Unsecured loan transfer - is it enforceable?

[km1]

Hi from a newbie!

 

Firstly, what a great site and forum... a fantastic advice and problem sharing portal.

 

Secondly - I have searched on the forums to see if my question has been asked / answered previoulsy, but couldn't find anything.

 

My loan predicament:

 

I have an unsecured loan that was taken out with Goldfish (Liverpool Victoria) in June 07. In May this year, due to a period of unemployment I was unable to continue making the monthly payments and cancelled the DD. Within days of the payment not being sent, I began receiving texts, calls and letters from Hitachi Capital (whom I'd never heard of) asking for payment. It appears that they started taking payments for the loan just a month before I cancelled - so unfortunate timing by them!

 

I wrote back explaning that I'd never heard of them or entered in to any financial agreement with them, and asked for evidence to the contrary. I then received a copy of the loan agreement taken out with Goldfish. I wrote back again explaining my situation and added that I was going to look in to the legalities of this agreement, since Hitachi Capital are not mentioned on the loan agreement. I have since received a notice of default and notice of legal proceedings letter, giving 5 days to respond as well as the personal rep visit threats. I replied again, explaining that I was still looking in to the matter.

 

My questions are -

Is this agreement legally enforceable by Hitachi Capital?

What should be my next course of action - I really don't know what to do!?

 

Any assistance or advice would be v. much appreciated!

 

Thanks

[UnmoderatetheNet]

Scan what you have received and post it.

 

REMOVE ANY PERSONAL DETAIL INCLUDING BARCODES

 

Use a photo image hosting site or it will be unreadable.

 

Based on the year it was taken out I would think it WILL be enforceable, did you pay any payment protection?

[twofoot]

You'll need to post the agreement minus your personal details to get an answer.

[km1]

Thanks for the swift response... I will scan and post this evening.

[hungrybear]

They need to provide you with proof of assignment else they have no legal right to pursue you. Did they and goldfish write to you to say that the account had been sold?

 

I fear they agreement will most likely be enforceable - but not by them without the assignment

[esmerobbo]

Have you seen the address its next door to Lowells

 

Hitachi Capital Consumer Finance

 

Hitachi Capital Consumer FinanceAddress2 Apex View

Leeds

LS11 9BHTel+44 (0) 8702 35 9577Fax+44 (0) 8702 35 9579Details

• Visit Company's Website
  

[km1]

Hungrybear - no, I didn't receive anything informing me that the debt had been sold. However, I had moved since the agreement was made although I had a postal re-direction service in place.

 

Ok, here's the docs:

 

- Notice of legal proceedings

- Hitachi agreement (anywhere that states Hitachi has been stamped on afterwards)

- One page of the original agreement with Goldfish that isn't in the Hitachi agreement they sent me

 

 

 

 

 

Once again, any advice on this would be greatly appreciated. If the images aren't visible, please let me know - I posted them from Photobucket as the IMG code.

 

thanks again

[hungrybear]

Now I am not an expert here and you should seek out and pm 42man, supasnooper or cerbusalot or one of the other site team. BUT when I saw this I thought

 

'thankyou god for the most illegal DN I have ever seen'

 

BTW PLEASE repost with sums and dates removed or altered so the trolls cannot ID you.

 

I would write back with a bemused response - which is your current court defense anyway'

 

Dear hitachi - never heard of you, never that I know of entered into an agreement with you. I dispute that I have any legally enforceable debt with you. Kindly provide me with definitive legally enforceable proof that you have not contacted me in error.

[hungrybear]

and yes the agreement looks enforceable EXCEPT this cannot be a true copy of the original because they have slapped hitachi over the top. But you can only be taken to court effectively with a compliant DN and at all with a deed of assignment.

 

Go for bemused, the ask for a true copy of the original using cpr after/if they come up with assignment. Then you've got that DN above to fall back on after that

 

hope that helps,

 

off back to the cave for a kip - HB. Soon be time to hibernate!

[km1]

Hungrybear - lol - that's exactly what I thought and what I wrote to them in my corespondence!

 

But yes, I'm not so clued up on the legal particulars of this scenario so need some advice as to what's what.

[hungrybear]

one last thing - if you still have the envelope for the DN then please keep it. If they sent if second class then they legally gave you 24hrs to pay 14k!

[Bazooka Boo]

Reading it again and again, they clearly state that you have five working days to pay the 'default sum'....which is £25!

 

However, IMHO this is nothing anywhere near to a DN, the use of '5 working days' is unenforceable, does that mean five working days from the date of the letter, the date you received it, if so when do they know you have received it unless it is sent recorded?? They don't so it is mickey mouse...personally I would begin making complaints to the relevant organisations, OFT, ICO, TS via Consumer Direct, FOS and anyone else you can think of.

 

Boo;)

[Bazooka Boo]

And reading it again!!!!!!

 

They consistently contradict themselves, first by saying you have five working days to pay the above amount, which is the outstanding balance plus the default fee of £25, then the next paragraph they say that you have 5 working days to pay the default fee, then the next paragraph it says the arrears balance and the default sum:-o

 

This letter is in stark breach of the OFT debt collection Guidelines on a whole series of issues, and is undoubtedly in breach of the CPUTR 2008 also.

[babybear39]

The DN has to specify a date and not say blah blah days from the date of receipt

[babybear39]

Keep it very safe as based on that DN you're only legally obliged to pay the arreas

 

Be extra careful not to give a hint of your ID as they could issue a bew complaint DN

[km1]

Bazooka Boo - thanks for your pointers on the default notice received. I did wonder about this letter, especially as just 7 days later I received the classic 'personal representative' letter - below:

 

 

No one so far came to visit though, except a few 'trick or treaters'...

[Bazooka Boo]

And reading it one last time:D

 

The Default sum they say they are going to add to the account is unlawful, for the following reason,

On the second sheet which shows the 'Key Information' it clearly states that default charges for non payment by due date will be £12.

 

So it looks to me as though they have cobbled together part of the original agreement with the terms and conditions and then added their threatogramme to the front of it....it would appear that you may be banging your head against a brick wall for a while yet with these clowns!

[Bazooka Boo]

Any charges they think they can add to the account for their door threat collectors are completely unlawful, you never entered into a contract with them, and you most certainly did not agree to them charging you any amount for them doing their mucky job.

 

If you want to then send them a combination of these two letters, telling them that you do not acknowledge any debt to them and that if they do visit your property they will be reported for a tort of trespass and the Police will be called.

Give them the template letter linked below through the letterbox or chained door.

 

http://www.consumerforums.com/resour...ep-visit-.html

 

Tell them to leave as you have nothing to discuss and all communication must be in writing.

 

Tell them you will call the police if they don't leave immediately.

 

Remain calm and polite at all times.

 

Walk away from the door so the visitor cannot try and talk to you.

 

If they don't leave, call the police to report that you are being harassed and the visitor refuses to leave.

 

http://www.consumeractiongroup.co.uk/resources/templates-library/86-debt-collectors/573-general-debt-letter-if-you-know-nothing-of-the-debt

[km1]

Yes, this is really the point I've reached - I sent the below letter back in September - I now really need to find out if this agreement is enforceable. Any firm advice / help / or contacts would be great.

 

[supasnooper]

IMHO,

 

At first sight, the CCA sent to you looks to be enforceable but I do have my doubts about its authenticity.

 

The CCA lists Liverpool Victoria as the creditor and is then overlayed on a Hitachi Capital Consumer Finance template, and as such would make the CCA unenforceable.

 

The Default Notice is not one that is normally issued under s87 of the Consumer Credit act 1974, but s86E of the Act which covers secured agreements......a big error by Hitachi.

 

For reference here's s86 of CCA 1974 -

 

86.

(1) The creditor or owner under a regulated agreement is not entitled, by reason of the death of the debtor or hirer, to do an act specified in paragraphs (a) to (e) of section 87(1) if at the death the agreement is fully secured.

 

(2) If at the death of the debtor or hirer a regulated agreement is only partly secured or is unsecured, the creditor or owner is entitled, by reason of the death of the debtor or hirer, to do an act specified in paragraphs (a) to (e) of section 87(1) on an order of the court only.

(3) This section applies in relation to the termination of an agreement only where—

(a) a period for its duration is specified in the agreement, - and

(b) that period has not ended when the creditor or owner purports to terminate the agreement, but so applies notwithstanding that, under the agreement, any party is entitled to terminate it before the end of the period so specified.

(4) This section does not prevent the creditor from treating the right to draw on any credit as restricted or deferred, and taking such steps as may be necessary to make the restriction or deferment effective.

(5) This section does not affect the operation of any agreement providing for payment of terms—

(a) due under the regulated agreement, or

(b) becoming due under it on the death of the debtor or hirer, out of the

proceeds of a policy of assurance on his life.

(6) For the purposes of this section an act is done by reason of the death of the debtor or hirer if it is done under a power conferred by the agreement which is

(a) exercisable on his death, or

 

(b) exercisable at will and exercised at any time after his death.

 

 

Sadly for Hitachi, they need to send a Default Notice under s87 before they can terminate the agreement and pursue the debt.

 

Sit tight and wait for Hitachi \ Liverpool Victoria to terminate the agreement.

 

 

 

I would further advise that you do not mention any details of the documentation to Hitachi \ Liverpool Victoria at all.

Edited November 12, 2009 by supasnooper

[km1]

Ok, thanks for the advice Supasnooper.

[esmerobbo]

Liverpool Victoria Banking stopped trading as a bank in July 2007 they sold their credit cards Saga and Goldfish to Barclaycard and their Mortgage and Loans business to LloydsTSB who then went on to sell the loans to various companies after they went tits up. Seems Hitachi Capital may have bought this one. However you should have been informed at the time.

 

Looking at the agreement it looks as if it has been photocopied onto Hitachi Capital letterheads, instead of plain paper, silly mistake but it looks as if they have got a credit agreement, that could be produced. If it is correct or not I will leave to others better qualified to answer that.

[hungrybear]

IMHO,

 

 

Sadly for Hitachi, they need to send a Default Notice under s87 before they can terminate the agreement and pursue the debt.

Sit tight and wait for Hitachi \ Liverpool Victoria to terminate the agreement.

 

I would further advise that you do not mention any details of the documentation to Hitachi \ Liverpool Victoria at all.

 

 

This is VERY VERY important. If you give them the heads up before they terminate then they can still issue a compliant DN. So sit back and (in the nicest possible way) shut up!

[km1]

Ok, thanks guys I'll take all the advice on-board.

 

cheers

[supasnooper]

May be worth reading the post in this link for further info on Default Notices and Termination -

 

B_R_W's post on DN's