Unenforceable agreements

[Redfish]

Hi there,

 

Just worked out how to create a new thread. I wanted the experts advice on the best way I go about finding out if my debts are enforceable?

 

I have been reading through many threads on this forum for the last few days and have read so many discoveries, but as people have discovered new things over time I wanted to clarify some things. We have debts with Abbey Credit Card, MBNA, Virgin, Barclaycard and Egg and we're really struggling.

 

Please let me know if this is the best procedure I should take:

 

1. Send off CCA letters quoting s78 to each of the creditors.

 

2. Wait for 14 days (12+2). If they don't reply with a true copy of our agreement they are in default and cannot enforce the agreement without going to court; they also cannot assign the debt to a DCA as the debt is in dispute. I can now stop my direct debit payments to them and issue them a notice explaining that.

 

3. If they still don't produce the agreement one month later they have committed a criminal offence. I can now ask my bank to repay me anything these creditors have taken from me through the Direct Debit Guarantee promise as they obtained these payments through deception (deception being that they claimed they had a legal right to take money from my account when they didn't).

 

Am I right in believing that also

 

a) A signed application form is not counted as a properly executed agreement as it refers to a potential future agreement rather than a present day agreement.

b) All T&Cs must be contained within one document and not refer beyond the document to further T&Cs?

c) Am I also right in believing that nowadays many of the lenders have been alerted to their faults in not following the correct procedures for loans and are now attempting to tamper with documents to fabricate a properly executed agreement? If so would it be wiser to start with a Subject Access Request first (so that they don't get wind of the fact they have no proper agreement as they are busy collecting all the information they have to send) - and only then follow up with a CCA s78 request if I notice they don't have a properly executed agreement?

 

Also, if I find my agreement is enforceable, how do things stand with s85? If lenders did not send a copy of the signed agreement when issuing new credit card replacements, do they forfeit profits over that time? Does that mean they have to pay back all the interest and any penalties they have been charging?

 

I know you may have been asked these questions before, but it seems that what was talked about in late 2006 is not quite the same as what is being talked about in early 2009 - so obviously there have been discoveries and legal cases clarifying things, as well as amendments to the law/fightback from the lenders.

 

Thanks everyone:)

[dx100uk]

clause 3 above no longer applies.

 

sadly they no longer commit a summary criminal offence.

 

however, no enforceable agreement put you in a very strong position to offer a very much reduced F&F.

 

be aware that the debt still exists it could be called in if a cca appears legit at a later date.

 

see my sig ..

 

dx

[Redfish]

clause 3 above no longer applies.

 

sadly they no longer commit a summary criminal offence.

 

however, no enforceable agreement put you in a very strong position to offer a very much reduced F&F.

 

be aware that the debt still exists it could be called in if a cca appears legit at a later date.

 

see my sig ..

 

dx

 

Hey thanks Dx100uk!

What does F&F mean? Also I didn't see anything on your sig?

[MARTIN3030]

Hi Redfish.Thanks for the pm-I think DX has answered your questions.You should start individual threads for each of the cardissuers you can do this in the Other institution forums.

F & F means "Full and final " relating to settlement or "End of"

 

DX sig is here

 

http://www.consumerwiki.co.uk/index....ng_Off%27_Debt

[silverfox1961]

Hi there,

 

Just worked out how to create a new thread. I wanted the experts advice on the best way I go about finding out if my debts are enforceable?

 

I have been reading through many threads on this forum for the last few days and have read so many discoveries, but as people have discovered new things over time I wanted to clarify some things. We have debts with Abbey Credit Card, MBNA, Virgin, Barclaycard and Egg and we're really struggling.

 

Please let me know if this is the best procedure I should take:

 

1. Send off CCA letters quoting s78 to each of the creditors.

 

Yes

 

2. Wait for 14 days (12+2). If they don't reply with a true copy of our agreement they are in default and cannot enforce the agreement without going to court; they also cannot assign the debt to a DCA as the debt is in dispute. I can now stop my direct debit payments to them and issue them a notice explaining that.

Don't forget they are WORKING days

 

3. If they still don't produce the agreement one month later they have committed a criminal offence. I can now ask my bank to repay me anything these creditors have taken from me through the Direct Debit Guarantee promise as they obtained these payments through deception (deception being that they claimed they had a legal right to take money from my account when they didn't). We would need more info on this

As mentioned, the 30 days has been repealed but you also can't claim back anything unless it's PPI sold wrongly AND only if the CCA is enforceable

 

Am I right in believing that also

 

a) A signed application form is not counted as a properly executed agreement as it refers to a potential future agreement rather than a present day agreement.

An application can be an agreement but only if it embodies the important term within the signature page

 

b) All T&Cs must be contained within one document and not refer beyond the document to further T&Cs?

Not nescessarily, they can be referred. depends how it's worded

c) Am I also right in believing that nowadays many of the lenders have been alerted to their faults in not following the correct procedures for loans and are now attempting to tamper with documents to fabricate a properly executed agreement? If so would it be wiser to start with a Subject Access Request first (so that they don't get wind of the fact they have no proper agreement as they are busy collecting all the information they have to send) - and only then follow up with a CCA s78 request if I notice they don't have a properly executed agreement?

 

You could SAR them instead of a CCA request as then you would get back everything they hold on you but you must stipulate thet you want everything

 

Also, if I find my agreement is enforceable, how do things stand with s85? If lenders did not send a copy of the signed agreement when issuing new credit card replacements, do they forfeit profits over that time? Does that mean they have to pay back all the interest and any penalties they have been charging?

 

Someone else will have to answer that one

 

I know you may have been asked these questions before, but it seems that what was talked about in late 2006 is not quite the same as what is being talked about in early 2009 - so obviously there have been discoveries and legal cases clarifying things, as well as amendments to the law/fightback from the lenders.

 

Thanks everyone:)

 

 

Your choice which way to go,

If an agreement is unenforceable and you have paid PPI on it you either write off the PPI and go for unenforceability or accept an agreement as is and claim back the PPI.

 

You are well within your rights to reclaim the penalty charges

[Redfish]

Thanks Martin and Silverfox - I think I'll SAR them first then!

[David Graham]

Has anyone heard of David and Goliath Debt Advice - they appear to be saying that they will review enforceability of agreements based on a success fee?

Anyone had any experience with this lot?

[Rooster-UK]

Unless you don't really NEED your money back, I would forget it.

They will take your money, up-front, string you along for a while, then tell you that they cannot do the job on your account.

 

And guess who gets to keep the money you've paid up-front. Not you!

 

Spend a bit of time reading some of the information on this site, and then you'll be able to do it yourself...... And keep ALL the money.

 

Regards, Rooster.

[David Graham]

Hey

That's really interesting, thank you - but if you have a spare moment to answer the question I asked rather than the question you appear to think I have asked that would also be useful. They say that they do not take money up front - and given that they say this. I assume they dont.

My question is has anyone heard of this lot?

[dx100uk]

they get a percentage of the money out of you that sould have normally gone to you.

or they ask for a fee you will never get back

 

you can do this yourself for free barring pos an sar fee or a cca fee and postage

 

dx

[tom79]

Sorry to go slightly off topic "ish" if you win an Unenforceable agreement and get the loan canx.... does this have any effect on your credit in any way?

 

I am worried about trying it becasue it is with my bank and I have to wonder if they will deal with me after?

 

Thanks

[dx100uk]

if the agreement in unenforceable then they cannot process your data with external agencies

 

an unenforceable agreement does mean the loan vanishes, it just means it cannot be enforced till a valid cca appears.

 

dx

[roast beef]

Have you already defaulted on any loans? If you default it will affect your credit scoring - think twice.

[Suetonius]

Hey

That's really interesting, thank you - but if you have a spare moment to answer the question I asked rather than the question you appear to think I have asked that would also be useful. They say that they do not take money up front - and given that they say this. I assume they dont.

My question is has anyone heard of this lot?

 

Yes I have heard of them.

 

They charge a fee of 12.5% of any amount they save you.

 

It begs the question, why pay a company 12.5%, if you can do it yourself via CAG for free.

 

No offence, but I personally feel these types of companies are not beneficial and the below it is a fact, that they can't dispute.

 

"There is nothing they can do for you, for a fee. That you can't do for yourself for free."

Maybe all of these types of companies should be forced to put the above on all of their websites / advertising / correspondence.

 

I would personally advise people to avoid companies of this nature like the plague.

 

Do it yourself, it is not hard and is not that time consuming.

[Suetonius]

Taken from their own website:

 

"Why can’t I do this myself?

 

The answer is that you can."

 

 

No more to be said really

Edited June 15, 2009 by Suetonius

[exchange]

Hi Redfish

 

I found your response to MBNA regarding the prescribed term issue and wondered what stage you are at with all this. This seems to be your only thread, although I suspect you have a different name on here as well.

 

Interested as I am about to challenge them on the same issue.

 

Thanks in advance.

 

Exchange

[tom79]

Hello,

 

can I get some advice please.

 

I have 1 loan and 1 credit card both with the same bank, I have asked they send me a copy of the agreement and the agent said they would on the telephone but I have not recieved it for weeks ( i do understand I can not count this as I did not send a letter) but i am quite confident they will not be able to produce the agreement.

 

How should I attempt to get my loan and card Unenforceable?

 

I have had a big fall out with them over the way the whole loan was managed and i want out.

 

I have opened another bank account also as adviced.

 

If the way above the best?

 

Thanks

[silverfox1961]

Hi,

Nothing said on the phone can be relied on so send a CCA request by post.

ONE request for each (loan/cc):

 

Letter 8

 

The Consumer Forums - Debt collectors

 

Send by recorded delivery

enclose a £1 Postal Order-no cheques

DO NOT sign the letter, just print your name

They have 12+2 WORKING days to respond from receipt which you will know as you sent it by RD.

 

Once you get something back, start a new thread for each of them as you will get missed on this thread.

 

Hope that helps.

 

fox

[tom79]

Thanks for the info Fox, I will get started.

[diddydicky]

Has anyone heard of David and Goliath Debt Advice - they appear to be saying that they will review enforceability of agreements based on a success fee?

Anyone had any experience with this lot?

 

looking at their site- the company ONLY deal with F & F's and say they cannot help anyone who does not have the funds to F & F

 

that is all very well but the creditors can read what i just read on their site- so as soon as they represent you the creditor will KNOW that you have some funds

 

a good idea (not)!!

[Redfish]

Hi Redfish

 

I found your response to MBNA regarding the prescribed term issue and wondered what stage you are at with all this. This seems to be your only thread, although I suspect you have a different name on here as well.

 

Interested as I am about to challenge them on the same issue.

 

Thanks in advance.

 

Exchange

 

Hi Exchange,

 

Not sure in particular which MBNA issue you were referring to. I have posted all over the place on more general threads. Basically if you get a copy of your agreement and any of the prescribed terms are missing or mis-stated you can challenge the enforceability of the agreement.

 

We have MBNA credit cards (Virgin and Abbey) and an MBNA loan. The credit cards sent back illegible agreements and so they are in default of the CCA which requires legible copies to be provided. On that basis we challenged them and then stopped paying them and got all the telephone calls, letters threatening action etc. But they still have not been able to supply legible copies. This makes me think that they will not be able to produce legible copies in court and therefore they are unlikely to succeed if it does go to court (and they are unlikely to go to court if they can't produce a legible agreement). But it is important you make your case about legibility clearly in your letter to them putting the account in dispute.

 

The MBNA loan issue is about the label of 'cash advance' used instead of 'amount of credit' - we challenged them about that in our account in dispute letter and stopped paying. They replied that according to them they have complied with the law and that they are now planning to report the debt to a credit reference agency. Now they have offered a settlement of 50% reduction in the loan (which shows they believe they may not succeed if it goes to court). We won't be accepting this.

 

When we embarked on this path we knew that we were going to let ourselves in for a lot of harrassing telephone calls and letters - so we unplugged our main phone and didn't answer any calls on our mobile phones unless we knew the caller, and we just ignore the letters. Eventually they run out of steam, at one time they were calling several times a day, now we only get a weekly call!

[exchange]

Hi Redfish, thanks for taking the time to answer. It was about the loan as I have the same incorrect prescribed term and have now stopped paying and disputed the account.

You may be interested to know that it is now a statutory requirement fro them to send you an annual statement for your loan. I got one late (outside the prescribed time limit) but with information missing. Just more ammo to use against them.

If you have time take a look at my threads.

Exchange

Edited October 28, 2009 by exchange
Correction