why you shouldnt use section 77/78 CCA 1974 if you want the signed agreement

[militantconsumer]

And another thing. This breaches a very important concept in law - that of not appying legislation retrospectively.

 

"In view of the enactment of section 15 of the 2006 Consumer Credit Act, the ICO has given fresh consideration to the circumstances in which the credit reference agencies should be permitted to record details of unenforceable credit agreements. In doing so we have had particular regard not only to the clear legislative intent that the absence of a signature on a credit agreement should no longer be an absolute bar to enforcement, but also...

 

Yes, but not for pre-2007 agreements.

 

You reall have to wonder if a judge would take such a bone-headed view on this.

[diddydicky]

i think there is too much fear of court

 

i agree that it is better to defend a claim than initiate one

 

for a start they pay the costs (and as they cant get what you owe them out of you they aint gonna get the costs either)

 

secondly once they issue proceedings you can then go 31.14 and put them on the back foot so in effect they have started proceddings for you and saved you the cost

 

third- so what if they get a ccj - you are almost GUARANTEED to be ordered to pay at the most what you were offering in the first place- usually a lot less.

 

so it stays on your file for 6 years - well if you do nothing and do not go to court the default on your agreement will stay on your file a hell of a lot longer (all the time you are repaying them and THN another 6 years)

 

if you cant afford to pay the judgement order for example due to reduced circumstances- you simply go back to court and make an application to pay less- the court will be 1000 times more responsive than the creditor (who you will basically not have to deal with again)

 

in my opinion it's a no brainer- the chances are they don't have the agreement otherwsie they would have come up with it long ago and they don't like throwing good money after bad

[militantconsumer]

so it stays on your file for 6 years - well if you do nothing and do not go to court the default on your agreement will stay on your file a hell of a lot longer (all the time you are repaying them and THN another 6 years)

 

Is this true? I have been trying to get definite confirmation on this point for some time in other places on this forum.

 

On my friend's credit files, the date of the default is clearly listed as the month and year it happened. As this is 2005 but she is on a 10 year payment plan, are you saying that a default will still show until 2025? If so, how?

 

I would have thought that a CCJ would be a bigger black mark than a default when trying to obtain credit (for example for a competitive current account, before people say they don't want credit anyway). Don't CCJs prevent you from joining certain professions and types of companies as well? Plus of course if you lose in court and it was not small claims then you are going to see potentially £thousands added onto your total debt for legal fees, etc.

[citizenB]

Thats not how the ICO are deeming it now, it appears proof of payment of the debt would indicate some sort of agreement existed once and hence the creditors are to be allowed to update credit files.

 

See link --> here

 

S.

 

Interestingly (well I think it's interesting:D), on every single one of mine and OH's really rubbish agreements, although they may be missing every term needed and various other bits and pieces, the one thing they do all have on them is the consent to pass your info on.

 

Could they argue that this is why they can do it? Although the agreements we have as they stand mean bumpkiss in the way of enforcing the debt, they do have our sigs stating that they can use our data, even though they are on a form that renders other aspects useless to them.

 

Does that make sense to anyone?

 

You might want to read posts 16 and 19 on the following thread which argues this further.

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/198936-no-agreement-can-i-2.html

 

Not a long thread and makes much more sense if it is read from the start.

[lexis200]

i think there is too much fear of court

 

i agree that it is better to defend a claim than initiate one

 

for a start they pay the costs (and as they cant get what you owe them out of you they aint gonna get the costs either)

 

secondly once they issue proceedings you can then go 31.14 and put them on the back foot so in effect they have started proceddings for you and saved you the cost

 

third- so what if they get a ccj this can be a major problem for some people with their jobs, not to mention mortgages etc; far worse IMHO than a default showing.- you are almost GUARANTEED to be ordered to pay at the most what you were offering in the first place- usually a lot less.

 

so it stays on your file for 6 years - well if you do nothing and do not go to court the default on your agreement will stay on your file a hell of a lot longer (all the time you are repaying them and THN another 6 years)How does that work? A default is registered for 6 years from the date it goes on your file. The only way it would be on longer is if they issued two defaults, which they can't do on one account.

 

if you cant afford to pay the judgement order for example due to reduced circumstances- you simply go back to court and make an application to pay less- the court will be 1000 times more responsive than the creditor (who you will basically not have to deal with again)

 

in my opinion it's a no brainer- the chances are they don't have the agreement otherwsie they would have come up with it long ago and they don't like throwing good money after bad Have a look on the Lloyds threads for the poster who has recently ended up 2k worse off as Lloyds found the agreement several months after the initial request. It does happen.

 

I don't particularly have an opinion on the initiate/defend issue, but I don't think you can base it (either way) on a 'chances are' decision.

 

Lexis:)

[diddydicky]

On the contrary, It is my experience that defaulted loans are more toxic than ccj's in respect of further credit

#

from previous experience in arranging credit and 2nd mortgages i cana say that i know of no lender who ever made a mortgage to an applicant who was already unable to repay his current debts ( i exclude associated companies to the original crfeditor here who try to stitch up debtors into further loans to pay off existing ones)

 

indeed the lender would fail his due dilligence

 

whereas there are many mortgage lenders who will(did) ignore one or 2 small ccjs' with a valid explanation from the client as to the reason for them- could have been a protracted dispute about a garage bill or faulty goods etc that was a one off) ) indeed many lenders accepted that utility companies often obtained CCJS against people from previous addresses without their knowledge)

 

When you are paying reduced payments on your debts or have an arrangement this shows monthly on your credit file as in arrears and this

will continue to show for 6 years after the last payment - so if you take 10 years to repay a debt- the last payment which will show as arrears will stay there for a further 6 years

 

future lenders are not stupid- they know what this means and will score you accordingly

 

as for ccj's and jobs - well its a VERY few jobs- even the police forces will now accept applicants with ccjs AND minor criminal records

 

i note your points but still say that there is nothing to fear (if you are bang to rights with an enforceable agreement) in losing a fight in court and being awarded a ccj

 

furthermore any ccj paid within 30 days is not recorded - so you could fight the case and if you lose pay off the debt with another card or other funds before the 30 day deadline!

[diddydicky]

sorry - missed the last point - yes i note that someone got caught out with a Lloyds agreement

 

well life's a risk isnt it?

[diddydicky]

shadow- that information relates to agreements since 2006 when sect 127 no longer applies- it is not retrospective

 

although i doubt that we will ever get the loans written off AND a clena bill of healthy into the bargain

 

one out of two aint bad

[militantconsumer]

On the contrary, It is my experience that defaulted loans are more toxic than ccj's in respect of further credit

#

from previous experience in arranging credit and 2nd mortgages i cana say that i know of no lender who ever made a mortgage to an applicant who was already unable to repay his current debts ( i exclude associated companies to the original crfeditor here who try to stitch up debtors into further loans to pay off existing ones)

 

indeed the lender would fail his due dilligence

 

whereas there are many mortgage lenders who will(did) ignore one or 2 small ccjs' with a valid explanation from the client as to the reason for them- could have been a protracted dispute about a garage bill or faulty goods etc that was a one off) ) indeed many lenders accepted that utility companies often obtained CCJS against people from previous addresses without their knowledge)

 

When you are paying reduced payments on your debts or have an arrangement this shows monthly on your credit file as in arrears and this

will continue to show for 6 years after the last payment - so if you take 10 years to repay a debt- the last payment which will show as arrears will stay there for a further 6 years

 

future lenders are not stupid- they know what this means and will score you accordingly

 

as for ccj's and jobs - well its a VERY few jobs- even the police forces will now accept applicants with ccjs AND minor criminal records

 

i note your points but still say that there is nothing to fear (if you are bang to rights with an enforceable agreement) in losing a fight in court and being awarded a ccj

 

furthermore any ccj paid within 30 days is not recorded - so you could fight the case and if you lose pay off the debt with another card or other funds before the 30 day deadline!

 

That's a very useful and interesting set of points you make.

 

It looks like if you have money - e.g. one half of a couple with debts and other "clean" - then there is all kind of scope for "doing deals", probably about 5 minutes before the court case starts. Of course, a deal could see you getting a substantial discount on the alleged debt AND a clean bill of health on your credit files.

 

However, to return to the subject of this thread, surely you can see the advantage of trying to force the creditor to either produce the agreement or admit to the court that they don't have it. (You don't have to actually bring any action after the CPR 31.16 hearing)

 

Then you could pay off, say, 10p in the pound for full and final settlement with all the defaults removed.

 

Knowledge is power!

[diddydicky]

yes i fully accept your point but what you are missing is that you NOT just issue a 31.16 to find out if there is an agreement

 

if you do you run the risk of paying heavy costs of the other side

 

you have to provide tangible evidence to the court that there are grounds for an action and not just "want to see what they've got"

 

since they can "recreate" the basics of the 78/79 request which may or may not satisfy you- i suggest that that in itself is NOT enough to satisfy the requirements s of a 31.16 application

 

further, if you do submit this request then you may indeed achieve what you stated earlier - that is that they go fully through their archives trying to find it

 

the chances are that they do not WANT to go looking through their archives for 4/5/6 or more year old documents which have probably been sent to some dusty airfield bunker in outer mongolia

 

but FORCE them to and they might just make the effort!

 

leaving the account in dispute is the best way to let the claim fizzle out or get a deal on a F & F or on very low ex gratia repayments - whatever your personal circumstances dictate

 

finally, my personal opinion on being able to settle at a low pence per pound rate AND getting them to withdraw the credit reference agency markers is that many folk on here may be being misled

 

i just cant see why the OC would want to give you that satisfaction when all you are offering is what they would sell the debt to a DCA for anyway.

 

i may be wrong but i personally dont expect- when i am ready to offer my F & F's even though i may demand it- to get agreement on that one

 

more likely it will just get sold on to a DCA who definately WONT be able to find the agreement and therefore WONT take you to court despite all the huff and puff

 

why sell the debt to a DCA if they do HAVE the original agreement and it is enforceable!

 

i accept that there wil always be surprises (on both sides)-

[SkemDosser]

Militantconsumer:

Surely far better to keep paying for a few months until you get a positive result under CPR 31.16 like this one:

smt37 vs Morgan Stanley/Goldfish/Barclaycard ** ORDER TO PRODUCE CCA CPR31.16 WIN ***

 

Then they have to either send you a copy of the agreement, or admit in writing that they don't have it.

 

Whilst not wanting for one minute to take anything away from the success the poster had in that thread, IMHO it's a 'special case' example [although aren't they all lol] in that from the outset there were anomolies that made it clear more than most that there was no agreement in existence; from what I remember the OP had been sent the personal info of other debtors and the amount contested was under 5k, which I thought was a whole different ball game with regard to CPR.

 

I assume therefore they had an amenable judge who allowed this CPR in these circumstances- I may be wrong and asked this question on that thread, but got no real answer.

 

I really don't want to be a spoiler here but I agree with much of what Diddydick has said. I'd like to add, as I have said from the outset of this thread, that the information in it is a wonderful, well thought out tool, but it is very sophisticated and, putting yourself in the place of a claimant, getting into the realms of professional law.

 

The vast majority of us here are ordinary Joe Public consumers. I think there is a danger of many people seeing this procedure as a 'quick fix' way of dealing with creditors but its not, it's fraught with complications coupled with the fact that creditors are getting wise to it, particularly as they realise the majority of 31.16 actions are hollow threats and nothing is going to happen afterwards.

 

A bit like them threatening to send the bailiffs round lol.

[diddydicky]

i agree, although IN PRINCIPAL a case is "trackless" until directed by the court and as such a CPR31.16 application is valid

 

in REALITY the system is designed to keep cases below 5K from the full complexities of the law and to assist LIP's especially- the courts WILL clamp down on the mis use of CPR31.16 and as you say - sending someone else's agreement is about as special a case as you can get although again i suspect that the court would expect to LIP to have pointed this out to the creditor and asked them again to comply before getting to CPR stage

 

we CANNOT expect courts on the one hand to assist LIP's by embracing teh PRINCIPLES of the CPR protocols when it suits us and then insist on the strict letter of the law when we hit back

 

I was involved in a high court battle with a previous employer before the reforms and they used every trick in the book to try to price me out of the action

 

the new rules are still being "bedded in" and overall are more the to advantage of LIP's than the old system but we must not get the backs of the courts up against us by mis using the system

[SkemDosser]

Militantconsumer:

Surely far better to keep paying for a few months until you get a positive result under CPR 31.16 like this one:

smt37 vs Morgan Stanley/Goldfish/Barclaycard ** ORDER TO PRODUCE CCA CPR31.16 WIN ***

 

Then they have to either send you a copy of the agreement, or admit in writing that they don't have it.

 

Whilst not wanting for one minute to take anything away from the success the poster had in that thread, IMHO it's a 'special case' example [although aren't they all lol] in that from the outset there were anomolies that made it clear more than most that there was no agreement in existence; from what I remember the OP had been sent the personal info of other debtors and the amount contested was under 5k, which I thought was a whole different ball game with regard to CPR.

 

I assume therefore they had an amenable judge who allowed this CPR in these circumstances- I may be wrong and asked this question on that thread, but got no real answer.

 

I really don't want to be a spoiler here but I agree with much of what Diddydick has said. I'd like to add, as I have said from the outset of this thread, that the information in it is a wonderful, well thought out tool, but it is very sophisticated and, putting yourself in the place of a claimant, getting into the realms of professional law.

 

The vast majority of us here are ordinary Joe Public consumers. I think there is a danger of many people seeing this procedure as a 'quick fix' way of dealing with creditors but its not, it's fraught with complications coupled with the fact that creditors are getting wise to it, particularly as they realise the majority of 31.16 actions are hollow threats and nothing is going to happen afterwards.

 

A bit like them threatening to send the bailiffs round lol.

[SkemDosser]

For some reason my first post has come up twice and another one full of pearls of wisdom has dissapeared lol

[SkemDosser]

Militant consumer: If they DO have the agreement, and they issue proceedings, then the day that the Court Claim arrives on your doorstep, it is too late. Even if you use CPR 31.14 and get the agreement, they will press ahead with the Claim, they will defeat you in Court, they will get a CCJ against you, and then you will have the problem of this serious black mark against you for 6 years. Plus the payment plan ordered by the Judge will be legally binding and they can send in the bailiffs if you fall behind on your payments at any time.

 

Ok, so maybe they don't have the agreement, in which case then your suggestion will work fine.

 

But why take the risk?

Apologies if a version of this appears elsewhere I seem to have 'lost' my original one lol

 

I understand your logic here but I don't think it's 'too late' when using 31.14.

I think it's an effective tool for stopping a creditor in it's tracks and if God forbid it gets to a court, you'll have been able to go through a mediation procedure etc and play the 'informed but bullied ordinary consumer' card.

 

I know CCJ's are the worst case scenario but we'll all have defaults by the time it gets to that stage, which in terms of credit rating is as bad and some would argue, worse.

 

I believe that if a creditor is going to sue, they do it within a few months of you defaulting. They quite simply separate their errant accounts into a 'viable to sue' pile and 'no hopers.' If you are unfortunate enough to be in the former pile], you're going to court anyway. So why go through the palaver of a 31.16 procedure and lay yourself open to costs?

 

Let them come to you. This is a risk, sure, but we all have to take some measure of risk here, and we cannot realistically expect all our debt to be written off. I increasingly believe the best strategy is to lay low and if anything does come out of leftfield, you have 31.14 in the wings to bat any claim against you back to them.

 

Not the most exciting of strategies but one I think that minimises risk. However if you are someone who MUST have a squeaky clean credit record, and can't risk any tainting of it in the future, then 31.16 is the one to use. For the rest of us, IMHO you need to view it as having a large health warning.

[I've got no money]

yes i fully accept your point but what you are missing is that you NOT just issue a 31.16 to find out if there is an agreement

 

if you do you run the risk of paying heavy costs of the other side

 

you have to provide tangible evidence to the court that there are grounds for an action and not just "want to see what they've got"

 

since they can "recreate" the basics of the 78/79 request which may or may not satisfy you- i suggest that that in itself is NOT enough to satisfy the requirements s of a 31.16 application

 

further, if you do submit this request then you may indeed achieve what you stated earlier - that is that they go fully through their archives trying to find it

 

the chances are that they do not WANT to go looking through their archives for 4/5/6 or more year old documents which have probably been sent to some dusty airfield bunker in outer mongolia

 

but FORCE them to and they might just make the effort!

 

leaving the account in dispute is the best way to let the claim fizzle out or get a deal on a F & F or on very low ex gratia repayments - whatever your personal circumstances dictate

 

finally, my personal opinion on being able to settle at a low pence per pound rate AND getting them to withdraw the credit reference agency markers is that many folk on here may be being misled

 

i just cant see why the OC would want to give you that satisfaction when all you are offering is what they would sell the debt to a DCA for anyway.

 

i may be wrong but i personally dont expect- when i am ready to offer my F & F's even though i may demand it- to get agreement on that one

 

more likely it will just get sold on to a DCA who definately WONT be able to find the agreement and therefore WONT take you to court despite all the huff and puff

 

why sell the debt to a DCA if they do HAVE the original agreement and it is enforceable!

 

i accept that there wil always be surprises (on both sides)-

 

Isn't a better approach then to do a Letter Before Action in which you tell them that you believe that the agreeent is uneforceable - you list all the standard reasons - tell them that f they don't confirm that it is within 21 days that you'll issue an application for a declaration under s142 - if after you've issued they produce an enforceable agreement then you argue that there should be No costs order because they failed to follow the spirit of the CPR - not to mention the practice direction

[militantconsumer]

This has turned into an interesting debate with lots of great comments and suggestions.

 

I guess it comes down partly to the fact that every case is different.

 

In my friend's case against Barclays:

http://www.consumeractiongroup.co.uk/forum/barclaycard/187319-militants-friend-barclaycard.html

 

We have a situation here where, for some reason, a default has never been issued. We don't know if they have a copy of the agreement or not, and we don't know if it is enforceable until we see it, as we no longer have our own copy. There is also the issue of whether we ever agreed to PPI being charged.

 

Barclays have refused to supply a copy of the agreement.

 

We are on a 10 year payment plan so the choices are:

1. Continue to pay for 10 years.

2. Try to negotiate a reduced settlement

2. Bring a CPR 31.16 request for a copy of the agreement (and then try to negotiate a reduced settlement from a stronger position?)

 

We cannot wait to be sued because that will mean we stop paying, which could trigger a default, potentially later followed by a CCJ to boot.

 

So we are eagerly awaiting the result of SMT's case as it looks like the best course of action for us.

[I've got no money]

i agree, although IN PRINCIPAL a case is "trackless" until directed by the court and as such a CPR31.16 application is valid

 

in REALITY the system is designed to keep cases below 5K from the full complexities of the law and to assist LIP's especially- the courts WILL clamp down on the mis use of CPR31.16 and as you say - sending someone else's agreement is about as special a case as you can get although again i suspect that the court would expect to LIP to have pointed this out to the creditor and asked them again to comply before getting to CPR stage

 

we CANNOT expect courts on the one hand to assist LIP's by embracing teh PRINCIPLES of the CPR protocols when it suits us and then insist on the strict letter of the law when we hit back

 

I was involved in a high court battle with a previous employer before the reforms and they used every trick in the book to try to price me out of the action

 

the new rules are still being "bedded in" and overall are more the to advantage of LIP's than the old system but we must not get the backs of the courts up against us by mis using the system

 

I hate to be difficult but the CPR are hardly new rules - and indeed much of the old case law under the RSC/CCR is still relevant

 

I'm personally not aware of a case where a court has clamped down on a claimant for using CPR 31.16 in the way that has been suggested. Essentialy a claimant is consideing an application for a declaration under S142 - the question as to whether there is an enforceable CCA is, in my view, and to quote PT "determinative" of the issues between the parties and therefore CPR 31.16 is applicable

[I've got no money]

Sorry about that it posted the same message twice

[diddydicky]

in terms of the law 10 years is relatively new and it takes a lot longer than that to bed it down

[diddydicky]

militant, can i ask how much is the debt and how much are the payments are they interest free?

 

when you say they have refused to give you a copy do you mean a flat refusal to a cca request or just not replied?

[I've got no money]

in terms of the law 10 years is relatively new and it takes a lot longer than that to bed it down

 

I have to say that I don't agree with that - I don't know any Lawyers - Solicitors or Barristers who would agree that the CPR is still bedding in - with the greatest of respect 10 years is more than ample for a "new" procedural code to be fully established.

 

When I first studied Civil Procedure, as part of my degree, in 1985 and then again in 1986 as part of the Law Society Finals course it was the old RSC/CCR - when I first practised it was the old RSC/CCR - when the new CPR came in - there were some changes but in terms of practice nothing massively different. When I left practice a couple of years ago the CPR was fully functioning and fully established.

 

There really is nothing to be bed in - 10 years is actually a long time in Law...if the CPR had been running for 18 months I might have agreed with you....

[militantconsumer]

in terms of the law 10 years is relatively new and it takes a lot longer than that to bed it down

 

No idea what you mean by this.

 

militant, can i ask how much is the debt and how much are the payments are they interest free?

 

when you say they have refused to give you a copy do you mean a flat refusal to a cca request or just not replied?

 

Less than £2k, no interest. At least half is PPI premiums. Charges already knocked off the total.

 

Clever legal speak response to s77/78 request just giving current terms and conditions. Ignored each CPR 31.16 letter.

[lexis200]

sorry - missed the last point - yes i note that someone got caught out with a Lloyds agreement

 

well life's a risk isnt it?

 

If you don't have to take the risk with this then why on earth would you?

 

I might agree if I could afford to pay the debt if it all went wrong, but quite frankly as most of us are doing this because we can't pay what we currently owe, not because we feel like dodging a debt, I'm afraid I can't agree with that statement at all.

 

I appreciate what you're saying, and obviously our views are very different, but it just seems completely alien to me to decide you're not going to try and ensure you are correct in your assumptions, but rather leave it up to luck and chance.

[diddydicky]

i wasn't suggesting that only people with money should "take the risk" nor was i suggesting that anyone should use this as a means of "dodging a debt"

 

nor was i suggesting that you leave things to chance or take pot luck(although you will be)

 

my meaning was that whatever course of action you take , after reading advice on these forums or indeed by consulting a solicitor you are going to take a risk

 

Taking to task of these dodgy agreements is relatively new and there is no clear cut evidence as to which way the courts are leaning, some are anti creditor some are anti debtor

 

you may have the best argued case in the world but if the judge or registrar is not ofay or has personal opinions about one side or the other- you could find yourself on the losing end

 

to expand my (unqualified ) advice so to leave no doubt in your mind i would therefore say to you if you don't accept the fact that you ARE going to take a risk in taking these cases to court then you would be well advised not to do so because NO ONE on here (or even a solicitor) can guarantee the right outcome however strong you feel your case is.

 

 

hope that clears up the confusion!