I need some help with Blair, Oliver Scott (BOS) (Bank of Scotland DCA). My questions are at the end of my preamble.
Here is a brief background to the situation:
2010 lost my job, Owed £20K on five credit cards. Paid for a year then ran out of money. Took advice from National Debtline, and then Set up a DMP with CCCS. Started July 2011, creditors agreed and also agreed not to add interest or charges to the accounts. Everything was fine until Halifax (Bank of Scotland) passed their debt to BOS. They agreed the DMP in writing but then began to send the usual ‘ThreatO’grams’ , coupled with 2 or 3 phone calls per day. I ignored them and sent a Standard anti-harassment letter. This had some effect but I was concerned about the threats of court action., so I decided to limit the possibility.
NOTE: I am still running the DMP. No other creditor has caused me hassle, and so I am reasonably confident that BOS will not go to court under the circumstances. However, just in case, I wanted a solid defence (defences) of some sort.
So I sent a CCA request with a postal order for £1 (which they used as a payment against the debt !). My thinking was that I might be able to put the debt permanently into dispute and prevent any future judgement.
Today I received a reply, posted two days after the prescribed period time limit expired, enclosing a reconstituted agreement which I strongly believe is different from the original, (set up in early March 2007). They did not include a statement of account and did not include documentation which I think they should have (see question 2 below)
1) If the reconstituted agreement is different from the original then they have not complied with S78
Correct ?? I also think the reconstituted agreement does not comply with respect to it’s layout and contents.
2) The OFT guidelines state in relation to the CCA request:-
‘Where an agreement has been varied in accordance with section 82(1) of the Act, the OFT considers that, by virtue of Regulation 7 of the Copies of Documents Regulations, the duty is to provide not only a copy of the agreement as originally executed but also either a copy of the latest variation given in accordance with section 82(1) of the Act relating to each discrete term of the agreement which has been varied, or a clear statement of the terms of the agreement as varied in accordance with section 82(1) of the Act. 2.28 Although some creditors have apparently considered it is sufficient to provide a copy of the current terms and conditions (that is, 'a statement of the terms of the agreement as varied'), that does not comply with the requirements of Regulation 7. In Carey v HSBC Bank plc, there was detailed analysis of this issue and it was confirmed that 'include' meant that the documents showing the variations were to be supplied in addition to a copy of the original agreement.’
Halifax only included a copy of their current terms & conditions but there have certainly been several variations of the original agreement.
3) If I can legitimately place the account into dispute, how long do they have to comply with the CCA S78 before they commit offences under other Acts and compound their offences. (e.g CPUTR)
4) If at the end of the day I cannot dispute the account, and ‘if’ they ever go to court, can I use the Civil Procedures Rules 31.16, pre-action disclosure ? Is it still the case that BOS would have to produce the Original signed agreement and not a reconstituted agreement as per CCA S78(1) ? I read somewhere that this defence cannot be used speculatively.?
5) Should I make an SAR to find out for sure what they have?
What do I do next?
Thanks in anticipation.