Is The Debt Too Old For Original Agreement

[zubo]

Hi guys

 

I had three accounts with Forward Trust which I have been paying £1 pm off each for several years - since 1989 I think. The payments are made to D G Solicitors in Bhm and I notice that the client is HSBC Equipment Finance now. They have hassled me for increased payment or court action recently.

Elsewhere I spotted that you could send the statutory £1 and obtain a copy of an agreement and if they did not respond the debt was not enforceable, so I requested this.

 

They claim that the age of the accounts - their client is no longer legally obliged to retain a copy of the agreement. They will not provide me with any details as to where in the statute there is a time limitation. Further they say that my repayments over the period acknowledge liability for the rest of the debt.

 

My instinct is to say bull**** - prove your claim against me - show me the original agreement and charges and payments because unless I can see that I will presume that there is no more debt to pay.

 

They have given me 10 days to respond - not that this means anything... dontcha just love people who give you invented deadlines.

 

Comments would be really helpful

 

george

[davefirewalker]

Hmmmmm I'm sure that someone will know better but i seem to recall from posts here that if you are paying a debt off you are acknowledging it. It would be difficult to say "I don't owe that debt". I would feel that they should have to show some proof that you owe them money though.

 

I would definetley seek advice here or anywhere else maybe the cab

 

If not I would stick to the £1 per month and let them squirm

 

Dave

[Rallya]

Could you not argue that you felt bullied into paying etc? just a thought and something i read on this forum elsewhere. Can anyone else confirm?

[jimfishybob]

Could you not argue that you felt bullied into paying etc? just a thought and something i read on this forum elsewhere. Can anyone else confirm?

 

You could. Or if you don't dispute the debt you could dispute the amount due to unlawful charges being levied.

[tamadus]

Firstly is the debt covered by the consumer credit act ? If it is then a section 77(1) or section 78(1) request for a copy of the original agreement has to be supplied BY LAW. Failure to supply it in 12 working days means they go into default and cannot enforce the debt until they satisfy the request. After a further month (30 days) they commit a criminal offence and the debt becomes unenforceable IN LAW.

 

How old the agreement is has no bearing on whether its legally enforceable. Paying a debt does not mean you acknowledge it in law, there may be several reasons for paying it (feeling bullied or intimidated as mentioned by Rallya is just one example). An executed agreement is NOT enforceable without proof of the agreement.

[kateandpete]

Firstly is the debt covered by the consumer credit act ? If it is then a section 77(1) or section 78(1) request for a copy of the original agreement has to be supplied BY LAW. Failure to supply it in 12 working days means they go into default and cannot enforce the debt until they satisfy the request. After a further month (30 days) they commit a criminal offence and the debt becomes unenforceable IN LAW.

 

How old the agreement is has no bearing on whether its legally enforceable. Paying a debt does not mean you acknowledge it in law, there may be several reasons for paying it (feeling bullied or intimidated as mentioned by Rallya is just one example). An executed agreement is NOT enforceable without proof of the agreement.

This is 100% correct. In my thread http://www.consumeractiongroup.co.uk/forum/legalities/24736-default-removal-katenandpete-hsbc.html they first said - erm, over 6 years = no responsibility to supply agreement. Then they wrote and admitted that was wrong (after a gentle nudge from me). Now they've written claiming, rather desperately in my opinion, that they only need to supply a copy of the UNEXECUTED agreement. I'm going to write them a very sarcastic letter questioning this.

 

Note though, that the debt isn't written off. It is merely unenforceable at law. Either you must come to a settlement with the company, or a judge must decide a settlement. Bear in mind that they *really* won't want to go to court, judges take a rather dim view of unlawful activites practised by large financial entites on the honest, working man. All you need to prove is that you are honest, reasonable and law-abiding and they are not. Piece of cake!

[zubo]

All

 

I am staggered that I have not responded to this. Nor acted upon the good advice given. Up until last year I continued to pay against their demands.

 

On the 6th August I sent this letter which prompted their response that they did not have to supply the signed agreement.

 

As I see it, one of your complaints has been that your systems believe I have been late in my monthly payment whereas I have deliberately paid more than agreed in order that I never fall into arrears. I therefore formally state that the attached cheque represents 12 months payments on all three accounts being £36. This therefore places my account with you ahead by 12 months.

 

Finally I understand that under the Consumer Credit Act 1974 (Sections 77−79), I am entitled to receive a copy of each of these credit agreements on request. I enclose a payment of £1.00 for each which represents the fee payable under the Consumer Credit Act. My cheque in total therefore is £39.

 

I understand a copy of these credit agreements should be supplied within 12 working days.

 

I understand that under the Consumer Credit Act creditors are unable to enforce an agreement if they fail to comply with a request for a copy of the agreement under these sections of the Act.

_____________________________________________

 

Whilst I mention that I am paying the most I can and I have given them 12 months payments etc etc, I now intend to change tack:

 

I will write to them to say that I do not recognize their client nor the debt and have been paying in the belief that I did owe money. Since they have taken my money for the CCA and not provided the information requested they not only have committed an offence which I intend to report but also had there been a debt it is now unenforceable.

 

I also intend to send them a SAR and demand my money back when I check what I have paid them.

 

Comments please?

 

Thanks

[tamadus]

Zubo,

 

I would simply write back to them pointing out that they are obliged to send true copies of any credit agreement within 12 working days of your request, failure to do that means they are in default and cannot enforce it until the default is cleared.After a further calander month they commit an offence and can be prosecuted with a £2500 fine or 3 months in prison. They are also obliged to provide the copy whether they are the original creditor or not under sec.189 of the CCA

 

Now comes the good bit.

 

Once they exceed the month I personally, would write telling them that as they have failed in their obligations under the Consumer Credit Act you are stopping all payments, until such time as they comply and reporting them to Trading Standards.

 

They are not going to like this, obviously, but the Act also says that while in default they cannot enforce the alleged agreement.

 

There are no time limits for keeping the agreement. If the agreement is being enforced it should be available.

 

It is an offence not to supply a true copy when properly requested.

 

It is an offence to attempt enforcement while in default.

 

These people are on very thin ice from what you have said in here. They are not going to be happy but if you hold your nerve you can win this.

 

So plan of action. send the appropriate letters, contact Trading Standards with a view to making a formal complaint.

 

They are using rhetoric to make you doubt your facts and drop any claim you may have against them. You do have a strong claim.

 

Any doubts just PM me.

[zubo]

Thanks for that advice Tamadus.

 

Letter sent:

 

On the 6th August 2006 I wrote to you requesting in accordance with Consumer Credit Act 1974 (Sections 77−79) a true signed copy of each of these agreements. You have replied that you do not have to because these are so old. I have taken advice and this is incorrect and I am of the opinion that as Solicitors you were aware of that fact.

You have therefore failed to comply and consequently have defaulted on all three accounts. You are also committing an offence by not supplying me punishable on each count of a fine of £2,500 or 3 months in prison. You or the creditor are obliged to supply these even if the creditor is not the original creditor – Section 189 of the Act refers.

Please also be aware that it is an offence to attempt enforcement of these accounts while they are in default.

You have failed in your obligations under the Consumer Credit Act and consequently I am stopping all payments until such time that you comply with my requests.

Please be advised that I also intend to report these facts to Trading Standards requesting that they investigate and prosecute you for non-compliance and deception.

Yours Sincerely

 

Anyone have Trading Standards Address please?

 

thanks

[un1boy]

Try this for Trading Standards:

 

 

http://www.consumerdirect.gov.uk/complaints.shtml

 

you enter your details and someone calls you back a few days after and then send you out the forms!

[tamadus]

Try this instead for the letter Zubo, yours looks a little rough around the edges

 

Dear XXXX

Account numbers: XXX/XXX/XXX

I refer to my letter dated 6 August 2006 in which I made a formal request under the Consumer credit act 1974 sec 77-79 for true copies of the regulated credit agreements refered to in the above account numbers. You are reminded that you are obliged to supply these under sec.189 whether you are the original creditor or not. I also enclosed the statutory fee of £1.00 for each account.

To date you have failed to comply with my statutory request and have defaulted in respect of all 3 accounts.. This means that under the CCA you have now committed an offence punishable upon conviction, by a fine of £2,500 or 3 months imprisonment.

Additionally these alleged agreements are unenforceable until such time as the default is removed or enforced by a court of law. It is a further offence to attempt to enforce these alleged agreements until such time as the default is removed.

Consequently I am ceasing all payments to your company until such time as this matter is resolved.

It is also my intention to report this matter to the appropriate enforcement authority.

I await your prompt response.

Yours Faithfully

 

 

******

[zubo]

thanks Tamadus.

 

That is the problem with trying to do too many of these - you rush them and get the wording not as you wish.

 

I have torn mine up and replaced it with yours - much tidier and tighter.

 

thanks again - should have pmed for help....

[tamadus]

no problem at all zubo, just shout if you need help.

[zubo]

I sent the letter Registered, and on same day received 3 letters from them demanding I contact them which I obviously ignored.

 

Today... received letter from DG Solicitors

 

Without accepting liability our client has instructed us to close our files in respect of all three accounts.

 

we trust this is acceptable.

 

YESSSSSSSSSS

 

Penny has dropped. They know we are right.

 

My instinct is not to respond - file it and forget them.

 

I could on the other hand chase them for 3 x £1 x 72 months payments they stole from me - I hadnt until I typed it realized - thats £216!!!

 

What do you think - let sleeping dogs lie???

I might open a can of worms and they could chase me unconventionally (illegally) btw balances were in excess of £6k last year so I think thats a result worth a donation when I get paid my salary this month.

 

THANKS TO EVERYONE WHO CONTRIBUTED AND HELPED ME HOLD MY NERVE.

[djweeble]

£216 vs £6K

 

I'd say you've had a pretty good result, my advice would be to let sleeping dogs lie.

 

Nice one mate

[zubo]

I was unhappy with leaving this for several reasons. Their letter merely indicated that they had been instructed to close the accounts ie not chase me. But that does not stop HSBC giving it to someone else in 6 months to chase.

 

So I wrote and asked them to confirm that the accounts were being closed at nil balance. Their response today: We confirm that we shall no longer be pursuing yourself at this time for the above accounts. We trust this is satisfactory AND it showed balances on the letter for all three accounts.

 

This means - NO you owe us these amounts and YES we cannot chase you right now, but we or someone else may do later or if the law changes or if we find a way around this or ...

 

So this is stalemate but not an outcome.

 

Tamadus - On the one hand I am inclined to issue a SAR - but that will identify peanuts over the recent 6 years. These agreements go back to circa 1989 and what I would like to do is request full disclosure of all payments made including interest, then to hit them with a S85 looking for consolidation. Presumably because I have only just discovered all this the statute runs from now....

How do I get the information I need if they claim only 6 years is required?

 

Thanks

[tamadus]

Zubo,

 

I dont think you need to go to such lengths although an SAR would be helpful. Obviously this isn't a totally satisfactory result and you don't want them coming back and starting it all over again this time next year.

 

You could insist that an SAR cover the full history of the accounts, they shoul dhave the data but they choose to only supply 6 years of it which normally is sufficient for our purposes.

 

Let's try and look at it in simple terms. You made a perfectly legal request for a copy of the agreements under sec 77/78 of the CCA. This is your legal right. They have failed to supply those copies.

 

We have 2 options now, either we can report them to TS for investigation, which is not always the fastest or most reliable method.

 

The other option is to write to them and inform them once again that they are in serious default and your now going to issue proceedings for their non compliance with the CCA. We are talking about 3 accounts and requests so the penalties apply in each case. They may reconsider when they realise they are now facing a total of £7500 in fines.

 

Just to be doubly sure I think I would do both actions. Write a very firm letter (in the form of an LBA) and notify TS. That should shake them up a bit

[zubo]

As always calms my emotions and gives good advice.

 

I will heed your good advice - when unsure - belt, braces and a piece od string...

 

Let me construct a suitable response to run quickly pass you.

 

Thanks again.

[tamadus]

Dont forget to tell them you are refering this matter to TS for their investigation.

 

I'd also mention that your going to withhold payments until such time as a court order is issued to enforce the ALLEGED agreements.

[zubo]

Tam - how does this look (standard SAR is referred to but I have omitted 6 years):

 

Thank you for your recent letter.

Your response from your client clearly indicates his unwillingness to close the accounts at zero balances and therefore implies a basis for those balances. These can only be balances subject to the Consumer Credit Act 1974 and subject to the obligations within the Act such as my lawful requests for copies of the executed agreements.

Failure to supply these therefore is a criminal offence on each account the penalties are specified within the Act, and it is my intention now to report your breach of the criminal law to the OFT and the appropriate enforcement agencies.

In the event that you need to discuss this with your client I will stay my intent for 7 days.

Please also note the attached letter contains a formal request under the Data Protection Act which you are obliged to respond to within the given timeframe.

[tamadus]

looks ok to me Zubo

[zubo]

looks ok to me Zubo

 

cheers Tam, appreciate the extra eyeballs...

[zubo]

Finally, received letter today.

'due to the age of your accounts we are unable to provide the information that you have requested. (CCA) Accordingly our client has instructed us to reduce the balances outstanding to nil and no further action shall be taken regarding this matter.'

 

Good that is primary goal achieved.

 

'We should also advise that statements for the accounts are no longer available as our client is only obliged to retain these for a period of six years; your accounts were closed in 1995.'

 

How can they say the accounts were closed in 1995 when in 2007 they still showed outstanding balances, I was still making payments of £2 on each one AND they were chasing me when I missed the payments?

 

Tam - would you suggest that I rewrite that as a letter demanding full details when I resend the SAR? they pointed out that I did not enclose my £10 when I sent the SAR??

 

ta

[tamadus]

You have now achieved the primary goal you set out to achieve, You have written confirmation that the balances are nil and no further action will be taken.

 

Unless you really want to go after the £200 paid to them, which, there is now some doubt you could actually get back, then I'd just taker a look at your credit file and make sure they dont have a default against you, if they have I would go after them to remove it.

 

Otherwise I'd mark that one up as a success.

[zubo]

Tam

 

You are quite correct. I get a winning letter and think - lets see what else I can get. With this case it was always going to be difficult to declare unenforceability for earlier than 6 years ago... not impossible though.

 

I have bigger fish to fry... I will just park this and when I am done come back to it, nothing like lulling into false security.

 

thanks for the advice.