Unenforceability & Template Letters III

jim_painter wrote: »

Ok been really dozy.
Sent my first letter but forgot to send it recorded. Luckily the cheque cleared so i have proof they received the letter. No probs.
Havent heard anything from them so sent the reminder letter.
The wife sent it for me but she forgot to do it recorded as well. Do i need to send it again recorded as i have heard nothing so not sure they have received it.

Thanks

Hiya

Just hold fire - give them a month after you sent the reminder, if nothing by then send the reminders again, recorded - but as they cashed payment, you have proof they received it ergo you do not really need to chase them as it is unenforceable until they do respond.....

See what happens, just ignore them until they respond.

handyman123 wrote: »

Do you think I should ask for my £1.00 back? LOL.:rotfl::rotfl:

Haha - classic ..................................... - NO! :rotfl: :rotfl: :rotfl:

There has been a lot of confusion, around what exactly happened with the McGuffick (vs RBS) & Carey (vs HSBC) judgements. This post is designed to clear up some of the myths, especially as lenders are quoting inaccuracies withintheir replies, which is leading to widespread confusion. We'll take a look at each judgement, and what the results of that particular judgement does to affect you, the claimant in your unenforceability quest.

McGuffick vs RBS - Click here to see judgement in full
This case was a little complex, riddled with mistakes and it is little wonder an appeal has not already been set. However, in a nutshell this judgement simply allows for a lender to report your account standing to the CRA's & chase you for repayment, so long as it complies with the OFT Debt Collection guidance, i.e. not harassing in any manner - nothing else has changed, all that's happened is that if you manage to secure unenforceability then the lender or DCA can (and will) report the true account conduct to the CRA's - this means they will default you and add it to your credit file - plus they may hassle you with the odd verbal threat and/or letter. If they do, just ignore them - that is all they can do.

You will get lenders issuing the following, or similar wording, within their reply to you, which is really a more formal format of my explanation above:

Carey vs HSBC - Click here to see judgement in full
This case was slightly more confusing due to the various points that were covered, however in a nutshell this judgement allows the lender to provide a reconstituted agreement when a s.78 request comes in. That simply means that to satisfy their obligation under s.78, they only have to provide you with a "copy" of what the CCA would have looked like, at the time you took out the facility.

Some lenders may think that sending a copy or reconstituted version of the agreement satisfies s.78 in its entirety, it kind of does but what they forget to tell you is that without the original agreement no judgement can be made in a court because s.127 and s.65 of the CCA1974 does supercede CNCD1983, none moreso due to the fact that you have a right to request sight of any original, which should also be supplied in the event of a SAR request or CPR31.14/CPR31.16 request.

Point to note here is that yes, the lender/dca can indeed send a reconstituted copy or a "copy" agreement to you, but in order for them to obtain a judgement (CCJ/CO etc) they must provide the courts with an original agreement. The Carey case was another riddled with errors with the judge already hinting at the outcome, regardless of the case facts. Similarly, I am surprised this has not been set for appeal as yet.

You will get lenders issuing the following, or similar wording, within their reply to you, which is really a more formal format of my explanation above:

libbyjade wrote: »

Thanks Mate - hope you are well,

Another really useful and informative post for those interested in the background on why we can pursue unenforceabilty.

Just one question which has got me thinking.... (not a good idea thinking with a hangover lol) re your surprise at appeals not having been lodged, if they were lodged, does that mean if the appeal decision went in the lenders favour, then the debts could well become enforceable again?

*no letters today as the postie hasn't been yet

Heyup dude - hows the head? Did you win last night? Enjoy your two other women (doner and stella)?? :rotfl:

The debts on both cases were enforceable, the lenders actually won mate by using the above terms to win. Basically the judge does not know CCA and he (like the lenders) rely on info being told to them, by their legal team.

So in essence those two judgements changed history cos before them, the lender had to remove the default and they had to provide the original agreement iyswim?

So they did win, but they were both isolated cases and do not set presedence like people seem to assume..... basically the judge in both cases spoke about the verdict before the actual hearing and it was common knowledge that they both wimped out as they did not understand the intricacies of the CCA/CNCD......

Bottom line, the lender can report to the CRA's (default etc) and they can hassle you for repayment (not in harassming manner) and they can also send a recon at s.78 point of contact BUT (this is the crux of it) if they want to go to court then they must have the original agreement signed by you both!