Please help - Enforceable Agreement

[jamtastic]

I've posted this in here as well as wasn't sure which forum would be best...

 

I am asking for advice on here as I am not sure what to do next..

 

So far it has gone like this:

 

Took out loan in 2003

Defaulted in 2004

Last payment Jan 2009

Default has dropped off credit record in 2010

Lowell Financial bought debt in 2009

Requested CAA in 2010

Have been sent an enforceable CAA

 

So I cant go down the unenforceable route, what should I do now?

 

- What would requesting Subject access request do? Would it make any difference?

- Should I send a statement of affairs and offer monthly repayments?

- What are the chances of them taking it down the route of taking it to court?

- I havn't made any payments to Lowell Financial so far as I wanted to make sure that they were the true holders of the debt. It turns out they are and have an enforceable agreement so if I offer to pay them all I can afford per month will they still try to take me to court?

 

As the default has dropped off my credit record I am scared about them applying for a CCJ which will ruin my credit for another 6 years and I dont have the money to pay the debt in full if they do apply for a CCJ.

 

Thank you for any help or advice, I'm just a bit worried at the moment and they said I have 21 days from the date they sent me the CAA to respond with my repayment details.

[cerberusalert]

Do you have the Default Notice & have you had the CCA checked?

[jamtastic]

Do you have the Default Notice & have you had the CCA checked?

 

Hi cerberus,

 

Thanks for your swift reply!

 

I don't have the default notice, I don't even know if I got one!

 

Had the CAA checked and everything is on there that should be, though I can try and post it up here to double check but it does all look like its there

[cerberusalert]

You can always request another CCA.

 

What type of debt was it?

[jamtastic]

You can always request another CCA.

 

What type of debt was it?

 

It was a loan.

 

How do you mean another CCA?

[jamtastic]

You can always request another CCA.

 

What type of debt was it?

 

I don't know if it makes any difference but they sent a letter to me before they sent out the CAA saying they couldn't find the CAA and were closing the account and wouldnt contact me again unless they found it. Then they sent me the letter with the CAA about two weeks later.

[cerberusalert]

You could always ignore them until they contact you again & when they do just say you are still waiting for your CCA.

[cerberusalert]

How do you mean another CCA?

Copy of the agreement.

[jamtastic]

Copy of the agreement.

 

I see now, thats the thing though - if I ignore will it make them more likely to take me to court now they know theyve got an enforceable agreement?

[cerberusalert]

Lowlife wouldn't know an enforceable agreement from a luncheon voucher.

[Housed]

Hi jamtasic

 

i im in the same position as you are, no CCA for ages then all of a sudden they pluck out an enforceable Agreement. i will keep an eye on your thread to see what the best options are.

 

i started a thread of my own this morning some of which might be relevant to you, here is the link.

 

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/262023-cabot-help-needed-please.html

[BuzzMan]

Have been sent an enforceable CAA

 

 

Does it resemble anything that you could've signed?

[Jasper1965]

Do you have the Default Notice & have you had the CCA checked?

 

Good advice here!!

 

An invalid or non existent default notice and/or termination notice would likely stop any potential action.

 

You need to SAR the original creditor asap to see exactly what they do have.

[jamtastic]

Good advice here!!

 

An invalid or non existent default notice and/or termination notice would likely stop any potential action.

 

You need to SAR the original creditor asap to see exactly what they do have.

 

Thank you for your replies guys, could you just explain a bit more about the SAR? So I have to do it to the original lender? Even though Lowell now own the debt and theyre the ones that sent the CAA?

 

It was signed and dated by me yes.

 

Im just wondering how if I SAR the original creditor how will Lowell know to stop any action?

 

Thank you

[cerberusalert]

If you send a SAR they have to provide all the information they hold on you as a person. This includes copies of statements, any letters sent to you, copy of agreements etc. From this information you can determine whether there are any unfair charges PPI you can reclaim. This goes to the original creditor not Lowells as they don't hold any information.

[jamtastic]

If you send a SAR they have to provide all the information they hold on you as a person. This includes copies of statements, any letters sent to you, copy of agreements etc. From this information you can determine whether there are any unfair charges PPI you can reclaim. This goes to the original creditor not Lowells as they don't hold any information.

 

Thanks, well I'll SAR Sainsburys anyway - should I write to Lowell to tell them thats what I'm doing?

Was thinking about offering a full and final settlement, which would probably only be about 10% of the debt but just really dont want to be taken to court!

[cerberusalert]

should I write to Lowell to tell them thats what I'm doing?

No point, it's got nothing to do with them. Besides they've got a couple of rain forests to destroy yet.

Was thinking about offering a full and final settlement, which would probably only be about 10% of the debt but just really dont want to be taken to court!

Wait & see what the SAR throws up first.

[jamtastic]

No point, it's got nothing to do with them. Besides they've got a couple of rain forests to destroy yet. ;)Wait & see what the SAR throws up first.

 

Okay, is there a link you could post to the SAR procedure?

 

What if Lowell start court proceedings in the meantime?

[jamtastic]

Ig nore that last request Ive just realised its linked in my post LOL!

 

I am really worried about getting a CCJ applied against me though if I dont contact Lowell at all they might go down this route mightnt they?

[cerberusalert]

if I dont contact Lowell at all they might go down this route mightnt they?

They are still at the threats stage.

[Jasper1965]

I am really worried about getting a CCJ applied against me though if I dont contact Lowell at all they might go down this route mightnt they?

 

 

A creditor has six years from the 'cause of action' to commence proceedings.

 

The cause of action here was your failure to repay the original loan. This failure was recognised firstly by issuing a default notice then subsequent termination of the loan account. (I'm assuming this happened but you've yet to clarify this).

Let's assume that the DN and termiination were done lawfully.

 

Under what arrangement were you making repayments on the loan in the interim? Was it an informal arrangement or a contracted arrangement eg a DMP?

 

I suggest that if the account was actually terminated and the repayments were to a debt collection arm of the OC rather than straightforward loan repayments to the loan account then more than six years have elapsed since the cause of action arose it could be strongly argued that it is too late for proceedings to be commenced.

 

I know this conflicts to a degree with the SB advice we often read here but all litigation requires a cause of action and it is from that date the clock starts ticking if no further contractual agreement is entered into.

Making token payments under the original agreement keeps the clock active, making payments after termination to any party could be done either with or without a formal agreement. If the former then I suggest that a new contractual obligation has been formed and it is highly arguable that any Court action should be based upon the breach of this second agreement NOT the original agreement in instances where more than six years have elapsed since the cause of action.

 

If you did not sign a formal agreement to repay the loan post default I think any application for a CCJ should be strongly rebuffed by an application for strikeout on the grounds that the action was not commenced within six years of the cause of action (an absolute defence).

 

This is another reason why you need that SAR in asap.

 

Was the agreement defaulted?

Was the agreement terminated?

Under what circumstances did you make those repayments?

Did any agreement exist post default eg formal letter offering £x pm

 

 

I won a case against a DCA two years ago by pointing out that the cause of action for their litigation had occured in 1999 and since the account had been terminated at that time, and no other formal agreement had been entered into by the involved parties, it was not possible for them to invoke litigation despite my having paid off a large percentage of the balance in the interim.

 

Just because a DCA kindly opens an account for you with themself does not neccesarily invoke any contractual rights. If you default on a debt then it is in the OC's best interests to get you to agree to something in writing to ensure estoppel in the case of default upon the repayment plan.

A telephone agreement to pay £x pm is not provable in Court, if you can prove termination of the original agreement then in the absence of any other agreement they have six years in which to commence proceedings, failure to start proceedings in that period can be fatal to their case if brought to the defence.

 

Judge "Under which agreement exactly are you bringing these proceedings?"

DCA "The agreement the defendant signed with XXX in 1995, the defendant defaulted in 1999 and the account was terminated and sold for collection in 2000"

Judge "Did the defendant enter into any other formal agreement with the creditor or the DCA between 2000 and today? (2008)"

DCA "The defendant agreed to repay the balance at £x pm sir."

Judge "Do you have a copy of this agreement between yourselves and the defendant I note it has not been entered into the bundle despite the defendant explicitly requesting it?"

Sir "The agreement was made on the telephone sir, the defendant was not required to enter a written contractual agreement with my client"

Judge "This is why I asked for clarification of which agreement we were here to seek enforcement under. As you are aware the original agreement was terminated some eight years ago and no enforcement was ever sought during the relevant statutory period. You appear confused over what exactly you seek enforcement of. The original agreement cannot be enforced since it is barred by the statute of limitations being as it is 8 years since a cause of action arose. The only other agreement which I can establish is a verbal agreement between yourselves and the defendant, such agreement cannot possibly be enforceable under the CCA 1974, I therefore find in favour of the defendant. It is ordered that the claim be struck out!!"

 

 

Just one example out of many ways in which to prevent a CCJ.

 

My moneys on their being something wrong in the CCA/Default/Termination paperwork tbh.

[jamtastic]

A creditor has six years from the 'cause of action' to commence proceedings.

 

The cause of action here was your failure to repay the original loan. This failure was recognised firstly by issuing a default notice then subsequent termination of the loan account. (I'm assuming this happened but you've yet to clarify this).

Let's assume that the DN and termiination were done lawfully.

 

Under what arrangement were you making repayments on the loan in the interim? Was it an informal arrangement or a contracted arrangement eg a DMP?

 

I suggest that if the account was actually terminated and the repayments were to a debt collection arm of the OC rather than straightforward loan repayments to the loan account then more than six years have elapsed since the cause of action arose it could be strongly argued that it is too late for proceedings to be commenced.

 

I know this conflicts to a degree with the SB advice we often read here but all litigation requires a cause of action and it is from that date the clock starts ticking if no further contractual agreement is entered into.

Making token payments under the original agreement keeps the clock active, making payments after termination to any party could be done either with or without a formal agreement. If the former then I suggest that a new contractual obligation has been formed and it is highly arguable that any Court action should be based upon the breach of this second agreement NOT the original agreement in instances where more than six years have elapsed since the cause of action.

 

If you did not sign a formal agreement to repay the loan post default I think any application for a CCJ should be strongly rebuffed by an application for strikeout on the grounds that the action was not commenced within six years of the cause of action (an absolute defence).

 

This is another reason why you need that SAR in asap.

 

Was the agreement defaulted?

Was the agreement terminated?

Under what circumstances did you make those repayments?

Did any agreement exist post default eg formal letter offering £x pm

 

 

I won a case against a DCA two years ago by pointing out that the cause of action for their litigation had occured in 1999 and since the account had been terminated at that time, and no other formal agreement had been entered into by the involved parties, it was not possible for them to invoke litigation despite my having paid off a large percentage of the balance in the interim.

 

Just because a DCA kindly opens an account for you with themself does not neccesarily invoke any contractual rights. If you default on a debt then it is in the OC's best interests to get you to agree to something in writing to ensure estoppel in the case of default upon the repayment plan.

A telephone agreement to pay £x pm is not provable in Court, if you can prove termination of the original agreement then in the absence of any other agreement they have six years in which to commence proceedings, failure to start proceedings in that period can be fatal to their case if brought to the defence.

 

Judge "Under which agreement exactly are you bringing these proceedings?"

DCA "The agreement the defendant signed with XXX in 1995, the defendant defaulted in 1999 and the account was terminated and sold for collection in 2000"

Judge "Did the defendant enter into any other formal agreement with the creditor or the DCA between 2000 and today? (2008)"

DCA "The defendant agreed to repay the balance at £x pm sir."

Judge "Do you have a copy of this agreement between yourselves and the defendant I note it has not been entered into the bundle despite the defendant explicitly requesting it?"

Sir "The agreement was made on the telephone sir, the defendant was not required to enter a written contractual agreement with my client"

Judge "This is why I asked for clarification of which agreement we were here to seek enforcement under. As you are aware the original agreement was terminated some eight years ago and no enforcement was ever sought during the relevant statutory period. You appear confused over what exactly you seek enforcement of. The original agreement cannot be enforced since it is barred by the statute of limitations being as it is 8 years since a cause of action arose. The only other agreement which I can establish is a verbal agreement between yourselves and the defendant, such agreement cannot possibly be enforceable under the CCA 1974, I therefore find in favour of the defendant. It is ordered that the claim be struck out!!"

 

 

Just one example out of many ways in which to prevent a CCJ.

 

My moneys on their being something wrong in the CCA/Default/Termination paperwork tbh.

 

Jeewhiz thank you! Sorry to write and run but I've got to go out of the office now but I will reply properly as soon as I get back just wanted to say thank you very much for posting!

[jamtastic]

Hi again Jasper, I'm still trying to get my head round what you've written (its one of those days!)

 

I took out the loan in January 2003

 

The default was put on my account on 27th April 2004 (I checked my Experian report)

 

It has now disappeared off my credit report so the account is no longer showing on there

 

I went into a DMP with Payplan in 2004 possibly or maybe 2005 I'm not too sure to be honest but can try and find paperwork to confirm

 

The last payment I made to it was on the 7th January 2009 which was through Payplan

 

Sainsburys Bank sent me a statement of my account last year and possibly another one before that saying that by law they have had to do it since 2008. I will get the paperwork when I get home to check.

 

Lowell Financial bought the debt last year it could possibly have been September 2009, I havnt made any payments to them, the last thing I sent was a CAA in March and they sent me my CAA which looks enforceable last week.

 

Hope that helps a bit, I'll be able to read your post more carefully when Im at home as works too manic to be able to concentrate!

 

Thanks again and if I need to post anymore info let me know!

[jamtastic]

Was the agreement defaulted?

 

Yes April 27th 2004

 

Was the agreement terminated?

 

Yes but not sure how I'd find out when?

 

Under what circumstances did you make those repayments?

 

Through a DMP with Payplan

 

Did any agreement exist post default eg formal letter offering £x pm

 

This may have been sent by Payplan it would have been to Sainsburys Bank though not Lowell as Lowell have only gotten involved since last year

[jamtastic]

The total debt on the CAA was originally about £11,000 and now stands at £5,840 something so I have paid off a lot of it - just not sure what to do now as I only have two more defaults (accounts satisfied) to come off my account by October 2011 and if Lowell apply and get a CCJ it will mess me up for another 6 years which is what is scaring me as Id like to be able to get a mortgage in my thirties as have spent the whole of my twenties with a messed up credit rating (am now 28)

Have paid off about £10,000 of my debts altogether that I accrued and this is the only one left (well apart from a Citifinance one for £700 that Im being chased for which isnt even mine which is a whole other story!!!)