Stop standing order payments after 12 +2 days?

[ageless]

I'm afraid that a certain individual in this thread is creating unhelpful confusion.

I recently contacted Trading Standards regarding this issue and they confirmed that it is absolutely a legal requirement for a original creditor or a DCA (If they have purchased the debt) to provided the relevant documents under the Act if requested to do so by the Debtor. No if's or but's or quoting other legislation, an absolute requirement:p

If the original creditor or DCA fail to do so then they are not allowed to pursue the debt until the requested documents have been supplied. Trading Standards made this very clear.......they also asked me to report to them any Creditor or DCA that continued to try and collect on any debts I may have if they have not supplied the documents requested under Sections 77/78 of the 1974 Act.

Sure they can continue to pursue the debt if sometime down the line they find the required documents, but it is absolutely NOT backdated and they can only ask you to pay what you can afford not what they would like. If they are unhappy with that then they can always take you to court, then the court will decide what you can pay.........not the creditor or DCA.

If your still not sure about the consequences of the CCA 1974, then contact Trading Standards..........a simple e-mail request will do.

[Mr lex]

There is no harm to be done by sending the letter over page.

 

A DCA will keep trying it on untill you put them to prove they have a valid CCA. It won't cost you more then the recorded delivery stamp.

 

Lex

[42man]

In my opinion.....

 

You send off the CCA request, if they don't send it to you in the 12+2 working days then, you send them the dispute letter....at this stage you are quite entitled to stop paying, but that is up to you. Yes if they do provide an agreement that is enforceable, then you resume the payments, (they could of course decide to get nasty or carry on accepting your payments)....obviously if you believe that your agreement is unenforceable, you have to carry the risk that the DCA/Bank may see it differently, however if you are confident in going to court, having studied these forums, and the Consumer Credit Act, and are able to argue your corner in front of a judge and an opposing solicitor, and show clearly why the agreement isn't enforcable using case studies from the high court

However if they NEVER produce the agreement then you will carry on paying towards a debt that is unenforceable !!

 

One cagger (I can't find the thread) got his agreement back after 12 months....and I believe he/she resumed the payments without any problem....

[amdmlivingstone]

Hi Worriedgirl & Woody

 

I sent a letter of complaint and a CCA request to provident over 12+2 days ago and have not received a reply - I sent this to my local office. Just to cover myself, I sent a 2nd CCA request to their head office and enclosed a copy of my initial CCA request and complaint.

 

I will give them the benefit of the doubt and allow them a further 12+2 days and then if they have still not replied, I will send them the 2nd CCA request advising that I will stop payment - Although this is a route I don't want to go down however, I mean business

 

I will let you both know how I get on, meantime if you do decided to go down the non payment route, I would certainly take the advise of others and put the money by each month just in case.

 

The site team and other caggers will need to see a copy of your CCA once it arrives, this will help determine whether it is an actual fact enforceable. If it isn't then you may be able to spend the money you have saved.

 

Good luck and keep us posted.

[jobymartin]

hi

after 12 days they are in default after a further 30 days they have

committed an offence if they have not sent the cca they can not do

nothing about it they will say otherwise just put the money you pay these

people away and save it if they produce the cca then get it checked over

for problems with the agreement the 1st step is to ask for the cca if they

cannot produce this you are in a great posistion its just a waiting game

also it must be an original signed agreement do not accept any other

document

thanks

[surfaceagentx20]

It is rather tiresome to read that where I advance a more cautionary approach to the question whether a debtor to whom a creditor has not as yet fulfilled his section 77/78 obligations might therefore suspend payments, another steps up to opine that I am trolling and postulates with what he terms his honest belief, that I have questionable underlying motives.

 

For my part I would expect there to be legal authority if the debtor's obligations were to be altered and I imagine there would be different criteria for different types of agreements. If legislation existed which operated to suspend the debtor's contractual responsibilities to make payments to the creditor, CAG of all places would have sniffed it out by now. It's not as if sections 77/78 are a new part of the statutory framework. They've been around for years.

 

There is no power for a creditor to take his debtor to court for a decision on what would be reasonable for the debtor to pay during the currency of an agreement. Though the language used in this thread to describe the court's powers is somewhat wishy-washy, what I imagine is being discussed is the ability of the court to determine what would be reasonable for the debtor to pay after having regard for the debtor's means. In short, a Time Order, which is available to a debtor to seek where the conditions set out under section 129 Consumer Credit Act 1974 are satisfied. Unfortunately, one of those conditions is that the debtor has been served with a default notice.

 

So to repeat, my advice would be for those inclined not to pay, to not pay, but to put that money to one side so that in the event there is later compliance and an effective default notice is served, the debt can readily be discharged. If the creditor fails forever and a day to produce the agreement, the limitation clock will have started with the first instalment which was detained from the creditor.

 

x20

[woody1066]

I for one would wish that the arguments stopped and the advice given (although most welcome), would at least be uniform. This is a huge step for some of us and I for one need to know that if I take the radical step of witholding payment that I am at least not going to be made worse off than I am already

[pt2537]

 

So to repeat, my advice would be for those inclined not to pay, to not pay, but to put that money to one side so that in the event there is later compliance and an effective default notice is served, the debt can readily be discharged. If the creditor fails forever and a day to produce the agreement, the limitation clock will have started with the first instalment which was detained from the creditor.

 

x20

i would tend to agree there except for the limitation clock bit

 

IMO it starts at the cause of action which would be after at least one payment has been missed and the second becomes due , really at the point where the lender could issue a default notice

 

however, i think the failing to provide a CCA can be dealt with by way of an application for pre action disclosure if the lender fails to provide under s78.

 

that way you will be able to assess the merits of any claim you may have and then take steps for a declaration of rights under s142

[underdog13]

I can certainly see the arguement for putting withheld payments aside to pay off a sum demanded under a valid default notice. I wish I could do so, however (and I dare say this applies to quite a few caggers), I have reached a position where I am simply unable to keep up with payments.

 

What are the implications of a creditor serving a valid default notice and terminating the account whilst the creditor themselves are in default for not complying with a s77/78 request?

[surfaceagentx20]

Thaks PT,

I rather fancy you share my way of thinking on the absence of legislation which operates to prevent the creditor from recovering as a lump sum, arrears of instalments which built up during a period when the creditor was in default of a section 77/78 request. I say this because, if the cause of action accrues beginning with the first unpaid instalment, that pre-supposes a breach by the debtor. If some legislative measure relieved the debtor of the obligation to pay then the failure of the debtor to pay would not constitute a breach at all and in consequence there would be nothing on which the creditor could rely to found his cause of action.

 

An application for pre-action disclosure of the agreement whilst technically feasible strikes me as using an extremely expensive mallet to crack a rather valueless nut (on the whole).

 

On 13's question, my view is that a creditor who serves a default notice and proceeds to terminate an agreement whilst in breach of obligations under section 77/78 does so at his own peril. If I as a debtor were ever in such a situation I should gladly accept the creditor's termination whilst at the same time contending that the operation of section 77(4), alternatively section 78(6), precluded the creditor from enforcing the agreement and that with the service of a default notice in such circumstances constituting the prohibited step of 'enforcement', the notice was not an effective notice so as to entitle the creditor to do any of those things under section 87(1) of the Act in the event the default notice was not complied with.

 

In effect, the creditor's termination has the ordinary common meaning, that is, it terminates the agreement, but the termination stops short of entitling the creditor to then implement section 87(1) by demanding early payment or recover possession of goods because section 87(1) makes the service of an effective default notice a necessary pre-requisite to such an entitlement.

 

x20

[WorriedGirl]

I would also like to know if a creditor can serve me with a default notice and threaten me with court action if they haven't provided me with a requested CCA?

I requested a CCA from 1st credit in April, and in September I got a letter from them asking me to confirm if the signature on the enclosed photocopied application form was mine, and if so, they'd send me the CCA. It is a copy of the application form that I signed at an airport and the T&Cs are separate entirely, just printed off and put in the same envelope. I have completely ignored this as i'm pretty sure it is not a valid CCA and I want to see what they would do next. The account had just been moved from Robinson & Way to 1st credit, so I hadn't started payments with them yet.

 

This current case that I am asking advice on is different, however, as the standing order I want to stop paying, is related to a different credit card account that went into default years ago and I have been paying back regularly for the last few years. After stumbling across this forum however, I was advised to send a CCA request for all my debt. It is only today that I find myself very unsure of what to do next as I always imagined that I could withhold all payments to the creditor if they couldn't produce the goods.

[pt2537]

Thaks PT,

I rather fancy you share my way of thinking on the absence of legislation which operates to prevent the creditor from recovering as a lump sum, arrears of instalments which built up during a period when the creditor was in default of a section 77/78 request. I say this because, if the cause of action accrues beginning with the first unpaid instalment, that pre-supposes a breach by the debtor. If some legislative measure relieved the debtor of the obligation to pay then the failure of the debtor to pay would not constitute a breach at all and in consequence there would be nothing on which the creditor could rely to found his cause of action.

I do indeed believe we are singing from the same hymn sheet

 

An application for pre-action disclosure of the agreement whilst technically feasible strikes me as using an extremely expensive mallet to crack a rather valueless nut (on the whole). Expensive for who??????

 

All England Law Reports/2003/Volume 3 /Black and others v Sumitomo Corporation and others - [2003] 3 All ER 643

 

A very useful case when you want to screw the other side in an application for discovery especially when they have been unreasonable in failing to disclose documents reasonably requested

 

the court has generally taken the view that adverse costs shouldn't be awarded against the applicant under these circumstances

 

very very useful;)

[WorriedGirl]

would a lack of CCA be a useful tool in asking for a settlement?

[enamae]

hi

after 12 days they are in default after a further 30 days they have

committed an offence if they have not sent the cca they can not do

nothing about it they will say otherwise just put the money you pay these

people away and save it if they produce the cca then get it checked over

for problems with the agreement the 1st step is to ask for the cca if they

cannot produce this you are in a great posistion its just a waiting game

also it must be an original signed agreement do not accept any other

document

thanks

 

Just for clarification, it's no longer an offence.

[jobymartin]

hi

whats the other 30 day waiting period

thanks

[mr.ton]

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

 

Yes..but how is that being punished exactly?

Like i said - the county court process i mentioned above would just come into effect.

The OP would be under no obligation/pressure to payback what they didnt have

[woody1066]

So let me summarise this as far as I can see:

 

You can ask for a CCA

 

The DCA or bank etc have 12+2 days to supply you with this

 

If they havent supplied you with a legal CCA in that time then you can carry on paying them or stop paying them but dont spend the money as they might produce 1 in a couple of years or so.

 

net result = I am £1 down

[pt2537]

So let me summarise this as far as I can see:

 

You can ask for a CCA

 

The DCA or bank etc have 12+2 days to supply you with this

 

If they havent supplied you with a legal CCA in that time then you can carry on paying them or stop paying them but dont spend the money as they might produce 1 in a couple of years or so.

 

net result = I am £1 down

a request under s78 does have its benefits but if you want to challenge your agreement then there are other options available

[underdog13]

On 13's question, my view is that a creditor who serves a default notice and proceeds to terminate an agreement whilst in breach of obligations under section 77/78 does so at his own peril. If I as a debtor were ever in such a situation I should gladly accept the creditor's termination whilst at the same time contending that the operation of section 77(4), alternatively section 78(6), precluded the creditor from enforcing the agreement and that with the service of a default notice in such circumstances constituting the prohibited step of 'enforcement', the notice was not an effective notice so as to entitle the creditor to do any of those things under section 87(1) of the Act in the event the default notice was not complied with.

 

In effect, the creditor's termination has the ordinary common meaning, that is, it terminates the agreement, but the termination stops short of entitling the creditor to then implement section 87(1) by demanding early payment or recover possession of goods because section 87(1) makes the service of an effective default notice a necessary pre-requisite to such an entitlement.

 

x20[/quote

 

Thank you very much for that x20 - you have enabled me to sleep a lot easier tonight:)

[angel_1]

hiya all

 

very intersting thread, actually my question is now, what about we sent a payment of say 1.00 each month, and a letter advising the creditor this is a fair payment and Without Prejudice headed, until they supply us with an executed copy of our agreement, would this in fact harm any defence we may have to defend if the Oc then takes us to court, in the future,

 

Our payments as such wouldnt that be seen as accepting the debt and the cca really is irrevelant?

 

of course they will send payment requests and continue with asking us to pay the arrears, i can see what x20 is saying that if payments are stopped and the Oc then sends a correct and valid default and we dont pay that default then that goes against the credit file and will be difficult but possible perhaps with court action and defense to get rid of it if there is an unenforceable agreement,

 

however if the OC has referred the debtor to fos, does that then put the account firmly in dispute until fos finalise their investigations or should it be that payments are still maintained until fos make a decision on a complaint, ie not recieved the cca, the cca is not legible, or if not supplied fully with all documents to make it an enforceable agreement.

 

i am worried about the defaults given, so would rather like to avoid them, but also a route to enforce the creditor to supply the cca and then a decision can be better made would be the best way forward i guess,

 

anyway sorry for my ramblings,

 

i awiait your other helpful suggestions thanks maz

[underdog13]

I think it could be argued that any payments made were a gift given as a gesture of goodwill?

[woody1066]

Forgive me if I am being obtuse here but I think that this thread is perhaps the most significant on these boards.

 

It changes the whole ethos of "No CCA no pay"

 

What is the point of spending that £1 if even if they dont send an agreement you continue to pay because they will default you?

 

If this is indeed the case then there has been bad advice given out by countless CAG'ers foe the past few years

[underdog13]

I see what you are saying, Woody.

 

However, peoples' circumstances differ - some do not want a DN on their record because they need to remortgage; some never want credit again, so don't care. Some want the issue to be forced into court, some want to avoid court if at all possible.

 

I think it's fair to say that it's down to the individual to make a judgement call based on their own circumstances.

[mr.ton]

Forgive me if I am being obtuse here but I think that this thread is perhaps the most significant on these boards.

 

It changes the whole ethos of "No CCA no pay"

 

What is the point of spending that £1 if even if they dont send an agreement you continue to pay because they will default you?

 

If this is indeed the case then there has been bad advice given out by countless CAG'ers foe the past few years

 

I would sympathize with that viewpoint to a certain degree....in that alot of people on here seem to think that if & when the DCA/or creditor produces a valid CCA, then you must pay up straight away.

Errrr it doesnt work like that exactly as the person in question must physically have the money to repay in the 1st place & no amounts of defaults or whatever else will alter that fact.

This is were the county court system plays it part & there aint a darn thing the DCA/creditor can do about all that

[amdmlivingstone]

Underdog13/Mr Ton

 

I am agreeing with both of you. I am in a position where I have requested a CCA however, I want a mortgage next year. If they fail to produce a CCA, I will inform them of my rights although I will continue to pay until such time my mortgage is secure - Then I will hit them with everything I've got.

 

The main point of this thread was to help WorriedGirl and I think all we have managed to do is cause some confusion for her.

 

From what I have picked up from this site:

1) If you receive a CCA and it is enforceable then you have to pay.

2) If you receive a CCA and it is unenforceable then you can take them to a county court to make it unenforceable.

3) If you don't receive a CCA then you can stop payments however, a default will be on your credit file and you will have to start making payments if the CCA is eventually proceduced and it is valid.

3) In theory they should remove all entries on your credit file however, this is not always the case.

 

WorriedGirl - Please consider your options and listen to the advise from other Caggers however, at the end of the day, the decision is yours.

 

Let us know how you get on.