Let sleeping dogs lie ?

[jax50]

There must be a time to draw a line under things I guess. So a fairly hypothetical/true situation...

A Bank credit card debt over 6 years old, that is now off your CRA file, paying a notional amount per month ?

Is it worth stirring it up and risk the Bank getting angry and selling on to a DCA...and all that follows...?

Pro's...If you can stand the aggro, and you may fish out Unenforceability maybe, or negotiate with a DCA a 'reduced sum' in settlement..

Cons...If you can't stand the aggro, doorstep visits, a DCA takes you to court, you end up with a CCJ for more than you were paying originally...and maybe court costs too if you go that far.

other considerations...under the status quo the debt will likely remain forever, unless you find a source of additional income and can pay more off, or if they insist you pay more off. When you die the debt is paid out of your estate, so they take it off your kids basically.

How do you balance the options ?

[FlamingParrot]

Re: Let sleeping dogs lie ?

A very good question! You can always send a CCA request without stopping payments, see what comes back and base your decision on that. If they can't produce a CCA then they won't be able to get a CCJ so you don't have to worry about that. If they can produce something that could be enforceable if it went to court, depending on your defence, the judge, etc. then you can still argue it's UE and, if they seem to be getting heavy, try for a reduced settlement at a later date. If they produce a signed agreement with all the prescribed terms then you may decide to carry on or try for a reduced settlement later, however, with an old debt, this isn't very likely. :nono:

Doorstep visits are mostly empty threats, you can send a letter that will keep them away and, in the unlikely event someone did turn up, there's no law says you have to give them the time of day!

[jax50]

Re: Let sleeping dogs lie ?

Thanks FP, I guess what it all boils down to is the interpretation of the CCA results. The usual outcomes seem to be that it is a grey area, that is the debtor suggest UE while the creditor says not...and pursues or sells on...and on...and on...

It seems quite rare the a 100% 'No we do not have the original signed agreement so we can not enforce', or yes, 'this is a complete set of enforceable and legal documents' is the case.

Most seem to be in a middle ground, and of course this is s78, not s61 or 127. This is for information purposes only, like anyone is just wanting the info and not the real truth as to what 'original agreement' (if any) is held by the DCA or Bank.

How to proceed ? A CCA tells you little really, but of you can remember exactly what you signed x years ago, and what papers may have been there...then you can have strength of conviction I guess.

Maybe the key is in fact my last comment...what do you recall , if you can recall anything....

Going beyond CCA, as you may need to do when you find a request doesn't give you what you need, maybe CPUTR, although they can ignore that..then perhaps DSAR and cough up £10...that should produce the goods...although they may 'find' them later, if they chose the legal route.

In reality, the CCA request should require that the Bank/DCA produces the documents relevant to s61 etc...all this twaddle about they can cobble up anything for this process rather than simply pulling out the originals just tells the debtor that the law is on the side of the creditors...

This is scarey and offputting for many I expect, and the dog will just keep snoozing away in the basket I suppose...

[FlamingParrot]

Re: Let sleeping dogs lie ?

Thanks FP, I guess what it all boils down to is the interpretation of the CCA results. The usual outcomes seem to be that it is a grey area, that is the debtor suggest UE while the creditor says not...and pursues or sells on...and on...and on...

Contact form creditors tends to get less and less frequent as time goes by. I haven't heard a peep for over a year!

It seems quite rare the a 100% 'No we do not have the original signed agreement so we can not enforce', or yes, 'this is a complete set of enforceable and legal documents' is the case.

Not that rare, I've got three letters from MBNA stating they can't find it, and I haven't heard from them since Dec 2011, when they just wrote to say they wouldn't correspond with me any more, in response to my dispute letter of Dec 2010! I've never received a NoA saying it's been sold. You'll find quite a few people do get these letters saying they can't provide a CCA.

Most seem to be in a middle ground, and of course this is s78, not s61 or 127. This is for information purposes only, like anyone is just wanting the info and not the real truth as to what 'original agreement' (if any) is held by the DCA or Bank.

How to proceed ? A CCA tells you little really, but of you can remember exactly what you signed x years ago, and what papers may have been there...then you can have strength of conviction I guess.

Maybe the key is in fact my last comment...what do you recall , if you can recall anything....

In some cases, such as the infamous storecards turned credit cards, it pays to remember if you never signed a new agreement, when they try to fob you off with the one for the storecard. But if they want to take you to court, it's up to the claimant to prove there was a properly executed agreement signed by you in the first place.

Going beyond CCA, as you may need to do when you find a request doesn't give you what you need, maybe CPUTR, although they can ignore that..then perhaps DSAR and cough up £10...that should produce the goods...although they may 'find' them later, if they chose the legal route.

They don't have to respond to a CPUTR request but they would have to if you head it 'Complaint', as they have to respond to a complaint! :grin:

If they didn't send you an agreement in response to a CCA request, it's not likely to turn up with a SAR. In fact, I've got a SAR response somewhere where it says something about terms not being personal data so they really only need to provide you with the application form where your data appears, in response to a SAR, not the prescribed terms you allegedly signed.

In reality, the CCA request should require that the Bank/DCA produces the documents relevant to s61 etc...all this twaddle about they can cobble up anything for this process rather than simply pulling out the originals just tells the debtor that the law is on the side of the creditors...

Of course it is! :mad2: Thanks to Judge Waksman, they can send any old tosh in response to a s.77-79 request, however, the same judge also said that was for information purposes only.

This is scarey and offputting for many I expect, and the dog will just keep snoozing away in the basket I suppose...

As long as you keep paying the debt will be alive and there's no guarantee they'll never take you to court because DMPs and payment arrangements are not legally binding, in most cases they don't go legal, however, sometimes they may sell the debt on (they can do that even if you're paying) to someone who gets tired of tokens and decides to go legal. It's not unheard of.

My dogs are snoozing away but they are half way through to Statute Barred. :grin:

[jax50]

Re: Let sleeping dogs lie ?

Thank you FP... Good idea about marking a CPUTR as a complaint by the way..could it end up at the FOS even...haha

Good news with your SBs'..

You've made me think about this a bit more...maybe I'll take the dog for a walk...if I had one.

Assessing the risks though, could they somehow re-default and start the 6 year clock going under any circumstances ? Even, for example, if they realise the old original DN was defective albeit off the CRA file now. I mean, some of 'em can turn a bit tetchy I'm told. All water under the bridge now as far as the credit file is concerned, and I'm not going to tell them.

Waksman got it wrong for me, he could have sorted out a load of trouble by ruling the CCA request had to satisfy the proof criteria...although it kind of gives the game away maybe that many DCA's and Banks would be vulnerable with that.

[basa48]

Re: Let sleeping dogs lie ?

........................ if they realise the old original DN was defective albeit off the CRA file now...............

This is an area of much debate and disagreement! It is argued the the OC can re-issue a DN if the original is defective, but not if the account has been terminated and sold on.

Waksman got it wrong for me, he could have sorted out a load of trouble by ruling the CCA request had to satisfy the proof criteria...although it kind of gives the game away maybe that many DCA's and Banks would be vulnerable with that.

What Waksman did do was clarify what he considered was necessary for proof for S61 and also:

(4)If an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms;

How many agreements haven't been varied??

[jax50]

Re: Let sleeping dogs lie ?

(4)If an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms;

How many agreements haven't been varied??

is that for CCA purposes or s61 ?

[basa48]

Re: Let sleeping dogs lie ?

is that for CCA purposes or s61 ?

This is para (4) of Waksman's Summary of Findings and is related to what he feels is required for compliance with S78.


SUMMARYOF FINDINGS


234.The following is a brief summary of the principal findings and conclusions set out above:
(1)A creditor can satisfy its duty under s78 by providing a reconstituted version of the executed agreement which may be from sources other than the actual signed agreement itself;
(2)The s78 copy must contain the name and address of the debtor as it was at the time of the execution of the agreement. But the creditor can provide the name and address from whatever source it has of those details. It does not have to take them from the executed agreement itself;
(3)The creditor need not, in complying with s78, provide a document which would comply (if signed) with the requirements of the Consumer Credit (Agreements) Regulations 1983 as to form, as at the date the agreement was made;
(4)If an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms;
(5)If a creditor is in breach of section 78 this does not of itself give rise to an unfair relationship within the meaning of section 140A;
(6)The Court has jurisdiction to declare whether in a particular case,there has been a breach of s78. Whether it will be appropriate to grant such a declaration depends on the circumstances of that case;
(7)In assessing whether Prescribed Terms are “contained” in an executed agreement the principles set out at paragraph 173 above are relevant. On the assumed facts set out at paragraph 177 the Prescribed Terms were so contained;

[FlamingParrot]

Re: Let sleeping dogs lie ?

Thank you FP... Good idea about marking a CPUTR as a complaint by the way..could it end up at the FOS even...haha

Good news with your SBs'..

You've made me think about this a bit more...maybe I'll take the dog for a walk...if I had one.

Assessing the risks though, could they somehow re-default and start the 6 year clock going under any circumstances ? Even, for example, if they realise the old original DN was defective albeit off the CRA file now. I mean, some of 'em can turn a bit tetchy I'm told. All water under the bridge now as far as the credit file is concerned, and I'm not going to tell them.

Waksman got it wrong for me, he could have sorted out a load of trouble by ruling the CCA request had to satisfy the proof criteria...although it kind of gives the game away maybe that many DCA's and Banks would be vulnerable with that.

This is an area of much debate and disagreement! It is argued the the OC can re-issue a DN if the original is defective, but not if the account has been terminated and sold on.

What Waksman did do was clarify what he considered was necessary for proof for S61 and also:

(4)If an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms;

How many agreements haven't been varied??

Yes, this has been discussed quite a lot, that they can remedy a defective DN, but the only time a DN comes into play is if they go to court. Seems rather pointless to have a requirement for DNs to meet certain criteria such as giving enough time to remedy the breach and asking only for the arrears rather than the whole balance, when they are allowed to re-issue them! :rant:

The only reason to re-issue a DN would be to do better in court, if they are not going to start proceedings, why bother? Re-issuing a DN wouldn't reset the SBd clock, if it did, all creditors would be doing it to keep the debts alive forever and the Statute of Limitations would be totally pointless. The clock only gets reset by actions on the debtor's side, such as making a payment either by yourself or through someone acting for you or a written acknowledgment of some sort (such as a settlement or instalment offer), it can't be reset by the creditor issuing a new DN when it suits them.

[jax50]

Re: Let sleeping dogs lie ?

(4)If an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms;

This seems a bit ambiguous to me. The use of the word 'still' can not mean the original agreement because he has already said the original agreement need not be produced.'Still' suggests the original reconstituted agreement ie the original terms prior to variation...

[jax50]

Re: Let sleeping dogs lie ?

Yes, this has been discussed quite a lot, that they can remedy a defective DN, but the only time a DN comes into play is if they go to court. Seems rather pointless to have a requirement for DNs to meet certain criteria such as giving enough time to remedy the breach and asking only for the arrears rather than the whole balance, when they are allowed to re-issue them! :rant:

The only reason to re-issue a DN would be to do better in court, if they are not going to start proceedings, why bother? Re-issuing a DN wouldn't reset the SBd clock, if it did, all creditors would be doing it to keep the debts alive forever and the Statute of Limitations would be totally pointless. The clock only gets reset by actions on the debtor's side, such as making a payment either by yourself or through someone acting for you or a written acknowledgment of some sort (such as a settlement or instalment offer), it can't be reset by the creditor issuing a new DN when it suits them.

But they can re-issue a DN and reset the CRA file clock ? That is what the FOS told me anyway.... :-(

[basa48]

Re: Let sleeping dogs lie ?

(4)If an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms;

This seems a bit ambiguous to me. The use of the word 'still' can not mean the original agreement because he has already said the original agreement need not be produced.'Still' suggests the original reconstituted agreement ie the original terms prior to variation...

I would disagree. The words are copy of the original agreement. Also I can't reconcile your phrase 'original reconstituted'. If it is reconstituted it is not an original. TBH even a photocopy is not really the original !!

The question Waksman sought to answer was phrased in para 5(2):

(2)If an agreement has been varied by the creditor under a unilateral power of variation, is a copy of the executed agreement as varied, a sufficient copy for the purposes of s78(1), or must the creditor provide a copy of the original agreement as well?


Waksman was discussing the reconstituted agreements sufficient for S78, but followed up with his phrase:
(4)If an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms;

Clearly (IMO) distinguishing the 'reconstituted' agreement from the 'original' agreement.

It think it has been established that the interpretation is that the creditor must produce a copy (i.e. photocopy) of the original agreement showing the signature.

[jax50]

Re: Let sleeping dogs lie ?

I would disagree. The words are copy of the original agreement. Also I can't reconcile your phrase 'original reconstituted'. If it is reconstituted it is not an original. TBH even a photocopy is not really the original !!

The question Waksman sought to answer was phrased in para 5(2):

(2)If an agreement has been varied by the creditor under a unilateral power of variation, is a copy of the executed agreement as varied, a sufficient copy for the purposes of s78(1), or must the creditor provide a copy of the original agreement as well?


Waksman was discussing the reconstituted agreements sufficient for S78, but followed up with his phrase:
(4)If an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms;

Clearly (IMO) distinguishing the 'reconstituted' agreement from the 'original' agreement.

It think it has been established that the interpretation is that the creditor must produce a copy (i.e. photocopy) of the original agreement showing the signature.

It comes down to the use of the word 'still'. This tells me that had there been no variations, then a 'true' copy of the agreement is req'd for s78 , this is as per the cancellation notices and copy regs 1983, not a copy of the 'original' agreement bearing signatures. If there has been a variation then a true copy is still req'd of the original (ie the one before the varied version). You wouldn't use the word still to suddenly mean the original signed agreement , because the original signed agreement was not required in the first place.

If he had meant as you said, surely he would have used 'in this case' for his wording, and not 'still'. ??

I might be wrong, I've not looked into the detail, but that's how it looks on the face of it...

[jax50]

Re: Let sleeping dogs lie ?

As an aside, what sort of variations are we talking about...interest rates, credit limits etc, or something more significant ?

[FlamingParrot]

Re: Let sleeping dogs lie ?

But they can re-issue a DN and reset the CRA file clock ? That is what the FOS told me anyway.... :-(

The CRA file clock and the SBd clock are two completely different things, although I still don't think this is true. Re-issuing a DN is normally done to remedy a defective DN, but there should only be ONE default per account, and it should drop off 6 years after it was recorded. See the ICO Technical Guidance Notes for reference.