Unenforceability & Template Letters

never-in-doubt

never-in-doubt wrote: »

So get your credit reports and then let me know what they say and we'll go from there!

When you get the CRA data through, each entry with a default - if you supply the following info please....

Company name:
Account type:
Started:
Default Balance :
Current Balance :
Defaulted On :
File Updated for the Period to:
Status history: D

tryingto

Thanks very, very much for all your help. It is very much appreciated indeed (despite the woman digs!). Thanks again.

Pink_Mouse

Pink_Mouse wrote: »

A big thank you to Orange Trader and Never in Doubt - it really helps to know that someone out there is prepared to give a bit of guidance.

I know I have to get this sorted but work long hours as my partner is unable to work, he is on DLA for depression. Consequently I often seem to fall asleep when I should be sorting things like this out. Don't start work til 10 am today.

I'm not too sure about my credit rating but have not been refused anything lately.

The mortgage is in my name and at the end of June was 66,500 outstanding, with Northern Rock at 450 per month and then endowment at 143 per month with scottish widows and insurance for mortgage with L&G at 31 per month.

I have five credit cards: Abbey, taken out in 2004, balance - 2620
Barclaycard, 2005 or B4, balance - 1212
Capital One, 2005 or B4, balance - 2730
M & S Money, April 2007 or B4, balance - 9500
Tesco, April 2007 or B4, balance 1478

I also have a personal loan with Northern Rock, 2004, balance 3700

Personal Reserve loan with M&S money, 2000, balance 1900

I bank with Barclays and currently overdraft is 3500.

I work in several jobs and have also recently joined network marketing, by doing different things it means I am able to phone partner at odd times throughout the day to see that he is ok. My income varies between 800 and 1000 a month.

We jointly receive tax credit.

I have copied the letter in the first post and will fill it in tonight. I believe it is just addresses and account numbers that I have to put in?

I have already set up another bank account, would it be best to have all money paid into the new one from now on and transfer over my direct debits on priority payments?

How about payments for my credit cards, they are all on direct debit at the moment but obviously I am sinking fast and if I transfer the dd's on those as well my income won't be enough to pay them, thus getting my new bank account in a mess.

Again thank you.

Oh dear I do hope nothing I wrote above offended anyone, am now worried about that as well as my finances, I'm not a regular poster so hopes it's just that I got overlooked amongst all the other people that are also desperate for help. The above post related to my first one and replies dated Thursday 3rd. Any further help would be great as I have the letters but am still a bit unsure about sending them as it has got to the point where I can't afford to pay.

never-in-doubt

Pink_Mouse wrote: »

Oh dear I do hope nothing I wrote above offended anyone, am now worried about that as well as my finances, I'm not a regular poster so hopes it's just that I got overlooked amongst all the other people that are also desperate for help. The above post related to my first one and replies dated Thursday 3rd. Any further help would be great as I have the letters but am still a bit unsure about sending them as it has got to the point where I can't afford to pay.

Hiya

I'll be back around 7pm, I didnt reply cos I needed to see you online to ask questions ;-)

If your credit file is fine, then non payment will actually affect your ability to get credit. Maybe your best option is a payment plan or similar?

Deffo get yourself a bank account set-up.

So if you stop paying you realise it would affect your credit file..?

itsalldrivingmemad

Thank you NID - you are a star - the one I have had back from Egg is not right so sending your letter do I have to put any specific reasons why on the letter or just send and hope for the best.

I am carrying on with my payments but just asked them to stop the payment to egg this month until I have heard back from them. I will review next month and see if I have had any reply of the others.

Have you had or heard anyone that has done this with egg? What is the normal outcome?

Thanks again for all your help you give everyone on this thread

ExNicotineQueen

never-in-doubt wrote: »

Nothing ever gets 'wiped' because the debt remains but the actual collection process cannot be pursued, if you like. Therefore there is still an entry on your credit file, and if the lender finds the agreement in a years time then they can enforce the debt again!

NID – if the balance remains on your credit reference files, what do they report the status as if you have stopped paying? Zeros? Ones? Twos? Worse? Lol


From my understanding does it work like this? (assuming that there the cc company cannot find the agreement)

1. You write back to them and refuse to pay anymore and send them the letter stating they can’t write any adverse data about you to the CRA’s

2. They write back ignoring this, stating that your account will continue to accrue interest/charges/keep chasing you for payment

3. Eventually your account goes into default/gets referred to debt collectors.

4. You have to write to them to chase them not to include any adverse data about you to the CRA’s including reporting the account has defaulted as there is no agreement

5. They ignore this

6. You take them to court and then it is 50/50 whether the default status gets removed or not

Or, you save up enough money whilst all this is going on and offer them a F&F payment to close the account and remove the default status.

Am I along the right lines? I really appreciate your help.

Also, what happens if you are reclaiming for charges? Can you still go down the CCA route after this?

never-in-doubt

ExNicotineQueen wrote: »

NID – if the balance remains on your credit reference files, what do they report the status as if you have stopped paying? Zeros? Ones? Twos? Worse? Lol

Hiya,

They register a default, usually! Although they cannot do this, it doesn't mean they actually listen and adhere to the laws.

That said, a recent case in Leeds was won whereby the lender had to remove the data so there may be a precedence being set - time will tell if it is used in future reference.

So, assume you're up to date with payments then the lender will register late payments and if you've already defaulted then it doesn't matter what they report really.

In theory you are telling them it is unlawful to register derogatory data without sight of agreement allowing them to post data about you, but they say 'you had the facility so agreed' however this was recently lost in court, as I say. Therefore, it is a gamble ceasing payments but the only way to get them to listen to you is by doing this!

Catch 22 really..... It all boils down to how far you really want to take it, if you're not scared then go to court (you'd most likely win if they cannot produce the agreement)....


My answers below are in red.....

From my understanding does it work like this? (assuming that there the cc company cannot find the agreement)

1. You write back to them and refuse to pay anymore and send them the letter stating they can’t write any adverse data about you to the CRA’s

Yes, if they register anything derogatory against you then you can go direct to the CRA and request they remove the data. If any/both refuse the next course of action is enforcement via the court.

2. They write back ignoring this, stating that your account will continue to accrue interest/charges/keep chasing you for payment

They cannot add charges or chase for payment when the account is in dispute and doing so would result in you reporting them to the relevant authorities.


3. Eventually your account goes into default/gets referred to debt collectors.

Yes, but usually people that take this route already have defaults. Obviously not suggested for people with 'clean' files unless they want to start afresh in a few years time!


4. You have to write to them to chase them not to include any adverse data about you to the CRA’s including reporting the account has defaulted as there is no agreement

Typically, yes. However there is more to it than that, when the account is in dispute they are not allowed to post data - period. This is in breach of CCA. The fact that they have supplied data without your consent (no agreement) is a breach of DPA. The fact the CRA's are displaying this data holds them to Libel (civil action). So as you can see, a lot to go on if and only if, you got the balls to follow it through to the very end.....


5. They ignore this

Like most things, they do what suits them until you enforce it. :mad:


6. You take them to court and then it is 50/50 whether the default status gets removed or not

Well, you'd usually be using CPR31.16 first to demand disclosure of agreement and if they then fail and you win judgement, then you'd use this against them in the unenforceability claim as they failed to produce, on demand, a document required by you to determine if the debt is indeed enforceable.

It gets complex but yea, you would usually win all the time if they fail to produce a CCA.

Or, you save up enough money whilst all this is going on and offer them a F&F payment to close the account and remove the default status.

Noooo - the way F&F work is to use these against DCA's who will accept almost anything. The lender will not, they want full repayment or as near to. However once they sell the debt (maybe for 14p in the £1) then the DCA will bite your hand off if you offer 20p in the £1 won't they? Your bargaining would be that they remove the default in part X for the cash payment and all is forgotten. Some take the bait, others do not.

Am I along the right lines? I really appreciate your help.

Yes, spot on but lots of permutations throughout - nothing is plain sailing and each lender/DCA act differently remember so no two cases are ever the same.

Also, what happens if you are reclaiming for charges? Can you still go down the CCA route after this?

Reclaim charges anytime, don't wait for CCA or anything - get the claim sent in. You must though, ensure that you stipulate they send payment to you via cheque and that it is not to be added to any alleged disputed debt on the account (otherwise they use Right to Offset).

ExNicotineQueen

Thank you once again nid, it's great to have someone knowledgable who is patient and answers questions, no matter how trivial or complex. :T

Pink_Mouse

never-in-doubt wrote: »

Hiya

I'll be back around 7pm, I didnt reply cos I needed to see you online to ask questions ;-)

If your credit file is fine, then non payment will actually affect your ability to get credit. Maybe your best option is a payment plan or similar?

Deffo get yourself a bank account set-up.

So if you stop paying you realise it would affect your credit file..?

Hi NID

Thank you so much for getting back to me, just got in from work and am free for the rest of the evening now.

I found out since my last post that my bank have returned a direct debit for the endowment policy unpaid, not sure if that affects my credit record.

Having done a budget sheet it would seem that I have quite a big gap between income and outgoings, possibly around £600. So not sure about a payment plan as I seem to be running out of money to pay anything with.

I have set up another bank account, it's only basic, no overdraft facility, no credit card or debit card, although it does give me card that guarantees cheques and enables me to get cash from an ATM.

never-in-doubt

Pink_Mouse wrote: »

Hi NID

Thank you so much for getting back to me, just got in from work and am free for the rest of the evening now.

I found out since my last post that my bank have returned a direct debit for the endowment policy unpaid, not sure if that affects my credit record.

Having done a budget sheet it would seem that I have quite a big gap between income and outgoings, possibly around £600. So not sure about a payment plan as I seem to be running out of money to pay anything with.

I have set up another bank account, it's only basic, no overdraft facility, no credit card or debit card, although it does give me card that guarantees cheques and enables me to get cash from an ATM.

Hiya

What kinda mess are you in here? Are you not better posting on the Debt free boards? I think you would be in all honesty......

Regards to bank account, if it has a cheque card then you have a full account - not basic, just with no overdraft maybe. Cheque cards are debit cards and allow you to guarantee cheques, use the visa debit and withdraw cash.

It doesn't matter though, you just needed an account away from your creditors - make sure it is not linked in anyway (i.e. if you owe Tesco do not get a Natwest account or if you owe M&S dont open HSBC).

I'd post your SOA on the debt free board, they will be the best course of help I think...... if you genuinely cannot afford to pay back the debt then you can stop paying altogether but this would mean no credit for at least 6yrs - do you have a mortgage? If so, there is a risk of a charging order as well. Depends on numerous facts and the value of debts.....

http://forums.moneysavingexpert.com/forumdisplay.html?f=76

The guys there may be better suited to help you.......

edit - just seen you have a mortgage and debt with the same lender - not wise, try to avoid this at all costs! Deffo go and post on the DFW boards - they will be better suited to help you out than me. Post a copy of this #115 on there and see what replies you get.