CCAs for credit obtained after 2007.

jchrispin

I've just CCA'd the debt collection agencies on my DMP. I've been on the DMP for five years now. Five of the debts are with DCAs and the rest (4) are with the original credit company. I've paid around 45% of my debt. I'm hoping that they will take the payments made as settlement. I've currently became a carer so my payments have halved and my income dropped. Not sure if it will work, but will let you know.

I've also sent of PPI claim forms to all my original creditors as well as some old account. One account is particular is Britannia building society where I had mortgages with them over 10 years. I know on one, I paid PPI for three years but not sure on the first one.

Only sent letters yesterday so have a long way to go yet. I wish I'd done this years ago!

Brogden

Thanks for the help I have received so far.

I have just been through my new Experian credit report and one of my cc debts is on an account opened in 2005 ie. pre-2007. I received a letter from the collector indicating they would contact their client who will no doubt have to contact the 2nd OC to see if they ever got a copy of the agreement from the first OC who exited the credit card industry.....:rotfl:!!

I have doubts that the current and previous clowns will be able to get all of this together.

Right.......as this is a pre-2007 agreement, am I correct in saying that if I do not receive a copy of the *signed* agreement ie my sig and theirs that this debt is then certainly unenforcable? Is it as simple as that or is there anything else I should be thinking about?

Many thanks .

TheDebtinator

Re getting the debt cancelled, I'm pretty sure this wont happen (in response to a previous post on this thread)

fermi

Brogden wrote: »

Right.......as this is a pre-2007 agreement, am I correct in saying that if I do not receive a copy of the *signed* agreement ie my sig and theirs that this debt is then certainly unenforcable? Is it as simple as that or is there anything else I should be thinking about?

No, as under s77-9, the signature can be omitted from any copy agreement supplied under that.

s127(3) which still applies to pre-April 2007 agreement says that:

(3)The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

I emphasise the was signed part, since as a s77-9 can omit the signature in any copy, the response to that request doesn't prove conclusively either way whether one was signed if they choose to provide an otherwise valid copy omitting it.

Whether one was signed is something that without concrete proof either way, is something on a court could decide if it goes that far.

I should also note that

(a) a court decides things like that with the civil 'on the balance of probabilities', so genuine evidence for example that shows that the bank etc had procedures in place to make sure nothing was lent out without one being physically signed may be convincing enough to some judges to pass the test that it was more likely that not one did exist, even if it can't be produced in court. Can be fought against, but it's in no means always simple.

(b) many judges will not simply say that absence of an agreement if any sort of evidence or proof, but that you must make some sort of positive assertion in support of any claim that one wasn't signed. e.g. that you recall it was a non compliant application form that was signed, and the card was then issued with a full CCA being signed, or something similar.

Interesting example that illustrates some of that:

http://www.bailii.org/ew/cases/Misc/2012/19.html

Brogden

Thanks again Fermi. I have read through the case on the link. Exciting stuff and just when you think it's going to be enforcable, suddenly it's not!

It's interesting.....with the number of defaulting Barklaycard customers on this forum, you wonder why they go and pick on this chap. I can only assume it is an extended period of nil payments coupled with nil communication. I have always communicated and paid something and have suggested the same to others too who fear court action.

Anyway.....I will not go to court.....period. I have appeared in court on other matters but I would not fight this unless I were being pursued .

OK then.....the question.....IF an actual signed agreement is not required in a pre-2007 case and the overriding decision is with judge and jury (as I think it absolutely always would be) then what is the actual difference between pre and post 2007? I am struggling to see any big difference as it would seem to me to be down to 'the balance of probabilities' which would suggest that a valid agreement were (or were not) signed?

Again, I will say I am not walking out on the debt regardless. My approach would be that in the absence of the valid paperwork, I would take the bull by the horns and make sure everything worked to my advantage in terms of the partial and final settlement. I know this is a little different from that of the defendant here and I am not ignoring the fact that I am fortunate.

In battling the debt, I have several times picked up on the errors and omissions of the predators and turned those to my advantage. That is what I want to do here. Basically.....if you mess up then the advantage is mine. It's like me winning the match because their defence screwed up :rotfl: !!!!

fermi

Brogden wrote: »

OK then.....the question.....IF an actual signed agreement is not required in a pre-2007 case and the overriding decision is with judge and jury (as I think it absolutely always would be) then what is the actual difference between pre and post 2007? I am struggling to see any big difference as it would seem to me to be down to 'the balance of probabilities' which would suggest that a valid agreement were (or were not) signed?

The difference is that the s127(3) was repealed for post April 2007 agreements. So it no longer applies.

i.e.

Pre April 2007 agreements, if judge concludes that on balance an agreement containing the prescribed terms wasn't signed, the s127(3) says he must not make an order enforcing it, full stop. No matter what.

Post April 2007 agreements, even if judge concludes that on balance an agreement wasn't signed, he can still at his discretion make an order enforcing the agreement/debt if he thinks it is due and payable from other evidence. e.g.. statements/records etc show you borrowed/took/spent the money etc.

TheDebtinator

Here is a question - if no "correct" CCA can be produced, is there any possibility of getting the creditors to list the debt as fully settled if a partial payment is agreed upon? Or is that simply never going to happen?

sourcrates

TheDebtinator wrote: »

Here is a question - if no "correct" CCA can be produced, is there any possibility of getting the creditors to list the debt as fully settled if a partial payment is agreed upon? Or is that simply never going to happen?

No, because that would be inaccurate.

Creditors have to provide an accurate record of how your account has been conducted.

There is also no incentive for them to do so, as sone creditors don't regard unenforceability a reason not to pay the full balance.

TheDebtinator

sourcrates wrote: »

No, because that would be inaccurate.

Creditors have to provide an accurate record of how your account has been conducted.

There is also no incentive for them to do so, as sone creditors don't regard unenforceability a reason not to pay the full balance.

Makes perfect sense! Thanks for clearing it up