Unenforceable agreements under the Consumer Credit Act

[Bigdebtor]

Pretty sure they're bluffing - and Barclaycard probably didn't get all the required paperwork from MS. If not already done I would now send the 2nd Account in Dispute letter and tell them they are now breaking the law.

 

BTW if you are in any way approaching 6 years since last payment it is important NOT to pay anything to avoid screwing up any imminent SB opportunity.

 

Good luck.

 

BD

[kissylou81]

Thank you BD fror your response no where near 6 years only since june this year.

 

There doesn't seem no where specific to go that gives all the right information

[Bigdebtor]

I agree. You just have to choose some current threads which seem relevant and trawl through them to see how others have fared - and pick up snippets of law along the way.

 

The templates are good for putting the creditors through their paces - and I think a lot of the DCA's then turn their attention to others not so well read or supported - like all bullies they focus on the weakest.

 

I have pasted relevant templates and other posts into word documents filed under the creditor which makes it easier to retrieve and edit into replies to them.

 

BD

[roythedog1]

There has been lots of discussion on this topic. If you request a copy of the credit agreement under the CCA, the lender has 12 working days to supply a copy. After 12 working days the agreement is unenforceable without a court order until the agreement is produced. After 30 days, if the agreement has not been produced the lender has committed an offence under the Consumer Credit Act.

When you send a request for a copy you must send £1 (the statutory fee). A letter to send is as follows.

 

Dear Sir/Madam

 

 

ACCOUNT NUMBER: 50879182

Dear Sir

I do not acknowledge ANY debt to your company. You have now failed to supply me with a copy of the original signed agreement for the alleged “debt” you are trying to enforce. This request was sent on 18/08/2006 together with the statutory fee of £1.00.

 

I have given you more than enough time to supply the original signed agreement and you have now exceeded the allowed time. By not supplying the documentation I believe you have now committed a criminal act under the legislation contained within section 77 (1) and section 78 (1) of the Consumer Credit Act 1974.

 

You are reminded that you were obliged to supply these documents, whether you are the original creditor or not, under section 189 of the CCA 1974.

 

As you are aware, a credit agreement that is not properly documented and signed by the customer is totally unenforceable under the CCA and therefore is a complete defence to any court claim that is issued.

 

I will therefore no longer be making payments against this "debt" as it is unenforceable. I now consider the matter closed and no further correspondence regarding payment will be entered into. If you persist on pursuing payment you will have left me no choice but to report this matter to Trading Standards

 

 

 

Yours Faithfully,

 

 

Hi have recently joined forum and was interested to find out what constitutes a legal CCA re credit cards. I sent off a request to Halifax re an agreement - asking for a signed copy and they send me out a copy of an agreement with my details and their details typed at the top (both unsigned) all the t's and c's and payment info, along with a signed letter by them saying that was all they needed to supply under section 78 of the CCA. In other words, no actual signed agreement is required, just a signed statement/letter - is that correct??

[captain2]

Hi All - anyone heard of debt addiction ?

 

This is apparently a recognised condition.

 

Given the banking code of not giving credit to those who cant afford it -there may be a case for reckless or irresponsible lending where a creditor should clearly have looked at a debtor with say £80k worth of high interest unsecured debt before giving any more -

 

If the argument is that the CRA file showed good compliance then it may be because like a Bernard Madoff Ponzi scheme in reverse the payments are possibly being funded by an upward spiral of increasing debt. Does anyone in here have any such knowledge of arguments advanced under that guise?

 

If so what was the result ? To succeed in this it may be necessary to get a consultants letter and confirmation ?

 

Cheers !

[Poor-Credit Borrower]

Hi all - post by captain 2 seems helpful.

 

I have something quick to add/ask. Have been with a "debt elimination/reduction" company since April 2009. They may be better than a traditional debt management co, but say they charge 25% for any debt that is written off and 25% (I think) for any debt that is actually paid to the creditor. They challenge the original debt in the same way as has been posted, by demanding the original signed agreement first.

 

But, having a look at Alexifa's original post, this is the sort of letter I could have used MYSELF to the creditors without going through a (rather expensive) agency? Or maybe they have more legal clout? Anyway, I have already made at least 8 payments of £112 a month (the most I can really afford), so to jump ship from them at this stage might not make financial sense? Must say that direct correspondence to me from creditors has come right down now. But my local branch of Welcome Finance are still making calls/leaving messages.

 

Cheers for any feedback!

[coconuts]

Dear Forums users, there seems to be some great advise on here however I cannot find an answer to my question, but apologies in advance if this has already be covered.

 

I have applied to MBNA for an executed copy of my credit agreement and thank fully unlike a number of you they responded fairly promptly to me and have sent it to me now. The confusing thing is that there are no signatures, only tick boxes where the signatures should be - I beleive it was an online application, what happens in this case?

 

Thanks in advance for your help,

 

Graham.

[Bigdebtor]

Hi all - post by captain 2 seems helpful.

 

I have something quick to add/ask. Have been with a "debt elimination/reduction" company since April 2009. They may be better than a traditional debt management co, but say they charge 25% for any debt that is written off and 25% (I think) for any debt that is actually paid to the creditor. They challenge the original debt in the same way as has been posted, by demanding the original signed agreement first.

 

But, having a look at Alexifa's original post, this is the sort of letter I could have used MYSELF to the creditors without going through a (rather expensive) agency? Or maybe they have more legal clout? Anyway, I have already made at least 8 payments of £112 a month (the most I can really afford), so to jump ship from them at this stage might not make financial sense? Must say that direct correspondence to me from creditors has come right down now. But my local branch of Welcome Finance are still making calls/leaving messages.

 

Cheers for any feedback!

 

Dear Poor

 

I really think you are not getting good value from this company. Why not ring each creditor directly and ask if they will accept the same payment direct from you via Standing order or regular payment by e.g. paypoint (FOC to you) - DON't do Direct Debit! - saving you the 25%.

 

However you should enure YOU get any CCA info - not just this 25% leach! Anything this lot can do you can do yourself with the help of CAG for £0.

 

Hope this helps - if so tip my scales.

 

BD

[the_shadow]

Dear Forums users, there seems to be some great advise on here however I cannot find an answer to my question, but apologies in advance if this has already be covered.

 

I have applied to MBNA for an executed copy of my credit agreement and thank fully unlike a number of you they responded fairly promptly to me and have sent it to me now. The confusing thing is that there are no signatures, only tick boxes where the signatures should be - I beleive it was an online application, what happens in this case?

 

Thanks in advance for your help,

 

Graham.

 

If its post December 2004 then a tickbox is all that is required to confirm your signature, they must also show the prescribed terms tho.

 

Pre December 2004 a signed agreement is required to back up the online application.

 

S.

[Poor-Credit Borrower]

Hi Graham (aka coconuts), I agree basically with the_shadow - if it was an online application in which the only signature is an electronic one, then evidence of the fact that you have signed your name electronically by typing your name in the designated box is all that is necessary (if post December 2004).

[Poor-Credit Borrower]

Dear Poor

 

I really think you are not getting good value from this company. Why not ring each creditor directly and ask if they will accept the same payment direct from you via Standing order or regular payment by e.g. paypoint (FOC to you) - DON't do Direct Debit! - saving you the 25%.

 

However you should enure YOU get any CCA info - not just this 25% leach! Anything this lot can do you can do yourself with the help of CAG for £0.

 

Hope this helps - if so tip my scales.

 

BD

 

I have actually recently made a £10 donation to the CAG. Many thanks for your advice which I'm sure makes sense. However, I have already been with this this CMC (claims management company) since April so have paid 8 lots of £112 already. Obviously I won't get that back now, but I was wondering if I would be 'contracted' to pass on any further percentage of debt written off to them even if I say I'm not using the CMC any more. At least with future payments to creditors, this leach will (hopefully) not take 25% of them.

 

What further complicates the matter is that I have used them to claim PPI too (or a solicitors' firm through them), and because nearly all of the PPI was used up in paying the debt arrears to Egg I didn't personally have the 30% they were charging as a management fee, so have had to increase my Standing Order by £20 and pay that until I have settled the £500 or so with them!

 

D.

Edited January 8, 2010 by Poor-Credit Borrower
typo sorry

[captain2]

Anyone know how much the Manchester judgements have impacted on the enforceability issues - my claims adviser seems to think its reduced the debtors position quite substantially - but as I see it if the CCA '74 says a signed agreement is required to enforce with the prescribed terms then I cant see how the courts can avoid that ? Even if the courts allowed quasi reconstituted agreements to be submitted where an agreement has been lost i still cant see how that negates the signature and prescribed terms argument. Any comments ? And can a reconstituted agreement be used in court to enforce an agreement or is that just to satisfy a section 78 request ?

[prophetdealer]

Hello

 

The recent high court decisions in Manchester have greatly reduced the amount of succesful claims that will be brought on a s78 non compliance basis.

 

In the past if you made a s78 request and they are yet to reply (I would warn you that the original request should have been made to there registered office) this has the effect of unenforceability. I would refer you to the recent high court decision in McGuffick which allows creditors during the period of unenforceability to chase debtors for payment. My suggestion would be to continue payments as your credit reference file will (if not already be adversely affected). The recent Mancester decisions have reinforced the decision in McGuffick so my opinion would be to make payments until a higher Court states otherwise.

 

However there is some light at the end of the tunnel. The recent decisions within the Manchester cases have now placed stringent rules on the meaning within 'embodied' in s61 which is a very valid argument in that it is no longer the opinion of the Court that the document should be contained within 'one document' Carey v HSBC (within the manchester decisions) has stated that this would be down to form rather than content. This would be something that I would physically have to see.

 

Additionally, should the creditor simply supply an application form they have no obligation to supply a document with your signature as they can legaly be ommitted under the Consumer Credit (Cancellationa and Regulations Notices) so do not be fooled into thinking that because there is NO signature it is non complaint as you are wrong.

 

Conniff v Barclays has stated that should a creditor supply only updated terms and conditions and not those related to the original application this WILL be non compliant.

 

I will be happy to help those in this type of situation should you wish to message me. As I would have to see specificlaly what they have given you it may be 'reconstituted' which is absolutely fine.

 

If you have an questions concerning the above, EDIT post on the wall.

 

PD

Edited January 9, 2010 by caro
Ensuring advice is kept on open forum and not by PM

[prophetdealer]

Your original s78 request still stands. You need to write to Moorcroft and point out that you made a request to Barclaycard for a copy of the agreement as is your statutory right under the Consumer Credit Act, Barclaycard have failed to respond. While they are in breach of S78 they are not entitled to enforce the debt and passing the debt to a collecting agent and threatening litigation is a very clear breach. You could also point out that should they issue court proceedings you have grounds for defence as Barclaycard are in breach of S78(6) (I think that is the right one PM me and remind me and I will check the CCA on Monday or google it) and S127(3) does not allow the court to make a judgment unless a copy of the credit agreement exists, signed by the debtor and creditor bearing the prescribed terms as laid out in S61.

 

In regards to the above advise, Moorcroft are entitled to ENFORCE the debt against the debtor even in the period of non compliance. I refer you to the High Court decision in McGuffick which essentially states that refrring to a debt collection agency, contacting the debtor is NOT enforcement.

 

Unenforceability under s78 does not make the debt the YOU owe void. It is essentially a type of payment holiday and the moment that they produce a copy (inline with the Manchester decisions) the agreement WILL be enforceable and all interest accrued you will either have to pay back or enter into some type of settlement.

[prophetdealer]

Hi All,

Sorry if this has been put in wrongly but I have some on who is very very worried about this agreement and I have looked at it and think its wrong but would like some one to confirm this.

sorry tried to load but could not so here goes and if its not right then soory,

Hire Purchase Agreement cc act 1974.

Details of Hire(?) these are the finance companies

Deatails of the customer These are his but the surname is worngly set out.

Goods:

Amount of credit £6083.00

Duration of agreement 30 (nothing else) 30 what?

Repayment £381.01

APR 47%

one payment of £250.00 payable followed by 29 months at £318.01

Cash price £9000.

IPT Goods £250.00

Vat free goods £33.

Total Cash price (T) £9283.00

Deposit paid £3200.00

Advance £6083.00

Interest (X) £3457.30

Documentation fee (Y) £250.00

Option to purchase fee (Z) £5.00

X+y+z = tOTAL CHARGE FOR CREDIT © £3712.30

T+C Total amount payable £12995.30

 

Some of the figures do not add up and the company is under a different name.

any help would be very gratefully accepted.

 

I believe that this may be related to Southern Pacific Personal Loans v Walker.EDIT

Edited January 9, 2010 by caro
Remove request for PM

[prophetdealer]

Anyone know how much the Manchester judgements have impacted on the enforceability issues - my claims adviser seems to think its reduced the debtors position quite substantially - but as I see it if the CCA '74 says a signed agreement is required to enforce with the prescribed terms then I cant see how the courts can avoid that ? Even if the courts allowed quasi reconstituted agreements to be submitted where an agreement has been lost i still cant see how that negates the signature and prescribed terms argument. Any comments ? And can a reconstituted agreement be used in court to enforce an agreement or is that just to satisfy a section 78 request ?

 

 

Yes, a reconstituted agreement can be used to enforce an agreement. (Manchester Decision affirms this position)

[captain2]

Hi PD this is in s78 situations only ? I hope it does it apply to enforecability in court where under the CCA 74 a signed agrement with the prescribed terms must exist and presumably be produced as 'proof' of existence ? Do you have legal training in this area ?

Any opinions would be appreciated - Capt.

[captain2]

Sorry missed a word out - hope it does 'Not' apply in court .....

[captain2]

Also if a reconstituted agreement is used in court where the creditor does not possess the original what happens where the debtor has a copy but which lacks the prescribed terms or maybe is signed by debtor but not by creditor - thus indicating it is 'the agreement' as opposed to the reconstituted version -

 

Put another way - where an agreement is lost /missing the court can now substitute one except where the debtor already has a signed agreement in his possession but which may be defective - I presume the debtor signed version takes precedence ?

[prophetdealer]

Hi PD this is in s78 situations only ? I hope it does it apply to enforecability in court where under the CCA 74 a signed agrement with the prescribed terms must exist and presumably be produced as 'proof' of existence ? Do you have legal training in this area ?

Any opinions would be appreciated - Capt.

 

 

Conniff v Barclays (High Court) the prescribed terms must be there in order for it to be enforceable. They can produce a reconstituted version from what was in the original (strange I know) but this is the current psoition. In all honesty without seeing what they produced I can give my opinion.

 

The reconstituted version will take precedent, but would need to see it.

[Scrapper]

Don;t know if I'm missing something, but prophetdealer just seems to have appeared from nowhere offering advice and has no threads of their own.

 

I smell a rat in the kitchen trying to mislead and misdirect.

 

I'll so sorry now if I'm wrong, but seems strange to me

 

??????????????

 

Scrapper Coco

[prophetdealer]

Don;t know if I'm missing something, but prophetdealer just seems to have appeared from nowhere offering advice and has no threads of their own.

 

I smell a rat in the kitchen trying to mislead and misdirect.

 

I'll so sorry now if I'm wrong, but seems strange to me

 

??????????????

 

Scrapper Coco

 

I do apologise if I have no threads of my own. I can assure you I am not misleading in any way. In fact I would put you to strict proof to your allegations. I have referred to the current legal position and rely on the current position regarding the High Court decisions in McGuffick and the recent Manchester decisions. It is my opinion that in light of these decisions the Court has tightened its belt on what would be classified as non compliant under the legislation. However has left rom for movement due to Carey v HSBC and Conniff v Barclays Bank

[Scrapper]

As I said I'll say sorry, just wary of caggers who appear from nowhere give advice and disappear

[Josie8]

Yes, a reconstituted agreement can be used to enforce an agreement. (Manchester Decision affirms this position)

 

Only as heresay evidence with sufficient proof which has always been the position - the judgment has not altered that position. In practice a copy of the signed original agreement will still be required though some LIPs may not be able to argue that point adequately

[Josie8]

Conniff v Barclays (High Court) the prescribed terms must be there in order for it to be enforceable. They can produce a reconstituted version from what was in the original (strange I know) but this is the current psoition. In all honesty without seeing what they produced I can give my opinion.

 

The reconstituted version will take precedent, but would need to see it.

 

This is extremely misleading. Reconstitution applies to s. 78 only. Onlybsight of the original agreement normally would be able to provide confirmation that the prescribed terms were contained and signed by debtor. Anything else is hearsay evidence

 

 

Though I would assume your advice is what the creditors would like to be the case for obvious reasons