Unenforceability & Template Letters

captainhaggis

never-in-doubt wrote: »

No, going down the unenforceability line only shows the lender you know the law - it cannot and will not affect anything you have agreed unless they do not respond and you cease paying, which wouldn;t be a bad thing anyway!

Why pay, the defaults will stay for 6yrs so keep the money until you have established enforceability and lawful agreements.......

Regards to MBNA - you should claim this asap but they will offer to reduce the debt with the refunds so you may have a fight on your hands getting hard currency from them. Regards to F&F offers, once the debt is with a DCA the offers can be much smaller than if with the lender, sometomes as much as 10% of the debt amount!

So you could offer say Egg £4k as F&F on a £10k debt, they say no. However the DCA may only want £1500 to clear it!

So if you were in my situation, you'd probably press ahead?!

Also, is it important to include the "I do not acknowledge the debt" comment at the start of the CCA letters? Is that just a technicality? Because I know I have the debts... I guess it's just somethign you have to say when challenging the enforceability?

Thanks a MILLION!!!!!!!!!!!!!!!!!!!!!!!!!

never-in-doubt

Hiya

Well its hard to say 'go for it' without the facts, i.e. do you have secured debt against your property and do you already have defaults registered? Basically, if you go down unenforceabilty routes then you will end up defaulted which will have an adverse effect for 6yrs, but if you already have the default what have you got to lose?

Yes, you do not acknowledge it until they provide a signed agreement! Follow me....?

captainhaggis

never-in-doubt wrote: »

Hiya

Well its hard to say 'go for it' without the facts, i.e. do you have secured debt against your property and do you already have defaults registered? Basically, if you go down unenforceabilty routes then you will end up defaulted which will have an adverse effect for 6yrs, but if you already have the default what have you got to lose?

Yes, you do not acknowledge it until they provide a signed agreement! Follow me....?

Hi NID.

Yeah - I have secured debts against my property (may I PM you with more specific info?).

I've already got defaults on my file and to be honest I'd rather get rid of the debts by any means possible and endure the 6-years of bother with a crap file than struggle along as I am at the moment. My file's a mess as it is so I'm not fussed about the six year thing.

And I get what you mean about not acknowledging the debt, but couldn't they argue that the very fact that I'm paying them something every month is evidence of my acceptance of the debt?

never-in-doubt

captainhaggis wrote: »

Hi NID.

Yeah - I have secured debts against my property (may I PM you with more specific info?).

I've already got defaults on my file and to be honest I'd rather get rid of the debts by any means possible and endure the 6-years of bother with a crap file than struggle along as I am at the moment. My file's a mess as it is so I'm not fussed about the six year thing.

And I get what you mean about not acknowledging the debt, but couldn't they argue that the very fact that I'm paying them something every month is evidence of my acceptance of the debt?

Hiya,

Ok well so long as you keep upto date with the secured debts - not worth messing about with these and then ignore the others! Or try for unenforceability....

Have you seen your credit files, moreso Experian and Equifax? If so, what kinda data is shown, i.e. defaults and dates etc? This will help more.....

But bottom line, they cannot do much if you can't pay! But whatever you do, pay the secured stuff first and then worry about what is left at the end!

The defaults or entries on the credit files will stay for 6yrs from default date or last payment whichever is first..... so if a few are older dormant accounts then it may be best to leave them alone as they will drop off after 6yrs....

You can PM if you want, but just dont be personal on here and posting on the forum is safe - a lender wouldn't recognise it is you

daz10277

Hiya NID

First of all thanks for all the advice you have provided in this thread, invaluable!

I have read as many posts as possible however I'd really appreciate some advice please. Apologies if you have already answered this elsewhere. As background info I have a £7k debt being collected via a payment arrangement with a DCA (DLC) for some 9 years now due to finish in about 20 years! I defaulted 9 years ago with the OC (HBOS), they sold the debt to a different DCA who then sold it to DLC a few years ago. It has also now dropped off my credit file. They suddenly contacted me recently telling me out of the blue they had pulled a credit report and have seen I managed to get a loan for £15k last month. This was to pay off recent credit card debts but I didn't pay this older debt as I already was paying it and interest was frozen (although morally I suppose I should have paid it first). Anyway, they said they wanted to take me to court for a CCJ as I had the funds but not paid them the full balance due. This got me a bit worried so I read your thread and sent off my CCA request (plus deed of assignment) last week and they have responded as follows:-

"We are still awaiting a copy of the requested documentation from our client HBOS. When this becomes available it will be forwarded to you.

If we are unable to forward a copy of the original document, we will be able to supply a true copy of the document which will comply with section 77 - 79 of the Consumer Credit Act 1974"

My questions are:-

1. Why would they tell me they will send me the CCA from the OC "when it becomes available" when they then say they will send me a true copy regardless? If I have read this correctly, why don't they just send me the alleged true copy they say they can supply rather than wait for one from the OC?

2. If they cannot provide a true copy, I assume from what I have read the debt becomes unenforceable and if I then stop my payments, would the original default re-appear on my credit file assuming they try to update it?

3. They have ignored my request for a copy of the deed of assignment, is this covered under the CC Act and if they don't provide it, does this mean they have no legal proof they own the debt and therefore cannot pursue via the courts?

Many thanks in anticipation!

tryingto

never-in-doubt wrote: »

Hiya,

First thing you should be doing is to send the standard CCA Request letter from page 1 and send it recorded to each lender/DCA that shows on the credit report. Send £1 with each and see what they send back. If nothing, then send the reminder letter, if they send the CCA then read the prescribed terms and check for errors.

If the lender does not respond after about a month then simply stop paying, yea they will default you but if already the case then nothing to lose.

What you have to bear in mind, if these are older debts (look at credit report and see the last payment/default date) and if it is approaching 6yrs old then do nothing cos they will vanish (Statute Barred) after 6yrs and writing in could upset-the-applecart so to speak.

Good Luck

Thanks very much for this. I sent them all the requests over a year ago, and twice again (including dispute letter) (all by recorded by the way). Most have just ignored me, I have had a few back but mostly have been photocopied terms and conditions. I tried after that to get them to send actual copies, but no joy. Not sure what to do next.

I pay them all token payments, so I think that means they won't be statute barred for me. I hoped maybe going down this route might be right but I just seem to get ignored by them really.

never-in-doubt

daz10277 wrote: »

As background info I have a £7k debt being collected via a payment arrangement with a DCA (DLC) for some 9 years now due to finish in about 20 years!

9 years old? woah! Thats harsh - you'd have been better ignoring them and it'd have been statute barred already!

daz10277 wrote: »

I defaulted 9 years ago with the OC (HBOS), they sold the debt to a different DCA who then sold it to DLC a few years ago. It has also now dropped off my credit file.

Can you confirm you were paying the debt for several years and HBOS then sold it? Or were you paying a DCA and HBOS changed DCA's or were you neither paying nor contacting a DCA?

Please clarify and be specific as if you never paid for 6yrs and then started, the DCA would be breaking the law so this is imperitive....

daz10277 wrote: »

They suddenly contacted me recently telling me out of the blue they had pulled a credit report and have seen I managed to get a loan for £15k last month.

Who pulled the credit report and for what purpose? If you're in a payment plan and they are being paid then they have no right to perform a search, nor can they perform a trace as they already are dealing with you....

The fact you got a loan has no bearing and just ignore them if they mention this from now on, its none of their business if you're in a payment plan already (even if you weren't tell them to smeg-off!)

daz10277 wrote: »

Anyway, they said they wanted to take me to court for a CCJ as I had the funds but not paid them the full balance due.

They said what? LOL - good luck to them! No judge would award a CCJ for this, you're in an agreed repayment right? Therefore they have no right to do anything! Out of principle, being they cannot add another default against you, i'd refuse to pay and tell them to get lost! But that's just me - may not be the best thing for you to do!

daz10277 wrote: »

This got me a bit worried so I read your thread and sent off my CCA request (plus deed of assignment) last week and they have responded as follows:-

"We are still awaiting a copy of the requested documentation from our client HBOS. When this becomes available it will be forwarded to you.

If we are unable to forward a copy of the original document, we will be able to supply a true copy of the document which will comply with section 77 - 79 of the Consumer Credit Act 1974"

That's a normal response - don't worry, its unlikely they will find it in which case you cease repayment and tell them to get lost! They cannot touch you if they have lost the agreement and being how old it is, that wouldn't surprise me (by the way you need to demand a copy of the original CCA - not a true copy which means they can send a blank version to you which won't be specific to you!)

daz10277 wrote: »

1. Why would they tell me they will send me the CCA from the OC "when it becomes available" when they then say they will send me a true copy regardless? If I have read this correctly, why don't they just send me the alleged true copy they say they can supply rather than wait for one from the OC?

See above - they can send a true copy which means its the terms from the same type of loan etc but not specific to you, this is why if needs be you demand a copy of the original via CPR31.16 which is a disclosure request. If you think they have lost the original agreement you puch for this cos without the original agreement they cannot touch you!

The DCA may not have seen the agreement so they ask the OC for a copy, knowing HBOS you'll find they cannot supply you it and even if so, it will have errors!

daz10277 wrote: »

2. If they cannot provide a true copy, I assume from what I have read the debt becomes unenforceable and if I then stop my payments, would the original default re-appear on my credit file assuming they try to update it?

You're correct - see above points. They cannot add another default for the same debt, plus the debt would be unenforceable so they cannot enforce it either! Win-Win to you (which I feel is the case anyway)

daz10277 wrote: »

3. They have ignored my request for a copy of the deed of assignment, is this covered under the CC Act and if they don't provide it, does this mean they have no legal proof they own the debt and therefore cannot pursue via the courts?

They have to send a copy if you request it. If not then SAR them and the OC and explain why you're SARing them (makes them scared!) - tell them you feel the alleged debt is unenforecable and so you're establishing the facts and need to see all original documents to prepare court action. Bottom line, they will fob you off - they always do!

Hope the above helps - good luck!

never-in-doubt

tryingto wrote: »

Thanks very much for this. I sent them all the requests over a year ago, and twice again (including dispute letter) (all by recorded by the way). Most have just ignored me, I have had a few back but mostly have been photocopied terms and conditions. I tried after that to get them to send actual copies, but no joy. Not sure what to do next.

I pay them all token payments, so I think that means they won't be statute barred for me. I hoped maybe going down this route might be right but I just seem to get ignored by them really.

Then it is up to you to enforce the threat! If they do not send the CCA then cease payment! This way they have to listen or the debt is uenforceable until such time they comply and send a copy of your agreement!

Obviously you may be defaulted (if not already) by ceasing payments but that is the price to pay unfortunately.... see above case, whereby paying is not always the best method! Had the OP in that case just ignored the lender then the debt would have been cleared over 4 years ago - let alone 20 to go!

My point is you need to do what is right for you, for the moment and short term. So if you don't have a mortgage but have a default, why worry cos the default is already there! That said, the opposite - say you have a mortgage and want to change it, and are just in arrears; then you obviously don't take this action until after you're settled.

You call the shots and you need to be in control, not them

Jackswan_2

I am dealing with my son's credit card excesses from his University days as he is currently working in West Africa. I have sent request letters for him to Natwest and Halifax and have had the standard replies - we have discharged our obligations blah, blah. The second letter was sent to Halifax three weeks ago but no reply, no second letter to Natwest as they were late in replying to the first letter. The DCA for Halifax (second card) have not replied to the first
request for details of the signed CCA.
However, my son entered into a Payplan arrangement but Default Notices were
placed on his file for the three cards, Halifax (first card) in their reply stated that the payment arrangement ended in December 2008 and that the full amount is now payable, no notification was made of this to him in writing.
As the Defaults will be on his file until 2014, is there any point in him contnuing to make payments, especially as the credit card companies have not been able to provide signed agreements ?
Payplan have informed my son that he is perfectly within his rights to pursue unenforceability but they can't advise him, it is his decision, and that if stopping payments to inform them immediately.

never-in-doubt

i'd stop paying, plus the fact he's out the country and coupled with the fact he won't have assets......

Forget unenforceability, as he isn't here, you're not responsible so send mail back as unknown at this address. Then after 6yrs of non payment the debt becomes statute barred anyway.....