Confused over what is enforceable and what isnt

ramfan1 · 19 October 2018 at 2:20PM

Ok so my wife has a few debts with the DCA Cabot.

I asked them to stop contacting us unless they can provide a CCA agreement. So a few months passed and they said they don't have the CCA, or a copy of them.

They have provided statements and the Notice of Assignment letters.

I asked the national debt helpline who said if there after 2007 they can go to court and request a CCJ.

I thought they can't even ask us to pay unless they have the CCA or a copy?

So confused!

sourcrates · 19 October 2018 at 2:30PM

Hi,

For the avoidance of doubt, this is what the consumer credit act says :

(1)The creditor under a regulated agreement for fixed-sum credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer.

Penalty for non compliance :

4)If the creditor under an agreement fails to comply with subsection (1)—

he is not entitled, while the default continues, to enforce the agreement.

This applies to all CCA regulated agreements regardless of age.

ramfan1 · 19 October 2018 at 2:47PM

Ok so I can just write back and quote the above and hope they give up. Lowell closed all the accounts we had because of them not getting the CCA.

sourcrates · 19 October 2018 at 3:05PM

ramfan1 wrote: »

Ok so I can just write back and quote the above and hope they give up. Lowell closed all the accounts we had because of them not getting the CCA.

Should be enough yes, they can still ask you to pay, they can still report non payment on your credit file, however, they cannot take you to court to recover the debt.

Just_Di · 19 October 2018 at 3:11PM

ramfan1 wrote: »

Ok so my wife has a few debts with the DCA Cabot.

I asked them to stop contacting us unless they can provide a CCA agreement. So a few months passed and they said they don't have the CCA, or a copy of them.

They have provided statements and the Notice of Assignment letters.

I asked the national debt helpline who said if there after 2007 they can go to court and request a CCJ.

Did you send a formal s 77-79 CCA Request together with the £1 statutory fee to Cabot?

Each debt will be different but generally speaking a s 77-79 CCA Request is for 'information' purposes not 'proof' purposes. They may be able to produce 'something' but whether that 'something' is also compliant with other sections of the Act is another matter altogether.

Have you been receiving a Notice of Sums in Arrears (s 86) every six months since the account defaulted?

Was the Default Notice (if one was served) compliant (s 87(1))?

In the case of Santander v Diana Mayhew ( me

) I lost on th s 78 CCA argument but won the case on all the other legal arguments. Read Paragraph 14 of my judgement to see what I mean > http://www.bailii.org/ew/cases/Misc/2012/14.html

There could also be assignment and/or FCA authorisation issues which may make a debt unenforceable in court. What is the precise name of the owner of each of these debts (regardless of who is writing to you)? Is it Cabot Financial Ltd, or Cabot Financial (UK) Ltd or Marlin etc? That should be stated clearly on the Notice of Assignment, although if it's a reconstitute NOA it may not be 'accurate'.

So yes they can take you to court for an account which was opened after April 2007, but whether they'd succeed in getting a judgment (CCJ) is a totally different story

Di

fatbelly · 19 October 2018 at 3:57PM

Just_Di wrote: »

So yes they can take you to court for an account which was opened after April 2007, but whether they'd succeed in getting a judgment (CCJ) is a totally different story

Di

Yes that was the result of a load of legal cases about 10 years ago, summarised in the FCA guidance here:

https://www.handbook.fca.org.uk/handbook/CONC/13/?view=chapter

(5) In the judgment of McGuffick -v- The Royal Bank of Scotland plc [2009] EWHC 2386 (Comm) Flaux J held in a case under section 77 of the CCA that passing details of a debt to a credit reference agency and related activities do not constitute enforcement under the CCA. He also held that steps taken with a view to enforcement, including demanding payment from a claimant, issuing a default notice, threatening legal action and the actual bringing of proceedings, are not themselves 'enforcement' under the CCA. On the other hand he confirmed that the actions listed under sections 76(1) and 87(1) of the CCA did amount to enforcement notwithstanding that some of the actions 'less obviously' amounted to enforcement. These actions are demanding earlier payment, recovering possession of goods or land, treating any right conferred on the debtor by the agreement as terminated, restricted or deferred, enforcing any security and terminating the agreement.

sourcrates · 19 October 2018 at 4:06PM

Di & fatbelly lay out the legal argument above, but in a lot of cases it depends on the particular creditor you are dealing with, for example, Lowell will normally take a commercial decision and write off debts that do not have compliant paperwork.

I have had experience of Cabot doing the same thing, then on the flip side of the coin, there was 1st credit, who would of pursued me to the ends of the earth, even though no paperwork whatsoever existed for the debt.

A lot of the time they weigh up the advantages of legal action, against the dis-advantages, likely cost to themselves etc etc, and decide if its worth pursuing it or not.

Just_Di · 19 October 2018 at 5:11PM

sourcrates wrote: »

they weigh up the advantages of legal action, against the dis-advantages, likely cost to themselves etc etc, and decide if its worth pursuing it or not.

I agree.

Also some of them adopt a 'worth a try' mentality knowing that 89% of court claims issued result in a CCJ by default because the Defendant doesn't respond within the deadlines set because they simply don't know how to and can't get the legal help they need.

These latest MOJ statistics make sobering reading simply because of the enormity of the situation and the fact that Default Judgments are increasing > https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/740869/civil-justice-statistics-quarterly-Apr-Jun-2018.pdf

Di

ramfan1 · 19 October 2018 at 6:02PM

So two of the debts are from Catalogues, they say one is unenforceable as they can't get the credit agreement. The other they have provided the NOA from themselves and the catalogue with the last few things ordered. Last payment was December 2013, so soon to be statute barred(at no point have I acknowledged this debt, I think anyway. I have only said this is not my debt please prove it is)

Another debt is one they purchased from another DCA who purchased it from another DCA, who purchased it from a HP Company. They have said they're still waiting for a CCA.

Finally loyds bank, but no information apart from it was purchased from another DCA.

So any good template letters i could be signposted too. I just want to say you haven't proved these debts, just sent me random information which i dont accept as proof that its my debt

Thanks in advance for your insight

on a different point one of the catalogues defaulted in 2009, should this of dropped off my credit file?

fatbelly · 19 October 2018 at 7:27PM

ramfan1 wrote: »

So two of the debts are from Catalogues, they say one is unenforceable as they can't get the credit agreement. The other they have provided the NOA from themselves and the catalogue with the last few things ordered. Last payment was December 2013, so soon to be statute barred(at no point have I acknowledged this debt, I think anyway. I have only said this is not my debt please prove it is)

on a different point one of the catalogues defaulted in 2009, should this of dropped off my credit file?

Statute barred in December 2019 in England/Wales, Dec 2018 in Scotland.

Yes - entry would have dropped off in 2015

ramfan1 · 19 October 2018 at 8:15PM

fatbelly wrote: »

Statute barred in December 2019 in England/Wales, Dec 2018 in Scotland.

Yes - entry would have dropped off in 2015

oh know its still on there, I've raised a dispute over it. Hopefully, the credit agency will see the date of the default and realise and remove it from the report/

Confused over what is enforceable and what isnt

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