Unenforceability & Template Letters II

Hammerpgh

never-in-doubt wrote: »

council tax debt is different, start a new thread for best response. But yea, their bailiffs still apply the same rules.

But start a new thread for best results.

OK Thanks I'll do as you suggest.

never-in-doubt

steve_3767 wrote: »

Good evening everyone,

I am new here and was wondering if any of you kind people could take a look over my loan agreement and tell me if it is enforceable, i am questioning if the loan in enforceable due to Northern Rock not putting in the agreement about a cancellation/cooling of period??

I welcome any views on this..

That wouldn't qualify, see page 1 - post 5 for the prescribed terms and this clearly tells you what should and should not be present on your agreement.

Regards

St0lli

Hi Niddy! Thanks for your help with Lloyds TSB and taking time to read and reply. Very very much appreciated.

Have a virtual beer on me! :beer:

I'll keep you posted with responses etc (of which I'm sure there will be many )

martinjohn

never-in-doubt wrote: »

3. Nope - doesn't work like that you're asking for them to prove you owe the debt in that respect.

i'm just thinking ahead so that *if* it went to court would you therefore be saying in court that you beleive you dont owe it or i keep thinking that you need to have a "reason" behind all this, i.e.

i didnt understand the agreement as it was not made clear, i thought i would be paying less interest - i wasnt told the APR, the agreement was unfair/unreasonable, i did not know the APR was variable, etc. i.e. you must defend yourself? (all of those seem to apply to me ! lol)

Obviously the letters you send could be used in court, so i believe its important to not shoot yourself in the foot!!! by saying something like, "show me the signature that I KNOW i signed" for example.

Well thats how i see it, but i dont have a law degree... but does anyone on here??

never-in-doubt

martinjohn wrote: »

i'm just thinking ahead so that *if* it went to court would you therefore be saying in court that you beleive you dont owe it or i keep thinking that you need to have a "reason" behind all this, i.e.

It would never go to court - you'd claim unenforceability until such time they provide a true copy. If you still feel that the copy is not good enough, i.e. on microfiche, then you can continue to claim unenforceability as it is up to the lender to bring court action - when they do you request strike-out as the account is in dispute/unenforceable.

If for some reason they then provided the original to the court, you'd then back down and agree to a repayment plan.

Make sense? In essence you stop court action before it gets that far - but the lender would be daft to try it knowing the CCA prohibits any such action when an account is unenforceable.

martinjohn wrote: »

i didnt understand the agreement as it was not made clear, i thought i would be paying less interest - i wasnt told the APR, the agreement was unfair/unreasonable, i did not know the APR was variable, etc. i.e. you must defend yourself? (all of those seem to apply to me ! lol)

None of these apply to unenforceability - you do understand unenforceability don't you? It is you questioning the legality of the agreement using a pre determined set of Prescribed Terms. Have a read of page 1 to learn the basics.....

martinjohn wrote: »

Obviously the letters you send could be used in court,

Yep they could be, and they have done!

martinjohn wrote: »

so i believe its important to not shoot yourself in the foot!!! by saying something like, "show me the signature that I KNOW i signed" for example.

Why? the lender has to tell you if they have a copy of the original - it is unlawful for them to deny having a copy, take you to court then produce a copy - the court would go mad at the lender! It is a total waste of time as in essence you would be using the argument that without a copy of the original agreement you cannot enquire as to the legality and enforceability of the alleged debt.

martinjohn wrote: »

Well thats how i see it, but i dont have a law degree... but does anyone on here??

You don't need a law degree, you need an extensive knowledge of the CCA/CPUTR/CNCD etc which luckily several of us do! ;)

knight_La_Mancha

Hi NID,
A default notice was received for one of my credit card. The account number and the date given to remedy are correct. However, they made a mistake; they did not address the notice to me, instead addressed to someone in the same household. Is this default notice valid? Thank you in advance for your kind advice.


knight La Mancha

bankkiller

knight_La_Mancha wrote: »

Hi NID,
A default notice was received for one of my credit card. The account number and the date given to remedy are correct. However, they made a mistake; they did not address the notice to me, instead addressed to someone in the same household. Is this default notice valid? Thank you in advance for your kind advice.


knight La Mancha

nope, its not valid if its not got your name on it.
if they try to take you to court on the basis of this default then they have screwed themselves I think!
issuing an innacurate default notice will mean that all you need to do is enter your defence that you never received a default notice, hence they commited a criminal offence.

watch them try and get out of that one!

never-in-doubt

knight_La_Mancha wrote: »

Hi NID,
A default notice was received for one of my credit card. The account number and the date given to remedy are correct. However, they made a mistake; they did not address the notice to me, instead addressed to someone in the same household. Is this default notice valid? Thank you in advance for your kind advice.


knight La Mancha

Nope the default is incorrect, although they will not take you to court - no reason to, they have already defaulted you which does not warrant a court 'date'

Basically, if you know you owe the money then you may be better accepting the default and go down the unenforceability route, put it this way the fact they have issued an incorrect default means little in the grand scheme of things as they will simply re-issue one (depends how long ago it was issued)... they usually have 28 days to register and claim the default, after this time if it is incorrect you can have it removed - remember one debt = one default. If they mess it up that is their fault!

So i'd be writing to the CRA's requesting it is removed because it is not relevant to you, send a copy of the default notice and be vague in what you say, simply state this default notice is not yours and so should be removed from your credit file.

Just an afterthought, have you considered that they may add a default against the person it was addressed to? If it is incorrectly served then try the CRA's and if you get no joy there are a couple of templates on page 1, just tweak them to suit and you'll be able to argue your case - pay attention to s.87 & s.88 (CCA 1974) as detailed in the following letter template: #11 (that letter may be fine for you to send to the CRA's - just add a bit about the fact the default notice is not addressed to you)....

Is the entry appearing on your credit file then? If not, is it appearing on the persons credit file that it is addressed to?

never-in-doubt

bankkiller wrote: »

nope, its not valid if its not got your name on it.
if they try to take you to court on the basis of this default then they have screwed themselves I think!
issuing an innacurate default notice will mean that all you need to do is enter your defence that you never received a default notice, hence they commited a criminal offence.

watch them try and get out of that one!

They haven't committed an offence mate, it is easy to rectify. Worse case is Libel (£5k max claim) but as the OP does owe money and is arguing on a technicality most judges will rule for the lender, but the lender hasn't broken any laws as such; it could simply be a typo (unacceptable granted, but easy to prove)....

donna_duck

Hi i am new to posting on this site and have spent about 2 days going through the postings with regards to defaults.
I recently obtaine my DH credit report and he has 2 defaults from Orange which go back to 15.04.2005.
1 default is for £66 and the other £123. I realise that these would be removed from his credit report next year but we want to move house when possible and wld like to get his credit report looking abit better.
If i send Orange a letter with regards to these and make them an offer to pay if the defaults are removed what are the chances of this happening? or is it better to let things lie for another 12 months?
Neither of us can ever remember getting a default notice for either of these accounts but they were started that long ago,£66 one started in 2001 and the £123 started in 2003.

Any advise wld be much appreciated.