It's very quiet on these forums these days! I remember the time (pre 2008 ish time) when these forums felt like a living, breathing thing..... the common person felt they were able to beat the greedy capitalist bankers at their own game. Since the Supreme Court judgement, and a few notable cases here and there, it seems people feel very defeated. It's a shame, there seems to be no excitement these days about discovering different ways to tackle these big capitalist giants.

Letter going in post tomorrow morning (23rd November). Had a lot of things I was busy with, having actually meant to post it today but forgot - fortunately the DCAphoned asking "if I was in a position to clear the balance on the account today".... despite being assured over the weekend that the account would be placed on hold due to the CCA default - typical! Anyway, I have removed the court threatening stuff from the letter at this stage, upon suggestion from caro. In speaking with the person on the phone, got into a brief discussion suggesting what my potential terms for repayment would be (bye bye default etc.) and she did the typical "the only thing we could do is mark satisfied, partial settlement full settlement" and so on.... again, as usual. While I wait for a response to the letter, wonder if I could gain some information on an area I'm not too researched on at this stage: Credit Reference Agencies, and the Law. In other words, I remembered reading somewhere that CRAs aren't a legal, government thing, rather just some 3rd party company, with no legal obligation to be reported to at all, which everybody just happens to use. Is this the case or am I way off? The only reason I ask is, why oh why would a DCA and Bank be more bothered about reporting a default as "accurately" as they can than just receiving some money? ("accurately" in inverted commas, because I have no evidence of this ;-) ) "As a responsible lender, we have a duty to give a true image of somebody's lending history" - haven't we all heard this before? I just find the McGuffick case so interesting in that you can't legally enforce collection but can do everything else? If you can't legally enforce collection, this law must have been created for a REASON.... perhaps "there is no EVIDENCE that this figure you are attempting to correct is accurate, or the account was operated by the CREDITOR in an acceptable manner"..... so why can DCAs and Banks report this so called "Truth" on our credit files, if the very truth of it is thrown into question by the CCA issue. Sorry for the rant, I just find the McGuffick Ruling slightly contradictory in places.... I think perhaps the judges are just leaving banks and Dcas with one last "weapon" to prevent a deluge of debt-dodgers..... but what IF the figure they are chasing for is wrong, and it could be proved if we had all the paperwork..... they could be reporting a LIE on our account!! hello Data Protection minefield!! Thoughts??

Hey I only got this stuff through reading these forums, so thank you!!

I've been doing a lot of research on this, the ambiguous areas of "are overdrafts covered under CCA" and "what is required for them to provide" and at first I nearly panicked over some exemption stuff I'd read, but I've delved quite deeply into this, and am much clearer thanks to some reading. Some facts as I understand them, feel free to correct me if you know I'm not quite right: - The Bank Account isn't covered under the CCA. The overdraft IS. - They are exempt from some areas of Part V, but exactly what has been clarified from reading this article. (can't post links yet, so google "consumer credit directive guidance" and it's the top link, the bis.gov one) - Go to page 72, on overdrafts. It is EXTREMELY clear on what is and is not exempt under the CCA for authorised overdraft agreements. Particularly on page 73 of the link, point 17.7. 61 (b) applies, "A regulated agreement is not properly executed unless— the document embodies all the terms of the agreement, other than implied terms" - Certain aspects of the Determination relating to the exemption relate to requirements relating to interest changes, and limit changes, and these need evidence of being adhered to. - The OFT has released some guidelines on CCA requests, and this appears from a slightly defensive "we are trying to stop the deluge of debt-dodgers!" angle, but it still confirms there needs to be a copy of an agreement if there ever was one. (again can't post a link, so google "Guidance on sections 77, 78 and 79 of the Consumer Credit Act 1974", it's that article, found again as a comment at the bottom of Caro's article on negotiating away from court) So there it is, there needs to be an agreement. Caro, with regards to your court issue, I hear what you're saying. I will do a tad more research on what any potential argument would be, or perhaps omit this from the letter and just start off with a simple negotiation. With or without court threats, the argument "move the default you get money, leave it on and you won't" stands and maybe they'll be up for that. I think my reason for including it was to say this - if you don't budge, the matter of me paying you ever ends.... but the matter of the default which I am not really happy about will still be on my agenda.... and if I examine you have not applied the default with due process, then I will look at putting a case in court against this, which is even more work for you.... and no chance of you getting any money, so work for nothing! (from their point of view). Also, the without prejudice part of the letter is so that, if I go to court, after the judgement (whatever that may be) the judge will see I have made every effort to resolve away from court, and so I can present this letter after the close is closed save as to costs for me. I hope that all makes sense! *phew*

Alas, I had been making various payment arrangements for small monthly amounts fairly regularly til April 2010 I think. In fact, this account had not appeared on my credit file at all, from the very start, until the default dated Dec 2010 (but actually only placed there in Oct 2011). So I am being careful in my letter with my words, as I'm sure you've noticed! until they provide me any documentation other than "you owe us this amount, pay now", then I'm now a tad sceptical. Through reading all the guidelines on CCA, enforcement etc., as Caro mentions in his interesting article on negotiations, it's all quite vague at the moment. I think the judges and courts, as caro mentions, are afraid of opening the doors to a wave of pure debt-dodgers. But it seems, in trying to defend against potential debt-dodgers, they're letting DCAs still do a fair amount as it is not technically "enforcement", such as defaults, continuous letters and so on. But my question is this - there must be a reason why CCA request s.78 makes the debt unenforceable (e.g. who knows if this money is owed or not?! just the bank's "word"!), so why are they allowed to place on a credit file, for all to see as 100% fact, that I owe this money, or fell behind etc.? This is the one main bit of adverse credit I have, but lest we forget that I got in a mess with this account in the first place because of charges on charges on unfair charges, so if it's quite alright Mr Bank I would like to see this original agreement and see what's been going on before you tell the whole world I'm not credit-worthy!! Oh wait, you've lost everything..... This is my point. With the power of being the only person who can decide if they get any money now, I would like to see if we can meet half-way.

Ok bear with me, it's long! And you have my full permission to tear it to pieces if necessary, I don't profess to be an expert (yet hehehe) and have formed this letter from other things i have read here and elsewhere. (i've put certain bits in capitals to prevent giving clues to my dca) Dear Sir/Madam Without Prejudice Thank you for your letter of DATE OF LETTER, the contents of which have been noted. Your letter was in response to my formal legal request to supply me a true copy of the original Consumer Credit Agreement for the above account, a full statement of the account signed and an original certified copy of the default notice in line with s.87 & s.88 of the Consumer Credit Act 1974; more so the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983. This letter was signed for as received on DATE. You have admitted you are unable to comply with my request. If a creditor is unable to provide the required documents then as you are aware an account enters default 12 working days after the request was received; as such this account will enter default on DATE. As you are no doubt aware, section 78 of the Consumer Credit Act 1974 states: (6) If the creditor under an agreement fails to comply with Subsection (1) – (a) he is not entitled, while the default continues, to enforce the agreement. You have failed to comply with a lawful request for a true copy of the said agreement and other relevant documents mentioned in s.78 (1) (4), failed to send a full statement of the account, mentioned again in s.97 (1) and failed to provide any evidence of the notice of default under s.87/88. Therefore this account has become unenforceable at law. In your own words from your letter dated DATE, you wrote that – with confirmation from the Information Commissioner’s Office – “… a debtor is not obliged to repay the account due to the provisions of the Consumer Credit Act…”. I am aware of the case of McGuffick –v- Royal Bank of Scotland Plc with regards to what constitutes enforcement, however I have also reviewed the OFT’s recommendations following this ruling also. I understand that while you may continue some collection activity and you may continue reporting your information to Credit Reference Agencies, you are not able to enforce collection. As you are unable to provide me with any of the requested documentation, I am unable to assess the state of the account and so my good faith to repay the sums requested is now compromised. This could now result in a stalemate with regards to this agreement, as I will not be willing to make any payment on an account thrown into question by its lack of documentation, and you/your client will be unable to enforce collection. Proposed Resolution In an effort to resolve this situation amicably, I would like to propose a gesture of goodwill on my part. I am prepared to make an offer of payment provided despite not being obliged to repay the account due to the CCA provisions (as you have stated) if you/your client are willing to offer a gesture of goodwill on your part in return. I will make a payment of £XXX I'll decide this soon! as a gesture of goodwill provided you agree to the following terms: (1) The payment is to be regarded only as a gesture of goodwill. It is not a payment in admission of any alleged legal liability to pay the alleged debt. (2) Upon receipt of the payment, you/your client are to close the account in full, and to confirm in writing the closure. For the avoidance of doubt, this does not mean marking the account as “partially settled” or any similar way of filing the account. (3) As a consequence of (2), any debt collection activity of any kind shall cease. (4) The Default Notice supplied to any Credit Reference Agencies will be removed. For the avoidance of doubt, this does not mean marking the current default balance as satisfied. Having the default marked as “Satisfied” is of no worth to me whatsoever. What I require is for either the entry under BANKS ENTRY to be removed entirely, or for the entry to be changed to a Satisfactory “Settled” account, with no evidence of any previous default marker of any kind on the account. This is to apply to all 3 Credit Reference Agencies, namely Experian, Equifax and Call Credit. These are my terms for an offer to settle this issue. If you are unwilling to compromise on this issue, namely the reporting of the default to the Credit Reference Agencies, then I have no further interest in paying the alleged account. I have no documentation to evidence the authenticity of the figure you allege I owe, and I also have no legal obligation to repay the sums. It is very likely that accepting my gesture of goodwill is the only opportunity you/your client will have to receive funds at all on the agreement. If despite my offer you decide you will continue reporting the default, then not only will you not receive funds towards the debt you allege I owe, but I will likely press further requests under CCA 1974 regarding the notice of default, and this may lead to potential litigation to see the removal of the default through the courts. Whatever the outcome of any potential litigation, you still would not receive any funds as the alleged account would remain unenforceable throughout.

Thanks for your speedy reply! This is exactly my approach, and I have drafted a letter to very similar effect. Would you be interested in reading?

Hi all, I'm going to keep the bank and the DCA secret for now, as I think I may know more than they do at this stage and don't want to give them tips! I've learned so much from this forum, but this is my first post here. (Forgive the new account, the other username was basically my name!) Current situation as follows: Student overdraft account, started around 2003. Got loads of charges through my student days, but got on the bandwagon early and managed to reclaim a lot of these. Had a payment plan for this account with the bank for years, but eventually broke down when I moved house and didn't change address. After checking credit file recently, they placed a default on my file in October this year, the date being for around December 2010. Tested the waters with a CCA request. This included the original agreement as per s78(1), full statement as per 78(1) and 97(1), and default notices as per s.87/88. Included £1 fee. Below is the body of their reply. The Reply from the DCA Further to your request for a copy of your credit agreement, we regret that because of the age of this account our client is unable to produce a copy of your document given that the agreement is over 6 years old and to this end we therefore return the £1 payment you submitted with your original request, if applicable. Notwithstanding this our clients believe that the above balance remains due and payable and we therefore require immediate payment of this sum or alternatively your realistic proposals of same. The Information Commissioner's Office has confirmed that whereas a debtor is not obliged to repay the account due to the provisions of the Consumer Credit Act, this does not mean that there was no enforceable agreement. In addition our client will continue to report the conduct of your account to the various Credit Reference Agencies to whom they subscribe. Should you wish you can file a Notice of Correction with the respective Credit Reference Agency which will offer you the opportunity to explain the circumstances surrounding this registration however you will need to speak with them direct to do so. We look forward to hearing from you within the next 14 days with your proposals for discharging this liability. So a summary of where I'm at as I understand it: They have confirmed what we all know, the debt is unenforceable Having researched the McGuffick -v- RBS case, they are right in being able to continue reporting the default due to this not being classed as enforcement They are saying while not technically "enforceable", the money is still owed and they still want it, but if push came to shove they couldn't actually make me pay My plan of attack is as follows: I am not a debt dodger, the amount isn't especially great (around £1000), and the removal of the default is more valuable to me than avoidance of any kind of repayment Having said I'm not a debt dodger, I do feel that their inability to send me ANYTHING (not even a statement or default notices etc. as required), I am in a position where I really cannot assess how much I do or don't owe etc. - there is now a cloud of vagueness over this agreement and it is their fault for being so disorganised There could potentially be a stalemate. I don't believe this amout will necessarily be accurate, and will not pay without required documents, and they also cannot force me to pay without this. The power, therefore, is with me. I have the ability to provide them money if I CHOOSE - so I am in a position to possibly negotiate the removal of the default. Unless of course, processing this marker on my file is more important to them than cold hard cash - if I know banks and DCAs, this is doubtful! I have drafted a letter of negotiation which I will include in the next post, but I will wait first to see if people are interested in this situation, and also if any people with more knowledge and expertise than me can offer guidance so I don't make a mistake. I have learned all I know from these forums, and through trawling through CCA 1974, Consumer Credit Regulations 1983 and a few cases that have been through the courts. So, a final summary.... they've lost my CCA, haven't even sent me a statement, so it's unenforceable. The default is on my file. But there is still money they would like to receive. In their words, I'm not obliged to repay. Do you think a negotiation could have potential success? Thanks in advance!