Statute barred but made payments to DCA, do they count?

[mcreedy]

Ive made payments to DCA but they never produced the CCA and sold the debt on, do the payments count or since I shouldnt have been sending them money in the first place to them could statute barred apply?

[Michael Browne]

If you have made a payment at any time in the last 6 years, in effect acknowledging the debt, the debt cannot be statute barred. The clock resets from the last payment.

[Filthy Monkey]

As you have made payments towards the debt, you have effectively acknowleged it, so if those payments were made inside the period of limitations, a new period will begin from when you last made a payment or acknowledged the debt in writing. However, if you made payments after the debt became statute barred, it will still be barred and you will have no further obligation to service it. Without more information, though, it is impossible to say for certain. If you post full details of the debt, somebody will be able to give you a more accurate answer.

[mcreedy]

The debt was defaulted on in 2002 and passed to a debt collection agency. I have made payments to the debt collection agency since then, but when I found this website I learned about the CCA requests and sent one to the debt collection agency who were unable to produce a CCA and sold the debt on to another company without telling them the account was in dispute.

 

What I am trying to establish is becuase the debt collection agency did not have the legal right to collect the payments from me in the first place could it be argued the last payment was made with the creditor?

[Filthy Monkey]

Well, I guess the first thing to clarify is that the inbaility to produce a CCA does not cancel the debt, it only makes it unenforcable while the company defaults on supplying it. By making payments towards it you are still effectively admitting the debt. Therefore, I guess the answer to your question is no...

[mcreedy]

hmm i'd have aswell admitting the debt to my next door neighbour and paying them, they would have the same rights to pursue it? Ive made payment to a company who bullied and used scare tactics to obtain money. I do understand the "effectively admitting the debt" by making payments, i'm not disputing the debt, but how can you admit the debt to a company who has illegaly collected money from you, how is that going to hold any water?

[mcreedy]

Limitations Act 1980 refers to the lender not DCA's?

[Filthy Monkey]

hmm i'd have aswell admitting the debt to my next door neighbour and paying them, they would have the same rights to pursue it?

 

Well, no. Your neighbour has no legal right to pursue the debt. However, if the DCA has bought the debt or been asked by the original lender to collect on it, then they are legally entitled to do so.

 

Ive made payment to a company who bullied and used scare tactics to obtain money. I do understand the "effectively admitting the debt" by making payments, i'm not disputing the debt, but how can you admit the debt to a company who has illegaly collected money from you, how is that going to hold any water?

 

As above, they are legally entitled to collect the debt. Even if it is statute barred, they are legally entitled to attempt collection, there is just no way to legally enforce collection (This applies to England and Wales. The law differs slightly in Scotland).

 

What you are asking here is if they can attempt to collect on the debt without a CCA. Well, yes, they can. The debt has only been in dispute since you requested a copy of the CCA, which seems to have been fairly recently, and they failed to provide one in accordance with the terms of the Consumer Credit Act. As long as they are in default, they cannot enforce collection, but the debt still exists. You could still make payments towards it, even though they have not provided a CCA and, assuming the debt is still within the period of limitations, the counter would again be reset.

 

Ignoring the statute of lmitations for the moment, the simple fact that they have not provided you with a CCA puts the debt in dispute and makes it legally unenforceable until such time as they provide an agreement. If they are still trying to pursue the debt right now, I believe there is a letter in the templates section that you can send to them. I'm afraid I have to head out right now, but hopefully somebody will come along shortly and point you in the direction. If not, I'll have a look for it when I get back.

[mcreedy]

What you are asking here is if they can attempt to collect on the debt without a CCA. Well, yes, they can. The debt has only been in dispute since you requested a copy of the CCA, which seems to have been fairly recently, and they failed to provide one in accordance with the terms of the Consumer Credit Act. As long as they are in default, they cannot enforce collection, but the debt still exists. You could still make payments towards it, even though they have not provided a CCA and, assuming the debt is still within the period of limitations, the counter would again be reset.

 

Hi Filthy Monkey, thank you for replying I realy appreciate it!

I know they can attemp to collect the debt, I've even read in some cases they attemp to collect on debts were no payment has been made for 7 years.

 

What I mean is the debt collection agency has persuaded the "debtor" there really is a debt outstanding.

[Michael Browne]

Basically what FM is saying, and I agree, is that any reliance by you on the Limitation Act is dead in the water, no matter how you dance round it.

 

That leaves you with their failure to produce the CCA and this letter:

Creditors and DCAs - Consumer Wiki

[Lula]

Hi, what sort of debt is it?

[mcreedy]

Hi

 

It was a credit card

[Lula]

ok, send them this letter

Dear Sirs,

 

Account no xxxxxxxxxxxxxx

 

 

ACCOUNT IN DISPUTE

 

Re: my request under the Consumer Credit Act 1974

 

 

Thank you for your letter dated **********, the contents of which are noted

 

You attention is drawn to the fact that this account is subject to a serious dispute. On xx/xx/2007 I requested ********supply me a copy of the credit agreement covering this account pursuant to the Consumer Credit Act 1974 section 78. To date ******** have failed to comply with my request and have totally ignored my written reminders sent via recorded delivery of this fact. Without production of the said agreement I am unable to assess if I am indeed liable for any alleged debt to you or *******, nor does it give me any chance to evaluate whether any original agreement was ‘properly executed’ as required by the Consumer Credit Act 1974

 

 

For the avoidance of any doubt I have included section 78(1) and 78(6) of the Consumer Credit Act 1974, which states…

 

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.

(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; and

(b) if the default continues for one month he commits an offence.

 

 

 

Clearly as no agreement was supplied on request, this in no way complies with the requirements of the Consumer Credit Act 1974 and I now draw your attention to section 78 subsection 6 which states If the creditor under an agreement fails to comply with subsection (1) he is not entitled, while the default continues, to enforce the agreement;

 

Clearly this is a situation as described in s78(6) Consumer Credit Act 1974 and the debt is unenforceable at this time. In addition, I draw your attention to section 127 (3) Consumer Credit Act 1974 which states

 

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

This is backed by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (d) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 the agreement cannot be enforced.

 

 

To clarify s61(1) states

 

(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 terms, and

© The document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible

 

In addition the prescribed terms referred to in section 60 CCA1974 are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following—

 

1.Number of repayments;

2.Amount of repayments;

3.Frequency and timing of repayments;

4.Dates of repayments;

5.The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

 

 

Therefore based upon the Consumer Credit Act 1974 this debt as it stands is unenforceable and should this proceed to litigation, a court is precluded from making an enforcement order under section 127(3) unless a true copy of the signed agreement is produced..

 

At the point where this account entered into the default situation as described in s78 (6) CCA 1974 no other charges are allowed to be added until such time as ********* become compliant with my request. As ****** are still not in compliance with my request I insist that the following takes place with immediate effect

 

·All entries which refer to missed payments be removed from my credit file

·All collection activities by your company cease with immediate effect until ******** comply with my request from ********* 2007 or such time as a court makes an enforcement order

 

In addition, I draw your attention to the Office of Fair Trading’s guidance on debt collection

 

The OFT guidance which was issued July 2003 (updated December 2006) relating to debt collections and what the OFT considers unfair, I have enclosed an excerpt from page 5 of the guidance which states

 

2.6 Examples of unfair practices are as follows:

 

h. Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment

 

What I Require.

 

I require that you send me a true copy of the executed agreement as required by the Consumer Credit Act 1974. If you are unable to supply the requested documentation because no such agreement is in existence I require written clarification as such.

 

I require that you comply with my request within 7 days of the date of this letter. I will not correspond any further with you until I either receive a copy of the requested documents as laid down in section 78(1) CCA 74 or clarification that such agreement doesn’t exist. I am advised that should you persist in pursuing this debt ignoring the above information you will be in breach of the Administration of Justice Act 1970 section 40 as well

 

No other correspondence will be accepted

 

Should you attempt litigation it will be vigorously defended and the failure to supply documentation under the CCA 1974 is a complete defence to any legal action and your actions will be vexatious and unlawful

 

 

I trust this out lines the situation

[mcreedy]

Thanks alot Lula will post this on Monday morning and let everyone know how I get on.

[Filthy Monkey]

Okay, I'm back, but it looks like the cavalry have arrived! Thanks, Michael and Lucy, for stepping in and good luck with your letter, mcgreedy.