CAA request updates / results part 2

never-in-doubt

evilcartman wrote: »

Thanks NID, but I'm even more confused now.

Why, i've explained it in plain English to you!

evilcartman wrote: »

The Section 77/78 request has already been sent and the time limit for them to respond has expired.

Right, so the process is to stop paying after they fail to respond - it is known as the lender being in default (in default of your s.78 request). However if you have a good credit rating - DO NOT cease repayments as the lender will and legally can default you.

evilcartman wrote: »

I lost my job a couple of months ago, there is a debt of about 8k on the card and I can't afford the £180+ monthly minimum repayments that are being taken out.

Ok, so it is because you cannot afford the repayments? Then why not speak to them and ask for payment breaks or even an agreement to reduce the monthly amount or tell them you will pay nothing! Its a case of !!!!!! or bust to them isn't it?

In doing this your credit file will not be as bad, as if you default the account (always the case when you follow CCA process)..

evilcartman wrote: »

So although I do have an excellent credit rating at the moment, I can't maintain it.

Ok, so you're willing to blow a good credit rating for £8 grand? If I were you i'd be looking to get a new card at 0% and BT the balance thus reducing the amount each month - I would NOT CCA them!

A good example, the Virgin 0% card will cost you £160 per month, or the Halifax let you pay 1% on one of their cards - that would be £80 per month....

maybe consider a loan to repay it, I dunno as i'm not a financial adviser but I would not be CCAing them for a measly £8 grand!

evilcartman wrote: »

I thought I was doing the right thing by making a S77/78 request.

Depends on specific circumstances and in your case I feel it not wise, but only you know the true answer to this.

evilcartman wrote: »

I just want to be debt-free

Unenforceability does not make you debt free - you'll have a default for the next 6 years and the debt still remains until 6 years afterwhich it is Statute Barred.

evilcartman wrote: »

and I'm keeping up payments that I can't afford

Then agree to repayment holiday or something - have you spoken to the lender about this?

evilcartman wrote: »

as I thought this could be done without messing up my credit rating.

Impossible, your credit will go to pot.

evilcartman wrote: »

But if you're saying that this is impossible, then I might as well stop making the payments anyway.

Ok, if it is a last resort then fine.

evilcartman wrote: »

How will sending an SAR be better for me?

It won't - read my last post and I told you it was a waste of money didn't I?

evilcartman

But people claim to have been successful in having default notices removed from credit reports, so why is it such a big issue if they serve one?

I have no need or desire for any further credit, my only concern is about !!!!!!ing up my chances of getting a new mortgage if I find a new job in another part of the country (and therefore have to sell my house and obtain a new mortgage to buy one where I move to).

never-in-doubt

evilcartman wrote: »

But people claim to have been successful in having default notices removed from credit reports, so why is it such a big issue if they serve one?

I have no need or desire for any further credit, my only concern is about !!!!!!ing up my chances of getting a new mortgage if I find a new job in another part of the country (and therefore have to sell my house and obtain a new mortgage to buy one where I move to).

People claim whatever they want - each specific case has its own pro's and con's - come on, you don't need me to spell law out to you? No two cases are the same and with specific cases such as unenforceability, case law is referred to a lot of the time.

In your case, they will refer back to McGuffic v RBS (click it to see the judgement) in which the bank won - the argument was about whether they could report data to the CRA's when they did not have an agreement. They won - meaning whatever happened prior to that case stands, whatever happens after it will refer back to this case in law. That case was only a few months ago so it is very recent - defaults will not be removed any longer as lenders will refer to the above case law.

Get it now lol?

A default will affect any mortgage application you make.

evilcartman

The reason I'm confused is that, according to the template letter to be sent once the account is formally in dispute:

"* 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."

If these clauses are true, then what is wrong with me seeking to get this card declared unenforceable? Are the clauses in the template letter above untrue?


Perhaps I should add that I was originally going to instruct a firm that does these cases on a no win no fee basis to act on my behalf. Their advice was to keep up the payments until their lawyers had concluded the case, in order to avoid damaging my credit rating.

Unfortunately by the time I'd finished dithering on whether to go ahead, their solicitors were no longer taking on new cases due to the backlog.

Hence the reason for me belatedly doing a DIY job on it. It sounds like it's much more of a minefield than I thought, so maybe I'm better off going to a law firm after all. Can anyone recommend any ones that are still taking on cases?

fermi

evilcartman wrote: »

Are the clauses in the template letter above untrue?

There was a recent High Court case as posted above by NiD:

http://www.judiciary.gov.uk/docs/judgments_guidance/mcguffick-v-rbs.pdf

where it was ruled that a creditor is still allowed to default you while they are themselves in default of a s77-79 request.

never-in-doubt

fermi wrote: »

There was a recent High Court case as posted above by NiD:

http://www.judiciary.gov.uk/docs/judgments_guidance/mcguffick-v-rbs.pdf

where it was ruled that a creditor is still allowed to default you while they are themselves in default of a s77-79 request.

Fermi - have you seen this - todays ruling!

http://www.consumeractiongroup.co.uk/forum/legal-issues/130101-humbleman-hfc-weightmans-court-20.html

never-in-doubt

fermi wrote: »

Yep. Utterly disgraceful :rolleyes::rolleyes:

What, the dodgy judge or the whole case lol? I can't belive Humbleman lost - its a joke! :rolleyes:

VJohn82 though, stated this:

Clearly a decision against the consumer... fortunately the High Court have already ruled in previous cases to demonstrate how she was wrong.

Therefore any appeal must have merit and I would advise hiring a solicitor/barrister.

never-in-doubt

evilcartman wrote: »

The reason I'm confused is that, according to the template letter to be sent once the account is formally in dispute:

Hence the reason for me belatedly doing a DIY job on it. It sounds like it's much more of a minefield than I thought, so maybe I'm better off going to a law firm after all. Can anyone recommend any ones that are still taking on cases?

Ok, well i've tried. Bottom line here is that no matter who you speak to you'll get a default if you pursue unenforceability and anyone who tells you otherwise is a liar as the case law quoted above will discredit their claim.

You will get a default, accept that then move on. The lenders do what they want, yea we reiterate the law to them but they know we cannot afford to take them on (in court) so they ignore us and this includes adding a default, however the recent McGuffick case changed all this!

Go to a claim company, waste of £500+ - good luck. :rolleyes:

fermi

never-in-doubt wrote: »

What, the dodgy judge or the whole case lol?

Mostly the judge, but also partly that the case was brought at all.

Even the other sides barrister admitted that if he had seen the late disclosed docs sooner, he would have advised the creditor to discontinue.

V John is right. That is only a CC case, so although it is wrong it doesn't set any precedent that others can rely on. Ruling from higher courts to the contrary still apply.

Hence all the clammer for an appeal.

never-in-doubt

Fermi - keep an eye on pt (site team) - he's just said this:

i think that we need to update on how to use CPR 31.14, 31.15 and CPR 15.5 in our favour

those provisions kill cases without even filing a defence.

i may have to start a thread on this

I hope he starts a thread - lol, will come in handy! Shame he was out the country, but any appeal will be successful - surely!