Stop standing order payments after 12 +2 days?

[WorriedGirl]

Hi,

 

I sent a cca request to Blair, Oliver & Scott on the 31st October by recorded delivery, with a £1 postal order. If I haven't heard anything from them within the 12+2 days, am I within my rights to cancel the standing order I have with them? I'm not sure wether i should do this incase it starts a torrent of abuse and phone calls. Am I right or wrong to do this? :idea::idea::idea:

[surfaceagentx20]

The failure of a creditor to comply with a request made under sections 77 or 78 of the Act has the consequence set out in those sections.

 

The sections do not say that the consequence shall be

[1] the debtor is discharged from any obligation to make payments under the agreement, or

[2] the debtor and creditor shall be presumed to be in a state of dispute upon whether the debtor owes the creditor an obligation to make payments under the agreement.

 

I'd keep paying or else you may find you get defaulted.

 

x20

[Bazza66]

If they cannot produce a valid CCA then they also are not allowed to process your data under the Data Protection Act. So they should not be allowed to put anything on your Credit File.

 

But unfortunately they do........ These DCA's are a law until themselves and something needs to be done!

[WorriedGirl]

So even though they have not produced the documnet I asked for, i should still pay them every month? I was under the impression that if they could not produce the document, then they were in default, the account was in dispute, and it was illegal for them to ask for payment until they produced the document. Am I completely wrong here?

[mr.ton]

The answer you require is....YES stop all payments with immediate effect as they are not entitled to a furthur penny off you (they werent originally but nevermind...)

Demand that they take you to a county court or tell em to get lost.

They wont coz it will cost them money to do so.

If they phone then refuse to answer any of their security questions & just give as good back to them if they are abusive with you.

They have no power/authority over you whatsoever

[surfaceagentx20]

There may be some short term practical advantage in ceasing payment of the instalments but I would save up those payments rather than spending the instalments on other things. Sure the creditor is in default. The consequence of that is that the creditor may not enforce the agreement for so long as he is in default.

 

Let us imagine that in four months time he remedies his default by complying with your request on a Monday. He is now at liberty to enforce the agreement so on Tuesday he serves upon you an effecive default notice. If you fail to comply with that default notice you will be at risk of the agreement being terminated and of demand being made for the entire sum due under the agreement. A least if you comply with the default notice because you have saved up the instalments you will not face the consequences of legal proceedings.

 

x20

[WorriedGirl]

Hi, so can I stop payment now as the account is in default, but when they do produce a valid CCA I can begin to pay them back again?

[surfaceagentx20]

You may cease payments if you wish. Ceasing to make payments is not a right derived under the Act but rather an indirect consequence of the creditor being unable to enforce the agreement for default in complying with your section 77/78 request.

 

Further if the creditor should remedy his default, you should not confuse your position as simply restored to an obligation to renew making instalment payments. If by the time the creditor remedies his default there are arrears of instalments, failing to pay those arrears will likely result in a default notice being served upon you. This is why I recommend that if you do cease making payment you save those payments up rather than spend the money on other things.

 

x20

[Mr lex]

Hi, so can I stop payment now as the account is in default, but when they do produce a valid CCA I can begin to pay them back again?

 

This is only my understanding of your question.

 

If they produce an enforceable agreement, they are entitled to demand any and all missed payments. I would be tempted to send this letter before you stop paying :-

 

 

 

Account In Dispute

 

Ref:

 

Dear Sir/Madam

 

 

You have failed to respond to my legal request to supply me a true copy of the original Consumer Credit Agreement for the above account.

 

On **DATE** I made a formal request for a true signed agreement for the alleged account under consumer credit Act 1974 s77/8. A copy of which is enclosed for your perusal and ease of reference.

You have failed to comply with my request, and as such the account entered default on **DATE**.

 

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 and subsequent Statutory Instruments. If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document.In addition a full statement of this account should have been sent to me detailing all debits and credits to the account.

 

Furthermore

 

 

You are aware that the Consumer Credit Act allows 12 working days for a request for a true copy of a credit agreement to be carried out before your client enters into a default situation.

 

This limit has expired.

 

As you are no doubt aware section 77(6) states:

 

If the creditor fails to comply with Subsection (1)

 

(a) He is not entitled , while the default continues, to enforce the agreement.

 

Therefore this account has become unenforceable at law.

 

As you have Failed to comply with a lawful request for a true, signed copy of the said agreement and other relevant documents mentioned in it, Failed to send a full statement of the account and Failed to provide any of the documentation requested.

 

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

 

Furthermore I shall counterclaim that any such action constitutes unlawful harassment.

 

Please note you may also consider this letter as a statutory notice under section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect.

 

This means you must remove all information regarding this account from your own internal records and from my records with any credit reference agencies.

 

Should you refuse to comply, you must within 21 days provide me with a detailed breakdown of your reasoning behind continuing to process my data.

 

It is not sufficient to simply state that you have a ‘legal right’; You must outline your reasoning in this matter and state upon which legislation this reasoning depends.

 

Should you not respond within 14 days I expect that this means you agree to remove all such data.

 

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 credit agreement is a very clear dispute and as such the following applies.

 

* You may not demand any payment on the account, nor am I obliged to offer any payment to you.

* You may not add further interest or any charges to the account.

* You may not pass the account to a third party.

* You may not register any information in respect of the account with any credit reference agency.

* You may not issue a default notice related to the account.

 

 

I reserve the right to report your actions to any such regulatory authorities as I see fit.

You have 14 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint.

 

I would appreciate your due diligence in this matter.

 

I look forward to hearing from you in writing.

 

Yours faithfully

 

.......................................

 

 

Print or type your name.

 

Hope this helps,

 

Lex

 

(with thanks to 42Man)

Edited November 24, 2008 by Mr lex
remove a unnecessary line

[WorriedGirl]

Sure, I definitely see what you mean and that seems to be the sensible option. I am really confused however, because now I don't see the point in asking for a CCA if it doesn't affect my position with the debt collectors. I have been reading posts on the forum for some time now and I have been advised to CCA all my creditors. It does seem a bit pointless though if we ask to see a valid agreement, yet continue to pay them. I'm just confused lol

[enamae]

Just to clarify a point, would they still be entitled to any interest that accrued during a period of default?

[WorriedGirl]

Thanks Mr Lex, i think is what I was looking for earlier. The only thing is, as we all now, these people are complete bullies and I am frightened to send them something like this incase they start calling me again and harrassing me. Also, would sending them this letter make them more determined to demand the full amount in 1 go if they do eventually do find my CCA?

[woody1066]

This is interesting as I have CCA'd MBNA on behalf of an old abbey credit card. They are now over their 12+2 days and nothing recieved. Should I stop the standing order or not?

[Mr lex]

Again, this is only my understanding.

 

They could/would most likely demand all missed payments, after sending the letter above it is most unlikely they would try and recover the whole debt.

 

Lex

[WorriedGirl]

Ok, so I can send the above letter and stop payment, but I can be sure that they will demand missed payments when they find the CCA, so if this takes 1 year, it'll be 12 missed payments, but they won't demand the full amount in 1 go?

[Mr lex]

That is how I understand it.

 

You would be able to work out a repayment plan with them, as they are at fault I'm sure.

 

Remember to give them the 14 days first !!!

 

Of course, if they come up with a unenforceable agreement, then we can take it from there.

 

Lex

[surfaceagentx20]

Sections 77/78 were not devised by the draftsmen as a method by which debtors could evade liability under regulated agreements. The purpose was to enable debtors to establish what was written in their agreement and the state of the account. If I recall correctly, the drasftsmen wished to provide to debtors an opportunity to swiftly establish what their liability to the creditor might be in order to be able to discharge that liability whenever they chose to and to encourage the creditor to comply swiftly, wrote in the consequences which would flow from a default in compliane with the request.

 

On CAG, sections 77/78 are rarely deployed for this purpose but rather, are deployed as a means to obtain a copy of the agreement in order to then be able to establish whether there exists an opportunity to challenge the enforceability of the agreement by saying it was improperly executed. Most times however, the request is made long after the agreement in fact terminated.

 

In your case the agreement has not terminated. Employing 42man's/Mr Lex's letter does not tell the creditor any more than he already knows, apart from the not insignificant fact that you are sharp in tooth and claw and aware of the restrictions imposed upon the creditor on enforceability whilst the default endures. I could not say how the creditor might react to the sting of receiving such a letter.

 

One feature of this letter and just about all the others I have seen on this topic which baffles me is how the creditor's failure to comply with the request somehow places the account in dispute. Seemingly the amount due under the agreeent will have shifted so that what the creditor believes is payable differs from the amount the debtor believes is payable the moment the 12 days have elapsed. So when the statement of account does arrive in compliance with the section 77/78 request there will be something written on it that the debtor may dispute. Since that statement will by definition not have arrived whilst the creditor is in default, what exactly is the dispute which arises before it is delivered?

 

It seems to me to say there is a dispute is an absurd conclusion to draw and all that which in truth has occured is that the creditor is in default and the debtor has cause for complaint.

 

If the creditor did not comply with the section 77/78 request for a full 12 months and hadn't received a payment to the credit of the account during that period, I'd expect the creditor to be bullish. Hopes of meekness would be ill-placed in my opinion.

 

x20

[WorriedGirl]

Confused again, I really don't know which way to go with this one as the opinions are so different. I am wondering if anyone else out there has CCA'd a debtor and stopped payments????

[woody1066]

So if that is the case what is the point of requesting a CCA in the first place? You may as well save yourself £1

[WorriedGirl]

Exactly, I am very confused as the CCA request seems to be the most used "tool" on the site for negotiating with creditors. It was my understanding that they couldn't enforce the debt without a valid CCA, therefore they had no right to ask for payment without it and if they did come upon it, then they could start asking for monthly payments again. I would really love to hear from anyone who has had a CCA request work in their favour. I am in exactly the same position as yourself Woody, they are now over their 12+2 working day deadline and I haven't even received acknowledgement of the CCA request....so I don't know what to do.

[mr.ton]

Let us imagine that in four months time he remedies his default by complying with your request on a Monday. He is now at liberty to enforce the agreement so on Tuesday he serves upon you an effecive default notice. If you fail to comply with that default notice you will be at risk of the agreement being terminated and of demand being made for the entire sum due under the agreement. A least if you comply with the default notice because you have saved up the instalments you will not face the consequences of legal proceedings.

 

What consequences would they be exactly?

The OP can do what ever she wants with the money she is saving by stopping payments to the DCA.

If the worst ever comes to the worst, then she just pays back a small amount based on what she has leftover once all essential outgoings are taken into account by the court etc..

Your above statement comes across a bit trolling to me with the greatest respect

[mr.ton]

Confused again, I really don't know which way to go with this one as the opinions are so different.

 

The one's who are encouraging you to keep paying...i question their underlying motives to be honest

They are effectivley saying that DCA's have some sort of power & authority over you which they dont whatsoever.

I advise you to let a county court sort it all out - you cant get any more official than that & that way its an amount you are happy with paying per month & one which the DCA can do sod all about.

While its the way it is..they will just lie,cheat,bully,speak to you like rubbish & move the goalposts when they want.

[woody1066]

This is all useful but we need some kind of difinutive answer here. Can we / do we stop paying them or will we be ultimately punished if they come up with a valid CCA? This information is fundamental to a lot of posts on this forum so I think we need a kind of straw poll as to which advice we should take.

[mr.ton]

This is all useful but we need some kind of difinutive answer here. Can we / do we stop paying them or will we be ultimately punished if they come up with a valid CCA? This information is fundamental to a lot of posts on this forum so I think we need a kind of straw poll as to which advice we should take.

 

Please explain what you mean by "ultimately punished" - in what way exactly

[woody1066]

As was stated if they produce a valid CCA then they will claim back all of the missed payments