Full Scale Attack DCA's!

[Terrier7]

I'm just in the process not only of having DCA stuff cancelled, but a brill solicitor is going to actively pursue the recovery of all payments made together with compensation for all the stress and hassle etc I've had to endure, on the basis that any money demanded without the proper authority to collect is extortion or at the least unauthorised and therefore returnable. More on this as it progresses.

 

Now, I'm in the clear as regard defaults as my 'alleged' debts are way over 6 years 'default' period. My original so called 'agreements' go back at least 15 years so the chances of any signed originals turning up seem pretty slim. So, I'm going all the way and happy for my solicitor to issue proceedings (under 5k) to chase the rogues for a change. Thanks to all for important info on this forum which has given me the confidence to get my teeth into them!

 

Re MBNA, have been 'dealing' with a collector for a few years, the 'collector' apparently does not collect for them anymore and has sent the file back. Although all is quiet, we are going to proactively chase them for CCA stuff and issue proceedings if necessary.

Does anyone have any info on MBNA storing any 'agreements', how long, archive and destruction policy etc?

T7

[therafalution]

keep us posted and good luck.

[harrassed senior]

Good Luck with this, I will be following closely as I admire your fortitude.

 

My own rather timid thought would be that if I paid, even one payment, then it could be argued that I was at least of the opinion that some form of legally binding paperwork existed. As to whether in time this paperwork was no longer in existence is a different matter and I have no problem with ceasing payments. This, I suspect is a legal minefield and I would personally just like to be free of debt.

[Terrier7]

Hi Harrassed, Naturally there is huge a gulf between being 'of the opinion' and that 'opinion' being right or proven in law. Also, it depends on how that opinion is formed - if, after being subjected to threatening phone calls, abuse and duress, then, even if could be potentially argued that a payment means acceptance or admission, it would never stand up!

I have made small payments for years, but this was because someone stated that they had taken over the alleged 'debt' and I must pay or else (the seven plagues would descend) etc. Now I know differently, I am going after them, all the way!

[sunflower99]

Good on you Terrier!Well said!

[underdog13]

Will be following your thread very closely, Terrier. Wishing you the very best of luck with your endeavours:)

[dx100uk]

Hi Harrassed, Naturally there is huge a gulf between being 'of the opinion' and that 'opinion' being right or proven in law. Also, it depends on how that opinion is formed - if, after being subjected to threatening phone calls, abuse and duress, then, even if could be potentially argued that a payment means acceptance or admission, it would never stand up!

I have made small payments for years, but this was because someone stated that they had taken over the alleged 'debt' and I must pay or else (the seven plagues would descend) etc. Now I know differently, I am going after them, all the way!

 

 

demanding money by menace springs to mind & also fraud!

 

watching & supporting with interest.

 

in the back of my mind i'm sure someone has already succeeded in doing this, but i cant remember where i saw it.

certainly wasn't CAG, BBC site or one of the offshot program links rings a bell

 

dx

[Terrier7]

Thanks Dx,

I'd be interested to know all the details if you can find them! Also re fraud, having an interesting convo on :- http://www.consumeractiongroup.co.uk/forum/mbna/172769-mbna-agreement-now-threat-21.html#post2044188 Posts 419 - 422

cheers T

[dx100uk]

i think any dca that 'cobbles' together a false cca or does not have one and collects money is fair game for a fraud investigation. if we did it to gain money ...clink..clink..without a blink of an eye.

 

pers, i have serious moral qualms about people that use the cca request and subsequently then the lack of one to avoid paying a debt 'just' because the OC does not have one.

 

again i pers think that any judge IF placed in this situation would actually pay little heed to that arguement. you had the money mate...pay up! as long as the oc proved beyond resonable doubt the debt existed and you were refusing to pay by using said arguement.

 

now to take this one step further, and a wee bit of reading indicates to me MBNA &/or others do this... for the oc to cobble up a 'good looking' agreement might not be all that frowned upon either.

 

interesting subject.

 

dx

[palomino]

You're going to have a very difficult battle to get your repayments returned.

 

If you didn't owe the money then why did make all those repayments at the time?

If the credit agreement can no longer be found then that doesn't mean that the debt is not repayable, simply that repayment cannot be enforced. In your case you made the repayments freely and (to some extent) willingly towards a debt that was due for repayment. I cannot see an argument for having those repayments returned.

 

Bear in mind that, while an agreement may contain all the terms required for enforcing repayments, the simple fact is that you had the money and used it (and therefore must repay it) is provable by means other than the agreement.

 

Even if you can win the argument the financial institutions will oppose this very strongly because of the can of very rotten worms it would open. For this reason the case could conceivably be appealed all the way the Lords (but maybe not that far). The costs of this would make the value of your claim seem like a child's pocket money, and you would almost certainly be asked to pay a sum into court to cover the other side's costs in the event of your losing.

 

I hope your solicitor is working on a no-win-no-fee basis.

 

Sorry to sound so pessimistic, but I would rather you were aware of the situation before anything started. You should perhaps discuss the worst-case negative scenario with your solicitor.

[Terrier7]

Thank you Palomino, I appreciate your playing devil's advocate. It's good to always reconsider a course of action or viewpoint. I actually agree in part with the moral stance you suggest, that if the money has been used or enjoyed then it should be re-paid, however......

The aspect of reclaiming money paid has been thoroughly discussed with my solicitor who has researched extensively and advises (reproduced from another post of mine) "if what has been paid is not authorised / legal / compliant then not only should payments cease and the alleged 'debt' be cancelled (or not enforced) but any payments already made should be returned with compensation if / when distress etc caused and any other costs or expenses reclaimed, so one is in the same position as before being in receipt of illegal treatment, debt claims etc. I happen to wholeheartedly agree and happy to be among the first to go for it!

It might be seen that we are using loopholes / technicalities etc to avoid debt which would otherwise be due, BUT there is the massive contributory factor of non compliance, bad / non existent record keeping, malpractice, vague and improperly drafted documents on behalf of the original lenders and DCA's. Please remember, these lot are supposed to be professional, competent organised and licensed organisations, with the benefit of huge resources and legal teams who should have set everything up correctly, executed agreements and kept proper records instead of rushing to throw as much money at people in the good times without thought to the consequences simply to earn as much money as possible.

Also, if you were taken to Court for a contract which included a term of say 33,333% interest or other extremely high, inordinate amount or penalty, providing the document had been properly executed with legal involvement if necessary, the Judge would have to find against you, no matter how much he / she may want to be lenient. They have to follow the Law. So, if the law states that there are numerous problems within so called 'agreements' or terms or other shortfalls which render them invalid, then that is what must happen, with full redress!"

 

It's a bit like the bank charges reclaim. The banks would argue they were reasonable and enforceable, in fact they have a much stronger line of argument than the DCA's as their 'penalties' were written into 'contracts' far better than the credit 'card' (sometimes!) agreements. But, how much has been successfully reclaimed to date?

 

In my case the so called 'debts' have long since been passed onto DCA's, for as little as 3% of their original balance, apart from Mbna, who has had the file passed backwards and forwards and I still haven't had any official paperwork!. So, the original creditor has removed the debt from their balance sheet and has gained a tax advantage for so doing - end of story. The DCA's have bought the book debt with a low expected rate of recovery and constantly threaten, frighten and harass people into paying what they can't afford. This is not morally or ethically correct. They are making huge profits - I bet anything you would have jumped at the chance to pay your debts off at as little as 3%? So, why should anyone else make a huge profit out of your misery?. The original creditors have thrust huge more credit limits onto people, often without their requests, because they know that given the opportunity, most people will spend what they have access to, they care nothing about the little people in the street as long as the figures look good.

 

I go back to the legal authority, if the law states that something is not legally tangible, even if this is a loophole (or a whole series of big ones,!) then the law must be followed. Another example, when say for instance, there is a good reason or technicality that a conviction under a speed camera related prosecution falls down, then all others in a similar position have their convictions quashed. You can't have a half way house - if something is legally enforceable, then it must be paid or enforced, if it isn't, then it shouldn't be paid or enforced and if it has, it must be refunded with any associated costs such as interest etc. I intend to follow the legal arguments for recovery of all reasonable costs incurred, suffered or endured as a result of unauthorised 'extortion' to the limit to follow another legal principle, simply to be in the same position as before the 'illegal' event!

T

[Terrier7]

Palomino, a little more!

I've actually had a telephone conversation with my solicitor this evening and briefly went over another aspect which I wanted to bounce off him; this lead to two more matters which are relevant.

The first was how the debt with the original creditor was dealt with. It seems as though it can be actually profitable for a creditor to write off your debt; I'll explain how.

Let us say that you have a debt of £2000 with Mbna and you find yourself in circumstances which mean you can't repay or maintain payments. With interest (in authorised limits and terms) and more so unauthorised, interest and penalties, which can be draconian, a debt can get up to say £6000 over a period of time, even assuming payments, (some minimum) have been made along the way This is good for their books and when they 'default' it, the debt is disposed of in some way, most likely sold off to a DCA.

How is this dealt with in their accounting records? Well, it's written off as a bad debt and they then claim the full amount of £6000, less the sale amount against their operating profits and company tax. I think this is currently 28%. So, 28% of £6000 is around £1700; if they sell the debt for more than £300, then they are into a kind of profit, not forgetting all the monthly payments that have been made along the way, say another £1000. And who has given the 'tax' credit to the creditor - well, you as the tax payer have!

 

So, when the debt is sold, the DCA has a go at getting as much as they can, the only person to suffer is you, the poor debtor. Kind of negates any argument for moral responsibility to pay!

 

Next, when the creditors have all the Credit and Credit Card Agreements drawn up, they use a team of expensive blood sucking lawyers who draft it and amend it and double check it and milk all the procedures that corporate lawyers use to hike up their huge fees. Now, here is the interesting part, lawyers have professional indemnity insurance to cover for any errors or mistakes, incompetence etc. So, if these high flying lawyers have made mistakes when drafting the agreements in such a sloppy incompetent fashion (good for us, bad for DCA's and their clients!) which causes losses to their clients, I wonder how many of the claims made against the creditors have simply been thrown back at their lawyers to claim against them or their professional indemnity insurance? If the lawyer is making huge profits, they can then use the 'claim' against their own profits and hence tax bill!

Interesting many faceted game eh?

T

[angel_1]

Thanks for the link to this thread Terrier

 

i wish you the best of luck and all i can add is that sometimes you just have to investigate all the angles and trust your gut instinct but always remember to appreciate others viewpoints, as sometimes the simple thing someone just says gives you more scope to really get to the nitty gritty of problems,,,,and potential pitfalls or postive results

 

laters all

angel x

[Terrier7]

Thanks Angel, great philosophy, it's good to look at all aspects, I try to keep an open mind and always welcome any thoughts!

T

[angel_1]

no problems Terrier,,,just my humble thoughts but hey you have to speak from the heart in these situations and boy have i learned a lot in the past year:cool:

 

like my old grandpa used to say,,,,,,,"you have to eat a Ton of salt to really get to know a person,,,,or a situation fully"

 

nite nite

 

laters all angel x:lol:

[davey77]

subbing

[Undercover-Elsa]

It seems as though it can be actually profitable for a creditor to write off your debt; I'll explain how.

Let us say that you have a debt of £2000 with Mbna and you find yourself in circumstances which mean you can't repay or maintain payments. With interest (in authorised limits and terms) and more so unauthorised, interest and penalties, which can be draconian, a debt can get up to say £6000 over a period of time, even assuming payments, (some minimum) have been made along the way This is good for their books and when they 'default' it, the debt is disposed of in some way, most likely sold off to a DCA.

How is this dealt with in their accounting records? Well, it's written off as a bad debt and they then claim the full amount of £6000, less the sale amount against their operating profits and company tax. I think this is currently 28%. So, 28% of £6000 is around £1700; if they sell the debt for more than £300, then they are into a kind of profit, not forgetting all the monthly payments that have been made along the way, say another £1000. And who has given the 'tax' credit to the creditor - well, you as the tax payer have!

 

So, when the debt is sold, the DCA has a go at getting as much as they can, the only person to suffer is you, the poor debtor. Kind of negates any argument for moral responsibility to pay!

 

Great piece of useful insight there, Terrier7

Good luck with your quest!

 

Elsa

[underdog13]

Hi Terrier,

 

just popped in to wish you the best of luck in your endeavours.

 

Looking forward to your updates;)

[davey77]

Any news on this terrier? How's your Solicitor progressing? Still on the offensive?

[Deb T]

I have an issue (one of many I know) with a DCA, it appears they may have been incorrectly assigned a debt to collect. If this is the case then I will actively pursue them for money they have collected from me.

 

I will start by sending copies of the letters they first sent me except I'll replace them as the collecting agent and they will become the debtor.

 

After writing to them I will then phone them requesting the personal details, I will request they sign an income and expenditure form and then the calls will start. I'll leave answering machie messages, I'll text them and I'll call them as much as I can and when I do speak to them I'll threaten them with all kinds of heinous activity.

 

I'll also send them a paying in book which will cost them money to pay at the local postoffice....

 

Dya think I'll get any money?

 

But if you have a good case and are prepared for the paperwork then I would pursue them for all you can....just as they initially pursued you.

[ICO]

Good luck with this

[davey77]

Been a while since you updated this one.. any progress?

[Terrier7]

Hi there,

Yes, after a lengthy process, two cases due to go to Court soonish! Unfortunately can't say much now, but it is good for all, particularly those with cards dating back a while! And as regards the DCA's, think they they will have to repay where they haven't followed proper rules and procedures. Will be a fight as they won't give in easily, but once we set a standard format for each case, should bear some fruit!

keep smiling!

T7

[debt4get]

subbing with interest

[Helios]

subbing