Consumer Credit Act Agreements

[lexis200]

Originally Posted by B3rty

This is relevant I am helping a friend with BOS who haven't provided a CCA after 21 days and in the meantime have issued a statement showing late payment and interest on the account.

I never had to CCA an original creditor as all mine were defaulted and beyond sensible communication stage so just trying to be accurate and not cause my friend who is recently unemployed any more grief as a default would be bad news for her..

Ok, well essentially unless she is paying what they want when they want, she could be defaulted.

Technically they could default (assuming it's in the terms) for being late on a payment, however I can't see any bank doing this. More realistically, if she stops paying as they haven't come up with a CCA they will at some point default her, and all the run up to the default will also show on her credit file (I'm assuming this is the bit you want her to be able to avoid?)

This becomes a bit of a catch 22 situation. They don't come up with the goods, you keep paying to avoid the default, so they decide they don't really need to do anything about it. Perversely this is generally the course of action I take (although most were already defaulted so my reasons for paying are slightly different), as the longer they go on not complying with CCA's and Subject Access Request's, the worse they look when you make any complaints to the various bodies, or if/when you go to court.

If she can I'd probably suggest a chase letter combined with an Subject Access Request (obviously not in the same envelope - no need to let the right hand know you're asking for different info from the left hand) and see what happens.

If she wants to avoid a default though at the moment her options are rather limited

Having said all that, of the two OH did stop paying fairly quickly, one issued a default but only about 5/6 months after the last payment made (not sure about the other one though as OH used to chuck letters from creditors). It's a big gamble to take though as they can and have done it far more quickly for other accounts.

[B3rty]

My thoughts are for her to carry on payments but cover this with the dispute letter adding that she will pay in good faith but if the agreement isn't produced or found to be unenforceable she would pursue her rights under the unfair relationships s.140, and see what response this brings

[ToxicWaste]

Hi
I'm new to the site - and what a cracking site it is !
I have a friend whose mum is 75 years old, has a heart condition and has had a mild stroke. Amazingly, the banks have lent her £50,000 on credit cards and are now chasing for repayment. She owns her own house with a small mortgage.
I'm trying to help sort it out and see if we can make some of the debts unenforceable - and serve the b****** right ! There is clearly a huge amount of help here but it is also obvious that on a request to see a true copy of the CA the banks will delay, obfuscate, mislead, ignore, cheat etc etc to avoid the implications of the Consumer Credit Act. This will all be very distressing to the debtor and can only aggravate her ill health.
So I am thinking of using a Claims Management Company to help speed things up - very important in the circumstances.
I would be very grateful for any comments on the potential pitfalls here - obviously there is a cost but are there any other issues to be aware of ??
There has been some dodgy comments in the Press.
Many thanks

[ToxicWaste]

There is also an inconsistency that perhaps someone could comment on. In the various introductory blurb I have read that if a loan/credit card debt is ruled to be unenforceable this does NOT mean that the debt is written off. It can therefore be given/sold to a debt collection agency to chase/harrass the debtor ( I guess the implication being that the debtor could be bullied into paying). Shameful behaviour.
However I have also seen that Sir Andrew Morritt V-C in Wilson v First County Trust Ltd [2001] said that
' in effect, the creditor - by failing to ensure that he obtained a document signed by the debtor which contained all the presribed terms..... must be taken to have made a voluntary dispostion, or gift, of the loan monies to the debtor. The creditor has chosen to part with the monies in circumstances in which it was never entitled to have them repaid.'
So if it is a gift there cannot be a debt remaining. The debt therefore never existed and must in effect be written off.
This to me seems quite an important point as to which is correct.

[uptoneck]

Hi ToxicWaste,

Welcome to the site. Personally, I wouldn't touch a claims management company with a barge-pole. I'm sure a lot of other people on the forum share that opinion.

You can find all the information you need here for free (although a small donation now and then doesn't go amis ). Get your friend to act on his mother's behalf and log-on here.

[ToxicWaste]

Originally Posted by uptoneck

Hi ToxicWaste,

Welcome to the site. Personally, I wouldn't touch a claims management company with a barge-pole. I'm sure a lot of other people on the forum share that opinion.

You can find all the information you need here for free (although a small donation now and then doesn't go amis ). Get your friend to act on his mother's behalf and log-on here.

Thanks uptoneck
Is there anywhere on the forum I can find info on these companies. It really is a maze for a newbie.

[lexis200]

Originally Posted by ToxicWaste

There is also an inconsistency that perhaps someone could comment on. In the various introductory blurb I have read that if a loan/credit card debt is ruled to be unenforceable this does NOT mean that the debt is written off. It can therefore be given/sold to a debt collection agency to chase/harrass the debtor ( I guess the implication being that the debtor could be bullied into paying). Shameful behaviour.
However I have also seen that Sir Andrew Morritt V-C in Wilson v First County Trust Ltd [2001] said that
' in effect, the creditor - by failing to ensure that he obtained a document signed by the debtor which contained all the presribed terms..... must be taken to have made a voluntary dispostion, or gift, of the loan monies to the debtor. The creditor has chosen to part with the monies in circumstances in which it was never entitled to have them repaid.'
So if it is a gift there cannot be a debt remaining. The debt therefore never existed and must in effect be written off.
This to me seems quite an important point as to which is correct.

The only way to get a debt permanently declared unenforceable is through a court. To get it written off is a separate issue (although it is often lumped with enforceability), which rests on the inability of the creditor to be able to get his money back. Basically if it's not gone through court or the creditor hasn't rolled over you are in the situation that you know they can't do anything, they know they can't do anything, but that doesn't stop them trying.

If you are lucky the company may realise they're on a loser and decide to write it off themselves - I've seen some who have had that the moment an agreement is shown to be pants/hasn't materialised at all. On the other hand others will rumble on for months/years going back and forth (sadly mine fall into this category)

On the plus side, once you're sure (I mean as sure as you can be - please don't just rely on a single CCA request, follow it up with at least an Subject Access Request, and possibly a CPR request) they have nothing/what they have is toilet paper, you can stop paying.

Even if you are sure though this is not without risks. Despite them not having any legal right to, they will shoot her credit report down in flames. Probably not too much of an issue given her age as long as the mortgage doesn't need changing any time soon, but something you should be aware of.

In addition, unless you do happen to get one that does roll over and admit they're wrong, she's likely to get phone calls and letters that harass/threaten her. I would think she could elect to have someone do this on her behalf (family I mean, not a company), but she'd need to arrange it with the creditors.

I do realise this all sounds doom and gloom, but there are plenty of people on these forums who have had debts written off and won court cases based on agreements, I just think you should be aware of the possible pitfalls.

If/when she does write to them, EVERYTHING must be sent recorded delivery. Also make sure that the very first letter, and any subsequent ones after state contact is to be in writing only. Letters allow breathing space, phone calls are designed to panic the 'customer' and often result in you agreeing to something you didn't want to, especially if you are unaware of your rights to tell them to sod off as they don't have any magical powers that require you to talk to them on the phone.

Personally, given her age and the enormity of the debt, I'd be inclined as a first attack to write to the various creditors (politely) asking for the debts to be written off as there is plainly no way they will be paid off, and also because it sounds like a lot of irresponsible lending has gone on there!

I'd concurrently send the CCA requests (and possibly Subject Access Request's too as they have a long time to compile them!) as a back up in case they don't respond in the positive.

[car2403]

Originally Posted by ToxicWaste

Thanks uptoneck
Is there anywhere on the forum I can find info on these companies. It really is a maze for a newbie.

Validity of claims management companies? Moved from "Unenforceability Cases on hold until further notice"

[ODC]

Originally Posted by ToxicWaste

Hi
I'm new to the site - and what a cracking site it is !
I have a friend whose mum is 75 years old, has a heart condition and has had a mild stroke. Amazingly, the banks have lent her £50,000 on credit cards and are now chasing for repayment. She owns her own house with a small mortgage.
I'm trying to help sort it out and see if we can make some of the debts unenforceable - and serve the b****** right ! There is clearly a huge amount of help here but it is also obvious that on a request to see a true copy of the CA the banks will delay, obfuscate, mislead, ignore, cheat etc etc to avoid the implications of the Consumer Credit Act. This will all be very distressing to the debtor and can only aggravate her ill health.
So I am thinking of using a Claims Management Company to help speed things up - very important in the circumstances.
I would be very grateful for any comments on the potential pitfalls here - obviously there is a cost but are there any other issues to be aware of ??
There has been some dodgy comments in the Press.
Many thanks

If I were her the first thing I would do would be to sign the house over to another member of her family. At least that way she wont have any assets

[IIIUMINATI]

If you do a search at the land registry ( you can do this on line)
This will revel the details of the property. This is what the DCA`s do.
This will show the registered owner and that a mortgage is out standing on the property. I understand that the transfer of ownership can only be granted by the mortgage company as they need to secure the outstanding debt.
I understand that the details of the mortgage is shown on this report
amount borrowed and when ( could some one confirm this )
The DCA can then work out the asset value and if all the documents requested as correct and in place seek a court order to gain a charging order over the property. If a court make an order for a payment of £5 a month and this payment arrangement is kept the as I understand it
a charging order cannot be applied for.

Need further advice (me) If the owner dies the house becomes part of the owners estate and creditors would apply to the execitor ? of the estate and seek payment.

The above are only considerations and I suggest that you do a lot of reading on the site people will correct me if I am wrong and
I write in good faith.
Remember a DCA could not give a dam even if you had days to live they would still try any way to gain payment .

[campari2]

Hi - heres the link for the Courts rules on charging orders:

PART 73 - CHARGING ORDERS, STOP ORDERS AND STOP NOTICES - Ministry of Justice

[vint1954]

[quote=IIIUMINATI;2264488]If you do a search at the land registry ( you can do this on line)
This will revel the details of the property. This is what the DCA`s do.
This will show the registered owner and that a mortgage is out standing on the property. I understand that the transfer of ownership can only be granted by the mortgage company as they need to secure the outstanding debt.
I understand that the details of the mortgage is shown on this report
amount borrowed and when ( could some one confirm this )
The DCA can then work out the asset value and if all the documents requested as correct and in place seek a court order to gain a charging order over the property. If a court make an order for a payment of £5 a month and this payment arrangement is kept the as I understand it
a charging order cannot be applied for.

You can set up an account at the Land registry ( Very simple ) and the search will cost you £3 online. It will indeed show the Mortgage company and the Loan taken out on the property.

Generally if paying a court order, they should not be able to get a charging order, however they can argue that at £5 a month, the debt will take a very long time to repay and get a charging order that way.

With regard to death, the creditor can apply to be paid from the estate. This is one of the executors duties to settle debts from the estate. Not sure on unsecured credit though.

Is it not possible for your friend to buy their Mothers house for the ballance of the Mortgage?

[vint1954]

HSBC recently supplied me with my Credit Card Application.

1. Wrong spelling of my name.
2. Wrong address for time card was taken out. ( 2 addresses out )
3. Wrong Date of birth
4. No signature or date.
5. Not even a form from the origonal bank that the card was with.
6. No T&C's from the time that the card was issued.
7. Application filled in by them!

Oh! and they state that this is perfectly OK as they do not have to supply a copy of the origonal.

I thought the act said that it had to be a true copy of the executed agreement, although for security, signatures and dates could be left off.

[ToxicWaste]

Originally Posted by car2403

Validity of claims management companies? Moved from "Unenforceability Cases on hold until further notice"

Thanks for the links Car - some very interesting contributions.
I think it was you who commented that although the Courts may rule that debts are unenforceable this does not mean that they can be written-off.
Do you have any thoughts on the contradiction here with Sir Andrew Morritt, Vice Chancellor in Wilson v First County Trust Ltd [2001] EWCA Civ 633 who said at para 26 that in the case of an unenforceable agreement:-
“The creditor must…be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid;”
If the 'creditor' has made a gift then there has never been a debt so there is no question of anything having to be written off.

[car2403]

Originally Posted by ToxicWaste

Thanks for the links Car - some very interesting contributions.
I think it was you who commented that although the Courts may rule that debts are unenforceable this does not mean that they can be written-off.
Do you have any thoughts on the contradiction here with Sir Andrew Morritt, Vice Chancellor in Wilson v First County Trust Ltd [2001] EWCA Civ 633 who said at para 26 that in the case of an unenforceable agreement:-
“The creditor must…be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid;”
If the 'creditor' has made a gift then there has never been a debt so there is no question of anything having to be written off.

While I totally agree with Sir Morritt, you'll have a hard job convincing the Creditor!

[andrew1]

Originally Posted by car2403

While I totally agree with Sir Morritt, you'll have a hard job convincing the Creditor!

So I guess what is being said here is that the creditor can hound you forever, whether it gets paid or not is another matter. What about s.106(d) CCA '74 then in the case of secured lending:

s.106. Where, under any provision of this Act, this section is applied to any security provided in relation to a regulated agreement, then, subject to section 177 (saving for registered charges),--
(a) the security, so far as it is so provided, shall be treated as never having effect;
(b) any property lodged with the creditor or owner solely for the purposes of the security as so provided shall be returned by him forthwith;
(c) the creditor or owner shall take any necessary action to remove or cancel an entry in any register, so far as the entry relates to the security as so provided;
and
(d) any amount received by the creditor or owner on realisation of the security shall, so far as it is referable to the agreement, be repaid to the surety.

Written off? - Who cares?

[alisindebt]

Hi

As I said in my part of the thread, I am not a Lawyer and I am certainly familiar with secured lending and therefore cannot comment on that aspect of CCAs. I engaged the services of a Lawyer to advise on the enofrceability of my unsecured loan CCA, I was told that it was not enforceable and when i sent a letter to CapQuest debt collectors they replied in writing that they did not have a "true copy of the original CCA".

This does not, however, wipe the debt out, it just means that they cannot enforce it through the courts. so yes, you can further DCAs chasing-the debt could be sold on again.

However, look at threads that talk about harassment, threats, intimidation, etc and i think you will find plenty of information and template letters there to use in these circumstances. Let's be logical, anyone who keeps pestering you payment on an unenforcceable debt has got too be backing a loser.

Wiith DCAs, keep cool and calm , appear the politest person ever to be in debt and over time they will drop themselves in it big time!

Originally Posted by andrew1

So I guess what is being said here is that the creditor can hound you forever, whether it gets paid or not is another matter. What about s.106(d) CCA '74 then in the case of secured lending:

s.106. Where, under any provision of this Act, this section is applied to any security provided in relation to a regulated agreement, then, subject to section 177 (saving for registered charges),--
(a) the security, so far as it is so provided, shall be treated as never having effect;
(b) any property lodged with the creditor or owner solely for the purposes of the security as so provided shall be returned by him forthwith;
(c) the creditor or owner shall take any necessary action to remove or cancel an entry in any register, so far as the entry relates to the security as so provided;
and
(d) any amount received by the creditor or owner on realisation of the security shall, so far as it is referable to the agreement, be repaid to the surety.

Written off? - Who cares?

[car2403]

Originally Posted by alisindebt

Hi

As I said in my part of the thread, I am not a Lawyer and I am certainly familiar with secured lending and therefore cannot comment on that aspect of CCAs. I engaged the services of a Lawyer to advise on the enofrceability of my unsecured loan CCA, I was told that it was not enforceable and when i sent a letter to CapQuest debt collectors they replied in writing that they did not have a "true copy of the original CCA".

This does not, however, wipe the debt out, it just means that they cannot enforce it through the courts. so yes, you can further DCAs chasing-the debt could be sold on again.

However, look at threads that talk about harassment, threats, intimidation, etc and i think you will find plenty of information and template letters there to use in these circumstances. Let's be logical, anyone who keeps pestering you payment on an unenforcceable debt has got too be backing a loser.

Wiith DCAs, keep cool and calm , appear the politest person ever to be in debt and over time they will drop themselves in it big time!

That's all fine and well, when you know your stuff and can apply your rights.

The issue being that most people don't, so would pay up, even if they got as far as having the credit agreement determined to be unenforceable.

I'm also not sure that debts can be sold on without a properly executed agreement.

[alisindebt]

Hi

As I said, I am not a lawyer, but I took legal advice. As it happens, I got it for free.

By the way, a point I have missed in my earlier post is to bluff i.e. For God's sake, don't actually tell them why the CCA is unanforceable, in your (or your Solicitor's opinion). Use a standard letter that simply says that they have not provided you with a true copy of the original CCA. Once it is in dispute, it is the job of the DCA to prove that it is correct, not you. Once in dispute you do not have to make any payments, nor can they demand any, nor can they add interest to the account i.e. dispute for a long time and the account is on hold.

Additionally, when you state that "I'm also not sure that debts can be sold on without a properly executed agreement", I agree. Use a template letter and ask for a copy. I never got a copy from any of my creditors, maybe i will use that in the future if I need to. You can ask for a copy at the same time that you request the CCA or SARS.

Put it this way. If you owed your credit card company 10 thousands pounds and the account went into default and some guy in a scruffy plastic mac appeared on your door step to claim the money owed to them, would you give him the cash?

Of course not, so why would you just pay it straight to a DCA who hide behind a flashy letterhead or website, that you can have made for a few pounds yourself?

It is up to them to prove "ownership" of the debt, not you.

Their job is to lie, intimidate and work outside the law.

Our job is to stand up to them.

That is what I have done and I have won.

I am not an expert nor a lawyer.

Originally Posted by car2403

That's all fine and well, when you know your stuff and can apply your rights.

The issue being that most people don't, so would pay up, even if they got as far as having the credit agreement determined to be unenforceable.

I'm also not sure that debts can be sold on without a properly executed agreement.

[ToxicWaste]

Originally Posted by car2403

While I totally agree with Sir Morritt, you'll have a hard job convincing the Creditor!

But that's not the point surely. If the debt never existed in the first place (the logical conclusion from Sir Andrew Morritt's opinion) then it isn't merely unenforceable. It's a figment of the lenders' imagination whether they agree with that or not.
So I am puzzled as to why the Site is endorsing the view that the debt hasn't been written-off.