Why would a DCA not enforce an enforceable agreement?

[Desperate Daniella]

Hi all,

 

I'm posting this on behalf of a friend who has no internet access.

 

She has been receiving letters for about three years from a well-known debt buyer whom she doesn't want me to name. She's very nervous about anything being on the forum.

 

She took out a credit card in the 80s and could not afford to pay when her circumstances changed several years ago. First she got letters from the bank, and then they sold it on in 2010.

 

She has only just told me about this.

 

Apparently the debt buyer has written to her many times and they have sent a microfiche copy of one side of her application on many occasions too.

 

It's headed 'Credit Agreement regulated by the Consumer Credit Act 1974 and appears to have the prescribed terms.

They have also sent the back of another agreement from around the same time.

It's clearly not the back of the application form.

 

At one point the debt buyer passed the account on to their nastier debt collection department but it's now gone back to the main office.

 

Obviously she's been very worried about this.

 

Can any of you think why they are not enforcing?

 

Could it be because they only have a microfiche?

 

Thank you.

 

DD

[fkofilee]

Hi DD

 

Ideally we would need to know more... But i can understand the secrecy...

IT could be a variety of reasons. Would you beable to tell us the amount its for at least?

 

I just want to make sure she wont be served a SD for her troubles.

[renegadeimp]

When was the last date of payment/written acknowledgement?

[Desperate Daniella]

Thank you for your replies.

 

The last payment was about five years ago, nowhere near six, but I don't know the exact date.

 

Apparently she has never acknowledged it, just repeatedly asked for a copy of the agreement and told them that a microfiche copy isn't good enough.

 

I've searched but I can't find anything definitive about microfiche copies.

 

When I first found CAG I think there was a lot of talk about microfiche copies and I remember someone saying she'd seen off countless DCAs but I can't remember who it was.

 

It started at about £9,000 but they've added another £5,000 in charges/interest since they bought it.

[dx100uk]

is the account terminated by the OC?

 

if so they cant add anything!

 

if the OC has sold it

theres def something wrong somewhere.

 

SAR time?

 

dx

[Desperate Daniella]

As it's been sold I assume it must have been terminated? The debt collector is saying they bought it.

 

I suppose she could send a SAR. That would go to the OC, wouldn't it?

 

As you know, I've looked at hundreds (??thousands??) of agreements, but this is very old and I can't find another one like it on CAG or anywhere else.

 

I've just remembered that she did say they'd offered her 30% off at some point, either as a F&F or on "attractive terms" though not offering now.

 

Is there anything she can say about the amounts they have added?

 

They seem to me to be fairly relaxed about it. Is this because they keep adding huge amounts of money and think she will have to pay eventually?

 

They write and say respond with 21 days and if she doesn't they send a perfectly polite reminder. This has been going on for ages. Is it because they are not confident about the agreement?

 

It's all very confusing.

 

But as you say, if the OC sold it there must be something wrong with it. It's got the Prescribed Term, so what else could be wrong with it?

[mjt2013]

if the OC has sold it

theres def something wrong somewhere.

 

Why? There's a whole industry of debt purchasers who buy debts, enforceable and not, that the OC doesn't consider worthwhile chasing. That doesn't necessarily mean that the OC would have had problems enforcing the debt itself.

[Desperate Daniella]

I've just looked at another thread about microfiche copies and it says that the creditor must have the original document to enforce.

 

Obviously they don't have the original document. And the original creditor no longer has it either.

 

Could this be why they aren't pushing?

[fletch70]

Hi DD

Lots of reasons, has you friend got the means or the assets to repay is one of them?

Sale to a debt purchaser as you know means bugger all .

My guess is that with it being so old they will not have all the right paperwork and the OC will not or will not care, they have sold it , why would they want to dig in the dungeon for the original

 

In this case it definitely will be 6 years from last payment, can't see any whys or wherefores on that one.

 

I know the rules changed on accounts from pre 1985 not sure if that is relevant

[Desperate Daniella]

Hi fletch,

 

I think a lot of banks destroyed the originals when they decided to store on microfiche. I'm sure I've read that somewhere on here.

 

She has a house, but no cash. Bit like me.

 

I think it's late 80s. Will check.

 

Do you think if the original no longer exists and therefore cannot be produced this is what is stopping them?

[fletch70]

More than likely. Did she do the CCA request and get everything back? Again T&C's from that time may be difficult to get.

 

If it was an application form I am pretty certain that it will not be compliant .

 

My suggestion is to let sleeping dogs lie .

 

If they are in Leeds do not worry as i have a nuclear warhead aimed at Leeds although it would put someone I know out of a job...she earns lots of money from gettimg set asides

[Desperate Daniella]

The CCA request resulted in the T&Cs from the time and current and this application form which has got the Prescribed Terms. The only thing I can think of is that it's a microfiche and they don't actually have the original to enforce.

 

It's not the Leeds Losers unfortunately. They are quite easy to see off.

[fletch70]

Who knows why they do these things. As I am sure you will tell her she needs to be prepared for them to ramp up the heat as the time nears towards SB.

 

I am not sure if I can add anything to what you already know or think

[Desperate Daniella]

Thanks. If you do see anything about microfiche copies please let me know.

 

I'm sure I saw something a couple of years ago about this particular shower and trying it on with a microfiche but of course now I can't find it!

[citizenB]

DD, is there any PPI that could be reclaimed. She could make a claim for the charges. Almost certainly I would do a Subject Access Request to the original creditor - if it were to go any further then at least she would have some information.

[Desperate Daniella]

Hi CB,

 

I'll ask about the charges, PPI, etc.,

BUT having got the measuring tape out I think it is a very good cut and paste.

 

I'm usually good at spotting those, but this one is very clever.

 

It's just a millimetre out between the parallel lines at one point.

 

The layout just didn't make sense - application questions, prescribed terms, cancellation rights, etc., all muddled up.

 

I'll tell her to write and say that it's obviously been put together.

 

DDx

[Peterbard]

Hi CB,

 

I'll ask about the charges, PPI, etc., BUT having got the measuring tape out I think it is a very good cut and paste. I'm usually good at spotting those, but this one is very clever. It's just a millimetre out between the parallel lines at one point. The layout just didn't make sense - application questions, prescribed terms, cancellation rights, etc., all muddled up.

 

I'll tell her to write and say that it's obviously been put together.

 

DDx

 

You do know that they do not have to send an actual copy of your agreement in order to comply with the section 78 request I take it. The "layout" is irrelevant.

[Desperate Daniella]

Yes, of course I know that. I don't know if she asked for it under 78. If she did I'll tell her to ask again and stress that the request is not made under S78. That always works for me.

[Peterbard]

Yes, of course I know that. I don't know if she asked for it under 78. If she did I'll tell her to ask again and stress that the request is not made under S78. That always works for me.

 

I see, perhaps a SAR and state that she requires a copy of any agreement

[Desperate Daniella]

I think she'll have to do a SAR. The DCA's latest letter gives her 21 days to answer and I've told her to be in no hurry to reply.

 

I have to say this has made me look at my own agreements for the first time in ages and there are certainly one or two which don't specify anything about how long you get before they default.

 

One good thing I found was that even though I don't have a DN for one account I noticed from one of the last statements they sent that my account had been cancelled and they wanted a minimum payment of the whole balance outstanding, and it's a couple of months before I actually thought it could be SB.