Defaults and CCA's

jimm24

Hi,yesterday I sent off CCA requests to my creditors,I was wondering if after the 12+2+30 no agreement was to appear what would happen to any defaults on my account,I've received no notice of any defaults but am sure there are some,can these be challenged if the debt is deemed "unenforcable"?

yorkie1980

Hi jimm24. first of all you need to get a copy of your credit report and see who and how many defaults you have. If you're not sure of their existence, this would be my first step.
As per other posts - the default 'should' be removed if they can't provide CCA. but it would appear the information commissioner (who's responsible for implementing this) is not overly active.
so my personal advice is:
a) get a copy of your credit reports form the 3 CRA's
b) Wait for response (or lack of) to your CCA request
c) If no CCA returned, write asking them to remove all defaults etc.

Here's a template letter I pinched form another thread (can't remember where, so apologies to original author)

I refer to my letter dated {enter date} which was delivered via Recorded Delivery to your offices on {enter delivery date}.

You have failed to acknowledge this request by not supplying the requested documents. The documents I requested should be readily available as proof of your legal right to collect this account.

In my letter of the {enter date} I made a formal request for a copy of the signed, executed credit agreement for the above account under Section 77(1) and Section 78(1) of the Consumer Credit Act 1974 and a true signed copy of the Deed of Assignment. In addition a full statement of my account should have been sent to me detailing all debits and credits to the account from the time {debt agency name} purchased this account, along with any other documents mentioned in the credit agreement.

You are reminded that you are obliged to supply these documents, whether you are the original creditor or not, as defined under Section 189 of the CCA 1974.

The Consumer Credit Act allows 12 working days for this request to be carried out before your company enter into a default situation. If the request is not satisfied after a further 30 calendar days, your company commit an offence. These time limits expired on {enter date} and {enter date} respectively.

As you are no doubt aware, Section 78(6) states:
If the creditor under an agreement fails to comply with subsection (1) -
(a) He is not entitled, while the default continues, to enforce the agreement; and
(b) If the default continues for one month he commits an offence.
Therefore on {enter offence date} this account became unenforceable at law and no further payment will be made by myself to the account, as you have failed to comply with a request for a true signed copy of the said agreement, and other relevant documents mentioned in it, and failed to send a full statement of the account and failed to provide a true copy of the Deed of Assignment, under the relevant sections of the Consumer Credit Act 1974. Further, i do not acknowledge any debt to {debt agency name}.

I require the following action from {debt agency name} :
1. All payments made to date to {debt agency name} for this account should be refunded in full, including interest at the rate of 8% per annum.
2. Removal of all defaults entered by {debt agency name}. Note this is to be a complete deletion and not merely an amendment.
3. I look forward to compensation under Section 13 of the Data Protection Act 1998 to be offered for the processing of my data in the manner it has been done over the past number of years.
4. After a full refund of all payments with interest and compensation are received by myself, you will be required under Section 10 and Section 12 of the Data Protection Act 1998 to cease and desist all manual and automatic processing of my data within your company and any other company within your group.

If you do not respond positively to my request, court action may be taken under Section 14 of the Data Protection Act 1998 to force {debt agency name} or any other company within the group to comply with the refund of all monies paid, removal of all defaults maintained and compensation for damage and distress as a result of unlawful data processing. I may also pass the matter to the relevant enforcement authorities including, but not limited to, the OFT, the Information Commissioners Office, Trading Standards, the CSA, the FOS and my local MP.

I look forward to your reply within 14 days to resolve the matter amicably.

jimm24

Thanks for that,I really hope something can be done with this,having just read something else it seems that ccj's can be challenged if there is no cca produced????

yorkie1980

I believe so, yes.
I think it is a defence to any court action that they have not complied with your request for a signed CCA

jimm24

Does it apply to already issued CCJ's?

yorkie1980

I'm really not sure mate. My knowlegde is based on what I read on these forums.
If you apply for a CCA after being issued with a CCJ, I wouldn't have thought that could be a defense, because you hadn't asked them to prove anything when they issued the CCJ.
Maybe someone else will come and help you out.......................
sorry I can't be of more help

fermi

I think this is one of those things where it would be up to the judge/court.

There is information on getting a CCJ set aside here:

Link: Factsheet | How to set aside a judgment in the County Court

When is it up to the court to decide?

The court may agree to set aside the default judgment if you did not send in a reply form with the time limit if:

• the court thinks you have a real chance of a successful defence to the claim; or
• the court thinks there is some other good reason why the judgment should be set aside.

There is no time limit for making an application on these grounds but the court will look at whether you made the application 'promptly'.

The court/judge would need to be convinced that you now have goods grounds to defend the claim, which is not a foregone conclusion with every judge even if you CCA'd the creditor before the original judgement.