Unenforceability & Template Letters II

never-in-doubt · 14 November 2009 at 11:35AM

*** Update to original thread Unenforceability & Template Letters ***

There are still lots of questions going around the forum regards to unenforceability and whether 'you can get your debt wiped' (or words to that effect). The bottom line is that if you have a credit product, from before April 2007, and the company or DCA has already defaulted you then it does no harm whatsoever to apply for your CCA (Consumer Credit Agreement) to check whether it is lawful. To confirm whether it is lawful, the agreement must conform to several criteria, mainly being the Prescribed Terms. The lack of information, lack of signature or even blatant oversight on the part of banks might give you the opportunity to claim your debt agreement is deemed unenforceable.

The Consumer Credit Act 1974 (CCA1974) & Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) set terms for financial agreements and products such as credit cards, loans, hire purchases, mortgages and other forms of borrowing. These regulations included important items that made the agreement legal and sound. Yet despite these laws, many banks did not include all important parts of the loan in the paperwork. If your loan or credit was offered or agreed to with a faulty contract or disclosure, the bank may not be able to enforce the agreement. The process itself is really simple to follow, dependant on the following state of progress you fit into from those shown below.

Some of the recent court cases and judgments are shown below to put your mind at rest, i.e. nothing much has changed whatsoever - if in doubt ask a question and we'll advise as appropriate.

The main 2 judgements, of recent interest are highlighted below;

Carey_v_HSBC_Bank_Plc_{2009}_EWHC_3417_(QB) wrote:

This case is what the recent Manchester Test case will be known as. In a nutshell, the basis of the Judgment was that the claimant should repay the amount owing even though the lender did not have an original agreement. This case also served to highlight the facts of what is deemed a True Copy.

McGuffick_v_RBS wrote:

This case was a unique case in its entirety being that there were specific exclusions to the norm. In a nutshell, the Judgment clarified that a lender can report account conduct (i.e a default) to the CRA's even though the debt is unenforceable.This is not the last of this, more to follow as and when we get updates.

Common abbreviations used throughout this thread

CCA (1974) - Consumer Credit Act 1974
CPUTR (2008) - Consumer Protection from Unfair Trading Regulations 2008
CCAR (1983) - Consumer Credit (Agreements) Regulations 1983
CC-CNCDR (1983) - Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983
DPA (1998) - Data protection Act 1998
CCA - Consumer Credit Agreement
ICO - Information Commissioners Office
FOS - Financial Ombudsman Service
OFT - Office of Fair Trading
TS - Trading Standards
OC - Original Creditor (the lender)
SB - Statute Barred
DCA - Debt Collection Agency
CRA - Credit Reference Agency
FPA - Fraud Prevention Agency

This thread was last updated on: 27 February 2010

never-in-doubt · 14 November 2009 at 1:42PM

To Follow

DarkConvict · 14 November 2009 at 1:45PM

Congrats on the update again,

Will delete if needed.

captainhaggis · 14 November 2009 at 4:44PM

Excellent new thread, NID.

I've just had MBNA on the phone again but this time I answered by mistake. The woman on the other end kept telling me I needed to make a payment because my account was in arrears and if I didn't make a payment immediately, the account would be defaulted. "Go ahead" I told her.

So I think it'll be done shortly.

But hopefully the MBNA one is very much unenforceable so should be fine.

never-in-doubt · 14 November 2009 at 5:26PM

captainhaggis wrote: »

Excellent new thread, NID.

I've just had MBNA on the phone again but this time I answered by mistake. The woman on the other end kept telling me I needed to make a payment because my account was in arrears and if I didn't make a payment immediately, the account would be defaulted. "Go ahead" I told her.

So I think it'll be done shortly.

But hopefully the MBNA one is very much unenforceable so should be fine.

LOL, what are you like! I'd have said the same, something along the lines of 'go ahead and default me, for the record i've requested a copy of the CCA in line with s.88 of CCA1974 and so long as I am taking this action the account remains in dispute. By the way, just thought i'd remind you that taking action against me whilst an account is in dispute is forbidden is it not?'

p.s. 'This call is being recorded'....

See their reaction :eek: :eek:

never-in-doubt · 14 November 2009 at 5:28PM

p.s. if you guys like the new thread then thank the posts!

lol Anyone would think you're on a thanks sabattical.... :eek:

scarednshakin · 14 November 2009 at 5:44PM

Fab new thread NID, thanks for all your hard work :T

never-in-doubt · 14 November 2009 at 5:46PM

scarednshakin wrote: »

Fab new thread NID, thanks for all your hard work :T

I know mate - should make life easier for any newbies with letters being laid out individually with a brief link to each one at the top.... will increase through time but for now anyone should be able to come, read page 1 and have a good idea what to do! (I hope so anyway lol) :rotfl: :rotfl:

All letters have been updated/revamped but still a few typo's unfortunately cos spell checker is off at work :mad:

captainhaggis · 14 November 2009 at 9:20PM

never-in-doubt wrote: »

.....spell checker is off at work :mad:

Please do me a solid and get me a job at your place. Anywhere that you have enough 'free time' to do all this work during the day seems OK with me!

I was quite surprised re MBNA saying that I hadn't been defaulted yet. I was sure I had been. I was sent a fact sheet from the OFT along with what looked like a default notice. I'll check when I get home (but won't be back for a week). Could she have Bee Essed me in an attempt to get me to pay up?

Actually, stupid question. It's MBNA. Of course she could have. :rolleyes:

DarkConvict · 14 November 2009 at 9:52PM

never-in-doubt wrote: »

lol Anyone would think you're on a thanks sabattical.... :eek:

I recently did the same to the standard letters to creditors topic, the templates are often taken for granted

All thanked.

captainhaggis · 14 November 2009 at 9:56PM

DarkConvict wrote: »

I recently did the same to the standard letters to creditors topic, the templates are often taken for granted All thanked.

Absolutely. I've thanked every post in this thread and also "liked" it.

This thread is one of the most invaluable on this entire forum.

Unenforceability & Template Letters II

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