Advice on 2 CCAs please

[summerbreeze]

I had a reply back today regarding the CCA that has illegible T and C .

I had asked for a better copy

 

They state they appreciate that the copy is not very clear but have sent the best copy they can and have fulfilled their obligations .

They say I should have kept the original anyway.

They say that the info they have provided satisfies the legislation and is therefore enforceable.

 

They state the card remains in arrears is incurring fees and continues to be reported to the CRAs

They may also sell/ assign the account in the future.

 

They have removed phone numbers as requested but may reinstate them in 15 days.

 

There has been no response to the other letter [ see post 44 ] I sent regarding the other CCA [ for 2nd account ] which was partly illegible and had missing terms.

 

Do I need to do anything else ?

Should I still be sending token payments ?

[ltc1607]

sub

[lexis200]

I had a reply back today regarding the CCA that has illegible T and C .

I had asked for a better copy

 

They state they appreciate that the copy is not very clear but have sent the best copy they can and have fulfilled their obligations Regulation 2 of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557)

2 Legibility of notices and copy documents and wording of prescribed Forms

(1)The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the . So bum to that argument I say:) I know you have written this before to them, but you need to Piers Morgan them with it again as it's plainly not right!

 

They say I should have kept the original anyway So should they - and in a readable format! It's their problem if they didn't keep a paper copy and are relying on electronically scanned and stored info.

 

They say that the info they have provided satisfies the legislation and is therefore enforceable.Satisfying legislation and having an enforceable agreement are two very different things that creditors and DCA's would have you believe are one and the same. Even if an illegible agreement did satisfy their requirements, it certainly doesn't make it enforceable. They'd need a legible, signed original (or copy if they have it certified - not fair but has been allowed in some cases), complete with prescribed terms for it to be enforceable. Just because they satisfy (or not in this case) S78 does not mean it's game set and match for them!

 

They state the card remains in arrears is incurring fees and continues to be reported to the CRAs Not a lot you can do about this I'm afraid

 

They may also sell/ assign the account in the future. Or this

 

They have removed phone numbers as requested but may reinstate them in 15 days. Just flat refuse to speak to them (I do not discuss financial matters over the phone), and send off 'letter only' letters to all and sundry until they agree to write rather than ring.

There has been no response to the other letter [ see post 44 ] I sent regarding the other CCA [ for 2nd account ] which was partly illegible and had missing terms.

 

Do I need to do anything else ?

Should I still be sending token payments ?

 

I tend to err very much on the side of caution, and always look at how a judge may view the situation. Bearing that in mind, I have been trying the CCA route, telling them what they've sent is not acceptable (if that is the case - you can't really do it with the ones who just send a blank document if it has all the right details on it), telling them again it's not acceptable, whilst SAR'ing them. At this point I start thinking a little more about witholding payments, but at the moment I'm also asking to see the agreement in person (why would they say no if nothing is wrong?), and then CPR. I think if they turn nothing up after all that it's fairly safe to say they don't have it.

 

It's also a hell of a lot easier generally to keep going with some form of payment as it keeps the calls down a bit. And if you did end up going to court, but could show that you paid as a gogw for x amount of time, even though they were completely unreasonable towards you, it can only go in your favour (I think!)

[Pinky69]

By paying you are acknowledging the debt so there seems little point in disputing it on the grounds of either default of a CCA request or unenforceability.

[the_shadow]

By paying you are acknowledging the debt so there seems little point in disputing it on the grounds of either default of a CCA request or unenforceability.

 

If youre going for unenforceability then why would you worry about disputing the debt.

 

All you are disputing is that they have a right to claim the money due to the agreement not being enforceable not that you have spent the money.

[car2403]

By paying you are acknowledging the debt so there seems little point in disputing it on the grounds of either default of a CCA request or unenforceability.

 

I can see your point, but another view is that you've made payments under the mistaken belief that the agreement has been enforceable all along.

 

Maintaining payments in those situations may amount to acknoewledgement of the debt, however.

[summerbreeze]

The main thing I want to dispute is the enforcability of the agreement through the courts leading to CCJ and Charging orders etc

 

Is that being too selective about enforceability ? Would I have to maintain that the whole agreement of over 10 years was unlawful?

 

Sorry if I am not understanding things

[Pinky69]

If you ask for a copy of an agreement and it's obvious from the copy it is unenforceable, then you place the debt in dispute. If you simply carry on paying them AFTER you discover what they have is unenforceable, then you continue to acknowledge the debt and it is no longer in dispute. There is no point in going to court if the debt isn't in dispute - that's what courts are for. They may take you to court if they feel you aren't paying enough but that isn't disputing the debt. There is no point in making CCA requests if you don't dispute unenforceable debts - you'd have been as well just carrying on paying them.

[WelshMam2009]

I can see your point, but another view is that you've made payments under the mistaken belief that the agreement has been enforceable all along.

 

Maintaining payments in those situations may amount to acknoewledgement of the debt, however.

 

What I've done is to stop paying once they've failed to respond to a CCA and will continue to do so until such time as a valid (enforceable) document is produced.

 

If you're disputing the agreement then in effect you're disputing the debt and I don't believe that it is prudent to continue paying once you have notified of a dispute.

 

Up until this time, then Car has hit the nail on the head by stating that you were under the mistaken belief that the agreement was enforceable and I consider this to be a reasonable argument.

Edited March 18, 2009 by WelshMam2009

[WelshMam2009]

If you ask for a copy of an agreement and it's obvious from the copy it is unenforceable, then you place the debt in dispute. If you simply carry on paying them AFTER you discover what they have is unenforceable, then you continue to acknowledge the debt and it is no longer in dispute. There is no point in going to court if the debt isn't in dispute - that's what courts are for. They may take you to court if they feel you aren't paying enough but that isn't disputing the debt. There is no point in making CCA requests if you don't dispute unenforceable debts - you'd have been as well just carrying on paying them.

 

I agree with Pinky and this is what I was effectively trying to say in my post above...

[summerbreeze]

Thank you Pinky and Welshmam

 

Both accounts are in dispute and dispute letters were sent. Proof of delivery kept.

 

One has illegible T and C on a page that I believe is unconnected to the application form they sent in response to my cca request

The other is partially illegible and has reference to clauses in the T and C [ again on a seperate sheet ] that arent there so must be in a seperate leaflet of T and C that they havnt provided.

 

I wont be paying any more then .

[citizenB]

Summerbreeze, staple/clip the postal receipts to a copy of the letter. Also keep the envelopes that the replies come i, this could be valuable evidence if you receive Default Notices at a later stage.

[summerbreeze]

Summerbreeze, staple/clip the postal receipts to a copy of the letter. Also keep the envelopes that the replies come i, this could be valuable evidence if you receive Default Notices at a later stage.

 

Thankyou CitizenB

So far they just replied to the first illegible one as in post 51

 

I have kept the envelope

 

Edited March 18, 2009 by summerbreeze
added post no.

[lexis200]

If you ask for a copy of an agreement and it's obvious from the copy it is unenforceable, then you place the debt in dispute. If you simply carry on paying them AFTER you discover what they have is unenforceable, then you continue to acknowledge the debt and it is no longer in dispute. There is no point in going to court if the debt isn't in dispute - that's what courts are for. They may take you to court if they feel you aren't paying enough but that isn't disputing the debt. There is no point in making CCA requests if you don't dispute unenforceable debts - you'd have been as well just carrying on paying them.

 

Sorry I don't agree with that. The debt is not in dispute because the agreement is unenforceable - it is the agreement that you are disputing, not the money on it. This is a quote from x20 on the subject.

 

lexis,

Section 136(1), Law of Property Act 1925 says:

 

As for disputes, a dispute arises whenever creditor and debtor are not in agreement as to the rights and obligations which the one owes to the other. Where a creditor fails to comply in time with a request made under section 77 or 78 Consumer Creidt Act 1974, the creditor ceases to be entitled under the Act to enforce that agreement for so long as his failure to comply continues. If a creditor claimed a right to enforce the agreement whilst in default of his section 77 or 78 obligations and the debtor disputed that right, there would be a dispute. But it would only be a dispute about the right to enforce. It wouldn't be a dispute on the account, which by the nature of the language would be a dispute as to an amount owing. To place the account in dispute invariably involves the debtor raising as an issue that the creditor overstates his demand and to pointing to the way in which the creditor has overstated it.

 

x20

 

So in essence if you are making a claim on charges or similar, then you are disputing the debt, if you are peed off because they have not complied with s78 etc, you are disputing the enforceability.

 

Also, I don't see how you could possibly go to a Judge, after having used and paid back on a card for x amount of years and attempt to claim you don't acknowledge your debt? You acknowledged it the moment you made your first purchase. There will be plenty of evidence to show you spent money to run up a debt, agreement or not. What you can argue however is that the creditor took money that he was not legally entitled to, but that you were willing to give them the benefit of the doubt until you were absolutely sure they should not have been taking payments. I would say this puts you in a far better light with a judge than 'they ran out of time so I stopped paying'.

 

All I am saying is that I think it is extremely foolhardy to assume from them not sending an enforceable agreement as a CCA response that they do not have anything. As has been pointed out time and again, the time limits set were laid down over 30 years ago. There were certainly not anything like as many agreements, or indeed documents in general relating to credit, as it was not a usual thing. 12 days then was probably perfectly reasonable. Now however, they may well have stuff like this archived in massive warehouses, and to send a generic document that probably complies, rather than wasting your resources searching out a genuine copy is simply cost effective.

 

That is until someone stops paying, which prompts them to look properly and turn up an agreement and you're up the creek.

 

I'm not saying this is what always happens - It certainly doesn't seem that way! In truth they probably do send out generic templates and poor copies because that is all they have. The point is you don't know that from a simple CCA request, so you can't possibly say that you went from thinking it was enforceable to knowing it's unenforceable from one letter - there are too many variables that can easily cock that theory up, so why not make sure before diving in?

 

I may be acknowledging a debt that isn't enforceable (which as I've said before I don't see how you can try to not acknowledge something that there will be piles of proof of), but until I'm as near to 100% sure that they don't have anything as I can be, I'm not willing to chance it. But that's just me.

 

And there is every point in going to court if they don't have an enforceable agreement, regardless of if the account is in dispute. What you are going to court for is to get an unenforceable contract invalidated by a Judge, not to try and prove a debt you ran up isn't yours; much as I try I just can't see the logic in that.

 

Lexis:)

[WelshMam2009]

Sorry I don't agree with that. The debt is not in dispute because the agreement is unenforceable - it is the agreement that you are disputing, not the money on it.

Lexis:)

 

But aren't they directly linked Lexis? You may not dispute the debt as such but you might be disputing the amount owed due to interest and charges added which, if the agreement was not properly executed, then shouldn't have been included????

 

This quote springs to mind:

 

Sir Andrew Morritt, Vice Chancellor in Wilson v First County Trust Ltd [2001] EWCA Civ 633 said at para 26 that in the case of an unenforceable agreement:-

“The creditor must…be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid;”

[lexis200]

But aren't they directly linked Lexis? You may not dispute the debt as such but you might be disputing the amount owed due to interest and charges added which, if the agreement was not properly executed, then shouldn't have been included????

 

This quote springs to mind:

 

 

True enough, but who has ever stated that? Have you seen a letter that ever says 'I'm disputing this due to the charges and interest that have been unlawfully added' The templates on here all seem to be along the lines of 'the lack of a valid agreement is a very clear dispute', but I still maintain (in my eyes) that isn't right. Unless you specifically state to them that it is due to a monetary problem arising from the lack of an agreement, they can only assume you are claiming a dispute solely because of the agreement being dodgy. As such you are disputing that, not the debt owed.

 

I do think though if you accept that you dispute the debt based on the charges and interest being unlawfully added, you're still acknowledging the initial debt - otherwise how can you be disputing fees added onto it; so again your route with a Judge is as I see it, to get a dodgy contract declared unenforceable rather than to not acknowledge it.

 

Lexis:)

[Pinky69]

Semantics. If an an agreement doesn't have the prescribed terms, it is unenforceable and I am putting it in dispute. The DCA are not entitled to pursue me for payment whilst they are in default of my request for a true copy of the properly executed agreement and I am perfectly entitled not to pay them anything. Paying them is acknowledging the debt and I don't know how that would look better in court if I am disputing the debt!!

[the_shadow]

Semantics. If an an agreement doesn't have the prescribed terms, it is unenforceable and I am putting it in dispute. The DCA are not entitled to pursue me for payment whilst they are in default of my request for a true copy of the properly executed agreement and I am perfectly entitled not to pay them anything. Paying them is acknowledging the debt and I don't know how that would look better in court if I am disputing the debt!!

 

Well now I'm totally confused... dispute the debt... dispute the agreement... pay or not pay?

 

Surely its not a case of disputing the debt but disputing their right to receive payment due to the executed agreement being invalid. If a judge turns around and says "did you spend say £45 on a ticket to see someone at the O2?" and you reply "Yes"... case closed, debt proved.

 

or possibly a better scenario.. "did you have delivered this [insert posted goods] delivered to your home address on blah blah blah... same applies, Reply Yes and case closed. Next!

 

PmW

[car2403]

Semantics.

 

Agreed.

 

While I can see Lexis' point of view, all too often such a point of view is distorted against lesser individuals that don't know their rights where a debt is enforceable however.

 

The DCA are not entitled to pursue me for payment whilst they are in default of my request for a true copy of the properly executed agreement and I am perfectly entitled not to pay them anything.

 

There's nothing to say they can't pursure you. In fact, even if the debt is enforceable, they can still require you to make payment - they just can't use legal remedies to reclaim the funds from you.

 

Paying them is acknowledging the debt and I don't know how that would look better in court if I am disputing the debt!!

 

If the Court was completely independant, paying an unenforceable debt shouldn't have any impact by acknowledging the debt - unenforceable is unenforceable.

 

The issue you may have here, is that the Court may decide your attempting to avoid the debt by questioning it's enforceability. If that happens, an unenforceable debt is likely to be enforced anyway - which results in grounds for appeal.

[Pinky69]

If they take you to court, it is up to them to prove you owe the debt, not for you to prove you don't - you cannot prove a negative. Nor can they pursue you for a debt they have no documentary proof for - you can sue them if they do.

[lexis200]

Semantics. If an an agreement doesn't have the prescribed terms, it is unenforceable and I am putting it in dispute. Yes, you are putting the agreement in dispute - not the debt. You have just proved the point of that argument by the way you worded that, which is exactly how a creditor would read it.The DCA are not entitled to pursue me for payment whilst they are in default of my request for a true copy of the properly executed agreement and I am perfectly entitled not to pay them anything. What legislation states you don't have to pay? There are OFT guidelines stating similar, but they are not law and as such the banks ignore them. Not right but it is what happens. You can choose not to, but they have every right to chase you for it as long as they don't enforce by taking court action. It is however a choice, and one that must be carefully considered by the person involved, as apart from the fact they may find an agreement if you haven't done your homework first, and you may well get slapped with a default, it will almost certainly result in an onslaught of calls and letters which you need to be happy to deal with.

 

Paying them is acknowledging the debt and I don't know how that would look better in court if I am disputing the debt!! Because I just don't feel you can 'un-acknowledge' (yes, I know it's not a word;)) something you have had no issue with before. You can argue you've found out it's not legal, you can argue that you are no longer willing to pay as they didn't have all their ducks in a row, but how can you say it's not your debt? It can also be seen as giving them every chance to respond reasonably before you have had to take the drastic action of not paying as you now realise they do not have any legal right to take your money. How do you intend to say you don't acknowledge a debt you've built up? Are you going to tell the court that although these statements, and all the other paraphanalia that go with accounts have been landing on your doormat for x months/years, that you have no knowledge of it? Because you relied on one response to a CCA request rather than attempting to follow it up?

 

If they take you to court, it is up to them to prove you owe the debt - statements, letters, phone calls, not for you to prove you don't - you cannot prove a negative. Nor can they pursue you for a debt they have no documentary proof for - you can sue them if they do. Again, if they have no agreement then no, they can't go through court (not that it stops them). They can however pursue you in other ways if they so wish.

 

When I started on here I assumed that once the 12+2 was up I could stop paying, so I did for two BOS accounts. I was lucky, and it turns out they have got naff old bits of paper with OH's signature, but that's about all. However if I'd done the same for MBNA and Halifax, we'd now be in even more debt as they turned up what look like perfectly reasonable agreements, albeit they were very late in sending them. That's why I'm much more careful now.

 

Lexis:)

 

ps - I should point out that we are on payment plans with all creditors, so are paying much less than we should be. I can see how, if you are still paying the full whack, not paying sooner rather than later becomes more attractive - but then again your first port of call if you're in trouble would be to try and reduce your payments, not challenge the CCA. That doesn't change my opinion though:D

[lexis200]

Well now I'm totally confused... dispute the debt... dispute the agreement... pay or not pay?

 

Surely its not a case of disputing the debt but disputing their right to receive payment due to the executed agreement being invalid. If a judge turns around and says "did you spend say £45 on a ticket to see someone at the O2?" and you reply "Yes"... case closed, debt proved.

 

or possibly a better scenario.. "did you have delivered this [insert posted goods] delivered to your home address on blah blah blah... same applies, Reply Yes and case closed. Next!

 

PmW

 

That's exactly what I have burbled on about, but you've done it in 3 much clearer lines:D

 

Lexis:)

[car2403]

If they take you to court, it is up to them to prove you owe the debt, not for you to prove you don't - you cannot prove a negative.

 

My point is, the creditor will submit an argument that the debt is owed based on what they do produce, not what they can't.

 

If the Judge is so minded to accept that argument, you have to counter that with your Defence, in which case a Judgment is entered based on the arguments put forward.

 

You can't defend on the basis that there is no claim - your defence must state which allegations are denied and have supporting reasons why they are denied.

 

If you don't deny something in your defence, you're taking to admit it and not require proof of the allegations. (Or that proof to be tested)

 

This is all contained in CPR.

[Pinky69]

Erm - yes, you have to counter the allegations - no one said you didn't - but in the case of an unenforceable agreement, ie an application form or an illegible piece of paper without any prescribed terms, it is up to them to prove their case and they won't be able to do that. No one would go to court to defend what is obviously an enforceable agreement.

[summerbreeze]

OH has answered a call [ I know he shouldnt but hes away at the mo ] . They referred to the last letter that said they had provided best copy of CCA that they have [ the illegible T and C one ] and said that they have provided all the requested info .

They now require payment by tomorrow or they are getting the ' legal team ' involved.

OH a bit worried now ...

 

Any advice ?