The 12 DAY rule (CCA 1974)

[diskmandave]

When after default of 12 days under CCA 1974...???!

 

The debtor writes to company or DCA stating what???

 

I'm asking this for the newer users here!!!

 

Is the debt unenforceable after 12 working days or 12 days???

Or is it unenforcable after the criminal offence has been commited?

I've just had a letter back from Lowell Financial Ltd stating that it

is 28 days!!!

 

 

Best Regards - Dave.

[diskmandave]

Is the debt unenforceable after default (12 days), or after the

criminal offence has been commited....??? (28/30 days)

 

Can Mod/s jump in here...?

 

Best Regards - Dave.

[jimfishybob]

12 Working days = Unenforcable

 

1 FURTHER calender month = Offence committed

[Laiste]

I have to disagree with Jimfishybob.

 

12 working days means the creditor is in default, it does not render the debt unenforceable.

 

1 calender month means they have committed a criminal offence.

 

The debt is still enforceable if at some point they produce the credit agreement. It will not be enforced for the period of time that the agreement hasn't been produced. So for example if it takes them 6mnths to provide it, for that period they cannot claim the monies owed.

 

It is however wholly incorrect to believe that if they do not furnish the documents within the requisite timescale that the debt cannot be enforced, it can. Also, the creditor does not need to seek the permission of the Court to commence proceedings, if they don't comply with the timescale. They would start legal action in the usual way.

 

No agreement, or an illegible one would render the debt unenforceable. No signature by the creditor will in all likelihood have the same effect also.

 

Regards,

 

Laiste.

[tifo]

The debt is still enforceable if at some point they produce the credit agreement.

 

It is however wholly incorrect to believe that if they do not furnish the documents within the requisite timescale that the debt cannot be enforced, it can. Also, the creditor does not need to seek the permission of the Court to commence proceedings

 

I understand this as the debt only being enforceable by court order after 12 working days + 1 calendar month, and the DCA would then have to explain why the committed the criminal offence.

 

But, there is a thread where is was discussed whether a judge would actually look at the DCA's criminal offence as his/her remit would be the debt and not the offence. This then makes the CCA request totally useless and maybe the DCA's know this?

 

There has been no definitive answer on this but extracts from the CCA 1974 show that it is un-enforceable but then i don't know if a case has been tested at court.

[Laiste]

Hi Tifo,

 

It was me you had the conversation with in the other thread, regarding the Judge's remit being only the debt in the civil Court.

 

If I understand your comment correctly, the creditor does not need to obtain the permission of the Court to start legal action if he has failed to comply with the 12 working days and 1 mnth rule. Ultimately it is for the Judge to determine whether a debt is enforceable or not, but by not producing documents in the timescale of itself, will not absolve a person of their liability.

 

Where does it state in the CCA 1974 that the debt is unenforceable? If we are still talking about CCA requests, production of an agreement that conforms to the requirements of the Act is enforceable. Under the circumstances I detailed in the last paragraph of my last post would the agreement not be enforced. That was not an exhaustive list but you get the idea.

 

The definitive answer is that the debt can be enforced even if they fail to provide the documents in the timescale, provided the contract is correct regarding form and content.

 

Laiste.

[tifo]

hi Laiste,

 

i understand your comments.

 

this would mean the CCA request is totally useless then?

 

i am sure i have read an extract of the CCA 1974 that states the debt is un-enforceable if the correct documentation is not present.

 

if they then produce the documents in court this means it is OK? and they have got away with the offence? i then don't understand the point of there being an offence by law if it can be disregarded .....

 

i don't think anyone really has an answer to this question and it can only be tested when someone takes a DCA to court or the DCA takes the debtor to court without any documentation.

[jimfishybob]

I have to disagree with Jimfishybob.

 

12 working days means the creditor is in default, it does not render the debt unenforceable.

 

1 calender month means they have committed a criminal offence.

 

The debt is still enforceable if at some point they produce the credit agreement. It will not be enforced for the period of time that the agreement hasn't been produced. So for example if it takes them 6mnths to provide it, for that period they cannot claim the monies owed.

 

It is however wholly incorrect to believe that if they do not furnish the documents within the requisite timescale that the debt cannot be enforced, it can. Also, the creditor does not need to seek the permission of the Court to commence proceedings, if they don't comply with the timescale. They would start legal action in the usual way.

 

No agreement, or an illegible one would render the debt unenforceable. No signature by the creditor will in all likelihood have the same effect also.

 

Regards,

 

Laiste.

 

What he said.

 

To clarify, the debt is only unenforceable while the default continues, my apologies if this was confusing.

 

Effectively, the CCA requires the creditor to produce a legible, properly executed document upon request, after 12 working days from this request and while the paperwork is still outstanding the debt is, to all intents and purposes, unenforceable. So any attempts to enforce the debt through the county court would be futile until this paperwork was produced. Of course, they could produce this in court without ever having provided you with a copy but in that event a judgement against you is unlikely.

 

The criminal offence part is a bit of a red herring, or, at the very most a stick to beat the DCA with. It is not for a debtor but a court of law to ascertain whether a criminal offence has been commited.

[Laiste]

Thanks Jimfishybob for clarifying your comments. I would add as a cautionary note however, that it is presumptuous to state that judgment would not be found against a debtor if the agreement was produced in Court.

 

Whilst a Judge will be unimpressed with their behaviour, that will not of itself absolve the debtor of their liability. The debt would be reduced in accordance with the period of non-compliance with the CCA, but the Judge does not have the authority to wipe out the debt simply because the creditor has taken an inordinate amount of time to furnish the agreement.

 

For some reason you have presumed I'm a man, I'm not!

 

Laiste.

[jimfishybob]

Thanks Jimfishybob for clarifying your comments. I would add as a cautionary note however, that it is presumptuous to state that judgment would not be found against a debtor if the agreement was produced in Court.

 

Whilst a Judge will be unimpressed with their behaviour, that will not of itself absolve the debtor of their liability. The debt would be reduced in accordance with the period of non-compliance with the CCA, but the Judge does not have the authority to wipe out the debt simply because the creditor has taken an inordinate amount of time to furnish the agreement.

 

For some reason you have presumed I'm a man, I'm not!

 

Laiste.

 

It's a pedantic point but I said it's unlikely, not unheard of.

 

It's unlikely because the defendant would have a perfectly valid reason for not continuing payment. Consequently, while the debt would still stand and would henceforth be enforceable, in that particular hearing it is unlikely judgement would be passed in favour of the creditor, merely it would be acknowledged that the debt still stands but judgement may not be passed in favour of the lender as he has failed in his responsibilities to the debtor.

 

Admittedly, it may only buy you some time until they file a second time.

 

It's a biblical 'he', but noted.

[tifo]

Effectively, the CCA requires the creditor to produce a legible, properly executed document upon request, after 12 working days from this request and while the paperwork is still outstanding the debt is, to all intents and purposes, unenforceable. So any attempts to enforce the debt through the county court would be futile until this paperwork was produced.

 

It is not for a debtor but a court of law to ascertain whether a criminal offence has been commited.

 

So, in the end it means they can still find the documents 2+ months later, take you to court, and the CCA and then their non-compliance has achieved you nothing!

 

I understood that the CCA 1974 was the law as it has gone through parliament and written in statute so if it states in there that a criminal offence has been committed after the calendar month then there is nothing for a judge to decide is there?

 

Of course, the judge has a remit to look at the debt and not the offence but that is a separate isssue.

[sharmal]

I was also of the understanding that if the CCA was not complied with then the DCA had broken the law by committing a criminal offence. I fthis is the case then it must be in the judges best interests to take action against the DCA. Surely if nothing is done to pull them up by the ears then they will continue to harass and assault people who they think should have to pay them. If they have not got the right paperwork ie. the credit agreement and the deed of assignment they are breaking the law are they not. They are collecting a debt they should have to prove they are allowed to collect that debt. If they do not do this they should be bought to justice. If a debtor fails to pay, whether they have to or not, they get all sort of crap thrown at them and with out the use of CAG end up have their homes assigned to the debt, their wages,etc. They get threatened with bancruptcy, CCJ's etc. It should not be one rule for them and one rule for the other little people.

[tifo]

you are right, Sharmal.

 

but this is not how it is really being done. The DCA's are getting away with it and the debtor is not getting much help.

[sharmal]

Isn't there anything we can do about it or have we covered everything we can with what we are allowed to do within the law

[sequenci]

 

No signature by the creditor will in all likelihood have the same effect also.

 

 

 

yup, it would be totally unenforceable under s127

[jimfishybob]

I was also of the understanding that if the CCA was not complied with then the DCA had broken the law by committing a criminal offence. I fthis is the case then it must be in the judges best interests to take action against the DCA. Surely if nothing is done to pull them up by the ears then they will continue to harass and assault people who they think should have to pay them. If they have not got the right paperwork ie. the credit agreement and the deed of assignment they are breaking the law are they not. They are collecting a debt they should have to prove they are allowed to collect that debt. If they do not do this they should be bought to justice. If a debtor fails to pay, whether they have to or not, they get all sort of crap thrown at them and with out the use of CAG end up have their homes assigned to the debt, their wages,etc. They get threatened with bancruptcy, CCJ's etc. It should not be one rule for them and one rule for the other little people.

 

Idealogically, you are right.

 

But, this is not an ideal world. You need to stop thinking of the agreement and the debt as the same thing. They are not. Even if the creditor cannot produce the agreement they can still prove a debt through statements and the like.

 

However, a lender is unlikely to take you to court whilst they are in default, (regardless of the stage), as the default would be called to question in a civil court. BUT, a civil court cannot rule on criminal proceedings. On the basis you are unlikely to go to the police to report such a crime then it's down to you to report them to the relevant statutory bodies who should investigate on your behalf. Sadly, due to certain sections of The Enterprise Act, they cannot report their findings to you directly, the DCA's subsequent actions are usually a good indicator of the outcome.

 

As an example, I had been bullied over a £2500 debt up until last August, I submitted a CCA and was fobbed off with nonsense paperwork. After several letters back and forth I reported them to TS, who in turn submitted my files to the OFT. Soon after I recieved a letter from the DCA telling me that all action and entries on my credit report had been 'suspended' until the situation was resolved. 5 months later and I've still heard nothing and there is no record of the account on my file.

 

The point that needs to be made is that although it will likely go in your favour it is not a gurantee and the CCA and it's various ammendments don't necessarily mean that just because they haven't complied, you don't owe them anything.

[tamadus]

ok lets get this in proper perspective.

 

After 12 working days the creditor is in default under the Cunsumer credit act sections 77-79 and CANNOT enforce the alleged debt while in default without a court order.

 

After a further month (not 30 days) they commit an offence. It does not take a court to decide an offence has been committed. Its a black and white matter under the CCA.

 

Now in theory if they suddenly produce the properly executed agreement after 6 months they still need a court order to enforce it because an offence has been committed. That offence is the perfect defence in law.

 

I would never condone not paying a debt that is owed, but once they go beyond that month then the debtor has every legal right to withhold payments until the matter is resolved, probably by a court.

 

Until they have paid the penalty for the offence they cannot bring a case for having the court enforce the agreement.

 

This is exactly why most of them simply write it off once the offence has been committed and reported to the appropriate authority for investigation.

[SHERLOCK]

Tamadus, if like CABOT have with my CCA request, not complied at all after their initial response to supply within 28 days, What template would I now use to report it and to whom would it be sent??

 

Do you have a copy letter?

as you did, Would I go to TS first??

[dizzydeedee]

So basically they don not need to provide the information requested, is that what we're saying here? If that's the case then how can they prove that the debt actually belongs to you and not someone else of a same name?? This is why people like us get screwed. What is the whole point of asking for a CCA, sending the payment off for them to supply it to you, if iin the end, you still have to pay it?

[tifo]

they know they have done wrong and know that nothing can really be done against them, but i think the general consensus is that they still prefer not to be tested at court over this, so may just give up. It still is not paid but they may stop chasing you for it and it remains as a debt for 6 years on your credit files.

 

But, some may even take the court route as the judge will only look at the debt and not the offence.

 

We all have no idea really how to charge the DCA with the offence committed under the CCA before they go to court for our debts.

[dizzydeedee]

my credit file is as long as me so i suppose its not gonna get better any time soon. still, live and learn dont we. What doesn't kill us makes us stronger

[tamadus]

Tamadus, if like CABOT have with my CCA request, not complied at all after their initial response to supply within 28 days, What template would I now use to report it and to whom would it be sent??

 

Do you have a copy letter?

as you did, Would I go to TS first??

 

First port of call has to be TS Sherlock as they are the official enforcement authority. But make sure Cabot have definitely gone past the 12 days + one month time limit first.

 

There is a growing move now to reporting these offences to the police for investigation as well, so if TS dont look as if they are going to persue it then the police is another consideration.

[Bigmac versus]

If people had defaults registered against them or adverse infromation within the CRA's could they not threaten the company who defaulted them with reporting them if they did not remove this information, no contract no permission to send your data.

[tamadus]

If people had defaults registered against them or adverse infromation within the CRA's could they not threaten the company who defaulted them with reporting them if they did not remove this information, no contract no permission to send your data.

 

Unfortunately threats mean nothing to them. The CRA's are a law unto themsleves, when a bank can register a default and only they can remove it and not the customer regardless of the circumstances it will tak emore than threats.

[PriorityOne]

they know they have done wrong and know that nothing can really be done against them, but i think the general consensus is that they still prefer not to be tested at court over this, so may just give up. It still is not paid but they may stop chasing you for it and it remains as a debt for 6 years on your credit files.

 

But, some may even take the court route as the judge will only look at the debt and not the offence.

 

We all have no idea really how to charge the DCA with the offence committed under the CCA before they go to court for our debts.

 

It also depends on whether a DCA is willing to cough up a refund of monies paid on an "alleged" debt. If they cannot produce a CCA after the calendar month, but then refuse to refund for collecting unlawfully, they then run the risk of having various business activities made public.

 

It's also a chance to turn the tables on these people....