Unenforcable Debt?

lizzy23

hello all, can someone explain to me in simple terms what an unenforceable debt is, i believe its a debt that doesn't have a signed credit agreement is that right? it looks like Marbles are going to play silly B's with me but as this card was taken out many years ago online i don't believe that they have a signed agreement from me, i certainly don't remember signing anything, am i right?

Janie4Now

If you signed up on line then you will have ticked the box to accept their terms and conditions. This amounts to an agreement between you.

If there is a debt you are trying to get out of then this argument is not going to work.

lizzy23

Janie4Now wrote: »

If you signed up on line then you will have ticked the box to accept their terms and conditions. This amounts to an agreement between you.

If there is a debt you are trying to get out of then this argument is not going to work.

am not trying to get out of paying any debt, thats why i've gone on DMP just that people talk about UE and i wanted a better understanding of what it is

Janie4Now

Sorry. There have just been two other people on another part of the forum trying to find "legal" loopholes. I shouldn't have assumed that you were trying to do the same thing!

Asbestross

Hi Lizzy,

As I understand it:

If the agreement in question, firstly was actually taken out by yourself, and after 2007 then unenforceability with regards to a Consumer Credit Agreement is very difficult to prove. If a creditor was to take you to court in relation to a debt aquired after 2007, then usually a reconstituted agreement and proof that credit was granted should be enough to prove liability. They dont necessarily require your signature. If the agreement was taken out pre-2007 then they would be required to provide a true, signed copy of the executed agreement in court - so if they dont have a copy of this it would be deemed unenforceable. They could still argue the case on proof of credit being granted, but they would then face the question as to why credit was granted when clearly no agreement was in place.

Obviously there are other aspects to this also, such as s.87 CCA which stipulates that a creditor must provide Default Notices before termination of an account and instructing collection activity. This is more clear cut, as if no Default Notices were served, a judge would recognise that you were denied the legal right to remedy the situation and as such the account terminated incorrectly.

Hope this helps,

VitaK

From what I can understand, and could be wrong.

The debt becomes unenforceble though non compliance with the CCA request. The debt still exist and the creditor can still request payment and report to credit reference agencies. They would however not be able to treated court action when they know they debt is unenforceble.

Regardless, why not send a CCA request and see what they come back with.

Asbestross

VitaK wrote: »

Regardless, why not send a CCA request and see what they come back with.

Whilst I'd never condone shying away from your obligations, I tend to agree with VitaK. Send the CCA request whilst continuing to make payments, if its proven that the debt is unenforceable... then you take what ever action you deem appropriate.

See it from the flip side. If a DCA owed you money, and your paperwork was not in order... do you expect they'd pay you?

Most DCA's are so unscrupulous that they'd take your grandmothers last kidney if they had a scalpel.

lizzy23

Asbestross wrote: »

Hi Lizzy,

As I understand it:

If the agreement in question, firstly was actually taken out by yourself, and after 2007 then unenforceability with regards to a Consumer Credit Agreement is very difficult to prove. If a creditor was to take you to court in relation to a debt aquired after 2007, then usually a reconstituted agreement and proof that credit was granted should be enough to prove liability. They dont necessarily require your signature. If the agreement was taken out pre-2007 then they would be required to provide a true, signed copy of the executed agreement in court - so if they dont have a copy of this it would be deemed unenforceable. They could still argue the case on proof of credit being granted, but they would then face the question as to why credit was granted when clearly no agreement was in place.

Obviously there are other aspects to this also, such as s.87 CCA which stipulates that a creditor must provide Default Notices before termination of an account and instructing collection activity. This is more clear cut, as if no Default Notices were served, a judge would recognise that you were denied the legal right to remedy the situation and as such the account terminated incorrectly.

Hope this helps,

thanks very much yes this helps

VitaK wrote: »

From what I can understand, and could be wrong.

The debt becomes unenforceble though non compliance with the CCA request. The debt still exist and the creditor can still request payment and report to credit reference agencies. They would however not be able to treated court action when they know they debt is unenforceble.

Regardless, why not send a CCA request and see what they come back with.

i might do that if they decide to carry on playing silly B

Asbestross wrote: »

Whilst I'd never condone shying away from your obligations, I tend to agree with VitaK. Send the CCA request whilst continuing to make payments, if its proven that the debt is unenforceable... then you take what ever action you deem appropriate.

See it from the flip side. If a DCA owed you money, and your paperwork was not in order... do you expect they'd pay you?

Most DCA's are so unscrupulous that they'd take your grandmothers last kidney if they had a scalpel.

very true

fermi

Well, when did you take out the account?

If after 1st Jan 2005, then agreeing online via checking a tick box or similar usually has the same legal standing as physically signing a credit agreement.

If after April 6th 2007, then regardless of the above, a court can enforce at their discretion whether a physical or electronic agreement was made or not.

There are 2 elements to enforceability.

(1) With a CCA request, after 12 days the court is not allowed to enforce the agreement until the creditor complies. Compliance does not have to be a signed copy, but must contain the terms of the agreement you took out and as varied after that. They can't just make anything up to suit. Must be based on genuine records of some sort. If no copy of the original is available or can be reconstituted, then they must tell you.

Obviously, that type of enforceability is only ever temporary. If at a later date, no matter how long, they drag together a copy then the the unenforceability under s78/9 appearers.

(2) Where no signed agreement existed for paper agreements containing the "prescribed terms" before April 2007, or taken out online before Jan 2005 (or not done properly after).

Regardless of compliance with a s78/9 request, agreements can then be unenforceable under s127(3) of the CCA1974. i.e. that says that the could should not make an order to enforce an agreement unless one was signed that contained the prescribed terms.

s127(3) was repealed for new agreements from April 2007 onwards, so after that the court has discretion if they can see the debt was taken out. Agreement or no agreement.

(3) As said, correct issue of a default notice can have a bearing. But of course, even of wrong those can be re-issued.

lizzy23

:T

fermi wrote: »

Well, when did you take out the account?

If after 1st Jan 2005, then agreeing online via checking a tick box or similar usually has the same legal standing as physically signing a credit agreement.

If after April 6th 2007, then regardless of the above, a court can enforce at their discretion whether a physical or electronic agreement was made or not.

There are 2 elements to enforceability.

(1) With a CCA request, after 12 days the court is not allowed to enforce the agreement until the creditor complies. Compliance does not have to be a signed copy, but must contain the terms of the agreement you took out and as varied after that. They can't just make anything up to suit. Must be based on genuine records of some sort. If no copy of the original is available or can be reconstituted, then they must tell you.

Obviously, that type of enforceability is only ever temporary. If at a later date, no matter how long, they drag together a copy then the the unenforceability under s78/9 appearers.

(2) Where no signed agreement existed for paper agreements containing the "prescribed terms" before April 2007, or taken out online before Jan 2005 (or not done properly after).

Regardless of compliance with a s78/9 request, agreements can then be unenforceable under s127(3) of the CCA1974. i.e. that says that the could should not make an order to enforce an agreement unless one was signed that contained the prescribed terms.

s127(3) was repealed for new agreements from April 2007 onwards, so after that the court has discretion if they can see the debt was taken out. Agreement or no agreement.

(3) As said, correct issue of a default notice can have a bearing. But of course, even of wrong those can be re-issued.

I'm pretty sure that i've had this account since before 2005, would have to double check what i have at home, i'm going to sort out all my old paperwork out anyway

Lensman_2

lizzy23 wrote: »

:T


I'm pretty sure that i've had this account since before 2005, would have to double check what i have at home, i'm going to sort out all my old paperwork out anyway

Check your credit file (Noddle is free). If it is listed it will give the start date of the debt.

Another way a debt can be unenforceable is via the Limitation Act 1980. (I.e. statute barred). A statute barred debt in English law is exactly that - unenforceable. It still exists and they can still ask for payment. However, very few creditors fail to respect a letter saying that you will not pay and to cease communication.

The debt still exists though and can be claimed from your estate when you die.

In Scottish Law, the debt is wiped when it exceeds the limitation period. A far fairer system I think.