Unenforceable debt?

Pablo0538

(long post warning sorry!)

I got into some financial trouble years ago (2005) and defaulted on a number of debts. Two of these were credit cards originally from c.2001 (MBNA, Marbles) and were quickly sold to Cabot. I have cleared all of the other debts now, apart from these two.

I have a perfect record since on my payment plan with Cabot, for approaching 7 years now – so long that the original defaults and the debts themselves have now dropped off my credit file completely.

Over the last 7 years I have paid them far, far in excess of what they will have paid for the actual debt itself. I’ve paid over £3,000 while I know they won’t have paid more than 10p in the pound for it, so about £800 - £900 max.

But rather than keep paying £37 a month ad infinitum to clear what is still nearly £6,000 in total debt, I have made several offers for full and final settlement – I want to get my monthly expenditure down as much as possible. My problem is that they are being completely ridiculous (in my view) and won’t accept anything under £5,000 as full and final. I just don't have this, and if I did I wouldn't give it all to them!

Given the debt is now with a DCA, and has already been defaulted (my understanding is that the same debt can’t defaulted twice?) I have resorted to asking them for a copy of the original CCA. They have told me (over the phone) that they cannot produce it, given the age of the original agreement.

So my question is where do I stand legally (setting aside the moral issues for a moment) if I simply stopped paying the debt? I expect they will harass me – fine, I’m used to that, water off a ducks back – but can they lodge another default on my credit file, or obtain a CCJ?

My understanding here is that they will probably chase hard, but that there is nothing legally they can do now to enforce it (albeit the debt will just sit there). Is this right or am I risking screwing up my credit file again for the next 6 years?

Also, I’m not daft enough to think the debt will be erased, but I am leaning towards not giving them another penny! The original debt I defaulted on before MBNA and Marbles added all of their charges was c.£7k. I’ve since paid back around half of this, and certainly enough to give the DCA a tidy profit. If I stump up another £5k, or repay the whole lot on the drip, they will have made an enormous profit on it. All of the other creditors from the 2005 defaults settled for less than 50% full and final.

Rafter

Not sure I can advise about their unwillingness to accept an offer or non availablity of CCA.

However, was any of the debt penalty charges or payment protection? In which case you may be able to get the charges above £12 and PPI refunded which would eat considerably into the remaining balance?

Good luck

R.

nottoolate

Pablo0538 wrote: »

but can they lodge another default on my credit file, or obtain a CCJ?

cant add another default.

they could try to get a ccj but sounds af if you would have a good chance at defending if they tried. its not always as simple as no cca = no ccj though. sometimes al they have to do is present other evidence enough to convince a court that one was originally singed.

happy_bunny_2

I would write to them, signed for, asking for a copy of the agreement for each account under the Consumer Credit Act. Include a postal order for £1 per agreement.

I did this with MBNA opened 2004 and marbles opened 2002 ish. MBNA (formerly Alliance & Leicester) wrote back and said they couldn't find it and would not take me to court unless this changed. Still paying it so not an issue.

Marbles ignored my letter for a while, but I sent them a written complaint and they also coughed to not being able to find it. Still being paid so not an issue.

So, I still owe the debts and they can pursue payment/issue a default should the need arise, but they can't get a CCJ.

once you know this, you could try to use this to get some charges removed/negotiate a discounted settlement.

chanz4

It can be reconstituted, but as its well over 6 years they dont have to have it

Snowedunder

I had always understood that once payments are re-commenced the default date is re-set? if it is still inside the 6 (5 for Scotland) Statute Barred date?

thechippy

chanz4 wrote: »

It can be reconstituted, but as its well over 6 years they dont have to have it

A recon can be used to satisfy the sec 77/78 request (as per Carey) but they would still need the original in court.

The recon also needs to be accurate. How can they prove it's accurate when there is no original to go by?

thechippy

Snowedunder wrote: »

I had always understood that once payments are re-commenced the default date is re-set? if it is still inside the 6 (5 for Scotland) Statute Barred date?

You can only be defaulted once and the original date remains.

A debt only becomes sb if no payment or acknowledgement of the debt has been made for a clear 6 year period (5 in Scotland)

Once a debt is sb'd there is NOTHING that can be done to un-sb it - not even a judge / court.

izools

I think you're getting a bit confused between the statutory barring laws and default regulations, snowedunder

If a debt has been "acknowledge" by paying towards it in the last six years it isn't considered statute barred.

HOWEVER once an account has had a defualt issued it that is it, there can't be another one. Once an account falls in to default, it remains in default until the amount is paid off.

Defaults are added to the borrower's credit file and removed six years later irrespective of whether they are settled or not. They cannot be re-added after six years. To do so would be a breach of CCA.

OP, you're well within your rights to stop paying, request copies of the original act and original default notices under S78(1) of the consumer credit act. IF they fail to provide this after 14 days you're under to legal obligation to pay.

They are not allowed to add any default data to your credit files at this point - to do so would be illegal in breach of the DPA and tantamount to defamation of character.

Good luck!

thechippy

izools wrote: »

I think you're getting a bit confused between the statutory barring laws and default regulations, snowedunder

If a debt has been "acknowledge" by paying towards it in the last six years it isn't considered statute barred.

HOWEVER once an account has had a defualt issued it that is it, there can't be another one. Once an account falls in to default, it remains in default until the amount is paid off.

Defaults are added to the borrower's credit file and removed six years later irrespective of whether they are settled or not. They cannot be re-added after six years. To do so would be a breach of CCA.

OP, you're well within your rights to stop paying, request copies of the original act and original default notices under S78(1) of the consumer credit act. IF they fail to provide this after 14 days you're under to legal obligation to pay. 12 days

They are not allowed to add any default data to your credit files at this point - to do so would be illegal in breach of the DPA and tantamount to defamation of character. - They still do though

Good luck!

...........;)

Buzby

It isn't Defamation of character - this is well-established. The information is not defined as 'public' and is held by a private company. The information older than 6 years is not deleted but 'invisible' to any enquiries - but anyone with a high enough access at the CRA will be able to see the complete history.

The reason for this is all data has a value, and if (say) the rules changed that allowed data retention for 10, rather than 6 years - the 'old' data would magically appear.

As already mentioned, there cannot be a double default - once a debt appears as a default that it an end to it, irrespective of who else purchased the debt.