Difficult situtation - what to do?

[shinobi101]

My total debt is around 40k.

overdraft 3000 (charges adding up fast)

Loan1 6000

Loan2 4000

Loan3 11000(CCA on 2 separate pages, prescribed terms p1, signatures p2)

Card1 10500(B/C – probably no CCA)

Card2 5500(Amex – dodgy DN, unenforceable cca)

Minimum payments around 900pm total.

My wife has had no work (agency) since before Christmas, and is trying to get a job but no luck so far.

My overtime has been cut to near enough zero.

Because of this I can now afford maybe 20 - 25% of the creditors’ claims. (monthly) That is, as long as I keep my job.

To make matters worse, Card1 was able to help itself to a small amount of savings I had to cover a minimum payment (legal right to set-off, apparently) I discovered this late one afternoon and reacting in anger I had a new current account by the end of the next morning. I now have a current account with a 3k overdraft, the bank adding charges like there’s no tomorrow. Because of the breach of trust involved, even after 20 years with one bank, I could never trust that bank with my money again (legal rights or not), but need to resolve to situation with them.

Options:

IVA: Mostly just makes money for IVA companies. Mostly only good for who can’t go bankrupt (MP’s, maybe judges etc) I should be eligible, but an IVA lasts 5 years. My job might not.

Bankruptcy: Really hurts. You get crucified. They take almost everything. Info on the net is unclear as to what they can or can’t take, and what they would or wouldn’t take. Possibly a judge would now be harder on me because I’ve challenged 2 cca’s and given some creditors a hard time.

Challenge CCA’s: If Loan3, and both cards are unenforceable, I should be able to pay the rest at a reduced but acceptable rate. There is no PPI on any of them. (I never trusted it)

Just pay it? The easy way out with the least grief, but simply not possible.

 

 

Creditors & DCA’s often tend to be difficult to deal with, lie, make loads of threats (some fake, some real) harass and bully especially those who seem like easy targets, break agreements that they make, default or harass you without you having broken your agreement, and totally disregard many of the laws they are regulated by. (I learned most of that from the ‘please help’ threads on here)

[PGH7447]

I see you have changed banks thats a start, now reclaim the charges

 

if you have cca these loans have they been checked for enforceability?

 

Are the loans secured or unsecured?

 

are there any charges on the loans that can be claimed back?

 

from now on only ever deal in writing.

 

it may be easier to split the issues into seperate threads.

 

I personaly would not IVA or go bankrupt, but that is a decision only you can make

[shinobi101]

I see you have changed banks thats a start, now reclaim the charges

 

if you have cca these loans have they been checked for enforceability?

 

Are the loans secured or unsecured?

 

are there any charges on the loans that can be claimed back?

 

from now on only ever deal in writing.

 

it may be easier to split the issues into seperate threads.

 

I personaly would not IVA or go bankrupt, but that is a decision only you can make

 

Thanks PGH,

 

I have CCA'd the loans and still not got replies. Should have sent special delivery

 

2 of the loans are from 2008. Do they need a CCA, or are they automatically enforceable?

 

The other loan has prescribed terms on one page and signature on another (it was printed from the internet - I still have my copy but CCA'd them anyway)

 

I've also made a complaint about non-receipt of CCA's.

 

All of it is unsecured and I don't own property, so they can't screw me over by making an unsecured loan into a secured one.

 

The overdraft is still stacking up charges, the question is when to start reclaiming?

[PGH7447]

Thanks PGH,

 

I have CCA'd the loans and still not got replies. Should have sent special delivery - in this case send the account in dispute letter and if still paying anything stop

 

2 of the loans are from 2008. Do they need a CCA, or are they automatically enforceable? - were they from the internet or by post? or at the counter

 

The other loan has prescribed terms on one page and signature on another (it was printed from the internet - I still have my copy but CCA'd them anyway)

 

I've also made a complaint about non-receipt of CCA's. who to?

 

All of it is unsecured and I don't own property, so they can't screw me over by making an unsecured loan into a secured one.

 

The overdraft is still stacking up charges, the question is when to start reclaiming?

 

start to reclaim the charges now

[PGH7447]

Send by recorded....and edit as required

 

Account In Dispute

 

Ref:

 

Dear Sir/Madam

 

Thank you for your letter of xx/xx/xx, the contents of which have been noted.

 

You have failed to respond to my legal request to supply me a true copy of the original Consumer Credit Agreement for the above account.

 

On **DATE** I made a formal request for a true signed agreement for the alleged account under consumer credit Act 1974 s77/8. A copy of which is enclosed for your perusal and ease of reference.

You have failed to comply with my request, and as such the account entered default on **DATE**.

 

The document that you are obliged to send me is a true copy of the executed agreement that contained all of the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself as defined in section 61(1) of CCA 74 and subsequent Statutory Instruments. If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document.In addition a full statement of this account should have been sent to me detailing all debits and credits to the account.

 

Furthermore

 

 

You are aware that the Consumer Credit Act allows 12 working days for a request for a true copy of a credit agreement to be carried out before your client enters into a default situation.

 

This limit has expired.

 

As you are no doubt aware section 78(6) states:

 

If the creditor fails to comply with Subsection (1)

 

(a) He is not entitled , while the default continues, to enforce the agreement.

 

Therefore this account has become unenforceable at law.

 

As you have Failed to comply with a lawful request for a true, signed copy of the said agreement and other relevant documents mentioned in it, Failed to send a full statement of the account and Failed to provide any of the documentation requested.

 

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

 

Furthermore I shall counterclaim that any such action constitutes unlawful harassment.

 

Please note you may also consider this letter as a statutory notice under section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect.

 

This means you must remove all information regarding this account from your own internal records and from my records with any credit reference agencies.

 

Should you refuse to comply, you must within 21 days provide me with a detailed breakdown of your reasoning behind continuing to process my data.

 

It is not sufficient to simply state that you have a ‘legal right’; You must outline your reasoning in this matter and state upon which legislation this reasoning depends.

 

Should you not respond within 14 days I expect that this means you agree to remove all such data.

 

Furthermore you should be aware that a creditor is not permitted to take ANY

Action against an account whilst it remains in dispute.

 

The lack of a credit agreement is a very clear dispute and as such the following applies.

 

* You may not demand any payment on the account, nor am I obliged to offer any payment to you.

* You may not add further interest or any charges to the account.

* You may not pass the account to a third party.

* You may not register any information in respect of the account with any credit reference agency.

* You may not issue a default notice related to the account.

 

 

I reserve the right to report your actions to any such regulatory authorities as I see fit.

You have 14 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint.

 

I would appreciate your due diligence in this matter.

 

I look forward to hearing from you in writing.

 

Yours faithfully

__________________

 

[lexis200]

I would suggest getting offers of payment in to them.

 

We had (have:rolleyes:) a very large amount of debt (let's just say we trump you comfortably) which equalled probably close to 2k in repayments a month (not a problem as OH had an extremely well paid job at the time).

 

Unfortunately I became ill with a long-running health issue and OH lost his contract due to having to look after me. After living off savings for a few years, it became apparent that we were in deep trouble and I set about offering pro-rata payments.

 

We now pay under £200 a month and interest and charges have stopped. This has been in place for about 2 years. Some creditors were easier to deal with than others, but out of many banks only 2 refused to accept the payments offered; the rest all agreed with little or no fuss.

 

It could just be a way to give you a little breathing space while you get your job situations sorted out. The only thing is it will impact your credit rating. However if you are getting to the point where you can't pay anyway, that's going to be happening soon regardless.

 

It also doesn't mean you need to stop with the CCA stuff. I made the payment arrangements well before I know about the Act and various possibilities arising from it. I have for the last year been CCA'ing them and am finally seeing a possible light at the end of the tunnel.

 

If you do decide to make pro rata offers to the creditors, just make sure you are honest in what you put as your disposable income, but also make sure you don't cut it to the bone. There is no point making an offer and then finding out a few weeks/months down the line that it's too hard to stick to.

 

The big thing though is don't panic. As has been said always write, never discuss over the phone. Any and all letters sent should include something along the lines of 'please note I will not discuss financial matters over the phone and require all communication to be in writing', and they should all be sent recorded at least (banks have a big problem with this sort of mail getting 'lost'). Once you have written asking them to cease phone contact, refuse security when they phone and just repeat the sentence above.

 

Make sure you get the name of anyone who phones, and keep a log of all calls (time/date/name/brief outline of conversation). This is extremely important for if they refuse to write and keep phoning, as you need to be able to prove harassment.

 

If you can afford it it is well worth getting some sort of recorder for the phone. The Truecall device which you can buy on here is top notch, but at around £100 it's beyond our finances. We have a simple mp3 recorder which we got from Argos, and although it's far more clunky and has less stuff, it does the main job and was about £30. If you can get the Truecall though do!

 

I don't think the loans being from 08 means they are automatically enforceable, but it does mean if they are dodgy agreements they are not automatically unenforceable as the courts don't have to follow sec 127 anymore.

 

With the o/d I have no idea - I've never done bank charges so can't give any advice, but if you have a look on the bank charges threads I would guess there'd be plenty of help there?

 

Lexis:)

[lexis200]

Send by recorded....and edit as required

 

Account In Dispute

 

Ref:

 

Dear Sir/Madam

 

Thank you for your letter of xx/xx/xx, the contents of which have been noted.

 

You have failed to respond to my legal request to supply me a true copy of the original Consumer Credit Agreement for the above account.

 

On **DATE** I made a formal request for a true signed agreement for the alleged account under consumer credit Act 1974 s77/8. A copy of which is enclosed for your perusal and ease of reference.

You have failed to comply with my request, and as such the account entered default on **DATE**.

 

The document that you are obliged to send me is a true copy of the executed agreement that contained all of the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself as defined in section 61(1) of CCA 74 and subsequent Statutory Instruments. If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document.In addition a full statement of this account should have been sent to me detailing all debits and credits to the account.

 

Furthermore

 

 

You are aware that the Consumer Credit Act allows 12 working days for a request for a true copy of a credit agreement to be carried out before your client enters into a default situation.

 

This limit has expired.

 

As you are no doubt aware section 78(6) states:

 

If the creditor fails to comply with Subsection (1)

 

(a) He is not entitled , while the default continues, to enforce the agreement.

 

Therefore this account has become unenforceable at law.

 

As you have Failed to comply with a lawful request for a true, signed copy of the said agreement and other relevant documents mentioned in it, Failed to send a full statement of the account and Failed to provide any of the documentation requested.

 

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

 

Furthermore I shall counterclaim that any such action constitutes unlawful harassment.

 

Please note you may also consider this letter as a statutory notice under section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect.

 

This means you must remove all information regarding this account from your own internal records and from my records with any credit reference agencies.

 

Should you refuse to comply, you must within 21 days provide me with a detailed breakdown of your reasoning behind continuing to process my data.

 

It is not sufficient to simply state that you have a ‘legal right’; You must outline your reasoning in this matter and state upon which legislation this reasoning depends.

 

Should you not respond within 14 days I expect that this means you agree to remove all such data.

 

Furthermore you should be aware that a creditor is not permitted to take ANY

Action against an account whilst it remains in dispute.

 

The lack of a credit agreement is a very clear dispute and as such the following applies.

 

* You may not demand any payment on the account, nor am I obliged to offer any payment to you.

* You may not add further interest or any charges to the account.

* You may not pass the account to a third party.

* You may not register any information in respect of the account with any credit reference agency.

* You may not issue a default notice related to the account.

 

 

I reserve the right to report your actions to any such regulatory authorities as I see fit.

You have 14 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint.

 

I would appreciate your due diligence in this matter.

 

I look forward to hearing from you in writing.

 

Yours faithfully

__________________

 

 

If you use this you need to decide whether it's 14 or 21 days you want to give them;)

[PGH7447]

If you use this you need to decide whether it's 14 or 21 days you want to give them;)

 

thats why its edit as required:)

[lexis200]

ahem >

[PGH7447]

ahem >

 

Actually I had never noticed that discrepency before - Oops, will have to sort it before offering it on again

[shinobi101]

I don't think the loans being from 08 means they are automatically enforceable, but it does mean if they are dodgy agreements they are not automatically unenforceable as the courts don't have to follow sec 127 anymore.

 

They also have electronic signatures. Does that make a difference?

 

If they cant' show me a CCA would that stop them (legally at least) enforcing the 'agreement' at least until they do?