CCA and time limit

[bubbles99]

Hi everyone,

I'm new to the site but have been reading posts on it for a few months. Have started to claim charges back and am also trying to sort out defaults on my credit file.
I'm having trouble with one in particular and could do with some advice if anyone can help. I have a credit card debt which I defaulted on a couple of years ago. Intrum Justitia were dealing with it but when I asked for the CCA I never heard from them again. I then heard from Wescot and the same happened again. I went direct to the card provider NatWest for the agreement and they have sent me the statements but have said that as the account was opened 7 years ago they don't have the agreement and there is no legal obligation to have kept it. They have also threatened to take the outstanding balance from a savings account I have with them.

Can they do this and does it make any difference about how old the account is?

Any help would be very much appreciated.

[bubbles99]

anyone????

[hagenuk]

Hi

Regarding your second question, yes Nat West can do this, this is called the "right of Set Off." Look here for more information banking: firms' right of 'set off'

Now, back to the issue of the original debt, why did you write to the debt collectors and then to the bank for a copy of the credit agreement?

[tifo]

if its over 6 years it also stature barred so they cannot claim, but since they also don't have an agreement to show you they claim get anything from you.

[hagenuk]

A debt is considered Statute Barred if a creditor has not contacted a debtor for a period of 6 years and no action has been taken on the account.

Although the debt is still legally acknowledged as being owed, the creditor is not able to take any legal action against the debtor in order to recover the debt.

Under the Limitations Act 1980 the time limits are

• in simple contracts, 6 years
• in contracts under seal, 12 years.

If the debtor acknowledges the debt in writing or makes a part payment within the original limitation period, then the time limits start to run again from the date of acknowledgement or the date of payment.

From the original post it would appear that contact has been made at some point during the last six years and therefore any time period under the Limitation Act would have to begin again from that point.

[bubbles99]

Originally Posted by hagenuk

Hi

Now, back to the issue of the original debt, why did you write to the debt collectors and then to the bank for a copy of the credit agreement?

The Debt collectors passed it on every time I requested it from them so someone suggested I go direct to the bank for a copy.

Contact has been made within the last 6 years and sporadic payments made after threats from the collection agencies so the statute barred doesn't count for this.
What I need to know is can they keep harassing me even though they don't have the agreement or can I just write to them and tell them no agreement, no further payments????

[joneshousehold]

You need to look at two very long thread in the General forum

Consumer Credit Act Agreements

Loan Company Cannot Supply The Original Agreement

You are looking at sections 77 to 79 of the Act and S61 about an enforceable agreement

The basic rule here is that if the bank or the DCA do not have a copy of the agreement they cannot enforce the debt. So get your money out of the savings account and start writing to them about their default!

[hagenuk]

Sadly it is not quite as simple as that. The original agreement is probably already void, in particular if you defaulted on it. That does not mean that the money is no longer owed or that the bank can no longer prove that it is owed.

If you make a credit agreement unenforceable by making a CCA request. The agreement ie relating to terms and conditions such as date of payment, interest rate etc is unenforceable but the debt remains. You have had the money and have not given anything in return. Therefore the money is still in law regarded as belonging to the creditor. Without the agreement in place allowing for monthly payments the creditor can request this money at any time. You may be able to negotiate a new payment arrangement.

[joneshousehold]

I don't want to disagree with the contents of this thread as it may very well be right. I am no expert. I am only reporting what I have read and researched my self.

Bubbles - when you have a look at this thread

Consumer Credit Act Agreements

have a look at posts 1173 onwards.

My reading of your post is that you have made an application under s77-79 of CCA74 and have been told the agreement is no longer held. If that is the case the debt becomes unenforceable as they cannot supply a copy of an agreement that complies with S61. If they try to take you to court for the debt and you do not acknowledge the debt they would have to prove its existence. They cannot do that without the agreement.

If I am wrong in my understanding of your situation can you let us know so that some accurate advice can be given. In the meantime I think you really should get your money out of the savings account and put somewhere else.

Incidentally if they do not have the agreement they can no longer prove they have the right to pass your information to any third party. That includes either a DCA or a credit reference agent. They will need to rectify this as well.

good luck

[hagenuk]

If the original agreement has already been terminated, for example because you fail to meet the original contractually agreed payment dates, this amounts to a breach of a major term of the contract which gives the bank the right to end that contract. If it is governed by the CCA the bank must give 7 days notice before terminating the contract.

So there is no point in doing a CCA as the original agreement no longer exists. It's pointless trying to render an agreement unenforceable if it doesn't exist and no criminal offence is committed by the bank if they do not supply a copy of the agreement.

A debt is a property right referred to in law as a chose in action. Statements are admissible evidence in court to prove transactions going through an account. Therefore they are evidence that a person has received money or purchases under an account. You can dispute these but would need to give a convincing explanation as to why you did not receive such goods or money.

Therefore, it is not necessary for a creditor to supply the agreement in order to prove the debt exists or that you, as the borrower have to pay it back.

[dori2o]

Is this right?

I have read loads of posts on here but have never come across this.


Surely if the agreement is terminated then no agreement exists, and surely the creditor forfeits any agreement to process data to 3rd parties i..e CRA's.

Can anyone confirm?

[hagenuk]

The issue of processing data is not being discussed, this thread was started regarding whether or not a debt is still owed when the original agreement cannot be located.

[dori2o]

I'm still wondering if your comment is correct, as I say this is the first time I have seen this written, most other threads seem to suggest that if no credit agreement can be shown, no enforcement of the debt can be made, whether or not the agreement has been defaulted.

What information is there to confirm this?

[joneshousehold]

I think the issue of processing data is important. If there is no agreement because it was voided, then the data could not be passed to a third party at all. That's because it can only be passed with the agreement of the individual. This means it could not be passed to either a DCA or to the likes of Experian.

In addition what's the basis for saying there was a debt to repay without the agreement. If the debtor said I understood this was a non-returnable gift, how would the lender prove otherwise. I know you would argue there is a statement etc but I am not convinced that shows the debtor agreed to repay the capital, interest or charges.

I am not doubting your word, I am just not sure what you are saying is correct. Can you give us some legal backing to your advice. Also what's your background/expertise, are you involved in debt collection and recovery?

[angry cat]

If one has made 'A REQUEST UNDER THE CONSUMER CREDIT ACT 1974'
for a copy of the original signed executed agreement, enclosing the stautory £1 fee and the creditor fails to supply this document within 12 working days plus one calender month, then the creditor has commited a criminal offence.

I am given to understand that the debt is unenforeable until the creditor can provide the copy of the said agreement. This information was provided to me by Trading Standards.

AC

[joneshousehold]

That was my understanding too AC

[angry cat]

Yes, joneshousehold I believe that is the correct position.
However, in bubbles case the situation may be more complicated due to the rules of limitation - meaning the debt is over 6 years old but when and if, the debt is refreshed by means of a payment then the clock starts to tick again - refreshing the debt.

This is a very complex area but I personally find it odd/curious that apparently no credit agreement exists between bubbles & the Creditor.

My advice would be...bubbles contact your local TS for advice!

Maybe, some other BAG member can provide you some help/advice.

Love AC

[zootscoot]

What Hagen states is correct.

S.77 /78 only apply during the lifetime of an agreement and therefore there is no obligation to supply the agreement. Have a look at the CCA in the statutes template library. You will see that s.77-8 come under part V of the act which only applies to matters arising in the lifetime of an agreement. It is always best to read the actual law itself.

If you want to get a default removed you will need to either use s.14 of Data Protection