The 12 DAY rule (CCA 1974)

[diskmandave]

When after default of 12 days under CCA 1974...???!

The debtor writes to company or DCA stating what???

I'm asking this for the newer users here!!!

Is the debt unenforceable after 12 working days or 12 days???
Or is it unenforcable after the criminal offence has been commited?
I've just had a letter back from Lowell Financial Ltd stating that it
is 28 days!!!


Best Regards - Dave.

[diskmandave]

Is the debt unenforceable after default (12 days), or after the
criminal offence has been commited....??? (28/30 days)

Can Mod/s jump in here...?

Best Regards - Dave.

[jimfishybob]

12 Working days = Unenforcable

1 FURTHER calender month = Offence committed

[Laiste]

I have to disagree with Jimfishybob.

12 working days means the creditor is in default, it does not render the debt unenforceable.

1 calender month means they have committed a criminal offence.

The debt is still enforceable if at some point they produce the credit agreement. It will not be enforced for the period of time that the agreement hasn't been produced. So for example if it takes them 6mnths to provide it, for that period they cannot claim the monies owed.

It is however wholly incorrect to believe that if they do not furnish the documents within the requisite timescale that the debt cannot be enforced, it can. Also, the creditor does not need to seek the permission of the Court to commence proceedings, if they don't comply with the timescale. They would start legal action in the usual way.

No agreement, or an illegible one would render the debt unenforceable. No signature by the creditor will in all likelihood have the same effect also.

Regards,

Laiste.

[tifo]

Originally Posted by Laiste

The debt is still enforceable if at some point they produce the credit agreement.

It is however wholly incorrect to believe that if they do not furnish the documents within the requisite timescale that the debt cannot be enforced, it can. Also, the creditor does not need to seek the permission of the Court to commence proceedings

I understand this as the debt only being enforceable by court order after 12 working days + 1 calendar month, and the DCA would then have to explain why the committed the criminal offence.

But, there is a thread where is was discussed whether a judge would actually look at the DCA's criminal offence as his/her remit would be the debt and not the offence. This then makes the CCA request totally useless and maybe the DCA's know this?

There has been no definitive answer on this but extracts from the CCA 1974 show that it is un-enforceable but then i don't know if a case has been tested at court.

[Laiste]

Hi Tifo,

It was me you had the conversation with in the other thread, regarding the Judge's remit being only the debt in the civil Court.

If I understand your comment correctly, the creditor does not need to obtain the permission of the Court to start legal action if he has failed to comply with the 12 working days and 1 mnth rule. Ultimately it is for the Judge to determine whether a debt is enforceable or not, but by not producing documents in the timescale of itself, will not absolve a person of their liability.

Where does it state in the CCA 1974 that the debt is unenforceable? If we are still talking about CCA requests, production of an agreement that conforms to the requirements of the Act is enforceable. Under the circumstances I detailed in the last paragraph of my last post would the agreement not be enforced. That was not an exhaustive list but you get the idea.

The definitive answer is that the debt can be enforced even if they fail to provide the documents in the timescale, provided the contract is correct regarding form and content.

Laiste.

[tifo]

hi Laiste,

i understand your comments.

this would mean the CCA request is totally useless then?

i am sure i have read an extract of the CCA 1974 that states the debt is un-enforceable if the correct documentation is not present.

if they then produce the documents in court this means it is OK? and they have got away with the offence? i then don't understand the point of there being an offence by law if it can be disregarded .....

i don't think anyone really has an answer to this question and it can only be tested when someone takes a DCA to court or the DCA takes the debtor to court without any documentation.

[jimfishybob]

Originally Posted by Laiste

I have to disagree with Jimfishybob.

12 working days means the creditor is in default, it does not render the debt unenforceable.

1 calender month means they have committed a criminal offence.

The debt is still enforceable if at some point they produce the credit agreement. It will not be enforced for the period of time that the agreement hasn't been produced. So for example if it takes them 6mnths to provide it, for that period they cannot claim the monies owed.

It is however wholly incorrect to believe that if they do not furnish the documents within the requisite timescale that the debt cannot be enforced, it can. Also, the creditor does not need to seek the permission of the Court to commence proceedings, if they don't comply with the timescale. They would start legal action in the usual way.

No agreement, or an illegible one would render the debt unenforceable. No signature by the creditor will in all likelihood have the same effect also.

Regards,

Laiste.

What he said.

To clarify, the debt is only unenforceable while the default continues, my apologies if this was confusing.

Effectively, the CCA requires the creditor to produce a legible, properly executed document upon request, after 12 working days from this request and while the paperwork is still outstanding the debt is, to all intents and purposes, unenforceable. So any attempts to enforce the debt through the county court would be futile until this paperwork was produced. Of course, they could produce this in court without ever having provided you with a copy but in that event a judgement against you is unlikely.

The criminal offence part is a bit of a red herring, or, at the very most a stick to beat the DCA with. It is not for a debtor but a court of law to ascertain whether a criminal offence has been commited.

[Laiste]

Thanks Jimfishybob for clarifying your comments. I would add as a cautionary note however, that it is presumptuous to state that judgment would not be found against a debtor if the agreement was produced in Court.

Whilst a Judge will be unimpressed with their behaviour, that will not of itself absolve the debtor of their liability. The debt would be reduced in accordance with the period of non-compliance with the CCA, but the Judge does not have the authority to wipe out the debt simply because the creditor has taken an inordinate amount of time to furnish the agreement.

For some reason you have presumed I'm a man, I'm not!

Laiste.

[jimfishybob]

Originally Posted by Laiste

Thanks Jimfishybob for clarifying your comments. I would add as a cautionary note however, that it is presumptuous to state that judgment would not be found against a debtor if the agreement was produced in Court.

Whilst a Judge will be unimpressed with their behaviour, that will not of itself absolve the debtor of their liability. The debt would be reduced in accordance with the period of non-compliance with the CCA, but the Judge does not have the authority to wipe out the debt simply because the creditor has taken an inordinate amount of time to furnish the agreement.

For some reason you have presumed I'm a man, I'm not!

Laiste.

It's a pedantic point but I said it's unlikely, not unheard of.

It's unlikely because the defendant would have a perfectly valid reason for not continuing payment. Consequently, while the debt would still stand and would henceforth be enforceable, in that particular hearing it is unlikely judgement would be passed in favour of the creditor, merely it would be acknowledged that the debt still stands but judgement may not be passed in favour of the lender as he has failed in his responsibilities to the debtor.

Admittedly, it may only buy you some time until they file a second time.

It's a biblical 'he', but noted.

[tifo]

Originally Posted by jimfishybob

Effectively, the CCA requires the creditor to produce a legible, properly executed document upon request, after 12 working days from this request and while the paperwork is still outstanding the debt is, to all intents and purposes, unenforceable. So any attempts to enforce the debt through the county court would be futile until this paperwork was produced.

It is not for a debtor but a court of law to ascertain whether a criminal offence has been commited.

So, in the end it means they can still find the documents 2+ months later, take you to court, and the CCA and then their non-compliance has achieved you nothing!

I understood that the CCA 1974 was the law as it has gone through parliament and written in statute so if it states in there that a criminal offence has been committed after the calendar month then there is nothing for a judge to decide is there?

Of course, the judge has a remit to look at the debt and not the offence but that is a separate isssue.

[sharmal]

I was also of the understanding that if the CCA was not complied with then the DCA had broken the law by committing a criminal offence. I fthis is the case then it must be in the judges best interests to take action against the DCA. Surely if nothing is done to pull them up by the ears then they will continue to harass and assault people who they think should have to pay them. If they have not got the right paperwork ie. the credit agreement and the deed of assignment they are breaking the law are they not. They are collecting a debt they should have to prove they are allowed to collect that debt. If they do not do this they should be bought to justice. If a debtor fails to pay, whether they have to or not, they get all sort of crap thrown at them and with out the use of CAG end up have their homes assigned to the debt, their wages,etc. They get threatened with bancruptcy, CCJ's etc. It should not be one rule for them and one rule for the other little people.

[tifo]

you are right, Sharmal.

but this is not how it is really being done. The DCA's are getting away with it and the debtor is not getting much help.

[sharmal]

Isn't there anything we can do about it or have we covered everything we can with what we are allowed to do within the law

[sequenci]

Originally Posted by Laiste

No signature by the creditor will in all likelihood have the same effect also.

yup, it would be totally unenforceable under s127

[jimfishybob]

Originally Posted by