Unenforceability & Template Letters

ExNicotineQueen

never-in-doubt wrote: »

You never stop paying if your credit rating is not affected..... the guide within this thread is assumed the lender has issued a default. If you are not in arrears in the first place then naturally, you do not cease repayments.

NID - Lets say the cc company comes back with an unenforceable agreement - at which point then are you supposed to not pay?

Are you supposed to write back to them and say debt is unenforceable therefore I don't owe you anything? Does it have to get to the stage where the cc company will place your account into default and then you send out more letters basically saying they can't issue any adverse data on your credit reference files and then hopefully they will comply?

Sorry for all the questions, just a bit confused! Could you explain further how this works for someone whose credit rating is not 'bad'?

Great guide by the way, the letters and templates are very helpful.

Pink_Mouse

Hi, Please could you tell me which way round I need to tackle this.

We are seriously in debt, although all in my name and having spoken to National Debtline they suggest I write to the credit card companies and ask them to accept a token payment plus freeze the interest.

I am also going to use the templates to see if I can get any of my balances reduced through unenforceable contracts.

Which issue is it best to tackle first to get the best result or doesn't it really matter. My debts have mounted up but not through high living just by paying for food and petrol on cards.

Any advice will be gratefully received.

orangetrader

If you agree a token payment and then challenge the enforceability, the lender may become difficult. Do you have time to do it the other way around?

Pink_Mouse

I suppose it depends on how long it takes to go down the unenforceable route. My overdraft has been over it's limit for the past 4 months and although I still have room on my cards the payments are creeping up thus making my overdraft even worse.

never-in-doubt

millyfox64 wrote: »

hi have received a letter from cabot today who i had never heard of telling me my account was overdue , i rang to see what it was about and they say they took over the debt from creation who i have also never heard of and was apparently a store card i took out in 1990 and last paid in 2000 i have no knowledge of this and told them so they were demanding payment over the phone and i said why would i pay for something that is not mine.i have written a letter telling them its not my debt any more advice please

Hiya

Read this thread: http://forums.moneysavingexpert.com/showthread.html?t=1837507

Then send this letter to them, the debt will also be statute barred, so regardless of whether it yours or not - they are breaking the law by asking for repayment!

Send the following to them and see what they say! #3

Good Luck

never-in-doubt

ExNicotineQueen wrote: »

NID - Lets say the cc company comes back with an unenforceable agreement - at which point then are you supposed to not pay?

This is a tricky one, basically unenforceability works best for those that are already in trouble and already have a default etc registered. If you have an impeccible credit file then whether an agreement is enforceable or not, the result of non payment will leave the lender free to add a default.

Its annoying because I always argue that no agreement means no authority to report data to the CRA's and some back down with this threat but others do not. Point is, if you took it to court then you may get a clean credit record at the end of it - but then again you may not.

Its a risky game to play...... Legally, they say they can add data on account conduct, my argument is without an agreement where is my authority?

ExNicotineQueen wrote: »

Are you supposed to write back to them and say debt is unenforceable therefore I don't owe you anything?

Yes, the debt is unenforceable meaning they cannot pursue repayment, but the debt does remain and so will the payment history and any subsequent reporting to the CRA.

That said, the following quote should deter them; however we all know lenders seem to do their own thing:

Taken from CCA 9174 (s.77(6))

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.

Now where this helps you is the fact that because the account will remain in dispute (no agreement means it is disputed), the lender is not allowed to add derogatory data against you. This though does not stop some lenders adding the default/late payment markers anyway.

ExNicotineQueen wrote: »

Does it have to get to the stage where the cc company will place your account into default and then you send out more letters basically saying they can't issue any adverse data on your credit reference files and then hopefully they will comply?

The process should be:

1. You send CCA Request
2. They failt to respond so you place account into dispute and make it unenforceable
3. The lender confirms they cannot find the CCA so they will not pursue the debt

That is it. However, nowadays the following actually gets added to it.....

3a. They may also mention they are adding a default or whatever against you
4. You then respond advising the above quote - that it is unlawful to take action on a disputed account
5. They ignore this and default you anyway
6. You take them to court and have a 50% chance of winning

If however, you do have to go via court you should mention HBOS-vs-Mitchell (June 2009 in Leeds) as this was a prime example of proving that no agreement (unenforceability) means the lender cannot add data to the CRA's....

Have a read of the judgement: http://forums.moneysavingexpert.com/showpost.html?p=23402091&postcount=4

Thanks go to Orangetrader for this post.

ExNicotineQueen wrote: »

Sorry for all the questions, just a bit confused! Could you explain further how this works for someone whose credit rating is not 'bad'?

Great guide by the way, the letters and templates are very helpful.

Bottom line is if your credit rarting is currently good then you should negotiate without stopping payments. The lender should agree in writing what action they are to take and if unenforceable, then they should not seek recovery nor should they add data to the CRA and if they say they will do this, remind them of the above quote which suggests they are in breach of DPA and CCA 1974 by taking action.

Hope that helps to explain it for you.....

never-in-doubt

Pink_Mouse wrote: »

I suppose it depends on how long it takes to go down the unenforceable route. My overdraft has been over it's limit for the past 4 months and although I still have room on my cards the payments are creeping up thus making my overdraft even worse.

Are any of the accounts from after April 2007? If so, forget unenforceability. Cannot be done. For those prior to this date, then send the CCA Request in post 1 to each lender with a £1 cheque. Do this asap.

Do not agree to token payments or anything just yet - let the lender know you are taking this route.... bear in mind you will need a different bank a/c before you take this route as they may well freeze it all!

If you need more help - just post back with specifics about credit rating, i.e. is it good? Do you have a mortgage? etc etc

Good Luck!

Bleddry

I sent a CCA request, and got the following letter back from the banks in-house solicitors:

'Unfortunately, we are unable to comply with your request as the signature on the letter does not match the given signature on our clients file.
We respectfully request that you resubmit your letter with a valid signature.
We trust this clarifies matters.'

I have been corresponding with these people for some time now, and they have had another CCA request that would have crossed in the post with this letter.
I sign my letters in the same way all the time, so not sure what they are talking about. (I read the advice about printing your name, but too late for that now).
Any thoughts please.

never-in-doubt

smileypuff1 wrote: »

I have never paid anything to either of the debt collectors.

When the credit cards were valid the debt cabot are claiming against was last paid in May 05, and the RBS one in Oct 08. Does this make a difference?

I have recently changed address although am still able to collect mail from the old house, should I tell them im going??

Cant thank you enough for your help NID! Good job there are people like you out there to help, debt can be such a misery!!

Hiya

Just found your other thread about this here: http://forums.moneysavingexpert.com/showthread.html?t=1915441&highlight=

Ok, so you have two creditors and both think you're at the old address? Put it this way, if you ignore them and you have other credit liabilities they will just trace you anyway cos the existing accounts would flag the link and copy the data over so unless you went with a clean sheet and zero credit, then move into the new house and open a basic account somewhere lying about your previous address (say you bummed it on a mates floor for the last 5 years whilst at uni or something) so there was nothing to link you to the previous address, then you 'could' escape it.

However thats not really the best way to go about things, and always carries a risk that they will trace you.

Regards to the dates of the last payment, the one you last paid in 2005 will vanish in 2011 so to be honest try and lay low on that score! With the other one, it will be there for 6yrs since 2008 so may be an idea to look at other avenues. If it is unenforceable though, you could take them to court to remove the data but this could be a little dangerous as you carry a risk of losing.....

Hope that helps.....

Bleddry

Just to add, the first CCA request was not a template letter - just me asking for a copy in response to one of their numerous letters. So when I came across this thread, I sent the formal CCA request incl. £1, which is the letter that will have crossed in the post.