Defaults when only application form exists

[darkhorse53]

I went down the agreement request route with 2 accounts with Marks &Spencer in Feb 2009 and they could only produce application forms which def did not contain the prescribed elements, only my bank details and employment details.They maintain these are enforceable and I do not. We weren't getting anywhere but I made an arrangement in April to pay £15 a month,which I thought meant they would stop adding late charges etc and freeze interest, but they carried on doing it anyway.So I refered the matter to FOS , they then refunded the charges but not the interest. The arrangement finished in June and then they wanted all the difference between the agreed payments and the minimum payments within 7 days of the last payment going through.Very quickly they involved DCA (but at the same address).Their tone was very aggressive you will have to pay court costs, bailifs will call at the house, we could put a charge against the house etc but this was not in writing , it was when I called to tell them that the matter was in the hands of FOS.
We have left it that we will speak again on Wednesday about an arrangement. M&S have agreed to refund the interest from April , they haven't put a DN on my account yet(they originally said they had) they will accept £15 on each account as a long term arrangement with interest frozen,but WILL HAVE TO default the accounts on my credit file as the payments are less than 1% of the balances. If I could pay 1% payments of the balances there would be no default.
This was always an acceptable solution for me (apart from the DN) I always wanted a plan to enable me to pay the debt back without racking up even more debt, but I don't believe they are allowed to put DN on my files without an enforceable agreement. So what would be the best way to tackle this?
To make the £15 payment plan and when challenge DN through FOS or court, this would take the heat off ....or
Refuse to budge on Wednesday.
I'm not sure if accepting the payment plan would put a block on fighting the DN.
I've read so much about this on different threads and sent the letters that seem to apply , my main problem is getting things in a logical format and I'm in danger of missing an important point.And I believe that DCA should not be making statements that are untrue(guidelines from OFT may 200but how do I get it across without seeming too aggressive.
It seems very all or nothing, I guess they take the view that if they concede I have a point , I might just back out altogether. They have to pile on the pressure with scare and bluff tactics.
I fear I'm starting to ramble on a bit too much, I hope you understand what I'm getting at.Could anyone help me focus more clearly please?

[evancosmo]

First things first; to quote Lilly White: forum rules about speaking on the phone! Don't do it!!!!!!

OK. The CCAs are either enforceable or they're not. If you're confident that they aren't then how you proceed is up to you. From what you've said you are being supremely fair & generous - heavens, you're prepared to pay something you're not legally obliged to do.

You're spot on about the all or nothing, but I do think they are using the threat of a default as a scare tactic. Personally, my thinking is the 1% issue is just a ruse to get higher payments from you; its certainly not on the statute anywhere.

The library has two useful letters in the debt collector section (numbers 5 & 9). If you're CONVINCED the agreement is unenforceable you can go down this route. It may be that to avoid the default you just don't pay them. Looking at things from their perspective, they have a debtor who is saying the agreement is unenforceable but never mind, I'll pay you anyway but don't default me. It just won't compute. Their brains aren't wired that way.

Now a debtor who says you're banged to rights on this unenforceable agreement, you're not having a penny & while you're about it here's a s.10 DPA1980 data subject notice telling you to stop everything is a different story. That's a language they seem to have more respect for.

Whatever you decide; you need to consider your strategy very carefully.

Also, given the tone of the DCA letter; it may be worth writing to them immeditely using the template in the library re: doorstep visits. Useful to let them know that route is shut whichever way you decide to proceed.

Finally, I completely agree with your comments about DCAs lying. It makes me sick. As for your point about being aggressive - knowing your rights, standing your ground & refusing to be lied to or bullied isn't being aggressive its ASSERTIVE!

All the best with this & please keep us posted on what you decide

Regards