To wait or not to wait.. that is the question...?

[oldbloke1]

Dear all.

New to this forum and hope this is the correct place to ask this.

I have 2 default markers on my credit file ( as viewed at Experian) which will be 6 years old on 31/10/2014 and 1/11/2014 and therefore due to drop off my credit file. I assume that the last payment would have been some months before that - sorry I cannot remember. Both were put there by different companies ( 1st Credit and Apex respectively ).

I moved from the UK on 31/5/2008 and lived in Ireland until July this year when I returned to the UK. So, I didn't recieve any default notice and can prove I was resident abroad when the notice was supposed to have been served.

The question is... Do i question the default and question the debt ( not acknowledging them) and ask that the default be removed if they cannot prove the correct service or do I say nothing and ignore the letters i have just started recieving.

While i cannot deny that the debts were ones that I ran away from in 2008 ( Guilty and blushing about it) I am concerned that they may try and restart either the default clock or worse yet, do I get the statute barred clock restarted by contacting these rather unsavioury companies.

I would welcome advice and suggestions.

Thank you all.


PS: very nice, informative site btw.

OB1

[FlamingParrot]

Re: To wait or not to wait.. that is the question...?

Hi and welcome!

I'm afraid you won't get anywhere questioning the service of the Default Notice, even if you'd been living in the UK. The default is meant to reflect your conduct with the account and if you failed to maintain contractual payments, they are entitled to record it. The DN really comes into its own if they took you to court, where it could aid your defence if what they sent was non compliant. As the defaults are going to drop off next year anyway, the best thing to do is just wait, bearing in mind some lenders only search the last 3 years anyway (unless you're after a mortgage).

As per McGuffick vs RBS, creditors are entitled to report to the CRAs even if the debt is unenforceable. What you shouldn't do is ignore their letters, because they could try and start court action just before the debts become SBd. Do you know when you last paid them? Because the defaults are meant to be recorded between 3 and 6 months after your 1st missed payment, and sometimes they are recorded later than that. The date when they drop off your file never coincides with the time they go SBd, which would be earlier. :clock: :clock:

If they are not hassling you, then it's OK to let sleeping dogs lie, however, if they are writing to you and the debt is not yet SBd, I'd be sending them a CCA request under s.77-79 of the Consumer Credit Act. That letter doesn't acknowledge the debt or reset the clock but it does render the account unenforceable until such time as they send something compliant, which could well buy you the time you need. :thumb:

[FlamingParrot]

Re: To wait or not to wait.. that is the question...?

CCA request letter below. It should be sent recorded delivery with a PO for £1 and signed using your computer font rather than your real signature. :thumb:

Dear Sirs,

Account or Reference No.:

I hereby formally request a copy of my Consumer Credit Agreement, pursuant to s.77-79 of the Consumer Credit Act 1974 (CCA1974).I require you to provide me with a true copy, or reconstituted copy of the credit agreement relating to any account you deem to be mine, together with any other documentation the Act requires you to provide. I expect you to comply fully and properly with this request, within the statutory time limit (12 + 2 days).

If it is your view that you are not the creditor, s.175 of the CCA1974 applies in the case of a simple assignment, and places a duty upon you to pass this request to the creditor. In the case of an absolute assignment, you are a creditor as defined by s.189. If you contend that you purchased the rights but not the duties of any agreement, you are reminded that s.189 of the Act is clear that an assignment is of both rights and duties. Your attention is drawn to ss.5(2), 3(b), 6 and 7 of the Consumer Protection from Unfair Trading Regulations 2008 (CPUTR).

In line with recent OFT Guidance (issued Oct 2010) surrounding Unenforceability, I presume you're aware that the OFT has stipulated that 'sections 77-79 of the Consumer Credit Act 1974 outline the information creditors must provide to debtors under fixed-term, running account & Hire Agreements'. This simply means that under these sections a debtor can pay £1 to get:

• a copy of their agreement
• copies of some of the other documents mentioned in their agreement
• a statement of account

If this information is not provided within 12 working days the debt becomes unenforceable. This means a creditor cannot:

• make the debtor pay the debt before they're supposed to
• get a court judgment against the debtor

So, in line with the OFT Guidance, and the Consumer Credit Act, please find attached my £1 payment, which is the statutory fee - note that these funds are not to be used for any other purpose. If you are unable to comply fully and properly with this request, you should confirm this in writing at the earliest opportunity, and certainly within the statutory time limit for compliance, and return the fee and then remove the incorrect entry from your systems.

I do, expect the main actions to be dealt with, as matter of course, and look forward to hearing from you within the prescribed time-scales quoted however, in the meantime, I require that you clarify your position on this point as failure to do so, even by omission or lack of a response, will be regarded as an attempt to deliberately misrepresent or conceal the legal position regarding this matter to which an appropriate complaint will be made to the OFT.

Yours faithfully,

[oldbloke1]

Re: To wait or not to wait.. that is the question...?

Flaming Parrot. - All

Thank you so much for the advice and letter (which is excellent). I have sent this as advised by recorded delivery.

I dont recall the last payment made to these matters as I went through a period of "Payplan" from abroad, where i made payments which they administered. However, the logic of what you said means that the last payment to these alleged debts must have been before the drop off dates by a minimum of 3 months (?) August 2014- ish

They have both sent me letters offering a large discount (30-50%) on the outstanding, but I read this as an attempt to get acknowledgement of the debt. If they had all their ducks in order would they really be offering this level of discount? What I am saying is, if they could drag me before a court to get the full money why offer such a large reduction? I hope your letter will shake them into something but I suspect they will ignore it and send another demand.

Anyway, I will advise when/if i hear anything

OB1

I have sent letters to them and will wait to see what response comes my way.

[FlamingParrot]

Re: To wait or not to wait.. that is the question...?

Flaming Parrot. - All

Thank you so much for the advice and letter (which is excellent). I have sent this as advised by recorded delivery.

I dont recall the last payment made to these matters as I went through a period of "Payplan" from abroad, where i made payments which they administered. However, the logic of what you said means that the last payment to these alleged debts must have been before the drop off dates by a minimum of 3 months (?) August 2014- ish

The exact date where the Statute of Limitations kicks in is the subject of quite a bit of argument, even when you know when you last made a payment. As per ICO guidance, defaults have to be recorded between 3 and 6 months after you miss a payment, some do it later but they couldn't have defaulted you before you stopped paying, so your estimates are right, this should be SBd in around a year's time. :clock:

They have both sent me letters offering a large discount (30-50%) on the outstanding, but I read this as an attempt to get acknowledgement of the debt. If they had all their ducks in order would they really be offering this level of discount? What I am saying is, if they could drag me before a court to get the full money why offer such a large reduction? I hope your letter will shake them into something but I suspect they will ignore it and send another demand.

You are correct, responding to their discount offers WOULD constitute acknowledgment of the debt, it's a commonly used trick. They have 14 days to respond to the letter you have sent (a CCA request), until such time as you receive something compliant, the account will be unenforceable. If you look around, you'll find most creditors do write back saying they account will be on hold whilst they obtain the documents. If this is with a DCA as opposed to the original lender, they'll have to go back to the lender to obtain the documents, so it's likely to take a lot longer than 14 days to send them, if at all. :thumb:

[jon1965]

Re: To wait or not to wait.. that is the question...?

Just a couple of observations
They often look at your financial circumstances before issuing proceedings. Not always I will admit . If you own a home or have a good income you are an easier target, if you have nothing .
As for issuing DN's I have a couple of accounts where they did not issue the DN until my payments dropped to £1 pcm. Up until then I had been paying £5 a month, still below the minimum payment , so they should by rights have defaulted me. In my case it really doesn't make a lot of difference .
You aid you had been paying thru payplan with a target repayment of just just before the defaults fell off...when did these stop?.
I get confused so if I am talking rubbish someone tell me to shut up

[basa48]

Re: To wait or not to wait.. that is the question...?

................... You said you had been paying thru payplan with a target repayment of just just before the defaults fell off...when did these stop?.
I get confused so if I am talking rubbish someone tell me to shut up

This is an interesting point, if you have been making payments the SB clock wouldn't start until you'd missed at least one payment and I assume you would have to have disputed the debt at that point. Otherwise I would assume you are still acknowledging the debt even though not making payments to it.

It would be nice if someone could clarify this point.

[basa48]

Re: To wait or not to wait.. that is the question...?

The exact date where the Statute of Limitations kicks in is the subject of quite a bit of argument, even when you know when you last made a payment. As per ICO guidance, defaults have to be recorded between 3 and 6 months after you miss a payment, some do it later but they couldn't have defaulted you before you stopped paying, so your estimates are right, this should be SBd in around a year's time. :clock:
.................

I always thought that you can be defaulted (CRA or CCA S87) once you miss any 'contractual' payments (i.e. the level as specified in the credit agreement), even if you continue with reduced payments.

[oldbloke1]

Re: To wait or not to wait.. that is the question...?

Thanks for your advice.

If it does take longer than the allowed 12 +2 for them to comply with this request, then what are the consequences for them. Are they not allowed longer if they are not the originl lender or should they have anticipated this when obtaining the debt ?

Sorry, two questions in one there !

OB1

[jon1965]

Re: To wait or not to wait.. that is the question...?

If it takes longer than the 12+2 days there is no penalty for them as such. However once that time has passed they can not enforce the agreement until they comply. I can take them quite some time to get something to you and even then you need to check that it fulfills all the criteria.
In theory they could not produce, you stop paying then they could take you to court and produce the agreement on the day (at least I think that is right) .

All that is a long way off, so wait to see what , if anything they send back. It might be that they write back saying they can not find one

[FlamingParrot]

Re: To wait or not to wait.. that is the question...?

I always thought that you can be defaulted (CRA or CCA S87) once you miss any 'contractual' payments (i.e. the level as specified in the credit agreement), even if you continue with reduced payments.

You are correct, by "payment" above, I meant contractual payments, not reduced payments. Apologies if I didn't make it clear.

[FlamingParrot]

Re: To wait or not to wait.. that is the question...?

If it takes longer than the 12+2 days there is no penalty for them as such. However once that time has passed they can not enforce the agreement until they comply. I can take them quite some time to get something to you and even then you need to check that it fulfills all the criteria.
In theory they could not produce, you stop paying then they could take you to court and produce the agreement on the day (at least I think that is right) .

All that is a long way off, so wait to see what , if anything they send back. It might be that they write back saying they can not find one

If they take you to court, you can send a request under CPR 31.14 for disclosure of documents mentioned on the particulars of claim, which almost always will include the agreement. They have to provide the documents so you can prepare your defence, without sight of the agreement, you couldn't possibly put one together.

[FlamingParrot]

Re: To wait or not to wait.. that is the question...?

This is an interesting point, if you have been making payments the SB clock wouldn't start until you'd missed at least one payment and I assume you would have to have disputed the debt at that point. Otherwise I would assume you are still acknowledging the debt even though not making payments to it.

It would be nice if someone could clarify this point.

You're right with regards to payments resetting the clock, even a £1 token would be enough to reset it. But you don't necessarily have to dispute the debt after you stop paying, to acknowledge it, you'd have to put something in writing to that effect, such as making a repayment offer or a F&F. :sad: Merely gnoring a debt without disputing it doesn't mean you are acknowledging it.

[basa48]

Re: To wait or not to wait.. that is the question...?

You're right with regards to payments resetting the clock, even a £1 token would be enough to reset it. But you don't necessarily have to dispute the debt after you stop paying, to acknowledge it, you'd have to put something in writing to that effect, such as making a repayment offer or a F&F. :sad: Merely gnoring a debt without disputing it doesn't mean you are acknowledging it.

To the strict letter of the law you are correct, but I think if I were to suddenly stop any payments to a debt I would have a good reason to do so and would think it best to convey that reason to the creditor / DCA, just to be sure.

[FlamingParrot]

Re: To wait or not to wait.. that is the question...?

To the strict letter of the law you are correct, but I think if I were to suddenly stop any payments to a debt I would have a good reason to do so and would think it best to convey that reason to the creditor / DCA, just to be sure.

You are right, but not in terms of the Limitations Act, i.e. after 6 years it doesn't matter why you stopped paying, the debt is SBd and cannot be collected. :grin:

However, it's six long years before that happens, during which time creditors can start court proceedings at any time, and it's always wise to have a healthy paper trail to show you communicated with the creditor all along and told them your reasons for not paying and/or disputing the account. Communication is a key part of the UE process, which is why I said to the OP it's not a good idea to ignore the letters they are receiving. Also when a debt is passed on to a new DCA, it's important to inform them of any dispute with the OC, because they wouldn't have a clue. :thumb: