Action plan needed.

[Flashgdn]

I have a Dmp with payplan that is going ok, and have posted here before but am not sure about my next steps. I am ok with the repayments, but the default notices are causing my wife problems and will be hanging over me for some time.

 

So what i would like to do is find out whether the debts are enforceable, and if not, am i right in thinking that i can get the default notices removed?

 

Problem is, in some ways i don't want to rock the boat as none of my creditors are giving me a hard time at the moment.

 

I've read some of the threads on here, but can anyone give me some direct advice on the best way to proceed?

 

My total debt is around £50k across 5 accounts... All old credit cards and an egg loan.

 

Thanks

[Jonny_J]

I would send them all a CCA request each. It will cost you £1 for each one, and the template for the letter is on this site. If they can't comply, the debt is unenforceable, but it doesn't go away. It just meant that hey can't enforce it in court.

 

If any of them can't comply, you can with hold payment to them until they do, and this should give you time to plan your next course of action without the stress of constant harassment.

[Amy100]

Technically, the argument that you can withold payment would not stand up in a court of law, but the DCA's haven't cottoned on to that yet.

 

CCA request is definitely the way to start, once they come back, post up again and we can either look at agreements for you, or point you towards the prescribed terms that must, by law, be within the agreement.

[dx100uk]

however

that wont get the defaults removed.

 

if these 'were' your debts, then there is very very little hope of getting any

correctly reported record of how you managed the accounts removed

 

only poss would be a f&f with a condition of data removal attached if they accept.

 

sorry

 

dx

[Amy100]

Alternatively, have a look at the date on which the accounts were first defaulted, then see how long it took them to apply the actual default and ensure that any DN is valid. These arguments can be quite powerful when used with the new legislation re defaults in getting them removed.

[firstship]

By all means pursue the CCA route,it will not however get any of the DNs removed or very unlikely.Should any OCs or DCAs be unable to produce an original agreement with the prescribed terms and do not produce a Reconstituted Agreement,then you are in a position to challenge the account.The CCA route does not hold the advantages that it did 2/3 years ago,and the lack of an agreement or Recon Agreement can be challenged,read the "PriorityOne" thread on the subject,its a good thread and there is a template letter as well.

 

I think your priority is to go for 0% interest from all of your creditors if you are not there already.Also reclaim of charges if Credit Card debts or Loans and PPI if applicable.

 

A DMP is a pain but the best way forward,,I wish you all the best.

 

Regards FS

[Amy100]

I disagree firstship. A CCA request is still a very powerful tool. It is not as powerful as it was pre April 07, but it still carries a lot of weight, and prohibits the creditor enforcing through the courts in its absence. To a large extent, this places the ball firmly in the debtors court. I have used this, backed with a CFS time and time again with huge success for my clients.

[firstship]

Amy100,it is interesting that you consider CCA 1974 s77/78/79 in conjunction with a CFS, currently, a powerful tool.You, I guess hold a CFS licence?

 

I am really interested in your comments and how the lack of the original agreement and CFS work to the debtors advantage,as I have a number of debts and they are also under a DMP.

2 of the debts the OC is currently unable to supply the original agreement,do you suggest I stop payment?

 

Would you be good enough to reply by PM as I do not wish to High-jack this thread

 

Regards FS

[Amy100]

Hi FS,

 

Best if you start a new public thread with your difficulties. I am not a fan of anything being done 'behind the scenes.'

 

If you start a new thread, I'd be glad to help if I can.

[firstship]

Amy,Thanks for your reply I have already got threads running for each creditor/dca ,in some cases started 3 years ago and still active, and over the years have obtained a reasonable knowledge of how the system works,it is your comment regarding CCA and CFS that has me interested,and how you find success,

 

thanks FS

[Amy100]

Hi FS,

 

Sorry, as you can see I'm fairly new to this site. If you either post or pm me links to the threads where the OC hasn't been able to supply a valid CCA agreement, I'll willingly take a look at them. I assume if I read them start to finish I'll get a pretty comprehensive picture - if not, perhaps you could jot down main points as well please.

 

In short though, an inability to fulfil a CCA request does not mean there is no agreement - it's surprising how often they resurface later. Legally, this alone is not sufficient cause to place an account in default, though thankfully the DCA's have yet to twig on to this. It is though a perfectly good reason to make a token payment until they can comply with your request.

 

It is impossible to comment on individual cases without all the details, but broadly speaking, if the CFS is showing hardship, then the lack of a CCA can be enough to get payments reduced to a token, hopefully your DMP provider will have got interest frozen and charges stopped as a matter of course, a CPUTR request can help if they've sent a reconstituted agreement. If the CFS shows it is unlikely that the debt is going to be repaid within a reasonable timescale, I have been fairly successful in getting them written off entirely on the grounds of current unenforceability on their part and a lack of ability to pay which is unlikely to change on my clients' part.

 

As I say it is impossible to give detailed advice without knowing all details of your own particular circumstances, but a DMP will not get a default removed either. What a lot of DMP providers don't do is see if they can get the debt written off and marked as settled on a CRF for their client. Often this is possible.

[firstship]

Amy thanks for your reply,I understand the points you are making and are very valid in many circumstances.

 

I am going to Bookmark your reply and I will come back to you,am going out in 10 minutes

 

thanks again FS

[firstship]

Amy Hi please read my thread "Firstship v Halifax",rather a long thread but the nuts and bolts CCAd Halifax 3 years ago,put them in dispute 2 weeks after no reply, 8 months after SAR they confirmed they did not have an agreement,have not paid any money since November 2008,they have bounced the debt around numerous DCAs and sold it recently to 1st credit,who I have told the account was sold whilst in dispute,and asked them to provide an agreement to which we know the answer,1st Credit have stated they will contact Halifax,not heard anything back sice

 

Regards FS

[firstship]

Amy Hi please read my thread "Firstship v Halifax",rather a long thread but the nuts and bolts CCAd Halifax 3 years ago,put them in dispute 2 weeks after no reply, 8 months after SAR they confirmed they did not have an agreement,have not paid any money since November 2008,they have bounced the debt around numerous DCAs and sold it recently to 1st credit,who I have told the account was sold whilst in dispute,and asked them to provide an agreement to which we know the answer,1st Credit have stated they will contact Halifax,not heard anything back sice

 

Regards FS

[Amy100]

Hi FS,

I'll have a read of that thread tomorrow and hopefully put a comment on it for you.

 

Re your above comment, contrary to popular belief it is not illegal to sell an account while in dispute. The OFT frown on it as not being good practice, but admit there is little they can do about it if it is sold (typical!!!!) Make sure you always refer to your debt or account as an alleged account which you do not acknowledge and they have not been able to prove. Every time you hint that you have the debt they will argue you have set the 6 year SB clock ticking all over again.

 

Sorry not to get to that thread tonight, but too tired to plough through a big post - if I forget, pm me and I'll go straight there tomorrow.

[The Ghost]

Amy is right. The CFS is a very powerful tool when used correctly. The problem is that bigger organisations have such a huge workload to get through, it is not always possible for them to give the personal touch a smaller organisation may be able to offer.

[Flashgdn]

ok. CCA's first seems a sensible step. A template was mentioned in one of the posts... am I being stupid because I can't find a link? Can someone point me in the right direction?My only concern is that in some ways I don't want to rock the boat. Like I said, the DMP is going ok, it's just the associated 'bad press' which is painful. Is there a risk that by going down the CCA route that the creditors will react badly assuming I am going to try and wriggle out of ANY debt on a technicality? (I guess I just want to lose the stigma of the defaults on my credit file)

[dx100uk]

in the library green tab top left?

 

dx

[The Ghost]

Everything has an element of risk, and in a DMP either side can change their mind at any time anyway, and it is not uncommon for the creditor to do so. However, my view would be that you have every right to ask for what you are asking for. If they do start playing up, then if any IE would back up what you are paying currently, you just continue paying what you are. What can they do?

[Flashgdn]

Dx100uk: Thanks!

Ghost: fair point. Not as if they can make it much worse!

I'll post any developments as i go along, for other people to benefit from.

[The Ghost]

Good thinking matey - go for it!

[Flashgdn]

Ok, its been a little while. Here's an update. If anyone has any thoughts on what I do next, please post - any advice gratefully received!

 

CCA's sent 1/11/11 - all were signed for on 2/11/11 and its now 18/11/11 and none of the creditors have actually sent a signed agreement;

 

Apex - Egg Loan. £16,887. They wrote on 3/11/11 to acknowledge my letter and they confirmed that request is being processed and account is on hold pending fulfillment. I haven't heard anything since.

 

M&S - M&S Card. £5376. No response.

 

Egg Prudential - Egg Card. £9724. Account now with Barclaycard. Letter received from Barclaycard dated 16/11/11 saying they are dealing with my request and will reply as soon as possible.

 

HBOS - Marbles Card. £7483. Have sent me a copy of my 'current executed agreement' and they have requested a copy of the original signed application form. This is confusing - Surely an 'executed agreement' has to be signed by me? I'm not sure I have ever seen this 8 page document before. No sign yet of the original signed application form.

 

Equidebt - MBNA Card. £9672. They wrote to me on 7/11 saying they have requested a copy of the credit agreement and will respond in due course. No further response to date.

 

Any recommendations for my next steps?

What should I do if they can't send me copies of the agreements?

What are the prescribed terms I looking for to verify the legality of these agreements when/if I received them?

What are the implications for the creditors if the agreements are flawed?

 

nb: I'm not looking to have these accounts totally written off on a technicality (I did borrow the money after all!) but I would like to see if there is any way I can negotiate a sensible settlement - and get rid of the default notices that will be hanging over me for the next few years at least. So I need to understand what my legal position is - Obviously I am in a much stronger position if any of these accounts are not enforeceable.

 

Thanks in advance for any advice!

[Flashgdn]

just thought I'd bump this thread in case there was someone who would be willing to share some expert knowledge on this subject?

 

Cheers

[dx100uk]

as in post 4

other than reclaiming fees/ppi

 

there is no magic bullet anymore

 

 

dx

[Flashgdn]

Thanks DX - not looking for a magic bullet as such, just something to reduce the impact.

None of my creditors have produced anything with my signature on, only 2 have actually replied, so I think I may be able to argue that all the agreements are unenforceable.

Obviously the debts, at least in part, still exist, but if my understanding is correct, they will struggle to force me to repay if I choose to be difficult.I am thinking of going to them with a proposal along the lines of:

1. The agreements do not contain the prescribed terms and as such are at best unenforceable, and possibly illegitimate.

2. I believe I can dispute the legitimacy of the agreements and therefore the validity of any default notice relating to the agreements.

3. However, I am happy to continue payments under my DMP for the next (say) 10 years, and can sign an agreement to that effect but only on the condition that they remove the default notices.

What do you think? I'm trying to get a win-win. This way they get some (or all) of the cash eventually, despite their inadequate documentation, and I get a clean record. Do you think they'll go for it? Any pitfalls?

Edited December 5, 2011 by Flashgdn