Can Anyone Help re Creditor doesnt have copy of Loan Agreement

amnud

Hi,
I was hoping you could give me some advice.
RSB have admitted that they have lost my signed loan credit agreement, and just sent a leter to state:-
date and amount loan taken
total paid to date
balance
and no of payments left and monthly payments

So I used a template letter to say basically the loan unenforcable and have cancelled the direct debit and this is the reply:-

Further to your recent letter as we have explained your credit agreementt has been misfiled. We acknol that if you fail to make the repayment due under the terms of the loan agreement we will be unable to pursue recovery action through the courts until we can loacte a copy of the agreement and provide a true copy in compliance with our obligations under s77 of the CCa.

We would, however, remind you that whilst we are currently unable to take legal action to enforce the loan this does not affect the the validicity of the underlying debt. Section 77 of the CCa does not make the agreement void, therefore as the debt still exsists we are entitled to carry out actions that do not amount to enforcing the agreemnt, as confirmed by recent case of McGuffick V RBS. We therefore reserve our right to register any default with the credit ref agencies in the event that you fail to make repayments as they fall due. The recent case of McGuffick v RBS confirm that this would not constitiute unlawful harassment.

Re your claim that we are unable to take any legal action against an account while it remains in dispute, our position is that where a card agreement is unenforcable by application of s77 (4), the agreement can be rendered enforcable by our default being cured. The amount owed is not disputed. The dispute relates to a disagreement over the effect of s77 (4). The dispute does not relate to the amount owed. In the circumstances there is no restriction on us passing default details to credit ref agencies or taking other actions which do not amount to enforcing the agreement.

We note your request under s10 of the DPA 1998 and we refer you to s10 (2)(a) and schedule 2 pararaphs 1 and 2(a) of the same act. We consider that any processing of your personal data is fair, lawful and warrented in the circumstances. Given that you have previously given consent to the processing of your data in relation to the loan agreement, and we need to process that data in order to manage and operate your loan agreement for you and comply with our legal obligations under the CCA to issue notices and statements in relation to the agreement, we do not accept your request under s10 and do not intend to comply with it.

The ICO have considered the circumstances in which the credit ref agencies should be permitted to record details of unenforcable credit agreements. The ICO has expressed the view that where a credit agreement clearly existed and credit has been provided to the debtor and notwithstandin that it may not fulfil all the requirements of the CCA and as a consequence, the agreement is unenforcable, it is apropiate for info about the agreement, including any failure by the debtor to repay his debt, to be recorded with the credit ref agencies. A factor in the view experssed is that responsible lending decisions are dependant upon lenders recieving accurate info about individuals ability (and/or inclination) to repay their debts.

In view of the above, we suggest that you reconsider your position and advise us accordingly.

They have now taken a loan payment from my bank account using inter branch transfer.

Please can you advise where we stand on this matter?

Many Thanks

AMBERSHADOW

If they have confirmed this I would move my money to another bank account

amnud

Do you mean cofirmed that they do not have a credit areement?

The funds have definatley been removed from my bank account by inter bank transfer as i cancelled the direct debit with my bank part of RBS and in my letter to the loan part of RBS told them ive cancelled DD for the loan.

Sorry if this comes across a bit stupid, but new to this and would like your opion if RBS can chase for loan repayments or take money after saying lost loan agreement and what do i reply to their letter?

Many Thanks

Oneday77

Looks like this si the new stance after th erecent court cases. Never-in-doubt or Fermi will be the best ones to reply to this I think.
I would however get your bank account moved to a new bank. Admittedly I would possibly question the action of taking a payment even though the agreement isn't considered enforcable an dthey have mis-used their power over your available funds in a current account.

DisgruntledGoat

This is pretty much what i'd expect following the recent court case. They're saying they can't enforce it until they can provide a 'true copy'

We acknol that if you fail to make the repayment due under the terms of the loan agreement we will be unable to pursue recovery action through the courts until we can loacte a copy of the agreement and provide a true copy in compliance with our obligations under s77 of the CCa.

but the debt hasn't gone away

We would, however, remind you that whilst we are currently unable to take legal action to enforce the loan this does not affect the the validicity of the underlying debt. Section 77 of the CCa does not make the agreement void, therefore as the debt still exsists

and will be flagged on your credit file until you pay it

The ICO have considered the circumstances in which the credit ref agencies should be permitted to record details of unenforcable credit agreements. The ICO has expressed the view that where a credit agreement clearly existed and credit has been provided to the debtor and notwithstandin that it may not fulfil all the requirements of the CCA and as a consequence, the agreement is unenforcable, it is apropiate for info about the agreement, including any failure by the debtor to repay his debt, to be recorded with the credit ref agencies.

So I suspect that your credit rating is toast until you settle the debt - I rather suspect that it'll be viewed as a very black mark by lenders unless the courts refine their position regarding reporting to credit agencies.

As for taking payment, get all your money out of RBS and any associated companies asap. I'm not entirely sure what they mean by

Section 77 of the CCa does not make the agreement void, therefore as the debt still exsists we are entitled to carry out actions that do not amount to enforcing the agreemnt, as confirmed by recent case of McGuffick V RBS.

but in general it's not that unusual for banks to go raiding other accounts in the event of a default on other debt

burton_trade_kitchens

Amnud,
You need to post to never in doubt mate.
He'll put you in the right direction.
Personally I think you are high and dry and I'm sure he will agree.
A default is better than having a huge debt to pay anyday.
Life goes on.....

amnud

Hi,
Many thanks for your reply, please can you advise how I post to NID?
Thanks

burton_trade_kitchens

Hi.
If you put unenforcable agreements into the search box, them click forums and pick the thread named unenforcability and template letters 2.
When this comes up it is written by never in doubt and you can reply asking for his help pesifically or pm him.
Good luck he's good...

never-in-doubt

Hiya

This is normal, basically you'll get a default but they cannot pursue the debt through the courts, i.e. no court order/ccj etc can be issued unless they find the original agreement. If they find the original then you have to start paying again, obviously (or take your chances lol)....

They will hassle you, but legally you do not have to pay.

If you have other accounts with the same bank you need to move them immediately as they will utilise RoSo (Right of Set-off) and take the funds - basically cut all ties. Yea, you'll get a default as I mentioned but its either that or pay the loan back - not a hard choice for some to make, those that struggle to make the right choice should not consider unenforceability as it does come with risks, one such risk being your credit file will be up the creek for 6 years from date of default.


Hope this helps....

never-in-doubt

burton_trade_kitchens wrote: »

Hi.
If you put unenforcable agreements into the search box, them click forums and pick the thread named unenforcability and template letters 2.
When this comes up it is written by never in doubt and you can reply asking for his help pesifically or pm him.
Good luck he's good...

Is he good mate? lol - thanks

Linky: Unenforceability & Template Letters II