Stop standing order payments after 12 +2 days?

[WorriedGirl]

But surely this credit card has already a default on my file since it was moved from Morgan Stanley to a debt collectors?????

[amdmlivingstone]

If that is the case, then yes there will already be a default.

 

I would send out the 2nd CCA request as mentioned previously and wait the additional 30 days.

 

Your options then are to stop paying (but put the money away each week or month). Or to continue paying. If the default is already there then there is no problem with doing the first option.

 

If they ever produce the CCA, place it on your post and let the expert Caggers view over it. They will be able to advise if it is enforceable.

 

Regards

amdm

[lexis200]

This may or may not help, but this is my personal experience:)

 

I started CCA'ing various cards on behalf of me and OH in June, due to several factors that had resulted in severe debt.

 

We were on payment plans with most, but at the end of the line, so decided to CCA after much reading on here. I think this is a big point - we absolutely are a can't pay, not a won't pay with regards to the normal minimum payments. As such, if we ever get taken to court, I know full well that we are not going to be made to pay more than we can afford - if we don't have the money, no bank is going to get a Judge to tell us to pay what they want rather than what we can afford.

 

At this point, a Default is a pain in the jacksy, but not the be all and end all. It is six years, not a lifetime. Plus, if you're in a similar situation, my guess is you'll have been living without credit for a while anyway (about 2 years for us:))

 

We've had varying success with CCAs. Bank of Scotland have sent illegible applications with no prescribed terms. Several times in fact. I'm 99.9% sure they do not have anything enforceable. They are not being paid (one we stopped a while ago, one only last week). I didn't stop until I was happy myself that they were unlikely to turn up anything of value. I would never be happy to instantly stop payments on the 12th working day after delivery (remember the extra 30 days is not used any more) - I'm much happier to send letters to gain as much info as possible before taking that step. It takes longer, you'll still pay, but you'll be as sure as you can be that they don't have a comeback!

 

The one we stopped paying some months ago recently sent a Notice of Intended Court Action. With the help of people on here, I sent a request for information to them as it was now subject to a Court hearing. I've not had the information, but have had another Notice from another DCA. If they had anything they could use, we'd be in Court now rather than playing this silly game. I'm simply holding off for a bit now to see if I can scrape a Full and Final offer together, which they will hopefully be more amenable to as otherwise they get nada.

 

However, I have had a couple of dubious CCA's - Capital One have sent simply a blank (current) agreement. This obviously wouldn't stand up in Court, but I'm not about to go guns blazing until I'm sure they don't actually have something valid. So at the moment I've sent off a letter informing them this isn't enforceable, and that they need to send the true copy, not a blank page. The last thing I want is to stop payments, then find out that they only sent the blank page in order to get within the 12 day requirement, and that they've now found a compliant agreement.

 

It really is a judgement call. You need to work out the probability of them having an enforceable agreement. You then need to double check that!

 

You need to decide if you actually can pay, but would rather not (I do not agree with this btw, but plainly there are people on this site who do it). If this is the case, how is it going to go if you ever do get taken to Court (not well is the answer!).

 

Can you accept that you will be hounded, and will have to grow a thick skin pretty quickly? You will learn from reading on here that they are not as scary as they seem, but you will have days when you completely believe the lies they feed you.

 

The CCA's for us are a possible light at the end of a very long tunnel. If we could pay we would - after all, who would go through all the c**p they put you through if you could afford to pay?? Essentially it was either this or bankruptcy, and I just couldn't do that to my parents.

 

I do have a couple of questions to add though seeing as there's a few of the head cheeses on here:D

 

1) I appreciate reading on here that just not having the agreement may not be a dispute in itself, but what does constitute a dispute? Is it a formal complaint to the bank/DCA, or is it if you escalate a complaint to the FOS/TS etc. Or is it something else entirely?

 

2) Regarding the payments being backdatable if an enforceable agreement turns up - I'd read on various other threads that if an agreement turned up later down the line, payment re-started from the day they defaulted, as if the interim period had not happened, and that as it had been defaulted by them, charges/interest/arrears should not have been added in the meantime. Have I just got confused with this?

[WorriedGirl]

Hey Lexis,

 

that last point of yours about the payments, I think may be so, because 1st credit, who I CCA'd in April, wrote to me saying they would ask the original creditor for the details and that when they did send me the CCA, they would invite me to talk about payment options...this to me meant that I would start paying from that day whehn I received the CCA onwards.

 

I am interested now on this default issue. If my credit card went to default when it was passed on to a debt collection agency in the first place, how does this affect my position?

[ScabHunter]

I think as this has become a controversial thread, it is only fair to put forward the opposite point of view.

 

In the first place, the original poster was asking about payments to Blair, Oliver and Scott, which is a debt collection agency, and not an original creditor. There is a world of difference.

 

Only in the case of an original creditor is the original agreement of any relevance, in the sense of avoiding defaults by keeping up the minimum payments demanded under that agreement. Once the alleged debt has been passed to a debt collection agency, as in this case, none of this is relevant. All spending privileges on the card have been irretrievably lost, the default has already been issued, and there is nothing to be saved or retrieved by making payments.

 

All that is relevant is the behaviour of the debt collection agency itself. Evidence shows beyond doubt that trying to appease debt collection agencies is a futile endeavour. If you give them £10 a month, they will ask for £20. Give them £20, and they will ask for £40. If you suspend payments for two years, and then an enforceable agreement shows up, they can take court action. The court will award payments at a level which is affordable. No court can demand money which does not exist. These payments will be set at exactly the same level whether or not voluntary payments were made previously, so where is the risk factor?

 

Making payments to avoid court action is also futile. There is no evidence to suggest that debt collection agencies are any less likely to issue court papers against someone who is paying, than someone who is not. There is certainly no protection from legal action by paying, as there is in the case of making minimum payments to an original creditor under the original agreement.

 

Just look on this forum for countless instances of court claims being issued against alleged debtors who were making regular payments. Not to mention the frivolous statutory demands being issued as an abuse of the insolvency process.

 

The risk of the alleged creditor producing a valid agreement at some point in the future is real in many cases. But, exactly what is being risked? If the agreement turns up, the creditor can enforce it by going to court, and getting judgment. The payments will then be set at a level the debtor can afford. The debtor is scarcely any worse off than if they had made these payments of their own volition, while continually being hounded by the debt collectors to increase them.

 

Admittedly, in some cases, more serious losses can be incurred. A charging order can be placed against a property, for example. But, this is not a risk factor in withholding payments while there was no enforceable agreement. If you HAD been making payments, and an enforceable agreement had turned up, the same process of CCJ followed by charging order would still have been open to the alleged creditor.

 

In fact, the charging order should not be granted if the payments on the CCJ are maintained (Mercantile Credit v. Ellis 1987). This is true whether or not any voluntary payments were made in advance of the judgment being granted.

 

Now, consider the other side of the coin. Consider the risk factor involved in continuing to make payments.

 

Every time a token payment is made to a debt collector, the six year clock on the Statute of Limitations is set back to zero.

 

There are many cases on these forums where an alleged debtor has been contacted about an old debt, which is either about to become statute barred, or which is already statute barred. There is no reason to assume that this will be any different in the future.

 

Consider that you have an alleged debt for £5,000. The debt collection agency cannot produce the right paperwork. Much further down the line, in 2015, another debt collector comes out of the woodwork chasing the old debt. If you had ceased payments in 2008, the alleged debt would be statute barred, a total defence against any action which may be brought against you.

 

Now, consider that you had decided to make token £1 payments to your creditor for a couple of years. The alleged debt is not now statute barred. If an enforceable agreement can be produced now, your loss of £12 will now be magnified into over £5,000. Plus whatever costs and interest the court decides you should end up paying. Even if there is no enforceable agreement, judges do not get everything right. If the agreement is only defective in one small area, there is still a risk that the judgment will go against you. A far greater risk than in the case of a statute barred debt.

 

In my opinion, the risk factor involved in making token payments on an alleged debt where no enforceable agreement exists is far greater than the risk factor involved in suspending payment altogether.

 

If you are going to pay anything towards the alleged debt, you would be far better advised to save up the payments and then offer them as a full and final settlement. If this is done properly, it then eliminates the possibility of the alleged creditor coming back to demand more money if an enforceable agreement is found at a later date.

 

Note that the above applies to debts which have been sold to debt collection agencies and written off against tax by the original creditor, and not to accounts which are in arrears but still under the terms of the original agreement. Once this has happened, all spending privileges on the card have been irretrievably lost, the default has already been issued, and there is nothing to be saved or retrieved by making payments.

 

SH

[Chris1933]

Deleted my post as not relivant in this section - sorry

Edited November 26, 2008 by Chris1933
not relivant

[woody1066]

Excellent post scabhunter. That has clarified a lot for me

[WorriedGirl]

If 6 years pass since the default was added to your credit file - does this change your position with regards to payment or non-payment???

[Bazza66]

Its 6 years since you last acknowledged the debt. For example this could be by a payment or you wrote to them to reduce/arrange payments, etc.

 

The default will still drop off the file after 6 years but it doesnt become statute barred until the 6 years as above.

[flyingdoc]

One thing that seems to have been missed so far is that the creditor has a LEGAL obligation to supply the s77/78 notice and in not doing so he is actually comitting a CRIMINAL offence.

 

I would suspect that a DCA that had something they could claim to be an agreement, would send it to avoid falling foul of the financial regulators on an easy point.

 

I would stop payment after 12+2+30 days on the grounds that if they havent sent it by then - they probably havent got one, and as long as you continue meekly paying they will have no incentive to go find it.

 

You put the account into dispute as someone who has raised a concern on their account and has not had his/her concerns allayed by having requested information supplied.

 

Pay the money (for now) into an account (get a little interest) so that if in 1or 2 months they suddenly "find" your agreement you can instantly give them the payments due

 

Report continued non complience to the FSA and the information commissioner who should investigate and push the issue.

 

Dont let these bullies get away with practices which are at best dubious and at worst grossly illegal.

[WorriedGirl]

Flyingdoc, that is the whole reason I sent the CCA request in the first place, assuming that I could cease payment until the produce a valid agreement.

 

To Bazza66, if a default comes off a credit file after 6 years (in this 6 years assume regular payments have been made), then can the debtor stop paying?

[woody1066]

"One thing that seems to have been missed so far is that the creditor has a LEGAL obligation to supply the s77/78 notice and in not doing so he is actually comitting a CRIMINAL offence."

 

That part of the legislation has been repealed

[WorriedGirl]

So how are they monitored as to collecting debts that they don't have paperwork for???

[lexis200]

One thing that seems to have been missed so far is that the creditor has a LEGAL obligation to supply the s77/78 notice and in not doing so he is actually comitting a CRIMINAL offence.

 

I would suspect that a DCA that had something they could claim to be an agreement, would send it to avoid falling foul of the financial regulators on an easy point.

 

I would stop payment after 12+2+30 days on the grounds that if they havent sent it by then - they probably havent got one, and as long as you continue meekly paying they will have no incentive to go find it.

 

You put the account into dispute as someone who has raised a concern on their account and has not had his/her concerns allayed by having requested information supplied.

 

Pay the money (for now) into an account (get a little interest) so that if in 1or 2 months they suddenly "find" your agreement you can instantly give them the payments due

 

Report continued non complience to the FSA and the information commissioner who should investigate and push the issue.

 

Dont let these bullies get away with practices which are at best dubious and at worst grossly illegal.

I appreciate what you're saying, but your view that if they don't come up with it in a month can be taken as them not having it is optimistic to say the least. It's a reasonably regular occurrence to see posts on here where agreements have turned up months and months later - sometimes enforceable sometimes not.

 

I read a very interesting thread a while ago (not sure where now, sorry), that made mention of the 12 working days. This Act and its time-scales was bought in 30 odd ago, and there would not have been anything like the paperwork banks will have accumulated now. It's been put forward that actually the 12 days is pretty hard on the banks in this day and age, as old records could be stored in different buildings beneath thousands of other records, making it very difficult for them to keep to the 12 days (shame:p). My point is, I'd really take the 12 day thing as more of a reminder to you to nudge them that you've not received anything rather than getting excited that they don't have anything. After all, none of the governing bodies will do anything worthwhile to them even if you complain at this stage, so it's not really a big issue to them.

 

The dispute thing is a bit more tricky. It's generally assumed that the account goes into dispute when the CCA doesn't drop on the mat in the right time, but there's a few very well respected people on here who say that's not right, and I'd generally be inclined to bow to their knowledge - they have been doing this and researching for a long time after all! I would say to be on the safe side, rather than rely on it being an automatic dispute, when the 12 days are up, send in a formal complaint. As far as I know, this does put the account into dispute until the complaint is sorted.

 

Reporting continued non compliance to the FSA, FOS, Information Commissioners Office etc is a bit of a pain to the banks, granted, but it's not going to make them quake in their boots as it is highly unlikely any of them would ever actually lose their license/get taken to court over this. Remember they are multi billion pound companies; it's just not in the interest of these government run bodies to shut down such a good revenue stream.

 

The other thing is, if you get taken to court (always a possibility, even with an unenforceable agreement some banks still try it on), you want to look as reasonable as possible. If you just stop paying them straight away, it could reflect poorly on you. If however you are seen to have continued paying for a reasonable amount of time before you say enough is enough, you're not getting any more until I see a valid agreement, it's going to look better. Odds are if you're going down this route you'll be paying less than the minimum anyway, which should be without interest/charges if you've done a payment plan, or maybe a token payment etc, so it's not like you're paying interest etc. My view is that a small payment for a couple of extra months isn't much for peace of mind, as after that length of time I would be much more happy that something isn't going to turn up imminently.

 

Oh, and as has been mentioned, the 30 days no longer exists, so you just need to be aware of the 12+2 (or 12 days from the date of receipt if you sent it recorded, which of course you will have:D)

 

So how are they monitored as to collecting debts that they don't have paperwork for???

Well this is the thing, you still need to report them to the FOS (and Information Commissioners Office if they can't find one at all). This does cause a pain in the bum to them as it's one more black mark, and may get you a good result, but don't think they will ever be properly taken up on it as they just won't.

 

We're being chased by Robinson Way at the moment. We've never had a Notice of Assignment so they're being told to burger off - they most definitely don't have paperwork, so they will not be collecting any alleged debt. This is for the account I mentioned before that I have stopped payments on; they've sent 3 copies of the same illegible agreement and are now telling me this is enough to satisfy their requirements. That's when you know they're stuffed, when they start giving a load of rubbish in their letters to try and fob you off:D

 

Have a look at the 'WON' cases on here. It is most definitely worth going down the CCA route, but it does take time. You really need to just keep reading on here to find out as much as you can. A lot is contradictory, but you will find it easier to spot the more relevant stuff in time.

[GeorgeUK]

So does this mean the OFT Debt Collection Guidance no longer has any bearing and DCA's can just ignore it?

 

2.6

 

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

i. disclosing or threatening to disclose debt details to third parties unless legally entitled to do so

 

Alot of people are going on the no CCA no pay basis, but is this what the non-payment is based on?

[WorriedGirl]

So instead of me stopping payment altogether and seeming unreasonable, could I write to them and reduce my payments? How could I go about doing this? I am off to Australia for 1 year in March and I'd like to have as little to pay as possible as I am trying to save and I will need to continue payment when I'm gone!

[lexis200]

Hi George,

 

It's not like they can now ignore it, it's that they always seem to have! It's not defunct or anything, it's just that it's guidance, and as such the DCA's tend to conveniently ignore it. Seeing as they're perfectly happy to ignore absolute legal conditions, and their own banking code (requested writing only, but still being phoned sound familiar?), guidelines don't really mean much to them.

 

I did a section 10 to HBOS, they have not only ignored it, but now we're being chased by 2 DCA's for the same account (against OFT guidelines), they didn't inform us of the account being passed on (against OFT guidelines), the new DCA's are phoning us (against OFT guidelines, the banking code and Section 10 as they should not have my data in the first place), they're misleading us in every letter (against OFT guidelines), both DCA's have issued notices of court action (well that's just being greedy), and they haven't responded to the CPR request (a legal request). That's one account, and not all the problems, just the ones I can remember!!

 

Don't get me wrong, I'm not saying they're useless at all - there are cases on here of people who have been helped by these bodies - it's just that a significant proportion of people do not seem to be helped at all as they either side with the banks or sit on the fence.

 

I do however feel that everyone can, and should complain to all relevant bodies when it's needed. If they are inundated with complaints about the same companies, you have to hope something major would be done to help as they wouldn't be able to ignore it. If we all just decide that seeing as they may not be able to do much at the moment, we may just as well not bother, then nothing will ever change.

 

Do remember though this is my own personal view, and it's all gleaned from hundreds of hours (yes, really!) sat reading through these forums. It doesn't mean I'm right just because I've written it, and doubtless there are many people who will disagree with me:)

 

Hi WorriedGirl

 

Wow - Australia for a year! Lovely:)

 

If you want to reduce payments, the banks will want a valid reason - ie income dropped due to loss of job etc. I don't think they'd be likely to do anything if it's just so you have a bit more cash knocking about.

 

If you need to do it though, you'll have to write to them explaining how your circumstances have changed and asking them to freeze interest/charges. They'll ask you to fill out an Income/Expenditure form to show what you have coming in, and all your outgoings, and what's left over is split equally between your creditors. This is called a pro-rata offer. There's an online form on National Debtline's website which you can input all your details to and it'll work out the correct amounts automatically. Be aware though that if they accept a payment plan offer they will ask you to return your card, and your account will be cancelled so you can't use it any more.

[WorriedGirl]

Hi Lexis, I don't have a card, the account went to default in about 2003/4 and it is with Blair Oliver and scott, so it is with a a DCA. Does this make a difference???

[lexis200]

Hi WorriedGirl

 

I would think the only difference would be that you don't have to worry about getting the default:) DCA's work on the same basis as the banks (or rather they should do!) If you can show you're struggling to pay, they should accept a lower amount.

 

One thing - if you do decide to do this, they may ask for all sorts of things - bank statements, utility bills etc. They have absolutely no authority to ask for this when you send in an I/E form, as it is considered a true reflection of your financial state. Obviously you do have to be truthful on it as if you ever were taken to court and were found to have fudged it you'd be in shtum, but this is all they need; don't let them try and tell you otherwise.

 

Also, you will need to let them know you'll be out of the country for the year I would think, unless you have a friend who can pick up your mail for you and let you know if you have any correspondence to answer. The last thing you want is to come back only to find they tried to change the terms or something while you were away and you've effectively been ignoring them!

[underdog13]

Refering to an earlier post in this thread;

 

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

 

Does making a CCA request put the account in dispute, or do you have to inform them in writing after they have defaulted on providing the agreement that the account is in dispute?

[surfaceagentx20]

Seeing earlier quotes of mine freaks the living daylights ...

 

Nonetheless, making a section 77 or 78 request does not put the account in dispute. A creditor who fails to comply with such a request in time is consequentially prohibited from enforcing the agreement for so long as the creditor remains in default. If a creditor in default should pretend to have the right to enforce, the debtor may place the right to enforce in dispute.

 

Placing the right to enforce in dispute should not be confused with placing the account in dispute. To place the account in dispute requires someone, invariably the debtor, to contend for good reason, that the sum appearing as due on the account is overstated.

 

x20

[Von Greenbach]

Seeing earlier quotes of mine freaks the living daylights ...

 

Nonetheless, making a section 77 or 78 request does not put the account in dispute. A creditor who fails to comply with such a request in time is consequentially prohibited from enforcing the agreement for so long as the creditor remains in default. If a creditor in default should pretend to have the right to enforce, the debtor may place the right to enforce in dispute.

 

Placing the right to enforce in dispute should not be confused with placing the account in dispute. To place the account in dispute requires someone, invariably the debtor, to contend for good reason, that the sum appearing as due on the account is overstated.

 

x20

I think I understand this, but could you please confirm

 

So if a creditor / DCA fails to supply a CCA within 12+2 timescale, the account is "in dispute"

 

Say they find the CCA agreement 6 months down the line, but I refuse to pay because they were out of the timescale then to enforce the agreement they would have to have a courts decision which places enforcement in dispute

 

Am I correct?

[underdog13]

Seeing earlier quotes of mine freaks the living daylights ...

 

Sorry: Absolutely no offence intended.

 

Nonetheless, making a section 77 or 78 request does not put the account in dispute. A creditor who fails to comply with such a request in time is consequentially prohibited from enforcing the agreement for so long as the creditor remains in default. If a creditor in default should pretend to have the right to enforce, the debtor may place the right to enforce in dispute.

 

Placing the right to enforce in dispute should not be confused with placing the account in dispute. To place the account in dispute requires someone, invariably the debtor, to contend for good reason, that the sum appearing as due on the account is overstated.

 

x20

 

Thank you very much for clearing that up x20 - I've been reading round the forum for weeks trying to clarify the issue and only succeeded in confusing myself more. You have succinctly clarified the whole default/dispute matter for me in one post! Truly appreciated.

 

 

With regards to termination, will I need a notice of termination or will a solicitor's letter confirming that the card has been closed and demanding repayment of the full sum be sufficient?

Will I still be liable for arrears, as they did not supply a CCA? Indeed they may well not have an agreement, as I originally took out visa card and the creditor, of his own volition, swapped the sum owing to a mastercard account - I did not sign any new agreements for the new card account.

 

 

Lastly, what exactly constitutes enforcement?

Edited December 20, 2008 by underdog13
typo

[underdog13]

I think I understand this, but could you please confirm

 

So if a creditor / DCA fails to supply a CCA within 12+2 timescale, the account is "in dispute"

 

Say they find the CCA agreement 6 months down the line, but I refuse to pay because they were out of the timescale then to enforce the agreement they would have to have a courts decision which places enforcement in dispute

 

Am I correct?

 

A section s77/78 request doesn't put the account in dispute,as I understand it now. The cred is in default if they don't respond to a CCA request. While they remain in default they are prohibited from enforcing - such as issueing default notices and terminating the account, as some of my creds have done!

 

I think if they eventually comply, no matter how late, they are entitled to start enforcing again. Please correct me someone if I've got that wrong. What I'm not at all sure about is whether they are permitted to add charges and interest for the period that they are in default. Can anyone clarify that?

Edited December 20, 2008 by underdog13

[Von Greenbach]

:mad: it's doing my head in trying to undertstand it all :mad:

 

I don't see the point of 12+2 then if they can turn up with a valid CCA as and when it suites them