Link & response to MBNA CCA letter ** LINK HAVE CLOSED THEIR FILE **

[Hannay100]

Split out from http://www.consumeractiongroup.co.uk/forum/showthread.php?396381-Observations-please-on-how-I-hope-to-deal-with-a-number-of-debts , addressing a group of debts.

 

CCA letters sent to most, posting individual cases separately now as each progresses:

 

**************

 

I have received a reply from Link Financial Outsourcing acknowledging my CCA request and stating that a copy of the Agreement and most recent T&Cs has been requested from the original holder of the debt, and that this can take up to 30 days.

 

Whilst this appears to be a reasonable statement, does it actually alter matters as far as their obligation under s.77/78 is concerned? Do I allow them the extra time to take those external steps, or adhere to 12+2 days and send failure to comply letter if nothing has by then been provided?

[renegadeimp]

They get 12+2 not whatever amount they like.

[renegadeimp]

If they fail to reply in that time then send the non compliance letter and get the debt into deep dispute

[Peterbard]

Split out from http://www.consumeractiongroup.co.uk/forum/showthread.php?396381-Observations-please-on-how-I-hope-to-deal-with-a-number-of-debts , addressing a group of debts.

 

CCA letters sent to most, posting individual cases separately now as each progresses:

 

**************

 

I have received a reply from Link Financial Outsourcing acknowledging my CCA request and stating that a copy of the Agreement and most recent T&Cs has been requested from the original holder of the debt, and that this can take up to 30 days.

 

Whilst this appears to be a reasonable statement, does it actually alter matters as far as their obligation under s.77/78 is concerned? Do I allow them the extra time to take those external steps, or adhere to 12+2 days and send failure to comply letter if nothing has by then been provided?

 

It does not make a lot of difference really, none compliance with the request merely means they cannot enforce in court, something which they probably weren't prepared to do anyway at this juncture.

 

When the act was drafted there used to be a further sanction which stated that the creditor wold have committed a criminal offence if he did not comply, but this was repealed in 2008 by CPUTR.

[Hannay100]

Thank you for the strong consensus, 12+2 it will be.

 

But interestingly ....

 

I am now aware that the debt was actually purchased from the original debt-holder a high street Bank, not being managed on their behalf. From further deep-seam mining at the CAG coalface since lunchtime I believe the following to be true under those circumstances. Can someone confirm my logic, or correct it if appropriate?

 

- My relationship/liability in that original regard ceased with the on-sale of the debt, and therefore no longer exists nor can be resurrected.

 

- I do not have a contract with the DCA, who at one point simply introduced themselves and required a payment plan. They will not therefore be able to provide a relevant CCA in response to my request anyway as none exists.

 

- Any CCA copy that they may pass-through from the original debt-holder per their present letter will be meaningless as it does not apply to dealings between the DCA and me.

 

- They therefore do not have an enforceable position.

 

And just a thought, but if those are correct am I entitled to reclaiim the cash-cowed payments that I have been making, on the basis of coersion by omission, or misrepresentation perhaps? Or is it one to chalk up to experience?

[Peterbard]

Firstly 12+2 is absolutely meaningless, the failure to comply does not enable the debtor to place the agreement in dispute.

 

Secondly the original creditor is quite entitled to assign the debt to anyone he likes, the new owner will be fully entitled in law to purse you for the debt.

[theoldrouge]

The cca from the original creditor will be enforceable provided it is a true and accurate copy of your original agreement

[theoldrouge]

To give you a better understanding of what you are requesting,I would suggest that you have a read of the Office Of Fair Trading Guidance to s77/78 of the CCA 1974 it will help you to understand your requests

[Hannay100]

Thank you for the further clarifications, from which I understand that original Agreements do indeed convey entitlements to subsequent owners also.

 

In fact this appears on the surface to go against clear advice to the contrary given on another thread that I came across at lunchtime, hence my need to make sure one way or another as different actions would be suggested by each. I have spent much of the past hour trying to find that earlier post again in case it was considered appropriate to add a note there in order not to misdirect others now too, however with no success at all in this maze.

 

And in case it needs to be said, I have no wish to duck legitimate debts. I have been strongly urged however in the thread linked at the top of my opening post, to establish that the numerous debts that I want to address differently now in retirement are all in fact legitimate/enforceable ones .. CCA letters were/are appropriate steps.

 

Again, thanks for the clarification.

[Peterbard]

For clarification opf the situation regarding assignment of debt see http://www.bailii.org/ew/cases/EWHC/QB/2012/2402.html

 

For clarification re copy agreements see carey vs HSBC [2009] EWHC 3417 (QB)

 

By all means send for copies but they are only of any use for providing information, if you are seeking to prevent enforcement of the agreement using section 78 you will be disappointed I am afraid, that boat sailed a long time ago.

 

Fortunately they do generally(but not always) require the original to get an enforcement order under section 65 (127(1))

[Hannay100]

The follow-through on that is appreciated, Dodgeball, thank you.

 

I am far from knowledgeable in these matters though learning, and value greatly the advice and guidance I have received on the few occasions I have needed some sharper focus.

 

In this case it is simply (?) an information gathering exercise just now, as with help from others here I am firstly establishing the legitimacy/enforceability of a number of debts before then taking appropriate next-steps. I am not getting any younger, and need to address various personal matters including more debts than I would wish to have at this time.

 

Legitimate debts will be the subject of approaches regarding settlement, whereas should any be found to be dubious a little further attention will follow.

[Peterbard]

I would always, consider the unenforceable option as a last resort,

the avenues available to credit card unenforceability have been eroded by successive judgments,

if there is an agreement and it contains the prescribed terms and a debtors signature it can be enforced ,

 

there have also been cases where CC agreements have been enforced when no agreement was present

The creditor has only to show that it was probable that an agreement was signed in a civil case of course.

 

The best advice in these cases is for the debtor to make a positive declaration, ie. i did not sign, rather than just i do not remember in order to shift the balance in his favour.

 

Not to say that creditors always enforce a kosher agreement anyway, many times it is not worth their while,

so they sell to a DCA who hounds the poor old debtor until it becomes statute barred.

 

Sorry rambling

Good luck anyway

[renegadeimp]

Reading the other thread., you say you have paid £5 a month since 04. This smells BIG TIME of you begin a major cash cow for them. The debt is obviously a lemon debt and chances are that it is the paperwork that is bad. No DCA agrees to £5 a month for 9 years unless there is something very wrong with the debt.

 

THe fact that they state they need at least 30 days, gives us a very strong indication of the status of the debt. If i were you, i would stop all payments until that paperwork comes through.

[Hannay100]

Reading the other thread., you say you have paid £5 a month since 04. This smells BIG TIME of you begin a major cash cow ....

 

Indeed yes, and that was felt likely to be the case with others given there also hence the strong urgings to CCA them all and see what might be discovered!

 

That was also the place I first became aware of the phrase "cash-cowed". Being unfamiliar with the handling of debts at this level I did what I believed to be the *right* thing in the past and made repayment arrangements that have just run since ... seems to be the dictionary definition of the term!

 

Thank you for the input, it is appreciated.

[Hannay100]

Dodgeball: Not rambling, sharing knowledgeable insights - for which I thank you

[renegadeimp]

WHenever ANYONE deals with link, you must press them hard using a CCA request and a SAR to ascertain the exact status of the debt. The owner is very well known for lying, cheating and spoofing people to pay when they dont have to. Thats why he is a multi-millionaire. He made his money conning people and still does it.

[dx100uk]

yep.

 

rule book out the window here.

 

this is link you are dealing with.

 

never ever take any law or anything they say for granted.

 

show me any enforceable cca.

 

till then [once outside the 12+2 working days time limit]

 

i'm quite within my rights to refuse any payment.

 

and i'll let you ack its in dispute.

 

cag is about questioning and challenging ........

 

dx

[Peterbard]

The problem is that failure to respond to a CCA does not put a debt into dispute.

 

After the 12+2 they can still press for payment , and if and when they produce the copy you will be liable for all payments missed whether within the default period or not.

 

I dislike DCAs and this particular one in particular myself, but the OP deserves to have the facts, read here section 2.9 but the rest is also instructive.

 

http://www.oft.gov.uk/shared_oft/consultations/OFT1175con.pdf

[renegadeimp]

Thats the point. Link rarely ever have the paperwork. Theyve already proved this with their reply to the OP

[renegadeimp]

Also:

 

What if the lender does not comply with the request?

 

Your lender must provide you with the information within 12 working days of

receiving your request. After the 12 days are up, if the lender has not provided

the information then the agreement is unenforceable until they do provide the

information.

'Unenforceable' does not mean that your debt is wiped out. Any outstanding

debt is still owed, but there are some consequences for the lender’s ability to

enforce the debt.

 

If you do not make payments when your debt is 'unenforceable' it means that:

 

• Your lender cannot

- demand earlier payments of your debt

- threaten court action

- take possession of anything that you bought on credit, or

which you used as security when you took out the

agreement.

 

• Your lender can

- request payment from you

- issue a default notice

- pass details of your default to a credit reference agency

30- pass your information onto a debt collector

[Peterbard]

Also:

 

Yes notice the last paragraph, he can still "make requests for payment", if the account was in dispute he would not be able to do this, failure to comply therefore does not automatically place an account in dispute.

 

The only sanctions are that they cannot enforce in court and they can remedy this by just issuing a re-constituted copy.

 

It must be mentioned that even a statement of unenforceabilty by the creditor does not mean that the agreement is irredeemably unenforceable, just that at that time the information is not available, DCA's and creditors have issued these notices and then at a later date come up with a re constituted copy.

[renegadeimp]

Request is not the same as demand, which in this case is a huge difference. Before the CCA is requested, they can demand payment. Once the CCA is requested, until that CCA or a compliant reproduction ) post apr 2007, is produced, all they can do is ask. Any demands can be dealt with in the form of a complaint and/or a non compliance letter.

 

They can, as you say get a reconstituted copy, but it must meet requirements and cannot be used for pre-2007 agreements. if they were to go anywhere near a court for a pre 2007 debt, they would need the original, plus all terms and conditions thereafter. THAT is why we always advise to get the paperwork in order before paying any debt is even considered.

[Peterbard]

Have to dissagree, once an agreement has been terminated all sums under it become due upon demand, this is irrespective of any compliance with the copy regulations of the act.

 

The only sanction applied to the collection procedure is the inability to commence court proceedings, but demands for payment in the legal sense can still be made, just not enforced in a court of law.

 

The guidelines are quite clear on this, as is the case law.

[Peterbard]

[quote=renegadeimp;4289334

 

They can, as you say get a reconstituted copy, but it must meet requirements and cannot be used for pre-2007 agreements. if they were to go anywhere near a court for a pre 2007 debt, they would need the original, plus all terms and conditions thereafter. THAT is why we always advise to get the paperwork in order before paying any debt is even considered.

 

Have to say as mentioned earlier this is also not totally true. Even on pre 2007 agreements the court can enforce, section 127(3) only says that an enforcement order will only be granted if an agreement was signed it says nothing about the production of a document, this was pointed out in Cary(in relation to enforcement under section 127) and is also alluded to in this mentioned earlier on this thread section 2.9.

 

Fortunately courts are currently reluctant to use this power, and err on the side of the debtor if no agreement is present, but there have been cases where agreements have been enforced in this manner, particularly when the creditor demonstrates that on the balance of probabilities an agreement was signed , either by witness statement or other evident proof.

 

http://www.oft.gov.uk/shared_oft/consultations/OFT1175con.pdf

Edited July 17, 2013 by Dodgeball
english

[Hannay100]

WHenever ANYONE deals with link, you must press them hard using a CCA request and a SAR to ascertain the exact status of the debt. The owner is very well known for lying, cheating and spoofing people to pay when they dont have to. Thats why he is a multi-millionaire. He made his money conning people and still does it.

 

Firstly, thanks to you and to Dodgeball for the most interesting exchanges on points of interpretation ... I have discovered that if I hold on to my ears tight enough I can manage to stop my head spinning for a while ...

 

If dates are still at all relevant in that context, I can confirm that all is pre-2007 ... it has been Link all the way from 2004 when they bought the debt, and I don't know without looking just when the original account/agreement was entered in to but it would have been some years before then ... guessing mid-late 90s right now.

 

But anyway, regarding the quoted words ...

 

I should SAR Link?

 

Now?

 

Or await outcome of current CCA request?

 

Seeing the very bad taste that everyone seems to have about them I want to be prepared.

Edited July 17, 2013 by Hannay100