No choice but to consider DMP - help appreciated!

emsgirl

13thlegion said:

If any debt is still with FOS do not pay. No point in acknowledging that it is ok (which paying does) when you are disputing it.

Thanks I will bear this in mind.

emsgirl

Rob5342 said:

In most cases the ombudsman takes the same position as the investigator so I wouldn't get your hopes up, but they can reach a different decision so it's always worth pushing it through. Don't pay anything while it's being investigated, start making payments once that's complete. Legal action is nothing to be worried about really, if they get a CCJ against you then you'll just be ordered to pay what you can afford, so apart from a ccj on your credit record it's no differerent to just repaying what you can afford anyway. In most cases they will just be happy with whatever payments you offer, and you'll have the option of making a reduced settlement and asking for the CCA once it's been sold on too.

I don't think there is an easy answer with PRA, you don't want to be paying an unenforcable debt but the chance of them being able to find the CCA tends to diminish as time goes on and companies clear out their records. I think I would probably make minimal payments for a year and then ask for the CCA.It's a bit of a lottery though, they might not be able to produce it now, or they still might be able to in 5 years time.If you want to make a settlement offer then always ask for it though.

 

I understand what you're saying, I'll try not to get my hopes up but it's just so strange as it is really the one I thought was most unaffordable! It's worth a shot anyhow. I'm hoping to avoid a CCJ if at all possible as I know that can have more implications than a default. Hopefully it won't come to that as you say as long as I'm offering them something reasonable once I need to.

Hmm that's what I was wondering with PRA - it's possible it will be harder for them to find the CCA a bit further down the line so yes that's good advice I will pay them a little now and try for the CCA at a later date.

Thanks so much for your help

emsgirl

sourcrates said:

Quote "I haven't heard anything at all from Zopa since my default and I still haven't paid them anything. Do you think I should just wait it out and hope for a more positive result from the ombudsman? Or should I pay them something now the account is in default just to lower the risk of them taking any sort of legal action? I'm nervous of this loan as it has the highest amount outstanding so I wouldn't be able to pay it off quickly if needed as my emergency fund would be nowhere near covering it so I'm worried about any letter before action arriving".


CONC 7.14 FCA Handbook Disputed debt.

CONC 7.14.1

1. (1) 

   A firm must suspend any steps it takes or its agent takes in the recovery of a debt from a customer where the customer disputes the debt on valid grounds or what may be valid grounds.

Any debt that is subject to any kind of dispute, will have all further action suspended until such time that dispute gets resolved, this is standard industry practice under CONC guidelines.

Ah that's interesting! That would totally explain why I haven't heard from them. 

I will hold off paying Zopa anything until I get my final response from the ombudsman and then workout a plan from there.

Many thanks for your your advice - that's very helpful

emsgirl

I logged onto my PRA account to pay something towards my barclaycard account and to my surprise my zopa account was showing on my PRA account too! So Zopa must have sold it to PRA already (I haven't had any correspondence regarding this). 

I have set up minimum repayments for both my Zopa and Barclaycard accounts of £5 each - no budget required just pay what I can. I figure if I pay the minimum for now it will bide me time as you said to wait a little longer before requesting the CCA and hopefully I will also hear from the ombudsman regarding my Zopa account before deciding what to do next there. 

So I am now in a position where all my accounts apart from these two have been given refund of interest and charges and I am now paying them back at minimum amounts but clearing the balances and these two accounts have defaulted but are with a debt collection company where I can make minimum repayments with no further interest being added. So my debts are finally on the way to being paid off!

I cannot explain how much this has changed my life. I have so much else going on in my personal life that this weight being lifted from the financial mess I was in has made a difficult time much more bearable. I know I still have a long way to go but I feel more in control of my finances than I have in the last 15yrs. I really cannot thank you all enough for your support and advice - I would never be in this position if it wasn't for this forum and all of you so thank you from the bottom of my heart.

emsgirl

Hi all,

I was just thinking, as I have open affordability complaints with my Barclaycard and Zopa accounts which have been sold to PRA, both complaints are still with the FOS so I am awaiting outcomes, should I be paying anything towards them at all at the moment? Should I contact PRA to inform them that I am not paying on the grounds that my account should be on hold whilst the investigations are ongoing? I know Sourcrates said that these things are supposed to be on hold but Zopa defaulted me and sold my debt on whilst my complaint was at the FOS so they obviously haven't abided by that so far.

I thought it would be easier to set up minimum repayments to keep them off my back for now whilst I waited on affordability complaint outcomes. My next step was then going to be the CCA requests a few months down the line when hopefully they wouldn't be able to access them from the old lender but now I'm thinking that by paying am I acknowledging accountability for the debts? Would this then interfere with my CCA requests?

Just not sure what to do:-

1) keep paying minimum repayments and await affordability FOS outcomes then do CCA requests. But by paying am I admitting accountability?
2) stop paying and contact them to say this is due to ongoing affordability complaint investigations and wait for the outcomes before putting in CCA requests (but if I am contacting them and admitting to affordability complaints does this mean I am admitting liability for the debt?)
3) Put in CCA requests now which would put the accounts on hold anyway and just not mention the affordability complaints until I know what happens with the CCA requests i.e if they can provide the CCA then tell them there are ongoing affordability complaints to again put the accounts on hold or if they can't provide the CCA then just stop paying altogether. Is there any benefit to waiting to put in CCA requests? Barclaycard account was opened 2018 and Zopa 2023. I was thinking of waiting longer to make it harder for them to request the CCA from the original lender. What would happen to the affordability complaints if they couldn't produce a CCA - would I still be entitled to any refund of interest/charges or would it just go to pay the account?

I'd be grateful as always for your input.

sourcrates

If you are in dispute with any creditor for whatever reason, you do not make payment to that debt until the dispute gets resolved one way or another.

Allow the affordability complaints to be dealt with first.

CCA requests are only ever effective on long defaulted debts that have been sold on at least once, keep that as an option for later on.

Admitting liability for a debt means nothing unless you intend to rely on the limitation act as a defence to a court claim, it has no meaning in law in any other situation.

emsgirl

Thanks Sourcrates

So I’ll stop the payments and let them know why and then consider doing the CCA requests a bit further along the line. Any recommendations of how long to wait to do this? 

By the limitation act do you mean it just resets the clock on the 6 years before it becomes statute barred because I’ve contacted them? 

I was more concerned that by discussing with them  that I have an affordability claim would mean that I was acknowledging liability for the debt and they would then have evidence to that effect. If it doesn’t then I’ll go ahead and deal with the affordability complaints first and let them know. 

I drafted an email to send them and got chat GPT to fine tune it and it came up with this:

Subject: Clarification Regarding Payment and Pending FOS Complaint

Dear [Lender’s Name or Collections Department],

I am writing in relation to the above account ([account/reference number]).

I wish to clarify that a payment made on [insert date] was made before I had full awareness of my rights and while I was seeking to resolve an ongoing affordability complaint. That payment was made purely in good faith and should not be taken as an admission of liability for the alleged debt, nor as acceptance that the agreement is valid or enforceable.

I currently have an affordability complaint being reviewed by the Financial Ombudsman Service. I will await the outcome of that investigation before considering any further action or payments.

Please confirm that this note has been added to my account records.

Yours sincerely,

[Your Full Name]

[Your Address]

[Your Contact Details)

Does this sound reasonable to send? 

Thanks as always for your invaluable advice.

fatbelly

Do you need to send anything?

That letter is not very useful (sorry). Acknowledgement is defined in the Limitation Act as being by payment or in writing, by the debtor or their agent

So you can't write and claim a payment does not count as an acknowledgement unless it was made by a third party without your knowledge, and we have seen that occasionally.

As sourcates says, don't worry about it. It's not like you are going to be using it as a defence to a court claim, at lesst not anytime soon.

sourcrates

emsgirl said:

Thanks Sourcrates

By the limitation act do you mean it just resets the clock on the 6 years before it becomes statute barred because I’ve contacted them? 

I was more concerned that by discussing with them  that I have an affordability claim would mean that I was acknowledging liability for the debt and they would then have evidence to that effect. If it doesn’t then I’ll go ahead and deal with the affordability complaints first and let them know. 

Fatbelly and myself are both trying to make you aware that acknowledgement of a debt only matters in certain limited circumstances, if you are about to use the limitation act as a defence to a court claim, was the example I gave you.

You are not in that position, so no letter/email is necessary here.

It doesn't matter if you acknowledge the debts or not, it means nothing except in the circumstances related previously, so try not to overthink the situation, and just await the outcome of your complaints.

emsgirl

Thanks Fatbelly,

Would it be better to just omit the first paragraph then?

I’m worried if I don’t let them know why I’m not making payments they will be more likely to take it further as they won’t currently be aware of the FOS situation.

It could be a long while before the FOS come to a decision so I don’t want them to escalate things in the meantime as I really don’t want the threat of court action if it can be at all avoided. At least my account would be legitimately on hold until the outcome of the affordability complaints then.

Many thanks for your help