 3rd of June 2010 and did in fact see the details updated on the 6th of June 2010 to my detriment.

There is no debt as there is no agreement and therefore the default that you registered against me is unlawful and will be defended by demanding enforcement of removal via the courts, if necessary. We both know without a true copy of a Consumer Credit Agreement then the chances success are slim, to say the least. Take heed, that in my notice to your agent dated 3rd June 2010 I generously offered to hold you harmless to any future legal claim against past payments made in error, on the condition this was actioned upon with expediency. My performance to date in this matter was due to being honestly mistaken in my belief that I did indeed have an obligation to perform, based on the available information at the time and upon your non disclosure of certain information and banking practices I have now become aware of. I will honour my proposal to hold you harmless to a legal claim (plus expenses) upon the condition you promptly action this notices intent in full and cease and decease any further collection activities.

As can be clearly proven, this default entry was not only added unlawfully but also without merit as no Consumer Credit Agreement exists, doing so has immediately put you liable to a breach of CCA.1974, in particular s.87(1) of said Act; I quote the relevant parts for your perusal:

Section 87(1) of the 1974 Act allows the creditor to send you a default notice giving you fourteen days from the date you receive it to pay the arrears. The default notice must contain all of the necessary information under the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 ('the 1983 Regulations'), which includes:

• A statement saying the notice is a default notice served under section 87(1) of the 1974 Act
• A description of the agreement
• The name and address of both the debtor and the creditor
• Details of the breach (i.e. late payment) and, if the breach can be remedied, the date by which it must be remedied or, if the breach is not capable of remedy, the amount required to be paid after the expiry of the specified date;

I most certainly recall not being in receipt any such notice and as a result I contest the accuracy of the default and until such time you can provide proof that you complied with the above Act, you must remove all derogatory data from the files of any credit reference agency (CRA). As you have already added a default against me, I hereby give you 14 days in which to remove the default or supply me with the Consumer Credit Agreement to enforce the default.

I am more than happy to issue you a Subject Access Request which should include a true copy of the documents I request, which I am hopeful will include a copy of said termination and default notices which, if they are missing, will leave me no alternative but to seek legal enforcement via CPR31.16. Without sight of said default notice, I cannot agree to its authenticity, enforceability or execution and therefore will use this as my claim if I am forced into taking legal action, all costs will also be claimed.

It would, however, be in both our interests if you simply agree to remove the default being that there are so many inconsistencies with the alleged default notice, the execution, the enforceability and the legal compliance that you must surely have no other alternative but to remove it.

As I was never in receipt of any of the statutory documents (Notice of Termination of Contract; Notice of Assignment or Default Notice) then the actual default notice that is shown on my credit file is unlawful and should be immediately removed. I do not want to take this through the courts but I will enforce removal by judgement if necessary, at the end of the day you have acted unlawfully by not issuing a fully compliant and correctly executed legal document.

Therefore, assuming you are happy with my proposal please confirm, in writing on letterheaded paper, the following points will be carried out;

• The Default Notice will be removed
• The Status of the account will change from “Defaulted” to “Settled”
• The Current Balance will appear as £0.00
• The Default / Delinquent Balance will be set to £0.00
• There will be no date in the “Defaulted Date” field (as it will be removed)
• There will be no date in the “Date Last Delinquent” field on the report
• This will apply to all 3 Credit Reference Agencies, namely Experian, Equifax & Call Credit

Furthermore, under the Data Protection Act (s.10), you and your agents are also denied the authority to pass on any of my personal data. To do so in the circumstances is I understand a breach of the Data Protection Act 1998, and also the OFT guidelines, and should you ignore my request it would again result in you being further reported to the relevant authorities.

I also require that you remove all my data from your files once our business is complete and look forward to receiving a letter from you within 14 days confirming that you have complied with this request. Failure to agree will result in more formal proceedings as previously outlined and in the meantime, I look forward to your response.

Yours sincerely


Should I notice the reporting agencies too?
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Re: RBS Credit Card - insists that agreement is not void

Postby no_ta » Wed Jul 21, 2010 9:11 pm

Do you know which agencies reported the default? I had similar problem with Expedia (or something like that), one phone call reversed the situation immediately.
Quite frankly if anyone takes a blind bit of notice of these credit reference agencies, they must have money to burn.
Yes I would most definitely approach whoever and demand any negative report that is un warranted to be removed forthwith, an accompanying notice to inform you prior to publication of any future detrimental reports, otherwise you go for them.
Also ask if they have passed the information to any independant agencies.
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Re: RBS Credit Card - insists that agreement is not void

Postby sosii » Wed Jul 21, 2010 9:30 pm

So far just experian, he's not checked the other two yet, just creditexpert.co.uk and this is the ONLY default on his record, it is immaculate otherwise.

The card was defaulted on in 2006 when my mum passed away, passed to Intrum Justica (DCA), so we know already that it's been paid off as it were. No doubt the original agreement was securitized years ago, would love to find a way to expose that one.

Anyhow, RBS originally defaulted it, but we have no record of the default notice (really), and my dad is worse than me for keeping every document for decades. My notice putting the account into dispute was received on the 4th of June, and the credit report shows the record updated on the 6th. My guess at this point is the DCA did that, but the letter from RBS above reserves their right to do so...

My dad wants this sorted so he can upgrade his car soon.
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Re: RBS Credit Card - insists that agreement is not void

Postby no_ta » Sat Jul 24, 2010 5:17 pm

Come to think of it was probably experian that we encountered, we had another toss pot company called 'risk disc' they actually stated that our holding company had gone into receivership, this info was based on data supplied by experian so you can see just how easily and quickly mis information can get about. The so called error was in the company name being very similar to one which had actually closed.

I would inform them that any unwarranted or improperly weighted discredit information should be made available to you or dad prior to any publicity, and compensation would be sought for any incorrect data being distributed.

If you did find mis information you would have to put a value on the loss, this is sometimes difficult as most of the time it is annoyance rather than monetary loss. I appologise for bringing money into the equation as it is agreed that money does not really exist, and it is without doubt 'the route of all evil'.
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Re: RBS Credit Card - insists that agreement is not void

Postby sosii » Wed Aug 04, 2010 11:53 pm

Little thing to not here, my dad received a 'statement' of account in the post.

I'm treating this as an offer to contract, it quite clearly shows a 'credit limit', presumably available, how so in fact is another thing as no card has existed for over FOUR years. Page 2 has a little wording that quirked my interest, just below "NEW BALANCE" the part "in a specific order", as they say, every word in legal documents in considered important.

If you do not pay off the full amount outstanding, we will allocate your payment to the outstanding balance in a specific order.


It got better, in BOLD, below the "SUMMARY OF BALANCES" I spotted this:

You have failed to make a minimum payment [no punctuation]
Failing to make your minimum payment can mean that you have broken the terms of this credit agreement and could result in us taking legal action against you.


Sounds to me like a benefit being offered to him for a service rendered, on consideration of the 'available' credit on THIS DOCUMENT being the agreement...

Or am I reading too much into it?


Page 1 of Statement

2010_07-28 - RBS Statement p1 Sanitised.jpg


Page 2 of Statement

2010_07-28 - RBS Statement p2 Sanitised.jpg



They seem to be floundering, attempting to contract, the notice period is a week away, before I move for irrevocable estopple.
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Re: RBS Credit Card - insists that agreement is not void

Postby sosii » Fri Aug 06, 2010 8:35 pm

I hate being right so much, as I said in the last post it does appear they are trying it on, calling our supposed bluff.

In the latest letter (unsurprisingly not from an individual given the threat of cpr31.16 in the notice I sent) they have apparently suggested that the statement provided IS the credit agreement! After already admitting misplacing it... Guess their bluff needs called, they say they are not obliged to provide a true copy of the agreement.

2010_08-03 - RBS Reply Sanitised.jpg


Now I will have to rip this apart point by point and notice them that the 'allege breaches of CCA' are factual, return that statement, deny contracting with them and reiterate that the notice stands...

This could be fun.
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Re: RBS Credit Card - insists that agreement is not void

Postby sosii » Sun Aug 08, 2010 4:52 pm

http://www.johnpughschambers.co.uk/Consumer_Credit_(Cancellation...cuments)_Regulations_1983.pdf

They quote Regs 3(2) and 7(1) (b) as being why they need not provide a copy of the original agreement bearing 'wet ink' signatures.

Regulation 3(2) wrote:3 General requirements as to form and content of copy documents

(1) Subject to the following provisions of these Regulations, every copy of an executed agreement, security instrument
or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act
shall be a true copy thereof.

(2) There may be omitted from any such copy--

(a) any information included in an executed agreement, security instrument or other document relating to the debtor,
hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the
Act or any Regulations thereunder as to the form and content of the document of which it is a copy;

(b) any signature box, signature or date of signature (other than, in the case of a copy of a cancellable executed
agreement delivered to the debtor under section 63(1) of the Act, the date of the signature by the debtor of an
agreement to which section 68(b) of the Act applies);

(c) in the case of any copy of an unexecuted agreement delivered or sent to the debtor or hirer under section 62 of
the Act, the name and address of the debtor or hirer; and

[(d) in the case of any copy of an executed agreement given to the debtor under section 77(1) of the Act for fixedsum
credit, or under section 78(1) for running-account credit, under which a person takes any articles in pawn, any
description of the article taken in pawn.]


and
Regulation 7(1) (b) wrote:7 Copies of agreements or security instruments where the agreement or security instrument has been varied

(1) Where an agreement has been varied in accordance with section 82(1) of the Act, every copy of the executed
agreement given to a debtor, hirer or surety under any provision of the Act other than section 85(1) shall include either--

(a) an easily legible copy of the latest notice of variation given in accordance with section 82(1) of the Act relating
to each discrete term of the agreement which has been varied; or

(b) an easily legible statement of the terms of the agreement as varied in accordance with section 82(1) of the Act.

and
Consumer Credit Act 1974 wrote:82.-(1) Where, under a power contained in a regulated
agreement, the creditor or owner varies the agreement, the
variation shall not take effect before notice of it is given to the
debtor or hirer in the prescribed manner.


I was assuming that "varying" the agreement could be synonymous with securitized.
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