Hello

[Wbear]

Hi I'm another newbie so wanted to say hi!

Need some help with what to do next after asking for original copies of loan paperwork from DCA only to be told "don't have it"!!

[Caspar]

Re: Hello

Hi Wbear and welcome!

I assume you sent a proper CCA request with the prescribed £1 fee? Could you put a bit of flesh on the bones please? Relevant history, name of company etc.... We can help better the more details we're given.

[Wbear]

Re: Hello

Hi

We did everything by the book. Sent a postal order for £1 and requested the original agreement for a Goldfish credit card. Unfortunately Goldfish have been sold on several times and now Cabots have bought the debt.

The reply that we got was that they do not have the original agreement but are looking for it. They have put a hold on the debt, but in the next sentence that still want the monthly payment !!

My question is what do we do next? Should we still make the monthly payments, can they even still enforce a debt that they cant prove exists?

[Celestine]

Re: Hello

Enforceability is definitely not my area! But I'm bumping your post to see if anyone can help.
They said they can't find anything?!
As I understand, this debt can't be enforced at court but they will probably trash your credit record if you stop payments.
Time for the experts to help?
:seagull:

[shamen]

Re: Hello

I cant claim to be an expert, but I would imagine as the 12+2 day period has passed, and no consumer credit agreement is provided then the DCA is in default. They cannot perform collection activity until they provide a true copy of the executed agreement. While they may ask you (or even threaten as the case may be) for your monthly payments to continue, its my understanding that you are under no obligation to pay until they do provide that agreement that you have lawfully requested.

they also cannot enforce this debt in court if they do not have the executed agreement. While they may provide a 'reconstitued' agreement to you in your CCA request (eg, it may not have your signature on), they must produce an agreement with your signature on if they wish to enforce in court (IIRC, you can check if they have a signed agreement by doing a subject access request)

As Celestine points out, no paying could have adverse impact on your credit report, but I would imagine that if this is a debt that has been bought by cabot then its likely that you are already defaulted for this account? I should also note that technically, if Cabot cannot produce the signed consumer credit agreement, then they also have no permission to share your personal data with the credit ref agencies.

[Gorang]

Re: Hello

Personally I would get a DSAR away to Cabot asap to see what they have and more to the point DON't have on you

[Wbear]

Re: Hello

Thanks guys

Have sent another letter off to Cabots giving them what for about sharing my information so will see what happens next.

Its guys like you that give the rest of us the courage to fight!

[Caspar]

Re: Hello

I'm not sure how I've missed this post, sorry. If they have not complied with your CCA request they are in default. They have admitted not having the agreement at the moment, so you are entitled to place the account into default and stop paying until such time as they come up with an agreement or provide an acceptable reconstitution.

Some will say that simply not producing the agreement does not in itself create a default, but most DCA's seem to accept that it does.

You must however be prepared to take the knock on effect to your CRF mentioned above and also accept that they may well at some stage produce the agreement.

In terms of enforceability the prescibed terms are clearly laid down (see Curlyben's thread in DCA's) though it is recommended you get these checked by an expert. Fighting any case on unenforceability now is very difficult. It is not impossible, but far more cases are lost than won and I personally would caution against taking this route.

There is however nothing at all wrong with making them work and keeping the pressure on the DCA to produce the CCA.

[never-in-doubt]

Re: Hello

can they even still enforce a debt that they cant prove exists?

Yes they can as it does exist!

They can prove it exists, they just haven't sent an agreement thus all you need to do is write back quoting s.127 (3) and mention that they are in default and therefore you're not paying into it until such time they respond in accordance with the clear rules as defined with s.78.

An agreement doesn't just quantify an account existence, it also confirms that you agreed to the actual terms that went with it. If they cannot find an agreement then they cannot enforce it, it'd require a judge to do so however any decent one would then utilise s.127 and declare it unenforceable.

As an aside, since Barclays took over Goldfish, not many come back enforceable - especially the older ones.

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

[never-in-doubt]

Re: Hello

Fighting any case on unenforceability now is very difficult. It is not impossible, but far more cases are lost than won and I personally would caution against taking this route.

Statistically you're incorrect. Its not a case of win or lose - that can only be assessed on cases, what you have to remember is only a small fraction of cases hit the courts and thus only a few you hear of.

As you know full well, from other forums, what goes on behind closed doors takes some of the dullness away from the figures as a certain company are winning several cases, continually, but it's way before court thus it's unreported. Basically, you cannot generalise UE - it is best assessed on a case-by-case basis, as two people could have applied on the same day, at the same time from the same address but one may have got sent terms, the other may not have. So, to clarify, if you're uncertain of the rules and figures associated with UE, i'd suggest you ask one of us that do know.

UE is always a case-by-case scenario. Always!

[Geneve]

Re: Hello

I would have to agree, whilst UE can be a long route and you need thick skin to put up with the letters etc...

In this case I would strongly think about it. I am not sure if this forum has a UE section (not at first glance) but there is a lot of help out there in the forums if you google it!

I just googled and came up with some consumer site haven't really looked around but it said it dealt with UE

So Good luck!!

[never-in-doubt]

Re: Hello

I just googled and came up with some consumer site haven't really looked around but it said it dealt with UE

So Good luck!!

That'll be whats next to my name, in my profile location etc (ie it is our site).... :beagle:

[Geneve]

Re: Hello

Ah right sorry about that, I haven't looked at your profile.

I tend to use a little tool called : letmegooglethatforyou

[Caspar]

Re: Hello

NID, you are absolutely correct. I should have been clearer and stated that the vast majority of cases that reach court are lost - apologies for not putting in the context.

In terms of individual cases, I am not aware of any evidence that states definitively one way or another how many cases are settled or reach a conclusion before court. If you know of any place where this information is available from an independent source, it would be very useful to have.

I know of many cases which have been delayed for lengthy periods of time, passed from one DCA to another, etc.... but I am not aware of a significant number where a permanant resolution has been reached without the need for expenditure for say, a full and final settlement, purely on the grounds of unenforceability.

Equally, I am aware of many cases which have been significantly delayed and the debtor in question has ended up with a CCJ against their name.

There is nothing wrong whatsoever in exploring the UE route, especially if they have admitted not having the agreement at the moment. However, I would still personally suggest that if you take this route, you do so knowing exactly what you are letting yourself in for from an independent source of advice such as the Insolvency Helpline, CAB, National Debtline, Payplan, CCCS etc.....

[Geneve]

Re: Hello

The fact is your going to end up with defaults, and possible CCJ's if going UE, but if your struggling to fight the fight and if your struggling to pay then whats the difference you bite as well try every avenue no?

the CAB and ND PP CCCS etc will discourage UE they will offer your creditor an amount per month which will get reviewed every few months and you will have the same defaults on your file.

I do thinnk the charities have their place but its not with UE.