What to do - decision time: bankruptcy or F&F

fatbelly

Deleted User wrote: »

If you went bankrupt, then I believe the Official Receiver would have your pension fund.

Not for a 42 year old

https://www.gov.uk/government/publications/bankruptcy-pension

Maybe not even for a 55 year old

http://debtcamel.co.uk/bankruptcy-pensions-horton-henry/

With 105k debt, no assets and paying £6 per month to your creditors the question you need to ask is

Why should I not declare bankruptcy?

You parents could help you with the £705 fees and save themselves nearly 25k

bennyhill_2

Update:

Wescot x3 replied advising that they aren't the creditor for the accouts and that the postal order needs to be made out to the original creditor (this reads to me as a simple delaying tactic)? New PO's sent again.

The Egg Card serviced through Moorcraft and now owned by Barclaycard I've received a letter from Barclaycard stating:

"With reference to you request blah blah...We need to advise you that, regrettably, we are currently unable to fulfil your request. As such, we are not currently able to enforce our agreement with you and the agreement will remain unenforceable until such time as we are able to fulfil your request.

What this means for you

Whilst discussions continue, we know that we're not able tro enforce our agreement with you, but our rights continue to exist under the agreement.

Your current outstanding balance is (almost £8000) and you will need to continue to pay the debt that's accrued on the account and make payments in accordance with your statements. Blah blah.

This completes our obligations under section 78 of the act."

They randomly included a CCA from Egg which has the my name and (my old) correct address but an incorrect postcode, and nowhere on it is an electronic signature, a date of agreement, or anything pertaining to me.

To me that reads as very contradictory, on the one hand they say they can't enforce, on the other that the debt remains and that I should pay it? Anyone advise if my interpretation is valid - ie: I've managed to wriggle out of that debt? / The letter could be used as evidence that they can't enforce the debt (unless they miraculously can produce a valid CCA).

Sorry for all the questions, I still think bankruptcy will end up being the route I take, but I'm starting to feel there may be light at the end of the tunnel.

One last question can anyone advise if the official receiver allows payments to be made to a pension?

sourcrates

Hi,
Ok, good, they have admitted they have no agreement, that's good news for you, the debt does still exist, but they can't obtain a judgement against you.
Of course they still want you to pay, but now what will they do if you don't ?

All they can do is continue to sour your credit file, or threaten a doorstep collector, etc etc, the legal remedy has been taken away from them, so basically, there's nowt they can do !!!

Keep that letter in a VERY safe place, as you may need it.

bennyhill_2

sourcrates wrote: »

Hi,
Ok, good, they have admitted they have no agreement, that's good news for you, the debt does still exist, but they can't obtain a judgement against you.
Of course they still want you to pay, but now what will they do if you don't ?

All they can do is continue to sour your credit file, or threaten a doorstep collector, etc etc, the legal remedy has been taken away from them, so basically, there's nowt they can do !!!

Excellent, thank you Sourcrates for all your help so far...this particular debt is no longer shown on my credit history. 1 down, 9 to go! :eek:

sourcrates

bennyhill wrote: »

Excellent, thank you Sourcrates for all your help so far...this particular debt is no longer shown on my credit history. 1 down, 9 to go! :eek:

Don't be at all surprised if this debt gets sold on at some point.

They won't tell any other DCA that they don't hold a valid CCA, it may be sold too and fro a number of times, you should respond with a copy of that letter.

fatbelly

bennyhill wrote: »

One last question can anyone advise if the official receiver allows payments to be made to a pension?

This may a bit of a non-answer. On the one hand this is what the technical manual says:

31.7.109 Contributions to a pension or SAYE scheme

The official receiver should examine closely any deductions at source from earnings and consider whether payments or over payments into a pension scheme should be disallowed, as this is not an essential outgoing required to meet the reasonable needs of the bankrupt. In most cases an individual can elect to stop or reduce their contributions to a personal pension for a period of time. Whilst the bankrupt may argue this will have the effect of reducing future income, the official receiver should explain that the cost of maintaining his/her future income should not be made at the expense of his/her creditors.

On the other hand there are plenty of reports of the OR showing no interest in modest pension contributions

[Deleted User]

fatbelly, the Horton-henry case, in which it was ruled that a bankrupt cannot be ruled to withdraw their pension is being appealed sometime next month. I think it's still a grey area but I would be wary if I was petitioning for bankruptcy and also had a healthy pension pot.

fatbelly

Deleted User wrote: »

fatbelly, the Horton-henry case, in which it was ruled that a bankrupt cannot be ruled to withdraw their pension is being appealed sometime next month. I think it's still a grey area but I would be wary if I was petitioning for bankruptcy and also had a healthy pension pot.

I covered this in post #12. The OP said in post #1 that they are 42.

The Horton case is about whether the OR can force someone to elect to deal with their pension in a particular way.

Even using the Raithatha judgement someone under 52 could not have their pot pilfered by the OR as all approved pension schemes remain outside a bankrupt's estate. This means they cannot be claimed by the trustee in bankruptcy. This follows the introduction of the Welfare Reform and Pensions Act 1999.

But I agree that someone aged 52 or more should be cautious until the Horton case is decided.

bennyhill_2

Thank you all for your help so far. Still not 100% which way I'm going to jump yet but increasingly likely that BR is the way forwards.

Cabot have replied now citing they hope to have the requests covered in the next 40 days, so I'll send complaint letters off once it's 30 days post the original request.

AIC had said prior to this letter that BC would accept £3700 f&f (reduced from £5400, they'd stated previously, with the original debt being apx £10500)...

I can't post any images yet but will type up what BC's letter says as I'd appreciate any help regarding exactly what it means...and hopefully I'll be able to post the letter in full soon.

bennyhill_2

The B/C letter reads as follows:

"Dear Mr XXX

Re: Section 78 of the Consumer Credit Act 1974

I refer to your request for information.

The information we must provide to you under the terms of section 78 of the Consumer Credit Act 1974 (the ‘Act’) is prescribed by the act and by the Consumer Credit (Cancellation notices and copies of documents) regulations 1983. Section 78 of the act provides that, where a creditor receives a section 78 request, the creditor will give the debtor a copy of the executed agreement (and any document referred to in it) and a statement of the account.

I enclose a copy of your reconstituted credit agreement. A statement of your account is as below:

- The current credit limit of your account is £0,00.
- The current balance on your account today is £10356.69.

Due to the current status of your account, the full outstanding balance is due now.

We are currently unable to provide a copy of your terms of your credit agreement as varied in accordance with section 82(1) of the act. We accept that we are therefore prevented from enforcing our agreement with you while this state of affairs continues.

Notwithstanding that we currently cannot enforce the agreement, our rights continue to exist under the agreement. You should therefore continue to pay the debt that has accrued on your account. We can and will continue to take any action short of enforcement, which includes reporting to credit reference agencies without also telling them that the agreement is currently unenforceable, demanding payment from you, issuing a default notice to you and instructing a third party to demand payment or otherwise seek to procure payment. We refer you to the case of Philip McGuffick v The Royal Bank of Scotland (2009) EWHC 2386 in which it was held that none of these steps constituted “enforcement” for this purpose.

Please note that the decision in Carey v HSBC (2009) EWHC 3417QB makes it clear that an unfair relationship cannot be said to have arisen between us as a result of the fact we have not currently complied with section 78 of the act. To the extent that you seek to allege that an unfair relationship has arisen, such allegations will be opposed.

This completes our obligations under section 78 of the act.

Yours sincerely

Karen Moore
Barclaycard Customer Services

They included what looks like a standard credit card agreement without any signature, and the only reference to me being my name and previous address printed on a blank page.

Now, if this is unenforceable why are they stating the full balance is due now. Is that just a push that they are trying, and hoping that I would read as it has to be paid now even though they can't enforce it?