No signed credit agreement

serapis

Gordon_Hose wrote: »

Debts post 2007 can be enforced in court using a reconstituted CCA. However, they must prove that what they reconstitute were the Ts&Cs in force at the time.

Pre-2007 then a reconstituted CCA is enough to satisfy a CCA request, but a signed copy would need to be presented in court to enforce.

Plenty of "evidence" on Google, if you search.

There are loads of comments about "reconstituted CCA's" but no explanation of what one is.

Apples2

serapis wrote: »

This loan was taken out before 2007, but can you please provide some backup to your claim about loans taken out after this date. Its a bit odd that the link I provided from the citizens advice bureau would not make any mention of this fact.

Avoiding the legal jargon of the CCA itself, the case of Carey Vs HSBC simplifies it well enough.

http://www.stephensons.co.uk/site/news_and_events/uptodatenews/credit_agreements_carey

The recent test case heard at the Manchester Mercantile Court, Carey v HSBC and others related to the application of section 78 of the Consumer Credit Act (the Act) and whether the failure of a creditor to produce an actual copy of the credit agreement would make the agreement irredeemably unenforceable or at the very least create an unfair relationship.

Section 78 of the Act is the provision under which a debtor can make a request for a true copy of their credit agreement.

The test case appears to have made it clear that creditors are entitled to produce a reconstituted version of the credit agreement from the information they hold on the debtor. The reconstituted version does not need to include a signature box or indeed the actual signature but must contain the debtor’s name and address at the time it was executed.

However, these requirements are not new and consumer solicitors at Stephensons have always maintained that a creditor does not need to produce the actual agreement or a copy of the actual agreement in order to comply with section 78 of the Act. In addition the creditor’s failure to produce a true copy of the agreement was always considered to simply be a bar to enforcement and was never sufficient for the debtor to bring a claim for unenforceability.

http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/OFT1272.pdf

DevCoder

serapis wrote: »

but the debt recovery company has the item listed as "default" and settled on my credit file. I did not default nor have I settled, so I dont see why my credit rating should suffer because of this. This is why I was thinking the signed agreement route. I do not want the money back, all I want is my credit file sorted one way or another.

How was it with a debt management company if you didnt default?

It also sounds like you were in a payment plan, if so then you defaulted.

You technically default the moment you don't make an agreed payment of the original loan/amount. Payment plans indicate a default by their nature.

serapis

krisdorey wrote: »

How was it with a debt management company if you didnt default?

It also sounds like you were in a payment plan, if so then you defaulted.

You technically default the moment you don't make an agreed payment of the original loan/amount. Payment plans indicate a default by their nature.

I wrote to HSBC telling them I had been made redundant and asked to lower my payments. They ignored my requests and kept taking the money out of my current account with them until it was £150 overdrawn. Then they sold it off. According to my solicitor at the time, this was a common tactic of HSBC.

I wasn't in any payment plan at the time the loan disappeared. Nor had I missed any payments. As soon as the debt reappeared, I once again started paying the same amount as before.

All I did was ask for a reduction while I was unemployed. My solicitor tried to chase them for months but no one could find any loan.

I know this is a complicated issue and this is why I am looking at the signed credit agreement avenue as it could be the quickest and most effective way to have the debt removed.

I have done nothing wrong, but due to the banks actions I now have a default on my credit file.

lippy1923

So then you did default. If you were with a debt management company then you would have defaulted, hense your credit file showing this.

izools

As stated, if HSBC aren't able to provide a signed copy of a pre-2007 credit agreement then they wouldn't be able to enforce the debt via a CCJ.

They would still be entitled to default you
They would still be entitled to share this data with credit reference agencies
They would still be entitled to chase for any unpaid amounts outside of court

There was a case some years ago of an individual via RBS wherein precedent was set for the above - e.g. lenders being legally entitled to share data with credit reference agencies where the debt hasn't been enforceable at law.

Like you said, through redundancy you were unable to meet your contractual obligations towards the loan and therefore defaulted on it.

The data is correct and stands whether or not the debt was originally unenforceable at law.

EDIT: The case was McGuffick v RBS wherein it was stated:

We would like to draw your attention to the ruling in the case of McGuffick V RBS judgement dated 6 October 2009 in relation to "what is considered enforcement"; the judgement stated that the bringing of proceedings is not enfocement. It follows that demmanding payment is a step taken prior to the commencement of proceedings and therefore not considered enfocement. We will continue to report the account statement to the Credit Reference Agencies as this is also not considered enforcement.

Whilst we may not be able to enforce the agreement until the documentation is provided, the monies remain outstanding and the underlying obligations to repay remains intact. In view of the above judgement the account will remain with our collections department for collections activity to continue.

Whilst this doesn't specifically and categorically draw attention to the matter of credit reference agency data, this judgement is referred to in any subsequent cases where a borrower asks that CRA data be removed, such requests are denied due to this ruling that "the monies remain(ed) outstanding".

serapis wrote: »

I have done nothing wrong, but due to the banks actions I now have a default on my credit file.

I understand your point - you "did nothing wrong" in so much as you were honest and up front with the lender about your situation from the get go and made every effort to continue meeting your obligations, and continue repaying your debt.

This is admirable.

You were made redundant and unable to find work before the redundancy pay ran out. This is unfortunate.

Through these circumstances beyond your control you were financially unable to continue making your contractual payments towards HSBC.

The default notice on your credit file is a true and accurate reflection of this.

The circumstances that led to this unfortunate happening don't negate the fact that due to circumstances beyond your control, you defaulted and therefore the data is fully correct and legally shared with credit reference agencies.

I know it sucks, and probably makes you quite angry, but as per the letter of the law no one has done anything wrong.

DevCoder

serapis wrote: »

I wrote to HSBC telling them I had been made redundant and asked to lower my payments. They ignored my requests and kept taking the money out of my current account with them until it was £150 overdrawn. Then they sold it off. According to my solicitor at the time, this was a common tactic of HSBC.

I wasn't in any payment plan at the time the loan disappeared. Nor had I missed any payments. As soon as the debt reappeared, I once again started paying the same amount as before.

All I did was ask for a reduction while I was unemployed. My solicitor tried to chase them for months but no one could find any loan.

I know this is a complicated issue and this is why I am looking at the signed credit agreement avenue as it could be the quickest and most effective way to have the debt removed.

I have done nothing wrong, but due to the banks actions I now have a default on my credit file.

You defaulted the moment you didn't make an agreed payment for the original payment amount.

Whether HSBC offered you a reduced payment plan or not doesn't matter as regards the default.

So the default is factually correct.

serapis

krisdorey wrote: »

You defaulted the moment you didn't make an agreed payment for the original payment amount.

Whether HSBC offered you a reduced payment plan or not doesn't matter as regards the default.

So the default is factually correct.

Im sorry but where did I say I didn't pay the agreed amount? HSBC was taking the agreed amount for the loan from my current account anyway right up until when they sold it off, but then it vanished. Neither HSBC or the debt recovery agency could find the loan. Initially all they had was the debt from my current account which I immediately started paying the agreed amount. Then 2 years later the amount I owed suddenly jumped up to include the original loan debt. At this point I increased the amount paid to the same as was paid to HSBC.

lippy1923

I'm royally confused now. Why did HSBC sell the debt to a debt collection company then if you did not default?

izools

OP did default.

They were taking the loan direct debit from an un-funded bank account which itself defaulted due to being overdrawn continually without authorisation.

It would seem that OP also failed to make payments towards the loan for two years.

The OP is very good at twisting things but on the day his bank account with HSBC fell into default, he clearly didn't have sufficient funds to service the loan - if he did, the bank account wouldn't have fallen in to default.

I'm sorry OP but we can see exactly what's gone on here. Please may I draw your attention to my prior post.