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  • FIRST POST
    never-in-doubt
    Unenforceability & Template Letters II
    • #1
    • 14th Nov 09, 10:35 AM
    Unenforceability & Template Letters II 14th Nov 09 at 10:35 AM
    Unenforceability & Template Letters II

    *** 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;
    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.
    by Carey v HSBC Bank Plc {2009} EWHC 3417 (QB)
    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.
    by McGuffick v RBS
    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
    Last edited by never-in-doubt; 27-02-2010 at 3:16 AM.
Page 1
  • never-in-doubt
    • #2
    • 14th Nov 09, 12:42 PM
    To Follow
    • #2
    • 14th Nov 09, 12:42 PM
    To Follow


    -------------------------------------------------------------------
    Last edited by never-in-doubt; 27-02-2010 at 2:09 AM.
  • DarkConvict
    • #3
    • 14th Nov 09, 12:45 PM
    • #3
    • 14th Nov 09, 12:45 PM
    Congrats on the update again, Will delete if needed.
    Although no trees were harmed during the creation of this post, a large number of electrons were greatly inconvenienced.

    There are two ways of constructing a software design: One way is to make it so simple that there are obviously no deficiencies, and the other way is to make it so complicated that there are no obvious deficiencies
    • captainhaggis
    • By captainhaggis 14th Nov 09, 3:44 PM
    • 6,075 Posts
    • 11,981 Thanks
    captainhaggis
    • #4
    • 14th Nov 09, 3:44 PM
    • #4
    • 14th Nov 09, 3:44 PM
    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.
    Hi, we’ve had to remove your signature. If you’re not sure why please read the forum rules or email the forum team if you’re still unsure - MSE ForumTeam
  • never-in-doubt
    • #5
    • 14th Nov 09, 4:26 PM
    • #5
    • 14th Nov 09, 4:26 PM
    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.
    Originally posted by captainhaggis
    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
  • never-in-doubt
    • #6
    • 14th Nov 09, 4:28 PM
    • #6
    • 14th Nov 09, 4:28 PM
    p.s. if you guys like the new thread then thank the posts!

    lol Anyone would think you're on a thanks sabattical....
  • scarednshakin
    • #7
    • 14th Nov 09, 4:44 PM
    • #7
    • 14th Nov 09, 4:44 PM
    Fab new thread NID, thanks for all your hard work
  • never-in-doubt
    • #8
    • 14th Nov 09, 4:46 PM
    • #8
    • 14th Nov 09, 4:46 PM
    Fab new thread NID, thanks for all your hard work
    Originally posted by scarednshakin
    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)

    All letters have been updated/revamped but still a few typo's unfortunately cos spell checker is off at work
    • captainhaggis
    • By captainhaggis 14th Nov 09, 8:20 PM
    • 6,075 Posts
    • 11,981 Thanks
    captainhaggis
    • #9
    • 14th Nov 09, 8:20 PM
    • #9
    • 14th Nov 09, 8:20 PM
    .....spell checker is off at work
    Originally posted by never-in-doubt
    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:
    Hi, we’ve had to remove your signature. If you’re not sure why please read the forum rules or email the forum team if you’re still unsure - MSE ForumTeam
  • DarkConvict
    lol Anyone would think you're on a thanks sabattical....
    Originally posted by never-in-doubt
    I recently did the same to the standard letters to creditors topic, the templates are often taken for granted All thanked.
    Although no trees were harmed during the creation of this post, a large number of electrons were greatly inconvenienced.

    There are two ways of constructing a software design: One way is to make it so simple that there are obviously no deficiencies, and the other way is to make it so complicated that there are no obvious deficiencies
    • captainhaggis
    • By captainhaggis 14th Nov 09, 8:56 PM
    • 6,075 Posts
    • 11,981 Thanks
    captainhaggis
    I recently did the same to the standard letters to creditors topic, the templates are often taken for granted All thanked.
    Originally posted by DarkConvict
    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.
    Hi, we’ve had to remove your signature. If you’re not sure why please read the forum rules or email the forum team if you’re still unsure - MSE ForumTeam
  • k4j
    Brilliant new thread N-I-D.
    To be honest I am actually really worried about the baliff part....this one of the reasons why i struggled and kept up with the payments. I will read the thread you posted regarding baliffs. Has many of you guys had baliffs around? I have heard they can get really nasty.
    just one quick question...can i send a cheque to them....my signature will be on it obviously.....but you mentioned not to sign any letters that i send to them. But they can get the sig from the cheque right? and if i send them a postal order instead, what proof would i have?
  • never-in-doubt
    Brilliant new thread N-I-D.
    To be honest I am actually really worried about the baliff part....this one of the reasons why i struggled and kept up with the payments. I will read the thread you posted regarding baliffs. Has many of you guys had baliffs around? I have heard they can get really nasty.
    just one quick question...can i send a cheque to them....my signature will be on it obviously.....but you mentioned not to sign any letters that i send to them. But they can get the sig from the cheque right? and if i send them a postal order instead, what proof would i have?
    Originally posted by k4j
    Hiya

    Honestly don't go worrying about bailiffs! They have as much law as you or I - let me elaborate for you..... worse case scenario but hey - should make you see where i'm coming from:

    Bailiff turns up at my door, I open it and he says he's a bailiff and tries to walk in. I block him and warn him he cannot enter. He continues so I smack him in the mouth and he calls the police.

    The law: I restrained a stranger with no formal government ID (therefore I could refuse access) and he tried to push past me so using self defense I cracked him in the mouth. He would be arrested - not me.

    The bailiff comes and breaks in - Breaking & Entering.
    The bailiff comes armed with the police - they are only there to keep the peace and have no power to force you to let the bailiff in.

    Make sense now? Do not worry about them!

    Re: Cheque payment, yea go for it - just sign it slightly different (your bank won't check it being its a small value) ....... do a deliberate typo and add an extra letter to your name or sign slightly different that would be easy to prove if you needed to go to court (i.e. surname smith = signature smithy!).....
  • never-in-doubt
    OFT Response to 'True Copy'
    What exactly is a True Copy - the same old question that is so difficult to comprehend....

    The following is an extract from recent correspondence between the OFT and a complainant - it should hopefully clarify the meaning of what is meant by the terms 'True Copy'

    True Copy - A Definition by OFT

    A ‘true copy’ of an agreement principally consists of the terms and conditions of the agreement and the statutory content of the agreement.

    The name, address and signature of the debtor do not have to be provided. Additionally, the creditor must supply the total sum paid under the agreement by the debtor; the total sum which has become payable under the agreement but remains unpaid; and the total sum which is to become payable under the agreement by the debtor (the latter two must include the various amounts comprised in that total sum and the date when each is/was due).

    However, the copy must be a copy. It need not be exact on immaterial points, but it cannot be a conjectured reconstruction. If the lender has no original copy, they will have difficulty showing that they have complied with the regulation by supplying a ‘true copy’, since nobody would know what was in the original.

    When the lender comes to enforce the debt in court, they need to have a signed copy of the agreement in order to enforce. As the law stands, currently they cannot otherwise.
    EDIT: Further to discussions with Fermi, it appears although the above is a direct quote from the OFT, it does not constitute law and for all intent and purposes; your name and address should be clearly visible on the agreement regardless what the OFT may say on the matter.

    Interesting Story relating to 'copy documents' here: The Guardian Story & the actual thread on Consumer Action Group (the person is a Cagger)....
    Last edited by never-in-doubt; 15-11-2009 at 8:13 AM.
    • captainhaggis
    • By captainhaggis 15th Nov 09, 7:35 AM
    • 6,075 Posts
    • 11,981 Thanks
    captainhaggis
    What exactly is a True Copy - the same old question that is so difficult to comprehend....

    The following is an extract from recent correspondence between the OFT and a complainant - it should hopefully clarify the meaning of what is meant by the terms 'True Copy'


    True Copy - A Definition by OFT
    Originally posted by never-in-doubt
    Great post. Certainly cleared up a few things for me.

    The 'copy' also doesn't need to include the signatures of either the debtor or the lender.... right?

    So be using the powers of deduction, one can almost assume with some certainty that if the bank sends a 'copy' that HAS been signed by the debtor and the signature is visible, but no address or name details are mentioned, those details probably aren't there in the original (why bother blanking out some of the data allowed to be removed and not other parts of it?).
    Hi, we’ve had to remove your signature. If you’re not sure why please read the forum rules or email the forum team if you’re still unsure - MSE ForumTeam
  • pinkerton_angel
    Hey N-i-d
    Welcome back!! ) any luck with that Cabot letter I emailed you last month? Have also had a response from Littlewoods so will get that one up on here (without the details this time, lol!)
    Thanks
    Pinky
    A&L charges WON - Barclaycard charges WON - MBNAx3 charges WON - Halifax charges WON
    Still fighting: Next/Cabot default - Littlewoods/NDR default
  • Innocent_Guy
    Well done, another good thread.
    Bank Accounts - Barlcays Premier[/B] - £1000 o/d, HSBC - £200 o/d- First Direct - £500
    Credit Cards - [B]Barclaycard £2000 - Silver Card £1300 - Flybe £7500 - HSBC £1000 - First Direct £2500 First Direct Gold £3000
    6 credit accounts closed in 2010!

    Official SOS Club number 001 - Dry until 01.07.10
  • terimon
    Hello again NID

    I have checked Experian and Equifax and myNatWest card the one which they admit is not enforceable is not registered with the CRAs. I am confused as to why not as was checking to see if i had been defaulted before i sent the three letters off to the CRAs.:confused:
  • never-in-doubt
    Hello again NID

    I have checked Experian and Equifax and myNatWest card the one which they admit is not enforceable is not registered with the CRAs. I am confused as to why not as was checking to see if i had been defaulted before i sent the three letters off to the CRAs.:confused:
    Originally posted by terimon
    If it doesn't show on Equifax/Experian then leave it - don't send anything lol...... just leave sleeping dogs lying and make an application for whatever credit you need before they do default you (if they are even planning on it of course)....
  • never-in-doubt
    Hey N-i-d
    Welcome back!! ) any luck with that Cabot letter I emailed you last month? Have also had a response from Littlewoods so will get that one up on here (without the details this time, lol!)
    Thanks
    Pinky
    Originally posted by pinkerton_angel
    Hiya

    I'll sort this for you this week - promise (you need to come online more regular lol) -
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