checking the legalities to get a loan written off???

[Sarrahk]

Hello ...

 

Wondering if there are any thoughts on this... I watched a panorama programme last night which talked about how it is possible to get unsecured debt written off due to banks being slack with their paperwork..

 

I have been debt busting for 4 years.. a few years back i got in to terrible debt (27k) and with help of CCCS and by working hard at it i am now down to a mere 9k:) and the majority of that is an unsecured loan from northern rock!

 

I am interested to know whether there are ways to get it written off (that dont involve IVAs/bankruptcy etc as dont need or want that route) by checking on their paper trail etc.. Notably i dont actually have a copy of my original loan agreement etc!

 

If so- what (if any) are the implications of doing so?

 

I have paid them almost half of it back ... there is only the last 8k to go... and anyway to speed it up would be fabulous:lol:! At moment i am just paying back extra installments on top of the monthly payments ...

 

Any ideas as this is fresh territory for me

[rory32]

The Panorama programme was at best misleading and poorly researched IMO. However, if you want to check the enforceability of a credit agreement then you can send the creditor template N here. Enclose a one pound postal order, send the letter recorded delivery and do not sign the letter.

 

For an unsecured consumer debt to be enforceable the agreement must contain certain prescribed terms. If it does not, or if the copy of the agreement can not be produced, then the debt is legally enforceable even in a court of law.

 

For a loan (fixed sum credit) the prescribed terms are:

 

A Amount of credit

A term stating the amount of credit

 

B Repayments

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-

(a) Number of repayments;

(b) Amount of repayments;

© Frequency and timing of repayments;

(d) Dates of repayments;

(e) 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.

 

 

It is also worth noting that any charges that were applied to the accounts e.g. late payment fees, etc. are penalty charges and can be claimed back if necessary to reduce the amount of outstanding debt. You can not however reclaim the charges and keep them and then try to get the debt written off as this would be considered unjust enrichment.

[Sarrahk]

Thanks for this, I think mine is a fixed sum credit?? It was unsecured loan from northern rock.. ??

 

Do you mean that if they do not provide then it is legally unenforseable even in court ( your post says enforceable!)

 

I will get that first letter off.. i am particularly concerned as not sure even as to the accuracy of the outstanding balance and havent got the original agreement anywhere as it is a debt that is now about 4/5 years old!

Edited November 11, 2008 by Sarrahk
typos!

[rory32]

Thanks for this, I thikn mine is a fixed sum credit??

Yes, it is.

Do you mean that fi they do not provide then it is legally unenforseable even in court ( your post says enfoceable!)

Yes, sorry I meant unenforceable (it falls under s127 of the Consumer Credit Act).

 

i am particularly concerned as not sure even as to the accuracy of the outstanding balance and havent got the original agreement anywhere as it is a debt that is now about 4/5 years old!

I would ask for a copy of the agreement first. If you are disputing the balance then you can always send a SAR at a later date to see what charges are on the account.

[Michael Browne]

Shouldn't that be uneforceable?

 

For an unsecured consumer debt to be enforceable the agreement must contain certain prescribed terms. If it does not, or if the copy of the agreement can not be produced, then the debt is legallyenforceable even in a court of law.

[rory32]

Too slow Michael

[Sarrahk]

Thanks very much! I am sending off a letter today...

 

I sense i will have something of a battle though as even if they have lost the paperwork i have acknowledged the debt to them by making repayments for past 4 years... It would be hard surely for me to then suddenly cease paying and challenge enforceability?

 

Would it affect my credit rating if i did as well (altho credit rating is already bad n only just starting to repair itself from passage of time!)

[rory32]

Previous acknowledgement of the debt doesn't matter. You are simply challenging the enforceability of the account. You can choose to not acknowledge a debt at any time.

 

Regarding your credit rating I assume that they have already defaulted you on this account. If they were to apply a second default to the account you can have this removed.

[Sarrahk]

there was no previous default (although i only checked about a year ago!) but it was marked as arrangement to pay ... i dont know if it still says that on credit file as i pay over the standard repayments now as i have been trying to get rid more quickly...

 

I suppose potentially they could then default me if i stopped paying on basis of their non compliance with my request?

 

Anyway.. am jumping the gun.. I sent first letter off so will see if i have any response ...

[andrew1]

Hey, welcome back Sarrahk, this little lady began a classic thread called Default Hell which attracted over 18000 views http://www.consumeractiongroup.co.uk/forum/legalities/20118-default-hell.html . Haven't you done well to date?, well done.

 

As for your loan agreements check them with a fine toothed comb, APR's against actual payments, all the prescribed terms, signatures etc, you may have noticed Andrew Leakey on the Panorama programme too who was the Consumer Credit Solicitor - he has acted for a number of people I know he's at Stevensons and knows his stuff, but he said in the programme that somewhere between 1 in 5 or 1 in 10 agreements have something wrong with them and unenforceable and I know for a fact many have.

 

Check it, then check it again...

[Sarrahk]

hi andrew and thanx for comments! If the copy agreement materialises i will check it for sure!! Keep ya'll posted

[the winkler 72]

Hi all, Have just read this post, (by the way i'm new to the forum) and i'm sorry to be a pain, but, am I correct in thinking in it's most simplist form, If I ask for a copy of the original credit agreement from say barclaycard and they can't give me a copy then the debit is unenforceable and I can refuse to pay them anymore money?

thanks

[rory32]

Yes.

[the winkler 72]

So rory32, what's the downside?

 

does it screwup your credit rating?

 

thanks for your reply

 

winkler

[rfullerton]

hello, Im new to the site. After watching the panorama programme, I decided it was worth asking natwest (who my loan is with) for my credit agreement. I had my phone call returned the next day by a snotty bank worker telling me I should not call that branch as that was not the branch with which the loan was taken out. I told the lady she was wrong and again requested my credit agreement. A couple of days later the lady calls and tells me the credit agreement could not be located. After reading posts on this site I therefore believe my loan to be unenforcable. Could somebody please advise me what to do next. I do not want to pay solicitors fees. Thanks for any advice.

[the winkler 72]

rfullerton i'm with you, but whats the downside?

there has to be one, otherwise everyone would be doing it surely!!

 

best regards

winkler

[rory32]

Most people who request a copy of their credit agreement are already in debt so their credit rating getting shot isn't a big downside for them.

 

If you are defaulted due to not paying when the company are in default of supplying the copy of the credit agreement then you can get the default removed but it's not going to get removed overnight and it will require perserverence.

 

hello, Im new to the site. After watching the panorama programme, I decided it was worth asking NatWest (who my loan is with) for my credit agreement. I had my phone call returned the next day by a snotty bank worker telling me I should not call that branch as that was not the branch with which the loan was taken out. I told the lady she was wrong and again requested my credit agreement. A couple of days later the lady calls and tells me the credit agreement could not be located. After reading posts on this site I therefore believe my loan to be unenforcable. Could somebody please advise me what to do next. I do not want to pay solicitors fees.

You need to start your own thread on your situation rfullerton. When you ask for a copy of your credit agreement you need to do it as an official request in writing with the statutory fee of one pound. Phone conversations, unless they are recorded, count for nothing.

 

If they do confirm in writing that they can not locate the credit agreement then yes the acccount is unenforceable. Currently it is not because you have not made an official statutory request for it.

[rory32]

If you don't know how to start your own thread have a read here http://www.consumeractiongroup.co.uk/forum/welcome-consumer-forums/107001-how-do-i-dummies.html

[the winkler 72]

lol rory32 be patient my friend, were just a little nervous to start the ball rolling.

 

thanks for all the tips

winkler

[ukmp3]

Quick question. If an account was paid off in full 18 months ago can I still look at the documents (under the 6 year rule of thumb) and is it worth me doing so with a view to recovering monies paid?

 

That may sound a bit cold - reason I ask is that I took out a loan to pay off several CC and other loans......

[andrew1]

Quick question. If an account was paid off in full 18 months ago can I still look at the documents (under the 6 year rule of thumb) and is it worth me doing so with a view to recovering monies paid?

 

That may sound a bit cold - reason I ask is that I took out a loan to pay off several CC and other loans......

 

The word 'Unenforceable' means just that, but if you don't have an account anymore then how can anyone enforce payment on it? The account has to be 'running credit' or in ordinary language a 'live' account which if you stop making payments on could be enforced as is the right of the Original Creditor under correctly constructed agreements.

 

Before a creditor can enforce an agreement through a court it will need to put the original in front of the court or a certified copy of one and to enforce it would require an order of the court. No agreement - no debt. But, it is not something to just stop paying without advice. Few on this forum advocate using excuses to not pay ones debt, but in circumstances like this Finance companies would think nothing of repossessing your home if you didn't pay, if they cannot get their administration right in the first place then ordinary citizens have a right to defend themselves and if not having a true copy of the agreement with all the prescribed terms in it correctly stated is that defence then they have only got themselves to blame. ALWAYS get your agreements checked by a professional before you stop paying. Request a copy as Rory suggests, it only costs £1 then take it from there.

 

Sarah

[ukmp3]

Sarah,

 

Thanks for the information. Wish I had know this in advance.......

 

I have certainly been done over by the banking industry but it would appear that as I have re-financed to get everything tidy I am lumbered with a debt for the next 8.5 years.

 

Oh well never mind...................... Payment plan time I think

[andrew1]

Sarah,

 

Thanks for the information. Wish I had know this in advance.......

 

I have certainly been done over by the banking industry but it would appear that as I have re-financed to get everything tidy I am lumbered with a debt for the next 8.5 years.

 

Oh well never mind...................... Payment plan time I think

 

I'm sorry to hear that, my friend had a glaringly unenforceable agreement for 45,000 and has recently refinanced with a £60k one which effectively wiped out his opportunity to challenge it...some you win some you don't - sorry.

 

Trouble is, these finance companies are looking at their agreements now and as soon as anyone with a 'dodgy one' is found they are getting 'associated' companies to call the debtor and offer much cheaper deals than the one they were on. Once that is accepted by the debtor and they have a new agreement the old agreement unenforcability issue flies out the window. Borrowers beware.

[the winkler 72]

fantastic information andrew1,

I'm not in the sh1t yet! and am hoping to start the ball rolling before I am.

so once i ask the first lender for my cca, the tempting offers might start to kicked in ??

can i do this if Im not in the doo doo?

[andrew1]

fantastic information andrew1,

I'm not in the sh1t yet! and am hoping to start the ball rolling before I am.

so once i ask the first lender for my cca, the tempting offers might start to kicked in ??

can i do this if Im not in the doo doo?

 

Of course, anyone can and should get a copy of their agreement and have it checked out by a professional, even if it's ticking along nicely you don't have to wait until you are in arrears. You need to check everything that is in it, that the APR and the interest charged correspond, that it is signed by both parties and that it has all the prescribed terms. For Unregulated Agreements pre 2006 which are over £25,000 you also need to check the details of what that loan amount actually relates to as there are different types of credit. For example, say you took a loan for £35,000 and one part of the loan was to pay off an older loan you had, under £25k and the finance company paid it on your behalf. (this often happens with 2nd charge loans - the fin co insist you pay off any current charges on the property to give them clear 2nd charge so make the payment themselves from the loan monies) This is a category of credit called ' fixed sum, restricted use debtor creditor credit because you have no facility to use the funds at all. Another part of the loan went to pay off arrears on your main mortgage and they pay that too, again restricted use, but payments towards the purchase of property are 'exempt agreements', and finally, you are given the balance of what's left in cash to do with what you want, that's 'Unrestricted use', debtor creditor credit - another category of credit , so there you have 3 categories of credit and you only need 2 to make the agreement a Regulated Agreement (under the protection of the Consumer Credit Act) and it is classed a 'Multiple Agreement' therefore making your original document of an 'Unregulated Agreement' ( which effectively means you don't get given the protection of the Con Cr.Act) and it is unenforceable. There also are rules and regs about the Brokers commission fees on the agreement and admin charges too, but that's why it is so important to get a legal eye to tell you rather than just winging it from info from people like me on the internet who is not trained at all

 

okay?

 

Sarah