Help to Get my Loan Written off

never-in-doubt

thechippy wrote: »

You're a minefield of info....;)

About this...

"The debtor is complying with an instalment order. This would mean the debt is not actually owed as it is being paid back. " ( being used to set aside)

What if the lender is refusing your monthly offer of payment as they deem it too low(quite common) You could have 25k debt, but only offer £20 per month if circumstances are dire - they will often refuse. Where do you stand then?

I suppose that if you've asked for a cca and it's non complient or does not materialise, then you place the debt in dispute. Is that enough for a set aside??

Regards to your example above, he should be going through the official route by using someone like CCCS or the like, as they will formally do an income/expenditure which if you like, will allow the court to rule that the offer was reasonable - all banks will say they want more but experts know what is considered reasonable as do Judges.

For instance, the bank may ask for £100 per month or they will issue a SD. The customer may only have £120 per month to live on. A court would then not rule against him if he offered a chunk of this. Do you see what I mean? Its not for the banks to determine what is too little an offer, he should seek professional advice.

If the debt is unenforceable then they can do zilch because of that reason, unenforceable means they cannot enforce it and they really wouldn't want to mess with the CCA 1974 as this will eat them alive.... what I mean is if your friend requested a CCA and they did not provide it, then they attempted to issue SD, your mate should be clever and go straight in with CPR 31.16 demanding disclosure using the defence of the SD. As they will be unable to produce the CCA then the SD would fail and your friend would win.....

Sorry after re-reading I do make it sound easy, it isn't - let me make that clear lol!

thechippy

Thanks mate...;)

Because I'm really annoying.......

What if he sends them maybe £20 pm along with a SOA which shows that's all he can do, but in the meantime requests the cca. If he is paying the 20 pm and they try to issue a SD, can it not be set aside on the basis that he is sending them something a month and therefore the debt is not owed as he is trying to pay it off?

Of course, a non compliant cca or one not supplied, is I suppose a different thing, a set aside could be applied for as the debt would be in dispute.

Mind you, are we not often seeing the creditors still pursuing payment, selling debts on and entering defaults, even though they should not be as the debt is in dispute?

Why are they getting away with this??????????

Edit;

Going to get something to eat. Catch you inna bit....

never-in-doubt

thechippy wrote: »

Thanks mate...;)

Because I'm really annoying.......

What if he sends them maybe £20 pm along with a SOA which shows that's all he can do, but in the meantime requests the cca. If he is paying the 20 pm and they try to issue a SD, can it not be set aside on the basis that he is sending them something a month and therefore the debt is not owed as he is trying to pay it off?

Ok, I think unless they have actually started with SD proceedings then we can go round in circles with permutations but suffice to say, if they issue one PM me and i'll certainly be able to post you a letter to get it set-aside.

The thing is, you're linking various different aspects of different laws and ultimately the greater prevails. This means that if your friend is in a lot of debt and did make offers that were continually rebuffed and the lender then applied for an SD - he should be able to get the set-aside based on those factors alone. However, for the same respect lets say he requests the CCA and they do not provide it within the prescribed timescale (12 + 2 days) then he should 'legally' withold payment until such time they produce said document. As they will then attempt to issue SD against him, he'd argue that they are in breach of CCA 1974 and as a result he witheld payment in line with such regulation. Therefore the lender was unlawful in issuance of the SD and it should be set-aside.

Similarly, lets assume that the lender sends the CCA but it does not conform to the Prescribed terms, then your mate should also cease repayments and again, if they try to obtain any form of judgement it should be set-aside on the basis that the account is clearly in dispute and as they cannot produce a lawful CCA their argument fails.

Its a win-win for your mate. Don't be scared by these SD's - they are only good when they are valid and issued on a valid agreement. CCA 1974 is a powerful act which will supercede others so in the case of an unlawful agreement, they would not be able to retain judgement for any SD issued or in issuance.

thechippy wrote: »

Of course, a non compliant cca or one not supplied, is I suppose a different thing, a set aside could be applied for as the debt would be in dispute.

Exactly mate - see above for detailed explanation into various examples.....

thechippy wrote: »

Mind you, are we not often seeing the creditors still pursuing payment, selling debts on and entering defaults, even though they should not be as the debt is in dispute?

Yes of course mate cos a lender will try anything until you point out the law to them. They will try most things but they know the chance of you taking them to court is slim and so they risk playing silly beggars.

Bottom line here, if a lender issues a default when an account is in dispute you cease communication and go straight to the ICO and the CRA's direct. Both have a duty to investigate such cases and will do so, promptly (to reduce any risk of you suing them!)

thechippy wrote: »

Why are they getting away with this??????????

Its isolated cases mate - not widespread......


Hope the above helps, anything else just yell

thechippy

You're a star NID, very interesting stuff.

Sorry for all the questions, but I find all this quite fascinating!
I've got a very inquisitive nature and try to look at things from all angles - perhaps a bit too black & white and logically sometimes. We know that black & white, along with logic seems to rarely apply with the lending institutions.....:rotfl:

Sorry for hijacking this thread btw...:o

I'll be back.........:cool:

never-in-doubt

thechippy wrote: »

You're a star NID, very interesting stuff.

Sorry for all the questions, but I find all this quite fascinating!
I've got a very inquisitive nature and try to look at things from all angles - perhaps a bit too black & white and logically sometimes. We know that black & white, along with logic seems to rarely apply with the lending institutions.....:rotfl:

Sorry for hijacking this thread btw...:o

I'll be back.........:cool:

No worries mate, if you need specific help just PM me later. I'm not an expert on this but understand the basics and know the CCA quite well which is relevant to the CCA requests.

Have a read here of Unenforceability, you may find it answers a lot of other questions you are thinking up lol: http://forums.moneysavingexpert.com/showthread.html?t=1868507

I doubt a lender will apply for SD, its easier and more beneficial to issue Charging Order which is also done through courts so have more 'legal backing' but again, unless they had a watertight CCA then they wouldn't take that risk.....

I think your mate should just request CCA (post 1 here:http://forums.moneysavingexpert.com/showthread.html?t=1868507) and see what they send back. If they do not respond then follow the quide for the next letter etc...... its quite easy and also, in black and white (trying to assume different scenarios)....

Catch you later matey :beer: