CCA unenforceable? Help please

inepta

Hi,
on the 13th of SeptemberI wrote to Natwest asking them to provide me a copy of the CCA. I have just received the following letter from them:


We regret to advise that the card agreement has been misfiled and despite searching our records we have been unable to locate it.
In the circumstances, we accept that we are not able at present to fully comply with your request made under section 78 (1) of the CCA and therefore pursuant to section 78 (6) of the CCA, we are not able to enforce the agreement until such time as we are able to comply with section 78 (1).


Although the credit agreement is currently unenforceable, the credit agreement is not void and the obligations to make payments to us under the credit agreement remain.


Please note that if we do not receive the required payments as requested on the monthly statements, we may take such action as is legally permitted to pursue the outstanding debt.


I trust this clarifies the matter for you, however, if you have any further queries relating to section 78 (1) please contact us in writing.


............................................................................................................................................................


So really just wondering what steps I need to take now. I was hoping to do F&F with all my creditors but as yet the ones I have contacted have not been keen. What kind of settlement would this lender be likely to accept? The balance outstanding is £3k. Is there a template letter for this sort of thing?


Thanks in advance .

sourcrates

Hi,

Basically they have admitted they don't hold a valid credit agreement, so all legal means of enforcement of the debt have been taken away from them.

You could walk away and ignore it, the chances of them actually continuing to look for it are very small, the chances of actually finding it, even smaller.

Or you could offer a very small percentage in full and final settlement, general advice on unenforcable debts is to offer 10% or less.

Settlement offer template letter here :

https://www.nationaldebtline.org/EW/sampleletters/Pages/Full-and-final-settlement-offers-%28sole-name%29.aspx

Be sure to add the information about the lack of a valid credit agreement.

inepta

Thanks so much!

inepta

I have put together this letter, would be grateful if someone could look it over for mistakes, not sure if my wording is correct? Many thanks x

I am writing about the money which you are claiming on the above account.

I can confirm that I am unable to pay the money which I owe in full.

I am currently paying into a debt management program and have been for the last 6 years as you are aware. I am unable to increase my payments to you and my financial situation has not improved. I am looking to reduce my hours at work due to a spinal injury which I am currently undergoing treatment through a physiotherapist for. I am concerned that this will have a detrimental effect on my payment plan. My debt management plan is due to end in 2030 and I worry that this end date could be increased even further with reduced monthly payments due to my inability to perform my job properly.

I would also like to point out that you were unable to provide me with the credit agreement which I requested on the 13th of September, making the agreement currently unenforceable


However, I can raise £400 which would be a gift from a family member and I want to offer this as full and final settlement of the account. I am making this offer on the clear understanding that, if you accept it, neither you nor any associate company will take any other action to collect or enforce this debt in any way and that I will be released from any liability.

If you accept this offer, please confirm that you will mark my credit reference agency file to show that the above account has been paid and closed.

I can pay the amount I have offered within 14 days of receiving your written agreement of this offer.

Please give me details of how I can pay.

sourcrates

Yep that's spot on !!!

inepta

Thank you for all your help. It is really appreciated!

DrWatson1

Just a footnote to this kind of letter, as I'll be sending a few of these shortly - should all offers not be "without prejudice"? Or does it not really matter when they can't fulfil the CCA request??

fatbelly

DrWatson1 wrote: »

Just a footnote to this kind of letter, as I'll be sending a few of these shortly - should all offers not be "without prejudice"? Or does it not really matter when they can't fulfil the CCA request??

The National Debtline standard letter does this, and yes it is worth doing, so that the letter cannot be cited by them in court process.

It means that the debt is not being 'acknowledged' in the sense that is required when considering it becoming statute barred.

So assuming you are not paying, then all the time you are making settlement offers and they are holding out, the clock is still ticking, which could be relevant if you haven't paid for several years.

As you say, it's not so important where you already have an unenforceability argument, be it statute barred already or non-compliant with CCA. But it's still worth doing. Remember if you are just relying on s77-79 for your unenforceability argument, that can be overturned by them sending a properly reconstructed copy of the agreement.

andrew_bott

Hi, I am in a very similar situation. Where are you up to with Natwest? Have they accepted your proposal? Have they removed the details from your credit file?

Thanks.