Charging Order? The myth
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Hi eggbox, just a question on bankruptcy again. If a creditor applied to make me bankrupt, what would the process be? and what would be the first things I would know about it happening?
Thank's, PB.0 -
The first thing you should get is a Statutory Demand which requests you pay the debt within 21 days. If not paid then the creditor can apply for your bankruptcy.
However, don't assume that receiving a Statutory Demand automatically means the creditor does want to bankrupt you? They can also be used to put pressure on debtors to pay up their debts thinking they are going to be made bankrupt.
Also, if there is no Judgement on the debt they can't usually be issued if the debt is over 6 years old?
You can also apply to set aside the SD if you dispute the debt. This is particularly relevant to any credit card or loan debts, regulated by the CCA 1974, and which were taken out prior to April 2007? This is due to a high number of those debts not being enforceable due to lenders not complying with the terms of the CCA 1974 in their contracts.0 -
You can also apply to set aside the SD if you dispute the debt. This is particularly relevant to any credit card or loan debts, regulated by the CCA 1974, and which were taken out prior to April 2007? This is due to a high number of those debts not being enforceable due to lenders not complying with the terms of the CCA 1974 in their contracts.
How did lenders not comply with terms of CCA 1974, please, Eggbox?
How would you find out if there was no compliance?
D450 -
They were supposed to put the prescribed terms into the contract required under section 60 (1) of the CCA 1974;
s.60 (1)The Secretary of State shall make regulations as to the form and content of documents embodying regulated agreements, and the regulations shall contain such provisions as appear to him appropriate with a view to ensuring that the debtor or hirer is made aware of—
(a)the rights and duties conferred or imposed on him by the agreement,
(b)the amount and rate of the total charge for credit (in the case of a consumer credit agreement),
(c)the protection and remedies available to him under this Act, and
(d)any other matters which, in the opinion of the Secretary of State, it is desirable for him to know about in connection with the agreement.
Many didn't and suffered section 127 (3) of the act that stated;
s.127 (3) The court shall not make an enforcement order under section 65(1) if section 61(1) (a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner)
Meaning they couldn't take Court action if the debtor stopped paying. It should be noted the CCA 1974 was subsequently amended and the above only applies to contracts before April 2007.
You find out if the contract complied by, either, checking your copy of the contract or by paying £1 and requesting a "true" copy of the contract from the lender under s78/79 of the CCA 1974. The debt cannot be enforced until the lender has supplied you with a "true" copy of the contract.0 -
Who do you pay the £1. to?
PB.0 -
The company who owns your loan. If it's been sold on to a DCA they still have to provide the true copy or they can't enforce the debt, either?
A lot of DCA's struggle to comply as the original lender can't find the document or reconstruct an incorrect copy? So it's well worth the effort if the debt is prior to April 2007 and you are being threatened with Court?0 -
They were supposed to put the prescribed terms into the contract required under section 60 (1) of the CCA 1974;
s.60 (1)The Secretary of State shall make regulations as to the form and content of documents embodying regulated agreements, and the regulations shall contain such provisions as appear to him appropriate with a view to ensuring that the debtor or hirer is made aware of—
(a)the rights and duties conferred or imposed on him by the agreement,
(b)the amount and rate of the total charge for credit (in the case of a consumer credit agreement),
(c)the protection and remedies available to him under this Act, and
(d)any other matters which, in the opinion of the Secretary of State, it is desirable for him to know about in connection with the agreement.
Many didn't and suffered section 127 (3) of the act that stated;
s.127 (3) The court shall not make an enforcement order under section 65(1) if section 61(1) (a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner)
Meaning they couldn't take Court action if the debtor stopped paying. It should be noted the CCA 1974 was subsequently amended and the above only applies to contracts before April 2007.
You find out if the contract complied by, either, checking your copy of the contract or by paying £1 and requesting a "true" copy of the contract from the lender under s78/79 of the CCA 1974. The debt cannot be enforced until the lender has supplied you with a "true" copy of the contract.
Thanks, Eggbox… but what's the guessing that they will just 'amend' their agreement and present it as a 'true' copy…?
How to tell if anything has been altered…
Interesting… there may be some old debts which are pre 2008, so I'll have a check.
D450 -
Many have and I've also seen the wrong agreement sent for the wrong account if the person had more than one loan/credit card with the same lender. But from the huge amount of cross referencing that is available on the net (from people who took out the same type of loan/credit card) helps greatly to ensure any "errors" in the information sent are notified.
The "true" copy sent should also be legible which let's many lenders down as the storage method used was poor. Many DCA's, who bought the debt off the original lender, also struggle at times as the lender cannot find the original agreement and the debt becomes Statute Barred before they are able to forward a copy?
I've also seen dozens of cases where Court action by a DCA has been "stayed" due to the defendant exercising his right under CPR 31.14 to request a copy of the evidence document (which should be a copy of the agreement) the claimant is using for his claim? As they, often, aren't using one the claim get's "stayed" as the document never arrives?
However, the real test is if the claimant has a document it is relying on as it is down to the defendant to prove to the Court it's not "enforceable". There was a frenzy of activity on this subject between 2009 and 2015 as many DCA's made Court claims before many of the debt's became statute Barred. There also several Court rulings that defined what had to happen in these cases?
One of the main people who represented defendants with enforceable agreements was Paul Watson who worked for a firm of Solicitors. There is a blog HERE that is a few years old but still a good read on how to approach dealing with any agreement you feel is unenforceable?0 -
choochybaby69
Have sent you details by PM
Hi Eggbox, can I ask that you also share the information regarding the solicitor with me too please?
I find myself in the same situation with CO's for both my wife and myself (both in sole names but registered against a jointly owned property), and we need to sell to relocate to another country...soon.
Many thanks in advance0 -
Hootin-Heck
please see post #31410
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