Unenforcable agreements have been defaulted

[Guest Alison82]

I have several defaults and accounts that I would like to get removed this year for various reasons, mainly because the CCA is unenforceable or no default notice was issued or the sum included bank charges.

 

Questions:

 

If a CCA is unenforceable can you get the default removed?

 

If there is no CCA can you get the whole account entry removed off of your credit file (no authorisation given)?

 

Can you claim compensation for wrongful defaults (above)? if so how much?

 

Who is it best to go after, the company or the credit reference agency? (No CCA, no authorisation - liable?!)

 

Can you get a Default removed if you with regards to bank charges, if you did not include it in your P.O.C as you wasn't defaulted at the time as the default came during the claim but you was unaware of it?

 

Can you get a Default removed if you with regards to bank charges, if you came to a settlement as you counterclaim against the companies' claim?

 

Sorry for so many questions, I have asked before but they do not appear to have been answered.

 

Hope this all makes sense, thanks in advance

Edited January 12, 2009 by Alison82
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[BankFodder]

Here is a point of viuew.

Even though CCA debts may be enforceable, they may well still be a valid debt with a moral obligation to repay.

A default on a debt in these circumstances may well be reasonable and valid.

 

A default in respect of unlawful charges should not have been placed on a credit file since July 2007 as all charges were officially in dispute sine then. All banks and CRAs - and probably the Information Commissioner seem routinely to ignore this and it needs someone to go to court about it. I expect that someone who didi deciude to challenge a defaul in these circumstances would win.

 

Yes you can claim compensation. How much depends on the damage you have suffered. One case in Scotland was awarded £116,000 in respect of loss of opportunity to buy into the housing market etc - I'm not sure of the details.

 

You would have to amend your POC and your claim would have top reflect a claim under the Data Protection Act and also for breach of contract by faioling to observe the banking code.

 

Any default in respect of charges is potentially removeable but not without a lot of work.

 

If you have a strong negotiating hand wiht the bank then you can force them to remove the default. It has happened but it is rare. You would have to be very careful to get it properly agreed in writing because the banks are completely unscrupulous and dishonest when it comes to this kind of thing.

 

 

You are wrong that these questions have not been answered before. They have all been asked, and answered in the same way - but this is a big forum and it takes work to find your way round.

 

I cannot imagine a single bank charges or default question which has not yet been raised in the nearly two milllion posts on this website

[Surfer01]

 

I cannot imagine a single bank charges or default question which has not yet been raised in the nearly two milllion posts on this website

 

But the difficulty is locating it amongst 2 million posts.

[Guest Alison82]

Hi Banfodder, thanks for replying, I have various accounts with various problems that I would like to be resolved

 

Catalogue 1 (NOT Defaulted)

They have admitted they don't have an agreement for this account, however they refuse to remove the information from my credit file. I want to purse for breach of the DPA as I did not give my consent.

 

Loan 1 (Defaulted)

Approx £600 worth of charges and a default that I am preparing for court stage

 

Store Card 1 - Now with DCA (Defaulted)

They took me to court for repayment (I had stopped paying as they hadn't complied with my charges refund request). I counterclaimed for charges and mis sold PPI. Went to court and the judge advised we come to a settlement which we did, I have £250 out of £450 they won't remove the default though.

 

Store Card 2 Unenforceable agreement (Defaulted)

Took them to court over charges; they settled and paid up, during the case (and shortly after) they added more charges and defaulted me asked for them to be refunded and remove the default, they refunded the charges but left the default. Now with DCA however I have suspended payments for now until my next step.

 

Bank account with Overdraft (Defaulted)

Took them to court over charges; they settled and paid up, during the case they added defaulted me which I did not find out until after the settlement.

 

Credit Card (Defaulted)

I suspended payments whist waiting for my CCA, CCA is a application form that unenforceable and does not give permission to pass data on to third parties, asked for another copy as the first one was not very legible.

 

 

I think each of these accounts have possibilities of having the defaults removed but I am unsure and need a little bit of advise on how to pursue this. How does defaulting the account after July 2007 make a difference?

 

Thanks in advance

[42man]

Alison these links might give you some food for thought...

 

http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/173208-successful-court-action-default.html

 

http://www.consumeractiongroup.co.uk/forum/credit-reference-agencies/164122-uk26-experian-limited.html

[Guest Alison82]

What can be done about a defaulted debt that is with DCA’s but there is no CCA, I have 2 like this, one has an application form and the other has nothing. I have heard that it is unlikely to be written off which is fine, I can offer to pay 20 -50% as a full and final settlement then seek a default removal as they are in break of the DPA and CCA.

 

Is this possible?

 

Thanks

[Guest Alison82]

Anyone??

[themadcap]

Hi Alison,

It depends what the debt is, can you be more specific ie credit card,loan,mail order etc

cheers

[42man]

Did you see the recent Mcguffick case Alison ? -

 

http://www.bailii.org/cgi-bin/sino_search_1.cgi?sort=rank&query=McGuffick&method=boolean&highlight=1&mask_path=ew%20wales%20uk/cases/UKPC%20uk/cases/UKHL

Edited September 30, 2010 by citizenB
replaced non working link

[Guest Alison82]

Hi thank you for the reply. One is a Barclaycard they have no CCA. I opened a student account and they then gave me a credit card that I did not ask for (being 18 I used it!) anyway they have no CCA for the account, the outstanding balance is about £400 which I will pay off my summer but I would like to know how I can go about taking of the default afterwards.

 

The other one is an Argos store card. They have an application form for the account with a different account number, but no CCA, it says it is regulated by the CCA 1974 and there is a paragraph about passing details on the credit reference agencies, but the document does not have all of the prescribed terms. The balance is about £200 which I will pay off before seeking default removal.

 

I will see if I can pay 50% of the balance as F&F settlement.

 

Any advice would be appreciated

[themadcap]

The CCA route is currently a bit murky and is designed if the account is in dispute, you obviously want to pay it so its not really an issue, the only time you will usually be offered these 50% offers are when the debt is sold and at that point you would have defaults for the debts and they are very difficult to get removed.

If you just want to repay them at a set rate I would send the letter you can find in the templates on here.

[Guest Alison82]

Hi I am trying to help a friend clear up her credit file she has serveral defaults and some late payments. Some of the accounts have a CCA some have an application form rather than a CCA.

 

Store card 1

Currently with a DCA, Balance £300; she will pay this off in April. It does not have a properly prescribed CCA just an application form.

 

Credit Card / Barclaycard

Currently with a DCA, Balance £200; she will pay this off in April. No CCA exists for this account

 

Store card 2

Satisfied, successfully reclaimed charges and PPI. Does have a CCA.

 

Loan

Satisfied, successfully reclaimed charges which included the removal of the default, I suggested she apply to the court for an order to get then to remove it.

 

Overdraft

Currently with a DCA, Balance £2000, she is paying this off bit by bit, she successfully reclaimed bank charges but did not use the money to clear the debt and Lloyds TSB defaulted her.

 

I am a bit out of the loop so I said I would as here about what she could do, should she go after each account individually or straight to the CRA’s (there is no law to say defaults have to be on your file for 6 years).

 

Any advice would be useful, thanks

[foolishgirl]

You are correct in that there is nothing in law about CRAs being permitted to keep defaults on files for 6 years; however in most credit agreements you give permission when you sign up for your details to be recorded with a CRA. So you are unlikely to get the defaults cleared on those which have enforecable agreements & those that are marked satisfied.

 

You may find this link useful:

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/111211-defaults-background-removal-methods.html

 

Other comments below

 

Hi I am trying to help a friend clear up her credit file she has serveral defaults and some late payments. Some of the accounts have a CCA some have an application form rather than a CCA.

 

Store card 1

Currently with a DCA, Balance £300; she will pay this off in April. It does not have a properly prescribed CCA just an application form.

 

Credit Card / Barclaycard

Currently with a DCA, Balance £200; she will pay this off in April. No CCA exists for this account

 

If there are no enforceable CCAs on the above two, she may be able make a Full & Final settlement at a reduced sum on these. Just make sure that you put any offer in writing & get if confirmed that this is a F&F, that the account will be marked 'satisfied' with the CRAs & that it will not be passed to any other DCA for collection at any time.

 

Of course, if you are sure there are no enforceable agreements, she is not legally bound to make any payments but she must be prepared to face legal action against her if she withholds payments.

Store card 2

Satisfied, successfully reclaimed charges and PPI. Does have a CCA.

 

Loan

Satisfied, successfully reclaimed charges which included the removal of the default, I suggested she apply to the court for an order to get then to remove it.

 

Overdraft

Currently with a DCA, Balance £2000, she is paying this off bit by bit, she successfully reclaimed bank charges but did not use the money to clear the debt and Lloyds TSB defaulted her.

 

[craigers]

i would say that for the accounts with no cca (absolutely 100%??), she should write telling the respective dca that there is no court enforceable cca thus no basis for the defaults being registered. she needs to sar the oc too.

[means2anend]

subbed!!!

[Jamesx81x]

Regarding the catalogue are you saying you did not receive any goods from them or make any payments at any time?

 

The loan charges aside did you not miss payments on the loan or is the default for the charges alone?

 

Store card 1 if you have stopped paying on an agreement just because you do not agree with the charges then you have defaulted on it. Was the original blance paid off and were you just paying the charges?

 

Store card 2 if they have refunded charges they have defaulted you on then they have no option but to remove the default.

 

Need more information on the circumstances. You say these agreements are unenforceable but on what grounds? Only a court can declare an agreement unenforceable.

 

Also you seemed to have stopped paying on agreements just because they have added charges or you are waiting for a CCA request. If this is the case theyare within their rights to record it with CRA's and eventually default you.

 

All non-compliance of a CCA acheives is they cannot enforce the debt unless they take you to court. They can record the non payments and still chase you for the debt.

 

There is post after post on this site where people stop paying on agreements they have taken out claiming it is unenforceable. This is not the route to follow.

[means2anend]

Regarding the catalogue are you saying you did not receive any goods from them or make any payments at any time?

 

The loan charges aside did you not miss payments on the loan or is the default for the charges alone?

 

Store card 1 if you have stopped paying on an agreement just because you do not agree with the charges then you have defaulted on it. Was the original blance paid off and were you just paying the charges?

 

Store card 2 if they have refunded charges they have defaulted you on then they have no option but to remove the default.

 

Need more information on the circumstances. You say these agreements are unenforceable but on what grounds? Only a court can declare an agreement unenforceable.

 

Also you seemed to have stopped paying on agreements just because they have added charges or you are waiting for a CCA request. If this is the case theyare within their rights to record it with CRA's and eventually default you.

 

All non-compliance of a CCA acheives is they cannot enforce the debt unless they take you to court. They can record the non payments and still chase you for the debt.

 

There is post after post on this site where people stop paying on agreements they have taken out claiming it is unenforceable. This is not the route to follow.

 

I am mindful of MgGuffick v RBS...but the facts below can be distinguished!!!

 

I am in the process of writing to a lender on behalf of a friend in which in the letter they have stated that they cannot locate the original documents, the files have been closed and account returned to Original Creditor.

 

1. It can be argued that therefore consent to data being shared and processed was not given or cannot be substantiated;

 

2. that proceeding on the assumption that consent had been given it has NOW as a result of the files being closed been terminated or withdrawn...

 

3.''cannot locate original documents'' is an admission itself and best evidence and could be used in any subsequent trial. No need for a CPR 31: 6 and 16 inspection then

I will send the letter off today incorporating the details and advice given by Surlybonds on this issue and shall keep you updated.

 

At common law they say that at some point an agreement must have come into effect and therefore there are still rights and obligations subsisting which therefore means that although we cannot as a matter of Act of Parliament satisfy the s78

request...we can at common law still report them to CRaA's..

 

Well... ''he who lives by the sword shall also die by the sword''...that very same common law states that if consent not be found nor cannot be substantiated then any subsequent or continuing act be unlawful...(look to law of trespass for example)...and if the lender or Original Creditor as above has stated in effect so much...then that is evidence out of their own mouths.. Evidence that would have subsequently come to the fore anyway even if they kept quiet.

 

They cannot have it all ways!!!

 

m2ae

Edited April 20, 2010 by means2anend

[Jamesx81x]

Yes i agree if they cannot produce original documents then they would hold no chance in court of enforcing an agreement.

 

But as said above need a little more information on each point to fully understand the situation

[means2anend]

I had a look at ''termination notices'' at Section 103 Consumer Credit Act 1974...although it mentions the FACT of a prescribed Period within which a trader must reply it does not actually state A PRESCRIBED FIGURE...unless I have missed something can anyone enlighten me pleeeese!

 

Thanks

 

m2ae