Help! Re: Unenforcable Debts

[MrBill09]

Hi All,

 

I'm a 'newbie', so please bear with me with any obvious statements etc.

 

I owe approx £32k to around 12 different creditors and currently have things more or less under control on a debt management plan. However, what I don't have is another 132 million years to clear the debts and start looking to the future again.

 

Therefore, I'd be interested in any guidance or help with regards to looking into whether any of my agreements are unenforceable - even if just one is, it will free up more money ecah month to pay towards the other 11.

 

I've looked all over the site but feel a little overwhelmed. Have I missed an obvious 'How To...For Beginners' guide...? Any help/template letters etc would be greatly appreciated! Cheers, Bill

[cerberusalert]

First send whoever is receiving payment a CCA request to see if they are entitled to collect this debt & if it's enforcable. If they fail to provide it within 12+2 days or the CCA is unenforcable you can legally withold any payment until they do. Send it recorded delivery enclosing a £1 postal order. When you get a reply, scan it & remove any identifying details and post it back here where we can have a look at it. We'll advise you from there;

 

Dear Sir/Madam

 

Re:- Account No: XXXXXXXX/Your Reference Number: XXXXXXX

 

This letter is a formal request pursuant to s.77/78 of the Consumer Credit Act 1974. I require you to provide me with a true copy of the credit agreement relating to the above account, together with any other documentation the Act requires you to provide.

 

I expect you to comply fully and properly with this request, within the statutory time limit. You are reminded that should you fail to comply with my request, the provisions of s.77 will apply.

 

If it is your view that you are not the creditor, s.175 of the CCA 1974 applies in the case of a simple assignment, and places a duty upon you to pass this request to the creditor. In the case of an absolute assignment, you are a creditor as defined by s.189. If you contend that you purchased the rights but not the duties of any agreement, you are reminded that s.189 of the Act is clear that an assignment is of both rights and duties.

 

Your attention is drawn to ss.5(2), 3(b),6 and 7 of the Consumer Protection from Unfair Trading Regulations 2008 (CPUTR).

 

I enclose a postal order in the sum of £1.00, which is the statutory fee. Note that these funds are not to be used for any other purpose.

 

If you are unable to comply fully and properly with this request, you should confirm this in writing at the earliest opportunity, and certainly within the statutory time limit for compliance, and return the fee.

 

You should also note that I will only discuss this matter in writing and should it be your intention to arrange a “doorstep call”, please be advised that under OFT rules, you can only visit me at my home if you make an appointment and I have no wish to make an appointment with you or any of your associates.

 

There is only an implied license under English Common Law for people to be able to visit me on my property without express permission; the postman and people asking for directions etc (Armstrong v. Sheppard and Short Ltd [1959] 2 Q.B. per Lord Evershed M.R.). Therefore take note that I revoke license under Common Law for you, or your representatives to visit me at my property and if you do so, then you will be liable to damages for a tort of trespass and action will be taken, including but not limited to, police attendance. (Optional addition)

 

I look forward to hearing from you.

 

Yours faithfully **Edit to suit**

Print name do not sign

[cerberusalert]

There are certain debts which you cannot use the above for such as overdrafts, mobile 'phone a/cs etc., (they are covered by a SAR) so if you list what type they are I'll explain which request to send.

[MrBill09]

Thats a massive help, thanks!

 

The accounts I have are as follows (balances rounded up to avoid possible detection from creditors!....is that at all likely? Do you think creditors scan these forums?)

 

New Look (still with NL) - Just over £200.00

Freemans (now with EOS collections) - £1000

Frasercard (GE Money - storecard) - £1100

Tesco Credit Card - £2000

Capital One credit card - £2100

Yorkshire Bank CC (now with Brunswick collections) - £2800

Adams store card (Creation Finance) - £3200

Barclays Overdraft (now with Debt Managers) - £4300

Egg Loan - £4500

Egg CC - £7000

Virgin Credit Card (think this is actually provided by MBNA - now with Direct Legal & Collections) - £5000

 

Ironically, as is probably usually the case, this debts have gone up considerably since we started to struggle (due to personal injury and job-loss to other half), making it ever-more difficult to actually clear the balance (although we've probably paid the original loan amounts about 5 times over but STILL have the same balances!...ah well, such is life) We're past being literally suicidal about it all - the debt management plan has at least stopped most of the letters and phone call and a few have accepted a lower monthly payment, so we can at least budget a bit more now. Has anyone had any success or failures with any of these companies? Will sending the initial letter out requesting the agreements make everyone go mental again and screw up the DMP? Sorry to ramble on, but how often to people have success with actually getting accounts closed? I've been very tempted in the past to pay one company or other £150-£500 to 'investigate my claim on a no-win, no-fee basis' but I held back as it all sounded dubious and just like yet another company trying to get more money out of a very stretched household!!! Does anyone have a guesstimate as to how many claims are actually won? Are there any negatives/down-sides to investigating ? Thanks a million for the replies already received and for future replies guys. Cheers, Bill

[cerberusalert]

You can send the CCA requests for all of the debts you've listed, it'll be interesting to see how many of them are unenforceable. Once we've sorted the wheat from the chaff we'll show you how to got about reclaiming all the unfair charges they've added over the years, which will probably reduce any outstanding amounts significantly & maybe even a cash refund to you.

 

A little tip though, as each CCA comes back start a new thread for each one & get some A4 folios so you can keep each a/c seperate and you don't get confused with what is happening with what.

 

There is nothing a DMP can do that you can't do yourself with the help of this site & it's free. There are very many success stories through CAG, so have a browse around & you'll come across a lot of them on your travels. Plus of course there are the humourous threads such as Cheekiness towards a DCA - The Consumer Forums which will put a smile on your face.

[MrBill09]

Thats a massive help - thanks! Here's hoping I get somewhere and don't end up in a load more trouble! God I love the power of forums! :o)

[dpick]

Hi just to give you some idea I started with cag in 2007 with approx 17000 debts for 9 creditors. CCA sent to all of these 5 had no agreement or unenforceable agreements these I stopped paying immediately and shared the monies between the 4 that had enforceable agreements. I then started to TRY to negotiate with these 5 creditors to make some type of arangement with them. No chance the calls and letters started as soon as they recieved the CCA requests. The calls stopped very quick when I sent each creditor a copy of one of there own phone calls(advised that I would use in evedence if required). With the help of member of CAG I had the charges and interest refunded on two debts this cleared them. One CC the refund of charges etc left just a small amount to clear then I just paid the other enforceable debts off in 12 months. Without the help of CAG I would still be paying my debts off and would be doing for the next 15 years.

 

You will get the same type of help from members of CAG

 

dpick

[MrBill09]

Thanks for the info dpick.....so do you think that sending CCA requests out will stir things up big time for me? As I said earlier, almost everyone is under control at the moment in terms of leaving me alone - I don't mind paying my DM company each month as they have actually provided me with what I consider to be a good service (so far at least) and the advantage is I don't have to speak to call centre drones reading a script and telling me 'bailiffs are around the corner if you don't pay us 30 zillion pounds right now" etc etc! I'd be slightly hesitant to send out the CCA requests if everyone was going to instantly take me to court/kick off big-style....

[dpick]

Hi again I was on DMP and for the first 6 to 8 months all was quite then I started to get calls letters to say that reduced payment period is over please increase payment etc. I got so **** off that I started looking for help and found CAG and as they say the rest is history, just going by my history if you are happy things are quite then wait for the first creditor to start or pass debt to DCA. They will do this in the end so I would read as many threads as you can so you will be prepared and can start when you are ready if they havent.

 

dpick

[Big Dan]

Sorry, I probably should read a few more of the posts on the subject but can this letter only be sent to debt collection companies or to the creditor as well??

[cerberusalert]

You can send it to whoever you are making a payment to.

[MrBill09]

Hello all,

 

I have been putting off doing anything about our debts for a couple of years due to health problems etc, but now I have a renewed vigour and want to start getting back on top!

 

I successfully got about £4.5k back from Egg in '09 for mis-sold PPI (which, for the benefit of any first-timers here, wondering how possible it is to win, I got back after sending ONE very generic PPI reclaim letter from the library here - hoorah!).

 

Now what I'm wondering is whether anyone can help me knock up a letter that does the following;

 

Request whether an account has ever had PPI (I'm not sure on some of my accounts),

Request a breakdown of any unfair bank charges (Not sure whther this is still possible...?)

Request a copy of the original credit agreements (first time round, I only dabbled at this, but some of our accounts are 15-20 years old and have recently been passed around a lot.)

 

My goal is this;

 

Reduce debt by recovering any PPI,

Reduce debt by reclaiming any unfair bank charges,

 

Then....

 

....request CCA, but I have a feeling a lot will not exist, SO - I would like to be in a position whereby I made a reduced offer to the ones without a CCA, something along the lines of "you can't produce an agreement, I'm not going to pay you what you say I owe you without proof. We can either carry on like this forever, or we can agree a reduced amount that I 'owe' [i.e. 50%] and I'll pay you that back in installments as much as I can afford"...

 

Anybody think that might work? Or is it just pie in the sky?

 

So, back to my original question - is there a 'catch-all' letter that I can just send out to them all, requesting everything at once?

 

Any help greatly appreciated....I'm fired up and want to get a plan!

 

Cheers

[citizenB]

Well done with the EGG PPI, they are usually pretty reluctant to part with monies they have had when they shouldnt

 

Bank charges for current accounts - Pretty much dead in the water since the Supreme Court hearing which ruled in the bank's favour

 

You would probably be best advised to send Subject Access Requests to all lenders/creditors. That way you will obtain all data regarding your financial dealings with a company. Statements should show if there has been any PPI monies taken. This will cost you £10.00 and the company has 40 calendar days to supply you with the information.

 

Although you can ask, it is unlikely you wll receive copies of credit agreements in with the SAR. Agreements are covered under the CCA1974 and if you specifically want the agreement you need to request that under the CCA1974 and that will cost you £1.00. The company has 12 working days + 2 for posting to provide that to you.

 

You need to send SAR and CCA requests to the original lenders. Draft letters can be found in the CAG library. Make sure you amend the SAR draft to include all items that you require, such as contracts for PPI.. plus statements..and anything else that you think you might require.

 

HTH

[MrBill09]

Thanks for the swift response!

 

Re: Bank charges - I knew the courts had ruled in favour of the banks, but I thought a maximum fee had been agreed and anything charged above this could be recovered, even now? I thought I'd read that on the Martin Lewis website?

 

Re: PPI and CCA - so you think I should send both a SAR and CCA request to all creditors, separately?

 

Do you think I have any hope of 'strong-arming' any companies who can't/won't produce agreements into agreeing to a reduction in the debt? My understanding (please -PLEASE- correct me if I'm wrong!) was that if I request a CCA and they don't comply, the debt is 'unenforcable' until such time as they do produce one. I also understand that if they don't produce one within 12+2 days, I could stop making payments until they do produce one, and that whilst the debt still exists, they can't take me to court/add extra charges and interest while the debt is still unenforcable?

 

So my idea was that whilst I'm not making payments to them, I'm a) saving up the money and b) increasing the liklihood (if it drags on for ages) that I might suggest a figure to them that I DO agree to, and will be able to say "here's all the money you WOULD have been receiving if I'd been paying you, and I'll repay the rest over the next 'x' months"

 

Is that total fantasy do you think or is there already a precedent for that kind of thing? I'm sure I've read on here a similar sounding tactic used by people, but it's quite hard sometimes to totally understand whats being discussed.

 

If I'm totally wrong, please do correct me, as whilst I've tried to read as much as possible, I acknowledge that I'm not a lawyer....

[MrBill09]

Sorry - forgot to add - whilst the bank charges thing may be dead, what about credit card charges? does the same apply?

[citizenB]

I have no knowledge of the current situation regarding Bank charges. I would have thought there would have been something on the forums if people were still able to reclaim.

 

Hmmmm, CCA requests.. They can actually send a reconstituted document in response to a s78 request. This according to the Judge in the HSBC v Carey case.

 

If they dont supply a document in response to your request in 12 + 2 days, then according to the Judge above, they can send letters, phone you, demand monies, add interest and start proceedings to take you to court.. what they CANT do is OBTAIN judgment against you if they dont have an agreement.. !!

 

There is no legislation that says you can stop payment if they dont provide a copy.. However, many people do.. if the company then finds a document.. this could leave you with egg on your face.

 

I imagine there is where you have the opportunity to negotiate a full and final settlement.. if they cannot produce a document at all, then they might just be open to offers.

[BRIGADIER2JCS]

Was the reasonable charge level

not set at around

£12, anything above that can be

reclaimed.

With the 15-20 year old debts when

was the last payment or written acknowledgment

made??

[MrBill09]

Thanks for the reply Brigadier, I was under the same impression re: 'sensible' card/bank charges at £12....? I may be wrong.

 

Currently in a DMP, so creditors getting paid every month.

[BRIGADIER2JCS]

Hi Bill,

even the very old debts??

Have you had statements of

the balances recently?

[MrBill09]

Yep - we've been paying them all. When I say they're 'old', I mean they were originally taken out years ago, used for years normally, then started paying reduced payments on DMP about 2/3 years back, so everyone has been getting something

[MrBill09]

Re; Statements - I don't think we actually get statements from everyone we pay....I know Egg send them yearly (or similar, but with regularity) and some of the collection companies post one every month, but now you mention it, I don't think we get regular post from all 12 companies

[MrBill09]

Quick question if anyone can help: Which creditor types do I send a CCA request to and which do I send a SAR to?

 

We have;

 

Store cards, store cards that have been passed to debt collectors, overdraft gone to debt collectors, welcome finance loan, credit card, credit card with debt collector etc etc

 

If I understand correctly, a SAR should also include the original agreement also? If so, do I only need to send SAR's out, or do I just send CCA's, as this should tell me the original agreement, whether it's got PPI etc?

 

*confused*

[citizenB]

Quick question if anyone can help: Which creditor types do I send a CCA request to and which do I send a SAR to?

 

We have;

 

Store cards, store cards that have been passed to debt collectors, overdraft gone to debt collectors, welcome finance loan, credit card, credit card with debt collector etc etc

 

If I understand correctly, a SAR should also include the original agreement also? If so, do I only need to send SAR's out, or do I just send CCA's, as this should tell me the original agreement, whether it's got PPI etc?

 

*confused*

 

Both CCA and SAR requests should be sent to the ORIGINAL creditor. If you send a CCA request to a DCA then it is likely they will return the request to you but minus the fee, which they will apply to the account.

 

Theoretically they should actually pass your request on to their client, but they dont.

 

Whilst you should include a request for the agreement within your SAR, the company doesnt have to provide it because it is specifically a CCA1974 request.

 

The agreement should show if PPI was part of the agreement and if the box was ticked or not. Statements should prove whether monies were taken for PPI.

 

HTH

[MrBill09]

Sorry to keep asking daft questions, but please can somone clarify the situation about signatures? I've read conflicting posts/news items about this. My understanding was that if a creditor is unable to provide a 'true' copy of the agreement then the debt is unenforcable until such time that they do. A 'true' copy should, if I understand correctly, include a signature ? I've also read that this is why you shouldn't sign the CCA request. This seems to imply that creditors will just 'cut and paste' a more recent signature onto a blank agreement and just say 'there you go'.

 

I'm concerned because I'm fairly sure that we have written to the creditors when trying to negotiate lower payments a few years back and signed the letters.... Can anybody clarify the situation? Also, I've read about 'reconstituted agreements' - can anyone elaborate on this? Thanks as always!

[BRIGADIER2JCS]

The signature scene has chained

due to new case law,allowing

reconstituted agreements, also

the only ''restriction'' on non

compliance with a CCA request

is the it cannot be enforced in

court, the debt still exists and

is payable, the creditor/ DCA can

carry out all collection activity,

and issue court proceedings but

cannot obtain judgement.

So reliance on missing paperwork,

or absence of signatures is not wise.