Link Financial response from my CCA request

[BlueEarner]

Hi there,

 

I sent a CCA request to Link financial on my pay plan DMP back in December 2013.

 

Their first response received last week - three months later! Though, I live abroad and it takes a good month for mail to arrive.

 

Their letter was dated 25 Feb. It does not quote anywhere how much I owe them, nor does it make mention of my CCA request.

 

It simply states that I have missed payments, and the repayment plan has been cancelled (i.e., off of the payplan DMP)

 

They ask me if there has been a change in my personal circumstances, and then threaten that they will recover the debt

 

"if needed, pursue you through your local county court"

 

Next steps, anyone?

 

Thanks!

[DonkeyB]

Did you stop repayments on the plan? If so, why?

[BlueEarner]

Yes I did. I thought after 14 days fo the CCA request, the debt become unenforceable?

 

I instructed payplan to take them off two months later (and told them why). Pay plan didnt bat an eyelid, no questions.

 

I can put them back on again if need be, if they show the CCA.

[DonkeyB]

It’s a fallacy (and a bugbear). Failure to fulfil a s78 request is no reason to stop payment. There is nothing in the law or CCA that suggests you can.

 

It may be unenforceable in a court in the meantime, but what’s that got to do with it?

 

If they choose to take you to court, and then manage to fulfil the CCA request

– and if it is enforceable

– it would not look good in front of a judge that you stopped paying when you’d been happily paying for a long period (and a DMP is a form of repayment agreement).

 

And you’d probably only incur further costs, or struggle to get back up to date with payments.

 

Remember all those companies that promised to have your debts written off?

Yeah, them... same arguments.

Where are they now?

Closed down by the MoJ.

 

In fact, I have very rarely heard of any creditor satisfying a s78 request within 12 days!

 

Now, if what you are saying is that you’d like not to pay them because you don’t think they can enforce through the courts as they don’t have an agreement

– that’s a different matter.

 

To repeat – failure to fulfil a CCA request is not a valid legal reason to stop paying an agreed amount.

It doesn’t mean you can’t stop paying

– you can do that any time,

but accept the consequences, if any.

 

It depends totally on your individual circumstances and the history of the account,

such as whether there are unfair charges,

whether you have been treated unfairly,

or where there is a valid dispute regarding the amount due.

[fkofilee]

Now Now Donkey B Play nice...

Hi BlueE

 

I would like to think here that you have made a mistake however, its easily rectified...

Could we have some more info on the debt... IE Original Creditor, Amount etc.

 

Because you live abroad , itll be dealt with slightly differently.

Which country do you live in?

[DonkeyB]

Now Now Donkey B Play nice...

Hi BlueE

 

I would like to think here that you have made a mistake however, its easily rectified...

Could we have some more info on the debt... IE Original Creditor, Amount etc.

 

Because you live abroad , itll be dealt with slightly differently.

Which country do you live in?

 

What do you mean, play nice?

 

It’s straightforward advice – the OP has made a potentially serious error.

 

A debt management agreement has been breached for no valid reason, as far as we can see.

 

But more info is needed

– I made absolutely clear that the individual circumstances are crucial.

 

My point was that too many people still think that no 12 day response to a s78 CCA request = no need to pay.

 

A bit of background reading would show that the OP has done the same with other accounts in the DM bundle.

[fkofilee]

Donkey, I as kidding ,

I know what you were getting at.

 

I agree here, I would say that the OP has gone about it the wrong way

[BlueEarner]

Hi thanks for the reply. Yes it's straight forward advice - that's what I prefer!

Whilst I may be well versed in having debt, I am not well versed in legal matters concerning.

 

I thought that I was following a well trodden path, documented on this forum. That is, by challenging certain debt collectors who have taken on a debt albeit in thy wrong way.

 

Fkofilee, I live in SE Asia.

 

So if I understand correctly, what is being said here is that I should continue my DMP regardless that none of the 5 creditors I wrote to have produced what I asked for (template CCA letter used from here)?

 

Interestingly, I informed PAYPLAN about this and hey said nothing, gave no advice.

 

Other creditors are on my DMP and I am simply paying the same monthly figure I always have (according to my I&E), so what I have done hasn't reduced my payments in anyway.

[DonkeyB]

Now you’re getting it!

 

All I’m trying to do is stop you walking blindly into trouble.

 

Some of the threads you may have read are old and misguided

– and things do change over time, with new judgments and new understandings forming out of them.

 

At the time things were written, the advice may have been sound.

 

Also, some bits from the distant past get regurgitated as current fact.

For example, you still get the odd lunatic Freeman post on here...

 

It may be better if you had a thread dedicated to your whole ‘portfolio’.

I imagine many of your accounts will have unfair charges on them, for example.

 

My main point is that you need a genuine and valid reason not to pay

– if you reclaim charges and your claim is denied or ignored,

then you are in a position of some strength and could fairly withhold payment.

 

Again, if there is a long-term failure to comply with a s78 request,

then you can write and allege that the creditor clearly has no proper knowledge of the account,

and demand full proof of ownership/assignment etc.

If that is not forthcoming, then you have a reason to withhold payment.

 

Do you receive regular statements of account, as required by law? Is interest still being added?

 

How long do you intend to live in SE Asia?

Is it a permanent move?

 

There are lots of legitimate ways to skin a greedy fat cat,

especially if they are taking money off you that you don’t owe,

or are adding charges and interest that they are not entitled to.

 

As for Payplan... well, yeah. You could probably manage it better yourself.

[BlueEarner]

Hi DonkeyB,

 

Ironic that my siblings call me 'Mule'

 

I'll try to answer some of the points you raised:

 

Most of my creditors send me annual statements only - BOS, CL Finance (Lewis), Rossendales (now SLC), Metropolitan Services (lloyds), Link financial.

 

Lewis/CL Finance told me they hold no copy of the CCA, but are asking the original lender.

 

So, what you are advising then is to keep the CCA'd creditors on the DMP regardless of no reply? How long is a "long-term faliure" of an s78 request? Its only been 4 months so far.

 

You are not the fiirst to shun payplan, and recommend doing it myself. While this may be the case, they do help with one main point: as they pool the creditors together, and allow me to pay by one monthly transaction, online, with my debit card. This card is from my local account overseas where I work. By doing it this way I avoid horrible 'international transfer' fees. I think if I dealt with all the creditors myself from the other side of the world, it may be a logistical nightmare. Payplan make it easier in that sense.

 

As for how long Im here...nothing is certain! I dont plan to move back to the uk just yet though. I took my debts with me, and all my creditors have my address here (im not the running type)...hence carrying on feeding the hole!

 

Lastly, you mention charges on accounts. I am not aware of any. How would I find out? Im pretty sure all interest is frozen, apart from the SLC one.

 

Many thanks thus far.

[renegadeimp]

If they dont have the cca right now, drop your payment to £1 a month until they produce it. If after a few months they havent produced it stop payments altogether. If they try chasing you, you can ignore or send the cca in default letter. That way youre covered and minimise the chance of potential court action.

 

Besides, if they know you live in se asia, I hope they have a good lawyer and enough money to chase and enforce the debt over there.

[fletch70]

Here is another point of view

DonkeyB is correct to say that not fulfilling a S78 request does not put the account in dispute.

 

However the purpose of a CCA request is an information request to establish your liability.

 

Therefore it is perfectly reasonable to stop payments if they have failed to comply as you are totally unable to decide if the debt is actually yours and if you are liable for it.

 

I would be writing back to link saying that the reason I had stopped paying was their failure to comply with your lawful S78 request .

 

You do need to remember just what is classed as enforcement, they can keep demanding money,

they can even issue proceedings but non compliance is an absolute defence

 

As for dropping to £1 a month, the only thing that will do is keep the debt live for ever, it will not stop action .

 

The only time I would ever advise dropping to £1 per month is when that is all you can afford on an enforceable debt

as should the account go to court it will not make a jot of difference.

[DonkeyB]

However the purpose of a CCA request is an information request to establish your liability.

 

Yup, I agree.

 

In the Carey v HSBC case, HHJ Waksman made it clear that the underlying purpose of s78 and the CCA request is for information, to give the debtor the details of what they need to know about their contract. The ‘liability’ issue is a bit more complex.

 

Enforceability is a different issue, but being in default of a valid CCA request is a total defence to any claim – but only until such a breach is rectified.

 

Therefore it is perfectly reasonable to stop payments if they have failed to comply as you are totally unable to decide if the debt is actually yours and if you are liable for it. I would be writing back to link saying that the reason I had stopped paying was their failure to comply with your lawful S78 request.

 

This, however, I would take issue with.

 

The only legal sanction in the Consumer Credit Act is that legal enforcement is not possible.

 

Until there is something like an improperly executed agreement, there is no recourse to s127 for example

– s78 has no sanctions for failing to respond within 12 days.

 

Nowhere does it state you can stop paying just because the 12 days is up.

So why is it reasonable?

What’s the legal basis?

 

The OC knows the debts are his – why pretend otherwise?

 

A s78 request only provides information, not proof of ownership which comes under the LoP Act.

Down such a route lies a p*ssed-off judge!

[fletch70]

In reality of course S127 will only come into play for older agreements as we know. Yes you are right in that there are no sanctions for non compliance except not being able to enforce however as it's for info , without it how can the OP assess his position as to any liability . If I wrote to you saying that you owed me money would you ask for proof.

 

I know what you are saying about the OP knowing he owes it but mistakes do happen, as for a ****ed off judge, if its small claims, what will he do, give you a good spanking? There are no financial penalties for stooping paying

[DonkeyB]

In reality of course S127 will only come into play for older agreements as we know. Yes you are right in that there are no sanctions for non compliance except not being able to enforce however as it's for info , without it how can the OP assess his position as to any liability . If I wrote to you saying that you owed me money would you ask for proof.

 

I know what you are saying about the OP knowing he owes it but mistakes do happen, as for a ****ed off judge, if its small claims, what will he do, give you a good spanking? There are no financial penalties for stooping paying

 

But this is like looking for loopholes not to pay.

 

And if I’d received an NoA for an account I knew perfectly well I owed money on, I’d be obliged to take it at face value. Your comments make perfect sense where the debtor has no idea what the account is for, but in this particular situation the OP knows what the accounts are about. My issue is with whether or not an instant failure to fulfil a s78 request can be legitimately – or sensibly – responded to with a refusal to pay. My view is that it can’t, because there’s nothing in the statute pointing that way. Sadly.

 

Yes, mistakes happen, but some people treat s78 requests as though a failure to respond renders the account invalid or invisible. What you get from a s78 request, together with the data from your own statements or via an SAR, can often provide the basis for challenging the amount you are alleged to owe.

 

No, there are no financial penalties for not paying – unless there’s a clause in the T&Cs – but a judge would simply take it into consideration when assessing the behaviour of the defendant and awarding costs (assuming they jump through all the hoops eventually and provide a valid agreement). And, as I’m sure you know, it’s also a fallacy to say there are no costs in small claims, so a debtor’s behaviour could open them up to a financial risk there.

 

Hopefully we can all agree that we need to get people away from the mantra that ‘no CCA = no pay’. Carey and a few other cases crystallised this. Most of the time it’s an unwise move not to continue with an agreed payment, though there are a few exceptions – as mentioned, dependant upon individual circumstances – where withholding payment could be viewed as reasonable.

 

As an aside, I also wish more people would start using CPR as soon as a creditor threatens legal action. Once the threat is there, you can use it – all part of the overriding objective, and something that usually puts the creditor back a few steps.

[theoldrouge]

totally agree with the cpr comment, as soon as a creditor says we will issue on such and such a date (lba),then use it

[fletch70]

Yes I also agree with the use of CPR once anything that could be a legitimate LBA drops on your doormat.

 

Sadly some of the "wisemen" on here will say ignore them.

 

I know that it can be difficult to tell sometimes but if it mentions letter of claim, LBA or CPR then treat it as such.

 

Donkey, to an extent I do agree, there is no point in stopping at the 3 week mark (14 working days , lets call it 3 weeks) .

 

I think the longest I waited for a S78 request was 18 months however that was a pile of tosh .

 

I did stop paying early on but that was because I couldn't pay ( I had been paying up until that point)

 

In my experience if it takes them more than about 3 months to get back to you all is not well , although that is only my experience and not a rule

[DonkeyB]

Bang on,

 

I agree with that – a total failure to respond to a CCA request (one which has proof of delivery)

would be an example where it might be considered reasonable to withhold payment,

especially where no response at all had been forthcoming (eg. we’re still looking for it) and fair warning given,

or there was some form of other dispute that the provision of the CCA could help resolve.

It used to be a an offence not to comply with a CCA request,

but that has all been dropped.

Yet it still appears in some templated letters!

 

The problem lies with the ‘casual’ debtor who comes to these forums through Google,

sees something that seems to lead to not paying and sounds authoritative,

and goes with the ‘advice’.

 

Very few of us on here have any legal qualifications,

so we’re all just absorbing the case law and reflecting it.

It’s a bit of a minefield.

A little law is a dangerous thing.

 

I much prefer it when the OC gives the full story up front.

The advice can then be so much better, and accurate, and tailored, rather than ‘catch all’.

 

‘Mule’, do you have threads for any of your individual accounts? There may be issues you don’t even now about yet...

[BlueEarner]

I posted earlier, on other threads but tbh I couldn't find the right specific threads to post on, hence going on this general one.

Paying £1 would be awkward anyway- I don't think Payplan would do that as they insist all creditors get a fair share. So sending individual £1 payments from overseas would cost me much more!

 

It seems from the advice given here that I put the 5 creditors in question back on the DMP and regular payments, and then after a more 'reasonable' length of time (1year?) I warn them that I will stop payments as no proof has been received .

 

Though as you assumed correctly , I don't dispute the debts as they are from loans and credit cards mostly, some of which have been taken over by the lovely people at link, Lowell's, etc.

 

And yes the 'no CCA = no pay' is misleading then...

[renegadeimp]

If a dca holds the account then you nred to find out why.

 

If you are abroad in se asia and the creditor knows it then theres little they can do apart from sending random begging letters.

[fletch70]

Can I just check

 

You sent CCA requests to all your creditors and to date non have replied?

 

You have had a letter from Link saying why have you stopped paying?

 

Have you had replies from any others?

 

Personally i would let link know that you are with holding payments until such a time as they do comply

 

If the others have not complied with your request I would be thinking of stopping you DMP now but put the money to one side so that should a valid cca appear you can catch up with payments

[BlueEarner]

Yes only Blair Oliver Scott have not responded specifically about the CCA. I've just had a letter from them to say they haven't received payment.

Link and Lowell have responded by saying along the lines of 'we don't hold one and are currently asking the original dept/creditor who dealt with it'

 

Other creditors on my DMP I haven't sent CCAs to, as they are bank account debts.

 

So you are suggesting holding off payments but also contacting them to declare I am not paying because of no CCA ?

 

Other advice on here suggests to keep paying regardless.

 

For my monthly outgoing payment, the amount would stay the same, only the other creditors on the DMP would get more of the share. I suppose in theory the debts would be cleared sooner, though....

[DonkeyB]

Here’s one possible approach.

 

Just act reasonably. Create a situation that you can FAIRLY react to.

 

If you are being ignored – eg, Blair OS (ie. Bank of Scotland in-house), which must still be with the original creditor – then I would definitely put the account into dispute as they have not complied and have ignored your request, and give them a month’s notice that if they continue to fail to respond and supply the CCA, then you intend to withhold payment until such time as they comply. Then you have been very fair. When was this account opened? I ask because accounts opened pre-2000 are often substandard on the CCA front.

 

Personally, if a debt owner/buyer says they are looking for the CCA, I would keep paying. But tactically you might want to write and let them know they remain in default, and raise a dispute, and state that if the CCA is not received within a month, you intend to withhold payment. A month is plenty of time for them to respond once warned.

 

But, as you say, state that you are ONLY withholding repayment until such time as they comply with your valid statutory request, which is a fair and reasonable action. By doing it that way, you can also directly suggest that their failure to respond has created an unfair relationship – which is a different approach. That’s what I mean by ‘more than one way to skin a fat greedy cat’.

 

These small steps will make all the difference in regard to your perceived behaviour should any of your creditors ever get shirty or take legal action. This is a very different approach to simply stopping paying when no CCA shows up – you are being fair because you have complained, and clearly stated your intentions.

 

CYA!

 

The problem with withholding payment when in a DMP is that the money still gets allocated to someone. To catch up if they find the CCAs, and they are valid, you would need to find extra funds.

 

The call is yours – if you are talking about a few quid here and there which you can manage, then the cost of the letters and postage etc may outweigh any benefit.

 

But, if something interesting comes up, or you find there is no valid CCA for a particular account, then you will have other significant options, such as offering a paltry full and final settlement (in the knowledge they cannot enforce). As mentioned so many times, that’s why understanding the whole picture is so important.

[renegadeimp]

Why would you pay a DCA or debt buyer if theyre looking for the CCA? They should have the CCA before they even start chasing you.

[DonkeyB]

Why would you pay a DCA or debt buyer if theyre looking for the CCA? They should have the CCA before they even start chasing you.

 

Can you tell me the legal basis on which you would withhold payment?