DCA has failed to provide CCA agreement

[Jagsman]

Hi.

I'm new on this site and apologies if I'm asking about aspects of the CCA that are very familiar to others. I wasn't aware of the CCA legislation until recently and now that I understand parts of it more clearly I'd really appreciate input as to how best to proceed please.

One of the DCA's I'm currently dealing with has failed to provide the agreement from the OC (which having read other forums doesn't seem unusual). This after 6 weeks. More recently, I've asked another DCA for the agreement relating to that account and suspect they will not be able to provide it. Both accounts date from pre 2007.

My lack of understanding is around whether to: A. Send both DCA's a F&F settlement offer soon after the expiry of the 12 day period - I was thinking of offering 5% of the outstanding balance as, if they accept then the debt would be closed once and for all even if that DCA then sells the debt to another DCA; or B. Ignore the whole thing completely as the debt would then be unenforceable (unless the OC eventually finds the agreement).

I think Option A might be better in the long run as the balance of the debt would be written-off in effect as I understand it and I'd have at least paid part of the outstanding amount, even if I've been paying regular amounts to all my creditors since 2009 and there would then be no chance of the balance of the outstanding amount suddenly being payable once again. The main problem with Option A is that I have over 20 such accounts and my sister who would be funding such payments doesn't have unlimited resources!!

I'm tentative about proceeding with any course of action in some ways however as I don't have much experience of this aspect of debt management. Is it normal / usual that original creditors actually find CCA documentation on behalf of DCA's?

Grateful for any opinions please!!

Thanks.

[Debt Camel]

Re: DCA has failed to provide CCA agreement

A third option would be to stop making payments to any where the DC can't supply the documentation and save up those payments in a seperate account. Then if the docs turn up for 1 or 2, you have a pot of money from which to offer a settlement or resume payments.

[ostell]

Re: DCA has failed to provide CCA agreement

Before you make a F&F offer when was the last payment to the debt?

[Jagsman]

Re: DCA has failed to provide CCA agreement

Thanks Debt Camel. My thinking was that if the agreements turn up at some time then the DC would want payments to resume of course. Also, I thought that if the agreement was to turn up then they'd want a higher amount to settle the debt than they might accept whilst the debt was unenforceable?

[Jagsman]

Re: DCA has failed to provide CCA agreement

Hi Ostell. The last payment was 1 month ago. I've been making monthly payments to all accounts since 2009 / 2010.

[charitynjw]

Re: DCA has failed to provide CCA agreement

Hi Jagsman

If it were me I'd send a Subject Access Request to the original creditors (esp the pre-2007 ones) & see what data is held (or not, as the case may be).
This may give put you in a stronger position to negotiate.
Also, it would be better to offer any F&F via a third party (your sister?). This will, if accepted, create a contract between the DCA & the third party.
Careful wording of any F&F is needed.

[Jagsman]

Re: DCA has failed to provide CCA agreement

Hi Charitynjw. Thanks for that; I hadn't thought of sending an SAR. Is your thinking that in doing so I'd know if the OC actually has the credit agreement or not before starting any part of the negotiation process with the DCA?

[Diana M]

Re: DCA has failed to provide CCA agreement

I think Debt Camel's Option 3 makes sense

I would add that just because a creditor produces a credit agreement (bits of paper) that doesn't mean the debt is necessarily enforceable in court. I see very 'interesting' attempts at reconstituted documents. When you receive any "CCA" it would be wise to get a legal health check to see if it's valid.

I assume (maybe wrongly so correct me) that all of these debts have been defulted and that's been registered with the CRAs. If so then six years later the whole file vanishes from your CRA file so you can begin to repair your credit status.

If you make below-balance-outstanding offers which are accepted then the CRA file entry may show as 'part settled' which is an improvement but not the same s 'satisfied' if the whole lot is paid.

Di

[Diana M]

Re: DCA has failed to provide CCA agreement

I hadn't thought of sending an SAR. Is your thinking that in doing so I'd know if the OC actually has the credit agreement or not before starting any part of the negotiation process with the DCA?

A lot depends on who now owns the debt.

If the account has been sold to a debt purchaser they may not have access to the same information as you can get from the original creditor in a SAR.

The CCA may be in the OC's possession but not necessarily available to the debt purchaser for 'various reasons' which I'm not going to expand on in public

Di

[Diana M]

Re: DCA has failed to provide CCA agreement

I have over 20 such accounts

In which case buy twenty £1 postal orders and send each one a CCA Request (if you haven't already done that).

Then buy a tin hat, grow a thick skin and wait for the creditors' Inner Bully to kick in if/when you stop paying the unenforceable ones. There will be phone calls and letters galore to follow. Don't talk on the phone and file the letters safely away and/or answer any which need an answer.

Six years later they'll be Statute Barred if you manage to dodge legal proceedings.

Di

[Diana M]

Re: DCA has failed to provide CCA agreement

Is it normal / usual that original creditors actually find CCA documentation on behalf of DCA's?.

Where's the original creditor's incentive?

They've sold the debt for a fraction of the outstanding balance, and likely to have written off the rest against Corporation Tax. As far as they're concerned the file is closed.

A DCA only collects debts on behalf of the debt owner.

If the the debt is still with the OC then they will look in their files for the CCA. If they find they've not retained it or the CCA was flawed in the first place (i.e. irredeemably unenforceable) then chances are they'll sell the debt on.

There's a lot to learn about unenforceable credit agreents which can't be explained in a few posts (although I have tried my best ) . You need to do your research, ask questions and then ultimately the choice is yours whether to settle or pay and understand the consequences of your decision.

Di

[Jagsman]

Re: DCA has failed to provide CCA agreement

Hi Di. Thanks for all of the above which I very much appreciate; the range of factors to be taken into account seems extensive and although I was aware of some of them others are new to me. All my accounts have defaulted and all now more than 6 years ago; I have no interest or need to secure credit in the future; although I'm not entirely clear on all cases who owns the debt I am sure that for most of them it's the DC; I didn't know a DCA may not have access to all docs or info from an OC. Legal advice would be useful for some of these debts and as I've now realised your company is one of them I'll contact JC Solicitors! Thanks again for the moment.

[Jagsman]

Re: DCA has failed to provide CCA agreement

Another of the DCA's I sent a CCA request to must have contacted the OC (MBNA) as I've now received some four terms and conditions from MBNA. They're almost entirely generic however with the only aspect that's specific to me being my name at the top of page 2. I'm certain this doesn't satisfy the purpose of the CCA request as it doesn't have my signature, date, credit limit or indeed anything specific to me other than my name!

Not sure if this is a typical response from an OC/DCA as it's the first CCA response I've received - does anyone have a view on this please?

[nemesis45]

Re: DCA has failed to provide CCA agreement

Another of the DCA's I sent a CCA request to must have contacted the OC (MBNA) as I've now received some four terms and conditions from MBNA. They're almost entirely generic however with the only aspect that's specific to me being my name at the top of page 2. I'm certain this doesn't satisfy the purpose of the CCA request as it doesn't have my signature, date, credit limit or indeed anything specific to me other than my name!

Not sure if this is a typical response from an OC/DCA as it's the first CCA response I've received - does anyone have a view on this please?

Hi,

Case Law has meant that a creditor/debt purchaser can supply a " reconstituted " agreement that does not have to have signatures but must have the following.

Your name and address as it was when the account was opened.
Ditto for the original creditor.
The terms and conditions as relevant when the account was opened
Those relevant when the account was closed.
Any other documents mentioned in the Terms and Conditions.
+ a certified current statement of the account.

So you need to check carefully through all the T's & C's looking to see if for instances clause are mentioned in on part say just by number and stated to appear elsewhere but don't.

nem

[Jagsman]

Re: DCA has failed to provide CCA agreement

Thanks Nemesis. I've checked the documentation again: although it has my name the document shows my current address as opposed to my address the time the account was opened - there's nothing about the T&C at the time the account closed and no statement of account. In addition, they don't mention the prescribed terms or a credit limit. I need to become more expert on reconstituted agreements and unenforceability but for the moment I'm fairly sue the documentation MBNA have sent is not valid as a reconstituted agreement.