Grace & anr -v- Black Horse ltd - major headache for CRAs???????

[Peterbard]

I think care miust be taken , we do not want people thinking that this case will automatically allow debtors to claim for damages on a default placed when a section 78 request has not been complied with. The argument was about an irredeemably unenforceable agreement, the judge went to great pains to distance the agreement form McGuffic and the section 77 requirements.

 

This is not to say that a similar argument cannot be applied to the copy agreement requirements, but this would be for another court to decide. Unenforceability under section 127 is a fundamentally different thing to the unenforceability under the copy requirements.

As said the argument would have to be made that it was equally incorrect to label the debtor a defaulter(without any added clarification) if the agreement was only temporarily unenforceable. Personally I think that this would be a difficult argument to make, as the money is still payable when a copy is produced, it is not as clearly an incorrect entry as in an irredeemably unenforceable agreement, but as said that would be for a future court to decide, so far, as far as copy agreement are concerned McGuffic is still the binding authority.

[pat5y]

So does this mean if Cabot say "Your credit agreement is currently unenforceable which means we are not permitted to obtain a judgement or decree against you in court" because they do not have a CCA can I now write to them and ask them to take the default off my credit file?

 

Thanks

[theoldrouge]

not as a result of this case

[pat5y]

not as a result of this case

Thanks for replying I just received an email from CAG telling me about this case, with a link to the thread and I tried to read and understand the previous posts. However, I'm afraid it's all double dutch to me. So thank you for your answer.

[theoldrouge]

see post #51

[silverfox1961]

If a judge was to say that the agreement was IRREDEEMABLY unenforceable then you could get the data removed. No DCA is going to say they cannot, nor ever will be able to find an agreement which is why loads will say that they 'currently' are unable to provide the agreement. This could go on for many, many years.

[Tryst]

I believe that this should be extended to debts that have been cleared. They should be completely removed from your record since there is no longer a debt to be enforced.

 

A person who has worked hard to clear debts that may have arisen from being made redundant etc, (no fault of their own), could still be blacklisted because those debts still appear on the credit report. Most creditors don't look at the notes to see what action has been taken or if the debt no longer exists, they just look at the number of entries and make their decision from there.

 

Most of the time, the credit reference agencies expect you to pay to have entries removed if they are no longer valid. This should be automatic, as soon as the debt is cleared, it should be removed from your file at no cost. They didn't charge you to place that entry, they shouldn't be charging you to have it removed.

 

A debt report should also be filtered so that any debts to names other than the one you gave do not appear. Too many times, I have been turned down because the previous tenant in my home left the address with many bad debts. Again, the creditor sees too many entries at that address without actually checking the name of the debtor to see if was you or not.

[spartathisis]

Looks like my pursuit of HSBC may come to fruition:

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?312177-HSBC-no-CCA/page12

 

1st Credit confirmed they returned the purchased account to HSBC because there was 'no agreement they could take legal action with'.

My position is no agreement = no permission to report to CRA's, which is along the line of this judgement from the looks of it.

[Drowning but not sunk...]

Sorry if this sounds lame or stupid.

 

 

if you have a debt that is SB then can a DCA issue a default on the account at anytime?

 

 

So in effect the defaults never stop?

 

 

I have lots of debts that are older than six years that seem to be sold on and I get new letters

- can the new DCA plant a new default?

[havinastella]

Sorry if this sounds lame or stupid. But if you have a debt that is SB then can a DCA issue a default on the account at anytime? So in effect the defaults never stop? I have lots of debts that are older than six years that seem to be sold on and I get new letters - can the new DCA plant a new default?

 

NO.

 

The account should have been defaulted before it was sold on. When sold on, the default name would change, but not the date.

[dx100uk]

nope

only the OC can issue a default notice - true default.

[but they don't 'have' to register it mind!]

 

 

anyone that owns the debt, be it a debt buyer or the OC

can update the default or the monthly 'markers'

but can never 'change' the original defaulted date.

 

 

.

All references to a defaulted debt must be removed from your credit files after 6 years

has passed from date of default, whether paid off or not.

.

the WHOLE ACCOUNT WILL VANISH, never to return.

.

however, this does not mean the debt itself is not still owed

consider a CCA request.

.

This is so that someone who continues paying something

- even after 6 years from default

- should not be at a disadvantage to someone who pays nothing after default

and ends up with a clean file after 6 years.

 

 

dx

[pat5y]

nope

only the OC can issue a default notice - true default.

[but they don't 'have' to register it mind!]

 

 

anyone that owns the debt, be it a debt buyer or the OC

can update the default or the monthly 'markers'

but can never 'change' the original defaulted date.

 

 

.

All references to a defaulted debt must be removed from your credit files after 6 years

has passed from date of default, whether paid off or not.

.

the WHOLE ACCOUNT WILL VANISH, never to return.

.

however, this does not mean the debt itself is not still owed

consider a CCA request.

.

This is so that someone who continues paying something

- even after 6 years from default

- should not be at a disadvantage to someone who pays nothing after default

and ends up with a clean file after 6 years.

 

 

dx

Thank you for explaining that to me, it is now clearer! I have previously requested a CCA and was told that they do not have one!

[Peterbard]

Yes as said above.

The issue is the correct recording of the default. Even if the debt wa cleared subsequent to the account being defaulted, the recording of default would be correct, it did happen.

 

In Grace, the default was recorded after the accounts was declared to be unenforceable, so at that time the recording of the default was inaccurate, in that it did not reflect the true condition of the account at that time(irredeemably unenforceable)

 

As said above if the DCA/ creditor says that he cannot produce an agreement currently, it does not mean that he is admitting the account is irredeemably unenforceable, just temporarily so, as SF says this could run and run.

[citizenB]

Yes as said above.

The issue is the correct recording of the default. Even if the debt wa cleared subsequent to the account being defaulted, the recording of default would be correct, it did happen.

 

In Grace, the default was recorded after the accounts was declared to be unenforceable, so at that time the recording of the default was inaccurate, in that it did not reflect the true condition of the account at that time(irredeemably unenforceable)

 

As said above if the DCA/ creditor says that he cannot produce an agreement currently, it does not mean that he is admitting the account is irredeemably unenforceable, just temporarily so, as SF says this could run and run.

 

Which is grossly unfair if they know they will never be able to produce an agreement.

[Windywoo]

I have an old catalogue debt which was deemed unenforceable and subsequently defaulted as there was never any credit agreement!

 

Could I now write to them asking for the default to be removed - it's got another couple of years before it drops of my report?!

[silverfox1961]

I have an old catalogue debt which was deemed unenforceable and subsequently defaulted as there was never any credit agreement!

 

Could I now write to them asking for the default to be removed - it's got another couple of years before it drops of my report?!

 

Was this deemed unenforceable by a court?

[pat5y]

Yes as said above.

The issue is the correct recording of the default. Even if the debt wa cleared subsequent to the account being defaulted, the recording of default would be correct, it did happen.

 

In Grace, the default was recorded after the accounts was declared to be unenforceable, so at that time the recording of the default was inaccurate, in that it did not reflect the true condition of the account at that time(irredeemably unenforceable)

 

As said above if the DCA/ creditor says that he cannot produce an agreement currently, it does not mean that he is admitting the account is irredeemably unenforceable, just temporarily so, as SF says this could run and run.

 

Thank you for being so clear with your answers - I am understanding things a little more now. The default will be on my account for 6 years come 2016. Does that mean after then it will be taken off my credit file, or will I have to write to Cabot or the OC (I take OC to mean orignal company?) asking them to remove the entry?

[Windywoo]

No, it didn't get near the court as there was never any paperwork.

 

I think I still have the letter from them confirming the account was irrecoverable!

[silverfox1961]

Once a default has been placed, it automatically falls off on its 6th anniversary. You need do nothing.

[spartathisis]

So are we saying a court must state an agreement is unenforceable?

 

The get out clause is that they register the default but avoid going to court in case deemed unenforceable.

 

Would the counter claim be to state this kind of action is vexatious as the creditor has no intention of taking it to court?

 

Looking for the arguments creditors will come up with to avoid compliance.

[Peterbard]

Which is grossly unfair if they know they will never be able to produce an agreement.

 

Yes although the failure to produce a credit agreement itself does not necessarily render the agreement unenforceable under section 127(3),. As pointed out in Carey and as illustrated in case law, the section only says that an agreement "was signed" there is nothing that say an agreement must be produced.

 

Compliance with the copy provisions can be accomplished without sight of the original agreement as also pointed out in Carey, as all the relevant information can be gathered from contemporary information.

 

Personally I think that when creditors say they have no agreement and cannot comply it is sometimes due to the fact that they do have an agreement but it is none compliant and they know that if they did produce it the debt would, be truly unrecoverable, Probably an SAR would be the best course of action if this was suspected.

[Peterbard]

So are we saying a court must state an agreement is unenforceable?

 

The get out clause is that they register the default but avoid going to court in case deemed unenforceable.

 

Would the counter claim be to state this kind of action is vexatious as the creditor has no intention of taking it to court?

 

Looking for the arguments creditors will come up with to avoid compliance.

 

Certainly it must be accepted by both parties that the agreement is irredeemably unenforceable

[sillygirl1]

Wouldn't it be a good idea to start a Facebook campaign to get the CRA's to erase data faster, and not blindly accept the 'creditor is correct'...and also stop the DCA's recording - once a file has been sold the CRA file should have a much shorter life...say 1 year, and then it is removed from your account.

 

The CRAs (as I have frequently said) are not fit for purpose in this century, and need to have new rules and regulations as they are DIRECTLY involved in the financial welfare of this sad country.

 

I will have to sort out the mess the CRAs have on my file but I just don't have the time or energy to deal with it - I've lived without credit for some years now and the only thing that has caused a problem is finding a decent mobile phone deal - which on a scale of 1 - 10 is about a 2!

[Farbramble]

@sillygirl1

 

Agreed. Also it can have a major impact on those looking to rent privately.

[pat5y]

Yes although the failure to produce a credit agreement itself does not necessarily render the agreement unenforceable under section 127(3),. As pointed out in Carey and as illustrated in case law, the section only says that an agreement "was signed" there is nothing that say an agreement must be produced.

 

Compliance with the copy provisions can be accomplished without sight of the original agreement as also pointed out in Carey, as all the relevant information can be gathered from contemporary information.

 

Personally I think that when creditors say they have no agreement and cannot comply it is sometimes due to the fact that they do have an agreement but it is none compliant and they know that if they did produce it the debt would, be truly unrecoverable, Probably an SAR would be the best course of action if this was suspected.

 

Who would you send a SAR to the OC or the debt collection company who bought the debt? I have a feeling that perhaps my agreement is non compliant as the credit card in question was not asked for at the time it was received, but given as a cheque guarantee card that also could be used as a credit card, although maybe I am wrong in this train of thought!