Cap1 & CCA return

[MAGDA]

Hi Amber - you dont have to pay anything - but there's something to be said fot a DMP as it keeps them off your back.

 

Payplan told me they have NEVER come across any debtor who has been statutorily demanded and thus on the way to being made bankrupt and they say that if DCa's do this the OFT fine them and threaten removal of their licence. So the worst that can happen is a court case and judgement and monthly payment as already agreed with DMP so they have nothing to gain by spending money taking you to court.

 

In practice if you stay on the DMP but while in that get the agreements checked for enforceability then pick them off one by one. Also refer to the ombudsman regarding the high interest jacks which have increased the debt.

This is something the FOS have told me they can now look at.

 

By the time you do all that the test cases with Egg etc in March and others will have been heard.

 

 

The elderly person I mentioned further back was making regular payments (quite substantial considering) to Egg on a DMP with CCCS and did not miss a single payment. Egg took her to court (ended up having to attend three hearings). Egg were given a forthwith judgement and the right to seek a charge. I helped the person obtain a redetermination (court refused a set aside) because the court had made so many admin mistakes and they had little choice, and eventually the person was given the right to continue paying by instalments.

 

In actual fact I honestly think it makes little difference whether you are making payments or not (whether through a DMP or independently) because I received four court claims last year and these were all for debts I was paying. As for the fact you are making payments through Paypal, CCCS or whoever, again I think the court aren't really interested in this. That was my experience anyway although of course we all have different opinions and I respect that.

 

Magda

[lexis200]

i think you are referring to CRA's rather than CCCS

 

I'll hush my mouth and read initials twice next time.

[captain2]

Hi All - I have just received a copy of one of my Egg agreements after a wait of over 4 months and I have posted my draft response below -

 

 

''Further to my original letter to you of xxxxxx requesting a copy agreement for each account. One agreement only has now arrived – Egg Blue card.

 

During this time you have defaulted me and unreasonably and unlawfully demanded money.

 

Upon reading the agreement I write as follows –

 

The signature document comprises 2 pages ( the separate undated and unsigned terms and conditions are not contained within the signature document and are thus invalid from the point of the argument noted below) . This 2 page signed document is thus the agreement. The prescribed terms are stated as follows –

 

1. Interest

2. Repayment

3. Credit limit is absent

 

There is no reference to credit limit - ‘limit’ and ‘approved limit’ and ‘individual limit’ is referred to. Thus a prescribed term is missing.

 

Interest charged –

 

This is stated as follows –

 

1.093 per month equating to 12.3% APR at a monthly rate of 1.093 – 13.9 % -

 

This is unclear and contradictory. Under the CCA 1974 the total charge for credit has to be stated within the interest charged. Thus this prescribed term has been mis-stated or effectively not stated.

 

As such your agreement while it might be valid would require a court order to enforce under Section 127 of the CCA such an order cannot be granted where the terms are not stated/correctly.

 

However notwithstanding this the interest rate charged currently and that which has been charged for some time is not 12.3 % it appears to be 26.9%APR. This is more than double the sum stated in your ‘agreement’.

 

Please consider this quick calculation below to illustrate the broad principle I am making -

 

Over a period of 6 years the sum of £10000 at a rate of 12.3% PA is around £1230 interest x 6 = £7380 . At a rate of 26.9 it is £2690.x 6 = £16140. Deduct the £7380 from the £16140 and the sum of £8760 is the difference. Let’s assume the bank base rate in 04 was around 6 per cent and as a result the interest rates should have declined with base rate. When factoring the reduction in rates the gap between the rate charged now and what should be the real rate is even greater.

 

Add to this a County Court flat rate of 8 per cent per annum applied to compensate for the overpayment and the sum overpaid considerably exceeds that which you allege is the balance.

 

Thus that you have defaulted me with no authority, taken money without proper agreement and made major mistakes in the agreement would imply that there may be a considerable mis-statement of even that balance potentially in favour of yourselves.

 

Therefore I require an independent audit of the sum claimed and that this be analysed since the account was opened at your expense in order to confirm or otherwise the precise sum.

 

The agreement is a contract which you have attempted to support by additional terms. These are not valid as they are not contained within the signature document.

 

An attempt as outlined in the agreement to hold a customer for ever to a single rate of interest with no link to base rate is an unfair term. It is also a misrepresentation under that Act of 1967. The Unfair Terms in Consumer Contracts 1999 section 5 as follows -

 

5. - (1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.

 

(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.

 

Following the independent auditors report on accuracy and confirmation of the various interest rates agreed and adjusted as being reasonable when Section 5 of the Regulations is applied there may be a refund due to me.

 

Please respond to this letter within 14 days.

 

Due to the length of time taken to respond to my request for copy agreement from xxx to xxx I am now advising you that should your substantive reply be not forthcoming within 8 weeks I will refer the matter to the FOS.

 

Yours faithfully,''

 

I have more material I am holding back at present in order to get a reply. But in my experience so far I'm not expecting a substantive reply.

 

Comments advice would be welcomed ......

[Saint2K]

Hello!

 

Quick question. For those who have received invalid, uneforceable CCA, and have ceased repayments.

 

How long has it been since you last paid, and how has the journey been since stopping payments?

[Gallahad]

Hello!

 

Quick question. For those who have received invalid, uneforceable CCA, and have ceased repayments.

 

How long has it been since you last paid, and how has the journey been since stopping payments?

 

8 months and lots of threats, phone calls from cccs and dcas in early months. Phone calls infrequent now and just keep answering letters with account in dispute replies. Had default notice from 9 out of 10 all dodgy and been terminated by 3 and passed on to dcas by 9

G

[captain2]

Hi there - i stopped I think in March and so far none of the debts have been sold on and no threat of court action - Capital One has referred to a set a.s.hol.s called Frederickson but withdrew that as soon as I referred the matter to the ombudsman.

 

The others such as M&S and Monument the worst two are never off the phone not that I take any calls as my mobile is set on silent all the time.

MBNA and Egg the biggest debts by far hardly make any contact except default letters. Mint cant remember when I last heard but I think they've referred it to a DCA but i've not replied to them yet. Monument have finally ceased but only because the ombudsman has probably started to investigate.

 

I'm gradually getting each one across to the ombudsman and then he will have it for 6 - 9 months by which time the test cases will have been heard. My second line of defence is enforceability. MBNA agreement contains a mis-sold PPI and I understand that taints any enforceable agreement rendering it unenforceable potentially and it looked unenforceable in any event. Egg agreements are probably not enforceable but if they are the interest is my first line of attack there then the ombudsman then enforceability issue.

HSBC have fallen off the edge of the radar too since the FOS wrote to them but they admitted they have no agreement at first then all letters after have been generic reconstructed con trick rubbish.

 

Hope that helps. Its great not paying them. My optimism waxes and wanes but overall I would have been a mug to have carried on when I cant even pay my mortgage plus Ive already paid the b.st..ds much more than they are justified in receiving. But consumers cant default them but we/they can use CCA, unfair contracts terms regs etc....

[Saint2K]

Thanks for the replies.

 

I guess my main concern about going down the CCA unenforceability route is if I stop paying all of my creditors, which would leave at present an overall debt balance of £30,000.

 

Lets say I get no valid CCA from any of them, then not paying them is lawful, however I will obviously have to endure months/years of letters, and maybe even court action, which I would have to defend based on the above.

 

So, lets say that is a risk well worth taking, then I guess my main concern would be not paying for say 2 years, then for an enforceable agreement to be located by the creditor and supplied, at that stage I've basically lost out on making two years worth of repayments, and no doubt my balance will be larger due to interest, and as above, due to not paying.

 

I guess I'm just trying to weigh up my options, and analyze risk/benefit.

 

But it is good to hear people have gone many years without any agreement being supplied, and no further action being taken by the creditor.

[MAGDA]

I think that varies from person to person. I stopped paying on a lot of my 'credit agreements' in 2007 and most of them have ceased to pursue them - (others I continued to pay have resulted in court claims by the creditor). Some of the creditors acknowledged that they didn't have enforceable agreements (or any agreement) and closed the accounts and confirmed they would not make any further attempt to recover them. Others, such as Cabot went quiet for around a year (non enforceable MBNA agreement) and have recently issued a court claim. On the whole, I would say around 75% of my debts have not caused me any problem since 2007 (when I orignally requested the CCA) but that doesn't mean of course that some of them won't reappear at some point. Apart from the court claims I'm currently dealing with (Nwest for an overdraft I was paying, and Cabot) my debts/repayments are dramatically less. If you stick to your guns a lot of them (most) will go away, but not before trying every trick in the book to get you to pay.

 

Magda

 

Magda

[Jeff2000]

Hello!

 

Quick question. For those who have received invalid, uneforceable CCA, and have ceased repayments.

 

How long has it been since you last paid, and how has the journey been since stopping payments?

 

 

Hi,

 

Over 3 three years now with most creditors. Plenty of threats etc. Usually passed from one DCA to another.

 

Only one has so for tried to take the matter to court.

 

They failed!

[MAGDA]

Thanks for the replies.

 

I guess my main concern about going down the CCA unenforceability route is if I stop paying all of my creditors, which would leave at present an overall debt balance of £30,000.

 

Lets say I get no valid CCA from any of them, then not paying them is lawful, however I will obviously have to endure months/years of letters, and maybe even court action, which I would have to defend based on the above.

 

So, lets say that is a risk well worth taking, then I guess my main concern would be not paying for say 2 years, then for an enforceable agreement to be located by the creditor and supplied, at that stage I've basically lost out on making two years worth of repayments, and no doubt my balance will be larger due to interest, and as above, due to not paying.

 

I guess I'm just trying to weigh up my options, and analyze risk/benefit.

 

But it is good to hear people have gone many years without any agreement being supplied, and no further action being taken by the creditor.

 

 

The creditors with unenforceable agreements will not normally take you to court IMO, it is just as likely to be the ones you are making payments to, because they want more and more that you cannot afford to pay. I've had six court claims issued against me in the last year and a half, all of which were accounts I was paying on, apart from Cabot. The ones I haven't paid have been fine. I successfully defended four, and now have the other two to deal with in the New Year.

 

I think it is well worth ceasing payments on the non-enforceable ones and, yes, you might get a bit of hassle for a while but eventually theywill go away. I had months of letters from RBS and Nwest for credit cards, but I stuck to my guns and they did give up in the end. Either way, you have to be prepared to be taken to court.

 

Good luck whichever way you decide to go.

 

Magda

[Gallahad]

Thanks for the replies.

 

I guess my main concern about going down the CCA unenforceability route is if I stop paying all of my creditors, which would leave at present an overall debt balance of £30,000.

 

Lets say I get no valid CCA from any of them, then not paying them is lawful, however I will obviously have to endure months/years of letters, and maybe even court action, which I would have to defend based on the above.

 

So, lets say that is a risk well worth taking, then I guess my main concern would be not paying for say 2 years, then for an enforceable agreement to be located by the creditor and supplied, at that stage I've basically lost out on making two years worth of repayments, and no doubt my balance will be larger due to interest, and as above, due to not paying.

 

There is one other scenario which you have not factored in. A very important aspect where they frequently trip them selves up. They often issue default notices which do not meet statute requirements then follow these with a termination of account. Once they have done both they are then only able to claim arrears at time of default even if they later produce and enforcable agreement.

G

[Liz Southern]

Hi Gallahad, thanks for the info, hadn't realised these organisations aren't supposed to give legal advice, because they do seem to. What worries me is that they inevitably advise people to admit the claim, which they really shouldn't be doing.

 

regards, Magda:-)

Hi Peeps

Gallahad's is a valid point, but an independent claims and debt management company (I work for one, not touting!) will never tell you to admit any debt. You always deny it all. You send back the acknowledgement of service, you put in a defence, and fight your corner. Independent C&DM companies will give legal advice, and have solicitors & barristers attached to them for the Court work.

 

Your lady who got a CCJ against her? If she didn't have legal representation she can apply to have it overturned.

 

Bye

Liz

[Saint2K]

There is one other scenario which you have not factored in. A very important aspect where they frequently trip them selves up. They often issue default notices which do not meet statute requirements then follow these with a termination of account. Once they have done both they are then only able to claim arrears at time of default even if they later produce and enforcable agreement.

G

 

Hi Gallahad,

 

So are you suggesting I should also proceed down the DN route at the same time as the CCA?

 

To be honest, I'm not sure what creditors have served notices, and which have not. I do have copies of some, but I know I don't have a DN for all my creditors.

 

Is there anyway I can request a copy of the original DN? ... So not some new modified version, but the original which they should have served on me?

 

Sorry, I know the DN is not relevant to the title of this thread, but if you point me in the right direction then I can start another thread.

 

Regards to the replies about the CCA, you're right, it's a risk either way, I've always just felt that if you're paying them, then they're less likely to take any further action.

 

I guess I could always put money aside should any agreements become enforceable, and then use that to clear those debts?

[Gallahad]

 

Hi Gallahad,

 

So are you suggesting I should also proceed down the DN route at the same time as the CCA?

 

To be honest, I'm not sure what creditors have served notices, and which have not. I do have copies of some, but I know I don't have a DN for all my creditors.

 

Is there anyway I can request a copy of the original DN? ... So not some new modified version, but the original which they should have served on me?

 

Sorry, I know the DN is not relevant to the title of this thread, but if you point me in the right direction then I can start another thread.

 

Regards to the replies about the CCA, you're right, it's a risk either way, I've always just felt that if you're paying them, then they're less likely to take any further action.

 

I guess I could always put money aside should any agreements become enforceable, and then use that to clear those debts?

 

Best to sit tight and wait for DN notices to arrive then post them on here and one of the site team will tell you whether it is faulty. Always keep envelopes in which DN was posted to you. Once they are confirmed as faulty sit tight and pray for the termination to arrive when this has happened your total indebtedness will be only what the true arrears where at the time of the default.

[Saint2K]

Thanks, I've posted on the invalid DN thread for some further help.

 

I'm going to have a think about the CCA route, and make a decision soon enough.

[captain2]

As far as I can see the option is simple - if you want to continue paying interest on £30k plus capital over next few years which before tax is more like £50k - if you've had same core balance already for 6 years they have already had more interest than you will originally have signed up for -

 

- or - stop paying - a DMP will usually freeze interest and if you can get into one then pick them off one by one down unenforceable route wherever possible -

 

- or - have you tried FOS yet on unfair interest ? Its free and they daren't step out of line while thats going on -

 

and you then still have the option of court after that by which time the test cases will have been heard and there may be much more clarity ?

 

Its very easy to refer to FOS simply fill form in on line, print it off, sign it and send with any other copy letters. You have to first wait for final reply from the creditor or 8 weeks for no response whichever is soonest -

 

- or - claim company who will do the work for you after the ombudsman has ruled if its not in your favour - the FOS ruling is not court decision - but it is binding on the creditor as part of agreement to the Banking Code - if creditor ignores that they run risk of licence not being renewed - but decision is not binding on the debtor -

[Bigdebtor]

- or - have you tried FOS yet on unfair interest ? Its free and they daren't step out of line while thats going on -

 

--

 

Captain 2. Given the legal definition of "unfair" differs substantially from the moral one (which we would all recognise) - how do you claim to FOS that your interest rate has been unfair?

 

I ask because I have just realised that my "unsecured" overdraft on which I have been paying interest of either 19.5% apr (or 29.5% when I went over limit) is actually secured on my house as part of the standard security. The Bank just says that by not paying off my overdraft (as if!) I am deemed to have accepted the rate offered. Can I ask for this to be recalculated at the much lower secured interst rate?

 

BD

[AnimalMagic]

The creditors with unenforceable agreements will not normally take you to court IMO,

 

Not so. I have a claim against me from 1st Crud for a credit card I've never had! They went to court, though they have yet to succeed - case still under way.

[Bigdebtor]

The same company is chasing me - but the card number they quote is one I never had - although I did have a card with the same company with the same outstanding balance.

 

I am really looking forward to them trying to go all the way!

 

BD

[Gallahad]

I too have one like that BD and can't wait for them to go for it.

[AnimalMagic]

In my case I have 3, none of which I recognise and none of which are for companies I've ever had dealings with.

 

They produced an unreadable 'agreement' in court for a company which I did have a card with - over 20 years ago and which was returned about 20 years ago when we moved abroad. It will be interesting if they can come up with any documentation connecting the two...

[andrew1]

If you do decide to stop paying for whatever reason and your case goes to court and lose or get the case adjourned or whatever, the Judge may well say that if you are questioning the agreement and wanted to challenge it in court there was always the possibility you would lose and therefore you would be expected to have made provision to keep the payments due to one side. That happened to me. Keep it in mind as you might be expected to make the normal payments + an amount against the arrears whilst you are waiting for the trial.

[MAGDA]

Not so. I have a claim against me from 1st Crud for a credit card I've never had! They went to court, though they have yet to succeed - case still under way.

 

Hi Animal, I'm not saying they never take you to court, I'm saying it is just as likely, and in my experience more so, to be taken to court on the ones you are paying. The fact that you are paying does not preclude them from doing this and if the creditor convinces the judge that your repayments are too small to clear the debt within a set time, then the fact that you previously made payments doesn't make a lot of difference to the court either (from my experience)

 

Magda

[MAGDA]

If you do decide to stop paying for whatever reason and your case goes to court and lose or get the case adjourned or whatever, the Judge may well say that if you are questioning the agreement and wanted to challenge it in court there was always the possibility you would lose and therefore you would be expected to have made provision to keep the payments due to one side. That happened to me. Keep it in mind as you might be expected to make the normal payments + an amount against the arrears whilst you are waiting for the trial.

 

Surely if you are challenging the agreement in court you should be pretty certain it is unenforcable before doing that. If you are disputing and defending a claim why should you continue to make payments - I think the judge in your case was very wrong to expect that.

 

Magda

[lexis200]

As far as I can see the option is simple - if you want to continue paying interest on £30k plus capital over next few years which before tax is more like £50k - if you've had same core balance already for 6 years they have already had more interest than you will originally have signed up for -

 

- or - stop paying - a DMP will usually freeze interest and if you can get into one then pick them off one by one down unenforceable route wherever possible -And they will hound you, threaten to or actually take you to court and ruin your credit rating. Fine if you are capable of dealing with the stress and don't need your rating, but a big factor that you need to consider before bandying it round as a simple option.

 

- or - have you tried FOS yet on unfair interest ? Its free and they daren't step out of line while thats going on - erm, if you look round the threads you'll see they often don't give a toss that stuff is with the FOS.

 

and you then still have the option of court after that by which time the test cases will have been heard and there may be much more clarity ?

 

Its very easy to refer to FOS simply fill form in on line, print it off, sign it and send with any other copy letters. You have to first wait for final reply from the creditor or 8 weeks for no response whichever is soonest -

 

- or - claim company who will do the work for you after the ombudsman has ruled if its not in your favour - the FOS ruling is not court decision - but it is binding on the creditor as part of agreement to the Banking Code - if creditor ignores that they run risk of licence not being renewed - but decision is not binding on the debtor -

 

Sorry, not trying to shoot you down in flames here but it is not a rosy picture and things don't always go as they should, so I personally think it's very dangerous to say things which imply stopping paying is a simple option, or that certain actions will definitely stop them harassing you.