Unenforceability & Template Letters

never-in-doubt

lisab2009 wrote: »

Hi,

I am quite new to all of this and have a few questions. I have approx £14K debt over about 8 different companies all pre 2007. I have checked my credit report and they have all issued default notices. I was advised by a debt helpline that one of the options would be to wait for the statue of limitation to take effect in 20112012, however i am wondering if any of these debts would actually be enforceable and whether i should do a CCA sec 78 request?

Do not pay any company for help - we'll do it for you for free (can't be bad eh?)!!

Bottom line, they will be statute barred after 6yrs from date of last payment or acknowledgement (5 in scotland). So you go sending off CCA will admit liability meaning the statute barred date will be affected.

Get your credit reports and then post details on here of the last payment made date and the default date and where you're from (England or Scotland) and i'll give you the exact dates and letter to send as and when each becomes legally statute barred.

lisab2009 wrote: »

1. if i send the CCA sec 78 request would this constitute admitting liability of the debt hence the statue of limitation law would no longer apply in the 6 years is up or is it merely in the way i word the letter?

Yes, you're admitting liability - do not do this!

lisab2009 wrote: »

2. I did have a HP agreement of £2600 who agreed verbally with me that they would accept just £700 to settle the debt which leads me to think that they know time is running out to take me to court or they know something may be wrong with the contract? Also i was advised that becuase i had only made them an offer over the phone to repay the debt this would not constitute addmitting i owed it.

Correct, ignore it now and do not speak to anyone on the phone! Everything is done in writing, but just send back anything they send to you as addressee unknown!

lisab2009 wrote: »

The other problem is that some of the creditors havnt actually wrote to me for a few years and i was hoping that they may have forgotten and the limitation law would apply, but on the off chance (more than likley) that they havnt I am wanting to see if the contracts are enforceable at all in an effort to experdite matters rather than having to wait for the 6 years to run out.

I would appreciate any help you could give me. Thanks

Just get the 3 credit reports and post back the details requested and do not speak to or write to any creditors until i've got back to you......

never-in-doubt

ChefBungle wrote: »

Hi All,

Have been reading this thread with great interest - and a special mention has to go to DIN for some fantastic advice.

I have a question about whether or not this process is applicable to loan agreements? I've seen a few references to loans, but all the template letters seem to be applicable to credit card agreements.

I have an RBS/Direct Line loan which has been running for about the last 10 years for the purposes of buying car(s). Every 3 years or so the loan gets 'rolled over' - the loan itself is in my name. The second last time this was done (about 6 years ago) was actually done by my ex-wife and I had no involvement in this conversation and don't remember signing any documentation - I did find it unusal at the time that she was able to phone up on my behalf and get more cash! The last time (about 2.5 years ago) I did it over the phone - again they were able to restart the loan and transferred the money for my new car into my bank account - again I don't remember signing any subsequent paperwork or updating any type of consumer credit agreement.

So does this then make this new debt unenforceable? Any advice would be much appreciated.

Thanks,
Steve

Hiya

Regards to the ex wife - she must have been named on the loan (joint) or they couldn't do that - its simply not allowed! Regards to the verbal offer of the loan, this would be fine if they then sent you a CCA so use letter on page 1 and send CCA request in the first instance.

That said, i'd be looking to fight to legality of the actual loan itself but think you may be facing a costly legal battle to win this so may be best to come to some agreement with them or hope CCA prevails.

Good Luck

p.s. i'm N-i-D not DIN :rotfl:

never-in-doubt

Nearly_Floating wrote: »

Hi All
I don’t know if this is the right place for this but here goes anyway. I’m hoping someone will be able to offer some advice as to what to do next.
My OH and I are currently on a DMP. We owe just under £20k and all the debts bar one for about £450 are in her name. She also has 4 catalogue debts which are not part of the DMP.
I was made redundant earlier this year and as a result we have fallen behind with these.
The catalogue debts are all pre 2007 so we decided to go down the CCA route primarily with a view to getting all the ridiculous “admin” charges removed and to give us some leverage offering low/no repayments at present.
We sent the CCA requests to all 4 on 13th Oct recorded delivery. Three have been delivered so far.
One creditor has replied with what they say is a “True Copy” which has a photocopied signature signed by them but not by my OH. Also the Customer Details have our current address written in, not the address where we were living at the time (don’t know if this is relevant or not).
Intriguingly, in the section labelled “Other Financial Information” it says “Total charge for credit (interest): £XX.XX”. Haven’t got a clue what this refers to.
The amounts owing on these catalogues aren’t particularly huge but our thinking is that since OH already has Defaults from 2 years ago, if we take the unenforceability route with these its only going to add 2 years onto the existing ones.
We will send 12+2 letters to the others in due course but what I really need to know is how to respond to the “True Copy” as they are saying they have fulfilled their obligations under s78
Sorry this is so long for a first post but I wanted to get as much relevant info in as possible.
Thanks

Hiya

You may be better to reclaim all charges etc first then after you've done that you then fight the unenforceability issues. Regards to the one they have sent an unsigned form (meaning it is not yours) you send the following letter...

Regards to credit limit, the blanket value used shows the apr - it is not your limit, but an assumed limit. Ignore this value. If it is there then this part conforms.

Account in Dispute - Section 10 Notice

Dear Sirs,

Account No:

You have failed to respond to my legal request to supply me a true copy of the original Consumer Credit Agreement for the above account. On **DATE** I made a formal request for a true signed agreement for the alleged account under consumer credit Act 1974 s77/8. A copy of which is enclosed for your perusal and ease of reference.

You have failed to comply with my request, and as such the account entered default on **DATE**.
(date = 12+2 days after you sent the CCA request - delete this text)

The document that you are obliged to send me is a true copy of the executed agreement that contained all of the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself as defined in section 61(1) of CCA 74 and subsequent Statutory Instruments. If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document.In addition a full statement of this account should have been sent to me detailing all debits and credits to the account.

Furthermore;

You are aware that the Consumer Credit Act allows 12 (+2) days for a request for a true copy of a credit agreement to be carried out before your client enters into a default situation. This limit has expired

As you are no doubt aware section 77(6) states:

If the creditor fails to comply with Subsection (1)(a) He is not entitled , while the default continues, to enforce the agreement.Therefore this account has become unenforceable at law.

As you have Failed to comply with a lawful request for a true, signed copy of the said agreement and other relevant documents mentioned in it, Failed to send a full statement of the account and Failed to provide any of the documentation requested, any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS. Furthermore I shall counterclaim that any such action constitutes unlawful harassment.

Please note you may also consider this letter as a statutory notice under section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect. This means you must remove all information regarding this account from your own internal records and from my records with any credit reference agencies.

Should you refuse to comply, you must within 30 days provide me with a detailed breakdown of your reasoning behind continuing to process my data. It is not sufficient to simply state that you have a ‘legal right’; You must outline your reasoning in this matter and state upon which legislation this reasoning depends. Should you not respond within 30 days I expect that this means you agree to remove all such data.

Furthermore you should be aware that a creditor is not permitted to take ANY action against an account whilst it remains in dispute. The lack of a credit agreement is a very clear dispute and as such the following applies.

* You may not demand any payment on the account, nor am I obliged to offer any payment to you.
* You may not add further interest or any charges to the account.
* You may not pass the account to a third party.
* You may not register any information in respect of the account with any credit reference agency.
* You may not issue a default notice related to the account.

I reserve the right to report your actions to any such regulatory authorities as I see fit. You have 30 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint. I therefore request a copy of your official complaints procedure which you are obliged to supply.

I would appreciate your due diligence in this matter and look forward to hearing from you in writing within 30 days.

Yours faithfully




Sign digitally

leanne82duke

leanne82duke wrote: »

hey guys, i am past the 30 day point with my cca request to BCW they did not provide me with anything i sent the letter stating that the account was in dispute, they replied stating that they had put the account on hold until they could contact the original creditors.
but they have now started ringing me at least once a day, i have not spoken to them, my husband answered the phone to them yesterday and said that i had requested that they not call me, and they contact me by post only which i had reuested before.
he said the woman was really rude to him on the phone and said that as i could not be bothered to talk to them they had mark it as a refusal on my account, i am a bit confused, what does that mean? and i thought they were not allowed to hassle me when the account was in dispute?

would like some thoughts on this, i have spoken to bcw and told the suprisingly very friendly man on the phone that the account is on hold and that bcw had sent me a letter agreeing to this until they could provide a cca, he knew nothing about it hence why they were still ringing he appologised and left it at that.
this morning though i got a letter from geoffrey parker bourne solicitors, stating pending legal action blah blah blah if i do not pay within 14 days etc...
at the bottom of the letter it says "we are instructed not to enter into correspondance with you please continue to contact bcw". i am confussed.
i know bcw are not allowed to hassle me for the debt and they have acknowledge in righting that the account is in dispute and now on hold, so i do not understand why they are?
my main question is what do i do next?
sorry for the long post x

never-in-doubt

leanne82duke wrote: »

would like some thoughts on this, i have spoken to bcw and told the suprisingly very friendly man on the phone that the account is on hold and that bcw had sent me a letter agreeing to this until they could provide a cca, he knew nothing about it hence why they were still ringing he appologised and left it at that.
this morning though i got a letter from geoffrey parker bourne solicitors, stating pending legal action blah blah blah if i do not pay within 14 days etc...
at the bottom of the letter it says "we are instructed not to enter into correspondance with you please continue to contact bcw". i am confussed.
i know bcw are not allowed to hassle me for the debt and they have acknowledge in righting that the account is in dispute and now on hold, so i do not understand why they are?
my main question is what do i do next?
sorry for the long post x

Hiya

Ok, basically they cannot harass you without such document (your signed copy of CCA) so until they obtain it from the lender (OC) the debt is unenforceable and therefore they will not write to you unless you write to them first....

So what they are doing (surprise surprise) is actually adhering to the laws set in place - well done to them!

However, you basically ignore it now until they come back to you. If they don't, great! You know the default will remain, so you now await statute barred or default removal (whichever occurs first) then its gone and forgotten (usually 6yrs from last payment/default date).

leanne82duke

never-in-doubt wrote: »

So what they are doing (surprise surprise) is actually adhering to the laws set in place - well done to them!

i'm a bit confussed then how can they get away with threatening me with legal action?

never-in-doubt

leanne82duke wrote: »

i'm a bit confussed then how can they get away with threatening me with legal action?

They can't and won't! If they do, then you ignore them - I assume you sent the CCA Request letter (from page 1 here) to them?

edit - sorry just realised that you stated the solicitors stated that you contact BCW! Ok, ignore last post and instead write to bcw and tell them you were sent the letter (attach a copy) and demand they cease forthwith due to lack of CCA. If they continue to harass you, you'll then report them (i.e. bcw) and claim compensation..... this should stop it.

Make sure you do it in writing..... a simple few lines is ample to instrust they call off the solicitors. Do not speak on the phone to them, you need letters! Letters are legally hard to wriggle out of agreements with.

The DCA (i.e. bcw) is legally responsible for the actions of their solicitors so you tell them to get the solicitors to quit writing to you!

leanne82duke

yes i have sent the cca requests etc from this thread and they have written to me saying they can not provide it,

but like i said i recieved a letter from them this morning saying "notice of pending legal action" which i am not worried about but i thtought they could not send anything until they had provided me with my cca.
basically i want to get them into trouble for not sticking to the rules.

never-in-doubt

leanne82duke wrote: »

yes i have sent the cca requests etc from this thread and they have written to me saying they can not provide it,

but like i said i recieved a letter from them this morning saying "notice of pending legal action" which i am not worried about but i thtought they could not send anything until they had provided me with my cca.
basically i want to get them into trouble for not sticking to the rules.

See above post - I edited it (#496)..... should answer your query.

leanne82duke

yep that answers it thanks NID x