Yes

Hi Andy, thanks for the prompt response, to answer your points: The debt was a residual interest charge on a 10 year finance deal for a conservatory we built at our previous house. We made all payments on time by direct debit, but First National failed to alter the variable payments correctly with the variable interest rates, so there was a surprise bill at the end of the 10 years, which we refused to pay. They got a CCJ which we didn't defend because my business was going bust at the time so I had much bigger fish to fry. The finance term was from 1991 - 2001 from memory, and the CCJ very shortly after that.

Hello, I'm one of the people that got caught up in the First National Consumer Finance being allowed to convert it's unsecured CCJ consumer credit debts to charges over peoples houses back in 2002. The debt is relatively small (about £2500) in relation to the house value. First National sold all these debts to Link Financial (who have handed it down to their various reincarnations over the years) and they continue to pester me for it the money about once a year which I have just ignored. I have not paid a penny against the debt in the 18 or so years or so since it fell due with the CCJ. Though I did make an offer for full and final settlement at about one third of the value about 10 years ago which Link rejected. We don't plan on selling the home (will probably be here for the rest of our lives), so the charge is not an urgent concern, but I would very much like to raise a middle finger to the lowlife at Link Financial. My questions are: 1.Does the 12 year rule (1980 limitation act) apply? 2. If the 12 year rule does apply how do I actually go about getting the debt extinguished? 3. First National are still the holder of the charge at the Land Registry even though the debt has been assigned several times in the Link 'family', is that legal? Have they messed up? does it give me any wiggle room if I cannot extinguish the debt?

bump

Thanks for your input, but (and perhaps i've misunderstood this) I thought the supreme court ruling was that the charges were unlawful, which made it impossible for the bank to enforce action based on them, but didn't help people claim them back. In my case i'm not trying to claim them back but to use them as a belated defence to the CCJ to obtain a set aside. Am I missing something?

I totally sympathise, I have first hand experience of the monstrous behaviour of both Paypal and eBay when I was running an eBay business. In end I closed it because I realised that I could never rely on eBay or Paypal not to act unreasonably. What you have to realise is that neither company chooses to provide proper customer service because of the sheer number of users which would weigh down their margins. Instead they rely almost completely on computer algorithms to identify risk, and they amputate that risk just as automatically. The problem with this approach is there is no human reasoning in the loop, and their algorithms are frequently wrong. Examples of this are: a) Holding on to money because you are selling goods with a statistically higher chance of fraud/counterfeiting. b) Permanently freezing accounts because you are logging in using an IP address that has been linked to someone elses bad account (Thats a nightmare to get removed). c) Freezing seller accounts because you are withdrawing your money 'too often'!!! The list goes on, it's all extremely inaccurate, unfair, unreasonable and VERY VERY difficult to correct, all of which led me to conclusion that basing a business model on eBay/Paypal was a mistake. I've walked away, but like you have several 'accounts' with ebay/paypal that I neither want or can close. I should add that technically the accounts are meaningless, because I formed a limited company for them, which I have subsequently dissolved. eBay/Paypal will still try and treat them as personal accounts, but there is no basis in the T&C's or law for that, so you can safely ignore them if you have done the same. I've posted on this issue in the past: http://www.consumeractiongroup.co.uk/forum/showthread.php?349102-Are-eBay-Paypal-acting-within-the-law&p=3824527#post3824527

Hi, in a similar vein to my recent post on my Foundations Mortgage, about 6 years ago when my business got into difficulty, Natwest took out a CCJ against my wife on our joint 'Advantage Premier' account overdraft of about £9000.00. Shortly after they managed to get a charge for the CCJ against our house. Since then we get the occassional template letter from shoosmiths asking we start making payments, but have largely ignored. However, whilst revisiting all our financial affars recently we decided to look at what kind of bank charges we had incurred on that account that could be challenged, and just going back six years before the default, we have a total of over £12,000!! Now I understand that as a 'Claimant' bank charges are not easy to get back. BUT in this case I would like to use the charges as a DEFENSE and see if we can get the CCJ and Charging Order set aside, since the potentially unlawfull charges exceed the amount of the CCJ. It's been just over 6 years since the CCJ (It's now dropped off CRA's), so it's really the charging order i'm targeting. Do you Caggers have an opinion on my likelyhood of success? or alternate paths to getting the charge on house set aside? Many thanks in advance.

Hi, About 13 years ago, we took out a Foundations Mortgage with Natwest (Thats an intrerest only cheque book type mortgage). 6 Years ago, when my business got into difficulties, I got behind on monthly interest payments, and (because my eye was not on that particular ball), went into default on the mortgage. Since then, our payment history has been eratic due to customers not paying us. Natwest has on two occassions applied to the courts for repossession, and on each occassion I have managed to clear the arrears completely before the hearing. upon which Natwest applied for and was granted a stay with 'indefinite leave to restore'. My questions for you caggers are: a) Six years on, the mortgage remains 'In Default', there is nothing in the mortgage agreement that covers coming 'Out of Default', if i'm making my regular payments now, will NatWest EVER be forced to accept the mortgage is nolonger in default? Is there law that covers this? b) 'Indefinate leave to restore' seems harsh (on the courts part) is there anything I can do about that? c) During the 6 years, though we have never been to court (2 stayed hearings), Natwest I estimate have tagged on about £4000 of legal fees without detail or justification. I've asked them to provide that detail verbally, they have failed to do so. I'm going to ask them in writing, and if they still fail, demand they remove them altogether (under banking code of conduct), does anyone have experience of fighting these kind of charges? Many thanks in advance for your help...

Following the above letter, they put my account into default, which got me a bit angry: Head of Customer Assistance MBNA Europe Bank Limited Stansfield House Chester Business Park Chester CH4 9QQ 28th October 2009 ACCOUNT NUMBER: xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx ACCOUNT IN DISPUTE Dear Sir/Madam, Thank you for your letter dated 22nd October 2009, received 26th October 2009, the contents of which are noted. I am somewhat perplexed as to why you are sending me letters about ‘default notification’ as you have failed to comply with any of my requests for information which in turn has put this account into serious dispute. I would like to draw your attention to the following so as not to be in any doubt about your company’s lack of compliance with my LEGAL request. On 14th September 2009 I made a formal request for a true signed agreement for the alleged account under consumer credit Act 1974 s77/8. On the 29th September 2009 I wrote again highlighting your failure to supply a true signed agreement within the legal timeframe required under consumer credit Act 1974 s77/8 (All correspondence has been by recorded delivery). The document that you are obliged to send me is a true copy of the executed agreement that contained all of the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself as defined in section 61(1) of CCA 74. If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document. As you may not be aware , failure to comply with this request within 12 working days renders the alleged debt UNENFORCEABLE in law. Furthermore you should be aware that a creditor is NOT permitted to take ANY action against an account whilst it remains in dispute. The lack of a compliant credit agreement is a very clear dispute and as such the following applies. · May not demand any payment on the account, nor am I obliged to offer any payment to you. · May not add further interest or any charges to the account. · May not pass the account to a third party. · May not register any information in respect of the account with any credit reference agency. · May not issue a default notice related to the account. Be warned, the CCA 1974 is clear that a default can only be issued for breach of a valid, regulated agreement. If there is no agreement, as in this case, then you cannot issue a default as I have not breached any valid, regulated agreement. Therefore this account has become unenforceable at law. Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS. After taking advice, I am of the opinion that your continued pursuit is in violation of the Administration of Justice Act 1970 section 40 as well as breaching a number of the OFT Collection Guidelines. It is my intention to report your actions to any such regulatory authorities as I see fit, including (but not limited to) The Office of Fair Trading, and the Trading Standards. You have 7 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint. I look forward to your final decision on this complaint within 21 days. This should include your proposed actions in relation to the lack of a credit agreement. Sincerely

You may also be amused to know they finally sent me a BLANK copy of the CCA dated 25th March 2011, so they only missed their 12 day deadline by about 400 days!!

My memory sucks, just being going through the old correspondence on this, IGNORE EVERYTHING ABOVE, I just remembered they failed the timescale requirement on a section 78 request I did, so the debt is automatically unenforcable. So now it's direct route to ICO pressure to remove default. This is the letter I sent back in 2009: Head of Customer Assistance MBNA Europe Bank Limited Stansfield House Chester Business Park Chester CH4 9QQ 25th September 2009 Dear Sir/Madam DEFAULT NOTICE IN ACCORDANCE WITH CONSUMER CREDIT ACT 1974 78 (6) ACCOUNT NUMBER: xxxxxxxxxxxx I do not acknowledge ANY debt to your company. You have now failed to supply me with a copy of the signed executed agreement for the alleged “debt” you are trying to enforce. This request was sent on 9th September 2009 by recorded delivery. The Consumer Credit Act allows 12 working days for this request to be carried out before your company enters into a default situation. The time limits expired on 25th September 2009. For your information the relevant section of the Consumer Credit Act states the following: 61 Signing of agreement (1) A regulated agreement is not properly executed unless— (a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and (b) the document embodies all the terms of the agreement, other than implied term. Additionally: 78 Duty to give information to debtor under running-account credit agreement (1) The creditor under a regulated agreement for running-account 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,— (a) the state of the account, and (b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and © the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor. (2) If the creditor possesses insufficient information to enable him to ascertain the amounts and dates mentioned in subsection (1)©, he shall be taken to comply with that paragraph if his statement under subsection (1) gives the basis on which, under the regulated agreement, they would fall to be ascertained. (3) Subsection (1) does not apply to— (a) an agreement under which no sum is, or will or may become, payable by the debtor, or (b) a request made less than one month after a previous request under that subsection relating to the same agreement was complied with. (4) Where running-account credit is provided under a regulated agreement, the creditor shall give the debtor statements in the prescribed form, and with the prescribed contents— (a) showing according to the information to which it is practicable for him to refer, the state of the account at regular intervals of not more than twelve months, and (b) where the agreement provides, in relation to specified periods, for the making of payments by the debtor, or the charging against him of interest or any other sum, showing according to the information to which it is practicable for him to refer the state of the account at the end of each of those periods during which there is any movement in the account. (5) A statement under subsection (4) shall be given within the prescribed period after the end of the period to which the statement relates. (6) If the creditor under an agreement fails to comply with subsection (1)— (a) he is not entitled, while the default continues, to enforce the agreement. As you are aware, a credit agreement that is not properly documented and signed by the consumer is totally unenforceable under the Consumer Credit Act 1974 and therefore is a complete defense to any court claim that is issued. I will therefore no longer be making payments against the alleged debt as it is unenforceable. I now consider the matter closed and no further correspondence regarding payment will be entered into. If you persist on pursuing payment you will have left me no choice but to report this matter to such regulatory bodies as I see fit. Yours Faithfully,

Ah ok, based on the issued guidlines I think they will fall foul of section 44 "If the dispute has not been before a court, is the lender prepared to test their claim by seeking a CCJ or decree against the customer? If not, why not?"

Fletch that link doesnt take me to anything related? Brigadier (Are you really an ex Brigadie btw? )ok, well given their reticence to take ANY action on it, i'm going to work on assumption they know it's unenforcable, and use that as starting point to withdraw their right to process my information. I might just be poking a hornets nest, but I don't want to wait another three years for this to drop off my CRA reports.

Brigadier, thx attached is the 'reverse' photo copy I was provided with in the SAR though I have no proof it really was the reverse of the front page I signed. It seems as a 'general' form, there should have been plenty of other CAG'ers that have encountered it's enforcability or not. I also read somewhere that the ICO had issued guidelines stating that debts should not be reported to CRA's under cerain circumstances, one of which was where the debtor has disputed the debt and the creditor has been unwilling to enforce it in court (ie because they know it's unenforcable.), thats where i'm trying to get to, make it an ICO issue.

ok will do, the 'Application' was signed late 1996, last payment was about 2010 (I stopped paying when they lowered my limit and doubled my initerest rate without telling me!). Although they tried to get me to admit the debt on the phone I did not, I SAR'd them in 2010 and also raised a complaint with the financial Ombudsman when they failed to produce CCA initially. They eventually provided full SAR late 2010 and have been VERY quiet since. I would let sleeping dogs lie, but the default on my CRA just cost me a new contract/job with a bank (For which I had been accepted), so is getting VERY costly.