Possible removal of default on credit file following victory of Durkin vs. HFC?

[User4]

Hello all,

 

To get to the point I'd actually like advice on, I'll have to run through the story so far, I'll try to be as brief as possible.

 

Around 2-3 years ago I ran into financial difficulties and began struggling to pay the minimum amount on my Amazon credit card (administered by Halifax).

 

It didn't take long before it was referred to a DCA but, as my situation hadn't improved, I was unable to pay the amount they were requesting. After several threats of court action but none taken, I became suspicious that the debt may be unenforceable, so I sent a CCA request.

 

At first sight their reply looked like I didn't have a leg to stand on, but after closer inspection (and research on this site) I realised that what they had sent was merely a web application, printed and signed by me, accompanied by an unsigned CCA.

 

The DCA continued with the threats of court action but, to my surprise, agreed to my proposal to pay a nominal amount each month, which will take more than a lifetime to discharge.

 

I guess I could have not bothered with the payments but since it doesn't impact my life much, I decided it was the best way to keep the peace. However, the subsequent default on my credit file has impeded my ability to get further credit, especially mortgages.

 

So it was with joy that I greeted the victory of Durkin over HFC in yesterday's Supreme Court ruling. The CAG email I received this morning reports that "the judgment means that banks have a duty of care to ensure that an agreement is enforceable before they issue a default on a credit file, otherwise they are liable for damages".

 

This has prompted me to consider writing to ask that the default be removed from my file, but I realise that if they concede, Halifax are admitting the debt is unenforceable. It may be too early to be asking what the implications of this ruling are, but I'd appreciate any opinions or advice.

[fkofilee]

Welcome to CAG... Quite simply the answer to your thread is No...

You still had the credit card yes? You still paid xyz to them? Yes?

 

Simple it wont be removed for 6 years until account closure / Default...

 

The difference between your case and the one from the news is that he RETURNED the goods, you havent done that as it was a Credit Card where as his was a loan for a Laptop

[ncf355]

Welcome to CAG... Quite simply the answer to your thread is No...

 

You still had the credit card yes? You still paid xyz to them? Yes?

 

 

 

Simple it wont be removed for 6 years until account closure / Default...

 

 

 

The difference between your case and the one from the news is that he RETURNED the goods, you havent done that as it was a Credit Card where as his was a loan for a Laptop

 

 

 

 

 

FK

 

Whilst in this case it's of little use use due to the agreement being a post April 2007 Internet application, and therefore subject to a judge's opinion on whether or not it's enforceable (though I'd be interested to see scans of the agreement copies), I don't think this is as clear as you make it out to be.

 

There are rumblings that the Supreme Court definition of Enforceable could indeed be used to get creditors to remove defaults where the agreement is found unenforceable,this is not limited to situations like Durkin, but is also thought to cover those where the agreement is unenforceable under CCA 1974 S127(3),etc.

[fkofilee]

Hmmmm.... You pose an interesting point here NCF... My thought here are is that while the Durkin case was found in favour of Durkin... This was due to him returning the Laptop in question etc etc and should have nulled the credit agreement.

However in this case listed for user4 they HAD a credit card that they used etc and it defaulted due to non payment...

 

You make a fair point about the potential to remove a Default due to an unenforceable CCA and are certainly right about it covering the whole spectrum of the CCA 1974, However IMHO i dont think it would work in this case.

[User4]

Thank you for your responses.

 

Whilst in this case it's of little use use due to the agreement being a post April 2007 Internet application

 

It was pre April 2007.

IMO, my agreement must be unenforceable or I would have been hauled in front of Court 2 years ago.

 

I don't think this is as clear as you make it out to be

 

Neither do I. Durkin vs. HFC sets a new precedent. The question is whether this judgement applies retrospectively.

[IdaInFife]

why must it be unenforceable?

 

I have an agreement that is enforceable for over 12 years and the lender has never taken action

[User4]

Maybe my assumption is incorrect. I figured that no creditor would accept payment terms that will take over 100 years to repay the debt unless they have no other course of action.

 

Are you in default? Are you still paying the debt off? Is the agreement pre April 2007? How are you so sure it is enforceable? Why do you think they have not taken any action? Your reply leaves out a lot of crucial information.

[citizenB]

 

 

Neither do I. Durkin vs. HFC sets a new precedent. The question is whether this judgement applies retrospectively.

 

Apparently it is retrospective and backdated to 2004/05

[steampowered]

Assuming that the debt is unenforceable (you'd need to prove this in court), you pose an interesting question, whether it is wrong for a financial institution to place a default marker where a debt was created but is not enforceable due to non-compliance with the CCA.

 

I'm not aware of any case law which gives a clear answer to this question. Durkin's case is a little different since in that case there was never any debt to begin with, it wasn't a matter of there being a debt which is unenforceable.

[User4]

The situation hasn't changed, I'm still paying the nominal amount to the DCA and no further action has been taken to recover the debt.

Is there a way I can challenge the validity of the debt based on the fact they only produced a signed web application rather than the proper signed CCA?

[User4]

Bump