Unenforceability & Template Letters

never-in-doubt

Wispa1 wrote: »

Thanks NID for all your help. I have a Fixed loan agreement with First National Tricity Finance taken out Oct 06 but as it was a 12 months interest free credit loan, payments were not due to begin until Oct 2007. I just need some advice on the "prescribed" terms front please. All of the prescribed terms are listed on the agreement apart from the date of the payments. It says "you must pay your first installment 12 months after we open your account, we will write to let you know when that is. Subsequent installments are due on the same day each month" Does this cover the section on payment dates in the prescribed terms and would this make the agreement enforcaeable or unenforceable? Any help is appreciated. Thanks:huh:

From what you've stated i'd guess the debt is enforceable. :huh::huh:

However, no harm in sending the dispute letter (page 1) and see what they say - but to be fair they have complied because they have told you when to pay (not the exact day of the month, but you know to pay something each month right?)......

Sorry but seems they may have crossed their T's and dotted their I's.... :eek:

Wispa1

I thought as much but thanks anyway.

Totally_indebt

Hi NID,

Like many on here, I have read, and re-read all the templates and your words of wisdom, so I thought I should try our luck on persuing unenforceability on Capital One and Natwest for both me and my husbands Ccard debts. Both were issued pre 2004 and having not missed any payments thus far but we are now, like many, struggling to keep up - especially as my husband has just been laid off!

Anyway, took your advice, sent off the first template approx 2 weeks ago. Both me and the husband have Cap One cards, which we took out at the same time.

Yesterday, we got back the first response from Cap One, (not Natwest) and the response was, what appeared to be a generic lettered copy of the CCA. There is nothing with our name on it, no signature, just the CCA with generic terms overleaf.

My question is, in the prescribed terms, for Credit Cards, B,C and D are applicable - but all seem like they appear on there.

Shouldn't they have supplied us with a true copy, with our signature on it? I am assuming that without any form of signature, how can they take us to court to ensure enforceability?

Maybe, I am right in this assumption, and if so, should I send off the 2nd template?

You've probably heard all this a thousand times, but would appreciate your feedback.
Thanks

never-in-doubt

Totally_indebt wrote: »

Hi NID,

My question is, in the prescribed terms, for Credit Cards, B,C and D are applicable - but all seem like they appear on there.

Shouldn't they have supplied us with a true copy, with our signature on it? I am assuming that without any form of signature, how can they take us to court to ensure enforceability?

Maybe, I am right in this assumption, and if so, should I send off the 2nd template?

You've probably heard all this a thousand times, but would appreciate your feedback.
Thanks

Hiya

They wouldn't be able to take you to court - period. They could apply for a CCJ but you don;t need to attend court and like a default, let them issue a ccj - if you don't respond to them after 6yrs it will become statute barred anyway.

Regards to the actual letters, send the dispute/s.10 letter to them anyway - they have seen it all before and if you read this thread Crappy1 are the worst even when i've proved they are wrong! BUT they don't relent - so its up to you what you do next but bear in mind you'll get defaults for missing the payments in which case its 6yrs with no credit.... :beer:

Totally_indebt

Hi NID,

Thanks, so in essence, we have to weigh up the pros and cons, with the fact, that we also have a mortage. So if we tried to re-mortgage with another lender, when the existing fixed term runs out, then we would encounter issues with our credit file - having a CCJ registered and hence, unable to move lender?

Assuming they did issue some form of default or CCJ, could we try your route of removing this, via the templates? Or would we be stuck with this debt for 6yrs, after which like you said, it becomes Statute Barred.

Thanks

cejsmith

I've just recived this nletter from one of the credit card people I'm in dispute with, are they correct in what they say an dwhat options to do think i have?

Thanks

We refer to your correspondence dated 9 October 2009 and apologise for the delay in our
response.
We regret to advise that the card agreement has been misfiled and despite searching of our
records we have been unable to locate it. Our record of the setting up of the card account
has insufficient detail to enable us to recreate the agreement with the required degree of
certainty this course of action requires, and I return your £1.00 fee.
In the circumstances we appreciate that under s.78(6) of the CCA if you decide not to meet
your obligations under the card agreement as they fall due we will be unable to take steps to
enforce repayment of the debt. However we consider that you should continue to meet your
obligations under the agreement bearing in mind that the agreement isn't void, it remains
valid and your continuing default will be reported to the Credit Reference Agencies.
Payments must continue to be paid using your monthly statement which will be sent to you.
Section 78(6) only prevents us from pursuing recovery of the debt through the courts.
Should further assistance be required, please do not hesitate to contact us at the above
Office. _" ... _. _ __'.

never-in-doubt

Totally_indebt wrote: »

Hi NID,

Thanks, so in essence, we have to weigh up the pros and cons, with the fact, that we also have a mortage. So if we tried to re-mortgage with another lender, when the existing fixed term runs out, then we would encounter issues with our credit file - having a CCJ registered and hence, unable to move lender?

Assuming they did issue some form of default or CCJ, could we try your route of removing this, via the templates? Or would we be stuck with this debt for 6yrs, after which like you said, it becomes Statute Barred.

Thanks

Hiya

Yep - you need to decide what is best for you and your circumstances. Obviously, coming off a fixed rate to variable will not result in moving mortgages, nor will the same level of lending with the same lender thus meaning no credit check is done....

However, only if a CCJ is issued and you successfully get it reversed would your file be cleared earlier than 6yrs. Its near-on impossible to get a default removed - unless you're called niddy boy or have the patience of a saint and lots of time (and failed threats).....

But ultimately, only you can decide the best course of action...

never-in-doubt

cejsmith wrote: »

I've just recived this nletter from one of the credit card people I'm in dispute with, are they correct in what they say an dwhat options to do think i have?

Thanks

We refer to your correspondence dated 9 October 2009 and apologise for the delay in our
response.
We regret to advise that the card agreement has been misfiled and despite searching of our
records we have been unable to locate it. Our record of the setting up of the card account
has insufficient detail to enable us to recreate the agreement with the required degree of
certainty this course of action requires, and I return your £1.00 fee.
In the circumstances we appreciate that under s.78(6) of the CCA if you decide not to meet
your obligations under the card agreement as they fall due we will be unable to take steps to
enforce repayment of the debt. However we consider that you should continue to meet your
obligations under the agreement bearing in mind that the agreement isn't void, it remains
valid and your continuing default will be reported to the Credit Reference Agencies.
Payments must continue to be paid using your monthly statement which will be sent to you.
Section 78(6) only prevents us from pursuing recovery of the debt through the courts.
Should further assistance be required, please do not hesitate to contact us at the above
Office. _" ... _. _ __'.

Yes thats good news mate - they have now confirmed the debt is unenforceable - yipee - result!

The down side is the fact they will continue to report to the CRA's (which you knew and I did remind you at the time).... therefore 6yrs after the default date or last payment, the entry will disappear and the debt will become statute barred.

As things stand thats it, you owe them nothing and should never pay them a penny again! :T

cejsmith

Here is a question, if the debt is unenforceable. How can they put a default on me , also could I offer to pay them back the outstanding ammount , if they refund all charges and interest since the card was taken out???

never-in-doubt

cejsmith wrote: »

Here is a question, if the debt is unenforceable. How can they put a default on me , also could I offer to pay them back the outstanding ammount , if they refund all charges and interest since the card was taken out???

Its not as simple as that!

They cannot legally add a default cos a non compliant agreement means that you technically have not given authority to share data so you're right but the problem is that they will and do add a default knowing you can't take them to court (or won't cos the costs could outweigh the debt)....

Its a catch 22 - sue them for default removal enforcement if you want but personally, i'd not be going down this route. You can win if you have a valid argument, but if you lose then the floodgates open for costs etc...

You should have already made a claim for unfair charges, if not do this asap - they automatically deduct the amount from the balance so don;t expect a cheque!

They will not remove the default, no matter what you do! Its not in their interests to do it - different had you paid before things got so far, but not now.....