What is enforceability?

[Guest HeftyHippo]

I have several agreements where my understanding of enforceability is less than perfect.

 

The agreement copy of one is legible only with difficulty, and on one part the first line or two is missing. I think that makes it unenforceable as it is not legible? What section of which/the Act do I quote to explain it is unenforceable?

 

I have another where the layout of the Agreement was not as specified in the Regulations dealing with agreements (CCA (Agreements) Regulations 1983) and a prescribed clause was missing. I think that makes it unenforceable, and again, what is the relevant legislation to quote?

 

I have one where they have admitted not being "able to find" my agreement (although they were able to reconstruct one... lol), and another where I suspect they can't find it, though getting an admission is proving a challenge. Again, what do I quote to tell them they cannot enforce it?

 

Now, I know the fact that an agreement is not enforceable does not mean the debt has vanished, but what can they do now to pursue them? Can they still engage the services of a DCA when the agreement has parts missing/doesn't comply (ie does the DPA allow them to)? If they don't have an agreement at all, or a legible copy, can they still use a DCA?

 

In all cases, can they still make entries on my credit file?

 

After months of getting the facts, I'm now hopefully in a position to tell them something that'll hurt them, so the quicker I get these facts the better!

 

I expect they'll be arguments from them about the fact that they can do this and that and can still enforce it, and I still have to pay etc, but that won't worry me once I have the facts.

[MARTIN3030]

We had some contact with the FOS on this one.

Their take on it is that a creditor can still call in collection / recovery even if no CCA has been supplied.In fact they suggested that borrowers continue with any repayment agreements if they can afford to do so even while awaiting CCA disclosure from lenders or their agents.

 

Of course DCAs cannot legally force payment without a Court order.

 

The ICO published some technical guidance on credit reporting/defaults etc-is worth a read.I have it here somewhere-but should be easy to find.

 

 

http://www.ico.gov.uk/upload/documents/library/data_protection/detailed_specialist_guides/default_tgn_version_v3%20%20doc.pdf

 

 

If you believe that the CRAs or any one updating your file,is doing so adversly or incorrectly,then they are legally obliged to correct ammend or remove.

Nothing to stop you filing a complaint if you feel its justified-but read up a little first.

Edited June 3, 2010 by MARTIN3030
link

[Pinky69]

The Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983

states that all agreements and copies of agreements must be "easily read."

 

No agreement is simply that - no evidence that there is any agreement between you and the creditor. You cannot enforce an agreement that doen't exist.

 

The missing prescribed term is the legislation you quoted in your post.

 

They can pursue the debts even if they cannot be enforced but of course if you decide not to pay them there is nothing they can do about it.

 

They can make entries on your credit reports and these must be both lawful and accurate. Where there is no agreement, that is a straightforward argument for having the entry removed - the ICO would support that. You might have more difficulty getting defaults removed with the illegibilty and the missing prescribed terms. The route to take in those cases in my view would be the inaccuracy. You do not have to acknowledge the debts but your argument would be that the statements show the entries as unprovable/inaccurate. In that case they would have to prove that the payment they were asking for is accurate and I doubt that can be done in most cases. I now have experience of the CRAs and ICO and the accuracy route is the one they cannot deny.

[Guest HeftyHippo]

Thanks guys

although I'm keen to give these **** some of the aggro they've given me, I have to get it right.

 

The booklet linked by Martin says this in one part (the most relevant and easily understood)

Accuracy of a lender’s default records

 

39 Records

 

Any default record should be accurate. We normally expect a lender to

keep records that are necessary to show an agreement exists and to

support filing a default. We would also expect a lender to be able to

produce evidence to justify a default record they had placed on a credit

reference file. Not having any supporting records may indicate a breach

of the data protection principle requiring personal data to be adequate,

relevant and not excessive for the purpose for which it is processed. A

record that a notice of an intention to file a default was sent, if not a copy

of the notice itself, will help lenders to comply with this requirement.

I've bolded the bit of interest. Is this what you mean abut accurate info Pinky? (I agree with your definition btw - if there is no agreement, you can't be in default, therefore there shouldn't be any record that you are in default.)

 

In those cases where they can't supply a CCA:

I should make the point above to the creditor, that there is no documentation to support a default has occurred (I can't default on an agreement that doesn't exist) and ask for the default or any other adverse comments to be removed from my Credit File?

 

If they argue, the ICO may support a complaint (eventually.... they dealing with cases as old as last August at the moment). Without supporting evidence, the default cannot be proved and the information recorded on my file may be inaccurate contrary to the DPA?

 

Should I also ask the CRAs at the same time, or should I wait to see if the creditor refuses? (which they probably will)

 

In the cases where the agreement is illegible

I can argue that a valid agreement as required by the CCA does not exist quoting"The Consumer quoting Credit (Cancellation Notices and Copies of Documents) Regulations 1983" and that without a evidence of a compliant agreement, then can't be any default (as above), and also, make a claim that the default may be inaccurate or unprovable because the document alleged to support the default is illegible.

 

As above, the ICO may support a complaint on the basis of lack of supporting documents to verify the accuracy?

 

In the case where the 'agreement' doesn't satisfy the "Agreements Regulations 1983"

Pretty much the same as case 2) - there is no agreement in law (CCA1974) therefore it couldn't have been broken, so no default exists. (Although this may be harder than the above)

 

Now, enforcement activities.

Can they can ask a DCA to chase me when they don't have an agreement? Doesn't the agreement also give consent to process my data? If so, without one they don't have my consent.

 

The same argument could be made about an illegible or non-compliant agreement - that the agreement isn't valid and therefore no consent for data processing exists, though I know this would be very difficult argument

 

Court action

There is a bit in the CCA is it s127 about a court not being able to enforce an agreement. Does that apply here?

 

Are there any circumstances where any of these creditors could win in court (assuming they don't produce another legible or otherwise compliant copy of the agreements). I know they could try, and the defence would depend on what their 'evidence' is, but could they realistically win? (realistically, I know on the day you could get some judge who is high on ecstasy and who hasn't read the case and who has a hooker waiting in his chambers and so dispenses judgement according to his whim, but lets ignore that chance for now)

[Pinky69]

1) Where there is no agreement, there is no authorisation to process your data, for any reason

 

2)Accuracy is the default being accurate in so far as the entry is factually correct. Where a default sum or any other information cannot be proved ie statements are wrong or don't prove the default balance entered is correct, then the default should be removed ie no evidence to support the default entry.

 

3)I am using a 3 pronged attack - the DCA, the CRAs and the ICO (after the DCA and CRAs have refused to remove the entry. You have to go into this with all barrels blazing

 

4) The agreement being illegible isn't an argument against them making default entries - that just makes it unenforceable. You need to argue about them not having legible evidence eg statements, or statements being inaccurate, to get the defaults removed.

 

5) The agreement not complying with the 1983 regulations also won't affect default entries.

 

6) If there is no agreement, the creditor cannot assign the alleged account to a DCA - they should not be processing your data

 

7) You would put an illegible agreement in dispute in that they have to provide you with a copy of a legible agreement. If they cannot do that, then once the account is in dispute they cannot assign it to a DCA - it is against OFT guidelines. They also cannot enforce an illegible agreement ie you don't have to pay them and there is nothing they can do about it

 

They cannot take action where no agreement exists or where an agreement is illegible. Neither of these is enforceable in court.

Edited June 3, 2010 by Pinky69

[harrassed senior]

Some great information there Pinky, many thanks.

[Guest HeftyHippo]

Some great information there Pinky, many thanks.

 

yeah, I now have to go lie down after reading it then come back and try to make sense! lol

[Guest HeftyHippo]

thanks a lot Pinky, but bear with me I thought I understood before, obviously not!

 

1 if no agreement, they cannot enforce it, cannot sell it to anyone, cannot engage a DCA, cannot enter a default on my Credit File?

 

2 accuracy of default.... if there is no agreement, or statements are incorrect, they cannot mark a default on my credit file?

 

3 only 3 prongs? Lead me to it, the more blazing barrels the better. I have no shortage

 

4 illegible agreement? just imagine you had a completely illegible document that the bank claimed was an agreement..... sensibly, you would say if it wasn't legible, you couldn't prove there was an agreement.... so they shouldn't make a default? My agreement isn't quite that bad, but it is obvious there are bits missing, so its not enforceable (I would argue). Could it not be argued that its therefore invalid in terms of the CCA, and therefore, if invalid, should be treated as if not existing? (bit of stretch but the logic is straight forward)

 

5 so any old legible bit of wallpaper with my signature on it allows them to mark a default on my credit file? again, if there is a void agreement, should that not be considered as non-existing

 

6 same as 1

 

7 the illegible agreement was 'sold' by the MBNA to Experto Credite who have gone very quiet (probably get a letter tomorrow! lol) Experto have variably claimed to be acting on behalf of Valdo something, and also MBNA. MBNA have stated from their senior manager that the account was sold to Experto. It would appear it shouldn't have been sold at all, but i didn't get the agreement until after the sale. Am I right is saying that Experto cannot now sell the debt even back to MBNA?

 

7A - what about where the agreement is flawed? could that be enforced in court? you know the one (its the biggest and Fredrickson is sniffing around). Funnily enough, although defaulted (correctly) they haven't terminated it, maybe because they know the agreement doesn't comply?

 

 

So, starters. For the non existing accounts, should I simply explain that as they don't have an agreement, they can't process my data, and should cease doing so, get rid of DCAs, and clean my credit file? Or do I need a s10 DPA notice on the grounds that the info is inaccurate or being done without my permission? Do I tackle the CRA at the same time?

 

 

I also have a couple of other accounts that were repudiated by the creditor (usual thing, fault DNs). How do I go about breaking the news to them and getting the credit file amended to reflect the arrears that were owing (what they are entitled to collect) rather than the full balance they are claiming?

 

If anyone has seen any letters that I could crib, please let me know, because of ill-health, it takes me hours to type a letter so anything I could cut and paste and amend would save me a lot of time and pain.

[Pinky69]

You need to differentiate between no agreement at all, where they cannot process your data, and an agreement which for some reason could not be enforced in court. An unenforceable agreement doesn't mean a debt never existed or that you didn't default on it. The ICO's guidelines state that a default reflects a breakdown in the relationship between creditor and debtor and defaults can be entered after the debtor falls into arrears. An illegible and partial agreement cannot be enforced but you can default on them and these defaults can be entered on your credit reports. That is why in these cases you must go for inaccuracy to get defaults removed - the entries are for some reason not factually correct. The ICO isn't interested in the effects of unlawful rescission and takes the view that that is a matter for the courts, which they are right - it is - the ICO cannot make a decision on whether an agreement was unlawfully rescinded. The 3 prongs I spoke of are the creditor/DCA, the CRAs and the ICO. If that fails then you may have to go to court to get the defaults removed.

[Guest HeftyHippo]

thanks Pinky

not as good a position as it could have been. still the accuracy route is still useful for the repudated accounts as the full balance being listed as the default is incorrect. once I've convinced them that did repudiate that is

[Guest HeftyHippo]

In the post today came a letter from the bank I suspected of not having a complete agreement - just a couple of pages. They have confirmed the SAR response supplying those 2 pages was complete and they don't have the rest of the agreement.

 

Funny, they managed to send me a reconstructed CCA. I wonder what bits they 'imagined' when they didn't have the original to crib from?

 

No matter, it confirms what I suspected so now I have to check what they did send to ascertain if it might be enforceable.

[Pinky69]

Hi - I received your message. It's better to keep everything on the forum so everyone can read the posts and perhaps it will help others too. Your queries were about Terms and Conditions and Rights to Cancel. If you signed the agreement at home you have a right to cancel and it should say so on the agreement. Terms and Conditions are part of the agreement and should be in the same 4 corners as the signature box ie there should be a clear link between the T&Cs and the section with the signature box. If there isn't, there is no proof that the Terms and Conditions pertain to the agreement. If Terms and Conditions are not relevant and there is no Right to Cancel on the agreement document then only a judge could decide whether the agreement was enforceable or not. It is highly unlikely that court action would be taken where there are no Terms and Conditions.

[Guest HeftyHippo]

normally I agree Pinky, but there were some things in the PM I ddin't want public, and it satrted out as a Pm to update you out of courtesy, then my sleep deprived fogged brain rambled on... sorry about that!

Edited June 9, 2010 by HeftyHippo

[UnmoderatetheNet]

What is enforceability?

 

Something that means absolutely nothing to a DCA:cool:

[DontPushMe]

Hi Pinky,

 

just looking at your post 12. You say that if the agreement is signed at home then the agreement can be cancelled. Can this cancellation right be removed by the OC? I've seen a couple of posts where the phrase 'You do not have the right to cancel this agreement under the CCA 1974 or the Timeshare Act 1992... '

 

TIA

 

DPM

[Pinky69]

The Right to Cancel is laid down in law - no one can change it.

[Et Contra Pacem Regis]

Normally, you have a cancellation right if there were "antecedent negotiations" (i.e. you talked to or corresponded with someone about the agreement before entering into it). There are two principle exceptions:

(1) where the agreement was signed on trade premises (because it was felt that consumers would be more on their guard on trade premises) and (2) where the agreement is to be secured on real property (e.g. your house), because there is a system of pre-contract information and a cooling off period before you ever enter into the agreement.

 

After 31st May 2005, amendments to the Consumer Credit (Agreements) Regulations 1983, Schedule 1, make it a requirement for creditors to state that there was no cancellation right (if there was no cancellation right), which is why it appears on some agreements.

[loring]

Sorry to barge into your thread, I have a simple question in relation to a

Credit Card Application form I would wish to query. A box on the application form states :

"Once you have signed this agreement you will for a short time have the right to cancel it. Details of how and when you can do this will be sent to you in the post by the bank".

Is this a valid way of expressing the right to cancel, it gives no indication how long the period might be and I dont know if they did actually advise me by post.

I am looking to see of this application form would be unenforceable. It is goes back to 1998 and the OC has sent me a copy of the terms and conditions which applied at the time (he says).

Hope you can advise.

[Et Contra Pacem Regis]

It's the wording required by the regulations.

[DontPushMe]

Hi Pinky69 and ECPR, so if I have a post 31st May 2005 agreement, spoke with somebody prior to receiving the agreement for signing, then received the pre-contract information AND the agreement in the post at the same time with no advice about a cooling off period, the latter document for signing and returning AND both documents include the clause 'You do not have the right to cancel under the CCA 1974 or the Financial Services (Distance Marketing) Regulations 2004 unless we tell you otherwise in writing' then this is acceptable, i.e. I do not have the right to cancel.

 

TIA

 

DPM

[Pinky69]

Well if it says no right to cancel on the agreements, that's any question you had answered.

[DontPushMe]

Well if it says no right to cancel on the agreements, that's any question you had answered.

 

Sorry Pinky, in your earleir response, post 16 http://www.consumeractiongroup.co.uk/forum/show-post/post-3003929.html

 

you say that 'The right to cancel is laid down in law - nobody can change it'. But your comment above seems to say that it can be changed by amending the contract. Sorry if I've misunderstoood your post - I'm a bit CAGged up!

 

TIA

 

DPM

[Pinky69]

No one can change the law. If you feel that the information on your right to cancel is wrong on your agreement then you have to take it up with the creditor.

[Et Contra Pacem Regis]

Is the agreement secured?

[DontPushMe]

Not sure, ECPR. The OC has yet to supply Ts & Cs. It's a fixed Sum Loan Agreement under CCA 1974.

 

HTH

 

DPM